Willias Madzimure and Allan Norman Markham v The President of the Republic of Zimbabwe and The Attorney General of Zimbabwe

The applicants, both Members of Parliament and human rights activists (first applicant for Kuwadzana Constituency, second applicant for Harare North Constituency), challenged the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20], specifically section 2(2). They brought the application in the public interest. The applicants contended that Parliament had unconstitutionally delegated its primary law-making power to the President by allowing the President to make regulations that "may provide for any matter or thing for which Parliament can make provision in an Act." They argued this violated section 134 of the Constitution of Zimbabwe 2013, which permits delegation of power to make statutory instruments but prohibits delegation of Parliament's primary law-making power. The applicants also sought a declaration that statutory instruments must be tabled before Parliament and receive a certificate of constitutional compliance before coming into effect.

• Whether section 2(2) of the Presidential Powers (Temporary Measures) Act is unconstitutional for delegating Parliament's primary law-making power to the President in contravention of section 134(a) of the Constitution
• Whether Parliament can delegate legislative power to make subsidiary legislation that provides for any matter that Parliament can provide for in an Act
• The proper interpretation of section 134 of the Constitution regarding the limits on delegation of legislative powers
• Whether statutory instruments must be tabled before Parliament and receive constitutional compliance certificates before coming into effect
• The distinction between primary law-making power and delegated power to make subsidiary legislation

The application was dismissed with costs.

Parliament's primary law-making power under section 134(a) of the Constitution refers to the plenary legislative process involving debate, scrutiny, voting in both houses of Parliament, and presidential assent as prescribed in sections 131-133 and the Fifth Schedule to the Constitution. This plenary process cannot be delegated. However, Parliament may delegate power to make subsidiary legislation on any subject matter, provided the delegation occurs within a statutory framework and Parliament retains supervisory control. Section 2(2) of the Presidential Powers (Temporary Measures) Act relates to the content of subsidiary legislation that may be made, not the delegation of the plenary law-making process. When read contextually with section 2(1) (defining urgent situations) and section 4 (tabling procedure), the Act does not delegate Parliament's primary law-making power because Parliament retains its supervisory role through the requirement that regulations be laid before Parliament. The distinction between delegating authority to make subordinate legislation within a statutory framework and assigning plenary legislative power is critical - only the latter is prohibited by section 134(a).

The court observed that the abuse or misuse of a statutory provision does not affect its constitutionality - such abuse would constitute a separate and distinct cause of action. The court noted that the doctrine of separation of powers, while important to constitutionalism, was never intended to be absolute and the Constitution itself provides for overlapping functions between the arms of government, particularly in sections 134 and 116. The court commented that where a piece of legislation is capable of two interpretations, the court must uphold that which favors constitutionality. The court observed that a litigant cannot seek a declaration of what is plainly provided in law where no interpretation or application is required - the court should not merely regurgitate what the Constitution already provides. The proper forum for challenging non-compliance with tabling procedures would be litigation when a specific statutory instrument is not tabled as required by section 134(f). The court noted that it was not persuaded by the argument to interpret the Act by reference to the 1980 Constitution rather than the applicable 2013 Constitution, stating that courts resolve cases based on the law applicable when the cause of action arises.

This judgment is significant in Zimbabwean constitutional law for clarifying the boundaries between Parliament's primary law-making power and its ability to delegate subsidiary legislative power under section 134 of the Constitution. The case establishes that Parliament's primary law-making power refers to the plenary legislative process (debate, voting, bicameral passage, presidential assent) rather than merely the subject matter of legislation. The decision affirms that delegation of power to make subsidiary legislation on broad subject matters does not amount to unconstitutional delegation of primary law-making power, provided Parliament retains supervisory control through mechanisms like the tabling procedure. The judgment demonstrates the court's interpretive approach to constitutional provisions, emphasizing contextual interpretation and the distinction between process and content in assessing legislative delegation. It also confirms the continued relevance of pre-2013 constitutional jurisprudence where principles remain applicable despite differences in constitutional wording.