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Administrative justice and the Constitution

Administrative justice and the Constitution
David Coltart

David Coltart

Sharon Hofisi Legal Letters
The right to administrative justice (RTAJ) is part of the constitutional rights in Zimbabwe. Its inclusion in Section 68 of the Constitution, under the Bill of Rights section, means this right is now justiciable.The importance of the concept of justiciability of fundamental rights is this — competent courts of law are clothed with the power to review and determine administrative matters that are brought before them. They will not refer the matter to other pillars of Government — Parliament or the Executive.

The Zimbabwean society is one of the juridical systems, South Africa included, which now have a progressive charter that protects the right to administrative justice.

There is no doubt that teaching students, or explaining the right to the public, furthers the spirit of the Constitution.

The general populace becomes aware of its right and can ensure that the four duties of the State are observed: duty to protect, promote, respect and fulfil the obligations that relate to administrative justice.

The views expressed herein may ultimately influence policy formulators and implementers. This is because academia also helps influence State policies.

Other pillars of Government such as Parliament may also take a leaf from other jurisdictions on the relationship between administrative laws and the Constitution.

Justice Mavedzenge

Justice Mavedzenge

For instance, South Africa has constitutional statutes other than the constitution. These statutes are framed in a way that is not at variance with constitutional provisions.

The Promotion of Administrative Justice Act (PAJA) is one such Act that is understood in this regard. Zimbabwe is currently aligning various laws with the Constitution. As such, our Administrative Justice Act (AJA) must be prioritised in terms of aligning it with the Constitution.

This is because it has important principles which can now be developed in terms of the constitutional principles that bear on judicial reasoning such as foreign law, international law, the preamble, founding values and national objectives.

Some of these principles include the right to be heard, protected under the audi alteram partem rule, which basically enjoins public administrators or presiding officers in any tribunal, forum, or court to give the other side an opportunity to be heard before an adverse decision is taken against them.

I once traced this right to biblical times in one of my articles. The other principle is the ultra vires doctrine, which operates as a mirror image of the principle of legality.

It essentially obliges presiding officers or public administrators to act in terms of the powers that are allocated to them by the enabling or subordinate statute.

Equally important is the principle against bias, which is protected under the nemo judex principle. Decision-makers must not be influenced by institutional, attitudinal, pecuniary, or some other forms of bias.

All these principles must be observed before adverse decisions that affect someone’s RTAJ are taken. The RTAJ upholds the important founding principle of good governance in Zimbabwe. Good governance has four important facets: accountability, responsiveness, transparency and justice.

The facets are important in administrative aspects such as liquor licensing, tender procedures, withdrawal of someone’s candidature (Mabutho v WUA case); unilateral disconnection of water supply (Farai Mushoriwa case) or discretionally-oriented decision (certificate of no prosecution).

The failure to observe the RTAJ has led those who were adversely affected in some of the aspects above to approach the High Court to seek legal redress.

In showing the importance of the RTAJ to the State and institutions of the State, the wise words of Justice Chinhengo, which bear on good governance, cannot escape being given due regard.

In a foreword to the Constitutional Guide book by Mavedzenge and Coltart in 2014, Justice Chinhengo observed that: “successful transformation of governance in line with the spirit, object and purport of the new Constitution depends on the political will to implement the new Constitution as well as the readiness by citizens to engage with their new Constitution.

“Such engagement can only be possible if there is sufficient research and analysis, which interrogates the various constitutional principles enshrined in the Constitution.”

His remarks allow the general Zimbabwean public not to decide in favour of being quiescent on issues affecting public administration. “They make Zimbabwe a book to the student; policy maker, policy influencer and implementer. This book everyone can decide to knowingly write about and critically comment on.

Because the constitutional gains are usually explained in lectures, this article cannot at this juncture make a conclusion on constitutional gains in relation to RTAJ to be effaced in a welter of detail.

The most important conclusion drawn from the Constitution is that the RTAJ prevents the injudicious exercise of administrative discretion; ensures that violations of administrative and constitutional rights and principles are discouraged; deters those vested with administrative powers from acting arbitrarily and unconstitutionally; deters others from committing similar administrative errors; brings a sense of justice to those affected by adverse decisions that are arbitrarily taken against them; upholds the universal tenets of constitutional democracy and constitutionalism which Zimbabwe adheres to; and effectively affirms the supremacy of the Constitution.

Sharon Hofisi is a lawyer and writes in his own capacity. Feedback  This email address is being protected from spambots. You need JavaScript enabled to view it.

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