Imagine Zimbabwe's legal system as a set of rules and organizations designed to keep things fair and orderly. It is like a referee and a rulebook for society. If people disagree or break the rules (laws), this system helps resolve the problem in a just way. It is based on a mix of different influences (like historical legal traditions and Zimbabwean culture), but the Constitution is the ultimate source of the law. The system includes:
The Constitution of Zimbabwe is the bedrock upon which the entire legal system rests. It is the supreme law, meaning no other law can contradict its provisions. Think of it as the rulebook for the entire game of Zimbabwean society. It establishes the structure of the government, defines the powers of its different branches (the executive, the legislature, and the judiciary), and, most importantly, guarantees fundamental rights and freedoms to all citizens. These rights, enshrined in the Bill of Rights, include freedom of speech, freedom of assembly, freedom of religion, the right to a fair trial, and protection from discrimination. The Constitution also sets out the procedures for amending itself, which are intentionally stringent to ensure that changes are made with broad consensus and consideration, safeguarding the foundational principles of the nation. Any law or government action that violates the Constitution can be challenged in the courts and declared unconstitutional. This principle of constitutional supremacy ensures that the government operates within the boundaries defined by the Constitution and protects the rights of the people. It is important to note that recently Zimbabwe has amended the constitution several times to adapt with modern times.
Zimbabwe's court system is organized in a hierarchical structure, like a pyramid, with different levels of courts handling different types of cases. At the base are the Magistrates Courts, which are the first point of contact for most legal matters. These courts deal with a wide range of civil and criminal cases, including minor offenses, traffic violations, and small claims. Above the Magistrates Courts are the High Court, which has unlimited original jurisdiction, meaning it can hear any case that is not specifically assigned to another court. The High Court also hears appeals from the Magistrates Courts. The Labour Court is a specialized court that deals with labour disputes. The Administrative Court deals with administrative issues by the government. At the apex of the judicial system is the Supreme Court, which is the final court of appeal for all cases in Zimbabwe, except for constitutional matters. Finally, the Constitutional Court handles all cases regarding the constitution of Zimbabwe. The Supreme Court's decisions set precedents that must be followed by all lower courts. This hierarchical structure ensures that cases can be reviewed by higher courts if necessary, providing a mechanism for correcting errors and ensuring consistency in the application of the law. The court system also plays a vital role in interpreting laws and applying them to specific cases, clarifying legal principles and developing the common law.
Parliament, comprising the Senate and the National Assembly, is responsible for creating laws (called Acts of Parliament) that govern various aspects of life in Zimbabwe. This legislative process begins with a bill, which is a proposed law. The bill is debated and amended in Parliament, and if it is passed by both houses, it is sent to the President for assent. Once the President signs the bill into law, it becomes an Act of Parliament and has the force of law throughout the country. These Acts of Parliament cover a wide range of subjects, including criminal law, civil law, commercial law, and environmental law. They provide the specific rules and regulations that govern conduct and transactions within Zimbabwean society. Parliament also has the power to amend or repeal existing laws, ensuring that the legal framework can adapt to changing social and economic conditions. The principle of parliamentary sovereignty means that Parliament has the ultimate authority to make laws, subject only to the Constitution.
Zimbabwe's legal system is based on a mixed system, meaning it combines elements of both codified law (legislation) and common law. Common law is a body of unwritten laws that are derived from custom, tradition, and judicial precedents. It is primarily based on Roman-Dutch law, which was introduced to Zimbabwe during the colonial period. Common law principles are developed over time through the decisions of courts in specific cases. When a court makes a ruling on a particular issue, that ruling becomes a precedent that must be followed by other courts in similar cases. This system of precedent ensures consistency and predictability in the application of the law. Common law principles can supplement and clarify statutory law (legislation), providing guidance in situations where the law is unclear or incomplete. However, statutory law always takes precedence over common law, meaning that if there is a conflict between the two, the statutory law prevails.
The integrity and effectiveness of the legal system depend on the competence and impartiality of judges, magistrates, and other legal professionals. Judges preside over the High Court, Supreme Court, and Constitutional Court, while Magistrates preside over the Magistrates Courts. Judges and magistrates are responsible for hearing cases, interpreting the law, and making decisions based on the evidence presented. They must be independent and impartial, free from political influence or personal bias. Lawyers play a crucial role in the legal system by representing clients in court, providing legal advice, and advocating for their clients' rights. They are trained to understand the law and to present arguments effectively on behalf of their clients. Prosecutors are lawyers who represent the state in criminal cases, responsible for presenting evidence to prove the guilt of the accused. The legal profession is regulated by the Law Society of Zimbabwe, which sets standards of conduct and provides training and support to lawyers. Ensuring the independence and integrity of the judiciary and the legal profession is essential for maintaining the rule of law and ensuring access to justice for all citizens.
The Zimbabwe Republic Police (ZRP) is the primary law enforcement agency responsible for maintaining law and order throughout the country. The police are responsible for investigating crimes, arresting offenders, and bringing them before the courts. They also play a role in preventing crime, maintaining public safety, and enforcing traffic laws. The police operate under the authority of the Minister of Home Affairs and are accountable to the public. The police have a duty to act impartially and to respect the rights of all citizens. They must follow proper procedures when conducting investigations and making arrests, and they must not use excessive force or abuse their power. There are often complaints of police brutality and corruption in Zimbabwe so in recent years the government has introduced strict rules to reduce those statistics.
The "sources of law" are the origins from which legal rules are derived. They are the authorities that give a legal rule its binding force and validity. In other words, they tell us why a particular rule is considered "law" and where it comes from. Identifying sources of law is essential for legal professionals, scholars, and anyone seeking to understand the legal basis for rights and obligations.
Explanation: As we have already established, the Constitution is the supreme source of law in Zimbabwe. It is the foundational document that defines the structure of the government, protects fundamental rights and freedoms, and sets the limits on governmental power. All other laws must conform to the Constitution.
Implication: If any law conflicts with the Constitution, it is considered invalid and unenforceable. This principle of constitutional supremacy ensures that the government operates within the boundaries defined by the Constitution and protects the rights of the people. The Constitution is, therefore, the ultimate source of legitimacy for all other laws in Zimbabwe. Any challenges to a law's validity will ultimately be judged against the Constitution.
Explanation: Laws passed by the Parliament of Zimbabwe (the Senate and the National Assembly) are a primary source of law. These laws are called Acts of Parliament (or statutes). Parliament has the power to create, amend, and repeal laws, subject to the Constitution.
Implication: Acts of Parliament cover a wide range of subjects, including criminal law, civil law, commercial law, and environmental law. These laws provide the specific rules and regulations that govern conduct and transactions within Zimbabwean society. When a new Act is passed, it becomes part of the body of laws that citizens and the government must abide by. The power of Parliament to legislate is a fundamental aspect of the separation of powers within the Zimbabwean government.
Explanation: As mentioned before, Zimbabwe's legal system incorporates common law, primarily based on Roman-Dutch law. Common law is a body of unwritten laws that are derived from custom, tradition, and judicial precedents (previous court decisions).
Implication: The doctrine of stare decisis ("to stand by things decided") is central to common law. This means that courts are bound to follow precedents set by higher courts in similar cases. This system of precedent ensures consistency and predictability in the application of the law. Common law principles can fill gaps in statutory law, providing guidance in situations where the law is unclear or incomplete. However, statutory law generally takes precedence over common law when there is a conflict.
Explanation: Customary law refers to the traditional rules and practices of indigenous communities in Zimbabwe. It is generally unwritten and passed down orally through generations.
Implication: The Constitution recognizes customary law as a source of law, particularly in matters related to personal and family law, such as marriage, divorce, inheritance, and child custody, provided it is consistent with the Constitution and any other laws. The application of customary law is often subject to certain limitations and safeguards to ensure that it does not violate fundamental rights or discriminate against any individual. The Customary Law and Primary Courts Act [Chapter 7:05] provides for the application of customary law in certain civil cases.
Explanation: Decisions made by the superior courts in Zimbabwe (High Court, Supreme Court, and Constitutional Court) serve as binding precedents for lower courts.
Implication: This is the application of stare decisis that we talked about with common law. These precedents become part of the body of law and guide future decisions in similar cases. The more superior the court that makes the ruling, the greater the authority of that precedent. This system contributes to the consistency and predictability of the law. Judges and lawyers must carefully research previous court decisions to understand how the law has been interpreted and applied in the past.
Explanation: While not formally binding, legal textbooks, scholarly articles, and the writings of prominent legal experts can be persuasive sources of law.
Implication: Courts may refer to these materials to gain a better understanding of legal principles and to support their reasoning in a particular case. These texts can provide valuable insights into the historical development of the law, different interpretations of legal rules, and potential solutions to legal problems.
Explanation: International treaties and conventions that Zimbabwe has ratified become part of Zimbabwean law.
Implication: These treaties create obligations for Zimbabwe under international law, and Zimbabwean courts may consider them when interpreting domestic law. Certain international legal principles, such as customary international law, may also be recognized as part of Zimbabwean law.
The legislative process is the step-by-step procedure by which a bill becomes an Act of Parliament (a law). It is the journey a proposed law takes from an idea to an enforceable rule.
Explanation: The process typically begins with a need for a new law or an amendment to an existing one. This need can come from various sources: the government (the executive branch), individual Members of Parliament (MPs), or even public suggestions. The relevant government ministry usually drafts the initial bill.
Implication: This is where the idea for a law is born. The government identifies a problem that needs a legal solution, or an MP proposes a change to improve existing legislation.
Explanation: The bill is formally introduced in the National Assembly (one of the two houses of Parliament). The title of the bill is read out loud, and copies are distributed to the members of parliament (MPs). There is no debate at this stage.
Implication: This is essentially a formality to notify the National Assembly that a new bill has been proposed.
Explanation: This is a crucial stage where the general principles of the bill are debated by the MPs. The responsible minister (or the MP who introduced the bill) explains the bill's purpose, objectives, and intended impact. MPs then can express their views, raise concerns, and propose amendments.
Implication: This is when the core ideas of the bill are scrutinized and debated. MPs assess whether the bill is necessary, well-drafted, and likely to achieve its intended goals. If the National Assembly approves the bill in principle, it moves to the next stage.
Explanation: The bill is referred to a relevant Parliamentary committee for a more detailed examination. The committee members, who have expertise in the subject matter of the bill, review each clause (section) of the bill carefully. They can propose amendments to improve the bill's clarity, effectiveness, or constitutionality.
Implication: This is where the bill is refined and improved. The committee stage allows for a more focused and technical review of the bill's provisions, addressing any potential problems or unintended consequences.
Explanation: The bill, as amended by the committee (if any), is presented to the National Assembly for a final debate. The MPs vote on whether to pass the bill in its amended form.
Implication: This is the final opportunity for the National Assembly to consider the bill. If the bill passes the third reading in the National Assembly, it proceeds to the Senate.
Explanation: The bill goes through a similar process in the Senate: First Reading, Second Reading (debate on principles), Committee Stage (detailed examination), and Third Reading (final vote). The Senate can approve the bill as is, amend it, or reject it.
Implication: The Senate provides a second chamber for reviewing legislation, ensuring that it is carefully considered and reflects the interests of different regions and groups within Zimbabwe.
Explanation: If the Senate amends the bill, it must be returned to the National Assembly for approval of the amendments. If the National Assembly does not agree with the Senate's amendments, a process of negotiation and compromise is initiated to resolve the differences. This may involve a joint committee of members from both houses.
Implication: This step ensures that both houses of Parliament agree on the final version of the bill before it becomes law.
Explanation: Once the bill has been passed by both the National Assembly and the Senate in the same form, it is sent to the President of Zimbabwe for assent (approval). The President has the power to sign the bill into law, which officially makes it an Act of Parliament.
Implication: The President's assent is the final step in the legislative process. Once the President signs the bill, it becomes legally binding and enforceable throughout Zimbabwe.
Explanation: The Act of Parliament is then published in the Government Gazette (an official publication), which makes it accessible to the public. The Act typically specifies when it will come into effect (commence).
Implication: This ensures that the public is aware of the new law and its provisions. The law comes into force on the date specified in the Act or, if no date is specified, on the date of publication in the Gazette.
Here is a simple representation of the court hierarchy, from highest to lowest:
| Constitutional Court |
| ^ |
| | |
| Supreme Court |
| ^ |
| | |
| High Court |
| ^ |
| | |
| Administrative Court ------------------- Labour Court |
| ^ |
| | |
| Magistrates Courts |
Think of the law as a big toolbox. Inside, you will find different types of tools (laws) for different jobs (situations). Some tools are used to deal with crimes, others with agreements between people, and still others with how the government operates. These different types of law are called "classes" of law.
Explanation: This is one of the broadest classifications. Public law concerns the relationship between the government and its citizens. It deals with matters that affect society. Private law, on the other hand, concerns the relationships between private individuals and organizations. It focuses on matters that primarily affect individuals or specific groups.
Implication: Public law includes areas like constitutional law (how the government is structured and operates), criminal law (prohibiting and punishing offenses against society), and administrative law (governing the actions of government agencies). Private law includes areas like contract law (agreements between parties), property law (ownership and rights to property), and tort law (civil wrongs that cause harm to others).
Explanation: This is a very important distinction. Criminal law deals with offenses against the state or society. The government prosecutes individuals accused of committing crimes. The aim is to punish offenders and deter others from committing similar acts. Civil law deals with disputes between private individuals or organizations. The purpose is to resolve disputes and compensate the injured party for any losses or damages suffered.
Implication: In criminal cases, the burden of proof is "beyond a reasonable doubt," meaning the prosecution must prove the defendant's guilt to a very high degree of certainty. If found guilty, the defendant may face imprisonment, fines, or other penalties. In civil cases, the burden of proof is typically "on the balance of probabilities" (or "preponderance of the evidence"), meaning the plaintiff (the person bringing the lawsuit) must prove that their version of events is more likely than not. If the plaintiff wins, they may be awarded damages (money) to compensate for their losses.
Explanation: We've discussed this before, but it is important to reiterate in this context. Statute law (also known as legislation or Acts of Parliament) consists of laws that are enacted by a legislative body (like the Parliament of Zimbabwe). Common law is based on customs, traditions, and judicial precedents (previous court decisions).
Implication: Statute law is generally written and codified, providing specific rules and regulations. Common law is more flexible and evolves over time through court decisions. As we have discussed, statutory law generally takes precedence over common law when there is a conflict.
Explanation: Substantive law defines rights and obligations. It sets out the rules that govern what people can and cannot do. Procedural law establishes the procedures and rules that must be followed in enforcing those rights and obligations. It governs how legal cases are initiated, conducted, and resolved.
Implication: For example, criminal law defines what constitutes theft (substantive law), while the rules of evidence and the process for conducting a criminal trial are governed by procedural law. Civil procedure governs how lawsuits are filed, how evidence is presented, and how judgments are enforced.
Explanation: International law governs the relationships between states (countries) and international organizations. It consists of treaties, customs, and general principles of law recognized by the international community. Domestic law is the law of a particular country (in this case, Zimbabwe).
Implication: International law can influence domestic law, particularly when Zimbabwe has ratified international treaties. In some cases, international legal principles may be directly incorporated into Zimbabwean law. However, domestic law generally takes precedence over international law within Zimbabwe's borders.
Explanation: Customary Law is specific to indigenous cultures or communities and is derived from traditional practice. General Law applies to everyone in a country or region.
Implication: The importance of this difference is that for a particular type of case, customary law will apply to people in that specific culture, e.g., a divorce based on customary law would be different to a civil court divorce.
These terms refer to how laws cease to be in effect.
Imagine a law is like a rule in a game. "Repealing" a law is like saying, "Okay, that rule is gone, we're not using it anymore." "Abrogating" a law is like saying, "That rule has been ignored for so long, it's basically as if it doesn't exist anymore."
Definition: A repeal is the express act of revoking or annulling a law by the legislative body (Parliament). This means Parliament specifically passes a new law that states that the old law is no longer in force.
How it Happens: Parliament passes a new Act that explicitly states that a previous Act (or specific sections of it) is repealed.
Example: Suppose Parliament passes a new Act called the "Traffic Amendment Act." This Act might include a section that says, "Section 25 of the Road Traffic Act [Chapter 13:17] is hereby repealed." This means that Section 25 of the Road Traffic Act is no longer law.
Implication: Repeal is a clear and definitive way to remove a law from the statute books. It provides certainty and avoids ambiguity about whether the law is still in effect.
Definition: Abrogation is the implied termination of a law due to long-standing disuse or contrary custom. This means that a law, although still technically on the books, has been consistently ignored or violated for a long period of time, to the point where it is no longer considered to be in force.
How it Happens: Abrogation is not a formal process. It occurs gradually over time as a law is consistently disregarded by the public, law enforcement, and the courts.
Requirements: For abrogation to occur, several conditions must generally be met:
Example: It is difficult to give a precise Zimbabwean example because abrogation is often a matter of legal debate. However, imagine a very old law requiring all farmers to use a specific type of plough that is no longer manufactured or practical. If no one has used that type of plough for decades, and everyone uses modern equipment, a court might eventually rule that the law has been abrogated by disuse and contrary custom.
Implication: Abrogation is a less certain and more controversial way for a law to cease to be in effect. It requires strong evidence of long-standing disuse and contrary custom, and it is ultimately up to the courts to decide whether a law has been abrogated.
| Feature | Repeal | Abrogation |
|---|---|---|
| Method | Express act by Parliament | Implied termination due to disuse and custom |
| Certainty | Clear and definitive | Less certain and subject to judicial interpretation |
| Process | Formal legislative process | Informal, gradual process |
| Evidence | New Act of Parliament | Evidence of long-standing disuse and contrary custom |
We have touched on this before, but let us reinforce it with more details.
Definition: Criminal law defines offenses against the state or society. It prohibits certain conduct and prescribes penalties for those who violate these prohibitions.
Parties Involved:
Purpose: To punish offenders, deter others from committing similar crimes, protect society, and rehabilitate offenders.
Examples of Crimes: Theft, assault, murder, fraud, drug trafficking.
Burden of Proof: "Beyond a reasonable doubt." The prosecution must prove the accused's guilt to a very high degree of certainty. If there is any reasonable doubt in the minds of the jurors (or the judge in a trial without a jury), the accused must be acquitted.
Penalties: Imprisonment, fines, community service, probation, the death penalty (in some cases).
Definition: Civil law deals with disputes between private individuals or organizations. It concerns the rights and obligations of individuals in their relationships with each other.
Parties Involved:
Purpose: To resolve disputes, compensate the injured party for losses or damages, and restore the injured party to their original position (as far as possible).
Examples of Civil Cases: Breach of contract, negligence (causing injury due to carelessness), defamation (damaging someone's reputation), property disputes.
Burden of Proof: "On the balance of probabilities" (or "preponderance of the evidence"). The plaintiff must prove that their version of events is more likely than not.
Remedies (What the Plaintiff Can Get if They Win):
| Feature | Criminal Law | Civil Law |
|---|---|---|
| Nature of the Case | Offense against society | Dispute between private parties |
| Parties Involved | State vs. Accused | Plaintiff vs. Defendant |
| Purpose | Punishment, deterrence, protection | Compensation, resolution of disputes |
| Burden of Proof | Beyond a reasonable doubt | On the balance of probabilities |
| Penalties/Remedies | Imprisonment, fines, etc. | Damages, specific performance, injunctions |