Statutes of limitations: ‘Separate and unequal’

While the High Court has made progress in determining the constitutionality or otherwise of the limitation statutes referred to above, it remains to be seen if the apex court in constitutional issues, the Constitutional Court, will declare the provisions

THE Constitution upholds equality before the law and equal protection of the law. “Separate and unequal” provisions in statutes of limitation have to be urgently aligned with the Constitution. The High Court has had occasion to make judicial determination on statutes of limitation such as the Police Act and the State Liabilities Act.

The best way to understand statutes of limitation is to simply cast a scoping glance at some of the decided cases in this regard. It is through this way that some analytical points might be made towards a fuller appreciation of the need to urgently align these laws with the Constitution.

Why Statutes of Limitation? The strongest reason for this is constitutionally intoned.

Aligning them is important in that it (i) compels the State to respect the duties expected of it by the Constitution in Section 44.

This duty extends to institutions of the State which are expected to respect fundamental rights; (ii) right holders feel that State functionaries are responsible in their actions and a culture of impunity in rights violations is ended.

This will also enable independent institutions to effectively check on vertical accountability and ultimately good governance aspects; (iii) Zimbabwean courts are empowered to interpret the Constitution using the content from the aligned laws. Section 46 enjoins the courts to give full effect to the rights under Chapter 4 (the fundamental rights chapter).

Laws that are aligned with the Constitution will enable the performance matrix of the judiciary to be measured in this regard and (iv), it shows that State institutions are respecting the founding values that constitute the normative framework of democracy envisaged under Zimbabwe’s constitutional democracy.

While the High Court has made progress in determining the constitutionality or otherwise of the limitation statutes referred to above, it remains to be seen if the apex court in constitutional issues, the Constitutional Court, will declare the provisions of these statutes to be unconstitutional.

For instance, when suing members of the Zimbabwe Republic Police for any constitutional breaches such as unlawful arrest or some other breach, one has to follow the procedures that are stipulated in other statutes such as the State Liabilities Act and the Police Act.

This basically means that if one is to succeed in the lawsuit against the ZRP as a State institution, then they have to give notice of the intention to sue within eight months as stipulated in the Police Act.

They are also supposed to comply with the 60 days’ notice period, indicating the intention to sue the Police as a State institution described under the State Liabilities Act.

This notice must be made in writing.

The 60 days are not ready outside the eight months stated in the Police Act.

This further works to the detriment of the rights of citizens who are usually incapacitated financially. This greatly bears on the promotion of vertical accountability by State institution.

The litigant may not get his or her remedies because courts will decline to exercise their powers of judicial review for want of compliance with the law. This is the reason why claims against the State will sometimes be called “empty noise”, from the brutum fulmen concept.

Add the rigmarole of civil procedures in this equation. The litigant who sues the police has eight months.

He may be unsophisticated or may not be able to sue the police due to failure to raise legal fees. Yet his or her fundamental rights would have been violated.

All told, the Constitution is clear that members of the Police Service are not supposed to violate the individual’s fundamental rights.

The case of Nyika and Anor v Minister of Home Affairs may be used to illustrate the importance of aligning the Police Act as a statute of limitation.

It has been said that justice must not only be done, but must be seen to be done. In the Nyika cases, a finding was made that the police had opened fire against the two and injured them.

The other litigant had a bullet lodged in his body.

The police’s justification was that they had thought that they were robbers.

The applicants gave the police notice after 11 months because they had been injured and the delays were occasioned by the fact that they had been hospitalised. The relevant section, Section 70, was declared unconstitutional using the non-discrimination provisions in Section 56 of the Constitution. Most importantly, there is a general statute known as the Prescription Act.

This Act prescribes a three-year time limit upon which one may sue debtors.

The police are, however, given special treatment by the Police Act. This treatment is at variance with Section 56 which speaks to the need for equality before the law.

The argument being made here is that citizens must be allowed to institute legal proceedings against the police within the general three-year period.

This will go a long way in promoting access to justice for citizens.

The other statute is the State Liabilities Act. Effective justice includes the possibility that the wronged party is able to enforce a positive judgment from the courts of law.

The State or its functionaries must also comply with such judgment.

For civil judgments, a successful party may execute the property of the defendant or respondent depending on whether the matter commences by way of action or application. The State Liabilities Act limits the possibility of attaching the assets of the State.

Although the State is not defined in the definitions section of the Constitution, Section 332, there are various instances where reference to the State may mean the three tiers of the State - Executive, Legislature and the Judiciary.

In the case of Mangwiro v Minister of Home Affairs and Others, the applicant was arrested and about $1, 578 million was confiscated by the police. After the trial, the applicant was acquitted.

He then made an application in 2013 to have his property back but the money was not released.

To enable him to enforce his judgment, the applicant challenged the provisions of the State Liabilities Act preventing him from attaching the property of the State.

The court declared the provisions of the State Liabilities Act unconstitutional.

However, the rigmarole of civil procedures again makes remedies against the State or its functionaries more of a high sounding nothing. The procedure that has to be followed before suing State institutions is laborious, tedious and complicated.

The apex court has not yet dealt with the Nyika judgment which was referred to it by the High Court for confirmation.

Secondly, the court avoided dealing with the issue of confirmation in the Mangwiro judgment due to the existence of technical arguments relating to such confirmation. Read the full article on www. herald.co.zw