Concourt and the avoidance doctrine

Those who study the impact of the Majome case can testify to the fact that the licensing atmosphere is still not conducive for the ordinary citizen. The court had the opportunity to make a final decision in this regard.

MY LAST article discussed, with respect, how the Concourt (the court) wrongly treated the subsidiarity and avoidance doctrines as two separate pillars in the case of Zinyemba v Minister of Lands.

For starters, the reasons for the judgment provide useful insights into how a court decision would have been arrived at.

The judgment is a basic endgame in litigation. The term endgame is simply used to mean the concluding stages of a judgment.

In this article, we are considering not merely the judgments as such, but technicalities that are raised by other litigants. These technicalities are some of the forces that litigants impose on their adversaries.

The court may use these tactics to enforce the will of other State institutions. Sometimes technical arguments are enforced in the form of rules of law, presumptions such as constitutionality, statutory aids, methods of statutory or constitutional interpretation, or general judicial restraint methods such as deference of a hearing until some direction has been followed.

The court becomes the master tactician because it refines the technical or preliminary points that would have been raised. It then uses them to frustrate or encourage litigants. Just like any tactic, the results can be burdensome: hit them fast and hard — some blitzkrieg!

The followers of this column can note that the last article showed that avoidance doctrines are usually invoked as ways of avoiding the merits of constitutional cases: before, in the middle of or after the hearing of the merits of a constitutional matter. The doctrines largely exist to promote judicial restraint and nothing else.

Their heavy criticism is that they violate the essential features of the Constitution such as human rights and constitutionalism. Judges prefer simplicity or minimalism in invoking them, but this simplicity is different from simplifying complex constitutional matters. The problem endures!

The net effect is that judges use their passive virtues to deprive rights holders of an opportunity to seek redress for constitutional breaches.

Put differently, they find easy ways of avoiding complex issues such as being seen to uphold four constitutional duties such as the duty to protect, promote, respect and uphold fundamental rights.

For instance, the duties referred to above are clearly enshrined in Section 44 of the Constitution of Zimbabwe, 2013. Technical arguments are used to avoid a case as was in the Majome decision. In that case, the court refused to grant the applicant an effective protective remedy because she had not challenged an ordinary law before seeking protection in the Constitution.

The judgment was surprising because the Constitution is the supreme law which provides effective protection for litigants who allege constitutional breaches of their fundamental rights. Section 85 of the Constitution clearly provides for remedies such as compensation or declaration of rights.

No wonder it has been shown, from both the perspectives of general and strategic litigation, that the avoidance doctrines does not bring finality to complex constitutional cases. They unnecessarily lead to protracted and costly litigation.

Those who study the impact of the Majome case can testify to the fact that the licensing atmosphere is still not conducive for the ordinary citizen. The court had the opportunity to make a final decision in this regard.

She was demonstrating that the stakes against her and her political party were high — often her political freedoms — and prospects of a remedy depended on the court as the apex court on constitutional issues.

To pay for the license or risk being prosecuted for a criminal offence, to challenge a seemingly unconstitutional law and only then — would she approach the extraordinary court shows that the alternatives are at the very least — unconstitutional.

How much effective would subsidiarity as an alternative remedy take away from the Constitution as an extraordinary statute? How likely will the compliance in “paying for the licence and arguing against it later” succeed at the court in the near or distant future? In such situations, can it be said that the applicant’s failure to pay for the licence was irrational? Did she not do what most of us would do if faced with a dilemma — take the path of least resistance, which under the circumstances means running for protection to the apex court?

Then the court, which serves as the custodian of the supreme law, does not tell the applicant what will happen after she would have “gone back” to challenge a subsidiary law.

Once a judgment has been passed, the applicant cannot ask the court what would become of the challenge.

Then there are problems that relate to how the general populace (the consumer population) would respond to an adverse decision. It is imposed automatically.

The Zimbabwe Broadcasting Corporation (ZBC) as the licensing authority would simply point to the lack of finality in the Majome case to demand radio licences.

There is usually little or no choice but to accept the explanation on the part of ZBC. Those who have a choice can pay and challenge the decision in light of the Majome decision. Some would normally pay for convenience purposes. They feel that they do not have the time to go to court.

Some possibly think the court’s decision was final: there is no alternative way. Whichever way you look at it, the avoidance doctrine shows how a court can create undesirable judicial “policies”. Those with this perspective argue that the court deliberately uses the doctrines to get legitimacy from the other pillars of the State.

Once a matter is dismissed on technical grounds, the applicant may lose the will power to follow what he or she feels is an undesirable legal route. For instance, there is no point in going back to a lower court to challenge a law when there is a strong feeling that the Constitution clearly allows the applicant to approach the Concourt.

The failure to follow the directions in an adverse decision can benefit the legislature as a pillar of the State.

Its law remains unchallenged. It is miraculously saved from reforming such a law. Predictably, its oversight role on legislative developments will be limited to those decisions where litigants decide to challenge the constitutionality of certain laws.

In that way, the judge’s finding becomes some form of judicial policy on legislative roles. Read institutionally, litigants who fail to follow an adverse decision cannot return to the same court to enable it to ventilate the matter on its merits.

The court becomes some extraordinary court with powers to control the behaviour of litigants.

But how much subsidiarity wrong could defeat the standing provision in the Constitution? Further, it is not clear whether the court uses the doctrine of subsidiarity either as a rule of law or of construction?

Such a clear distinction usually fosters a culture of judicial accountability and is an effective check on the dangers of judicial restraint. It also fosters a culture of constitutionalism that a judge cannot violate the Constitution in the process of avoiding the Constitution.

For instance, a judge who treats the avoidance doctrine as a rule of judicial construction must always demonstrate in his judgment why such a rule can be used to undermine the provisions of a Constitution.

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