organs against acts violating their fundamental rights… guaranteed under Article 7.1.a of the African
Charter have been violated. The Respondent State on its part argues that their right to be heard has
not been violated, noting that Complainants have disregarded the law.
161. The Respondent State operates a legal system where the Constitution reigns supreme. Article 3
of the Constitution of Zimbabwe provides that “this Constitution is the supreme law of Zimbabwe and if
any other law is inconsistent with this Constitution that other law shall, to the extent of the
inconsistency, be void”. This means any law that violates the Constitution, or any conduct that conflicts
with it, can be challenged and struck down by the courts.
162. The fundamental rights of Zimbabweans are enshrined in Chapter 3 of the Constitution of
Zimbabwe entitled theDeclaration of Rights (Bill of Rights). All legislation passed by Parliament must
conform to the Bill of Rights provisions of the Constitution. If a legislative provision is inconsistent with
the Bill of Rights, the courts, in particular, the Supreme Court, have been given the power to declare it
to be void and of no force and effect.
163. This functions to determine constitutionality or compatibility or otherwise of laws with the
Constitution rests with the Supreme Court of the Respondent State. Thus, when there are doubts
about the constitutionality of a new legislation, persons affected are entitled to obtain a ruling from the
Supreme Court as to whether or not the legislation is constitutional.
164. The Supreme Court has also been given extensive powers to provide appropriate remedies to
persons whose fundamental rights have been violated. In terms of Section 24 (1) of the Constitution, if
any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in
relation to him (or, in the case of a person who is detained, if any other person alleges such a
contravention in relation to the detained person), then, without prejudice to any other action with
respect to the same matter which is lawfully available, that person (or that other person) may, subject
to the provisions of subsection (3), apply to the Supreme Court for redress.
165. In view of the importance attached to fundamental rights, Article 24 (4) provides that the
Supreme Court shall have original jurisdiction to hear and determine any application made by any
person pursuant to subsection (1) or to determine without a hearing any such application which, in its
opinion, is merely frivolous or vexatious; and… may make such orders, issue such writs and give such
directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of
the Declaration of Rights.
166. In terms of the Constitution, there are at least two instances in which the Supreme Court can
decline to entertain an application to determine the constitutionality of a law. The first is when in its
view, the application is vexatious or frivolous; and the second is when the Supreme Court is satisfied
that adequate means of redress for the contravention alleged are or have been available to the person
concerned under other provisions of the Constitution or under any other law. In the present
communication, neither of the two grounds could apply. The Court did not find the application
vexatious or frivolous and there was no other adequate means of redress of the issue as the Supreme
Court in the Respondent State has original and final jurisdiction with respect to matters dealing with
fundamental rights.
167. Article 24 of the Constitution does not provide any time bar or an indication on when one should
approach the Supreme Court to seek redress for any alleged violation of their rights. The Constitution
simply provides that anyone who believes his rights have been, are being or are likely to be violated
can approach the Court. This means that a law can be challenged at any time, depending on the
circumstances, and on how the alleged victim perceives the law as interfering with the enjoyment of
their rights, that is, whether the law has already violated the person’s rights, whether the law is
violating the person’s rights or whether the law is likely to violate the person’s rights.
168. In the case under consideration, the Complainants argue that the law enacted by Parliament
is likely to violate their rights guaranteed under the Constitution of the Respondent State and under
international human rights instruments. For this reason, they approached the Supreme Court to
declare those sections of the law they believed would likely violate their rights, unconstitutional. In the
Supreme Court, the Respondent State raised the point in limine that the Applicant (Complainants
before the Commission), ought not to be heard on the merits as it had not sought registration. The
Supreme Court upheld the Respondent State’s contention, and in its ruling advised the Applicant to