THE INFLUENCE OF THE CONSTITUTION ON STATUTORY INTERPRETATION.pptx

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1. THE INFLUENCE OF THE CONSTITUTION ON STATUTORY INTERPRETATION IN ZIMBABWE

2. What bearing does the Constitution have on the interpretation of statutes?

3. South African Constitution of 1996 T he key provisions in the Constitution relating to interpretation of statutes are modelled almost word for word on corresponding provisions of the South African Constitution of 1996. Over the last 20 years the SA courts, particularly the Constitutional Court has developed an impressive jurisprudence around the role of the Constitution in the interpretation of statutes. Given the similarities between the SA and the Zimbabwe Constitutions and the fact that it is yet too early for the Zimbabwean Constitutional Court to have heard enough cases to develop its own jurisprudence, we will be guided in this part of the study by South African cases.

4. Constitutional Supremacy Section 2 of the Constitution reads:   (1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. (2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them . Not new: sec. 3 of the Lancaster House Constitution  

5. POWERS OF THE COURT IN CONSTITUTIONAL MATTERS – SECTION 175 (1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court. (2) A court which makes an order of constitutional invalidity referred to in subsection (1 ) may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings , pending a decision of the Constitutional Court on the validity of the law or conduct concerned . (3 ) ………………

6. Cont’d (4) …………….. (5) …………………………... (6) When deciding a constitutional matter within its jurisdiction a court may— (a) declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency; (b) make any order that is just and equitable, and an order suspending conditionally or unconditionally the declaration o including an order limiting the retrospective effect of the declaration of invalidity f invalidity for any period to allow the competent authority to correct the defect.

7. 1. READING DOWN 2. READING IN 3. SEVERANCE

8. Reading Down restricted constitutional interpretation that will be preferred instead of declaring the statute invalid. This remedy stems from the principle that: The courts should try to keep legislation constitutional and in line with common law presumption that the legislation is not futile or meaning less. Therefore if legislation is, on the face of it, unconstitutional, but is reasonably capable of a more restricted interpretation which will be constitutional and valid, such restricted interpretation should be followed.

9. Hambly V Chief Immigration Officer 1995 (2)ZLR 264 & Ngaru V Chief Immigtation Officer SC 26 / 04 , Section 22 of the Immigration Act provides that no information or reasons on which a decision by the Minister to declare any person a prohibited person or a decision to withdraw or cancel a permit was made may be disclosed in any court if the Minister certifies that its disclosure is not in the public interest, and no court may question the adequacy of the grounds for any such decision .   At face value, this provision excludes the right of an immigrant to seek a judicial review of the reason upon which a decision to expel him has been made, in violation of section 18 of the Lancaster House Constitution and section 68 of the current Constitution

10. Ruling The Minister is within his powers to decide the reasons for his decision should not be for public consumption but is nevertheless obliged to disclose these reasons in court, in camera as provided for in section 18(12) of the Constitution. The modified outcome in keeping with the Constitution was possible because the Court restricted ( read down) the powers of the Minister conferred by Parliament.

11. Reading In This is a more drastic remedy used by the courts to change legislation in order to keep it constitutional in exceptional circumstances the court will "read" something into a provision in order to rescue a provision, or a part of it. It should be applied with caution, since the court then changes the legislation . The legislative function is entrusted to bodies and persons authorised to enact legislation.

12. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs Results of reading in must be consistent with the constitution & its values Result must have only minimal interference with existing legislation The courts must be precise in defining scope of modification to the meaning of legislation in order to make it compliant The courts must endeavour to remain within legislative scheme (aim purpose) as much as the constitution allows Reading in remedy should not be employed where the result would impose unattainable/unsupportable budgetary burden.

13. Severance This is the opposite of "reading in". The court will try to rescue a provision from the fate of unconstitutionally by cutting out the offending part of the provision to keep the remainder constitutional and valid .   The doctrine of severability   rests on a presumed intention of the legislature that if a part of a statute turns out to be void, that should not affect the validity of the rest of it, and that that intention is to be ascertained from the terms of the statute.  When a statute is in part void, it will be enforced as regards the rest, if that is severable

14. Mudzuru and Tsopodzi v Minister of Justice, Legal and Parliamentary Affairs and Anor Child Marriages Case: Court struck out section 22 of the Marriages Act which allowed the marriage of girls below the age of 18 The rest of the Marriage Act remained intact A marriage with a Child is null and void with effect from 20 January 2016 – limited the retrospective application of the prohibition in line with sect 175(6)(b) of the Constitution

15. MUTUMWA DZIVA MAWERE v REGISTRAR GENERAL and Ors CCZ 4 /15 The Provisions of section 9 the Citizenship Act Prohibiting dual citizenship were severed for being in contradiction of section 36 of the Constitution.

16. OTHER PROVISIONS OF THE CONSTITUTION Section 44 Which could be termed the obligation clause, which states The State and every person, including juristic persons, and every institution and agency of the government at every level must respect, protect, promote and fulfil the rights and freedoms set out in this Chapter .   Section 45(1) states that the D/R applies to all law and binds the legislative , the executive, the judiciary and all organs of state.   S 45(2) provides that the D/R applies to both natural and juristic persons.   Section 324 states that all constitutional obligations must be performed diligently and without delay.  

17. Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 The Constitution has changed the context of all legal thought and decision-making in South Africa.

18. THE INTERPRETATION PROVISIONS

19. The Declaration of Rights Sec. 46 S 46(2) of the Constitution provides: When interpreting an enactment, and when developing the common law and customary law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this Chapter .   S 46(2) is a peremptory provision which means that all courts, tribunals or forums must review the aim and purpose of legislation in the light of the Bill of Rights ; That is to say, plain meanings and so-called clear, unambiguous texts are no longer sufficient. Even before a specific legislative text is read, S 46(2) f o r c e s the interpreter to have one foot in the Bill of Rights of the Constitution to promote the values and objects in the D/R . Interpretation of statutes starts with the Constitution, and not with the legislative text.

20. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 The Constitution is now the supreme law in our country. It is therefore the starting point in interpreting any legislation. Indeed, every court “must promote the spirit, purport and objects of the Bill of Rights” when interpreting any legislation. That is the command of section 39(2). Implicit in this command are two propositions: first , the interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and second , the statute must be reasonably capable of such interpretation. This flows from the fact that the Bill of Rights “is a cornerstone of [our constitutional] democracy.” It “affirms the democratic values of human dignity, equality and freedom.” In interpreting section 2(j), therefore, we must promote the values of our constitutional democracy.

21. I nvestigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd v Smit . 2001 (1) SA 545 “ When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights .”   This means that all statutes must be interpreted through the prism of the Bill of Rights. All law-making authority must be exercised in accordance with the Constitution. ……….The purport and objects of the Constitution find expression in section 1 which lays out the fundamental values which the Constitution is designed to achieve. The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution. …………….. Accordingly, judicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section. Limits must, however, be placed on the application of this principle. On the one hand, it is the duty of a judicial officer to interpret legislation in conformity with the Constitution so far as this is reasonably possible. On the other hand, the legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them. A balance will often have to be struck as to how this tension is to be resolved when considering the constitutionality of legislation. There will be occasions when a judicial officer will find that the legislation, though open to a meaning which would be unconstitutional, is reasonably capable of being read “in conformity with the Constitution”. Such an interpretation should not, however, be unduly strained.

22. International law Customary International Law and International Agreements ( Treaty Law) S 326(2) of the Constitution is another interpretation clause: When interpreting legislation, every court and tribunal must adopt any reasonable interpretation of the legislation that is consistent with customary international law applicable in Zimbabwe, in preference to an alternative interpretation inconsistent with that law . 327(6) When interpreting legislation, every court and tribunal must adopt any reasonable interpretation of the legislation that is consistent with any international convention, treaty or agreement which is binding on Zimbabwe, in preference to an alternative interpretation inconsistent with that convention, treaty or agreement.

23. Influence of international law Simon Francis Mann v The government of equatorial Guinea HH 1 / 2008 Mildred Mapingure

24. Role of Values The first thing to note is that the Constitution is a value-laden document. It is underpinned by a number of express and implied values and norms: these fundamental principles are not only ideals to which Zimbabwean society has committed itself, but they form the material guidelines which must regulate all state activities. The spirit of the D/R is the reflection of these fundamental principles.   Apart from the Constitution itself, these values are found in various sources etc. - principles of international human rights law and foreign case law dealing with similar constitutions; - the African concept of Ubuntu / hunhu and our common law heritage. S 46(1)(b) and 86(2)refer to an open and democratic society based on freedom , equality, and human dignity . These are the core values on which the Constitution rests. The courts are the guardians and therefore enforcers of the values underlying the Constitution. This means that courts will have to make certain value judgement during the interpretation and application of all legislation.

25. Section 46(1) of the Constitution (1) When interpreting this Chapter, a court, tribunal, forum or body— (a) ………………… (b) must promote the values and principles that underlie a democratic society based on openness , justice, human dignity, equality and freedom, and in particular, the values and principles set out in section 3; (c) ………………………. (d) …………………….. (e) ……………………..

26. National Objectives Section 8 provides: (1) The objectives set out in this Chapter guide the State and all institutions and agencies of government at every level in formulating and implementing laws and policy decisions that will lead to the establishment, enhancement and promotion of a sustainable, just, free and democratic society in which people enjoy prosperous, happy and fulfilling lives. (2) Regard must be had to the objectives set out in this Chapter when interpreting the State’s obligations under this Constitution and any other law . Thus even though it may be correct that Chapter 2 does not contain justiciable rights, subsection 2 of section 8 makes it clear that the national objective provide a criterion to guide the interpretation of statutes. This chapter is one of the aspects in which the Zimbabwean Constitution differs from the South African. There is no jurisprudence from the Constitutional Court of South Africa from which we can gain assistance .