¹ Pending before the High Court of Zimbabwe at the time of writing (September 1994) is the first of several expected cases challenging the government’s land redistribution policy. The Land Acquisition Act of 1992 prohibits an owner from selling, leasing, or otherwise disposing of his “designated” land, except with prior permission of the relevant Minister, for a maximum period of ten years while the government decides if it will “acquire” the land for resettlement purposes. The case concerns the issue of whether this “designation” of land for possible acquisition by the state at a later, unspecified date amounts to an “acquisition” for which fair compensation is required.

² Although the white minority in Zimbabwe lost political power in 1980, it has largely retained its control of the economy. White commercial fanners, who make up less than 0.5 per cent of the total farming population, still own almost 40 per cent of the land available for agriculture, and a much larger percentage of the country’s most arable acreage. See Michael Bratton, “Ten years after: land redistribution in Zimbabwe, 1980–1990” in Prosterman, Roy L. et al. (eds.), Agrarian Reform and Grassroots Development: Ten Case Studies, Boulder, 282.Google Scholar

³ The Constitution of Zimbabwe Amendment (No. 11) Act amended s. 16 of the Constitution to allow land to be compulsorily acquired for the purposes of resettlement. “Prompt payment of adequate compensation” was changed to “fair” compensation paid in a “reasonable time”. The Act granted Parliament the power to specify the principles with which compensation was to be determined and paid and to fix the amount of compensation in accordance with those principles. It further provided that no such law could be called into question by any court on the ground that the compensation provided by that law was not fair (s. 6). The Constitution of Zimbabwe Amendment (No. 12) Act closed a loophole apparently inadvertently left open by Act No. 11; it deleted a clause enabling a claimant for compensation to apply to the High Court “for the determination of any question relating to compensation” (s. 2). The Constitution of Zimbabwe Amendment (No. 13) Act amended s. 16 to allow only claimants for compensation with property other than land to apply to the High Court or another court for the determination of a question relating to compensation (s. 3). Section 16, as amended, provides, in relevant part:

(1) No property of any description or interest or right therein shall be compulsorily acquired except under the authority of a law that—

(a) requires—

(i) in the case of land or any interest or right therein, that the acquisition is reasonably necessary for the utilization of that or any other land—

A. for settlement for agriculture or other purposes; or

B. for purposes of land reorganization, forestry, environmental conservation or the utilization of wild life or other natural resources; or

C. for the relocation of persons dispossessed in consequence of the utilization of land for a purpose referred to in subparagraph A or B; or

(ii) in the case of any property, including land, or any interest or right therein, that the acquisition is reasonably necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or the utilization of that or any other property for a purpose beneficial to the public generally or to any section of the public; and

(b) requires the acquiring authority to give reasonable notice of the intention to acquire the property, interest or right to any person owning the property or having any other interest or right therein that would be effected by such acquisition; and

(c) subject to the provisions of subsection (2), requires the acquiring authority to pay fair compensation for the acquisition before or within a reasonable time after acquiring the property, interest or right; and

(d) requires the acquiring authority, if the acquisition is contested, to apply to the High Court or some other court before, or not later than thirty days after, the acquisition for an order confirming the acquisition; and

(e) enables any person whose property has been acquired to apply to the High Court or some other court for the prompt return of the property if the court does not confirm the acquisition, and to appeal to the Supreme Court; and

(f) except where die property concerned is land or any interest or right therein, enables any claimant for compensation to apply to the High Court or some other court for the determination of any question relating to compensation and to appeal to the Supreme Court.

(2) A law referred to in subsection (1) which provides for the compulsory acquisition of land or any interest or right therein may—

(a) specify the principles on which, and the manner in which, compensation for the acquisition of the land or interest or right therein is to be determined and paid;

(b) fix, in accordance with principles referred to in paragraph (a), the amount of compensation payable for the acquisition of the land or interest or right therein;

(c) fix the period within which compensation shall be paid for the acquisition of the land or interest or right therein;

and no such law shall be called into question by any court on the ground that the compensation provided by that law is not fair.

⁴ See Gubbay, A. R., “Speech delivered by the Chief Justice, the Honorable Mr Justice A. R. Gubbay, at the opening of the 1991 legal year, Harare, on 14 January, 1991”, (1991) 3 Legal Forum (No. 1) 5, 8.Google Scholar

⁵ See The Herald, 16, 18 January, 1991.

⁶ See, e.g., Hlatshwayo, Ben, “Judicial activism and development—warning signals from Zimbabwe”, (1991–1992) 9–10Zimbabwe Law Review 4.Google Scholar

⁷ See, e.g., Gubbay, A. R., “The role of the courts in the enforcement and protection of human rights in Zimbabwe”, 1993 (unpublished manuscript)Google Scholar.

⁸ See, e.g., The Herald, above, n. 5.

⁹ See, e.g., Gubbay, above, n. 4, at 8.

¹⁰ See above, n. 3.

¹¹ See Bratton, above, n. 2, at 268.

¹² ibid.

¹³ See Sunstein, Cass, “Lochner’s legacy”, (1987) 87 Columbia Law Review 873, 882.CrossRefGoogle Scholar

¹⁴ See generally Southern Rhodesia: Report of the Constitutional Conference, Cmnd 7802, London, 1980Google Scholar; Slinn, Peter, “Zimbabwe achieves independence”, (1980) 6 Commonwealth Law Bulletin (No. 3) 1038.CrossRefGoogle Scholar

¹⁵ See, e.g., Parliamentary Debates, 11 December, 1990 (reciting justifications for the changes to s. 16 in the Constitution of Zimbabwe Amendment (No. 11) Bill).

¹⁶ Ibid.

¹⁷ See Nedelsky, Jennifer, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy, Chicago, 1990, 248.Google Scholar

¹⁸ See, e.g., Parliamentary Debates, 11 December, 1990.

¹⁹ ibid.

²⁰ See Seervai, H. M., Constitutional Law of India, Vol. 2, 1984, 1097Google Scholar cited in Murphy, John, “Insulating land reform from constitutional impugnment: an Indian case study”, (1992) 8 South African Journal on Human Rights 362, 363.CrossRefGoogle Scholar

²¹ It is also important to note that to the extent that the purpose of the land policy in Zimbabwe is economic redistribution, full value compensation may be unavailable in principle. If the government paid the full value of what it acquired, redistribution would not occur. For example, a graduated income tax involves an immense subordination of property to the general welfare, but the government does not compensate a taxpayer for his tax loss. A substantial redistribution of wealth, however, may occur via the acquisition of land within a framework that still accepts the principle of compensation. To take an individual’s land, perhaps his sole source of livelihood, without any compensation is akin to imposing a severe penalty, without protections of law, such as specific charges, a presumption of innocence, etc. Although retribution for the crimes of the colonial and Smith regimes, in part, motivates the government in its thinking on land reform, see, e.g., Parliamentary Debates, 11 December, 1990, it would be an error to confuse the legitimate criticisms of the racist policies of past colonial regimes with a blanket condemnation of landowners as individuals. The Constitution’s provisions securing the protection of law (s. 18) and prohibiting discrimination (s. 23) are available to curb such abuse.

²² See generally Hatchard, John, “The Constitution of Zimbabwe: towards a model for Africa?” [1991] 35 J.A.L. 79, 79–83.CrossRefGoogle Scholar

²³ See generally Carver, Richard, Zimbabwe: A Break With the Past? Africa Watch, 1989Google Scholar; Weitzer, Ronald, “In search of regime security: Zimbabwe since independence”, (1984) 22 Journal of Modem African Studies 529.CrossRefGoogle Scholar

²⁴ ibid.

²⁵ For example, the Constitution of Zimbabwe Amendment (No. 7) Act created an executive presidency and removed the provision in the Lancaster House Constitution that restricted the President to a maximum of two six-year terms of office. The powers and privileges previously shared between the Prime Minister and the President are now vested solely in the President. The President is required to act on the advice of the Cabinet, but the Constitution is now silent as to the effect of a presidential refusal to comply with a Cabinet decision. Previously, the President was entitled to request the Cabinet to reconsider and was expected to implement the decision if the Cabinet tendered the same advice. Safeguards that ensured objectivity in the appointment of judges, the Commissioner of Police, the Director of Prisons and the Commander of the Defence Forces, by requiring the President to act on the advice of independent commissions, have been weakened. Under the Constitution of Zimbabwe Amendment (No. 11) Act, the President now has the power to fix and vary conditions of service, including remuneration and the period of appointment, of appointees to public office. See Hatchard, above, n. 22, at 79, 84–91.

²⁶ The Emergency Powers Act, permitting the promulgation of executive decrees of great magnitude, remained in effect until 1990. The ordinary legislative process was often by-passed, so that regulations were enacted with no public debate or opposition. Procedural rules stifled discussion on issues arising within the ambit of the blanket terms “national interest” or “state security”. Government ministers frequently ignored opposition queries. See Weitzer, above, n. 23, at 532. Largely as a result of the unity agreement of 1987 under which the ruling party effectively swallowed the only viable opposition party in Zimbabwe, opposition candidates won only three seats in the 150-seat Parliament in the most recent election, in 1990. Backbenchers rarely contribute regularly to debate, and legislation on issues of national importance, including constitutional changes, is often enacted with little or no discussion. Strict party discipline within ZANU(PF) ensures that executive policy is implemented. See Hatchard, above, n. 22, at 82.

²⁷ For example, in January of 1994, just two days after the Supreme Court had dismissed their appeals, President Mugabe pardoned a CIO operative and a ZANU(PF) youth official who had been convicted in the High Court of shooting an opposition candidate in the 1990 general election. Patrick Kombayi, organizing secretary of the Zimbabwe Unity Movement (“ZUM”), was contesting the parliamentary seat in the Gweru Urban constituency. H e was opposing Vice-President Simon Muzenda who was standing on the ZANU(PF) ticket. Kombayi was shot two days before the election by Ellias Kanengoni (a senior operative of the CIO) and Kizito Chivamba (a ZANU(PF) provincial youth leader).

²⁸ In S v. A Juvenile, 1989 (2) ZLR 61, the Court held that s. 15(1) of the Constitution, which prohibits inhuman or degrading treatment, proscribes the whipping of juveniles. Jus t months after the decision, however, Parliament passed the Constitution of Zimbabwe Amendment (No. 11) Act, effectively overturning the Supreme Court’s judgment. It explicitly exempted the whipping of juvenile s in execution of a court judgment from the prohibition against inhuman or degrading punishment. In the same Act, Parliament additionally exempted execution by hanging from the prohibition against inhuman or degrading punishment. The issue arose in a case which had been set down for argument on 5 November, 1990. Pre-empting the Supreme Court's decision in the matter, Parliament passed the Act just as the case was to be heard.

²⁹ 1993 (4) SA 239.

³⁰ See Gubbay, above, n. 7, at 8.

³¹ See Gubbay, above, n. 4, at 7.

³² See generally Michelman, Frank, “Property as a constitutional right”, (1981) 28 Washington and Lee Law Review, 1097.Google Scholar

³³ Ibid. at 1099.

³⁴ See, e.g., Rattigan & Ors. v. The Chief Immigration Officer & Ors., S.C. 64/94, in which the Court cites cases to support a wide variety of points from seven jurisdictions other than Zimbabwe (Namibia, South Africa, Botswana, Canada, the United States, the United Nations Human Rights Committee and the European Court on Human Rights) that span four generations (1887 to 1994).

³⁵ See Michelman, above, n. 32, at 1101–1102.

³⁶ Ibid. at 1099.

³⁷ A.I.R. 1973 S.C. 1461.

³⁸ See Gubbay, above, n. 4, at 8.

³⁹ In Kesavananda, the Supreme Court of India conceded the ouster of its jurisdiction over the SC adequacy of the amount paid for compulsorily acquired land. The Constitution (25th Amendment) Act provided that the Indian Parliament had the power to fix the amount paid for compulsorily acquired land by law and excluded judicial review of such a law on the basis that the amount paidwas inadequate. The majority held that the Act did not contravene the “essential features” limitation because the right to compensation was not an essential feature of the Constitution. See, e.g., A.I.R. 1973 S.C. 1461, paras. 412—427 (Sikri, C.J.). The Court struck only the final section of the Act. That section provided that no law containing a declaration that it gives effect to an implementing policy of the state (listed in Article 39 of the Constitution) could be challenged in court on the ground that it did not give effect to the policy. The Court held that because the provision permitted Parliament to pass a law with no true connection to the policy it professed to implement, and thus to abrogate fundamental rights by ordinary (simple majority) legislation, it permitted the destruction of “essential features” of the Constitution. See, e.g., A.I.R. 1973 S.C. 1461, paras. 1537—1538 (Khanna, J.).

⁴⁰ A.I.R. 1975 S.C. 2299. In 1975, the High Court quashed the election of Indira Gandhi to the Lok Sabha (Lower House) after finding her guilty of corrupt electoral practices. the Indian Parliament subsequently passed the Constitution (39th Amendment) Act exempting the dispute d election from the application of existing law or any court judgment based upon existing law and precluding judicial review of the election results or die court decision. In Indira Gandhi, the Supreme Court of India held the Ac t invalid. With regard to the provision of the Act which exempted the election of the Prime Minister from existing legislation, the Supreme Court held that at least one of three “essential features” of the Constitution had been breached: equality was violated, because the Amendment irrationally provided that those who hold the office of the Prime Minister or Speaker are above the law, see, e.g., A.I.R. 1975 S.C. 2299 at 2469 (Chandrachud, J.); separation of powers was violated because in exempting the dispute from the application of existing law, the legislature exercised a judicial function, see, e.g., Ibid. at 2469 (Chandrachud, J.); and democracy was violated because the election result could not be resolved by applying the relevant law for determining the real representative of the people, see, e.g., Ibid. at 2383 (Mathew, J.). The Indira Gandhi Court also struck down the provision of the Act overturning the High Court’s decision and preventing its review in the Supreme Court. This ruling, however, was not based upon the “essential features” doctrine, but upon a formal analysis of the distribution of powers established by the Constitution. The Court essentially held that the power to make and amen d the Constitution could only be exercised through the making of laws (i.e., by the setting of general norms), not b y decisions in individual cases. In deciding the electoral dispute, the legislature had usurped judicial power. The Court held: “A Constitution cannot consist of a string of isolated dooms. A judgment or sentence which is the result of the exercise of judicial power or of despotic discretion is not a law as it has not got the generality which is an essential characteristic of law.” Ibid. at 2375 (Mathew, J.).

⁴¹ 1989 BLD (Spl)1. In Anwar Hossain the Supreme Court of Bangladesh invalidated a constitutional amendment that curtailed the territorial jurisdiction of the High Court Division of the Supreme Court. The Amendment set up six permanent Benches of the High Court Division and authorized the President to fix the territorial jurisdiction of each in a mutually exclusive manner. The Court overturned the amendment on the basis mat the High Court Division’s plenary jurisdiction was part of the “basic structure” of the Constitution.

⁴² Although some member s of the majority in Kesavananda discussed the possibility of narrowly interpreting the term “amendment” in Article 368 to exclude abrogation or repeal of a provision, none of them found the argument conclusive. See, e.g., A.I.R. 1973 S.C. 1461, para. 1158 (Reddy, J.).

⁴³ Although the Supreme Court of Bangladesh analysed the issue in a manner similar to the Indian Courts, it argued that the unalterable nature of the Preamble constituted an express limitation on Parliament’s power to amend. Thus, the restriction on Parliament’s power to amend the Constitution found in Anwar Hossain did no t rely solely upon the contextual interpretation of the power of amendment that was employed in the Indian cases. See, e.g., 1989 BLD (Spl)1, paras. 163–164, 183–184 (Chowdhury, J.).

⁴⁴ See, e.g., A.I.R. 1973 S.C. 1461, para. 121 (Sikri, C.J.); 1989 BLD (Spl)1, paras. 165–166 (Chowdhury, J.).

⁴⁵ See, e.g., A.I.R. 1973 S.C. 1461, paras. 122–168 (Sikri, C.J.); 1989 BLD (Spl)1, paras. 42–114 (Chowdhury, J.).

⁴⁶ A.I.R. 1973 S.C. 1461, para. 98 (Sikri, C.J.).

⁴⁷ A.I.R. 1973 S.C. 1461, para. 533 (Shelat and Grover, J.J.).

⁴⁸ See, e.g., Ibid., paras. 172–183 (Sikri, J.).

⁴⁹ See, e.g., Ibid., para. 556 (Shelat and Grover, JJ.).

⁵⁰ See, e.g., Ibid., paras. 529, 555–557 (Shelat and Grover, JJ.). The Supreme Court of Bangladesh in Anwar Hossain used a similar argument, based upon the sovereignty of the people, with reference to Article 7 of the Constitution of Bangladesh which provides that all powers in the Republic belong to the people and may be exercised only under the authority of the Constitution. Although Parliament had been given the power to amend the Constitution, it remained a creature of the Constitution, according to the Court’s reading of Article 7. Parliament’s power to amend the Constitution could not include the power to amend Article 7 because all of its power flowed from the people through the vehicle of the Constitution as expressed in Article 7. See, e.g., 1989 BL D (Spl)l, paras. 52, 184, 195 (Chowdhury, J.).

⁵¹ See, e.g., A.I.R. 1973 S.C. 1461, paras. 14, 169–183 (Sikri, C.J.).

⁵² See Gubbay, above, n. 4, at 7.

⁵³ See, e.g., The Herald, above, n. 5; Hlatshwayo, above, n. 6.

⁵⁴ The Preamble to the Constitution of Bangladesh is amendable by a referendum among the people, and thus, its “essential features” are not immutable for all time, only unalterable by Parliament alone.

⁵⁵ See, e.g., Morgan, David Gwynn, “The Indian ’essential features’ case”, (1981) 30 I.C.L.Q. 307, 322CrossRefGoogle Scholar; 1989 BLD (Spl)1, para. 536 (Afzal, J., dissenting).

⁵⁶ S. 11 provides: “Whereas every person in Zimbabwe is entitled to the fundamental rights and freedoms of the individual, that is to say, the right whatever his race, tribe, place of origin, political opinions, colour, creed or sex, but subject to respect for die rights and freedoms of others and for die public interest, to each and all of the following, namely—(a) life, liberty, security of the person and the protection of the law; (b) freedom of conscience, of expression and of assembly and association; and (c) protection for the privacy of his home and other property and from the compulsory acquisition of property without compensation; and whereas it is die duty of every person to respect and abide by the Constitutionand abide by the Constitution and the laws of Zimbabwe, and the laws of Zimbabwe, the provisions of diis Chapter shall have the provisions of effect for the purpose of affording protection to those rights and freedoms subject to such limitations effect for the purpose of affording protection to those rights and freedoms sub of mat protection as are contained herein, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.”

⁵⁷ Munhumeso & Ors. v. Attorney-General, S.C. 221/93 at 3.

⁵⁸ The Supreme Court of Zimbabwe cannot proceed along the same lines of argument used by the Court in Anwar Hossain, above, n. 43. In contrast to the Preamble to die Constitution of Bangladesh, which cannot be altered by Parliament alone, s. 11 of the Declaration of Rights in Zimbabwe’s Constitution is amendable and repealable by the same parliamentary procedure required to alter any other provision of the Constitution. S. 11 lacks the position of unalterable pre-eminence occupied by the Preamble i n die Constitution of Bangladesh and upon which die Court in Anwar Hossain relied as evidence of the drafters’ intention that the Preamble be used as a touchstone against which to test the substantive content of all subsequent amendments.

⁵⁹ See Slinn, above, n. 14, at 1049–1051.

⁶⁰ See “Documents on the Southern Rhodesia Constitutional Conference, Annex C: Patriotic front response to British constitutional proposals for Zimbabwe”, (1969) 4 Journal of Southern African Affairs 490Google Scholar; Davidow, Jeffrey, A Peace in Southern Africa: The Lancaster House Conference on Rhodesia, Boulder, 1979, 63.Google Scholar

⁶¹ Interview with George Smith, member of the Smith—Muzorewa delegation to the Lancaster House Conference, 14 February, 1994.

⁶² The period from 1965 to 1979 during which the white minority government of Rhodesia illegally and unilaterally proclaimed itself independent from British rule.

⁶³ See, e.g., Stewart, Julie, “Untying the Gordian knot: Murisa v. Murisa”, (1992) 4 Legal Forum (No. 3) 8Google Scholar (suggesting Supreme Court views on customary law of inheritance were mistaken).

⁶⁴ See Jennings, W. Ivor, The Law and the Constitution, London, 1953, 81.Google Scholar

⁶⁵ See Phillips, O. Hood and Jackson, Paul, O. Hood Phillips’ Constitutional and Administrative Law, Sweet and Maxwell (7th ed.), London, 1987, 119.Google Scholar

⁶⁶ See Jennings, above, n. 64, at 115.

⁶⁷ Ibid. at 263.

⁶⁸ Ibid.

⁶⁹ Ibid.

⁷⁰ Legislation has indirectly endorsed the conventions of political parties and an institutionalized opposition. The Ministers of Crown Act 1937 provides the Leader of the Opposition in the Commons with a salary from public funds. Later legislation, the Ministerial Salaries and Members’ Pensions Act 1965, gave salaries to the Leader of die Opposition in the House of Lords and the Chief Opposition whips in both Houses. In addition, legislation has made public funds available to support Opposition activities; under the annual Appropriation Act, opposition parties receive state monies, according to a formula that takes account of the number of seats held by each party and the number of votes cast. See O. Hood Phillips and Paul Jackson, above, n. 65, at 127.

⁷¹ Ibid, at 56. See Jennings, above, n. 64, at 163.

⁷² For example, in the United States, the legislature cannot amend a provision of the Constitution without a two-thirds majority in both houses and a three-quarters majority of state legislatures.

⁷³ See Slinn, above, n. 14, at 1054. See also SirDale, William, “The Making and Remaking of Commonwealth Constitutions”, (1993) 19 C.L.B. 765, 767.Google Scholar

⁷⁴ 74 See Dale, above, n. 73, at 765, 765, 773–774.

⁷⁵ S. 52.

⁷⁶ The opposition does not exist as an institution. In the 1980 general election, Robert Mugabe–s ZANU(PF) party won 57 seats in the 100-seat House of Assembly. PF-ZAPU led by Joshua Nkomo won 20 seats. Ian Smith’s RF party won the 20 seats reserved (for seven years) for the white roll by the Lancaster House Constitution. In the 1985 general election, ZANU(PF) won 64 seats, PF-ZAPU won 15 seats and the R F won most of the white roll seats. When the white roll was eliminated in 1987, ZANU(PF) won all 20 seats. In the unity agreement between ZANU(PF) and PF-ZAPU, of the same year, the only viable opposition party (PF-ZAPU) was effectively swallowed up by the ruling party, ZANU(PF). As a consequence, ZANU(PF) won all but three seats of the directly elected parliamentary seats. See Hatchard, above, n. 22, at 80–81.

⁷⁷ “The apathy of members was epitomized on 28 February, 1991 when Parliament met at 2.15 p.m. and adjourned at 2.35 p.m. because of a lack of contributions in two debates covering important national issues.” Ibid. at 84. See Parliamentary Debates, 5 March, 1991.

⁷⁸ The Act permits political parties with at least 15 seats in Parliament to qualify for Z$30 million n i government funding for campaign purposes.

⁷⁹ For example, three items appeared in The Herald on the Constitution of Zimbabwe Amendment (No. 9) Bill: 8, 17 and 24 November, 1989. Three items appeared in The Herald on the Constitution of Zimbabwe Amendment (No. 10) Bill: 21, 28 and 29 June, 1990. Two of the headlines in each case merely announced that die amendments were being proposed or debated in Parliament.

⁸⁰ See Carver, above, n. 23, at 71.

⁸¹ Cap. 248, s. 27.

⁸² The Ministry of Political Affairs was replaced in 1992 by an apparently similar Ministry of National Affairs.

⁸³ The Constitution of Zimbabwe Amendment (No. 9) Act, s. 9, amended s. 41 to provide: “the seat of a member of Parliament shall become vacant … if, being [a member elected by common roll voters] and having ceased to be a member of the political party of which he was a member at the date of his election to Parliament, the political party concerned … declares that he has ceased to represent its interests in Parliament”.

⁸⁴ For example, only eight members of Parliament contributed to the debate on the Second Reading of the Constitution of Zimbabwe Amendment (No. 9) Bill, see Parliamentary Debates, 7 November, 1989, Vol. 16, No. 36; three members contributed to the debate on the Constitution of Zimbabwe Amendment (No. 10) Bill, see Parliamentary Debates, 26 June, 1990, Vol. 17, No. 12; and only 17 members made a contribution to the debate on the Constitution of Zimbabwe Amendment (No. 11) Bill. Only four of those 17 referred to an issue other than the amendment to s. 16 regarding land. See Parliamentary Debates, 11 December, 1990, Vol. 17, No. 59. That Act also amended s. 15 of the Declaration of Rights to permit the corporal punishment of juveniles and hanging as a form of execution, which pre-empted a Supreme Court decision on the issue in a case that was set down for argument within months of the enactment.

⁸⁵ See Memorandum submitted by the British Institute of Human Rights to the Select Committee of the House of Lords on a Bill of Rights, “A Bill of Rights for Britain?” (1977) 3 C.L.B. 503Google Scholar, 506–507. See also Jennings, above, n. 64, at 288.

⁸⁶ The present supremacy of the House of Commons developed with the extension of the franchise. The Crown and the House of Lords lost the right to withhold their assent from legislation proposed by the Commons as an indirect consequence of the Representation of the People Act of 1832 and its successors. See Scarman, Lord, “Why Britain needs a written constitution”, (1993) 19 C.L.B. 317, 319–321Google Scholar. See generally Scarman, Lord, “Protection of human rights in the United Kingdom”, (1984) 10 C.L.B. (No. 3) 1352.Google Scholar

⁸⁷ S. 3.

⁸⁸ S. 24 provides, in relevant part:

(5) If in proceedings it is alleged that anything contained in or done under the authority of any law is in contravention of [various sections of the Declaration of Rights] and the court decides, as a result of hearing the parties, that the complainant has shown that the court should not accept that the provision of the law concerned is reasonably justifiable in a democratic society on such of the grounds mentioned in [various sections of the Declaration of Rights], as the case may be, as are relied upon by the other party without proof to its satisfaction, it shall issue a rule nisi calling upon the responsible Minister to show cause why that provision should not be declared to be in contravention of the section concerned.

(6) If in any proceedings it falls to be determined whether any law is in contravention of the Declaration of Rights, the Attorney-General shall be entitled to be heard by the court on that question and if in any such proceedings any law is determined by the court to be in contravention of the Declaration of Rights, then, whether or not he has exercised his right to be heard in those proceedings, the Attorney-General shall have to [sic] like right with respect to an appeal from that determination as if he had been a party to the proceedings.

(7) Where any law is held by competent court to be in contravention of the Declaration of Rights, any person detained in custody under that law shall be entitled as of right to make an application to the Supreme Court for the purpose of questioning the validity of his further detention, notwithstanding that he may have previously appealed against his conviction or sentence or that any time prescribed for the lodging of such an appeal may have expired.

⁸⁹ See, e.g., Lester, Anthony, “Fundamental rights: the United Kingdom isolated?” (1984) 10 C.L.B. 955, 956Google Scholar (acknowledging that the wisdom of the subordinate position of the courts in relation to the omnipotent legislature and the narrowness of the judicial mandate in Britain is “an ever more isolated view among the modern democracies”). See also Scarman, 19 C.L.B. 317, above, n. 86.

⁹⁰ “The idea of a Constitution as fundamental law is one of America’s most important contributions to civilization. The written constitutions, promulgated in the states after 1776, seem to have embodied a new understanding of a constitution, not as simply an arrangement or frame of government, but as fundamental law more basic than ordinary legislation.” Horwitz, Morton J., “Foreword: the constitution of change: legal fundamentality without fundamentalism”, (1993) 107 Harvard Law Review 30, 34.Google Scholar

⁹¹ “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Constitution may from time to time ordain and establish.” Art. Ill, s. 1.

⁹² The Amendment (No. 11) Act, however, goes on to state that the amended phrase “shall not be construed as preventing an Act of Parliament from … vesting adjudicating functions in a person or authority other than a court… ”The provision appears to undermine application of a separation of powers doctrine to Zimbabwe, but analysis of the actual operation of the doctrine of separation of powers in U.S. jurisprudence is consistent with this provision. The U.S. Supreme Court only strikes down legislation on the basis of separation of powers when Congress grabs executive or judicial power for itself, see, e.g., Bowsher v. Synar (1986) 478 U.S. 714 (invalidating the Gramm-Rudman Act in which Congress granted itself executive power by giving the Comptroller General, who Congress had the power to dismiss, the power to make automatic cuts in the federal budget), but not when it grants judicial, executive or legislative power to other authorities. See, e.g., Mistretta v. United States (1989) 488 U.S. 361 (upholding Federal Sentencing Commission Act delegating rulemaking power to the judicial branch). A court in Zimbabwe could similarly hold that the amended s. 79 means that Parliament may delegate judicial authority to any person or body that functions independently of Parliament. It would seem that the Court is concerned only with legislative self-aggrandizement of power.

⁹³ McCulloch v. Maryland (1819) 17 U.S. (4 Wheat.) 316, 415.Google Scholar

⁹⁴ Population pressure and land degradation in the rural areas have increased since 1980 at which time 32 per cent of the national population were landless. See Bratton, above, n. 2, 288–289.

⁹⁵ See above, n. 79.

⁹⁶ the U.S. Supreme Court has suffered self-inflicted wounds to its legitimacy several times in emotionally charged confrontations with Congress. For example, in Dred Scott v. Sanfard (1857) 60 U.S. (19 How.) 393—a decision sometimes credited with launchin g the Civil War and which cost the Supreme Court its legitimacy for decades—Chief Justice Tanney found the Missouri Compromise (which permitted the retention of slavery in southern states but prohibited slavery in newly establishe d states) unconstitutional. He argued that the Constitution did not permit divestiture of an individual’s property (a slave) merely because the individual had crossed a state line. See also Lochner v. New York (1905) 198 U.S. 45 (striking down a New York state law that limited the working hours of employees in the baking industry on the basis that the law abridged the right to “liberty of contract” guaranteed by the Fourteenth Amendment to the Constitution). Lochner and the jurisprudence of the era in which it was decided have been thoroughly discredited in American legal culture. See Grey, Thomas C., “Do we have an unwritten constitution?” (1975) 27 Stanford Law Review 703, 711 n. 35.CrossRefGoogle Scholar Scholar s have attributed the failure of Lochner to "the basic justification for judicial intervention—that the courts were restoring the natural order which had been upset by the legislature—” becoming increasingly perceived as fundamentally flawed (Laurence Tribe, American Constitutional Law, Foundation Press, 1978, 447, or to the Court’s “frustrating popular sovereignty by a too rigid adherence to a too particular and too static body of principle [the categories and doctrines of late-19th-century common law], wrongly conceived by the Court as not encompassing the principle of popular sovereignty itself”. Michelman, above, n. 32, at 1101.

⁹⁷ The national election of 1800 in the United States was fiercely partisan. The Federalists, who supported a strong central government, the traditional sovereignty of the states and strict protection of property rights, lost power for the first time in the life of the new nation to the Republicans, who were more populist-oriented and advocated state rights. Because the Supreme Court had been a minor institution, used mainly to protect the values of the Federalists, judicial review had not been an issue. The out-going Federalist President Adams had appointed John Marshall as Chief Justice. Before leaving office, the Federalists expanded the federal judiciary, in an attempt to secure the continued protection of the Federalist vision. The appointments of the new federal judges were confirmed by the Senate and signed by the President and sealed by the Secretary of State. William Marbury’s commission of appointment was not delivered before the new Republican administration headed by Thomas Jefferson, who refused to honour the commission, took office. Marbury sued directly in the Supreme Court seeking an order of mandamus for the delivery of his commission. He argued that the Supreme Court had jurisdiction on the basis of their authority to issue writs of mandamus. Chief Justice Marshall held: (1) Mr Marbury had a right to delivery of the commission and compelling the new Secretary of State (James Madison) to deliver was an appropriate remedy; (2) but, although Congress had statutorily authorized the Supreme Court’s original jurisdiction over writs of mandamus, the statute was unconstitutional under Article III, s. 2, which lists the types of cases in which the Supreme Court has original jurisdiction and concludes: “in all other cases, the Supreme Court shall have appellate jurisdiction”; (3) because a court must enforce the Constitution as the supreme law, it must refuse to enforce a duly-enacted law to the contrary.

⁹⁸ Jurisdiction-restricting amendments, however, may be vulnerable to other constitutional challenges. For example, one could argue that the ouster clause of the amendments to s. 16 illegitimately amends s. 24 by implication. S. 52 of the Constitution provides that “no law shall be deemed to amend, add to or repeal any provision of this Constitution unless it does so in express terms”. The amendments expressly amend s. 16, but in selecting a particular constitutional right (the right to fair compensation for compulsorily acquired land) and making it non-justiciable, the amendments impliedly amend s. 24, which grants the Supreme Court jurisdiction over all cases in which a contravention of the Declaration of Rights is alleged. Because Parliament may only amend the Constitution in express terms, the portion of the amendments that alter by implication the Court’s jurisdiction under s. 24 could be held void. Whether Parliament could expressly amend s. 24 to permit restrictions on the Supreme Court’s jurisdiction over an alleged contravention of the Declaration of Rights is open to argument. Parliament’s authority to amend the Constitution may not include the power to restrict the jurisdiction of the Supreme Court. S. 52, authorizing Parliament to amend the Constitution, must be read together with other provisions that arguably bound its power. For example, s. 24(8) authorizes the conferment of additional powers only on the Supreme Court. It provides: “A written law may confer upon the Supreme Court powers additional to those conferred by this Section for the purpose of enabling the Supreme Court more effectively to exercise the jurisdiction conferred upon it by this Section”. And s. 80, which establishes the Supreme Court, speaks only of a conferral of powers without any mention of diminution: the Supreme Court shall have “such jurisdiction and powers as may be conferred upon it by or in terms of this Constitution or any Act of Parliament”. There is no provision in the Constitution that expressly authorizes Parliament to subtract from the jurisdiction of the Supreme Court. There is no constitutional or principled reason to accords. 52 greater weight than any other provision. Proper construction would require a Court to prefer an interpretation that gives effect to all provisions rather than one that subordinates one provision to another. Because the Court’s power to adjudicate cases in which a contravention of the Declaration of Rights is alleged is clear under the Constitution (s. 24) and the Constitution is at best unclear as to whether Parliament’s power to amend the Constitution includes the ability to restrict the Court’s jurisdiction with regard to alleged contraventions of the Declaration of Rights, a Court may choose to err safely on the side of clarity and protect the Court’s jurisdiction over cases alleging a contravention of the Declaration of Rights.