Constitutional reform in Africa: positioning the new constitutional court of Zimbabwe in the transformation of civil and political rights.

Abstract

This thesis investigated the prospects of the transformation of civil and political rights through the courts in Zimbabwe. The arguments made were based on the concepts of transformative adjudication and transformative constitutionalism as contemplated by Karl Klare. The adoption of a new Constitution in 2013 and the subsequent establishment of the Constitutional Court as the highest court in Zimbabwe made this study necessary. It is argued that the Constitution adopted in 2013 is transformative and the courts must ensure that the hopes and aspirations of the people embodied in the Constitution are realised. This argument is based on the understanding that there is a lack of political will to drive transformation through political or other legislative processes. Zimbabwe’s constitutional history was explored to make a case for transformation. Therefore, the views of scholars on constitutional transformation and transformative adjudication were considered. It was observed that court-led transformation would be an ambitious project given the volatile political situation in Zimbabwe where the denial of civil and political rights is used as a tool for silencing opposition and maintaining power by the political elite. It may be ambitious, but not impossible, for the Zimbabwean judges to take the lead on the transformation of civil and political rights. Lessons were drawn from the discussions of the South African Constitutional Court, and the Kenyan Supreme Court to carve a path for judiciary-led transformation. The study recommended a change of attitude and interpretative methods by Zimbabwean judges. The thesis also recommended that whilst engaging in judiciary-led transformation, judges should consider other adjudication methods to avoid conflict with the political arms in Zimbabwe.