Two examples of such difficulties are:
• Prison officers have shot and killed prisoners who were trying to escape from prison. The prison officers were relying on section 30 of the Prisons Act, which purports to give them power to use firearms against escaping prisoners even if the prisoners are killed. Under the Constitution, however, the right to life is inviolable so section 30 of the Prisons Act is unconstitutional in so far as it authorises killing. The prison officers therefore are liable for unlawfully killing the prisoners even though they believed they were legally entitled to do so.
• In a case Veritas brought to the Constitutional Court, the Court ruled that prisoners sentenced to life imprisonment were entitled to be considered for parole, i.e. early release, even though the Prisons Act expressly forbade it. At a recent workshop to discuss the Prisons Act, it appeared that even senior prison staff did not know about the ruling and said that the Prisons Act would have to be amended if they were to set up parole hearings for these prisoners.
To remove these uncertainties and doubts the Government must align all Zimbabwe’s laws with the Constitution, and it should do so without further delay.
3. Alignment involves enacting new laws as well as amending existing ones
Some parts of the Constitution cannot be implemented without the enactment of new laws. Provincialisation or devolution of powers, is an example. Chapter 14 of the Constitution sets up provincial and metropolitan councils, but leaves it to Parliament to give them specific functions and to regulate how they may exercise those functions. No such law has been enacted, so even though councillors were elected in 2013 Chapter 14 of the Constitution remains a dead letter.
Another example is section 210 of the Constitution, which requires Parliament to enact a law setting up an independent mechanism for receiving and investigating complaints against the Police and other security services. No such law has been enacted.
Yet another example is the enactment of legislation to establish a Citizenship and Immigration Board responsible for granting and revoking citizenship, and issuing residence and work permits. This is mandated by section 41 of the Constitution, but the board has not been established because the legislation has not been enacted.
It must be recognised by all that the Constitution is the supreme law and overrides all other laws, and alignment is part of the process to see that the Constitution is implemented. Our laws are valid only to the extent that they comply with the Constitution. No matter how laborious the alignment process, the Government must expedite it, and Parliament should pressure it to do so.
Perhaps the Speaker could issue a statement calling on the Government to carry out its duty towards the people of Zimbabwe by accelerating the alignment of our laws, thereby making the Constitution an effective, living document.
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