The paragraph does not mean that existing laws continue in force even if they are inconsistent with the Constitution. All it means is that existing laws must be interpreted so as to conform with the Constitution. If they cannot be interpreted in this way – in other words, if they are so inconsistent that they cannot be brought within the ambit of the Constitution – then they are void by virtue of section 2(1).
This has been confirmed by court judgments [e.g. the judgment of the Constitutional Court in the case Veritas brought case against child marriage, and a judgment of the Constitutional court in South Africa where the court said: “The rule of invalidity of a law … is derived from the fundamental principle of the supremacy of the Constitution.”
Sometimes of course there may be genuine doubt about whether an existing law is consistent with the Constitution, and then the doubt has to be resolved by a court. But even in such a case, if the court decides that the law is unconstitutional it is not the court judgment that makes the law invalid, but rather the Constitution itself.
So why is there pressure on the government to align Laws?
While it may be legally correct to say that the supremacy of the Constitution makes it unnecessary to align existing laws with the Constitution, there are at least three good reasons for the Government to do so.
1. Alignment is part of the process of implementing the Constitution.
Delay in alignment indicates a lack of will to implement the Constitution, i.e. a disregard for constitutionalism and the rule of law and undermines the basis of the Zimbabwean State which is supposed to be a constitutional democracy. Four years after the Constitution came into force, progress in aligning our statute law with the Constitution has been fitful at best. Some 74 existing Acts of Parliament remain unaligned with the Constitution and many new laws which the Constitution says must be enacted have not appeared on the statute book.
2. Unaligned laws are difficult to apply
If laws are left unaligned it is difficult to judges, magistrates, law enforcement officers, civil servants and the general public to be sure what the law really is. If a judge or magistrate for example has to decide a case involving an unaligned law, he or she has to consider not just the provisions of the law itself but also the relevant provisions of the Constitution and any Constitutional Court judgments that may have a bearing on the law, and then in the light of those provisions and judgments he or she has to decide whether or not the law is constitutional, i.e. whether it really is a law. Only then can the judge or magistrate proceed to determine the factual issues in the case before the court. And police officers who have to enforce an unaligned law, or civil servants who have to administer it, cannot be expected to work out whether the law is valid or not before they can enforce or administer it. Members of the public are in an even more difficult position, having to decide without legal expertise whether or not they should comply with a law that may or may not be valid.
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