The Zimbabwean Constitutional Court as a key site of struggle for human rights protection: A critical assessment of its human rights jurisprudence during its first six years

Résumé 0

Several African countries have recently adopted fairly democratic constitutions. An emerging trend in these constitutions is the establishment of constitutional courts or constitutional councils as key institutions for human rights protection. However, the adoption of fairly democratic constitutions sometimes is not complemented by the democratisation of politics, as autocratic governments remain in place after the adoption of a new constitution. When this happens, these countries' constitutional courts become key sites of human rights protection struggles, as many turn to public interest litigation in an effort to protect human rights. Using the Constitutional Court of Zimbabwe as a case study, the article investigates the behaviour of these courts and their reliability as human rights protection institutions, when they operate under autocratic political conditions. The article makes use of the systemic level factors theory as a conceptual framework for analysing the jurisprudence of this Court. It identifies trends in the manner in which this Court has handled high-level profile human rights cases that involve the interests of the ruling party or government. These trends are that in the majority of cases the Court has ignored the Constitution and delivered judgments that are meant to protect the government from certain political risks. In a few cases the Court appeared to be bold enough to enforce the Constitution, but a closer analysis of these cases reveals that the Court decided in that manner because the reconfigured political strategy of the ruling party and the internal factional contestations in the ruling party required or permitted the Court to make those decisions. The article concludes that the performance of the Constitutional Court of Zimbabwe thus far paints a gloomy picture as far as its reliability and utility as a guardian of human rights and democratic institutions under the current autocratic regime in Zimbabwe are concerned.