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Towards Good Governance: Interpreting the Right to Administrative Justice in the Zimbabwean Constitution PAUL KASEKE Thesis submitted in fulfilment of the requirements of the degree of DOCTOR OF PHILOSOPHY in the School of Law of the University of the Witwatersrand, Johannesburg Supervisor: Dr. Fola Adeleke Co-Supervisor Prof. Victoria Bronstein March 2019 DECLARATION I, Paul Chidochashe Kaseke declare that this thesis is my own unaided work. It is submitted in fulfillment of the requirements of the degree of Doctor of Philosophy (PhD) in the Faculty of Commerce, Law and Management at the University of the Witwatersrand, Johannesburg. It has not been submitted before for any degree or examination in this or any other university. __________________________________________ SIGNATURE 480549 STUDENT NUMBER 29th March 2019 DATE This study commenced in 2016 and wherever possible the law is stated as at January 2019. The citation conventions of the South African Journal on Human Rights (SAJHR) were used Acknowledgements Penning this thesis has been a character defining moment. There are times where I wanted to give up and indeed many sleepless nights which made me question whether this was something I wanted to do. I would have not done it without the assistance and support of several special people around me. Special thanks to my supervisor, Dr. Fola Adeleke, for his dedication, commitment and hands-on approach which made the writing process easier. Doc, as I often called him, made every attempt to accommodate me even where I missed deadlines. I am humbled to have had a compassionate supervisor who took an interest in my well-being during this process. Words can never express how grateful I am. I would also like to equally thank my co-supervisor, Prof. Vicky Bronstein, whose ideas and comments always added a different dimension to the thesis and made for a richer text. I am grateful for the insights of Prof. Cora Hoexter, who birthed a passion for administrative law in me from the time she taught me in the LLB programme. While she was not my supervisor, she was always willing to let me bounce off ideas and provide additional guidance. I am also appreciative of the assistance from Dr. Justice Mavedzenge, who at short notice, was willing to share knowledge on the subject matter. The quest for constitutionalism and the rule of law in Zimbabwe was stirred up in me by academics such as Prof. Lovemore Madhuku but it is the active engagement with and the example set by Dr. Alex Magaisa, that convinced me that I have a role to play in the development of my beloved country’s legal terrain. Dr. Magaisa’s prolific and brave example in publicly calling for reforms and alignment with the Constitution, infectiously caught onto me. I would not have dared to write against the government or criticize any of its actions had I not seen that it was possible from the likes of Dr. Magaisa. I am grateful for the chats and advice he gave during this process – thank you Sir! Prof. Kawadza deserves a special mention for the massive role he played as a role model and a mentor. During the darkest days of this study where my father passed on due to cancer, it was Prof. Kawadza who pushed me on and urged me to finish it as a tribute to my father. He constantly encouraged me and pushed me to be better than I thought I could be. Without his support, I would have dropped the PhD altogether. Colleagues in the School of Law like Prof. 3 | P a g e Tumai Murombo, Dr. Muriel Mushariwa, Dr. Sanele Sibanda Ms. Judith Katzew and Mr. Daven Dass amongst others, were instrumental in making sure that I finished this thesis and their encouragement and words of affirmation are appreciated. In the same school, there are colleagues who became friends and deserve special mention for their unwavering belief and support. Many thanks therefore to Ms. Claire Joseph, Ms. Lerato Phiri, Ms. Mpumi Seme, Mr. Dakalo Singo and Advocate Mfesane Siboto for pushing me in ways they cannot appreciate. I am indebted to my line manager at the Credit Ombudsman, Mr. Lee Soobrathi, for his understanding during this period. It was not easy to work and study full time, but he accommodated me as best as he could. I am equally indebted to the staff at the Credit Ombudsman who for reasons best known to them, called me Doc before I even finished the thesis. This unintended but necessary pressure made it undesirable to quit. Thank you to Nyasha Utsihwegota, my best friend, who checked on me weekly even where I did not respond. For your honesty, loyalty, time, care, love, patience and effort, thank you! A big thanks go to David Clever Dhliwayo and Thabani Mnyama for their continual push and encouragement – thank you my brothers. My mother, Mrs. Florence Kaseke and my siblings, Kudakwashe and Nicholas Kaseke, deserve an entire dedication page of their own for all their love, care and support during the writing process. Since the start of my academic career, they have in their singular and collective ways, been there for me and I cannot thank them enough for all they have done. I would also like to thank the Nhongo, Mshoperi, Madiba and Maforo families, for all their support during this time. Thank you, family! It is impossible to thank every single person who helped me along the way and if I have missed anyone, this must not be seen as anything other than an innocent omission. To anyone I may have missed out, thank you! Over and above the support from the people around me, I would not have been able to see this project through without my Lord and Savior, Jesus Christ without whom, nothing is possible. I am because He is, and He alone deserves all the praise and glory for this achievement. 4 | P a g e Abstract In 2013, Zimbabwe adopted a new constitution that replaced the ‘Lancaster’ Constitution adopted at independence in 1980. Unlike its predecessor, the 2013 Constitution introduced an administrative justice right in s68. This right provides every person with a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. The focus of this thesis is how courts should interpret the right to administrative justice in a manner that promotes good governance and administration. Good governance in the Zimbabwean Constitution bears a specific meaning that encompasses social justice, economic stability and the orderly transfer of power during elections. The thesis suggests how courts can approach the right in a way that transforms the nature of governance and administration in the country as part of building a progressive constitutional democracy. The s68 right unfortunately, creates tentative legal uncertainty in as far as the content of the right is concerned. The right may be ineffective if no useful guidelines are in place to inform its content and meaning. The challenge faced by the courts when interpreting this right is how it is to be construed and what protection it offers to the people of Zimbabwe. It will be seen that the concepts of substantive fairness, prompt, efficient and proportionate administrative conduct are new additions to Zimbabwe’s administrative law framework and these need to be defined accordingly. Substantive fairness is in fact a new addition to the principle of administrative law and a theory of this is postulated in the thesis to provide a starting point for the analysis of the right. It will also be seen that the realization of the s 68 right depends on a litany of factors. These include the creation of a new law to give effect to the constitutional right, creation of specialist tribunals dealing with administrative justice, institutional reform of the Zimbabwe Human Rights Commission, which is tasked with the protection of rights including the right to administrative justice and the willingness of courts to interpret s68 progressively. The thesis makes recommendations for the practical changes required to ensure that the right to administrative justice is realized and while doing so, enhancing good governance as defined in the Constitution of Zimbabwe. 5 | P a g e Dedication This study is dedicated to the loving memory of my late father, Professor Edwell Kaseke who motivated me to start this journey. I am saddened that he did not live to see its completion, but I am satisfied that this is a legacy to be added to his name and I know he would have been so proud to see the fruits of his motivation and principles. This is for you, Prof! 6 | P a g e TABLE OF CONTENTS Chapter 1 Introduction: The road to good governance 1.1 Background to the study 11 1.2 Nature and scope of the study 13 (a) Title and aim of the study 13 (b) Research question to be explored 14 (c) Problem statement 14 1.3 Synopsis of chapters and conclusion 15 Chapter 2 Structural Weaknesses of pre-2013 Zimbabwean administrative law 2.1 Introduction 17 2.2 Background to the creation of the Constitution 20 2.3 Introducing the administrative justice right 25 2.4 An overview of the ZAJA 28 2.5 Overview of the common law 32 2.6 Development of administrative law under the ZAJA 34 2.7 Principles of Natural Justice 37 2.8 Lawfulness 51 2.9 Reasonableness 59 2.10 Right to reasons 62 2.11 Remedies 66 2.12 Weaknesses of the Common Law 71 2.13 Weaknesses of the ZAJA 76 2.14 Conclusion 82 7 | P a g e Chapter 3 Significance of s68 and the constitutionalisation of the right to administrative justice 3.1 Introduction and outline of chapter 87 3.2 Good governance 88 3.3 Constitutionalisation of rights 96 3.4 The significance of constitutionalisation of the right to administrative justice 111 Chapter 4 New concepts introduced by s68 4 Introduction and outline of chapter 119 4.1 Substantive Fairness 120 4.2 Proportional Administrative Conduct 152 4.3 Prompt Administrative Conduct 156 4.4 Efficient Administrative Conduct 163 4.5 Impartial Administrative Conduct 167 4.6 Conclusion 168 Chapter 5 Judicial Avoidance in the Engagement of s68 5.

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