THE NKANDLA JUDGMENT: LESSONS FOR ZIMBABWE
One of the most progressive judgments made in 2016 by the Constitutional Court of South Africa was the ‘Nkandla judgment’ wherein the court dealt definitively with matters important to the evolution and application of constitutional democracy, such as:
• The separation of powers among the executive, legislature and judiciary.
• The role and tasks of the executive, especially the President of the Republic.
• The role and tasks of the National Assembly.
• The role and tasks of the Judiciary.
• The role and tasks of the public protector.
The constitutional court had to decide whether the President of the Republic of South Africa had a constitutional duty to comply with recommendations made by the public protector and whether - in failing to do so - the President had failed to uphold, defend and respect the constitution. It found in favour of the applicants that the President, indeed, had a duty to uphold, defend and respect the constitution; and that, further, there was a clear duty on the National Assembly to hold under scrutiny the conduct of the executive on behalf of the public.
This decision not only gave life to the reconciliatory and purposive interpretation of South Africa’s constitution but it also indicates a trend of how the judiciary ─ through constitutional activism when properly applied in a democratic context ─ acts as a legitimate and successful defender of the core fundamental values that constitute a democracy.
The decision also demonstrates what it means for South Africa to be living as a ‘constitutional democracy’, as opposed to a parliamentary democracy. It reinforced the fact that whilst parliament has the duty and obligation to make and debate laws, these laws still have to pass constitutional muster because the constitution is the supreme law.
This paper articulates the relevance of the Nkandla judgment for Zimbabwe and the lessons which, if applied locally, would ensure that Zimbabwe begins to live up to the expectations required of a genuine constitutional democracy.