The Right to Reasons for Administrative Action in Zimbabwe

• DOI: 10.25159/2522-6800/9701
• Published date: 01 December 2021
• Date: 01 December 2021
• Author: Gift Manyatera,Tapiwa Givemore Kasuso
• Pages: 1-23

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/9701

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

#9701 | 23 pages

© Unisa Press 2022

The Right to Reasons for Administrative Action in

Zimbabwe

Tapiwa Givemore Kasuso

https://orcid.org/0000-0002-8078-3425

Zimbabwe Open University

kasusot@zou.ac.zw

Gift Manyatera

Midlands State University

manyaterag@staff.msu.ac.zw

Abstract

The so-called ‘third wave’ of democratisation in Africa has witnessed a

transition from a culture of impunity in the exercise of public power to more

emphasis on a culture based on legality and the protection of fundamental rights

of citizens. Important strides have been made in enhancing accountability by

those who wield public power through judicial review mechanisms. The right

to reasons for any administrative action that has an impact on citizens becomes

even more paramount in light of these shifts in democratic ethos. This article

focuses on the right to reasons for adverse administrative action in Zimbabwe

against the backdrop of the 2013 Constitution, which ushered in the dawn of a

new era in so far as the scope of the right to just administrative action is

concerned. A critical examination of the nature and scope of the right to reasons

is undertaken. Insightful recommendations are then proffered to further enhance

the practical meaning of the right in the context of the constitutionally

entrenched right to just administrative action in Zimbabwe.

Keywords: Right to reasons; adverse administrative action; administrative authority;

Administrative Justice Act; Constitution; judicial review; accountability;

transparency; Zimbabwe

Kasuso and Manyatera

2

Introduction

The 2013 Constitution of Zimbabwe entrenches the broad right to administrative

justice.

1

Before this, the right could only be located under the common law and as a

statutory right in section 3 of the Administrative Justice Act (the AJA).

2

One of the

constituent elements of the right to administrative justice is the right to written reasons

for administrative conduct that adversely affects rights, interests or legitimate

expectations.

3

Section 68(3) of the Constitution provides that an Act of Parliament must

give effect to the administrative justice rights in section 68(1) and (2) of the

Constitution. Despite predating the Constitution, Zimbabwean courts have held that the

AJA is one of the Acts that give effect to section 68 of the Constitution.

4

This implies

that the right to reasons in section 68(2) of the Constitution is a restatement of the

statutory right in section 3(1) (c) of the AJA.

5

The challenge is that the AJA is a

codification of the common-law understanding of administrative justice.

6

Its enactment

and interpretation do not have any constitutional foundations.

7

This contribution critically examines the scope and nature of the right to reasons for

administrative action in Zimbabwe from a constitutional perspective. It seeks to

ascertain whether the constitutional right to reasons is fully given effect by the AJA. In

doing so, the contribution considers whether the limitations imposed on the right to

reasons by the AJA are justifiable in a democratic society based on openness, justice,

human dignity and equality. Useful guidelines on how to interpret the right in a manner

that is consistent with the Constitution are given. To put the study in its proper context,

the contribution also evaluates the efficacy of the remedies available to a litigant where

an administrative authority refuses, fails, and/or neglects to give reasons for its action.

The Common Law

The common law does not recognise a general right to reasons for administrative action,

which adversely affects rights, interests and legitimate expectations.

8

The right could

1

Section 68(1) of the Constitution provides that, ‘every person has a right to administrative conduct

that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and

procedurally fair.’

2

(Chapter 10:28); Act 12 of 2004.

3

Section 68(2) of the Constitution.

4

Zinyemba v The Minister of Lands and Rural Resettlement & Another CCZ 3/16; B (A Juvenile) v

Minister of Primary and Secondary Education (2014) (2) ZLR 341 (H).

5

Mahachi & Others v Officer Commanding, Matabeleland South Province N.O & Another HB 146/16.

6 U-Tow Trailers (Pvt) Ltd v City of Harare & Another 2009 (2) ZLR 259 (H); Zindoga & Others v

Minister of Public Service, Labour and Social Welfare 2006 (2) ZLR 10 (H).

7

P Kaseke, ‘Towards Good Governance: Interpreting the Right to Administrative Justice in the

Zimbabwean Constitution’ (2019) Unpublished PhD Thesis, University of the Witwatersrand 113.

8

Geoff Feltoe, A Guide to Administrative and Local Government Law in Zimbabwe (LRF 2017) 79;

Mark Elliot, ‘Has the Common Law Duty to Give Reasons Come of Age Yet? (2011) Public Law

56.