An Introduction to Zimbabwean Law

Lovemore Madhuku

Description

This is an introductory textbook on the Zimbabwean legal system. It sets the stage for a comprehensive description of that legal system by opening with some theoretical issues on the nature of law in general, particularly a definition of law, the role and purpose of law in society, the relationship between law and justice and how morality impacts on law. After outlining this theoretical framework, it turns to the Zimbabwean legal system and covers the following key areas: sources of Zimbabwean law, the scope of Roman-Dutch law in Zimbabwe, the law-making process and the role of Parliament, the structure of the courts in Zimbabwe, the procedures in the civil and criminal courts, the legal aid system and the nature of the legal profession. It covers the process of appointment of judges and its effect on the independence of the judiciary. It has a long closing chapter on the interpretation of statutes covering all the rules, maxims and presumptions.

Sujets

• Law

Informations

• Publié par: Weaver Press
• Date de parution: 26 août 2010
• Nombre de lectures: 1
• EAN13: 9781779221414
• Langue: English
• Poids de l'ouvrage: 3 Mo

Extrait

An Introduction to Zimbabwean Law

An Introduction to Zimbabwean Law

lovemore madhuku BL (Hons), LLB (Zimbabwe), LLM, PhD (Cantab)

Lecturer in Law, Faculty of Law University of Zimbabwe

Published by Weaver Press, Box A1922, Avondale, Harare and Friedrich-Ebert-Stiftung (FES) Box 4720, 6 Ross Avenue Belgravia, Harare

© FES & Lovemore Madhuku, 2010

Typeset by forzalibro designs Cover by Danes Design, Harare Printed by Sable Press, Harare

All rights reserved. No part of the publication may be reproduced, stored in a retrieval system or transmitted in any form by any means – electronic, mechanical, photocopying, recording, or otherwise – without the express written permission of the copyright holders.

ISBN: 978-1-77922-098-1

About the author

Born on 20 July 1966 in Madhuku village, Lovemore Madhuku completed his primary and secondary education in Chipinge. He then completed his Bachelor of Law (Honours) degree in 1989 with a first-class pass at the University of Zimbabwe and went on to study for a post-graduate Bachelor of Laws (LLB) degree. Awarded a Beit Trust Fellowship to study law at Oxford University in the UK, he transferred after a term to study for the Master of Law (LLM) at the University of Cambridge on a Cambridge Commonwealth Trust Scholarship, completing with a first class in July 1994. He then returned to Zimbabwe for an 18-month break, during which time he joined the Friedrich Ebert-Stiftung, a German NGO, as a labour law consultant while at the same time teaching in the Law Faculty. In January 1996, he returned to the University of Cambridge to study for a PhD, which he successfully completed in December 1998. While still studying for his PhD, he accepted a permanent lecturership in the Law Faculty at the University of Zimbabwe. Since then, Madhuku has taught introduction to law, constitutional law, labour law, jurisprudence (legal theory), tax law, and banking law and has published extensively in these areas. He is currently Chair- person of the Department of Public Law in the Law Faculty. Dr Madhuku is very active in civil society work. He is one of the found- ers of the National Constitutional Assembly (NCA) and has been its National Chairperson since July 2001. The NCA is advocating for a new, democratic and people-driven constitution in Zimbabwe. He is married to Annamercy and they have three children, a daughter, Tendai, and two sons, Nyasha and Kuziyakwashe.

Contents

Acknowledgements Foreword

1What is Law? The concept of law: A definition The relationship between law and morality The relationship between law and justice What is a legal system? The purpose and function of law To do justice To preserve peace and order To enforce morality To protect the interests of the ruling class Two key elements of law: legal right and legal personality Legal right Legal personality

2of Law Sources Legislation Common law A brief history of Roman Dutch law Advantages of precedent Custom General custom African customary law Authoritative texts Law reports

3 Divisions of the Law Criminal law versus civil law Public law versus private law Substantive law versus procedural law

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xiii xv

1 1 3 4 6 6 7 7 8 10 10 10 11

13 13 15 18 24 25 25 26 32 33

36 36 39 40

CONTENTS

National law versus international law General law versus customary law Common law versus civil law Law (common law) versus equity

4Law-Making Process The Introduction: State organs and their powers The legislature (the law-makers) The executive The judiciary Other key organs The Attorney General The Comptroller and Auditor-General The Public Protector The process of law-making in Parliament Pre-bill stage Types of bills Gazetting of bills Passage of bills in Parliament The effect of Parliament’s failure to follow specified procedures Delegated legislation

5 The Structure of the Courts The division between criminal courts and civil courts Criminal courts Magistrates Courts Composition Jurisdiction The High Court Composition Jurisdiction The Supreme Court Composition Jurisdiction Courts-martial Police board of officers Prison courts

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40 41 41 41

43 43 44 46 47 48 48 49 49 49 50 51 51 52 55 57

61 61 61 62 62 63 64 64 66 67 67 67 68 68 68

CONTENTS

Children’s Courts Parliament sitting as a court over breach of parliamentary privileges Ordinary civil courts Magistrates Courts Jurisdiction Composition The High Court Composition Jurisdiction The Supreme Court Composition Jurisdiction Specialist courts Advantages of specialist courts Disadvantages of specialist courts Examples of specialist courts The Labour Court The Administrative Court The Administrative Court as the Water Court Special court for income tax appeals Local courts on customary law Small Claims Court

6The Legal Profession in Zimbabwe Introduction: The legal profession A divided or fused profession? The nature of the fused profession in Zimbabwe Admission as a legal practitioner Practical legal training after registration Discipline for professional misconduct The Law Society of Zimbabwe The Council for Legal Education Judges Who appoints judges? Qualifications for appointment as judges Compulsory retirement versus executive discretion to extend the term of office of a judge The removal of judges from office

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68 69

70 70 70 71 71 71 71 72 72 72 73 73 74 74 74 76 76 78 79 80

84 84 84 86 87 89 89 90 91 91 92 94 95

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