HEAL ZIMBABWE AND ANOTHER v MINISTER OF JUSTICE, LEGAL & PALIAMENTARY AFFAIRS AND OTHERS (36 of 2026) [2026] ZWHHC 22 (13 January 2026)

4 HH 36-26 HCH 2001/24 HEAL ZIMBABWE and HILTON CHIRONGA versus MINISTER OF JUSTICE, LEGAL & PALIAMENTARY AFFAIRS and ZIMBABWE HUMAN RIGHTS COMMISSION and PARLIAMENT OF ZIMBABWE and THE ATTORNEY GENERAL OF ZIMBABWE HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 19 June 2025 & 13 January 2026 Court Application for Constitutional Invalidity Mr T Biti, for the applicant Mrs T Musangwa, for the 1st respondent Mr S Hoko, for the 3rd respondent Mr R Matsikidze, for the 2nd respondent TAKUVA J: This is a Constitutional application seeking an order to declare constitutionally invalid the provisions of s 9(4) (a) of the Zimbabwe Human Rights Commission Act [Chapter 10:30], made in terms of s 171 (1) (c) of the Constitution read together with rule 107 of the High Court Rules 2021. FACTUAL BACKGROUND Heal Zimbabwe is a Human Rights organization that was set up to deal with the issues of National Peace and reconciliation and Healing, and has a specific interest in violence and political disturbances in the country. In May and June 2008, there was massive violence in Mashonaland Central, which resulted in many people being killed and others were tortured and severely assaulted. These events represent a massive breach of human rights including infringement of the right to life, right not to be subjected to torture and the right to human dignity. In April 2023, the Applicants in this matter brought a case HC2849/23 against the second Respondent and the National Peace and Reconciliation Commission seeking an order compelling the two bodies to investigate the instances of violence and torture which occurred during the 2008 runoff election in the Chaona area of Mashonaland West. However, the second Respondent in response to the investigations pleaded that it had no power to investigate the Chaona incident as a result of s 9(4)(a) of the Zimbabwe Human Rights Commission Act. The second Respondent argues that compelling it to investigate events which occurred prior to the 13th of February 2009, three years from the date of the alleged violations will be in contravention of s 9(4) of the Act. FIRST APPLICANT’S CASE The first Applicant is the Executive Director of Heal Zimbabwe, with the capacity to sue, to be sued. The first Applicant seeks an order for constitutional invalidity of the provisions of s 9(4)(a) of the Zimbabwe Human Rights Commission Act [Chapter 10;30]. The Applicant argues that s 9(4) (a) is ultra vires the provisions of s 243 of the Constitution of Zimbabwe and is a violation of the doctrine of Constitutional legality. The Applicant submits this provision is in breach of the right to truth, access to information guaranteed by s 62 of the Constitution and S56 (1), right to equal protection and benefit of the law. The Applicant’s court application is based on two constitutional principles: a) In terms of s 2 of the Constitution, which provides that the Constitution is the supreme law and any act or conduct inconsistent with the same is invalid to that extend. b) The doctrine of constitutional legality provides that the exercise of power must be governed by law and that any actions or activity that are not supported by law are ultra vires. Additionally s 53 of the Constitution clearly stipulates that no person may be subjected to physical or psychological torture or to cruel inhuman, or degrading treatment or punishment. The Applicant’s argument is on the basis that the functions of the Zimbabwe Human Rights Commission are set up in s 242 of the Constitution and it is clear from s 243 of the Constitution that there is no provision of limitation on the subject matter to be investigated, the period to be investigated and the time in which a complaint can be made. However, s 9(4) (a) the Zimbabwe Human Rights Commission Act limits the wide powers that are stipulated in Section 243 of the Constitution. Section 9(4) (a) introduces extinctive periods of prescription, that no individual has a right to make a complaint in respect of any issue that occurred earlier than 13th February 2009. First Applicant argues that s 9(4) (a) is ultra vires the wide powers of the commission given in s 243 of the Constitution, which provides that the Zimbabwe Human Rights Commission has the function to investigate the conduct of any authority or person, where it is alleged that any of the human rights and freedoms set out in the Declaration of Rights has been violated by that authority or person. Thus, the legislature had no power to restrict the wide and unrestrained power of the Commission set out in s 243 of the Constitution. Additionally, the first Applicant relies on s 44 of the Constitution which places an obligation on every person including every institution and agency of the government at every level to protect, promote and fulfill the rights and freedoms as set out in the Constitution. The first Applicant seeks closure on the events that took place at Chaona and is of the opinion that the failure to carry out this investigation by second Respondent is an infringement of the right to equal protection and benefit of the law as provided by Section 56(1) of the Constitution. Furthermore, the Applicant insisted that he has locus standi to bring this application on the basis that they has an interest in ensuring that the truth comes to light on the events that took place in Chaona and that it is in the public interest. The Applicant also has the right and duty to protect the Constitution. Therefore, the Applicant contends that the events at Chaona require investigations and seeks sought an order compelling the Zimbabwe Human Rights Commission and the National peace and Reconciliation Commission to commence investigations. Second Applicant, Hilton Chironga, a Zimbabwean male adult, resident of the Chaona areas of Mashonaland West Province, who was alleged to have been a victim of torture and violence had brought the application as a public interest litigation. However, he withdrew his court application. SECOND RESPONDENT’S CASE The second Respondent is the Zimbabwe Human Rights Commission, a Constitutional body set up in terms of s 242 of the Constitution. The Commission has the duty of monitoring, assessment and observance of human rights and complaints from the members of the public. The second Respondent intends to oppose the application on the grounds that The second Respondent argument is that it had no power to investigate the Chaona incident and that compelling to investigate instances which occurred prior to 13th of February 2009, way after 3years from the date of the alleged violations will be in contravention of provisions of s 9 (4) (a) of the Act. The second Respondent is of the opinion that it is the correct position of the law, particularly on the constitutionality of s 9 (4)(a) of Zimbabwe Human Rights Commission Act. Section 9(4) (a) entails the jurisdiction of Commission to conduct investigations. It stipulates that the Commission shall not investigate a complaint unless the complaint is made within three years from the date on which the action or omission that occurred earlier than the 13 February 2009. The second Respondent submits that he will abide by the Court ‘s decision. THIRD RESPONDENT’S CASE Third Respondent intends to oppose the application. Third Respondent is the Parliament of Zimbabwe, which is the third arm of the state duly set up in terms of s 114 of the Constitution. In this matter the Parliament is merely cited for its interest; thus, there’s no relief and no costs claimed against Parliament. The third Respondent argues that there is no declaration of an infringement of a right in the relief sought. Third Respondent submits that the nature of the application by Applicant does not contain a declaration that there has been an infringement of fundamental right in its relief as required by the Constitutional Court thus, Applicant’s application only sought for a declaration invalidity of a law. The third Respondent further alleges that the Applicant failed to properly place his application before the court on the basis that the Applicant ought to have made an application for enforcement of rights on alleged infringement of s 61(1) (a), 62(10 and 56(1) in terms of s 85 of the Constitution and not s 2(1) of the Constitution. Additionally, first Applicant made a fatally defective application because he did not properly plead locus standi and failed to demonstrate how it has a direct and substantial interest in the issues of the matter. THE ISSUES FOR DETERMINATION 1.Whether the applicant possess the requisite locus standi to challenge the constitutional validity of the impugned law 2.Whether the Application was properly placed before the court. 3.Whether the application was supposed to be made in terms of section 85 of the Constitution? 4.Whether Section 9(4) (a) of the Zimbabwe Human Rights Act is unconstitutional? THE LAW AND LEGAL ANAYLSIS Whether the applicant possess the requisite locus standi to challenge the constitutional validity of the impugned law. In terms of the common law, legal standing is confined to persons who can demonstrate a direct and substantial interest in a matter. In the case of Mapungu v Minister of Justice, Legal and Parliamentary Affairs and Others CCZ (supra), it was held that the test for legal standing in constitutional matters is not as restrictive but significantly broader. The Applicant pointed out that it is acting in the “public interest,” however, it clearly seeks to compel the commission to investigate the incident which occurred in Chaona area. This is a clear indication that, Heal Zimbabwe ought to have used a class action in terms of s 85(1)(c) of the Constitution. In this case, the certain class and group of people are victims of the violence in the Chaona area thus, Applicant is acting in the interest of the victims of political violence in Chaona and not the general public. The Applicant in casu is non-suited as they failed to show a substantial interest in the cause so as to show that they are acting in public interest. 2.Whether the Application was properly placed before the court. The present application was formulated on the basis of the principle defined in the case of Harare Residence Association & ors v The Minister of Local Government Public works and National Housing CCZ3/24. It was held that direct challenges to assert the supremacy of the Constitution must be open to all citizens who are civic minded and who wishe to see the rule of law prevail. The Applicant argued that the Application was brought in terms of Section 2(1) of the Constitution which provides that: “2 Supremacy of the Constitution (1) The Constitution is the Supreme Law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.’’ It was held that the Supremacy clause creates a cause of action as s 85 (1) of the Constitution, s 2 may not have the explicit language of s85 that anyone whose fundamental right is violated, is entitled to approach a court for appropriate relief, it expressly declares that any law custom, practice or conduct inconsistent with the Constitution is void. Thus, anyone who can show some connection to the impugned law, is entitled to approach a court and have such law custom, practice or conduct declared invalid. 3.Whether the application was supposed to be made in terms of section 85 of the Constitution? The Applicant ought to have made the application to enforce a fundamental right by seeking a declaration of constitutional invalidity in terms of s85 of the Constitution. In the case of Mudzuru and Another vs Minister of Justice, Legal and Parliamentary Affairs and Others CCZ 12/15, it was held that: “The right to approach a court directly seeking appropriate relief in cases arising from alleged infringement of a fundamental human right or freedom enshrined in Chapter 4 of the Constitution is given to the persons specified under s 85(1) of the Constitution.” Additionally, in the case of Mujuru vs President of Zimbabwe and Others CCZ 8/18, it was held that: “If the complaint were on the constitutionality of the Act, the Applicant could only have approached this court in terms of s85(1) of the Constitution and allege a breach of one or other of her rights.” From the facts of the matter, it is clear that Applicant is seeking to protect the fundamental rights in Chapter 4 of the Constitution, which are in the Declaration of Rights, by seeking to have s 9(4)(a) of the Act declared unconstitutional. Section 85 of the Constitution allows any party to access the court on questions of violation of fundamental human rights. The present application was instituted in terms of s 2 of the Constitution however, s 2 is substantive law with no stand-alone procedural route. The procedural route to enforce the Supremacy of the Constitution is found in s 85 of the Constitution. Thus, in order to have a law declared unconstitutional it is when one is enforcing the fundamental rights. In the case of Harare Residence Association & ors v The Minister of Local Government Public works and National Housing CCZ3/24: “It is correct that, in terms of s 2 of the Constitution, any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency. Section 2 of the Constitution, however, is but a substantive provision that does not bestow jurisdiction by itself on any court to declare any law invalid for being at variance with the Constitution.” It is my view that the complaint by the Applicant on the constitutional validity of s 9(4) (a) of the Act, should have been made in terms of s 85 (1) (a) of the Constitution, alleging of one or more of the constitutional rights. Therefore, the application was not properly placed before this Court. DISPOSITION The application is improperly before the court in that it should have been brought in terms of s 85(1) of the Constitution instead of s 2 of the Constitution. ORDER The Application be and id hereby is struck off with no order as to costs. Takuva J:……………………………………. Tendai Biti Law, applicants’ legal practitioners Civil Division of the Attorney General, first and fourth respondents’ legal practitioners Matsikidze Attorneys-At Law, second respondents’ legal practitioners Chihambakwe, Mutizwa and Partners, third respondents’ legal practitioners 4 HH 36-26 HCH 2001/24 4 HH 36-26 HCH 2001/24 HEAL ZIMBABWE and HILTON CHIRONGA versus MINISTER OF JUSTICE, LEGAL & PALIAMENTARY AFFAIRS and ZIMBABWE HUMAN RIGHTS COMMISSION and PARLIAMENT OF ZIMBABWE and THE ATTORNEY GENERAL OF ZIMBABWE HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 19 June 2025 & 13 January 2026 Court Application for Constitutional Invalidity Mr T Biti, for the applicant Mrs T Musangwa, for the 1st respondent Mr S Hoko, for the 3rd respondent Mr R Matsikidze, for the 2nd respondent TAKUVA J: This is a Constitutional application seeking an order to declare constitutionally invalid the provisions of s 9(4) (a) of the Zimbabwe Human Rights Commission Act [Chapter 10:30], made in terms of s 171 (1) (c) of the Constitution read together with rule 107 of the High Court Rules 2021. FACTUAL BACKGROUND Heal Zimbabwe is a Human Rights organization that was set up to deal with the issues of National Peace and reconciliation and Healing, and has a specific interest in violence and political disturbances in the country. In May and June 2008, there was massive violence in Mashonaland Central, which resulted in many people being killed and others were tortured and severely assaulted. These events represent a massive breach of human rights including infringement of the right to life, right not to be subjected to torture and the right to human dignity. In April 2023, the Applicants in this matter brought a case HC2849/23 against the second Respondent and the National Peace and Reconciliation Commission seeking an order compelling the two bodies to investigate the instances of violence and torture which occurred during the 2008 runoff election in the Chaona area of Mashonaland West. However, the second Respondent in response to the investigations pleaded that it had no power to investigate the Chaona incident as a result of s 9(4)(a) of the Zimbabwe Human Rights Commission Act. The second Respondent argues that compelling it to investigate events which occurred prior to the 13th of February 2009, three years from the date of the alleged violations will be in contravention of s 9(4) of the Act. FIRST APPLICANT’S CASE The first Applicant is the Executive Director of Heal Zimbabwe, with the capacity to sue, to be sued. The first Applicant seeks an order for constitutional invalidity of the provisions of s 9(4)(a) of the Zimbabwe Human Rights Commission Act [Chapter 10;30]. The Applicant argues that s 9(4) (a) is ultra vires the provisions of s 243 of the Constitution of Zimbabwe and is a violation of the doctrine of Constitutional legality. The Applicant submits this provision is in breach of the right to truth, access to information guaranteed by s 62 of the Constitution and S56 (1), right to equal protection and benefit of the law. The Applicant’s court application is based on two constitutional principles: a) In terms of s 2 of the Constitution, which provides that the Constitution is the supreme law and any act or conduct inconsistent with the same is invalid to that extend. b) The doctrine of constitutional legality provides that the exercise of power must be governed by law and that any actions or activity that are not supported by law are ultra vires. Additionally s 53 of the Constitution clearly stipulates that no person may be subjected to physical or psychological torture or to cruel inhuman, or degrading treatment or punishment. The Applicant’s argument is on the basis that the functions of the Zimbabwe Human Rights Commission are set up in s 242 of the Constitution and it is clear from s 243 of the Constitution that there is no provision of limitation on the subject matter to be investigated, the period to be investigated and the time in which a complaint can be made. However, s 9(4) (a) the Zimbabwe Human Rights Commission Act limits the wide powers that are stipulated in Section 243 of the Constitution. Section 9(4) (a) introduces extinctive periods of prescription, that no individual has a right to make a complaint in respect of any issue that occurred earlier than 13th February 2009. First Applicant argues that s 9(4) (a) is ultra vires the wide powers of the commission given in s 243 of the Constitution, which provides that the Zimbabwe Human Rights Commission has the function to investigate the conduct of any authority or person, where it is alleged that any of the human rights and freedoms set out in the Declaration of Rights has been violated by that authority or person. Thus, the legislature had no power to restrict the wide and unrestrained power of the Commission set out in s 243 of the Constitution. Additionally, the first Applicant relies on s 44 of the Constitution which places an obligation on every person including every institution and agency of the government at every level to protect, promote and fulfill the rights and freedoms as set out in the Constitution. The first Applicant seeks closure on the events that took place at Chaona and is of the opinion that the failure to carry out this investigation by second Respondent is an infringement of the right to equal protection and benefit of the law as provided by Section 56(1) of the Constitution. Furthermore, the Applicant insisted that he has locus standi to bring this application on the basis that they has an interest in ensuring that the truth comes to light on the events that took place in Chaona and that it is in the public interest. The Applicant also has the right and duty to protect the Constitution. Therefore, the Applicant contends that the events at Chaona require investigations and seeks sought an order compelling the Zimbabwe Human Rights Commission and the National peace and Reconciliation Commission to commence investigations. Second Applicant, Hilton Chironga, a Zimbabwean male adult, resident of the Chaona areas of Mashonaland West Province, who was alleged to have been a victim of torture and violence had brought the application as a public interest litigation. However, he withdrew his court application. SECOND RESPONDENT’S CASE The second Respondent is the Zimbabwe Human Rights Commission, a Constitutional body set up in terms of s 242 of the Constitution. The Commission has the duty of monitoring, assessment and observance of human rights and complaints from the members of the public. The second Respondent intends to oppose the application on the grounds that The second Respondent argument is that it had no power to investigate the Chaona incident and that compelling to investigate instances which occurred prior to 13th of February 2009, way after 3years from the date of the alleged violations will be in contravention of provisions of s 9 (4) (a) of the Act. The second Respondent is of the opinion that it is the correct position of the law, particularly on the constitutionality of s 9 (4)(a) of Zimbabwe Human Rights Commission Act. Section 9(4) (a) entails the jurisdiction of Commission to conduct investigations. It stipulates that the Commission shall not investigate a complaint unless the complaint is made within three years from the date on which the action or omission that occurred earlier than the 13 February 2009. The second Respondent submits that he will abide by the Court ‘s decision. THIRD RESPONDENT’S CASE Third Respondent intends to oppose the application. Third Respondent is the Parliament of Zimbabwe, which is the third arm of the state duly set up in terms of s 114 of the Constitution. In this matter the Parliament is merely cited for its interest; thus, there’s no relief and no costs claimed against Parliament. The third Respondent argues that there is no declaration of an infringement of a right in the relief sought. Third Respondent submits that the nature of the application by Applicant does not contain a declaration that there has been an infringement of fundamental right in its relief as required by the Constitutional Court thus, Applicant’s application only sought for a declaration invalidity of a law. The third Respondent further alleges that the Applicant failed to properly place his application before the court on the basis that the Applicant ought to have made an application for enforcement of rights on alleged infringement of s 61(1) (a), 62(10 and 56(1) in terms of s 85 of the Constitution and not s 2(1) of the Constitution. Additionally, first Applicant made a fatally defective application because he did not properly plead locus standi and failed to demonstrate how it has a direct and substantial interest in the issues of the matter. THE ISSUES FOR DETERMINATION 1.Whether the applicant possess the requisite locus standi to challenge the constitutional validity of the impugned law 2.Whether the Application was properly placed before the court. 3.Whether the application was supposed to be made in terms of section 85 of the Constitution? 4.Whether Section 9(4) (a) of the Zimbabwe Human Rights Act is unconstitutional? THE LAW AND LEGAL ANAYLSIS Whether the applicant possess the requisite locus standi to challenge the constitutional validity of the impugned law. In terms of the common law, legal standing is confined to persons who can demonstrate a direct and substantial interest in a matter. In the case of Mapungu v Minister of Justice, Legal and Parliamentary Affairs and Others CCZ (supra), it was held that the test for legal standing in constitutional matters is not as restrictive but significantly broader. The Applicant pointed out that it is acting in the “public interest,” however, it clearly seeks to compel the commission to investigate the incident which occurred in Chaona area. This is a clear indication that, Heal Zimbabwe ought to have used a class action in terms of s 85(1)(c) of the Constitution. In this case, the certain class and group of people are victims of the violence in the Chaona area thus, Applicant is acting in the interest of the victims of political violence in Chaona and not the general public. The Applicant in casu is non-suited as they failed to show a substantial interest in the cause so as to show that they are acting in public interest. 2.Whether the Application was properly placed before the court. The present application was formulated on the basis of the principle defined in the case of Harare Residence Association & ors v The Minister of Local Government Public works and National Housing CCZ3/24. It was held that direct challenges to assert the supremacy of the Constitution must be open to all citizens who are civic minded and who wishe to see the rule of law prevail. The Applicant argued that the Application was brought in terms of Section 2(1) of the Constitution which provides that: “2 Supremacy of the Constitution (1) The Constitution is the Supreme Law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.’’ It was held that the Supremacy clause creates a cause of action as s 85 (1) of the Constitution, s 2 may not have the explicit language of s85 that anyone whose fundamental right is violated, is entitled to approach a court for appropriate relief, it expressly declares that any law custom, practice or conduct inconsistent with the Constitution is void. Thus, anyone who can show some connection to the impugned law, is entitled to approach a court and have such law custom, practice or conduct declared invalid. 3.Whether the application was supposed to be made in terms of section 85 of the Constitution? The Applicant ought to have made the application to enforce a fundamental right by seeking a declaration of constitutional invalidity in terms of s85 of the Constitution. In the case of Mudzuru and Another vs Minister of Justice, Legal and Parliamentary Affairs and Others CCZ 12/15, it was held that: “The right to approach a court directly seeking appropriate relief in cases arising from alleged infringement of a fundamental human right or freedom enshrined in Chapter 4 of the Constitution is given to the persons specified under s 85(1) of the Constitution.” Additionally, in the case of Mujuru vs President of Zimbabwe and Others CCZ 8/18, it was held that: “If the complaint were on the constitutionality of the Act, the Applicant could only have approached this court in terms of s85(1) of the Constitution and allege a breach of one or other of her rights.” From the facts of the matter, it is clear that Applicant is seeking to protect the fundamental rights in Chapter 4 of the Constitution, which are in the Declaration of Rights, by seeking to have s 9(4)(a) of the Act declared unconstitutional. Section 85 of the Constitution allows any party to access the court on questions of violation of fundamental human rights. The present application was instituted in terms of s 2 of the Constitution however, s 2 is substantive law with no stand-alone procedural route. The procedural route to enforce the Supremacy of the Constitution is found in s 85 of the Constitution. Thus, in order to have a law declared unconstitutional it is when one is enforcing the fundamental rights. In the case of Harare Residence Association & ors v The Minister of Local Government Public works and National Housing CCZ3/24: “It is correct that, in terms of s 2 of the Constitution, any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency. Section 2 of the Constitution, however, is but a substantive provision that does not bestow jurisdiction by itself on any court to declare any law invalid for being at variance with the Constitution.” It is my view that the complaint by the Applicant on the constitutional validity of s 9(4) (a) of the Act, should have been made in terms of s 85 (1) (a) of the Constitution, alleging of one or more of the constitutional rights. Therefore, the application was not properly placed before this Court. DISPOSITION The application is improperly before the court in that it should have been brought in terms of s 85(1) of the Constitution instead of s 2 of the Constitution. ORDER The Application be and id hereby is struck off with no order as to costs. Takuva J:……………………………………. Tendai Biti Law, applicants’ legal practitioners Civil Division of the Attorney General, first and fourth respondents’ legal practitioners Matsikidze Attorneys-At Law, second respondents’ legal practitioners Chihambakwe, Mutizwa and Partners, third respondents’ legal practitioners