1 SOURCES OF ZIM CAL

Sources of Constitutional Law

Definition: Sources of law refer to the places where legal rules governing different branches of law can be found, focusing on constitutional law here.
Types of Sources:
- Authoritative Sources: Have commanding force, binding to courts.
- Persuasive Sources: Influence decisions but are not binding.

Supreme Law: Section 2 states it is the supreme law of Zimbabwe.
International Law: Section 46(1)(c) makes it mandatory for courts to consider international law in constitutional matters.
Foreign Law: Section 46(1)(e) allows courts to refer to foreign law when interpreting the Declaration of Rights.
Common Law & Customary Law: Section 46(2) discusses the development of common law and customary law in line with the Constitution. Sections 326 and 327 address customary international law and treaties.

Definition: Written law enacted by authoritative bodies, such as Parliament.
Framework: The Constitution provides the framework for legislation, which must comply with constitutional principles.
Hierarchy of Laws: Example pieces must be noted across different levels of government (national, provincial, local).

Definition: Law not codified in legislation; includes historical Roman-Dutch law, interpreting it through case law.
Influence of English Law: Courts must consider English common law.
Development Requirement: Crafts law to be aligned with constitutional values (Section 46).

Definition: Traditions and usages of indigenous African people, divided into two categories:
- Official African Customary Law: Documented laws, often influenced by Western perspectives, limiting flexibility.
- Living Customary Law: Evolutionary practices within communities that better capture the true essence of customary law.
Constitutional Recognition: Sections 46, 163, 174, and 280 acknowledge the importance of African indigenous law alongside common law.

Function: Application of constitutional principles through court decisions.
Judicial Precedent: Lower courts follow decisions of higher courts, emphasizing the hierarchy (e.g., Supreme Court decisions bind lower courts).
Ratio Decidendi: The reason for a decision that establishes precedent; must be identified by analyzing court decisions.
Obiter Dictum: Remarks made in passing that do not create binding precedent but may offer persuasive insights.

Importance: Courts must account for international law in constitutional interpretation (Sections 326, 327).
Human Rights: International conventions play a vital role in shaping constitutional jurisprudence, particularly concerning human rights protections.

Usage: Considered under discretion per Section 46, particularly in interpreting the Declaration of Rights.

Influence: Courts often cite scholarly opinions from books and journals in legal reasoning.

Impact: Not detailed in the text, but could include various guiding documents relevant to constitutional interpretation.

These authoritative and persuasive sources collectively establish the interpretation and application of Zimbabwe’s Constitution.