Judicial Review of Delegated Legislation in Zimbabwe: Lessons from South Africa

Abstract

The purpose of this article is to critically review the judicial approach to delegated legislation in Zimbabwe. One of the firmly entrenched principles in constitutional law is that legislative power cannot be delegated. The limitation on the legislature’s delegation of its primary law-making powers is based on the doctrine of non-delegation. The non-delegation doctrine commands that the legislature alone exercise law-making power. This article examines the extent to which the Zimbabwean courts have enforced the non-delegation doctrine when reviewing executive law-making under the Presidential Powers (Temporary Measures) Act. The courts have held that the Act is constitutional even though it assigns Parliament’s primary law-making to the executive. The article used a doctrinal research methodology to analyse existing primary and secondary sources. It also included a desk review, which employed a comparative methodology. The comparative analysis focused on South Africa, selected for its judiciary’s ability to exert stronger oversight over the delegation of legislative authority to the executive. The South African courts have defined the limits to which legislative powers may be delegated distinguishing between delegation to make subordinate legislation and assigning primary law-making power to another body. This article aims to contribute to the existing literature on the nature and extent of constitutional limitations on the delegation of legislative powers. There is a conspicuous dearth of scholarly literature examining judicial oversight of delegated legislation in Zimbabwe, and this study addresses that gap.