Introduction
This essay examines the enduring hybrid nature of Zimbabwean common law, which remains influenced by both Roman Dutch law and English law despite the promulgation of the 2013 Constitution. Zimbabwe’s legal system reflects a historical amalgamation rooted in colonial legacies, where Roman Dutch law was introduced by the Dutch settlers via the Cape Colony and English law through British colonial administration. The 2013 Constitution marked a significant turning point in Zimbabwe’s legal and political landscape, aimed at addressing past injustices and redefining national identity. However, this essay argues that the fundamental structure of Zimbabwean common law has not undergone a radical transformation, maintaining its dual heritage. The discussion will explore the historical development of this hybridity, the impact (or lack thereof) of the 2013 Constitution on the common law framework, and the practical implications of this continued duality in contemporary Zimbabwean jurisprudence. Through a critical lens, this essay will assess whether this hybrid system serves the needs of modern Zimbabwe or poses challenges in legal coherence and accessibility.
Historical Foundations of Zimbabwean Common Law
The roots of Zimbabwean common law can be traced back to the colonial period, specifically to the application of Roman Dutch law as the foundational legal system in the territory then known as Southern Rhodesia. Roman Dutch law, a blend of Roman law principles and Dutch customary practices, was imported through the Cape Colony’s legal framework in the 19th century under the influence of the British South Africa Company (Goldblatt, 1972). This system provided the basis for property law, contract law, and delict (tort) in the region. However, with the formal establishment of British colonial rule in 1890, English law began to exert significant influence, particularly in areas such as criminal law and procedural rules, due to the administrative preferences of British officials (Feltoe, 2004).
This dual legal heritage was formalised through statutes and judicial precedents, creating a hybrid system where Roman Dutch law remained the default for private law matters, while English law dominated public law and criminal justice frameworks. For instance, the High Court of Zimbabwe often relied on English common law principles in the absence of local precedents, while Roman Dutch texts, such as the works of Voet and Grotius, were consulted for civil law disputes (Madhuku, 2010). This historical synthesis has entrenched a legal dualism that persists in Zimbabwean jurisprudence, even as the country transitioned to independence in 1980.
The 2013 Constitution: Intentions and Limitations
The adoption of the 2013 Constitution represented a landmark moment in Zimbabwe’s history, aimed at addressing the shortcomings of the Lancaster House Constitution of 1979 and promoting a more inclusive legal framework. The Constitution introduced a robust Bill of Rights, provisions for devolution, and mechanisms for transitional justice, reflecting a desire to break from the colonial past (Chigwata, 2015). However, while these changes signalled a transformative intent, the Constitution did not explicitly address the foundational principles of Zimbabwean common law, nor did it mandate a departure from the hybrid system of Roman Dutch and English law.
Section 46 of the 2013 Constitution, for instance, requires courts to interpret the Bill of Rights in a manner that promotes human rights, taking into account international law and foreign case law. While this provision allows for broader influences, it does not displace the established common law principles rooted in Roman Dutch and English traditions. Moreover, Section 192 affirms the continuation of existing laws unless they are inconsistent with the Constitution, thereby preserving the pre-existing legal framework (Government of Zimbabwe, 2013). Critics argue that this omission represents a missed opportunity to redefine the common law in a manner that reflects indigenous values or a more unified legal identity (Mavedzenge, 2019). Consequently, the hybrid nature of Zimbabwean common law remains largely unaffected by the constitutional reforms of 2013.
Practical Implications of Legal Hybridity
The persistence of a hybrid legal system in Zimbabwe has both advantages and challenges in the contemporary context. On one hand, the dual influence of Roman Dutch and English law provides a rich jurisprudential foundation, allowing Zimbabwean courts to draw from a wide array of legal principles and precedents. For instance, in commercial disputes, the Roman Dutch principles of contract law offer a systematic approach to obligations, while English law precedents provide flexibility in evolving areas such as intellectual property rights (Feltoe, 2004). This adaptability can be seen in cases like Zimbabwe Banking Corporation Ltd v Pyramid Motor Corporation (1985), where the court blended elements of both systems to address complex contractual issues.
On the other hand, this hybridity poses significant challenges in terms of legal coherence and accessibility. The reliance on foreign legal principles often alienates segments of the population unfamiliar with these systems, particularly in rural areas where customary law holds greater relevance (Madhuku, 2010). Furthermore, the lack of codification or harmonisation between Roman Dutch and English law can lead to inconsistent judicial decisions, as judges may prioritise one system over the other based on personal training or preference. This was evident in debates surrounding the application of strict liability in delict cases, where Roman Dutch principles sometimes clashed with English tort law approaches (Mavedzenge, 2019). Therefore, while the hybrid system offers diversity, it also complicates the administration of justice in a post-colonial context.
Critical Evaluation: Does Hybridity Serve Modern Zimbabwe?
Arguably, the continued hybridity of Zimbabwean common law raises questions about its suitability for a modern, independent state. While the 2013 Constitution prioritises human rights and democratic values, the underlying legal framework remains anchored in colonial legacies that may not fully resonate with Zimbabwe’s socio-cultural context. Indeed, some scholars advocate for a greater integration of customary law into the common law system to reflect indigenous values, as seen in countries like South Africa, where customary law enjoys constitutional recognition (Chigwata, 2015). However, such a shift would require extensive legal reform and judicial training, resources that Zimbabwe currently struggles to mobilise.
Moreover, the hybrid system’s reliance on foreign precedents can hinder the development of a distinctly Zimbabwean jurisprudence. Although Section 46 of the Constitution encourages courts to consider international law, the dominance of English and Roman Dutch principles often overshadows local innovation. Nevertheless, there is potential for gradual evolution, as Zimbabwean judges increasingly cite regional African court decisions, suggesting a slow but progressive departure from colonial legal traditions (Mavedzenge, 2019). This tension between historical continuity and modern transformation lies at the heart of Zimbabwe’s legal identity.
Conclusion
In conclusion, Zimbabwean common law remains a hybrid of Roman Dutch and English law, even with the advent of the 2013 Constitution. While the Constitution introduced significant reforms in human rights and governance, it did not fundamentally alter the dual legal heritage that defines the country’s common law system. This hybridity, rooted in colonial history, offers both strengths in terms of jurisprudential diversity and weaknesses in terms of coherence and relevance to Zimbabwe’s post-colonial context. The practical implications reveal a system that, while adaptable, struggles with accessibility and consistency. Looking forward, there is a need for critical reflection on whether this hybrid framework serves the aspirations of modern Zimbabwe or whether a more integrated, indigenous approach is required. Ultimately, the coexistence of these legal traditions underscores the complexity of crafting a legal identity in a post-colonial state, a challenge that Zimbabwe must navigate with both caution and creativity.
References
- Chigwata, T. (2015) The Role of Traditional Leaders in Zimbabwe: Are They Still Relevant? Law, Democracy & Development, 19, pp. 69-90.
- Feltoe, G. (2004) A Guide to Zimbabwean Criminal Law. Harare: Legal Resources Foundation.
- Goldblatt, B. (1972) The Conflict of Laws in Southern Rhodesia. Salisbury: University of Rhodesia Press.
- Government of Zimbabwe (2013) Constitution of Zimbabwe Amendment (No. 20) Act, 2013. Harare: Government Printers.
- Madhuku, L. (2010) An Introduction to Zimbabwean Law. Harare: Weaver Press.
- Mavedzenge, J. (2019) The Zimbabwean Constitutional Court as a Transformative Court: Prospects and Challenges. South African Journal on Human Rights, 35(2), pp. 123-145.
