Opinion / Columnist
Courts are not empowered to adjudicate hypothetical or abstract disputes
2 hrs ago |
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There been a flurry of excitable Court challenges against CAB3 and yet what is striking is how the law is still only a proposed Bill. Thus, a court challenge at this stage is premature and most likely legally unsustainable. Constitutional Amendment Bill No. 3 remains a proposed measure with no binding legal force until it is assented to by the President.
In terms of the constitutional legislative process, a bill only acquires the status of law upon presidential assent; prior to that, it is incapable of creating enforceable rights or obligations. This makes the current noise over something that doesn't as yet exist at law strange.
The courts are not empowered to adjudicate hypothetical or abstract disputes. Any challenge mounted now would be speculative, as the final form of the Bill is not even guaranteed.
The President still retains the constitutional discretion to withhold assent or refer the Bill back for reconsideration, meaning the impugned provisions may never come into effect.
Litigation at this stage is therefore being directed at a contingent and uncertain outcome.
It is a settled principle that courts avoid deciding matters that are not ripe for determination. The doctrine of ripeness requires a concrete dispute grounded in an existing legal instrument.
Until the Bill is enacted, there is no operative law to challenge and no justiciable controversy for the court to resolve. This betrays the politically emotional nature of most of the challenges.
Accordingly, any application brought before the President's assent would be dismissed as premature. The proper course is to await the legislative process to its conclusion. Should the Bill be enacted into law, any aggrieved party would then have a competent and ripe cause of action to approach the courts.
Mirai chitange chabikwa chaibva instead of putting the cart before the horse. This is how people end up accusing Courts of corruption when they ultimately lose there.
In terms of the constitutional legislative process, a bill only acquires the status of law upon presidential assent; prior to that, it is incapable of creating enforceable rights or obligations. This makes the current noise over something that doesn't as yet exist at law strange.
The courts are not empowered to adjudicate hypothetical or abstract disputes. Any challenge mounted now would be speculative, as the final form of the Bill is not even guaranteed.
The President still retains the constitutional discretion to withhold assent or refer the Bill back for reconsideration, meaning the impugned provisions may never come into effect.
Litigation at this stage is therefore being directed at a contingent and uncertain outcome.
It is a settled principle that courts avoid deciding matters that are not ripe for determination. The doctrine of ripeness requires a concrete dispute grounded in an existing legal instrument.
Until the Bill is enacted, there is no operative law to challenge and no justiciable controversy for the court to resolve. This betrays the politically emotional nature of most of the challenges.
Accordingly, any application brought before the President's assent would be dismissed as premature. The proper course is to await the legislative process to its conclusion. Should the Bill be enacted into law, any aggrieved party would then have a competent and ripe cause of action to approach the courts.
Mirai chitange chabikwa chaibva instead of putting the cart before the horse. This is how people end up accusing Courts of corruption when they ultimately lose there.
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