QUESTION

You board a bus from Harare to Vic Falls. Viola and Monica are involved in an argument over law. You
overheard Monica saying, "judicial precedent is the best source of law in Zimbabwe." After realising that
you are one of the students at Trust Academy studying Law, they approach you for an advice. Advice
them [25]

Advice on Judicial Precedent as a Source of Law in Zimbabwe

In Zimbabwe, as in many common law jurisdictions, judicial precedent (also known as stare decisis) plays
an important role in the development and application of the law. It refers to the principle that courts
should follow previous decisions (precedents) when making rulings in similar cases. This principle
ensures consistency, stability, and predictability in the legal system. According to R Kumar he described
Judicial precedent as" the process whereby judges follow previously decided cases where the facts are
of sufficient similarity". The doctrine of judicial precedent involves an application of the principle of
stare decisis, to stand by the decided.

To commence with, I have to make the both Viola and Monica understand the principles and then
advice them. First there is need to understand Judicial Precedent, it is based on the decisions made by
higher courts that are binding on lower courts within the same jurisdiction. In Zimbabwe, judicial
precedents primarily come from the Supreme Court, the High Court and lower courts, with the Supreme
Court's decisions holding the highest authority. Binding precedents occurs when a higher court makes a
ruling that decision binds lower courts in future cases that have similar facts or legal issues. The lower
courts must follow the higher court’s judgment unless it can be demonstrated that the facts or legal
issue are sufficiently different. In Zimbabwe, judicial precedent is a significant source of law but it is not
necessarily the sole source. Sources of law in Zimbabwe are as follows, The Constitution, as the supreme
law of the land, the Constitution takes precedence over all other sources of law. Any law, including
judicial decisions must be consistent with the Constitution. There is also Statute Law which comprises of
laws passed by Parliament, such as the Criminal Law Act, take precedence over judicial precedents if
there is a conflict between the two. The last source of law is Common Law and Customary Law, the
common law system, which judicial precedents are part of, continues to be a primary source of law in
Zimbabwe alongside customary law especially in matters related to traditional practices and norms.
Judicial precedent is however an essential tool for interpreting and applying statutory law and the
Constitution. Courts may rely on precedents to clarify ambiguous statutes, interpret constitutional
provisions and fill in gaps where the law is silent.

Secondly there is Persuasive precedents. It is when decisions made by courts in other jurisdictions or by
lower courts may not be binding but they can be persuasive. These precedents are not mandatory but
may influence a judge's decision-making process.
Monica’s statement that "judicial precedent is the best source of law in Zimbabwe" is partially correct
but overly simplistic. While judicial precedent is indeed a significant source of law, it is not the sole
source. The Constitution, statute law, and customary law all play important roles in the legal framework
of Zimbabwe. Judicial Precedents from the Supreme Court are crucial, as they establish binding
authority for lower courts. However, the principle of stare decisis allows courts to depart from previous
decisions if they are convinced that those decisions were incorrect or no longer serve the interests of
justice. For example, if a Supreme Court decision from the past is inconsistent with the Constitution or
current societal values, a judge may choose not to follow it. Judicial Precedent has its limitations, its
subject to evolution and reinterpretation. Over time, courts may alter or overturn precedents in
response to changes in social attitudes, public policy or legal principles. For example, the interpretation
of constitutional rights may evolve as society progresses. Thus, judicial precedent is not an unchanging
best source but one that is dynamic and responsive to societal changes.

Viola may argue that other sources of law such as statutes or the Constitution, could be more important
than judicial precedents in Zimbabwe. This argument is valid because the Constitution is supreme and
any judicial precedent that contradicts constitutional provisions can be overruled by the Constitutional
Court. Statutory law passed by Parliament is also a vital source of law. Courts must interpret and apply
statutes but they cannot ignore or override them based on precedents. Judicial precedent may become
irrelevant if it is inconsistent with the Constitution or a new law passed by Parliament.

In conclusion I would advice Monica that Judicial precedent is crucial but not absolute. The Constitution
and statute law must be respected first and foremost. Judicial precedent is an essential tool for
consistency but can evolve and be overruled when necessary. I also would advice Viola to understand
that judicial precedent plays a vital role, but it must be considered alongside the Constitution and
statute law. While precedent provides guidance, it cannot override higher sources of law, especially if
they are inconsistent with the Constitution.Both should appreciate that the best source of law is not a
single principle but rather a dynamic and layered approach that includes the Constitution, statutes and
judicial precedents working together in harmony.
REFERENCE
1. M Gwisai (2021).
2. Midlands State University Law Review (2021).
3. F .Ndlovu (2021).
4. C Mucheche (2021) cmlawchambers.co.zw
5. Effects of lawyers' socio-political attitudes on their judgments of social science in legal decision
making', Law and Human Behavior, 23, p. 31

6. Kp MAGASHULA ,C Ngwena African human rights law Journal (2023).

8. J Mawere and R Mukonza African Journal of governance and development 13 (2),75-92 (2024).
9. V Ruombwa and VZ Nyawo (2022).

10. Harvard Law Review, Vol. 9, No. 1 (Apr. 25, 1895), pp. 27-41 (15 pages)

11. 46 L. Q. Rev. 341 (1930)The History of Judiciary pecedent pp 2

12. Kunda, Z. (1990) 'The case for motivated reasoning', Psychological Bulletin, 108, p. 480. Posner,
R.A. (2008) How judges think