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Transformative constitutionalism requires Courts to adjudicate in a manner that advances substantive justice, protects rights, and ensures that all exercises of public power are justified in constitutional terms. In Brenda Mpashi, the Constitutional Court adopted a formalistic interpretive approach that prioritised administrative finality over constitutional accountability. By accepting Regulation 10A as an effective ouster clause, the Court insulated presidential action from judicial scrutiny and weakened the culture of justification, which is a fundamental principle in a constitutional democracy.
A more transformative approach would have scrutinised the constitutionality of the ouster clause, assessed its compatibility with Article 18(9) and the principle of constitutional supremacy, and affirmed the judiciary’s role as the ultimate guardian of constitutional rights. The judgment thus underscores the need for a value-driven jurisprudence in cases involving review of executive power.
11-2025
Transformative constitutionalism requires Courts to adjudicate in a manner that advances substantive justice, protects rights, and ensures that all exercises of public power are justified in constitutional terms. In Brenda Mpashi, the Constitutional Court adopted a formalistic interpretive approach that prioritised administrative finality over constitutional accountability. By accepting Regulation 10A as an effective ouster clause, the Court insulated presidential action from judicial scrutiny and weakened the culture of justification, which is a fundamental principle in a constitutional democracy.
A more transformative approach would have scrutinised the constitutionality of the ouster clause, assessed its compatibility with Article 18(9) and the principle of constitutional supremacy, and affirmed the judiciary’s role as the ultimate guardian of constitutional rights. The judgment thus underscores the need for a value-driven jurisprudence in cases involving review of executive power.
Kabwabwa, Mwami and Mukabili, Madrine
(2025)
"Brenda Mpashi v Attorney General and Anor (2024/CCZ/005) [2025] ZMCC 4 (20 February 2025): The Constitutionality of Ouster Clauses in a Democratic and Constitutional Dispensation,"
SAIPAR Case Review: Vol. 8:
Iss.
2, Article 6.
Available at:
https://scholarship.law.cornell.edu/scr/vol8/iss2/6
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