The essential features doctrine: a critical analysis of the Constitutional Amendment Act (no.2) 2021

Abstract

Judicial review of constitutional amendments has always been a contentious issue in constitutional democracies and Zimbabwe is no exception. Thus, this study advocated for the adoption and application of the Essential Features Doctrine by the judiciary in reviewing constitutional amendments. In this context the study made a critical analysis of the provisions of the Constitutional Amendment Act (No. 2) 2021 regarding the independence of the Judiciary and the Prosecutor General including the removal of parliamentary oversight. The main objective being to give the judiciary leeway to review constitutional amendments not only on the basis of procedural compliance but also on substance so as to protect the basic structure of the constitution. This was done primarily through a desktop research utilizing academic writings, journals and case law authorities. A comparative analysis was also employed in this study using the Indian jurisdiction as the focal point. In the study it was established that the provisions in the Act undermine judicial and prosecutorial independence and violate the system of checks and balances by removing the oversight role of parliament. Basically the amendments violate the basic structure of the constitution and essentially consolidate executive power. Therefore, it recommended the adoption and application of the Essential Features Doctrine by Zimbabwe’s judiciary in constitutional review of amendments which mutilate the basis structure of the constitution. This would restrain the executive from using a pliant legislature from destroying fundamental constitutional values embedded in the constitution.