The Applicants are not approaching this court for mercy. They are approaching this court to exercise a right guaranteed and set out in the Constitution, using the medium of Section 85 of the Constitution. On the other hand, the executive is another arm of the State which has no function to determine the rights and liabilities of individuals. The doctrine of separation of powers is an integral part of our law. THE PREROGATIVE OF THE LAW AND NOT MERCY This court has a duty to exercise jurisdiction in the present application. It cannot leave the issue of the Applicants’ rights, to the mercy of the executive in terms of Section 112 of the Constitution. A number of constitutional provisions, oblige the court to determine the dispute irrespective of the executive’s mercy powers. First, Section 44 of the Constitution obliges all arms of the State and the courts themselves to protect, promote and fulfil” “respect, the rights in the Bill of Rights. The courts have their own constitutionally-entrenched mandate and duty to protect and promote the applicants’ rights irrespective of and in addition to that of the Executive. This is reinforced by section 45(1).
The Applicants are not approaching this court for mercy. They are approaching this court to exercise a right guaranteed and set out in the Constitution, using the medium of Section 85 of the Constitution. On the other hand, the executive is another arm of the State which has no function to determine the rights and liabilities of individuals. The doctrine of separation of powers is an integral part of our law. THE PREROGATIVE OF THE LAW AND NOT MERCY This court has a duty to exercise jurisdiction in the present application. It cannot leave the issue of the Applicants’ rights, to the mercy of the executive in terms of Section 112 of the Constitution. A number of constitutional provisions, oblige the court to determine the dispute irrespective of the executive’s mercy powers. First, Section 44 of the Constitution obliges all arms of the State and the courts themselves to “respect, protect, promote and fulfil” the rights in the Bill of Rights. The courts have their own constitutionally-entrenched mandate and duty to protect and promote the applicants’ rights irrespective of and in addition to that of the Executive. This is reinforced by section 45(1).
Applicant%27s%20Heads%20of%20Argument%20in%20Makoni%20v%20The%20Commissioner%20of%20Prisons%20and%20Another.docx