Introduction

Ronald Dworkin is an influential modern theorist who has developed a considerably different
theory of law which has challenged the positivist theories. There are several strengths and
weaknesses in Dworkin’s theory, especially when compared to a positivist’s perspective.
Dworkin’s theory is an attempt to bridge the inadequacies and irregularities present in the
positivist approach as championed by theorists like Hart. This essay paper will examine the
Chamisa v Mnangagwa & 24 others 1 case from the lens of two jurisprudential theories which
are Dworkin’s and the legal positivists’.

Facts in brief.

The applicant (Nelson Chamisa) was aggrieved by the announcement of the first respondent
(Emmerson D Mnangagwa) as having been suitably elected as the President of the Republic
of Zimbabwe. He wedged an application in terms of section 93(1) of the Constitution of
Zimbabwe Amendment (No. 20) 2013, challenging the validity of the election of the first
respondent as the President of the Republic of Zimbabwe. And further asserted that the
Presidential election of 2018 was not conducted in accordance with the law and was not free
and fair. 

Analysis of Dworkin's Theory in relation to the Chamisa v Mnangagwa case.

Dworkin has become an influential legal theorist of this generation, and he has developed a,
“sophisticated alternative to legal positivism.” 2 Dworkin’s theory is an “interpretive theory of
law,”3 primarily asking the quintessential question of whether there is truth in interpretation
and judgment.4 Basically many understand that disparity or difference is essential in various
phases of life, particularly when considering the provisions within the law. The case given
brings to our attention the disparity between the two leaders. It is clearly realized that the
applicant was distressed by the declaration of the first respondent as having been suitably
elected as the President of the Republic of Zimbabwe. He lodged an application in terms of
section 93(1) of the Constitution of Zimbabwe5, challenging the validity and legitimacy of the

1
 (CCZ 42/18) [2018] ZWCC 42 (24 August 2018)
2
Brian Bix, Jurisprudence: Theory and Context (Sweet and Maxwell, 5th ed, 2009) 91.
3
Ibid
4
Ronald Dworkin, ‘Is there truth in Interpretation? Law, Literature and History (Speech delivered at the lecture
on Jurisprudence, Washingston D.C, 2009)
5
Amendment (No. 20) 2013
election of the first respondent as the President of the Republic of Zimbabwe. He further
argues that the Presidential election of 2018 was not conducted in accordance with the law
and was not free and fair in that  in terms of section 93(4)(b) of the Constitution of Zimbabwe
as read together with section 111(2)(b) of the Electoral Act6 declared unlawful, of no force or
effect and accordingly set aside. From the applicant’s argument, it can be asserted that
disagreements in interpretation of the law are endless and the fact that a judge cannot say
anything other than "he sees it this way, or he sees it differently," is not thriving within legal
argument.

According to Dworkin, the first principle of his theory suggests that there is no truth at all in
interpretation, it is skeptic and is just another judgment or position.7 The utmost any one can
say is that there is an inborn disagreement because through saying that there is no truth, this
develops another truth, resulting in a complex and round argument. This in relation to the
case can falls where many say that there is no truth as to the judgement that was delivered
whereas others may see the truth as to where the judge alluded that the applicant was at large
to have his polling agents at each and every polling station around the country since
observers were also free to participate in the process. The applicant’s agents would have
observed the voters arriving, being given the ballot papers as applicants for these papers
before the presiding officers, going on to vote in secret in the booths, and having the votes
counted in their presence if they were there. At the end of the counting all agents present
would have signed the V11 forms if they so wished and given copies. Dworkin’s answer to
this issue is that humans have a personal responsibility to interpret, he suggests that judges
are simply interpreting against a backdrop of everyone who has interpreted before. However,
his argument does not refute legislative intent but instead suggests there is reason to think
that the legislature is capable of intentional action.”8 He uses the metaphor of an iceberg to
compliment his theoretical answer. As Dworkin’s interpretive theory suggests, this in fact is
how truth arises, the shared responsibility of interpretation over time is what gives the
judgment truth. This theory contradicts the opinions of a positivist because Dworkin
concentrates more on judicial action and interpretation as compared to the positivists. 

6
[Chapter  2:13]
7
Ibid 3
8
Richard Ekins, ‘Legislative Intent in Law’s Empire’ (2011) 24 Ratio Juris 435.
For Dworkin, in a case where a rule applies, it does so in an “all or nothing” method fully
resolving the dispute in line with the rule which has neither weight nor dimension and is valid
because it is the law. However, where a rule does not apply and therefore a principle must
apply, a principle is not as conclusive as a rule. This is due to the fact that where a case has to
be resolved by the application of a principle, several competing and contradictory valid
principles may be applied, as a result of which the judge must weigh the principles against
each other and apply the one which the judge chooses as being the best ‘fit’ for a certain case
based on the full weight and dimension of the various principles. 9 A case example is that of
Rigger v Palmer10 where the court relied that no one should benefit from his or her wrong
doing thus there is need for the judge to analyse a principle that best fits the case. With
regards to the chamisa v Mnangagwa case one cannot say that the judges basically used
principles to solve the case but rather relied on the rule of law however we see certain
principles applicable though not articulated by the judges. For example looking at the
principle of procedural fairness and practice between parties and the court, it is alleged that
the applicant who is expected through the Sheriff to effect service had until 10 pm that same
evening to effect service in compliance with the Rules, however the affidavits submitted by
the respondents show that the applicant had in fact attempted service in his own capacity and
without assistance of the Sheriff on 10 August 2018 and the applicant clearly breached the
Rules of the Court, and filed a defective application. However, due to the importance of the
matter and the public interest, the Court has the power to condone the non-compliance with
the Rules in the interests of justice which elaborates how this principle was actually applied.

Dworkin’s argument depends on the fact that where a dispute arises and needs to be
adjudicated, a judge has a series of tools by which he or she can adjudicate among are
principles which can be used where the cases seem to be of a complex nature and very hard. 11
With regards to the given case, it was articulated by one of the lawyer expatriates Dali Mpofu
that the case is not actually a difficult one but quite an important case because of the
significance as far as the legal issues are concerned. 12 He further confirmed that due to the
nature of the case, had they had time they would have raised the legal issues in a separate
court application but the prejudice is not theirs but for the client. Dworkin clarifies that there
9
Elise G. Nalbandian. Notes on Ronald Dworkin’s Theory of Law. MIZAN LAW REVIEW Vol. 3 No.2, September
2009. Pg 373
10
115 NY 506 (1889), 22 NE188
11
Ibid 8
12
Andrew k et al. How government sabotaged Chamisa court case. The Independent. August 24 2018.
are various ways of resolving a dispute and there is also the right answer in each case with
regards to the question who has the right to win? To answer this question, the judge will have
to search through the moral material and decide how to apply the law in the best way
possible.13 In the case of Commercial Farmers Union v Minister of Lands & Others 14 the
court did not only depend on on the spirit and letter of the law but resorted to the morally best
way of going about land reform.

An analysis of the legal positivists’ theory in relation to the case in question.

Legal positivism started from medieval times where Christians believed that the Ten
Commandments were sacred and had pre-eminent value “which was inscribed" in stone by
God and was given to Moses on Mount Sinai. This ideology continued until the present day.15

Positivism is a theory of law that is based on social facts and not on moral claims. Positivism
holds that law is based on social facts that have been posited, or assertions, from authoritative
figures such as heads of state, judges, and legislators among others that qualify as law. 16 The
English jurist John Austin (1790-1859) formulated it thus that “The existence of law is one
thing, its merit and demerit another. Whether it be or be not is one enquiry, whether it be or
be not conformable to an assumed standard, is a different enquiry.”

Positivism revolves around the idea that legal systems are posited, created by people rather
than having a natural or metaphysical existence. It is based on the idea that a, “descriptive or
at least morally neutral theory of law is both possible and valuable.” 17 The central question of
legal positivism is ‘what is law,’ not what the law should be, “the existence of law is one
thing; its merit or demerit is another.”18 Hart is known as one of the prominent theorists in
positivism, and is known for moving positivism forward from the initial ideas developed by
Austin. Hart criticized Austin’s theory in suggesting that it did not look at the internal point
of view and it did not question the difference between being obliged and having an
obligation. On this point, Hart suggested that law is connected to having an obligation to act
as the law tells us to. Thus in analysing the Chamisa v Mnangagwa case, it can be alleged

13
Ibid at pg 374
14
2000 (2) ZLR 469 (S)
15
LawTeacher. November 2013. Analysis of the contribution legal positivists. [Accessed 7 October 2018].
16
Jonathan Brett Chambers. Legal Positivism: An Analysis. Utah State University. 5-2011
17
Brian Bix, Jurisprudence: Theory and Context (Sweet and Maxwell, 5th ed, 2009) 33.
18
John Austin, The Province of Jurisprudence Determined (W.E Rumble ed., Cambridge University Press,
Cambridge 1995) 157.
that judges sitting at the con court were basically acting as the law tells them to do. They
made a determination that the MDC Alliance leader Nelson Chamisa failed to provide the
court with primary evidence to enable it to invalidate the declaration made by the Zimbabwe
Electoral Commission. The judges in asserting this position are simply acting in relation to
what the law expects us to do when adducing evidence to the court in which the evidence
must be substantial and satisfying to the court.

More so, it could be argued that legal positivism encourages us to think of things such as
when specific laws came to be enacted, how they are or how inconsistent they are with one
another and how they work with one another, rather than thinking of them in terms of their
whole purposes. In the judgement of Chamisa v Mnangagwa case the applicant in seeking
relief that the election results announced by the Commissioners of the Zimbabwe Electoral
Commission placing Emmerson Dambudzo Mnangagwa as the duly elected President of the
Republic of Zimbabwe with effect from the 2nd of August 2018 in terms of section 93(4) (b)
of the Constitution of Zimbabwe which talks about when a constitution may invalidate an
election as read together with section 111(2) (b) of the Electoral Act19. The applicant sort
relief that it be declared unlawful and of no force or effect and accordingly set aside, this step
taken by the applicant to seek relief, actually elaborates how the law works with one another
thus certain statutes need to be read with others in order to give a clear understanding of what
the law actually posits.

Legal positivists’ believe further that they do not need to think about how to change the law,
or whether or not that law is suitable for the community, or whether that law is part of a much
larger moral and social system since all they need to is follow what is written in the
legislation and what is written down with regards to law whether it is immoral or moral,
suitable for the community or not as long as it is what the law says. Many may have criticised
the judgement given by the con court in the above case, but a legal positivist’s may simply
assert that the decision given need not be in favor of the majority or what the society actually
expected but what the law actually expects. For example looking at the issue of evidence, if
the law expects one to give evidence that is quite satisfying to the court and failure to do so
will water down the case then the application of the law will stand firm.

19
Chapter 2:13
Jeremy Bentham, a legal positivist started the advocacy of legal positivism. In a book he
wrote, he claimed that there are two types of people one called ‘expositors’ meaning those
who explained what the law in practice was and the other Called ‘Censors’ implying those
who criticised the law in practice, comparing it to their notions of what the law is supposed to
be. The expositors in this instance are the judges and the lawyers. Whereas the censors may
be termed as the public population who aired different opinions with regards to the above
case. Numerous individuals did not agree with the ruling of the con court and were of the
view which was aired by advocate Thabani Mpofu Chamisa’s lawyer who said that there was
irregularities in the just-ended election process which denied Zimbabweans their right to free,
fair and transparent elections. Thus after the court’s ruling, the public considered the decision
made by the judges to be biased and in support of the ruling party hence in support of Jeremy
Bentham’s opinion as a legal positivist such arguments from the censors may be considered
of less importance since it is based on what the law is supposed to be without acknowledging
what the law is as stated in different books and statutes but all that matters to the censors is
that the law be in their favor which will be of benefit to them.

Conclusion.

In conclusion, the law is quite complex and cannot be understood from only one position as
can be seen with regards to Dworkin’s theory. However, it can be analysed from the direction
of the different jurisprudential theories which may give a comprehensive understanding such
as the legal positivism as explained above.

REFERENCES.
Books and articles.

Brian Bix, Jurisprudence: Theory and Context (Sweet and Maxwell) 5th ed, (2009) 91.

Elise G. Nalbandian. Notes on Ronald Dworkin’s Theory of Law. MIZAN LAW REVIEW
Vol. 3 No.2, September 2009.

Jonathan Brett Chambers. Legal Positivism: An Analysis. Utah State University. 5-2011

John Austin. The Province of Jurisprudence Determined (W.E Rumble ed., Cambridge
University Press, Cambridge 1995)

Law Teacher. November 2013. Analysis of the contribution legal positivists. [Accessed 7
October 2018].

Richard Ekins, ‘Legislative Intent in Law’s Empire’ (2011) 24 Ratio Juris 435.

Ronald Dworkin, ‘Is there truth in Interpretation? Law, Literature and History (Speech
delivered at the lecture on Jurisprudence, Washingston D.C, 2009)

Statutes

Constitution of Zimbabwe Amendment (No. 20) 2013

Electoral Commission Act [Chapter 2:13]

Cases

Commercial Farmers Union v Minister of Lands & Others 2000 (2) ZLR 469 (S)

Rigger v Palmer115 NY 506 (1889), 22 NE188