Prominent lawyer Alex Magaisa says Professor Lovemore Madhuku’s opinion on Former VP Kembo Mohadi has deep faults and cannot possibly survive scrutiny.
Addressing the issue in his Big Saturday Read, Magaisa said: “I challenge the validity of his approach to the problem whereby he invokes amorphous notions like the “inner legal eye” and the “By necessary implication test”.
One of the things that are conspicuous in Madhuku’s opinion, which he had touted as scholarly, is a paucity of legal authorities to back up his arguments.
Legal authorities can be statutes, as in this case, the Constitution. They can be case law, often referred to as precedent. They can also be authoritative texts.
While Madhuku declared several items in authoritative language, there is a conspicuous absence of legal authorities to back them up. They include the following:
The distinction between express and implied constitutional provisions and whether implied terms can override express terms
The “inner legal eye”
The test for creating implied terms which we might conveniently refer to as the “by necessary implication” test.
These are key tools that he uses in his opinion, but he offers no legal authority to justify them, a point that will become apparent in the discussion of the so-called “inner legal eye”.
A reviewer of an article or a judge would demand authorities.
Applicability of Section 96(2) of the Constitution – A Reply to Professor Madhuku
Herewith the response to Prof. Madhuku’s opinion concerning the question of section 96(2) of the Constitution. https://t.co/BbbwGvBw0R
— Alex T Magaisa 🇿🇼 (@Wamagaisa) March 8, 2021
