ABSTRACT

Of all the institutions in the Constitution, the judiciary is the most vulnerable. This vulnerability stems from the fact that the courts have no independent coercive power of their own to enforce their judgments, and are, instead, reliant on the organs of the state to do so for them. For this reason, the judiciary was aptly described by Alexander Hamilton as ‘the least dangerous’ branch of government, because it had neither the sword of the executive branch, nor the purse of the legislative branch.1 This fact assumes special significance where the state itself is a party to legal proceedings, because if constitutional law is defined as that body of law which defines and limits the power of the state, then the absence of any independent power at the disposal of the courts means that it is upon the state’s acquiescence in judgments made against it that the constitutional order depends. This has been starkly illustrated in Zimbabwe, where the government’s frequent refusal to comply with decisions of the courts-most recently judgments given in cases ordering an end to government sponsored illegal land occupations2-has led to a breakdown of constitutional order.