a tripartite report - Unctad

192 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
3.4.2 Inquisitorial System
A method of legal practice in which the judge endeavours
to discover facts while simultaneously
representing the interests of the State in a trial or
inquisitorial means a detailed examination or investigation,
formerly the tribunal for suppressing
heresy. It is also known as accusatorial procedure.
It commonly applied in continental Europe jurisdictions.
3.4.3 Comparative Analysis of the
Adversarial System and
Inquisitorial Systems 193
In the Adversarial system, two or more opposing
parties gather evidence and present the evidence,
and their arguments, to a judge or jury. The judge
or jury knows nothing of the litigation until the parties
present their cases to the decision maker. The
defendant in a criminal trial is not required to testify.
In the inquisitorial system, the presiding judge is
not a passive recipient of information. Rather, the
presiding judge is primarily responsible for supervising
the gathering of the evidence necessary
to resolve the case. The judge actively steers the
search for evidence and questions the witnesses,
including the respondent or defendant. Attorneys
play a more passive role, suggesting routes of inquiry
for the presiding judge and following the
judge’s questioning with questioning of their own.
Attorney questioning is often brief because the
judge tries to ask all relevant questions.
The goal of both the adversarial system and the
sarial
system seeks the truth by pitting the parties
against each other in the hope that competition
will reveal it, whereas the inquisitorial system seeks
the truth by questioning those most familiar with
the events in dispute.
CTC as an administrative agency is established to
administer the ZCA with a view to promoting its
quirements
and recommendations or is either
a state of being in accordance with established
process of becoming so. 194 Compliance is usually
complemented by enforcement, which refers to
the act or process of compelling compliance with
a law, mandate, command, decree or agreement.
It also refers to giving force or effect to a law or
to compel its obedience. 195 In the process, CTC is
statutorily empowered to investigate and determine
a matter in the course of ensuring compliance
is attained.
Based on the foregoing, it is therefore sound to
say that law enforcement broadly refers to any
system by which some members of society act in
an organized manner to promote adherence to
the law by discovering and punishing persons who
violate the rules and norms governing that society.
The preamble and Sections 4, 5, 6, 5 and 28 of
the ZCA, can be construed that CTC is a regulatory
body established to administer the ZCA and
to encourage and promote competition and to
enforce compliance with the ZCA. It is a body corporate
with powers to investigate complaints and
in cause of the investigation can hear interested
parties and make decisions with the objective of
promoting and enforce compliance with the ZCA.
The very purpose of establishment of CTC is to
have a Regulatory Body to provide for the prevention
and control of restrictive practices, the regulation
of mergers, the prevention and control of
monopoly situations and the prohibition of unfair
trade practices in the economy of Zimbabwe. All
the foregoing boils down to promotion and maintenance
of competition through enforcement of
compliance with ZCA in all sectors of the economy
and that in the course of doing so they may inquire
on matters falling under the ZCA. It is apparent
that the enforcement power of CTC extends
only so far as contravention of ZCA is concerned
and not anything beyond.
Considering the meaning of competition, establishment
of the CTC, functions of the Commission,
appointment of members as well as power to initiate
complaints and enforce compliance with the
ZCA; the Commission may investigate impediments
to competition, a function that Courts of
Law in Zimbabwe do not perform.
CTC should hence, not be compared to a Court
of Law 196 as the two are not the same; that unlike
a Court, whenever CTC conducts an investigation
or a hearing of a complaint leading to a decision it
does so in its capacity as a regulator and in pursuance
of its functions of administering the ZCA and
enforcing compliance with the ZCA.