(TALKZIMBABWE) New Constitution: Zanu-PF responds to Mwonzora’s ‘unfounded allegations’
New Constitution: Zanu-PF responds to Mwonzora’s ‘unfounded allegations’Posted by By Godwills Masimiremwa and Jacob Mudenda at 7 January, at 21 : 43 PM
We read Douglas Mwonzora’s reply to the critique we prepared for Cde Mangwana on the first four chapters prepared by the drafters of the proposed new Constitution and find it absolutely necessary to reply so as to set the record straight and to ensure that informed discussions on the issues can take place.
Douglas Mwonzora’s reply first appeared on www.newzimbabwe.com and then was published in the Financial Gazette of the 5th of January 2012. We will post our reply together with all the relevant materials to the same website and avail the Financial Gazette with the same.
First, we deny publishing the advice we gave to Cde Mangwana. What we do know is that Mr Mwonzora was given a copy of our advice by Cde Mangwana. This was done for Mwonzora to appreciate our concerns. Mr Mkosi was also given a copy of the advice for the same reason.
We believe that it is in fact Mwonzora who leaked the advice so as to create a basis of attacking the advice and ourselves as he has done.
It is his right to attack the advice and indeed to attack us, but it is wrong for him to make unfounded allegations about us as being the ones who leaked the advice. Mwonzora’s reply read on its own without juxtaposing it against the four chapters so far drafted and our critique makes no sense.
In fact Mwonzora avoided commenting on the real and substantive issues of the Constitution that we raised. His comments on constitutional issues are restricted to our comment on minorities. He says nothing about the drafters providing for gay and lesbian rights, abolishing the death penalty, expanding the definition of citizenship by birth to include citizenship by descent, and then allowing dual citizenship on Zimbabweans who acquire citizenship by birth. Clearly this provision on citizenship is meant to allow descendants of our former colonisers who are not citizens of Zimbabwe but of other countries to also automatically assume the citizenship of our country.
He does not say anything about the drafters making only English, Shona and Ndebele the only official languages, with English only being the language of record, relegating other languages’ recognition to the pleasure of Parliament.
He says nothing about the drafters only according war veterans respect, but not providing for their welfare and affirmative action to improve their economic situation after having suffered deprivation during the years they sacrificed their lives for the liberation of our country.
For completeness of this debate and in fairness to readers and to enable informed discussion, I avail hereunder the four chapters so far drafted and our critique thereof:-
DRAFTERS’ SUBCOMMITTEE
CONSTITUTIONAL PARLIAMENTARY COMMITTEE
Our ref: Drafters letter 1.1
8 December 2011
The Co-Chairs,
Constitutional Parliamentary Committee
Dear Sirs
Draft Constitution: Chapter 1
As arranged at our meeting on Monday morning, we attach a copy of our first, preliminary, draft of Chapter 1 of the new constitution.
Our Mandate
Before going through the draft’s provisions, we should like to record our understanding of our mandate, as discussed with you at Monday’s meeting and at our previous meeting on Friday last week.
As we understand it, our mandate is:
* To provide you with a draft constitution consistent with the agreed principles set out in your documents headed “Draft Constitutional Principles” and “List of Proposed Constitutional Issues, Rainbow Towers Harare”, as well as any additional principles and issues which you agree upon during the 35-day drafting period;
* To provide you with a written explanation of the provisions contained in the draft constitution that we produce, to the extent that an explanation is necessary to understand them;
* To fill in any gaps in your agreed principles so that the draft constitution we produce is a complete document covering all issues that a constitution for Zimbabwe should cover;
* To inform you if we think that any of the agreed principles are inconsistent with each other, or are inconsistent with international law to which Zimbabwe is a party, or for any other reason are inappropriate for inclusion in a constitution.
We also wish to record that we agreed that any drafts we send to you will be considered first by you, the three co-chairs, before they are passed on to the Technical Committee or anyone else for consideration. If you disagree with any of the drafts, or doubt the wisdom of any of their provisions, or have any reservations about them, you will discuss the drafts with us before passing them on to the Technical Committee. This will allow us to explain the thinking behind the drafts, or to modify the drafts to meet your objections, so that when you send them to the Technical Committee you can give the drafts your substantial endorsement.
You will need to tell us how we should send the drafts to you if you are not all in Harare.
We should also say here that we realise drafting is an iterative process (and in case you, like ourselves, didn’t know the meaning of “iterative” and were too shy to ask, it means repeating). In other words, any draft we send to you will have to be revised repeatedly in the light of comments and suggestions received.
The Draft
We now turn to the draft. It comprises the first Chapter of the new constitution and sets out founding and preliminary provisions.
Clause 1
This clause simply states that Zimbabwe is a sovereign republic, i.e. that it is independent and has a republican form of government. The equivalent clause in earlier drafts – the Constitutional Commission draft and the Kariba draft – was longer:
“Zimbabwe is one sovereign and democratic republic and is to be known as “The Republic of Zimbabwe”.”
We do not think the word “one” adds anything; indeed we cannot work out what it really means in the context. It is unnecessary to add that Zimbabwe is “democratic”: that will appear from clause 3 and from other provisions of the draft constitution. And Zimbabwe is not in fact known as “the Republic of Zimbabwe”.
Clause 2
This is a standard provision to be found in the existing constitution and in most other constitutions. Subclause (2) is based loosely on section 2 of the South African constitution and will give effect to principle no. 10 set out in the document headed “Draft Constitutional Principles”.
Clause 3
This clause sets out founding values (pillars of the Constitution) and the principles of good governance, which is itself a founding value. The values and principles give effect to most of the principles set out in the document headed “Draft Constitutional Principles”:
* Subclause (1)(a): Principle Nos. 1 and 7;
* Subclause (1)(b): Principle No. 9;
* Subclause (1)(c): This is taken from section 1(a) of the South African constitution, and is inherent in your draft principles;
* Subclause (1)(d): Principle No. 13;
* Subclause (1)(e): Principle No. 7;
* Subclause (2)(a): Principle No. 7;
* Subclause (2)(b): Principles Nos. 15 and 16;
* Subclause (2)(c): Principle No. 23;
* Subclause (2)(d): Principle No. 3;
* Subclause (2)(e): Principle No.8;
* Subclause (2)(f): Principles Nos.7 and 21;
* Subclause (2)(g): Principles Nos. 6 and 25;
* Subclause (2)(h): Principle No. 20;
* Subclause (2)(i): Principles Nos. 4, and 19;
* Subclause (2)(j): This is new;
* Subclause (2)(k): Principle No. 12.
Not all the principles have been incorporated in this clause, but they will be enshrined elsewhere in the draft constitution. For example, recognition of Zimbabwe’s liberation (principle no. 2) will be dealt with in the preamble; the duties of citizens will be mentioned in the Chapter on citizenship; and the recognition of traditional leadership (principle No. 26) will be dealt with in a chapter along the lines of Chapter XVII of the Kariba draft.
Clause 4
This clause is taken from section 5 of the Kenyan constitution. It seems a good idea to define Zimbabwe’s boundaries.
Clause 5
The previous drafts mentioned earlier gave details of the Public Seal and stated that it had to be kept by the President. We think it is better to leave such details to Parliament.
Clause 6
It seemed to us that rather than specify every single indigenous language that is spoken in Zimbabwe – and even you seem to be unsure how many they are and how they are spelt – it would be better to specify just the three main ones and allow Parliament to declare the other ones to be official languages. We have listed the three in alphabetical order, but you may want a different order.
In other respects the clause reflects your principles, except that in subclause (3) we have allowed Parliament to specify languages other than English to be languages of record.
Clause 7
This clause is not mentioned in your principles, but we think it is a good idea to oblige the State to propagate awareness of the Constitution. The clause is based on clause 8 of the Kariba draft.
Yours faithfully,
………………………… …………………………… ………………………………
M. H. Chinhengo B. D. Crozier P. S. Madzonga
CHAPTER 1
FOUNDING PRINCIPLES
1. 1. The Republic
Zimbabwe is a sovereign Republic.
1. 2. Supremacy of the Constitution
(1) This Constitution is the supreme law of Zimbabwe and any other law or conduct inconsistent with it is invalid.
(2) The obligations imposed by this Constitution are binding on everyone, including all executive, legislative and judicial institutions of the State at all levels of government, and must be fulfilled by them.
1. 3. Founding values and principles
(1) Zimbabwe is founded on the following values –
(a) Supremacy of the Constitution and the rule of law;
(b) Respect for fundamental human rights and freedoms;
(c) Respect for the inherent dignity and worth of each human being;
(d) Recognition of the equality all human beings, in particular gender equality;
(e) Good governance.
(2) The principles of good governance, which bind all institutions of the State and government at all levels, include –
(a) A multi-party system of democratic government;
(b) An electoral system based on universal adult suffrage and free, fair and regular elections to ensure adequate representation of the electorate;
(c) The orderly transfer of power following elections;
(d) Observance of the separation of powers;
(e) Respect for the people of Zimbabwe, from whom the authority to govern is derived;
(f) Openness, justice, accountability and responsiveness on the part of all institutions of government;
(g) The fostering of national unity, peace and stability, with due regard to diversity of languages, customary practices and traditions;
(h) Recognition of the rights of racial, ethnic, cultural, linguistic, religious and political minorities;
(i) The equitable sharing of natural resources including land;
(j) Due respect for vested rights; and
(k) The devolution of governmental power to provinces and other appropriate levels.
1. 4. National territory
Zimbabwe consists of the territory comprising Zimbabwe on the effective date and any additional territory as defined by an Act of Parliament.
1. 5. National Flag, National Anthem, Public Seal and Coat of arms
Zimbabwe must have a National Flag, a National Anthem, a Coat of Arms and a Public Seal, details of which are to be prescribed in an Act of Parliament.
1. 6. Languages
(1) The official languages of Zimbabwe are English, Ndebele and Shona.
(2) English is the language of record.
(3) An Act of Parliament may declare further languages to be official languages and languages of record.
(4) All State institutions and agencies at every level must –
(a) Ensure that all official languages are treated equitably; and
(b) Take into account the language preferences of people affected by governmental measures or communications.
(5) The State must promote and advance the use of all languages used in Zimbabwe, including sign language, and must create conditions for the development of these languages.
1. 7. Promotion of public awareness of Constitution
The State must promote public awareness of this Constitution by –
(a) Translating it into the languages that are used by substantial numbers of people in Zimbabwe and disseminating it as widely as possible;
(b) Requiring this Constitution to be taught in educational institutions and as part of the training of members of the Defence Forces, the Police Service, the Prison Service, the Public Service and members and employees of public institutions ; and
(c) Encouraging civic organisations to disseminate awareness and knowledge of this Constitution throughout society.
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DRAFTERS’ SUBCOMMITTEE
CONSTITUTIONAL PARLIAMENTARY COMMITTEE
Our ref: Drafters Letter 2.1
9 December 2011
The Co-Chairs,
Constitutional Parliamentary Committee
Dear Sirs
Draft Constitution: Chapter 2
We attach a copy of our first, preliminary, draft of Chapter 2 of the new constitution, which sets out national objectives to be pursued by the Government.
Numbering of the Clauses
You will see that the clauses in the Chapter are numbered 2.1, 2.2 and so on, instead of being numbered consecutively from clause 7, the last clause of Chapter 1. This is a drafting device and means that if we decide to add or remove clauses in the draft constitution. When the final draft has been agreed on we shall number all the clauses in the usual way.
Purpose of the Chapter
The Chapter will set out objectives to be followed by policy-makers in the Government. The constitutions of many other countries in the SADC region, and in Africa as a whole, contain such provisions: for example the constitutions of Lesotho, Malawi, Uganda, Tanzania and Zambia.
Will the objectives be enforceable? In our view the answer is: probably not. Constitutional provisions are normally justifiable, i.e. open to adjudication by the courts, but these obligations are so couched that they do not confer readily enforceable rights: the State is only required to “endeavour” to realise the rights. Hence, if it is challenged for failing to achieve them, it can always claim that it tried to do so but lacked sufficient resources. Furthermore, clause 2.1 states that the objectives are “guides” rather than enforceable provisions.
Further Points
As we have said, many other African States have similar provisions to those set out in the Chapter, and we have inserted footnotes in the draft indicating where we have found some of the clauses.
You will see that several of the clauses in this Chapter echo clauses in Chapter 3 (the Declaration of Rights). This is not mere duplication. The clauses in that Chapter lay down rights; these clauses give some indication of how and to what extent the Government must satisfy those rights.
The Individuals Clauses
We now turn to the individual clauses in the Chapter.
Clause 2.1
As noted above, this clause states that the objectives are a guide to all institutions of government at all levels, so in most cases the provisions of the Chapter will bind provincial and local authorities as well as the central government.
Clause 2.2
This clause elaborates on the fundamental principle, set out in clause 3 of the draft (see Chapter 1), that there must be good governance in Zimbabwe. The clause will oblige the Government to introduce measures to develop accountability, openness and financial probity at all levels, and to combat corruption. The Government will also be enjoined to ensure that all constitutional commissions are properly funded.
The duty to ensure fiscal probity will give effect to your principles 7 and 21 on the sheet titled “Draft Constitutional Principles”.
Clause 2.3
This clause will oblige the Government to ensure development and empowerment in broad areas of the economy. Women in particular are stated to be the beneficiaries of Government’s endeavours (see subclause (3)), and the State will be encouraged to ensure that local people benefit from development in any area.
Clause 2.4
This clause will encourage the Government to ensure that Zimbabwe is self-sufficient in food.
Clause 2.5
Under this clause governmental institutions will have to promote and preserve Zimbabwean culture, and all citizens will have to preserve and protect the country’s heritage.
Clause 2.6
This clause will oblige the Government to follow an ethical foreign policy, promoting African and regional co-operation and integration.
Clause 2.7
This clause will enjoin the Government to ensure a gender balance, and the participation of marginalised groups, in all governmental bodies. The Government will also have to encourage the participation of women in all spheres of Zimbabwean life and allow women equal access to land and national resources.
Clause 2.8
Under this clause the Government will have to take reasonable measures to protect children, in particular to prevent their commercial exploitation.
Clause 2.9
This clause deals with the advancement of youth. All government agencies will have to ensure that youths are afforded opportunities for education, employment, economic betterment and recreation.
Clause 2.10
The Government will have to protect elderly persons under this clause, providing them with food and shelter, giving them an opportunity to engage in productive activities, and encouraging NGOs to improve the quality of their lives.
Clause 2.11
Persons with disabilities will be protected under this clause; governmental institutions will have to respect them, and will have to try to assist them achieve their full potential.
Clause 2.12
All State and governmental institutions will have to accord war veterans proper respect under this clause.
Clause 2.13
This clause will enjoin the Government to promote employment, so far as it is practical to do so, and ensure just, equitable and safe conditions of work and protect the rights of workers.
Clause 2.14
The family, as the basic unit of society, will have to be protected and fostered under this clause, through measures to provide child care and to prevent domestic violence.
Clause 2.15
The State will be obliged under this clause to ensure that the rights and responsibilities of men and women in a marriage are equal, and that children and vulnerable spouses are protected when marriages end through death or divorce.
Clause 2.16
Under this clause the State will be obliged to promote free and compulsory basic education for children, and will be encouraged to provide higher and adult education. The right of girls to equal educational opportunities is emphasized.
Clause 2.17
This clause will enjoin governmental institutions to provide everyone with access to adequate shelter, i.e. housing.
Clause 2.18
Under this clause the State will have to try to ensure adequate health services for the people, and to take measures to ensure that no one is refused emergency medical treatment.
Clause 2.19
This clause will enjoin the State to take practical measures to provide social security and social care to those in need, particularly to war veterans.
Clause 2.20
In similar terms, this clause will enjoin the State to try to provide legal aid in civil and criminal cases.
Yours faithfully,
……………………………………. ……………………………… ………………………………………
M.H. Chinhengo B.D. Crozier P.S. Madzonga
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CHAPTER 2
NATIONAL OBJECTIVES
2.1 Objectives to guide all institutions and agencies of State and Government
The objectives set out in this Part guide all institutions and agencies of the State and Government at all levels, in taking and implementing policy decisions that will lead to the establishment and promotion of a just, free and democratic society in which people can enjoy prosperous and fulfilled lives.
2.2 Good governance
(1) The State must adopt and implement policies and legislation to develop accountability, openness, personal integrity and financial probity in the Government at all levels and in all public institutions2.
(2) In particular, measures must be taken to expose, combat and eradicate corruption and abuse of power by those holding political and other public offices3.
(3) The State must ensure that all Commissions and other bodies established by or under this Constitution are provided with adequate resources and facilities to enable them to carry out their functions effectively and efficiently as envisaged by this Constitution.
2.3 Development and empowerment4
(1) All State and governmental institutions and agencies at every level must endeavour to facilitate rapid and equitable development, and in particular must take measures -
(a) To promote private initiative and self reliance;
(b) To foster agricultural, commercial, industrial, technological and scientific development;
(c) To foster the development of industrial and commercial enterprises in order to empower citizens of Zimbabwe;
(d) To bring out balanced development of the different areas of Zimbabwe and a proper balance in the development of rural and urban areas; and
(e) To redress imbalances resulting from past practices and policies.
(2) Measures referred to in this section must, where practicable, involve the people in the formulation and implementation of development plans and programmes that affect them.
(3) Measures referred to in this section must protect and enhance the right of people, particularly women, to equal opportunities in development.
(4) The State must ensure that, where appropriate and practicable, the people of an area benefit from the resources in that area.
1 This is taken from objective I(i) of the Ugandan constitution.
2 This is based on s (13)(o) of Malawi’s constitution
3 This is based on objective XXVI(iii) of the Ugandan constitution.
4 This is loosely based on objectives IX to XII of the Ugandan constitution.
2.4 Food security5
The State must –
(a) encourage people to grow and store adequate food;
(b) secure the establishment of adequate food reserves; and
(c) encourage and promote adequate and proper nutrition through mass education and other appropriate means.
2.5 Cultural objectives6
(1) All State and governmental institutions and agencies at every level must promote and preserve cultural values and practices which enhance dignity, well-being and equality of Zimbabweans.
(2) All State and governmental institutions and agencies at every level, and all citizens, must endeavour to preserve and protect Zimbabwe’s heritage.
2.6 Foreign policy objectives7
(1) The foreign policy of Zimbabwe must be based on principles of –
(a) Promotion and protection of the national interests of Zimbabwe;
(b) Respect for international law;
(c) Peaceful co-existence with other nations; and
(d) The settlement of international disputes by peaceful means.
(2) The State must promote regional and Pan-African cultural, economic and political co-operation and integration and must participate in international and regional organisations that stand for peace and the well-being and progress of the region, the continent and humanity.
2.7 Gender balance and fair representation of marginalized groups
(1) The State must ensure gender balance and a fair representation of marginalised groups on all constitutional and other governmental bodies8.
(2) The State must promote full participation of women in all spheres of Zimbabwean society on the basis of equality with men9.
(3) The State must ensure that all international conventions and treaties to which Zimbabwe is a party and which address gender issues are incorporated into domestic law.
(4) All State and governmental institutions and agencies at every level must take practical measures to ensure that women have access to land and other resources on the basis of equality with men.
5 This is based on objective XXII of the Ugandan constitution.
6 This is based on objective XXIV of the Ugandan constitution; para (b) of subsec (1) is based on s 31 of the South African constitution.
7This is based on objective XXVIII of the Ugandan constitution.
8 This is based on objective VI of the Ugandan constitution.
9 This is based on s 13(a)(i) of Malawi’s constitution.
2.8 Children10
(1) the State must adopt reasonable policies and measures, within the resources available to it, to ensure that children –
(a) enjoy family or parental care, or appropriate alternative care when removed from the family environment;
(b) receive shelter and basic nutrition, health care and social services; and
(c) are protected from maltreatment, neglect, abuse, exploitation, corruption or degradation.
(2) the State must take appropriate legislative and other measures –
(a) to protect children from exploitative labour practices ; and
(b) to ensure that children are not required or permitted to perform work or provide services that –
(i) are inappropriate for the children’s age; or
(ii) place at risk the children’s well-being, education , physical or mental health or spiritual, moral or social development.
(3) The State must ensure that all international conventions and treaties to which Zimbabwe is a party and which protect children are incorporated into domestic law.
2.9 Youth11
All State and governmental institutions and agencies at every level must take reasonable measures, including affirmative action programmes, to ensure that the youth, that is to say people between the ages of fifteen and thirty-five years –
(a) Have access to appropriate education and training;
(b) Have opportunities to associate and to be represented and participate in political, social economic and other spheres of life;
(c) Are afforded opportunities for employment and other avenues to economic betterment;
(d) Have opportunities for health recreational activities and access to recreational facilities; and
(e) Are protected from harmful cultural practices and exploitation.
2.10 Elderly persons
(1) All State and governmental institutions and agencies at every level must take reasonable measures, including legislative measures, to secure respect, support and protection for elderly persons and to encourage their participation in the life of the community12.
(2) In particular, State and governmental institutions and agencies must endeavour, within reasonable resources available to them –
10 This is based on s 28(1)(a) to (f) of the South African constitution.
11 This is based on s 55 of the Kenyan constitution.
12 This is based on s 13 (j) of Malawi’s constitution.
(a) To provide facilities, food and care for elderly persons who are unable to provide for themselves;
(b) To develop programmes to give elderly persons the opportunity to engage in productive activity suited to their abilities and consistent with their vocations and desires; and
(c) To foster social organisations aimed at improving the quality of life of elderly persons.
2.11 Persons with disabilities
(1) All State and governmental institutions and agencies at every level must recognise the right of persons with physical, mental or other disabilities to be treated with respect for their dignity as human beings13
(2) All State and government institutions and agencies at every level must endeavour, within the resources available to them, to assist persons with physical, mental or other disabilities to achieve their full potential and to minimise the disadvantages suffered by them.
(3) In particular, State and governmental institutions and agencies must endeavour-
(a) to develop programmes for persons with physical, mental or other disabilities, especially work programmes consistent with their capabilities and acceptable to them or their legal representatives;
(b) to consider the specific requirements of persons with physical, mental or other disabilities as one of the priorities in development plans;
(c) to encourage the use and development of forms of communication suitable for use by persons with physical, mental or other disabilities; and
(d) to foster social organisation aimed at improving the quality of life of persons with physical, mental or other disabilities.
2.12 War Veterans
All Stat and government institutions and agencies at every level must accord due respect to war veterans, that is to say-
(a) Those who fought in the war of liberation and those who assisted the fighters; and
(b) Those were detained for political reasons during the war of liberation.
2.13 Work and labour relations
(1) All State and governmental institutions and agencies at every level must adopt reasonable policies and measures, within the resources available to them, to provide everyone with an opportunity to work in a freely chosen activity, in order to secure a decent living for themselves and their families14
(2) in particular, State and governmental institutions and agencies must endeavour to secure-
(a) full employment;
(b) just, equitable and satisfactory conditions of work, particularly with respect to-
13This is based on objective XVI of the Uganda constitution
14This is based on art 7 of the Covenant of Economic, Social and Cultural Rights
(i) adequate remuneration;
(ii) equitable opportunity for promotion;
(iii) safety at work;
(iv) maternity leave; and
(v) rest, leisure, limitation of working hours, periodic holidays with pay and remuneration for public holidays;
(c) the removal of restrictions that unnecessarily inhibit or prevent people from working and otherwise engaging in gainful economic activities;
(d) vocational guidance and the development of vocational and training
programmes, including those for persons with disabilities;
(e) the implementation of measures such as family care that enable women to
enjoy a real opportunity to work; and
(f) the rights of employers and employees to engage in collective bargaining
and, where necessary, to engage in appropriate collective job action to
enforce their rights.
2.14 Protection of the family
(1) All State and governmental institutions and agencies at every level must protect and foster the institution of the family as the natural and basic unit of society15
(2) In particular, State and governmental institutions and agencies must endeavour, within the resources available to them, to adopt measures for-
(a) the provision of care and assistance to mothers, fathers and other family members who have charge of children; and
(b) the prevention of domestic violence.
2.15 Marriage16
The State must take appropriate measure to ensure that-
(a) there is equality of rights and responsibilities of spouses during marriage and at its dissolution; and
(b) in the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses.
2.16 Education17
(1) The State must take all practical measures to promote free and compulsory basic education for children.
(2) In particular, the State must take measures to ensure, so far as possible, that girls are afforded the same opportunities as boys to obtain education at all levels.
(3) The State must take appropriate measures, within the resources available to it-
15This is based on objective XIX of Uganda constitution.
16This is based on article 23 of the International Covenant on Civil and Political Rights
17This is based loosely on objective XVIII of the Uganda constitution.
(a) to afford adults access to basic and continuing education; and
(b) to afford equitable access to higher education.
2.17 Shelter18
All State and government institutions and agencies at every level must take reasonable legislative and other measures, within the resources available to them, to enable everyone to have access to adequate shelter.
2.18 Health Services
(1) The State must take all practical measures to ensure the provision of basic, accessible and adequate health services to the population19.
(2) The State must take appropriate measures to ensure that no one is refused emergency medical treatment at any health institution20.
2.19 Social Welfare21
The State must take all practical measures, within the limits of the resources to it, to provide social security and social care to those who are in need of it, in particular war veterans.
2.20 Legal aid
The State take all practical measures, within the limits of the resources available to it, to provide legal representation in civil and criminal cases for people who need it and unable to afford legal practitioners of their choice.
18This is based on s 26 & (2) of the South African constitution.
19This is taken from objective XX of the Uganda constitution.
20This is taken from s 27(3) of the South African constitution.
21This comes from s 27(1) of the South African constitution.
DRAFTERS’ SUBCOMMITTEE
CONSTITUTIONAL PARLIAMENTARY COMMITTEE
Our ref: Drafters Letter 3.1
9 December 2011
The Co-Chairs,
Constitutional Parliamentary Committee
Dear Sirs
Draft Constitution: Chapter 3
We attach a copy of our first, preliminary, draft of Chapter 3 of the new constitution, which deals with citizenship.
Methods of acquiring citizenship
Our present constitution provides for citizenship to be acquired by birth, descent and registration. The two previous drafts – the constitution Commission draft of 1999 and the Kariba draft – were the same.
We have followed the new Kenyan constitution and combined citizenship by birth and descent, so that anyone born to a Zimbabwean citizen will be by birth even if he or she was born outside Zimbabwe. You will see, however, that we have allowed Parliament to limit the right to citizenship by birth so that children born outside Zimbabwe to parents who are themselves citizens by descent will not be entitled to citizenship.
Dual citizenship
Although dual citizenship is a “parked” issue, we have made provision for it indirectly by stating that citizens by birth do not lose their citizenship by virtue of being citizens of another country. Again, this follows the Kenyan model. We emphasize that on this point our draft is only a suggestion and is intended to help you reach on the issue of dual citizenship.
We turn to the individual clauses of the Chapter:
Clause 3.1
The effect of subclause (1) is that there is no hierarchy of citizenship, with some citizens being given more rights than others (except of course as is provided in the Chapter itself).
Subclause (2) sets out the duty of citizens to be patriotic, to respect the constitution and the nation’s symbols, and to defend Zimbabwe when needed.
Subclause (3) conversely, sets out the right of citizens to protection from the State wherever they are.
Clause 3.2
This clause deals with citizenship by birth. As indicated above, people will be Zimbabwean citizens if one of their parents is a Zimbabwean citizen, whether they are born inside or outside the country (subclause (1)). Parliament however will be able to withhold citizenship from people who are foreign-born if their parents are also foreign-born Zimbabweans (subclause (2)); the effect is that Parliament will be able to restrict citizenship by birth to the second generation of foreign-born Zimbabweans.
Under subclause (3) foundlings – children under the age of 12 found abandoned in Zimbabwe – will be presumed to have been born in Zimbabwe. This will give such children a right, which they currently do not enjoy, to be issued with a birth certificate. The subclause will give effect to article 2 of the U.N. Convention on the Reduction of Statelessness and is adapted from section 14(4) of the Kenyan constitution. Note that the Kenyan constitution fixes the maximum age for foundlings at eight years; we have it at 12 because that is the age at which children begin to become legally responsible.
Subclause (4) will allow people born or found in Zimbabwe before the date of commencement of the new constitution to take advantage of subclauses (1) and (3) of this clause.
Clause 3.3
The effect of this clause is that citizens by birth will not lose their citizenship through being dual citizens.
Clause 3.4
This clause combines citizenship by marriage and citizenship by registration.
Under subclauses (1) and (2) people who have been married to Zimbabwean citizens for 10 years or more, and people who have lived in Zimbabwe for 10 years or more, will be entitled to be registered as citizens if they comply with conditions fixed by Parliament; these conditions may relate to such things as good behaviour and renunciation of foreign citizenship. The 10-year period of residence is fixed in section 7 of our present constitution; in Kenya the equivalent period is seven years.
Under subclause (3) adopted children will be entitled to registration as citizens.
Subclause (4) will require Parliament to establish procedures under which classes of people other than those specified in subclauses (1) and (3) can become citizens by registration.
Clause 3.5
This clause sets out the circumstances in which citizenship be revoked. They are largely self-explanatory, though you should note that in subclause (1)(c) we have limited to five years the period within which a person may have his or her citizenship by registration revoked because of a criminal conviction. It seems unjust to revoke the citizenship of a person who has been a citizen by registration for a longer period.
Clause 3.6
The purpose of this clause is to protect married women.
Clause 3.7
This is a savings provision which preserves pre-existing rights of citizenship. It could go among the transitional provisions of the new constitution but it is more prominent if it is inserted in this Chapter.
Clause 3.8
Subcluase (1) will require the establishment of a Citizenship and Immigration Board. The subclause is adapted from clause 75 of the Kariba draft, and seems a useful provision.
Subclause (2) will allow Parliament to enact legislation dealing with procedural matters and generally filling in the gaps in the chapter.
Yours faithfully,
…………………………………. ………………………………. ………………………………..
M.H. Chinhengo B.D. Crozier P.S. Madzonga
CHAPTER 3
CITIZENSHIP
3.1 Zimbabwean citizenship
(1) All Zimbabwe citizens are equally entitled to the rights, privileges and benefits of
Citizenship and are equally subject to the duties and obligations of citizenship.
(2) It is the duty of every Zimbabwean citizen-
(a) to observe this Constitution and to respect its ideas and institutions.
(b) to respect the national flag and the national anthem; and
(c) to the best of their ability, to defend Zimbabwe in time of need.
(3) All Zimbabwean citizens are titled to the protection of the state wherever they may be.
(4) Zimbabwean citizenship may be acquired by birth or registration.
3.2 Citizenship by birth
(1) Persons are Zimbabwean citizens by birth if when they are born, whether in Zimbabwe or elsewhere, either their mother or father is a citizen of Zimbabwe.
(2) An Act of Parliament may limit the effect of subsection (1) on the descendents of Zimbabwean citizens who were themselves born outside Zimbabwe.
(3) A child found in Zimbabwe who is, or appears to be, less than twelve years of age,
and whose nationality and parents not known, is presumed to be Zimbabwean
citizen by birth.
(4) Subsections (1) and (3) apply also to people born before the effective date in the
circumstances described in those subsections.
3.3 Rights of citizens by birth
Zimbabwean citizens by birth do not lose their citizenship by acquiring the citizenship of another country.
3.4 Citizens by registration
(1) Anyone who has been married to a Zimbabwean citizen for at least ten years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament, is entitled on application to be registered as a Zimbabwean citizen.
(2) Anyone who has been continuously and lawfully resident in Zimbabwe for at least ten years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament, is entitled, on application, to be registered as a Zimbabwean citizen.
(3) A child who is not a Zimbabwean citizen, but is adopted by a Zimbabwean citizen, whether before or after the effective date, is entitled on application to be registered as a Zimbabwean citizen.
(4) An Act of Parliament must establish conditions on which citizenship may be granted to individuals who are citizens of other countries.
3.5 Revocation of citizenship
(1) If a person acquired Zimbabwean citizenship by registration, the citizenship may be revoked if-
(a) The person acquired the citizenship by fraud, false representation or concealment of a material fact;
(b) During a war in which Zimbabwe was engaged, the person unlawfully traded or communicated with an enemy or was engaged in or associated with any business that was knowingly carried on so as to assist an enemy in that war; or
(c) Within five years after becoming a Zimbabwe citizen, the person is convicted of a criminal offence specified in an Act of Parliament.
(2) If a person acquired Zimbabwean citizenship by birth, having been presumed to be such a citizen as provided in section 3.2(3), the citizenship may be revoked if-
(a) the citizenship was acquired by fraud, false representation or concealment of a material fact by any person; or
(b) the person’s nationality or parentage becomes known, and reveals that the person was a citizen of another country.
3.6 Retention of citizenship despite marriage or dissolution of marriage
Zimbabwe citizenship is not lost through marriage or the dissolution of marriage.
3.7 Continuation of previous citizenship
Everyone who, immediately before date, was a Zimbabwean citizen continues to be a citizen of Zimbabwe after that date.
3.8 Powers of Parliament in regard to citizenship
(1) An Act of Parliament must provide for establishment of a Citizenship and Immigration Board consisting of a chairperson and at least two other members, appointed by the President, to be responsible for-
(a) granting and revoking citizenship by registration;
(b) permitting persons, other than citizens, to reside and work in Zimbabwe, and fixing the terms and conditions under which they may so reside and work;
(c) exercising any other functions that may be conferred or imposed on the Board by or under an Act of Parliament.
(2) An Act of Parliament may make provision, consistent with this Chapter, for-
(a) procedures by which Zimbabwean citizenship may be acquired;
(b) the voluntary renunciation of Zimbabwean citizenship;
(c) procedures for the revocation of Zimbabwean citizenship; and
(d) generally giving effect to this Chapter.
DRAFTERS’ SUBCOMMITTEE
CONSTITUTIONAL PARLIAMENTARY COMMITTEE
Our ref: Drafters Letter 4.1
9 December 2011
The Co-Chairs,
Constitutional Parliamentary Committee
Dear Sirs
Draft Constitution: Chapter 4
We attach a copy of our first, preliminary, draft of Chapter 4 of the new constitution.
This Chapter deals with the Declaration of Rights and proceeds from the premise that the bedrock of rights and freedoms is equality. The rights and freedoms in this Chapter are entrenched and justiciable. This Chapter addresses the fundamental rights and applicable to all the rights and freedoms and further provides for the rights which may not be derogated from during a state of emergency. The formulation of these rights is similar to that of Constitutions of countries in Sub-Saharan Africa such as Kenya, Namibia, South Africa, Botswana and Zambia.
When going through the individual clauses f this Chapter, please remember that each one of them is subject to the general derogations contained in clause 4.38.
Part 1: Specific Human Rights and Freedoms
Clause 4.1 Right to life1
This clause protects the right to life, including the lives of unborn children. It permits the enactment of a law which will provide circumstances in which pregnancy may be terminated. It proscribes the death sentence as a penalty and prohibits any further executions when this constitution comes into force. The proscription of further executions is in furtherance of the protection of the right to life and the abolition of the death penalty.
We realize that the death penalty is a parked issue and what we have stated in this regard is no more than a suggestion.
Clause 4.2 Right to personal liberty
This clause protects personal liberty and abolishes imprisonment for debt or for failure to meet any other civil obligation except imprisonment for contempt of court. A person may be deprived of personal liberty only in accordance with the law. Civil imprisonment is prohibited by the Article 11 of the Covenant on Civil and Political
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¹Seven SADC countries, namely Mozambique, Seychelles, Namibia, South Africa, Tanzania, Angola and the DRC have done away with the death penalty
Rights to which Zimbabwe is a party. The subclause (3) reflects the existing common law on arrest and is mention here because the law is not clearly reflected in the Criminal and Procedure & Evidence Act.
Clause 4.3. Right to human dignity
This clause recognizes the inherent dignity of every person and imposes an obligation to have it respected and protected.
Clause 4.4. Freedom from torture or inhuman or degrading treatment
This clause proscribes torture and cruel and inhuman and degrading treatment or punishment. We have not included the exceptions contained in section 15 of the present constitution. Any derogations to this clause will have to be subject to the general limitations in clause 4.38.
Clause 4.5. Freedom from slavery, servitude and forced labour
This clause proscribes slavery and forced labour.
Clause 4.6. Equality and non-discrimination
The clause guarantees equality before the law for everyone and prohibits unfair discrimination on listed grounds, which list is not exhaustive. It emphasizes gender equality in all aspects of life and addresses both direct and indirect discrimination. It permits positive discrimination in favour of those disadvantaged by unfair discrimination in the past where genuine need so demands.
The clause does not expressly prohibit discrimination on the grounds of “natural difference or condition”. These words were inserted in the Constitution Commission draft of 1999 and also in the Kariba Draft (which was agreed to by the negotiators of all the parties to the inclusive government). The words were intended by the Commission to allow the courts to extend the non-discrimination clause to homosexuals if the courts considered it legally appropriate to do so. In other words, the issue was left to the courts and we suggest that this may be the best way to deal with it.
Clause 4.7. Right to privacy
This clause guarantees everyone’s right to privacy in their person and home and prohibits arbitrary search of their person, home or premises, arbitrary seizure of their possessions and interference with their communications.
Clause 4.8. Freedom of association
This clause guarantees freedom of association, implicit in which is freedom of dissociation. It prohibits forced association or attendance at any gathering or meeting.
Clause 4.9. Freedom of assembly, demonstration, picketing and petitioning
This clause guarantees peaceful demonstrations.
Clause 4.10. Freedom of conscience
This clause guarantees the right to freedom of conscience, thought, opinion, religion or belief and to propagate one’s beliefs. Further, it protects academic and artistic freedom. In terms of this clause, a person may not be compelled to ___________________________
²We note that personal information protected under the Access to Information and Protection of Privacy Act is defined as including a person’s sexual orientation.
take an oath contrary to their beliefs; parents are granted the right to determine the moral and religious upbringing of their minor children; and religious communities are permitted to establish institutions for the furtherance of their beliefs.
Clause 4.11. Freedom of expression and freedom of the media
This clause guarantees the freedom of speech which includes the right to receive or impart ideas, to express oneself artistically and engage in scientific research. The clause also guarantees the right to a free the right to a free media and the independence of State-owned media but incitement to violence and advocacy of hatred are prohibited. Journalistic sources of information are protected.
Clause 4.12. Access to information
This clause guarantees everyone’s right of access to information held by the State or anyone else. Where information is held by anyone else, the right applies if the information is required for the exercise or protection of nay person’s right. Legislation must be enacted to give effect to this right subject to measures for alleviating administrative or financial burden on the State.
Clause 4.13. Language and culture
This clause grants persons the right to use a language of their choice and to participate in their cultural life so long as it does not offend this Constitution.
Clause 4.14. Freedom of profession or occupation
This clause guarantees everyone the right to choose a practice their profession and occupation subject to appropriate regulation by law.
Clause 4.15. Labour relations
This clause guarantees everyone the right to fair labour practices and the right to join employer and employee organizations. Every employee is guaranteed the right to strike or to engage in other industrial action. Employers, employees, and their organizations are guaranteed the right to engage in collective bargaining. The clause emphasizes the equality of women and men in respect of remuneration for similar work and women’s right to maternity leave.
Clause 4.16. Freedom of residence and movement
This clause addresses the right to reside anywhere in Zimbabwe and the right to free movement in and out of Zimbabwe. For this right to be fully realized, this clause also guarantees citizens the right to a passport.
Clause 4.17. Political rights
This clause grants citizens the right to free, fair and regular elections and the right to make political choices freely. Consequently, citizens have the freedom to participate in peaceful political activity and citizens over the age of 18 have the right to vote in all elections and referendums and to stand for election for public office. In order to promote multi-party democracy, this clause provides for the enactment of a law for the funding of political parties which uphold the principles and values of this Constitution and whose internal structures are not inimical to democratic principles.
Clause 4.18. Administrative justice
This clause grants the right to fair administrative action, that is to say decisions and actions of those who perform governmental actions or functions of a public nature, for example, licensing authorities, whether within or outside government. It requires that those who are seized with these functions give written reasons upon request by any aggrieved person. In this regard, the clause provides for the enactment of legislation on the procedures for the review of administrative action by the courts or other independent and impartial tribunals. It enjoins the State to give effect to these rights in order to promote an efficient public administration.
Clause 4.19. Property rights
This clause deals with property rights. In doing so, it deals with the rights to rural land as defined separately from rights to all other forms of property.
In respect of property other than rural land, the clause guarantees everyone’s right to acquired, hold and dispose of property and protects everyone against compulsory deprivation of property. It however permits deprivation where such deprivation is in terms of a law of general application and the deprivation is necessary in the interests of defense, public safety, etc. Further, the clause provides for prompt payment of adequate compensation and the right of the person affected by the deprivation to apply to the High Court for the determination of the matter. The High Court is empowered to fix the amount of compensation for the deprivation.
In respect of rural land, this clause is based on the understanding that land, as other natural resources, belongs to the people and is not necessarily subject to the traditional private law conception of ownership of property. It also recognizes the need and creates scope forth the equitable sharing of this resource (paragraph 5 and 19 of Draft Constitutional Principles). Accordingly, this clause provides for the enactment of a law on the use and occupation of rural land and the compulsory deprivation of rights in such land. The law to be enacted must:
¨ Be of general application;
¨ May be inconsistent with the rights applicable to all other forms of property;
¨ May differentiate between different classes of rural land and the occupiers of those different classes of rural land;
¨ Must provide occupiers of rural land with fair and reasonable security of tenure;
¨ Must establish transparent and equitable procedures for settlement or allocation of rural land;
¨ Must protect occupiers against arbitrary deprivation of their rights;
¨ Must provide for the payment of fair compensation for the deprivation, having regard to the current use of the land, history of the acquisition and the investment in or improvement of the land by the occupier and the purpose of the acquisition.
We believe it I important to differentiate between rural land and other property. The new constitution cannot solve the land issue in Zimbabwe. It can however, provide a mechanism – we suggest a Land Tenure Act – through which the issue can be resolved. What we have put forward in this clause is only a suggestion, but we believe it offers a practical solution to the problem.
The following five clauses embody what are commonly referred to as social and economic rights, and in accordance with the Select Committee’s agreed issues these rights are justiciable under this draft constitution.
Although these rights are contained in the Declaration of Rights and are enforceable as such, they are not absolute. The State is only obliged to take measures to allow them to be realized progressively. In other words, if the State cannot afford to provide one of these rights, the State may escape liability if it can show that it lacks the necessary resources to achieve the right concerned.
Clause 4.20. Environment
This clause grants everyone the right to a healthy environment and it requires the State to take reasonable legislative and other measures to protect the environment by adopting measures that prevent pollution and ecological degradation and secure ecologically sustainable development.
Clause 4.21. Housing
This clause grants the right to have access to adequate housing and obliges the State to work towards fulfilling the right. Equally important is the right granted under subclause (2) for the protection against eviction or against demolition of one’s home without an order of court.
Clause 4.22. Education
This clause grants a right to State-funded education from pre-school to primary level and the State is required to take the necessary legislative measures within its available resources to achieve the progressive realization of the right. The clause also grants everyone the right to establish and maintain independent educational institutions at their own expense provided that they are operated in conformity with this Chapter. Regulation of such schools through legislation is provided for.
Clause 4.23. Health care
This clause grants the right to have access to State-funded basic health care services, and the right to emergency medical treatment at any medical facility, whether State-funded or not. Again, the State must take the necessary legislative measures within its available resources to achieve the progressive realization of the right.
Clause 4.24. Food and water
This clause grants a right to sufficient food and drinkable water and the State must take the necessary legislative measures within its resources to achieve the progressive realization of the right.
Clause 4.25. Marriage
This clause gives every adult a right to marry and prohibits forced marriages.
Clause 4.26. Right to a fair hearing before a court.
This clause grants the right of access to the courts and guarantees the right to a fair and public trial within a reasonable time, before an independent and impartial court or tribunal established by law. More detailed rights in this regard are set out in Part 2.
Part 2: Specific application of certain rights
Clause 4.27. Application of Part 2
This part addresses rights specific to certain vulnerable groups such as children, older people, women, persons with disabilities, and arrested, detained and accused persons. This part however does not curtail any of the rights or freedoms granted in Part 1.
Clause 4.28. Rights of women
This clause emphasizes equality of women with men and declares void all laws, customs, traditions and cultural practices which infringe this right.
Clause 4.29. Rights of children
This clause grants every child the right to a name, birth certificate, parental care, protection from exploitation, education and health services, nutrition and shelter and regulates the conditions under which they may be detained in the event of commission of criminal offences. It also entrenches the paramountcy of children’s best interests in everything concerning them.
Clause 4.30. Rights of older people
This clause guarantees the right of persons over the age of 60 years to participate fully in the affairs of society, to live in dignity and free from abuse and to receive reasonable care and assistance from their families and the State. It obliges the State take the necessary legislative measures within its available resources to achieve the progressive realization of the right.
Clause 4.31. Rights of persons with disabilities.
This clause enjoins the State to take appropriate measures to ensure that persons with disabilities may realize their full mental and physical potential and in particular measures that enable them to become self-reliant, to live with their families and participate in social, creative or recreational activities, protect them from exploitation and give them access to medical, psychological and functional treatment.
Clause 4.32. Rights of arrested, detained and accused persons
The rights granted by this clause are intended to limit the infringement of the rights granted under this Chapter by reason of arrest, detention or of being an accused person. Accordingly, this clause guarantees to such persons the following rights, among others:
the right:
¨ to be informed of the reason for arrest at the time of arrest;
¨ to one phone call to a spouse or near relative;
¨ to a legal practitioner and medical practitioner of own choice;
¨ to humane treatment or humane conditions of detention;
¨ to challenge the lawfulness of the arrest or detention;
¨ to remain silent and to be informed of the right and of the consequences of remaining silent and not remaining silent;
¨ not to be compelled to make a confession;
¨ to be brought before the court within 48 hours;
¨ to be visited by a spouse, next of kin, religious counselor or doctor;
¨ to be released from detention if the detention is unwarranted or, if not tried within a reasonable time, to be released conditionally or unconditionally;
¨ to an order of habeas corpus;
¨ to damages for illegal arrest or detention;
¨ to be presumed innocent until proved guilty;
¨ to have a State appointed legal practitioner if injustice would otherwise result;
¨ to be present at the trial;
¨ to interpretation if required.
Part 3: Application, Interpretation and Enforcement
This Part deals with the application, interpretation and enforcement of fundamental rights and freedoms.
Clause 4.33. Application
This clause provides that the declaration of rights binds the executive, the legislature and the judiciary and all institutions of government and where applicable, natural and juristic persons.
Clause 4.34. Interpretation of the declaration of rights
All adjudicating bodies are required by this clause to give full effect to the declaration of rights; to promote its values and to be guided by it when interpreting or developing any law. They are also required to take into account international and relevant foreign law.
Clause 4.35. Saving of other rights
This clause makes it clear that the listing of the rights in the declaration of rights is not exhaustive and that other rights granted by any other law are also recognized and enforceable.
Clause 4.36. Enforcement of rights
The rights and freedoms in this chapter are enforced through the courts and by the individual concerned or by others on their behalf or by anyone in the public interest. In the interests of assuring access to the courts, no fee may be charged for commencing the proceedings.
Clause 4.37. Limitation or rights and freedoms
Whilst this Chapter guarantees rights and freedoms, it is recognized that in an open, just and democratic society, these rights and freedoms may have to be limited. This clause therefore provides that any limitation must be in terms of a law of general application and must be reasonable, necessary and justifiable in an open, just and democratic society. However, some rights may not be limited under any circumstances, e.g. the right against torture, slavery and the right to a fair trial and the right to obtain an order of habeas corpus. Even in circumstances of a state of emergency, immunity may not be granted for unlawful acts committed during that emergency.
Yours faithfully
……………………………… …..………………………… …………………………………………
M.H. Chinhengo B.D. Crozier P.S. Madzonga
CHAPTER 4
DECLARATION OF RIGHTS
PART 1
FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS
4.1 Right to life¹
(1) Everyone has the right to life.
(2) An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law.
(3) No law may prescribe death as a penalty and form the effective date no executions may take place in Zimbabwe.
4.2 Right to personal liberty²
(1) No one may be deprived of their personal liberty except according to law.
(2) No one may be imprisoned on the ground of failure to fulfill a civil obligation.³ but this does not preclude imprisonment for contempt of court.
(3) No one may be arrested unless the arrest is reasonably necessary4-
(a) to safeguard their safety or health;
(b) to prevent them escape or absconding; or
(c ) to ensure that they –
(i) do not commit an offence; or
(ii) do not interfere with the course of justice.
4.3 Right to human dignity5
Everyone has inherent dignity in their private and public life, and the right to have that dignity respected and protected.
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¹ SADC countries such as Namibia, Angola, Seychelles, Tanzania, South Africa and Mozambique have done away with the death penalty. Equivalent provisions are: s 12 of our present Constitution; s 11, South African Constitution; article 3, Universal Declaration of Human Rights; art 2, European Convention on Human Rights.
² Equivalent provisions are: s 13, our present Constitution; s 12, South African Constitution; art 3, Universal Declaration of Human and People’s Rights; art 5, European Convention for the Protection of Human Rights and Fundamental Freedoms; and art 7, American Convention on Human Rights.
³ This is taken from art 11 of the International Covenant on Civil and Political Rights.
4 The Criminal Procedure and Evidence Act does not adequately cover this right. See also art 6, African Charter on Human and People’s Rights.
5 This is based on s 10, South African Constitution; art 5, African Charter on Human and People’s Rights; art, 6, International Covenant of Civil and Political Rights.
4.4 Freedom from torture or inhuman or degrading treatment and punishment6
No one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
4.5 Freedom from slavery, servitude and forced labour7
No one may be subjected to slavery or servitude or made to perform forced or compulsory labour.
4.6 Equality and non-discrimination8
(1) everyone is equal before the law and has the right to equal protection and benefit of the law
(2) women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(3) everyone has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, birth or place of birth, ethnic or social origin, language, class, religious belief, political or other opinion, custom, culture, sex, gender, marital status, age, disability or natural difference or condition or economic, social or other status.
(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if –
(a) they are subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected; or
(b) other people are accorded directly or indirectly a privilege or advantage which they are not accorded.
(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable and justifiable in an open, just and democratic society based on human dignity, equality and freedom.
(6) To promote the achievement of equality, reasonable legislative and other measures may be taken to protect or advance people or classes of people who have been disadvantaged by unfair discrimination, and –
(a) such measures shall be taken to redress circumstances of genuine need;
(b) no such measure is to be regarded as unfair for the purposes of subsection (3).
____________________________________________________
6 Equivalent provisions; s 15, our present Constitution; s12 (1)(e) of South African Constitution; art 5, Universal Declaration of Human Rights; art 7, International Covenant on Civil and Political Rights; art 5, African Charter on Human and People’s Rights; art 3, European Convention for the Protection of Human Rights and Fundamental Freedoms; and art 5.2, American Convention on Human Rights.
7 Equivalent provisions: s 14, our present Constitution; s 13 of South African Constitution; art 4, Universal Declaration of Human Rights; art 8, International Covenant on Civil and Political Rights; art 5, African Charter on Human and People’s Rights; art 4, European Convention for the Protection of Human Rights and Fundamental Freedoms; and art 6, American Convention on Human Rights.
8 Equivalent provision: s 23, our present Constitution; s 9 of South African Constitution; are 2.1, Universal Declaration of Human Rights; art 2.1, International Covenant on Civil and Political Rights; art 2, African Charter on Human and People’s Rights; art 14, European convention for the Protection of Human Rights and Fundamental Freedoms; and art 1.1, American Convention on Human Rights
4.7 Right to privacy9
Everyone has the right to privacy, which includes the right not to have –
(a) their home entered without their permission;
(b) their person, home premises or property searched;
(c) their possessions seized; or
(d) the privacy of their communications, including electronic and telephonic communications, infringed.
4.8 Freedom of association10
(1) Everyone has the right to freedom of association and the right not to associate others.
(2) No one may be compelled to belong to an association or to attend a meeting or gathering.
4.9 Freedom of assembly, demonstration, picketing and petitioning11
Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.
4.10 Freedom of conscience12
(1) Everyone has the right to freedom of conscience, which includes-
(a) freedom of thought, opinion, religion or belief;
(b) freedom to practice and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others; and
(c) academic and artistic freedom.
(2) No one may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.
(3) Parents and guardians of minor children have the right to determine, in accordance with their convictions, the moral and religious upbringing of their children.
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9 Equivalent provisions; s 17, our present Constitution; s14 of South African Constitution; art 12, Universal Declaration of Human Rights; art 17, International Covenant on Civil and Political Rights; art 8, African Charter on Human and People’s Rights; art 3, European Convention for the Protection of Human Rights and Fundamental Freedoms; and art 11, American Convention on Human Rights.
10 Equivalent provisions: s 21, our present Constitution; s 18 of South African Constitution; art 20, Universal Declaration of Human Rights; art 22, International Covenant on Civil and Political Rights; art 10, African Charter on Human and People’s Rights; art 11, European Convention for the Protection of Human Rights and Fundamental Freedoms; and art 15, American Convention on Human Rights.
¹¹Equivalent provision: s 21, our present Constitution; s 17 of South African Constitution; art 20, Universal Declaration of Human Rights; art 21, International Covenant on Civil and Political Rights; art 11, African Charter on Human and People’s Rights; art 11, European convention for the Protection of Human Rights and Fundamental Freedoms; and art 16, American Convention on Human Rights.
¹²Equivalent provision: s 19, our present Constitution; s 15, South African Constitution; art 18, Universal Declaration of Human Rights; art 18, International Covenant on Civil and Political Rights; art 8, African Charter on Human and People’s Rights; art 9, European convention for the Protection of Human Rights and Fundamental Freedoms; and art 12, American Convention on Human Rights.
(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.
4.11 Freedom of expression and freedom of the media¹³
(1) Everyone has the right to freedom of expression, which includes –
(a) freedom to seek, receive and communicate id as and other information regardless of frontiers;
(b) freedom of artistic expression and scientific research and creativity; and
(c) freedom of the press and other media of communication.
(2) Freedom of the press and other media of communication includes protection of the confidentiality of journalists’ sources of information.
(3) The State shall not –
(a) exercise control over or interfere with anyone engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or
(b) penalize anyone for any opinion or view or the content of any broadcast, publication or dissemination
(4) Broadcasting and other electronic media of communication have freedom of establishment, subject only to licensing procedures that –
(a) are necessary to regulate the airwaves and other forms of signal distribution; and
(b) are independent of control by government or by political or commercial interests.
(5) All State-owned media of communication shall –
(a) be free to determine independently the editorial content of their broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent views and dissenting opinions.
(6) Freedom of expression does not include-
(a) incitement to violence; or
(b) advocacy of hatred which is based on nationality, race, colour, tribe, birth or place of birth, ethnic or social origin, language, class, religious belief, political or other opinion, custom, culture, sex, gender, marital status, age, disability or natural difference or condition, and which amounts to incitement to discrimination or hostility.
13 Equivalent provision: s 20, our present Constitution; s 16 of South African Constitution; art 19, Universal Declaration of Human Rights; art 19, International Covenant on Civil and Political Rights; art 9 (2), African Charter on Human and People’s Rights; art 10, European convention for the Protection of Human Rights and Fundamental Freedoms; and art 13, American Convention on Human Rights; and s 34,Kenyan Constitution.
4.12 Access to information14
(1) Everyone, including the press and other media of communication, has the right of access to –
(a) any information held by the State; and
(b) information held by anyone else in so far as that information is required for the exercise or protection of any person’s rights under this Constitution or any other law.
(2) Legislation must be enacted to give effect to this right, but may provide for reasonable measures to alleviate the administrative and financial burden on the State.
4.13 Language and culture15
Everyone has the right to use the language, and to participate in the cultural life, of their choice, but no one exercising this right may do so in a way that is inconsistent with this Chapter.
4.14 Freedom of profession or occupation16
Everyone has the right to choose and carry on any profession or occupation, but the practice of a profession or occupation may be regulated by law.
4.15 Labour relations17
(1) Everyone has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage.
(2) Everyone has the right to form and join trade unions, employee or employers’ associations of their choice.
(3) Every employee has the right to strike, sit in, withdraw their labour, or to take other similar concerted action.
(4) Every employee, trade union, employee organization, employer or employer’s organization has the right to engage in collective bargaining.
(5) Women and men have a right to equal remuneration for similar work.
(6) Women employees have a right to fully paid maternity leave for a period of t least three months.
4.16 Freedom of residence and movement18
(1) Everyone has the right to freedom of movement and the right to leave Zimbabwe.
(2) Every citizen of Zimbabwe has the right to enter, to remain in and to reside anywhere in Zimbabwe.
14 Equivalent provisions: s 32, South African Constitution; s 35, Kenyan Constitution.
15 This is based on s 30, South African Constitution; s 44, Kenyan Constitutional
16 S 22, South African Constitution; art 8, African Charter on Human and people’s Rights
17 Are 7 &8, covenant on Economic, Social and Cultural Rights; s 23, South African Constitution
18 Equivalent provision: s 22, our present Constitution; s 21 of South African Constitution; art 13, Universal Declaration of Human Rights; art 12, International Covenant on Civil and Political Rights; art 12, African Charter on Human and People’s Rights; art 22, American Convention on Human Rights; and s 39,Kenyan Constitution.
(3) Every citizen of Zimbabwe has the right to a passport
4.17 Political rights19
(1) Every citizen of Zimbabwe has the right –
(a) to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and
(b) to make political choices freely.
(2) Except as provided in Chapter …., every citizen of Zimbabwe has the right –
(a) to form, to join, to participate in the activities of, and to recruit members for, a political party or organization of their choice;
(b) to campaign for a political party or cause;
© to participate in peaceful political activity intended to influence the composition and policies of the Government; and
(d). to participate, individually or through civic organizations, gatherings or groups or in whatever manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.
(3) Every citizen of Zimbabwe who is of or over the age of eighteen years has the right-
(a) to vote in all elections and referendums to which this Constitution applies, and to do so in secret; and
(b) to stand for election for public office and, if elected, to hold such office.
(4) For the purpose of promoting multi-party democracy, an Act of Parliament must provide for the funding of political parties, but such funding may be withheld from political parties which do not uphold the principles and values of this Constitution or whose internal structures and procedures are not reasonably democratic.
4.18 Administrative justice20
(1) In this section-
“administrative action” means any decision or act of a public officer or of a person performing a governmental function or a function of a public nature.
(2) Everyone has a right to administrative action that is lawful, rational, proportionate and procedurally fair.
(3) Anyone whose rights have been adversely affected by administrative action has the right to be given written reasons for the action.
(4) An Act of Parliament must give effect to these rights, and must –
(a) provide for administrative action to be reviewed by a court or, where appropriate, by an independent and impartial tribunal;
(b) impose a duty on the State to give effect to the rights in subsections (2) and (3); and
19 Equivalent provision: s 23 (a), our present Constitution; s 19 of South African Constitution; art 25, International Covenant on Civil and Political Rights; art 25, African Charter on Human and People’s Rights; art 13, and s 38,Kenyan Constitution.
20 This is based on s 33 of South African Constitution; s 47 of Kenyan Constitution.
(c) promote an efficient administration
4.19 Property rights21
(1) In this section -
“land” includes –
(a) anything permanently attached to or growing on land; and
(b) any interest in or right over land;
“property” means property of any description and any interest in or right over property;
“rural land” means land other than-
(a) land within the area of an urban local authority; or
(b) land within a township established or set aside under a law relating to town and country planning;
and includes Communal land.
(2) Subject to subsection (4), everyone has the right, in any part of Zimbabwe, to acquire, hold and dispose of all forms of property, either individually or in association with others.
(3) Subject to subsection (4), no one may be compulsorily deprived of their property except where the following conditions are satisfied-
(a) the deprivation must be in terms of a law of general application;
(b) the deprivation is necessary for any of the following reasons-
(i) in the interests of defense, public safety, public order, public morality, public health or town and country planning;
(ii) in order to develop or use that or other property for a purpose beneficial to the community;
And
(c) provision is made by law-
(i) for the prompt payment of adequate compensation; and
(ii) for anyone affected by the deprivation to have a right of access to the High Court, either directly or on appeal from another tribunal or authority, for determining-
A. the existence, nature and value of their interest in the property concerned;
B. the legality of the deprivation; and
C. the amount of any compensation to which they are entitled, and for obtaining prompt payment of that compensation.
(4) A law may make provision for the use and occupation of rural land and for the compulsory acquisition of rural land, and its provisions may be inconsistent with subsections (2) and (3), but the law must-
21 Partly based on s 16, our present Constitution; s 25 of South African Constitution.
(a) be of general application, but may differentiate between different classes of rural land and the occupiers of those different classes of land;
(b) provide occupiers of rural land with fair and reasonable security of tenure;
(c) to the extent that it provides for the settlement of persons on rural land, establish transparent and equitable procedures for the allocation of such land;
(d). not permit anyone to be arbitrarily deprived of their right to use or occupy rural land;
(e) provide for compensation to be paid for the deprivation of a right to use or occupy rural land, which compensation must reflect a just and equitable balance between the public interest and the interests of those affected by the deprivation, having regard in particular to the following circumstances-
(i) the current use of the rural land;
(ii) the history of the acquisition and use of the rural land;
(iii) the value of the rural land;
(iv) the extent of any investment made in the acquisition and improvement of the rural land; and
(v) the purpose of the acquisition.
4.20 Environment²²
Everyone has the right-
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that-
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
4.21 Housing²³
(1) Everyone has the right to have access to adequate and safe housing, and the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.
(2) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.
______________________
²² s 24, South African Constitution; s 42, Kenyan Constitution.
²³ s 26, South African Constitution
4.22. Education24
(1) Everyone has the right to State-funded education from pre-school to primary level, and the State must take reasonable realization of this right.
(2) Everyone has the right establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided they don’t discriminate on any ground prohibited by his constitution.
(3) A law may provide for the registration of schools referred to in subsection (2) and for the closing of any such schools that do not meet reasonable standards prescribed for registration.
4.23. Health care25
(1) Everyone has the right to have access to basic health-care services provided or funded by the State.
(2) No one may be refused emergency medical treatment.
(3) The State must take reasonable legislative and other measures, within its available resources to achieve the progressive realization of the rights set out in this section.
4.24 Food and water26
Everyone has the right to sufficient and safe food and potable water, and the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.
4.25 Marriage27
(1) Everyone who has attained the age of eighteen years has the right to marry and found a family, and no such person may be prevented from entering into marriage.
(2) No one may be compelled to enter into marriage against their will.
4.26 Right to a fair hearing before a court28
(1) Everyone has the right of access to the courts for the resolution of any dispute that can be resolved by the application of the law.
(2) Everyone accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court established by law.
________________________________
24 s 29 of South African constitution; art 17, African Charter on Human and People’s Rights; art 20, Namibian Constitution; objective XVIII, Ugandan Constitution,
25 objective XX, Ugandan Constitution; s 27, South African Constitution.
26 s 27, South African Constitution.
27 art 23, International Covenant on Civil and Political Rights; art 14 Namibian Constitution
28 Equivalent provision: s 18 (9) & (10), our present Constitution; s 21 of South African Constitution; art 11, Universal Declaration of Human Rights; art 14, International Covenant on Civil and Political Rights; art 7.1, African Charter on Human and People’s Rights; art 6.1, convention for the Protection of Human Rights and Fundamental Freedoms; and art 8.1, American Convention on Human Rights; and s 50,Kenyan Constitution.
(3) In the determination of civil rights and obligations, everyone has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court or tribunal established by law.
PART 2
SPECIFIC APPLICATION OF CERTAIN RIGHTS
4.27 Application of Part 2
(1) This Part elaborates certain rights and freedoms to ensure greater certainty as to the application of those rights and freedom to particular classes of people.
(2) This Part must not be construed as limiting any right or freedom set out in Part 1.
4.28 Rights of women29
(1) Every woman has full and equal dignity of the person with men and this includes equal opportunities in political, economic and social activities.
(2) Women have the same rights as men regarding the guardianship of children.
(3) All laws, customs, traditions and cultural practices that infringe the rights of women are void to the extent of the infringement.
4.29. Rights of children30
(1) Every child, that is to say every person under the age of eighteen years has the right-
(a) to equal treatment before the law, including the right to be heard;
(b) to be given a name and family name;
© in the case of a child who is a citizen of Zimbabwe by birth, to the prompt provision of a birth certificate;
(d). to family or parental care, or to appropriate alternative care when removed from the family environment;
(e) to be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect, abuse and degradation;
(f) to education, health care services, basic nutrition and shelter; and
(g) not to be detained except as a measure of last resort and, if detained-
(i) to be detained for the shortest appropriate period;
(ii) to be kept separately from detained persons over the age of eighteen years; and
(iii). To be treated in a manner, and kept in conditions, that take account of
the child’s age.
_________________________________
29 Art 18, African Charter on Human and People’s Rights; Convention on the Elimination of All Forms of Discrimination Against Women.
30 s28, South African Constitution; art 15, Namibian constitution; s 53, Kenya constitution; art 18, African Charter on Human and People’s Rights; art 25 (2), Universal Declaration of Human Rights; art 10 (3), International Covenant on Economic, Social and Cultural Rights.
(2) A child’s best interests are of paramount importance in every matter concerning the child.
4.30 Rights of older people31
People over the age of sixty years have the right-
(a) to participate fully in the affairs of society;
(b) to live in dignity and be free from abuse; and
(c) to receive reasonable care and assistance from their families and State;
and the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.
4.31 Rights of persons with disabilities³²
The State must take appropriate measures to ensure that disabled persons realize their full mental and physical potential including measures—
(a) to enable them to become self reliant;
(b) to enable them to live with their families and participate in social, creative or recreational activities;
(c) to protect them from all forms of exploitation; and
(d) to give them access to medical, psychological and functional treatment.
4.32. Rights of arrested and detained persons³³
(1) Anyone who is arrested or detained—
(a) must be informed at the time of arrest of the reason for the arrest or detention;
(b) must be permitted, without delay—
(i) at the expense of the State, to contact their spouse or partner, or their next of kin or a close relative, or anyone else of their choice; and
(ii) at their own expense, to consult with a legal practitioner and a medical practitioner of their choice;
and must be informed of this right promptly;
(c) must be treated humanely and with respect for their inherent dignity; and
(d) must be permitted to challenge the lawfulness of the arrest or detention in person before a court and must be released promptly if the detention is unlawful.
(2) Anyone who is arrested or detained—
(a) for the purpose of bringing him or her before a court; or
________________________
31 Art 18, African Charter on Human and People’s Rights; s 13 (j), Malawi Constitution;
32 This is based on XXVI of Ugandan Constitution; art 18, African Charter on Human and Peoples’ Rights; s 54, Kenyan Constitution.
33 Equivalent provision: s 18, our present Constitution; s 35, South African Constitution; art 9 (2), International Covenant on Civil and Political Rights; art 6 & 7, African Charter on Human and People’s Rights; art 6.1, of European Convention for the Protection of Human Rights and Fundamental Freedoms; art 8.1, arts 11 & 12, Namibian Constitution; s 49 & 50, Kenyan Constitution.
(b) for allegedly committing, having committed or being about to commit an offence; and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case may be.
(3) Anyone who is arrested or detained for allegedly committing, having committed or being about to commit an offence has the right—
(a) to remain silent;
(b) to be informed promptly—
(i) of their right to remain silent; and
(ii) of the consequences of remaining silent and of not remaining silent:
(c) not to be compelled to make any confession or admission; and
(d). at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released.
(4) Anyone who is detained, including a sentenced prisoner, has the right—
(a) to be informed promptly of the reason for their being detained;
(c) at their own expense, to consult with a legal practitioner of their choice, and to be informed of this right promptly;
(c) to communicate with, and be visited by, their—
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counselor; and
(iv) chosen medical practitioner.
(d). to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at State expense, of adequate accommodation, nutrition, reading material and medical treatment; and
(d) to challenge the lawfulness of their detention in person before a court and, if the detention is unlawful, to be released.
(5) Anyone who is detained pending trial for an alleged offence and is not tried within a reasonable time must be released from detention, either unconditionally or on reasonable conditions to ensure that after being released they—
(a) attend trial;
(b) do not interfere with the evidence to be given at the trial; and
(c) do not commit any other offence before the trial begins.
(6) If there are reasonable grounds to believe that a person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, anyone may approach the High Court for an order—
(a) declaring the detention to be illegal and ordering the person’s release;
(b) requiring the person responsible for the detention to bring the detained person before the court and to justify the detention or, as the case may be, to disclose the whereabouts of the detained person;
and the High Court make whatever order is appropriate in the circumstances.
(7) An arrest or detention which contravenes this section, or in which the conditions set out in this section are not met, is illegal.
(8) Anyone who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention, but a law may protect the following persons from liability under this section—
(a) a judicial officer acting in a judicial capacity reasonably and in good faith;
(b) any other public officer acting reasonably and in good faith and without culpable ignorance or negligence.
4.33 Rights of accused persons34
(1) Anyone accused of an offence has the following rights—
(a) to be presumed innocent until proved guilty;
(b) to be informed promptly of the charge, in sufficient detail to enable them to answer it;
(c) to be given adequate time and facilities to prepare a defense;
(d). to choose a legal practitioner and, at their own expense, to be represented by that legal practitioner;
(e) to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result;
(f) to be informed promptly of the rights conferred by paragraphs (d) and (e);
(g) to be present when being tried;
(h) to adduce and challenge evidence;
(i) to remain silent and not to testify or be compelled to give self-incriminating evidence;
(j) to have the proceedings of the trial interpreted into a language that they understand;
(k) not to be convicted of an act or omission that was not an offence when it took place;
(i) not to be convicted of an act or omission that is no longer an offence, either because the offence has been abrogated by disuse of, in the case of an offence under a statutory provision, because the provision has expired or been repealed and has not been substantially re-enacted;
(m) not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits;
(n) to be sentenced to the lesser of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing.
(2) Where this section requires information to be given to a person—
(a) the information must be given in a language the person understands; and
______________________________________
34 Equivalent provision: s 18, our present Constitution; s 35, South African Constitution; art 9 (2), International Covenant on Civil and Political Rights; art 6 & 7, African Charter on Human and People’s Rights; art 6.1, of European Convention for the Protection of Human Rights and Fundamental Freedoms; art 8.1, arts 11 & 12, Namibian Constitution; s 49 & 50, Kenyan Constitution.
(b) if the person cannot read or write, any document embodying the information must be explained in such a way that the person understands it.
(3) In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or otherwise be detrimental to the administration of justice or the public interest.
(4) Anyone who has been tried for an offence has the right to be given a copy of the record of the proceedings within a reasonable time after judgment is delivered in the trial.
(5) Anyone who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to—
(a) have the case reviewed by a higher court; or
(b) appeal to a higher court against the conviction and any sentence that may have been imposed.
PART 3
APPLICATION, INTERPRETATION AND ENFORCEMENT OF CHAPTER 3
4.34. Application of Chapter 435
(1) The fundamental human rights and freedoms enshrined in this Chapter bind the executive, the legislature and the judiciary and by all institutions and agencies of government at every level, and must be respected and upheld by them.
(2) Where applicable, the fundamental human rights and freedoms enshrined in this Chapter bind all natural and juristic persons and must be respected and upheld by them.
(3) Juristic persons are entitled to the rights and freedoms enshrined in this Chapter to the extent that
those rights and freedoms can be appropriately extended to them.
4.35. Interpretation of Chapter 436
(1) When interpreting this Chapter a court, tribunal, forum or body—
(a) must give full effect to the rights and freedoms enshrined in this Chapter;
(b) must promote the values that underlie an open, just and democratic society based on human dignity, equality and freedom, and in particular, the principles and values set out in section 1;
© must take into account international law and all treaties and conventions to which Zimbabwe is a party; and
(d). may consider relevant foreign law;
In addition to considering all other relevant factors that are to be taken into account in the
interpretation a Constitution.
(2) When interpreting an enactment, and when developing the common law and customary law, every court, tribunal forum or body must promote and be guided by the spirit and objects of this Chapter.
_________________________________
35 s 8, South African Constitution; s 20, Kenyan Constitution.
36 s 39, South African Constitution; s20, Kenyan Constitution.
4.36 Saving of other rights
This Chapter does not preclude the existence of other rights and freedoms that may be recognized or conferred by law, to the extent that they are consistent with this Chapter.
4.37 Enforcement of rights37
(1) Any of the following persons, namely—
(a) Anyone acting in their own interests;
(b) Anyone acting on behalf of another person who cannot act for themselves;
(c) Anyone acting as a member, or in the interests of a group or class of persons;
(d) Anyone acting in the public interest;
(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the curt may grant appropriate relief, including a declaration of rights and an award of compensation.
(2) The fact that a person has contravened a law does not debar him or her from approaching a court for relief under subsection (1)
(3) The rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1), and those rules must ensure that—
(a) The right to approach the court under subsection (1) is fully facilitated;
(b) Formalities relating to the proceedings, including their commencement, are kept to the minimum;
(c) No fee may be charged for commencing the proceedings
(d) The court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities; and
(e) A person with a particular expertise may, with the leave of the court, appear as a friend of the court.
(4) The absence of rules referred to in subsection (3) does not limit the right to commence proceedings under subsection (1) and to have the case heard and determined by a court.
PART 4
LIMITATION OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS
4.38. Limitation of rights and freedoms38
(1) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of law of general application and to the extent that the limitation is reasonable and is
_________________________________
37 Equivalent provisions; s 24, our present Constitution; s 38, South African Constitution; art 25, Namibian constitution; s 22, Kenyan constitution.
38 Equivalent provision: s 36, South African Constitution; art 29 .2, Universal Declaration of Human Rights; art 4, International Covenant on Civil and Political Rights; art 22, Namibian Constitution; s 24, Kenyan Constitution; s25, our present Constitution.
necessary and justifiable in an open, just and democratic society, taking into account all relevant factors, including—
(a) the nature of the right or freedom concerned;
(b) the purpose of the limitation;
(c) the nature and extent of the limitation;
(d). the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;
(e) the relationship between the limitation and its purpose; and
(f) whether there are any less restrictive means of achieving the purpose of the limitation.
(2) No law may limit the following rights and freedoms, and no one may violate them—
(a) the right not to be tortured or subjected to inhuman or degrading punishment or treatment;
(b) the right not to be placed in slavery;
(c) the right to a fair trial;
(d). the right to obtain an order requiring a detained person to released, or to be brought before a court or requiring the whereabouts of a detained person to be disclosed.
(3) No law that provides for a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of such a declaration, may permit or authorize the granting of immunity, indemnity or amnesty in respect of unlawful acts committed during the state of emergency.
15 December 2011
To: Honourable M. P. Mangwana (MP) – Co Chair Constitutional Parliamentary Committee
From: J. F. Mudenda and G. Masimirembwa – Zanu (PF) Technical Committee Members
CRITIQUE OF DRAFT CONSTITUTION DATED 8TH DECEMBER 2011 PREPARED BY THE THREE DRAFTERS MESSRS. M. H. CHINENGO, B. D. CROZIER AND P. S. MADZONGA AND FORWARDED TO COPAC’S CO-CHAIRS
DRAFT CONSTITUTION: CHAPTER 1
1. 1. THE MANDATE
1.1 The Drafters record their mandate from the Co-Chairs as follows:
“ To provide you with a draft constitution consistent with the agreed principles set out in your documents headed “Draft Constitutional Principles” and “List of Proposed Constitutional Issues, Rainbow Towers Harare”, as well as any additional principles and issues which you agree upon during the 35 –day drafting period;
To provide you with a written explanation of the provisions contained in the draft constitution that we produce, to the extent that an explanation is necessary to understand them;
To fill any gaps in your agreed principles so that the draft constitution that we produce is a complete document covering all issues that a constitution for Zimbabwe should cover;
To inform you if we think that any of the agreed principles are inconsistent with each other, or are inconsistent with international law to which Zimbabwe is a party, or for any other reason are inappropriate for inclusion in a constitution.”
1. 2. History of the current Zimbabwe’s Constitution making process
2.1 The constitution making process which should result in a new constitution for Zimbabwe is a people driven process. COPAC successfully conducted a country wide outreach programme in which the people of Zimbabwe in one thousand nine hundred and fifty (1 950) wards expressed their views on the following thematic areas:
1. Preamble
2. Founding principles
3. Citizenship
4. Bill of rights
5. Women and gender
6. Youth
7. Disabled
8. Media
9. War veterans
10. Land
11. Empowerment
12. Environment
13. Natural resources
14. Labour
15. Religion
16. Systems of government
17. Arms of state
18. Electoral systems
19. Independent public offices
20. Independent commissions
21. Executive commissions
22. Public finance
23. Central bank
24. Traditional leaders
25. Languages, arts and culture
26. Transitional mechanisms
The results of the outreach programme were consolidated into a National Report.
2.2 The technical teams of the three main political parties and traditional leaders used the National Report for the purpose of extracting constitutional issues therefrom. This led to the production of the document titled “List Of Proposed Constitutional Issues, Rainbow Towers Harare.”
However, the List of proposed Constitutional Issues are bare bones without the responses of the people expressed in frequencies being recorded.
One would have to refer to the National Report to get the frequencies or the score in respect of each constitutional issue or question that was posed to the people of Zimbabwe. Thus, to get the preponderant views of the people of Zimbabwe on the listed constitutional issues, one must have regard to the National Report.
The National Report read as a whole enables a drafter to understand the history of Zimbabwe, the present, the future, the joys and tribulations and the values that the people of Zimbabwe cherish, seek to protect and promote.
In short, without the National Report or any of the source documents from ward level to district level, provincial level and finally the national report, a drafter will not be drafting a people driven constitution but a constitution with values of his/her own characterized by reference to constitutions of other countries he/she admires.
And yet Zimbabwe is in the unique position of having an opportunity to come up with a constitution truly based on the will of the people as is reflected in both the qualitative and quantitative aspects of the national report.
When we read the drafters mandate, we immediately realized that there is no mention of either the ward, district, provincial or national reports compiled during the constitution making outreach programme.
The outreach programme contains clear views from the people regarding the constitutional issues they want incorporated into the Constitution by the drafters. The reports contain both quantitative and qualitative analysis of issues/views.
It became clear to us that the Draft Constitution that is being drafted by the drafters is not on the basis of an analysis and appreciation of both the quantitative and qualitative aspects of the people’s views. To us, this is tantamount to throwing away the views of the people and writing a constitution grounded not on the experiences, values and aspirations of the people but on the idiosyncrasies of the drafters. This is a betrayal of the sovereign will and power of the people.
Hon. Mangwana advised us that the drafters were availed with the national report. However, the drafters did not mention this in the draft constitution papers they have submitted suggesting that they did not make reference to the national report but only made reference to the Draft Constitutional Principles and the List of Proposed Constitutional Issues. This renders the whole drafting process illegitimate, for the legitimacy of the new constitution of Zimbabwe must primarily be based on the will of the people as reflected in the national report.
3. THE DRAFT CLAUSES
3.1 Clause 1:
The drafters appear to disown the description of Zimbabwe as “Zimbabwe is one sovereign and democratic republic” as expressed by the people during the outreach and in the Kariba Draft, but for strange reasons prefer the description “The Republic of Zimbabwe.” In fact they even seem not to be interested in calling the country “the Republic of Zimbabwe” as they conclude the clause by writing “And Zimbabwe is not in fact known as the Republic of Zimbabwe.”
The drafters surprisingly wonder what the word “one” adds to the definition of “Zimbabwe”. They say they are not able to work out what it really means.
Quite clearly the drafters appear to be strangers to the values of the people of Zimbabwe. The “one” emphasizes that Zimbabwe is a Unitary state. It expresses the oneness of the country. Indeed the South African constitution captures the oneness of the Republic of South Africa in Clause 1 in the following terms: “The Republic of South Africa is one, sovereign, democratic state …”
They say it is unnecessary to add that Zimbabwe is “democratic”. This strange view is not consistent with the nature of the Zimbabwean state. As already demonstrated above, the South African constitution describes the Republic of South Africa as being “democratic”.
4. Clause 3:
4.1 The drafters are not giving due status to Zimbabwe’s liberation struggle. Zimbabwe gained independence after a protracted liberation struggle in which thousands of its gallant sons and daughters perished and others were maimed. The liberation struggle is indeed the foundation of modern day Zimbabwe and must be placed in its correct historical and ideological context.
4.2 Reading Clause 3 of the narrative together with the Founding Values and Principles, in particular 3 (h), it is clear that the drafters want to negate the oneness of the people of Zimbabwe. What are racial minorities? What are political minorities, etc?
4.3 Clause 3 (k) mentions “the devolution of governmental power to provinces and other appropriate levels.” This, again, is a negation of the country’s oneness. The drafters emphasize devolution, whereas the emphasis should be on a unitary state with devolution being a species of decentralization and de-congestion. Zimbabwe is a unitary state decentralizing functions and services to lower levels of government.
4.4 The national report records that the people of Zimbabwe want a unitary state. Therefore, devolution has to be seen in the context of the underlining imperative of a unitary state.
5. Clause 4:
5.1 National Territory
This clause, with respect, does not define anything. Reference to internationally recognized borders is important.
6. Clause 5:
6.1 National Flag, National Anthem, public Seal and Coat of Arms
These must be in the Constitution – in a schedule.
7. Clause 6:
7.1 Languages
With respect to the drafters, we fail to understand what their role is. Is it to write a Constitution that captures the values of the people of Zimbabwe or to write what they think? The people of Zimbabwe were emphatic during outreach that they want all languages spoken in Zimbabwe made official.
The wish of the people of Zimbabwe is not without precedent. The South African Constitution, section 6 (1) thereof, lists the official languages of South Africa – eleven (11) of them.
Once again, this is a clear demonstration that the drafters are working off at a tangent vis-a-vis the will of the people.
8. Clause 7:
8.1 Promotion of public awareness of Constitution
The drafters say that public awareness of this Constitution must be promoted by “translating it into the languages that are used by substantial numbers of people in Zimbabwe …” What does substantial mean? Surely the translation must be into all official languages/national languages.
CHAPTER 2
9. National Objectives
9.1 Ad para 2.3 (1) (e) development and empowerment
2 (1) (e)
It reads “(1) The State and government institutions and agencies at every level must endeavour to facilitate rapid and equitable development, and in particular must take measures –
(e) to redress imbalances resulting from past practices and policies.”
The drafters seem to shy away from clearly stating what the past practices and policies were. The past practices and policies of racial discrimination, deprivation of the majority, colonial domination etc. must be spelt out. Article 23 (2) of the Namibian constitution is a good example of how past discriminatory practices and policies of a colonial regime ought to be captured in drafting a constitution.
9.2 2.12
War Veterans
- The definition is wholly inadequate. The Chapter is titled Founding Fathers/Mothers, Nationalists, Heroes/Heroines and War Veterans.
- The drafters only addressed the issue of the status of the liberators of this country. Their welfare and entitlement were not addressed.
CHAPTER 3
10. Citizenship
10.1 Methods of acquiring citizenship
Combining citizenship by birth and descent to mean citizenship by birth is mischievous and has clear ulterior motives of opening floodgates for acquisition of Zimbabwean citizenship by birth and descentthrough grandparents. During outreach, people were asked the manner in which a person acquires Zimbabwean citizenship. The response was by birth; by descent etc. The people did not combine the two to mean “by birth”. So the difference must be maintained.
10.2 Dual citizenship
The people of Zimbabwe rejected dual citizenship. The attempt by the drafters to sneak it through the backdoor must be rejected. Uganda is an example of a country with mono-citizenship.
10.3 3.1 (2) Zimbabwean citizenship
It reads: (2) “It is the duty of every Zimbabwean citizen -
(c) to the best of their ability, to defend Zimbabwe in time of need.”
How is this possible when a dual citizen’s two countries are at war and both call on him/her to defend his/her country? Which one is his/her country? Citizenship is about loyalty to a country, not a commercial transaction, hence the rejection of dual citizenship by the people.
11. Clause 3.2 (3)
11.1 Foundlings
Whilst the provision is progressive, there is need for it to provide for an investigation to be carried out before the child is presumed Zimbabwean.
12. Clause 3.3
12.1 Rights of citizens by birth (dual citizenship)
This was rejected by the people.
CHAPTER 4
13. Draft constitution: Chapter 4
13.1 Part 1: Specific Human Rights and Freedoms
Clause 4.1 Right to life
Death Penalty
Yet again the drafters have ignored the will of the people. To proscribe the death penalty without regard to the people’s will to retain it is tantamount to defiance of the will of the people.
13.2 Clause 4.6
Equality and non-discrimination
The drafters want to sneak in homosexuality and lesbianism through the backdoor. Yet again the will of the people is being subverted. To prohibit discrimination on the grounds of “natural difference or condition” is to condone or allow homosexuality or lesbianism which have been emphatically rejected by the people of Zimbabwe.
13.3 Clause 4.19 Property rights
The drafters do not recognize that the land question is a constitutional issue. Yet land has been at the centre of the contestation between Zimbabwe and Britain since the land was forcibly taken from our fore bearers by colonialists.
In the infamous 1919 AC In Re Southern Rhodesia case, the Privy Council ruled that Africans have no concept of ownership of land and through that ruling constitutionally justified the colonisation of Zimbabwe.
For the drafters, who must be constitutional lawyers, to avoid the land issue proves one point – they are the wrong persons to draft a constitution for the people of Zimbabwe.
When over 84% of the people who participated in the outreach programme said land is a constitutional issue, it will be a betrayal of the highest order if the land issue were to be left unresolved by the constitution. There is a definite need for a constitutional clause under the Bill of Rights which asserts Zimbabweans’ ownership of theirs land and natural resources.
The drafters wrote “The new Constitution cannot solve the land issue in Zimbabwe. It can however provide a mechanism – we suggest a Land Tenure Act.”
The drafters have failed to address Draft Constitutional Principle No. 5 which reads “The constitution should contain mechanisms of redressing colonial imbalances in the distribution of natural resources including land.”
On this and the various other issues we raised, the drafters are not serving the people of Zimbabwe. In fact, they pose a danger to the constitutional stability of the country.
1. i. In the light of the forgoing, we recommend that there be a review of the competence and ideological orientation of the drafters, in particular the one seconded by ZANU (PF).
1. ii. The failure of the drafters to take cognizance of the people’s views disqualifies them as reliable and competent drafters of the envisaged historic constitution.
1. iii. Consequently, the four chapters so drafted to date must stand PARKED to avoid the danger of upsetting the due process of our constitution making process.
1. iv. In this context, we are worried about the security of the Draft Constitution so far presented and in the future between the Principal Drafters and the three Co-Chairpersons as there are no security mechanisms to control their paper trail.
1. v. We recommend that the Select Committee must come up with detailed drafting instructions which must cover all the thematic areas which constitute the core of the drafting process. The views of the people are paramount. Without taking them into account the envisaged historic constitution will be a sham.
Yours faithfully
…………………………………………. …………………………………………
J. F. MUNDENDA G. MASIMIREMBWA
It is clear from Mwonzora’s reply that the drafters were not given the National Report which he chooses to call the National Statistical Report. The documents that were availed to the drafters according to Mwonzora are the Agreed Constitutional Issues and the Constitutional Framework. The Agreed Constitutional issues and the framework can hardly constitute instructions to the drafters. These are bare bones without the flesh. Mwonzora wants to avoid the issue of frequency because he does not want the constitution to be based on the preponderant views of the people. He wants to use the bare bones to then fill in the flesh using his own values rather than the values of the people.
Thus, if Mwonzora is correct about the documents availed to the drafters, it is not surprising that the four chapters are not premised on the values of the Zimbabwean masses. It would be interesting to know from Mwonzora if it is COPAC which instructed the drafters to abolish the death penalty, to provide for homosexuality, to provide only for English, Shona and Ndebele as the official languages, with English being the only language of record?
Is it COPAC which instructed the drafters to expand the meaning of citizenship by birth to include citizenship by descent and thereafter allow dual citizenship for the now combined two categories of citizens? Is it COPAC which instructed the drafters to provide just for respect for war veterans and avoid providing for their welfare and affirmative action in their favour?
Some questions which were posed to Zimbabweans during outreach required direct scoring, for example people were asked whether they liked dual citizenship or not. Surely the preponderant answer is the one that must be contained in the constitution and in this case the people rejected dual citizenship.
Some questions required qualitative answers so that even if a certain question got a low frequency its relevance and importance in the constitution would require that it be included in the constitution. This would achieve the inclusivity as contemplated by article VI of the Global Political Agreement which is an appendix to Amendment No. 19 to the Constitution of Zimbabwe.
Critically what one discerns from Mwonzora’s reply is that he does not want the people of Zimbabwe’s values to be the imperative in the drafting process. He wants the bare bones and then to import the values from elsewhere. This is contrary to the provisions of article VI of the Global Political Agreement which enjoins “the Zimbabwean people to make a constitution by themselves and for themselves”.
On the issue of the National Report which records the views of the people of Zimbabwe the simple and honourable thing for COPAC to do is to publish it before drafting commences.
COPAC has been advertising in the media that it heard the people of Zimbabwe and is now drafting the constitution using what they said. Instead of spending money telling the people what it heard why does it not just publish the report so that the people can see for themselves that indeed COPAC heard them.
This is the transparency that Mwonzora is strenuously fighting against for the obvious reason that it will expose the four chapters so drafted as not being based on the views of the people. If the National Report is not yet ready, how is COPAC able to instruct the drafters, for surely the drafting instructions should be on the basis of a completed report on the views of the people proffered on the different thematic topics.
But what we do know is that the National Report is ready and we as members of the Technical Team have made reference to it during the course of our work. Indeed our terms of reference enjoined us to use the National Report. Those in the ZANU(PF) Technical Committee have insisted and shall continue to insist that frequencies are critical in determining the values that the people of Zimbabwe want recorded, promoted and protected by the constitution.
Failure to use them essentially means the drafters will be left to draft the constitution underpinned by their own value systems which may not coincide with those of Zimbabweans as is clear from a reading of the four chapters they have so far drafted.
*Godwills Masimirembwa and Jacob Mudenda are members of the ZANU(PF) Technical Team
Labels: CONSTITUTION, DOUGLAS MWONZORA, MUNYARADZI PAUL MANGWANA
posted by MrK @ 9:43 AM
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