Building vibrant and tolerant democracies
Zimbabwe is in a process of drafting a new constitution to replace the 1979 Lancaster House Constitution, which has been amended 19 times – and has singularly failed to defend human rights and the rule of law. The current constitution making process is a key part of the Global Political Agreement (GPA) and critical to the future of Zimbabwe and its citizens.
It is an opportunity to create – through an inclusive and participatory and people-centred process – a progressive constitution, which will be based on accepted international human rights standards and principles and which will be the foundation for a genuinely open and democratic society.
And while issues pertaining to land and natural resources ownership, citizenship, system of government have been hotly disputed issues, the heart of the constitution is the proposed Bill of Rights (declaration of rights).
So how do the raft of rights enshrined in the first draft of the constitution released by Zimbabwe’s Constitution Select Committee measure up against the most progressive constitutions in southern Africa and international human rights standards – and indeed the draft constitution’s very own ‘commitment to upholding and defending fundamental human rights and freedoms’?
Retention of death penalty
One of the most notable features of the Bill of Rights is the retention of death penalty. With this new constitution, Zimbabwe missed a golden opportunity to join the ‘civilised world’ by removing the death penalty – regarded by an increasing number of countries as a cruel, inhuman, degrading and indefensible form of punishment – from its statute-books once and for all.
In fairness, an attempt was made to axe the death penalty but Zimbabweans still seem to strongly support retaining the death penalty. However, simply because the death penalty attracts popular support makes it insufficient reason to retain it. Constitutional drafters have a responsibility to provide the highest protection of human rights and constitutional norms rather than reflect the perspectives of a society. At least the draft Constitution adheres strictly to internationally accepted limitations on the use of the death penalty so that (1) it can only be imposed on people convicted of murder ‘committed in aggravating circumstances’; (2) it cannot be imposed on people younger than 18 or on pregnant women; (3) the sentenced may seek pardon or commutation of the penalty from the President; and, (4) the Courts have discretionary powers over whether or not to impose the penalty.
And while OSISA approach is to oppose the death penalty, it is not yet outlawed under international law and Zimbabwe is not the only country in the region that still retains it. The Democratic Republic of Congo (DRC), Botswana, Malawi, Tanzania and Swaziland all have the death penalty in their statute-books, although Botswana is the only one which is not heeding the call by the United Nations General Assembly for a de facto moratorium on its use.
Since there is no scientific support for the deterrent effect of the death penalty, the draft constitution seems to have retained capital punishment as a way of accommodating those who strongly back its retention – illustrating that a participatory and people-centred approach doesn’t necessarily lead to a more progressive document. However, the wording in the draft Constitution still represents progress in Zimbabwean terms since crimes such treason, mutiny, non-aggravated murder and drug trafficking will no longer carry the death penalty. Ideally no crimes would, but at least the reach of the death penalty has been sharply reduced.
Corporal punishment outlawed
The draft constitution has banned corporal punishment, which is cause for real celebration. Not only will this reduce the number of southern Africa countries that still have this cruel and inhuman punishment on their books but it also signals that Zimbabwe is moving in the right direction even though it has still not ratified the UN Convention against Torture and other Cruel, Inhumane and Degrading Form of Treatment or Punishment (CAT) – showing that you do not have to ratify international conventions before ‘domesticating’ the key principles.
Equality and non-discrimination
While the equality clause is very broad, it does not – unsurprisingly given the vitriolic attacks by President Mugabe and others – include sexual orientation in its catalogue of anti-discrimination grounds. However, it does leave the question open by including “place or circumstances of birth” – the impact of which is being publicly contested by a section of intellectuals and politicians, who argue that sexual minorities can still go to court to fight discrimination based on their sexual orientation due to the fact that they were born with a different sexual orientation and are therefore protected by the draft Constitution.
Similar wording – such as ‘form of life’ in the Swiss Constitution – has been interpreted as including sexual life and therefore provides a constitutional guarantee prohibiting discrimination on the basis of sexual orientation. Given ZANU-PF’s publicly stated opposition to gay, this wording is possibly the best available compromise – and it must now be left up to the Zimbabwean people to endorse it or not in the referendum and later to the courts to provide a fuller interpretation of its meaning and latitude.
Freedom of assembly
The draft constitution includes the freedom to demonstrate, picket and petition under the freedom of assembly clause – only stipulating that these freedoms must be exercised peacefully. This is a substantial improvement on the current 1979 Constitution, which states that freedom of expression cannot be exercised in public places, including any road, street, lane, path, pavement, side-walk, thoroughfare or similar place that exists for the free passage of people or vehicles.
In addition, if the draft is approved in its current form, there will clearly be no need to get permission from the police before people exercise their freedom of assembly as implied under the draconian Public Order and Security Act (POSA), which will – at long last – become redundant.
Freedom of expression and media
Another proposed improvement is related to the media and access to information. Section 4.12 states that ‘broadcasting and other 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 of government or by political or commercial interests’. It further states that ‘all State-owned media of communication must…be impartial and afford fair opportunity for the presentation of divergent views and dissenting opinions’.
This clause is considerably broader and more detailed than the equivalent clause in the 1996 South African Constitution. And rightly so – since ZANU-PF has almost totally manipulated both the printed and broadcast media and continues to control the airwaves through the biased Zimbabwe Broadcasting Corporation (ZBC) and refuses to allow legitimate private broadcasters to operate.
If the current clause makes it into the new Constitution, it will finally allow for pluralism and diversity in the media sector and provide the legal basis for transforming ZBC into a genuine public broadcaster.
Access to information
The access to information clause (section 4.13) is also forward-thinking. As framed in the draft Constitution, it will ensure that whenever information is required – regardless of whether is held by the State and its organs or by any other person – it has to be made available in order to give meaning to this right. In the case of information held by the State, the draft makes it clear that public accountability should be paramount in guiding the decision to release it. Critically, the word ‘everyone’ in section 4.13 (1) debunks the idea that access to information only concerns the media – highlighting that access to information is every person’s right.
However, access could still be restricted in the interest of defence, public security or professional confidentiality – but only to the extent that the restriction is reasonable, necessary and justifiable in an open, just and democratic society. Unfortunately, these limiting conditions are not clearly defined and may be used in future to undermine the enjoyment of this right.
Rights of suspects, detainees and accused people
The draft Constitution is as detailed and broad as possible in relation to the rights of suspects, detainees and accused people and this has been well received by both civil society and opposition forces that have long complained that law enforcement agents have been abusing their powers – particularly by illegally remanding them in prison.
The draft generally adheres to international standards by ensuring that suspects, detainees and accused people enjoy their full rights and freedoms from pre-trial all the way through to their trial. And if this clause is strictly adhered to it will prevent people from falling victim to arbitrary arrest as well as ensuring that all detainees are presumed innocent until proven guilty by a court, have access to family and lawyers of their choice and have a fair trial.
In addition, the draft maintains a provision that prescribes punitive measures for abuse of office. It states that anyone who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention – so that law enforcement officials who abuse their powers and the law will be personally liable for their actions.
Although the right to property is guaranteed and protected, it can be deprived when a public interest or purpose is at stake. Like the amended 1979 Constitution, the draft Constitution enlists ‘...in the interest of defence, public safety, public order, public morality, public health or town planning’ as situations that may override the right to property. It further indicates that public purposes that can see someone lose his or her right to property include ‘settlement’, ‘land reorganisation’ and ‘redressing the unjust and unfair pattern of land ownership that was brought about by colonialism’. But in all cases, affected people will be entitled to legal recourse to establish the decision’s legality as well as the nature and value of their compensation.
This might be a reaction to the SADC Tribunal Judgment on Mike Campbell (Pvt) Ltd et al. v. the Republic of Zimbabwe, where the tribunal found that Amendment 17 of the Zimbabwe Constitution had eliminated the applicants’ access to the domestic courts and deprived them of their right to a fair hearing before being deprived of their rights. In addition, the Tribunal found that the applicants had been racially discriminated against since the amendment only affected white farmers and that they were entitled to compensation for the expropriation of their lands.
If the draft is approved in its current form, everyone will be entitled to approach a court to ascertain the legality of any appropriation by the State as well as seek adequate compensation – even for white-owned agricultural land.
Rights to shelter
The draft Constitution also makes it clear that no one may be evicted from their home, or have their home demolished without due legal process – a constitutional provision that would prevent another man-made humanitarian crisis like Operation Murambatsvina in 2005, when around 700,000 people were forcibly evicted by the government, had their houses demolished and were not provided with any alternative shelter.
Economic, social and cultural rights
As conservative as the clauses relating to socio-economic rights might appear, they still provide the same level of protection as clauses in the internationally lauded South African Constitution. The Zimbabwean draft grants citizens a range of rights including the right to shelter, basic education, health, food and water. However, it also incorporates the standard limitation to the progressive realisation of these rights – namely ‘within the limits of available resources’.
For example, in the case of education, the draft makes basic state-funded education free, including adult basic education – but secondary and tertiary education are neither compulsory nor free and are dependent on resources for their ‘progressive realisation’. Another major concern is that the right to education does not make provision for people to receive education in a language of their choice – as is the case in South Africa.
As with other issues, it will be up to the Courts to give meaning to these rights by progressively interpreting them and establishing clear criteria to ascertain to what extent the government is working toward implementing them. In South Africa, the Constitutional Court has adopted the standard of ‘reasonableness’ as its primary adjudicative tool in relation to socio-economic rights.
Rights of people with disabilities
The draft has drawn criticism for wrongly picking the phrase ‘rights of persons living with disabilities’, The use of the word living implies that people with disabilities are sick and does not conform with international laws and best practices as outlined in the UN Convention on the Rights of Persons with Disabilities (UNCRPD).Acceptable practice is to refer to People with Disabilities.
Tsarai Mungoni from Zimbabwe National Association of Societies for the Care of the Handicapped (NASCOH) has attacked this terminology and argued that the draft will erode many of the gains of the past two decades since Zimbabwe’s Disabled Persons Act of 1992 is more in line with UNCRPD than the draft Constitution – since the latter is only concerned with physical and mental disabilities, leaving other categories such as intellectual or sensory impairments unprotected.
The draft also limits the enjoyment of these rights – in section 2.12 subsection 2 – to ‘within the resources available to them’. This is totally unacceptable in this day and age. Urgent action and advocacy is required to ensure that this section is altered to safeguard the gains made by people with disabilities organisations and ensure that they enjoy all their basic rights in future.
Application, interpretation and enforcement of the Bill of Rights
In line with all model and progressive constitutions, the Bill of Rights enjoys the status of supremacy over all legislation and other sources of law, as prescribed by section 4.38 (2). As a result, any act of any organ of the State or any policy or law that is inconsistent with a provision of the Bill of Rights shall be declared invalid to the extent of the inconsistency. It also sets up the Constitutional Court as the final arbiter of the Bill of Rights. It also can be applied horizontally – to clubs, corporations and organisations - to the extent possible.
Taking its cue from the South African Constitution, the Zimbabwean draft also establishes guidelines about how to interpret the Bill of Rights. It states that when interpreting the Bill of Rights, the interpreters – in most cases judges – must ‘give full effect to the rights and freedoms enshrined’ and ‘promote the values that underlie an open, just and democratic society based on human dignity, equality and freedom’. Importantly, the interpretation must also consider Zimbabwe’s obligations under international laws, treaties and conventions that it is a party to.
A fundamental test as to whether the Bill of Rights will be interpreted by the courts to protect and promote the rights of people is whether the judiciary will conduct its responsibilities independently, without fear or favour. The current judiciary does not, by and large, enjoy a reputation as being independent. The appointment of new judges will need to meet the highest standards of scrutiny and the Judicial Services Commission will be required to ensure that its appointments are conducted in a transparent and accountable manner.
To leave no margin for error or misinterpretation, it is made absolutely clear that the rights enshrined in the Bill are binding on the State and are therefore judicially enforceable. So the courts can order the State to take the necessary measures to materialise these rights whenever they conclude that the State is not doing so.
And to reinforce the justiciability of the Bill of Rights, the draft grants locus standi to anybody on his/her own behalf and on behalf of third parties – including members of an association, group or class of persons – to approach a court for a relief and compensation if a right or freedom is being – or is likely to be – infringed.
The draft also places great importance on human rights cases to be heard by the Constitutional Court – stating that a full bench must sit when those cases are heard and adjudicated upon.
The limitation clause
Human rights and freedoms can be limited but – in line with the most progressive constitutions – the draft reserves some core rights and freedoms, which cannot be limited or derogated at any cost, namely the right to life (except when a death sentence is imposed by a court of law), to human dignity, not to be tortured, not to be placed in slavery or servitude, to habeus corpus and to a fair trial.
But the constitution also ensures that any limitation on other rights and freedoms must meet strict conditions. For example, it must be done through a law of general application and only to the extent that the limitation is necessary and justifiable in an open, just and democratic society.
Amendments to the Bill of Rights
The draft lays down very stringent rules concerning amendments to the Bill of Rights – a critical issue given the wilful and regular way in which ZANU-PF has amended the Lancaster House Constitution. So if the draft is approved, any proposed amendment to the Bill of Rights would first have to be approved by two-thirds of all members of the Senate and the National Assembly and then be subjected to a national referendum – making it very hard to do.
Independent complaints mechanism against the security services
The proposed Constitution institutes an independent complaints mechanism to deal with claims of misconduct against members of the security services (the defence forces, police service, intelligence services and correctional service) and to provide remedies for any harm caused by proven misconduct. This is absolutely critical in Zimbabwe, where security sector officials have often been accused of misconduct, including serious human rights violations, but have not been brought to book.
Chapter 13 institutions
As beautiful as a Bill of Rights might be, it is worth little more than the paper it is written on without independent and effective enforcement mechanisms. Once again taking its cue from the South African Constitution, the draft establishes institutions that will complement the courts and help to monitor the implementation of, and respect for, the rights and freedoms enshrined in it.
These institutions are called ‘independent institutions supporting democracy’ and include the Human Rights Commission, the Gender Commission, the Media Commission, the National Prosecuting Authority and the Public Protector. While the creation of these mechanisms is a major step forward, the proposed Human Rights Commission is, regrettably, not established under the terms of the UN Paris Principles, which might compromise its integrity and independence. For these types of institutions to be effective they must be independent from the Executive and completely impartial, which is currently not the case. This clause should be reviewed to comply with the UN Paris Principles and ensure that the institutions enjoy the necessary independence and impartiality to be trustworthy and reliable.
Conclusion and recommendations
While catalogue of rights and freedoms in the Bill of Rights is broad, it is not unprecedented in its scope. However, it does protect all three generations of rights – from political to socio-economic and the right to development. It also helps to clarify existing grey areas under the current legal framework. For instance, it reaffirms that protecting human rights and freedom is the task of all branches of the State and that they must take the Bill of Rights into consideration whenever they are drafting policy, legislating or implementing any activity whatsoever.
Given the way that previous loopholes were exploited by the Executive, the normative and prescriptive character of the draft Bill of Rights is a real achievement. Crucially, it departs from the current programmatically-populated Constitution, which left room for Parliament to easily chop and change rights and duties. The draft Bill will be much closer to international norms and standards and much harder to change – since the whims of the Executive will not be able to override the will of the people.
The Bill of Rights also provides respite to Zimbabweans as far as legal protection and recourse is concerned, which are currently unavailable to them due to the weaknesses of the amended Lancaster House Constitution and the fact that the country has not ratified key international human rights instruments such as CAT, the International Convention for the Protection of all Persons against Forced Disappearances, and the Optional Protocol on ICCPR among others.
However, the enjoyment of some rights will be limited in the name of the ‘interest of defence’, ‘public safety’, ‘public order’, ‘public morality’ and “public health’. Since these terms are not clearly defined by the Constitution, it could cause problems and allow other considerations to trump – and hence – dilute some rights. It also places a major responsibility on the Courts since they will be expected to interpret these vague terms. Will they have the strength and independence to so?
But overall, the draft Bill of Rights is a commendably progressive document and should play a key role in helping to build – as the Constitution emphasises – an open, just and democratic society. However, the impact of the Bill of Rights will depend on whether or not Zimbabwe resolves its democratic deficit.
And indeed on whether this Bill of Rights and this Constitution is finally approved or whether a watered down version becomes the compromise agreement. Already ZANU-PF has handed over a 29-page critique of the draft and there will be many battles before a final version is in place. But if the eventual Constitution’s Bill of Rights is similar to the current draft then Zimbabwe will have taken a major step towards the promotion, and protection, of human rights and freedoms.