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New constitution: Appreciation of rights

This week Derek Matyszak, a senior researcher at Research and Advocacy Unit, an independent think-tank, continues to look into the issue of human rights in relation to the new draft constitution adopted by voters in a referendum last weekend.

Opinion by Derek Matyszak

GUIDANCE in interpreting and applying the law is given explicitly to the courts in regard to the rights contained in Chapter 4, the Declaration of Rights. In Section 46(1)(a) the court is enjoined, when interpreting the declaration to “give full effect to the rights and freedoms enshrined in this chapter”.

The use of the word “full” has significant legal implications. Under international law, in implementing human rights instruments, state parties are afforded what is referred to as a “margin of appreciation” which allows a diminution of the right afforded to take into account local conditions.

The use of the word “full” suggests that no margin of appreciation is to be permitted under Zimbabwean law.

In applying the declaration of rights, the courts must also adhere to “the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom”, and, in particular, the principles and values set out in Section 3.

Section 3 (part of Chapter 1) sets out “founding values and principles” which include the supremacy of the constitution, the rule of law, good governance, recognition of the equality, and inherent dignity and worth of all human beings.

Furthermore, the courts, in applying and interpreting the declaration of rights must take  into account international law and all treaties and conventions to which Zimbabwe is a party (Section 46(c)), may consider relevant foreign law (Section 46(e)), and must pay due regard to all the provisions of the constitution, in particular the national objectives (Section 46(d)).

So, for example, if a person is evicted from a property and has nowhere else to go, in interpreting the right to freedom from arbitrary eviction or property under the declaration of rights, the courts must take into account the right to shelter which forms part of the national objectives in Chapter 2 and international laws and treaties which likewise secure these rights.

Many of the provisions of the declaration of rights in the draft closely follow the wording of the South African constitution, which itself borrowed heavily from international human rights instruments. Accordingly, the jurisprudence of international human rights fora applying these instruments must be taken into account by the proposed Constitutional Court when interpreting and applying the declaration of rights.

This should also eventuate if all international treaties to which Zimbabwe is a party are incorporated into domestic law as is stated as a national objective in Chapter 2, Section 34.

In sum, in terms of these provisions, the courts should ensure that all Zimbabweans and those present within the borders of Zimbabwe enjoy the full protection of recognised first-generation human rights in accordance with international best practice and established jurisprudence.

Where a constitution provides for certain rights without simultaneously providing the means by which they may be enforced, they become a mere declaration of intent or aspirational only. While the substance of the rights provided in the draft are transformative and “deepen democratic values in Zimbabwe”, the draft is weak when it comes to the enforcement of these rights.

It has always been a matter of some dispute whether second-generation rights are, or should be, justiciable. Where, for example, judicial enforcement of a first-generation right such as the right to liberty is facile and may be accomplished by the execution of a court order, the enforcement of second-generation rights and the ambit and meaning to be accorded to these rights is problematic.

What, for example, is intended when a constitution asserts that every person has the right to shelter? It cannot be intended to give individuals the right to sue the government and compel the provision of a home as it is unlikely that the government has the resources to provide free housing to all needy Zimbabweans. This then highlights a second issue, that of the separation of powers — one of the fundamental values of the constitution.

Politics at its root is about the allocation of resources. Second-generation rights seem to invite the courts to make decisions about the allocation of state resources, which should be the preserve of the executive and effectively to determine laws establishing policy which should be the preserve of the legislature. For these reasons, during the crafting of the South African constitution, it was a highly contentious issue whether second-generation rights should be justiciable.

The determination requires a delicate jurisprudential balancing act by South Africa’s first Constitutional Court. The balancing act is accomplished in South Africa by providing that the state is only required to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of second-generation rights. The draft constitution follows this formulation and jurisprudence.

As a result, in many instances, this means that the right becomes not a positive right, as suggested at the outset, but rather a negative right — it is used as shield rather than a sword. Thus, rather than the right to claim entitlement of a home from the state, the right is rather used, for example, to prevent the demolition of an unauthorised dwelling unless adequate arrangements are made for alternative shelter.

Enforcement of a provision of this nature should thus prevent the kind of state action witnessed during operation Murambatsvina.

However, unlike the South African constitution, the second-generation rights provided for in Zimbabwe’s draft constitution have mostly been removed from the declaration of rights and appear merely as national objectives.

The importance of this separation is that, while the declaration of rights contains a specific part providing for the enforcement of the rights (Section 85 contained in Chapter 4), there is no equivalent provision in Chapter 2, which sets out most second-generation rights.

As noted earlier, Chapter 2 merely provides that second-generation rights shall “guide” the state and all institutions and agencies of government at every level, in formulating and implementing laws and policy decisions, and that “regard must be had” to second-generation rights when interpreting the state’s obligations under the constitution and any other law.

It is thus unclear whether any remedy is available and whether an approach may be made to the Constitutional Court if the state fails to be duly guided by or to give the necessary regard to the national objectives.

However, three second-generation rights do appear in Chapter 4 (tacked onto the end of the list of first-generation rights) and are thus covered by the enforcement provisions of that chapter. These are the right to education, the right to health care and the right to food and water. As with the second-generation rights provided for in Chapter 2, the requirement is only that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights.

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