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new constitution should come first
The Zimbabwe Independent
March 31, 2006
THIS week Zimbabwe
Lawyers for Human Rights (ZLHR) came out strongly against governments
intention to amend the constitution for the 18th time to set up
a Zimbabwe Human Rights Commission.
On the other
hand, the usual crowd of cheer leaders who applaud every government
move were wheeled onto national television to give the proposed
amendment a thumbs up and to praise government for its vision.
But their blindness
to the realities on the ground and the rules of constitutional governance
is the dangerous instrument which our government has always used
to justify mutilating the constitution for political expediency.
pointed out that the amendment to establish the Zimbabwe Human Rights
Commission will create a mutilated bill of rights and a proverbial
constitution which does not espouse the principles of constitutionalism.
They are right.
shown that in constitutions written on the spur of the moment, at
a specific point in time, usually when society faces very difficult
economic, social and other problems, there is a temptation and often
a necessity to deal with these problems swiftly.
designed to quickly deal with immediate problems may not be appropriate
solutions for the long-term.
In such instances human rights are not adequately protected, and
it will be difficult to do so later.
has been introducing piecemeal constitutional changes to deal with
land, to set up an upper house and now to set up a Human Rights
In the first
two instances, the omnibus amendment carried with it provisions
which infringed the bill of rights by attacking property rights
and abridging the authority of the judiciary to hear cases relating
It will not
be surprising if the proposed amendment also brings in egregious
provisions to limit our democratic rights.
As rightly pointed
out by ZLHR, government should refrain from manipulating and implementing
piecemeal amendments to the constitution, thereby negating the need
for broad-based and inclusive consultation with all stakeholders.
in constitutionalism is deliberate. The governments constitutional
draft was rejected in the 2000 referendum.
It is fully
aware that in an all-inclusive process, the people will reject self-serving
laws. The plan is therefore to introduce piecemeal measures on the
us to the dichotomy arising from Zimbabwes tinkering with
supreme law-making and enactment of legislation.
A constitutional amendment should be necessary to deal with a particularly
important issue. In this case the government has told us that it
intends to protect the citizens of Zimbabwe by setting up a body
that will deal with
human rights abuses by state and non-state actors.
We agree with
human rights lawyers that to establish a human rights commission
in the prevailing legislative and administrative operating environment
without corresponding and simultaneous changes to the current repressive
laws is tantamount to deception and attempts to create illusory
crafted in an environment of state-perpetrated authoritarianism
aided by repressive laws is a mockery to the populace seeking protection
from the constitution.
Laws deemed to infringe the constitution must first be removed from
our statutes if the governments proposed commission is to
be taken seriously.
On that raft
of legislation is the Access
to Information and Protection of Privacy Act and the Broadcasting
Services Act which have been used as a pretext to close independent
media houses, harass and arrest journalists and to close independent
Laws which restrict
the enjoyment of fundamental rights such as assembly, association,
protection of the law, freedom of expression and movement such as
the Public Order
and Security Act, the Miscellaneous Offences Act and Constitutional
Amendment Act No 17 should be repealed.
is crying out for are not more sweet-sounding monoliths fashioned
to bribe the nations conscience that freedoms and protection
of rights will come from statutes.
We live in a
closed society where repression and brutality by security forces
is condoned by the state on the pretext of maintaining law and order
while the courts are unable to uphold the liberties to which we
There is urgent
need for a democratic constitution as the foundation for a democratic
government and only after such a process can our constitution contain
provisions for the establishment of a genuine and effective human
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