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This article participates on the following special index pages:
New Constitution-making process - Index of articles
Human
rights and Zimbabwe's Draft Constitution
Derek Matyszak, Research and Advocacy Unit (RAU)
March
2013
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PART
1
Introduction
There are two
basic and contrary models for the crafting
of constitutions in circumstances similar to those facing Zimbabwe
after 15th
September 2008. One is a “transformative” approach
in which the constitution makers try to change essential elements
of the constitutional culture - to make life different in the future.
The other is a “preservative” approach which attempts
to protect longstanding practices. Article VI of the GPA explicitly
indicates that the intention of the agreement is that a transformative
constitution is to be drafted which “deepens” democratic
values in Zimbabwe. Pronouncements by politicians from the MDC formations
(and SADC facilitators) is that the new constitution is intended
to be transformative in the sense that it is to change the conditions
under which Zimbabweans go to the polls in order to protect the
integrity of the electoral process, in accordance with international
standards.
Negotiations
around the draft
constitution reveal that, while the MDC formations are largely
in favour of a transformative model, ZANU PF favours a preservative
model. Both these models are reflected in the comprise document
that has emerged. Where the draft constitution deals with the issues
of the structure of government, presidential and executive power,
the document is largely preservative. In the case of the Declaration
of Rights, the draft is clearly intended to be transformative, with
one or two notable exceptions. It is the Declaration of Rights and
associated clauses which are considered here.
Types
of Rights
Human Rights are generally
accepted as falling into one of three categories named first, second,
and third generation rights, although a United Nations resolution
of 1977 has affirmed that all these rights should be considered
as “indivisible”.
First Generation rights
pertain to civil and political rights such as the rights to life,
the right to liberty, the right to freedom of expression, etc.,
and are set out in Chapter 4 of the draft. These rights are often
regarded as negative rights in that they merely require governments
to refrain from certain acts, such as arbitrarily depriving a person
of his or her freedom. In themselves, they can be applied without
cost to the State. Second Generation rights, by contrast, seek to
impose a positive duty upon States. These rights pertain to social
and economic rights and include the right to housing, food, education,
health, etc., and are set out mainly in Chapter 2 of the draft as
“national objectives”. They obviously have cost implications
for the State. Third Generation Rights are still a developing part
of international rights law, but this category includes community
rights and most frequently included under this rubric is the right
to a clean environment. This right appears as part of Chapter 4.
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