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  • 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


    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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