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Proposed
constitutional amendment an affront to constitutionalism
Zimbabwe Lawyers
for Human Rights (ZLHR)
July 29, 2005
Zimbabwe Lawyers
for Human Rights (ZLHR) notes the gazetting of the Constitution
of Zimbabwe Amendment (No.17) Bill, 2005 ("the Amendment")
on 15 July 2005. This Amendment presents legislators, the Judiciary,
the entire legal profession and ordinary Zimbabweans with perhaps
their greatest challenge yet.
The Amendment
is the latest in a long line of alterations to a Constitution which,
by its very nature and history, is fundamentally deficient and problematic,
especially in the protections offered under the Declaration of Rights.
The Amendment
seeks to effectively remove the fundamental rights to property [section
16], secure protection of the law [section 18(9)] and freedom of
movement [section 23] from the people of Zimbabwe who rely on the
Constitution for protection against unchecked State action.
It further seeks
to reconstitute the Parliament of Zimbabwe as a bi-cameral legislature
consisting of a Senate and a House of Assembly, with certain representatives
being appointed in an undemocratic manner, which undermines the
principle that the authority to govern derives from the will
of the people demonstrated through elections conducted on the basis
of universal and equal suffrage exercised through a secret ballot,
and the principle that every citizen has the right to participate
in government directly or through freely chosen representatives,
as enshrined in the Electoral Act [Chapter 2:13]
and in the SADC Principles and Guidelines Governing Democratic Elections,
to which Zimbabwe has bound itself. It also imposes fiscal obligations
on the State which, in the current economic climate, will be impossible
to sustain and will endanger the lives and livelihoods of the people
of Zimbabwe.
ZLHR believes
that the Amendment is a direct affront on basic human rights norms
and standards and is a dereliction of the obligations of the State
under section 1 of the African Charter on Human and Peoples’ Rights
(to which it is a State Party) to recognise the rights, duties
and freedoms enshrined in the Charter and to undertake to adopt
legislative and other measures to give effect to them.
The African
Charter guarantees all the rights which the State intends to remove
by way of the Amendment.
The Amendment
effectively usurps the authority of the courts of Zimbabwe by denying
the people of Zimbabwe recourse to the law in challenging State
action which violates fundamental human rights. This puts paid to
the principle of separation of powers, by allowing the Executive
to initiate, implement and adjudicate upon its own actions ensuring
that the State will not be scrutinised nor its actions reviewed
by an independent and impartial tribunal.
The logical
conclusion of allowing such an intended amendment to go unchallenged
will be the complete removal of the functions of the Judiciary and
denial of any form of protection whatsoever for the people who rely
on the courts for protection.
ZLHR strongly
believes that, by its very nature, the Amendment seeks to demolish
the Declaration of Rights and attack the fundamental principle of
constitutionalism, which requires a Constitution to possess a distinctive
solemnity and force, and which subscribes to a conception of popular
sovereignty, where a government is accountable to its people, where
it acts according to established legal frameworks and processes,
and where its powers are limited through checks and balances, which
include an independent and unfettered Judiciary which upholds the
rule of law.
The membership
of ZLHR, as officers of the Court with a duty to the law and the
pursuit of these principles, cannot sit back and fail to act whilst
fundamental rights accruing to people by virtue of their existence
and dignity as human beings are being attacked.
Zimbabwe is
urgently in need of constitutional reform, but this cannot be carried
out in a piecemeal manner. Neither can it be imposed upon the people
of Zimbabwe without broad consultation with all relevant stakeholders.
ZLHR intends
to challenge the passage of this evil piece of legislation in all
manners and through all channels available to the organisation.
ZLHR therefore
calls upon all Parliamentarians to:
- Reject
the imposition of an undemocratic Amendment which has failed to
recognise the need for consultation with themselves or their constituents;
- Initiate
a process of wholesale constitutional reform which takes into
account the views of all stakeholders
ZLHR urges the
Judiciary to:
- Take a
firm and public position against the affront to its dignity, constitutional
function and the threat to its very existence;
- Insist
that basic international norms and standards relating to the protection
of fundamental rights and freedoms be respected by the Executive
and Legislature
- Remind
the Executive and Legislature of their obligations under international
law, to give effect to the fundamental rights and freedoms of
the people of Zimbabwe and ensure them of their entitlements under
domestic and international law
ZLHR further
calls upon civil society organisations to:
- Join together
in condemning the Amendment;
- Urgently
mobilise resources to challenge the current, and any further,
attempts to change the Constitution in a manner which is piecemeal
and non-participatory
ZLHR finally
calls upon the SADC and AU Heads of State and Government and all
relevant mechanisms, including the African Union and the African
Commission on Human and Peoples’ Rights, to intervene in order to
prevent the promulgation of legislation which is likely to worsen
the socio-economic and political crisis in Zimbabwe.
Visit the ZLHR
fact sheet
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