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to all members of parliament and members of the judiciary
for Human Rights (ZLHR)
August 03, 2005
We, the undersigned
members of the legal profession,
Constitution of Zimbabwe Amendment (No.17) Bill and its implications,
state the following:
of Zimbabwe Amendment (No.17) Bill, 2005 ("the Amendment")
presents legislators, the Judiciary, the entire legal profession
and ordinary Zimbabweans with perhaps its greatest challenge yet.
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.
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
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.
Charter guarantees all the rights which the State intends to remove
by way of 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.
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.
We believe 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.
of the Court with a duty to the law and the pursuit of these principles,
we 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.
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.
We intend to
challenge the passage of this evil piece of legislation in all manners
and through all channels available to us.
We call 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;
a process of wholesale constitutional reform which takes into
account the views of all stakeholders
We further call
upon 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
- 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
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