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A Declaration/Bill of Rights - Constitution Watch Content Series
March 14, 2011
Declaration or Bill of Rights
constitutions have a declaration or bill of rights setting out fundamental
rights and freedoms that are specially protected by the constitution.
Declarations of rights have a long history. English-speaking people
regard their first as the Magna Carta of 1215, while the French
look to the Declaration of the Rights of Man and of the Citizen,
which was adopted at the beginning of the French Revolution in 1789.
The practice of including a statement on rights in constitutions
became prevalent after the UN General Assembly adopted the Universal
Declaration of Human Rights in 1948. The first constitution in this
country to have a declaration of rights was the short-lived 1961
Constitution, and thereafter all our subsequent constitutions have
have a Declaration/Bill of Rights?
of a declaration/bill of rights is to protect the rights of citizens
and ordinary people living in the country. Although generally these
rights must not be overridden by the government, some have to be
qualified. Rights cannot always be absolute – they may have
to be limited to allow the government to govern effectively in the
interests of all its citizens, and some have to be balanced with
the rights of others. But it is important that any limitations on
the rights that are protected by a Declaration/Bill of Rights should
be spelt out. Hence a declaration/bill of rights also has to set
out clearly, unambiguously, specifically and not in general terms
the ways in which a government may legitimately limit the rights
of its citizens and how they are to be balanced with the rights
a Declaration/Bill of Rights be Enforceable?
If people are
to be protected against oppression or undue interference by governments,
the rights contained in a declaration/bill of rights must be enforceable.
They are usually enforced through court challenges to laws which
violate them. For example, media practitioners have successfully
challenged some of the provisions of AIPPA. Sometimes, however,
the challenge may be directed at an executive action rather than
a law – e.g. the conduct of the police in prohibiting a meeting.
And sometimes the challenge can be directed at people other than
the Government or its agents: for example if an employer breaches
an employee’s constitutional right to fair treatment, then
the right can invoked against the employer. Whatever the precise
way in which a declaration/bill of rights can be enforced, it must
be enforceable. If a declaration of rights is “non-justiciable”
[that is, if courts cannot strike down laws and actions that contravene
it] then it would serve no purpose whatsoever.
Rights Should be Protected by a Declaration of Rights?
only civil and political rights and freedoms - for example, the
right to a fair trial and freedom of expression and association
- were protected by constitutional declarations of rights. Social,
economic and cultural rights such as the right to education and
the right to work, were not usually so protected, though some constitutions
have included them in a statement of principles to guide government
policy. The South African Constitution protects some social and
economic rights because it was felt that the rights to housing,
health care, food and water, for example, were crucially important
to most people in an economically unequal society such as South
Africa’s. The same considerations would apply to Zimbabwe:
indeed, one of the questions COPAC asked in its outreach programme
was what social, economic and cultural rights should be included
in the new constitution.
of International Instruments?
declaration of rights should cover at least the main rights and
freedoms that are recognised internationally; indeed, it has been
suggested that it should cover all of them, perhaps through a provision
saying something like: “Laws of the legislature must not violate
any rights recognised by international conventions to which Zimbabwe
is a party.” Such a provision would have two drawbacks, however:
instruments are usually broadly and loosely drafted, whereas rights
that are protected by a constitution must be defined clearly and
unambiguously so that the government and its subjects know precisely
what they can and cannot do.
- A provision
along the lines suggested above would allow a government to remove
the constitutional protection from any right simply be renouncing
or withdrawing from the treaty which embodied the right.
it be possible to amend the Declaration of Rights?
ideas of what rights are important vary over time. The French Declaration
of the Rights of Man and of the Citizen, for example, was silent
on the rights of women - a serious omission by present-day standards.
And Magna Carta, in addition to protecting subjects against arbitrary
punishment and the expropriation of their property without compensation
- rights which are still regarded as fundamental in most countries
- also protected men against arrest on the accusation of a woman,
a right which could hardly be claimed nowadays. The fact that attitudes
towards fundamental rights may change is important for two reasons:
- Only rights
that are truly fundamental should be included in a constitutional
declaration of rights.
- A Declaration
of Rights is not only for the present, but also for future generations.
a constitutional declaration of rights should not be easily amendable
[because if it is governments may be tempted to limit or abolish
rights that have become politically inconvenient] it should not
be completely unamendable. Like the rest of the constitution,
a declaration of rights may need to be altered from time to time.
is a brief [and by no means complete] selection of specific rights
that should be protected by our new constitution, and some of the
problems associated with them:
This right is
so fundamental that it obviously must be included, but in defining
its extent two questions arise:
- Should the
right cover unborn foetuses [i.e. should abortion be permissible]?
- Should the
death penalty be allowed?
it should be noted that even if the constitution allows abortion
and the imposition of the death penalty, they may be restricted
or prohibited by the ordinary law.
This right protects
people against arbitrary arrest and detention, but should it extend
to protection against imprisonment for failure to pay a civil debt?
Civil imprisonment is prohibited by article 11 of the International
Covenant on Civil and Political Rights, to which Zimbabwe is a party.
against inhuman or degrading punishment or treatment
obviously should be included in a declaration of rights, but does
it impliedly prohibit the imposition of the death penalty? The South
African Constitutional Court said it did, and our Government amended
the current constitution to say it didn’t, thereby preventing
the Supreme Court from tackling the issue.
Again this should
be included, but how far should it go? Our current constitution
has been amended over the years to extent the grounds on which discrimination
is prohibited to cover sex, gender, marital status and physical
disability. Should it be extended further, to include sexual orientation?
This is controversial in present-day Zimbabwe, but it should be
remembered that the International Covenant on Civil and Political
Rights requires parties [of which Zimbabwe is one] to give equal
protection under the law to everyone without any discrimination
the French Declaration of the Rights of Man and of the Citizen,
this freedom is one of the most precious of all human rights. It
includes freedom of the press and media, though press and media
freedom are often dealt with separately. So important is this freedom
to democracy that it should be subjected to minimal restriction,
but some modern declarations of rights [for example, the one in
the South African Constitution] expressly state that it does not
cover “hate speech”. If this freedom were given proper
respect in Zimbabwe, crimes such as undermining public confidence
in the Police Force or ridiculing the President - if they existed
at all - would be difficult to prosecute successfully.
of movement and residence
This is an important
right, particularly in the light of Zimbabwe’s history of
racial segregation. The South African Constitution adds a right
to a passport to this right, and the same should be done in our
new constitution since a passport is essential for the lawful exercise
of the right to freedom of movement.
information and right to administrative justice
These are relatively
new rights, intended to promote governmental transparency and fairness.
In a country such as Zimbabwe, whose political processes have always
been cloaked in secrecy and where government action has often been
arbitrary, it is vital to have these rights enshrined in the Constitution.
encompass the right to join and form political parties and to enjoy
- that is, to contest and vote in - free and fair elections. By
their nature these rights are generally confined to citizens, though
this does not mean that non-citizens should be prohibited from all
political activity. A difficult problem, in the case of Zimbabwe,
is how to allow members of the Diaspora to enjoy these rights -
which, it should be noted, they are currently entitled to under
section 23A of the present Constitution.
The right to
hold and own property, and protection against arbitrary deprivation
of one’s property, are enshrined in the Universal
Declaration of Human Rights and in most constitutions. Rightly
so, because there is a clear link between strongly entrenched property
rights and economic development. Nevertheless property rights cannot
be absolute because private property may have to be taken for public
purposes (for example, building roads), and a country’s constitution
must take this into account, usually by requiring any such taking
to be procedurally fair and to be accompanied by adequate compensation.
Our new constitution
must tackle three additional problems:
- What to do
about the commercial farmers whose land was seized in the previous
government’s resettlement programme? The farmers have not
yet been compensated for their losses.
- What to
do about people who are not using farmland productively? Should
the law allow them to be dispossessed? More generally, to what
extent should the law control the ways in which people use and
dispose of their own property?
- How can
the sometimes antagonistic rights of miners and farmers be reconciled?
women and children
Women and children
should be given special protection in a new constitution, because
they are particularly vulnerable. It is not enough, for example,
merely to state that discrimination against women is prohibited:
they need to be encouraged to take their equal place in society.
economic and cultural rights
Some of these
rights should be included in the Declaration of Rights in the new
constitution, because of the economic gulf between the élite
[who don’t need special protection] and the vast majority
[who do]. The rights which are essential to the maintenance of a
reasonable standard of living are:
- the right
to basic health care;
- the right
to fair and safe working conditions, including the right to join
a trade union and the right to take industrial action;
- the right
to free education, at least to primary level, because an educated
workforce is the key to economic growth;
- the right
to adequate food and clean water. No government of a properly-functioning
modern State can allow its people to starve or to suffer from
inadequate or polluted water supplies.
- the right
to housing and shelter.
It must be made
clear in the Declaration of Rights that the government is responsible
for assuring these rights.
Even if the
fulfilment of these rights is dependent on the government having
adequate resources – the rights are not meaningless because
the government is obliged to make resources available if it possible
to do so. If a government wastes its resources providing luxury
vehicles and housing for ministers and other officials it would
be open to aggrieved citizens to sue the government and demand a
responsible allocation of resources.
on Fundamental Rights
of Rights in our present Constitution proceeds by setting out each
right, then a long list of exceptions where the right is either
limited or is declared to be inapplicable. This has been criticised
on the ground that the Constitution gives rights with one hand and
then takes them away with the other. The approach adopted by the
South African constitution avoids this criticism: it has a general
clause allowing the rights to be limited so long as the limitation
is justifiable in an open and democratic society based on human
dignity, equality and freedom.
Should all the
rights be subject to limitation? The draft constitution produced
by the Law Society lists certain rights that cannot be limited,
namely the right to life, the right not to be tortured or enslaved
and the right to equality. A provision along these lines would not
be necessary if there is a general limitation clause similar to
the one in the South African constitution, because a law which allowed
slavery, for example, could not be regarded as justifiable in an
open and democratic society.
and a Declaration of Rights
Although a declaration
of rights is a feature of most modern democratic constitutions,
in one sense it is undemocratic in that it restricts the power of
a democratically-elected government to pass laws overriding those
rights and usually gives unelected judges the power to invalidate
democratically-enacted laws which contravene the declaration of
The point is
not a valid one, however. Democracy consists of more than the holding
of free and fair elections, and encompasses such concepts as tolerance
and respect for the rights of others. A government which rides roughshod
over the fundamental rights of its people is not democratic, even
if it was elected by a majority of the people.
The point does,
however, illustrate one important factor that must be borne in mind
when drafting a declaration of rights. The declaration must be comprehensive
enough to protect the fundamental rights of individuals, but it
must not be so restrictive that it inhibits the power of a democratically-elected
government to govern the country properly. If it is unduly restrictive,
the government may seek ways to amend it or, failing that, may try
to circumvent it by unconstitutional means.
We must guard
against putting a meaningless declaration of rights into our new
constitution. A well-crafted declaration of rights can make even
the most despotic régime look warm-hearted and caring. The
Rhodesian Constitution of 1969, for example, had a declaration of
rights similar to the one in our present Constitution, but it was
non-justiciable [that is, courts could not strike down laws that
contravened it, and the government was free to enact whatever repressive
laws it chose]. Also, without a government that respects its people
and observes the rule of law, and without an independent and impartial
judiciary, a declaration of rights, however fine sounding, is worse
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