On Human Rights Day, Urgent Need to Promote Economic, Social, and Cultural Rights in Zimbabwe

Zimbabwe’s 2013 Constitution Presents Opportunities and Challenges

10 December 2014, Harare, Zimbabwe—Zimbabwe’s Constitution offers new opportunities to promote the economic, social, and cultural rights (ESCR) of all Zimbabweans, said Zimbabwe Lawyers for Human Rights (ZLHR) and the Harvard Law School International Human Rights Clinic (the Clinic) today.

ESCR are a fundamental component of international human rights law, and essential to the economic and political development of a nation. As a briefing paper released today by ZLHR and the Clinic explains, inclusion of some such rights—the rights to work, food, housing, the highest attainable standard of health, education, and culture—in the 2013 Constitution represents a major milestone in Zimbabwe’s history, and offers a source of hope for the country’s population.

“Economic, social, and cultural rights are indispensable to our families, our communities, and our political system,” said Irene Petras, Executive Director of ZLHR. “For the first time, the 2013 Constitution provides us with a legal framework to fight for the realisation of rights, thereby promoting the wellbeing of all Zimbabweans.”

Historical Background

From independence until 2013, Zimbabwe was governed by the Lancaster House Constitution, a document that emerged from negotiations between Ian Smith’s Rhodesian government, the British government, and a coalition of liberation movements prominently featuring current President Robert Mugabe. Despite numerous amendments to the Lancaster House Constitution, it never included ESCR.

The Global Political Agreement (GPA)—a 2008 political settlement between major political parties—set in motion a lengthy process that would lead to the drafting of a new Constitution. In 2009, ZLHR, the National Constitutional Assembly (NCA), and the Clinic jointly published a report, Economic, Social and Cultural Rights in Zimbabwe: Options for Constitutional Protections. The report called for the inclusion of ESCR in a justiciable bill of rights in Zimbabwe’s new constitution, to allow such rights to be legally enforced in court. It also recommended other constitutional provisions and institutions that could contribute to the realization of these rights.

In January 2013, the Select Committee of Parliament on the New Constitution (COPAC) released a final draft constitution, which was approved in a referendum on 17 March 2013 and came into effect on 22 May of the same year. The process by which the Constitution was drafted and approved has been the source of considerable controversy and criticism. Likewise, the content of the 2013 Constitution has been extensively debated and critiqued. However, the 2013 Constitution does create a stronger rights framework for the people of Zimbabwe, especially in the area of ESCR.

Opportunities to Promote and Protect ESCR

The 2013 Constitution represents a major step forward in the realisation of ESCR. In particular, Chapter 4 of the Constitution provides a justiciable Declaration of Rights, which includes the rights to language, culture, education, health care, food, water, labour rights, environmental rights, and freedom of profession, trade, or occupation. Additionally, employment creation, the opportunity to work, labour relations, food security, cultural values, education, shelter, health services, and social welfare are included in Chapter 2 as National Objectives that guide state policymaking and influence the interpretation of the Constitution and laws.

“A constitution’s strength lies in its ability to protect the interests of those most vulnerable to abuse, deprivation, and exclusion,” said Susan Farbstein, Director of the Clinic. “The rights now contained in Zimbabwe’s Constitution provide individuals, communities, and human rights defenders with new avenues to combat injustice.”

The struggle for rights does not occur in a vacuum, and simply naming new rights in a constitution will not ensure that they will be realized on the ground. Rather, institutions, laws, and other constitutional provisions affect the way that rights are interpreted and implemented.

The 2013 Constitution marks progress over the Lancaster House Constitution in terms of establishing a legal framework that supports human rights. For example, rights contained in the 2013 Constitution are binding on all levels of government and enjoy supremacy over all other laws and government actions. Moreover, the Constitution provides liberal standing rules and allows remedies for rights violations by non-state actors, broadening the range of cases that can be heard in court. Courts are likewise given wide discretion in fashioning remedies to ensure that rights are upheld. Judges are constitutionally required to look to international law when interpreting rights provisions, a practice that will strengthen rights jurisprudence significantly.

The 2013 Constitution also improves upon its predecessor by establishing institutions tasked with promoting rights, peace, and good governance. The Zimbabwe Human Rights Commission, Gender Commission, National Peace and Reconciliation Commission, and Anti-Corruption Commission all have constitutional mandates that—if exercised in an independent and robust manner—could help support ESCR in Zimbabwe.

Challenges to Protection of ESCR

Despite these positive developments, Zimbabwe’s flawed legal institutions seriously undermine the potential to realise ESCR. In particular, the failure of the 2013 Constitution to adequately insulate state bodies from political pressures and executive influence may compromise rights protections.

Zimbabwe’s courts—the prime arbiter of rights in the country—have not been sufficiently strong and independent in the past. Critically, under the 2013 Constitution, the President retains a significant level of control over the appointment and dismissal of judges. The commissions established by the Constitution are similarly subject to executive control and influence, and some have remained financially hamstrung. Until these structural problems are remedied, it is unlikely that courts and relevant commissions will act as robust, independent guarantors of rights.

“Simply placing economic, social, and cultural rights in the Constitution does not absolve the Zimbabwean government of its obligation to establish democratic institutions and proactively promote such rights,” said Farbstein. “If Zimbabwe does not take steps to end endemic corruption and strengthen its judicial system, constitutional rights will be of little or no meaningful value.”

Efforts to Uphold ESCR

Despite challenges, lawyers and activists in Zimbabwe are committed to confronting violations of constitutional rights.

ZLHR has been litigating ESCR rights on behalf of various communities with considerable success. For example, ZLHR was able to stop demolitions and evictions of communities in Chitungwiza, relying on new protections in the 2013 Constitution. ZLHR has also managed to restore water services to some communities in the capital city on the strength of the 2013 Constitution. ZLHR continues to educate and empower communities on the opportunities and avenues now available under the new constitutional framework.

In order for ESCR to be realized in Zimbabwe, lawyers and human rights activists must continue to assert rights, challenge injustices, and advocate for the reform and strengthening of flawed institutions. The very act of claiming constitutional rights—whether through litigation or public advocacy campaigns—reinforces the importance of these rights and encourages the legal and institutional developments that are necessary for rights to become a reality.

“The inclusion of economic, social, and cultural rights in our Constitution represents a great opportunity for the country,” said Petras. “However, we can’t wait for rights to be handed to us. It is our responsibility to challenge injustices where we see them and contribute to the development of the just society that we desire.”