ON 7th ANNIVERSARY OF THE CONSTITUTION DO NOT AMEND BUT IMPLEMENT AND COMPLY
On the seventh anniversary of the Constitution of Zimbabwe, Zimbabwe Lawyers for Human Rights (ZLHR) is extremely saddened by government’s failure to fully implement, the willful violation and the wanton disregard of some progressive provisions of the supreme law.
22 May 2020 marks the seventh year of the coming into force of the Constitution, the highest law that was approved by a majority of Zimbabweans who voted in the constitutional referendum held in March 2013.
For ZLHR, the seventh anniversary of the Constitution being in 2020 is not just symbolic but an important opportunity to assess progress in the implementation of the Constitution, take stock of the achievements made, the lessons learnt and the challenges that lie ahead in enhancing a critical foundation to incrementally nurture democracy in Zimbabwe.
The enactment of the Constitution was premised on facilitating a constitutional journey from the shame of the country’s past to the promise of the future which delivers on its democratic promise and transformative aspirations.
Since its adoption in 2013, the Constitution has become a symbol of the hopes and aspirations of Zimbabweans and some citizens have sought to assert their fundamental rights and freedoms as enshrined in the ‘Declaration of Rights’ and held state and non-state actors to account for their transgressions in fulfilling their constitutional obligations.
While the coming into effect seven years ago of the Constitution signalled the dawn of a new era and a break with the past, an assessment by ZLHR over the past seven years shows that the “new” Governance Charter is just a paper tiger as authorities remain reluctant to fully implement it and continue to willfully violate its progressive provisions.
More concerning for ZLHR is the commonplace contraventions of the Constitution by duty-bearers, with continuing impunity.
Although some laws have been amended or promulgated to align or comply with the Constitution, a number of gaps still exist.
Of great concern to ZLHR is government’s increasing reliance on governing through the promulgation of subsidiary legislation contained in a record Statutory Instruments promulgated during the era of the so-called “new dispensation”.
ZLHR is disconcerted that the Constitution is already being amended for the second time with the gazetting of Constitutional Amendment (No.2) Bill 2019, that seeks to consolidate the power of the President and erode the power of the legislature to effectively exercise checks and balances on the Executive in certain matters and also has negative implications on the independence of the judiciary and the Prosecutor-General amongst other issues.
This rapid amendment of 27 sections of the Constitution is not reasonably justifiable and undermines the national objectives set out in Chapter 2 of the Constitution.
It is worrying and shocking that law enforcement authorities continue to misinterpret and selectively misapply laws to suppress people’s fundamental freedoms and rights while citizens are brutalised, abducted, disappeared and tortured in violation of their right to personal security, the right to human dignity and freedom from torture or cruel, inhuman or degrading treatment or punishment.
Local authorities and central government continue to contravene fundamental protections of freedoms and rights to property, freedom of profession, trade and occupation, provision of health care services, potable water, and freedom from arbitrary eviction.
ZLHR holds the President of Zimbabwe, including the Ministry of Justice, Legal and Parliamentary Affairs and other line ministries accountable for failing in executing their primary responsibility of ensuring that the Constitution is respected, protected and fully enforced. These primary duty-bearers must act in a manner that respects, protects, and upholds the principles and values for which people voted.
ZLHR wishes to remind the Executive, of the voluntary commitments the twenty-six (26) member delegation made on behalf of the Government of Zimbabwe in November 2016, during the United Nations Human Rights Council Universal Periodic Review during the session that was held in Geneva, Switzerland. The ‘26-member government delegation’ was led by the incumbent President, His Excellency Emmerson Dambudzo Mnangagwa, in his capacity as the Minister of Justice, Legal and Parliamentary Affairs at that time.
As provided in the Working Group Report during the 34th Session, it is reported that the Zimbabwe delegation accepted most (noting a few) recommendations on the Constitution from the following countries; Australia, Czechia, Egypt, France, German, Ghana, Iran, Ireland, Italy, Kenya, Netherlands, New Zealand, Republic of Congo, Republic of Korea, South Africa, Spain, Sweden, Switzerland, Thailand, Togo, Uganda and the United Kingdom. These United Nations (UN) member states encouraged Zimbabwe to align laws with the Constitution, fully implement and comply with the Constitution.
On its part, over the years, Zimbabwe has also proposed 190 recommendations to other UN member states that have come under review during the Universal Periodic Review Mechanism. This process is a peer to peer review by countries on the state of compliance with UN human rights obligations.
On its part, ZLHR will keep demanding enforcement and accountability for the actions or non-actions of those with obligations to ensure government’s adherence to the principles of constitutionalism, respect for the rule of law and human rights treaty obligations.
Honest and firm compliance, respect for constitutionalism and political will is required if people are to be empowered to assert their constitutional rights and freedoms.
Therefore, ZLHR calls on the government to;
• Take urgent action to align the country’s laws with the Constitution and to make the vision a reality.
• Urgently implement outstanding legislative reforms and harmonise laws to the Constitution.
• Ensure that the attitudes, conduct and behaviour of all state officials and agencies conform to the standards set out in the Constitution and that non-state actors are also held to account where they fail to respect and uphold the Constitution.
• Foster a culture of constitutionalism through respect for the supremacy of the Constitution.
• Ensure that all security services members comply with the provisions of section 208 of the Constitution which prescribes their conduct and foster harmony and understanding between them and civilians.
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