SOCIO-ECONOMIC RIGHTS IN ZIMBABWE'S NEW CONSTITUTION

Abstract

1. Introduction The constitutionalisation and justiciability of socio-economic rights has always been debated among scholars and practitioners. While everyone agrees that every constitution should encompass socio-economic rights there is still disagreement on whether they should be under the Bill of Rights or Principles of State Policy. The constitutional debate in Zimbabwe also included such discussions which resulted in the inclusion of socio-economic rights as both National Objectives (Principles of State Policy) and Declaration of Human Rights (Bill of Rights), under chapter two and four respectively. Though this is a welcome move towards the progressive realisation of socio-economic rights the big question remains whether this will improve the protection and promotion of these rights, subsequently bringing change to people's lives. This overview provides a critical analysis of the new constitution and offers recommendations for the improvement of the socio-economic rights regime in Zimbabwe through courts, state institutions and government. 2. The new Constitution The preamble of the new constitution (1)) recognises the supremacy of God and gives special recognition to the liberation struggle, natural resources, diverse culture, democratic values, rule of law and fundamental human rights. It values the principles of rule of law, fundamental human rights and freedoms, gender equality, good governance and representation of the electorate and places an obligation to the State to protect and promote these values and principles. Though the preamble of the constitution has no legal standing it spells out the purpose of the constitution and it reflects the goals and commitment of government. It is an introductory statement and courts can refer to it on cases pertaining to the constitution as reliable evidence of what the state has promised to achieve and provide for citizens. The preamble commits the state to uphold and defend fundamental human rights and freedoms, which include socio-economic rights. The protection and promotion of socio-economic rights serve to support the commitments set in the preamble, such as transparency, freedom, tradition and culture, fairness and equality. In countries such as South Africa where the preamble is not legally binding, the courts have interpreted the commitments highlighted in the preamble in, for example, the Bato Star Fishing (PTY) LTD vs Minister of Environmental Affairs and Tourism case, interpreting the commitments in the preamble as an obligation on the state. In addition to traditional civil and political rights, the new constitution contains a full catalogue of economic, social, cultural and environmental rights. This includes every person's right to an environment that is not harmful to their health or well-being (section 73); and an obligation to protect the environment for the benefit of present and future generations, through reasonable legislative and other measures. Section 75 (rights to education) entitles every citizen and permanent resident of Zimbabwe to a basic state-funded education, including adult basic education and further education, which the state, through reasonable legislative and other measures, must make progressively available and accessible. This is in line with article 13 of the International Covenant on Economic, Social and Cultural Rights (CESCR). It remains to be seen whether the Government will implement the constitution and enforce the right of girls in some rural areas of access to education where they have been hindered by traditional practises. Section 76 (right to health) confirms the right of every citizen and permanent resident of Zimbabwe to have access to basic healthcare services, including reproductive health. Every person living with a chronic illness has the right to have access to basic healthcare services for the illness. No person may be refused emergency medical treatment in any health-care institution. …