Protection of socio-economic rights in Zimbabwe. A critical assessment of the domestic framework under the 2013 Constitution of Zimbabwe
©2016
Textbook
97 Pages
Summary
Socio-economic inequality is deeply rooted in Zimbabwe due to a number of factors. One of the main factors is the exclusion of socio-economic rights as justiciable under the now repealed Lancaster House Constitution (LHC). A plethora of excessive bureaucratic actions in a number of instances left many people stranded without the recourse to the law, particularly without protection by the Constitution. To correct this historic anomaly, the 2013 Constitution was enacted. The 2013 Constitution protects both civil and political rights and socio-economic rights in the same way as justiciable rights. This provides the highest degree of interdependence and interrelatedness of all rights in the domestic legal order.
In order to ensure that socio-economic rights are effectively protected and enforced, this study identifies and discusses the framework for protecting socio-economic rights under the 2013 Constitution. Firstly, the specific rights protected under the Constitution and the obligations imposed by these rights are presented. Secondly, the role of the courts in the protection of socio-economic rights is discussed. Further, some of the major conceptual and practical challenges that are likely to arise in the adjudication of socio-economic rights are identified. In this regard, the study attempts to present solutions meant to overcome the conceptual and practical challenges that are faced in the enforcement of socio-economic rights. Furthermore, this study argues that strictly adopting one of the two models of review, namely either the reasonableness approach as adopted by South African courts or the minimum core approach as expounded by the United Nations Committee on Economic Social and Cultural Rights (CESCR), will inhibit the proper enforcement of the protected rights. Therefore, courts should consider adopting an integrated model that includes both approaches to ensure that socio-economic rights are effectively protected and realised.
In order to ensure that socio-economic rights are effectively protected and enforced, this study identifies and discusses the framework for protecting socio-economic rights under the 2013 Constitution. Firstly, the specific rights protected under the Constitution and the obligations imposed by these rights are presented. Secondly, the role of the courts in the protection of socio-economic rights is discussed. Further, some of the major conceptual and practical challenges that are likely to arise in the adjudication of socio-economic rights are identified. In this regard, the study attempts to present solutions meant to overcome the conceptual and practical challenges that are faced in the enforcement of socio-economic rights. Furthermore, this study argues that strictly adopting one of the two models of review, namely either the reasonableness approach as adopted by South African courts or the minimum core approach as expounded by the United Nations Committee on Economic Social and Cultural Rights (CESCR), will inhibit the proper enforcement of the protected rights. Therefore, courts should consider adopting an integrated model that includes both approaches to ensure that socio-economic rights are effectively protected and realised.
Excerpt
Table Of Contents
iv
TABLE OF CONTENTS
ABSTRACT ... i
DEDICATION ... ii
ACKNOWLEDGEMENTS ... iii
LIST OF ABBREVIATIONS ... vii
INTERNATIONAL INSTRUMENTS, DECLARATIONS AND GENERAL
COMMENTS... viii
TABLE OF CASES ... x
CHAPTER 1
Introduction to the study: research outline and context ... 1
1 An overview ... 1
1 1 Zimbabwe's Constitutional History ... 1
1 1 1 Role of the Judiciary under the LHC ... 2
1 1 2 Constitutional Commission Draft of 1999 ... 5
1 1 3 Zimbabwe Social Charter of 2008 ... 5
1 2 Statement of the research problem ... 6
1 3 Significance of the study ... 6
1 4 Objectives/ Purpose of the study... 7
1 5 Research questions ... 7
1 6 Research hypotheses ... 8
1 7 Research methodology ... 8
1 8 Delimitation ... 8
1 9 Ethical implications of the study... 8
1 10 Chapter outline ... 9
CHAPTER 2
The Socio-Economic Rights Protected under the 2013 Constitution of Zimbabwe... 10
2 Introduction ... 10
2 1 Nature of obligations imposed by socio-economic rights... 12
2 1 1 Obligation to Respect ... 13
2 1 2 Obligation to Protect ... 14
2 1 3 Obligation to Fulfil ... 15
2 1 4 Obligation to Promote ... 16
2 2 Specific rights protected under the 2013 Constitution ... 17
2 2 1 The nature and content of the right to education ... 17
v
2 2 1 1 The essential elements of the right to education ... 17
2 2 1 1 1 Accessibility ... 17
2 2 1 1 2 Acceptability ... 18
2 2 1 1 3 Adaptability... 18
2 2 2 The nature and content of the right to health ... 19
2 2 2 1 The essential elements of the right to health ... 21
2 2 2 1 1 Availability ... 21
2 2 2 1 2 Accessibility ... 22
2 2 2 1 3 Acceptability ... 23
2 2 3 The nature and content of the right to clean and potable water ... 23
2 2 3 1 The essential elements of the right to clean and portable water ... 24
2 2 3 1 1 Adequacy ... 24
2 2 3 1 2 Availability ... 25
2 2 3 1 3 Accessibility ... 25
2 2 3 1 4 Quality... 25
2 2 4 The nature and content of the right to food... 26
2 2 4 1 The essential elements of the right to food ... 27
2 2 4 1 1 Dietary needs ... 27
2 2 4 1 2 Availability ... 27
2 2 4 1 3 Acceptability ... 27
2 2 4 1 4 Accessibility ... 28
2 2 5 Socio-economic rights of arrested and detained persons ... 28
2 2 5 1 Nature and content of socio-economic rights of arrested and detained persons ... 28
2 3 Progressive realisation ... 29
2 4 Limitations clause ... 30
2 5 Summary ... 31
CHAPTER 3
The role of the courts in the enforcement of socio-economic rights under the
Constitution ... 33
3 Introduction ... 33
3 1 Role of judiciary under the Constitution ... 34
3 2 Interpreting socio-economic rights ... 38
3 2 1 Interpreting socio-economic rights: the role of underlying values ... 38
3 2 2 Interpreting socio-economic rights: international law as an interpretive tool ... 40
3 2 3 Interpreting socio-economic rights: comparative foreign law as an interpretative tool . 44
vi
3 2 4 Purposive interpretation through the prism of the Bill of Rights... 45
3 3 Model of review under the 2013 Constitution ... 47
3 3 1 Reasonableness approach... 47
3 3 1 1 Reasonableness as interpreted by South African Courts ... 48
3 3 2 Minimum core obligation ... 52
3 3 3 Integrated approach ... 55
3 4 Separation of powers... 56
3 5 Remedial framework: crafting judicial remedies for violations of socio-economic rights 57
3 6 Legal standing (locus standi) and rights enforcement mechanisms ... 62
3 6 1 Class action ... 64
3 7 The complementary role of the Zimbabwe Human Rights Commission (ZHRC) ... 65
3 8 Summary ... 66
CHAPTER 4
Conclusions and recommendations drawn from the study ... 68
4 1 Conclusions ... 68
4 2 Recommendations ... 72
Bibliography ... 76
Textbooks & chapters in books... 76
Journal articles, papers and reports ... 78
Internet sources & fact sheets ... 81
vii
LIST OF ABBREVIATIONS
LHC
Lancaster
House
Constitution
UDHR
Universal Declaration of Human Rights
ICESCR International
Covenant
on Economic, Social, and Cultural
Rights
ICCPR
International Covenant on Civil and Political Rights
VCLT
Vienna Convention on the Law of Treaties
CRC
Convention on the Rights of the Child
ZSC
Zimbabwe
Supreme
Court
ZCC
Constitutional
Court
of
Zimbabwe
ZLHR
Zimbabwe
Lawyers
for
Human
Rights
ZRP
Zimbabwe
Republic
Police
ZHRC
Zimbabwe Human Rights Commission
CESCR
Committee on Economic, Social and Cultural Rights
OPT-ICESCR
Optional Protocol to the International Covenant Economic
Social Cultural Rights
CJ
Chief
Justice
NHRI
National
Human
Rights
Institutions
viii
INTERNATIONAL INSTRUMENTS, DECLARATIONS AND GENERAL
COMMENTS
African Charter on Human and Peoples' Rights (1981) OAU Doc CAB/LEG/67.
African Charter on the Rights and Welfare of the Child (1989) UN Doc A/44/49.
Convention on the Elimination of All Forms of Discrimination against Women (1979) UN
Doc A/34/46.
Convention on the Rights of the Child (1989) UN Doc A/44/49.
International Covenant on Economic, Social and Cultural Rights (1966) UN Doc A/6316.
International Covenant on Civil and Political Rights (1966) UN Doc A/6316.
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
(2008) A/RES/63/117.
UN General Assembly, Vienna Declaration and Programme of Action (1993) A/CONF 157/23.
Universal Declaration of Human Rights (1948) UN Doc A/810.
Committee on Economic, Social and Cultural Rights, General Comment 7 Forced evictions,
and the Right to Adequate Housing (1997), U.N. Doc. E/1998/22.
Committee on Economic, Social and Cultural Rights, General Comment 9 The domestic
application of the Covenant (1998), UN Doc E/C.12/1998/24.
Committee on Economic, Social and Cultural Rights, General Comment 10 The role of
National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights
(1998) UN Doc E/C12/1998/25.
Committee on Economic, Social and Cultural Rights, General Comment 11, Plans of Action
for Primary Education (1999), UN Doc E/C 12/1999/4.
Committee on Economic, Social and Cultural Rights General Comment No 3 The Nature of
States Parties' Obligations (1990) UN Doc E/1991/23.
ix
Zimbabwe Lawyers for Human Rights, Human Rights Trust of Southern Africa v The
Government of Zimbabwe Forced Evictions Hopley - Porta Farm and Hatcliffe Communities
ACHPR Case COMMUNICATION No. 314/05.
Zimbabwe Lawyers for Human Rights v The Government of Zimbabwe Muzerengwa Buhera
ACHPR Case COMMUNICATION 306.
Zimbabwe
Dare Remusha Cooperative v The Minister of Local Government, Public Works and Urban
Development and others HC 2467/05.
Batsirai Children's Care v The Minister of Local Government, Public Works and Urban
Development and others HC 2566/05.
Nevanji Madanhire, Nqaba Matshazi v Attorney-General of Zimbabwe CCZ 2/2014.
Smyth v Ushewokunze and another 1997 2 ZLR 544 ZSC, 1998 3 SA 1125 (ZS).
Catholic Commission for Justice and Peace in Zimbabwe v Attorney General and others 1993
1 ZLR 242.
In Re Munhumeso and Others 1995 1 SA 551 (ZSC).
Bull v Minister of Home Affairs 1986 1 ZLR 202 (SC)
x
TABLE OF CASES
South Africa
Abahlali Basemjondolo Movement SA and Another v Premier of the Province of KwaZulu-
Natal and others 2010 2 BCLR 99 (CC).
Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC).
Grootboom and others v Government of the Republic of South Africa and Others 2000 11 BCLR
1169 (CC).
Khosa and others v Minister of Social Development and Others, Mahlaule and Another v
Minister of Social Development 2004 6 SA 505 (CC).
Mazibuko and others v City of Johannesburg and Others 2010 3 BCLR 239 (CC).
Minister of Health and others v Treatment Action Campaign and others (No 2) 2002 10 BCLR
1033 (CC).
Soobramoney v Minister of Health (Kwazulu-Natal) 1998 1 SA 765 (CC).
Permanent Secretary Department of Welfare, Eastern Cape Provincial Government and
Another v Ngxuza and Others 2001 ZASCA 85.
President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd 2005
5 SA 3 (CC).
African Commission on Human and Peoples' Rights
Social and Economic Rights Action Centre (SERAC) and another v Nigeria 2001 AHRLR 60
(ACHPR 2001).
Modise v Botswana (2000) AHRLR 25 (ACHPR 1994).
xi
Committee on Economic, Social and Cultural Rights General Comment No 4 The Right to
Adequate Housing (1991) UN Doc E/1992/3.
Committee on Economic, Social and Cultural Rights General Comment No 12 The Right to
Adequate Food (1999) UN Doc E/C.12/1999/5.
Committee on Economic, Social and Cultural Rights General Comment No 13 The Right to
Education (1999) UN Doc E/C.12/1999/10.
Committee on Economic, Social and Cultural Rights General Comment No 14 The Right to the
Highest Attainable Standard of Health (2000) UN Doc E/C.12/2000/4.
Committee on Economic, Social and Cultural Rights, General Comment No15 The Right to
Water (2002) UN Doc E/C.12/2002/11.
Committee on Economic, Social and Cultural Rights, General Comment No 18 The Equal Right
of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (2006) UN
Doc E/C.12/GC/18.
National Constitutions and legislation
The Lancaster House Constitution (1979).
The Constitution of the Republic of South Africa (1996).
The Constitution of the Republic of Kenya (2010).
The Constitution of the Republic of Zimbabwe Amendment No 20 (2013)
1
CHAPTER 1
Introduction to the study: research outline and context
1 An overview
1 1 Zimbabwe's Constitutional History
The Constitution of a country is generally considered the supreme law of the land.
1
Most
Constitutions entrench a Bill, a Chapter or a Declaration of Rights. The entrenchment of a Bill
of Rights in a Constitution is particularly relevant for human rights protection. Civil and
political rights have traditionally received extensive protection through their inclusion as
justiciable rights at the expense of socio-economic rights.
2
Like other post-colonial
constitutions imposed by the British on their erstwhile colonies, Zimbabwe's independence
Constitution, the now defunct Lancaster House Constitution (the LHC) adopted in 1979
entrenched a justiciable Bill of Rights which protected civil and political rights.
3
Individuals
have been able to invoke civil and political rights to obtain relief from the courts whenever the
state has arbitrarily threatened or encroached on their rights.
Zimbabwe has been on the throes of political, economic and social crisis since the 2000s
following what had been a successful first twenty years of independence since 1980. The
political, economic and social crises have been accompanied by State and non-State violations
of human rights. Although the LHC made provision for civil and political rights, it was more
committed to guaranteeing majority rule and eradicating racial discrimination than addressing
social justice and inequality in society.
4
This commitment was carried out at the expense of
socio-economic rights that never enjoyed constitutional protection as justiciable rights or
aspirational directive principles of state policy under the Constitution. This shortfall was
detrimental to the poor Zimbabweans because it was difficult to hold the State's failure to meet
1
See the Constitution of the Republic of Zimbabwe Amendment No 20 2013 (hereinafter 2013 Constitution).
Section 2 of the 2013 Constitution provides that the Constitution is the supreme law of the land
and any conduct, law, custom or practice inconsistent with it is invalid to the extent of its inconsistence.
Furthermore, the preamble states that "all commit to the Constitution as the fundamental law of the land."
2
Libenberg "The Protection of Economic and Social Rights in Domestic Legal Systems" in Eide et al Economic
Social Cultural Rights (2001) 55-84.
3
The Lancaster House Constitution (LHC) came into force after the Lancaster House agreement in 1979 between
leaders of the African Nationalist parties, Robert Mugabe (ZANU-PF), Joshua Nkomo (PF-ZAPU), Prime
Minister of the then Zimbabwe-Rhodesia's Bishop Abel Muzorewa and representatives of the white minority
population. It has been replaced by the new 2013 Constitution.
4
See Lennington Constitutional Law of Zimbabwe (2001).
2
basic socio-economic goods such as education, water or health. It is worth noting that, during
the enactment of the LHC, the constitutional protection of socio-economic rights globally was
very rare, hence the exclusion the exclusion of these rights in the LHC should be understood
within such a global context.
The historical anomaly of neglecting socio-economic rights was despite the fact that Zimbabwe
is a party to a number of international and regional instruments imposing certain socio-
economic rights obligations. These instruments include the International Covenant on
Economic Social and Cultural Rights (ICESCR);
5
the African Charter on Human and Peoples'
Rights (African Charter)
6
and the Convention on the Rights of the Child (CRC),
7
among
others.
8
Ratifying these instruments imposes universal norms that a state must fulfil in good
faith (pucta sunt servanda).
9
The next section briefly discusses the few cases that were
adjudicated before the constitutional protection of socio-economic rights.
1 1 1 Role of the Judiciary under the LHC
Under the LHC, judicial authority in Zimbabwe vested in the Supreme Court (ZSC), High
Court and all the subordinate courts.
10
The ZSC was the court of first instance in constitutional
matters and a final court of appeal in non-constitutional matters. Little or no appreciable help
is evident from the judiciary with regard to the protection of socio-economic rights. This is
evident from the lack of socio-economic rights jurisprudence from that court (ZSC). Instead,
the judiciary has been labelled as non-independent and an extension of the executive even on
matters that purely concerned civil and political rights.
11
A few cases focusing on socio-economic rights were litigated under the LHC. In the majority
of these cases, the judiciary displayed indifference to the plight of the huge number of victims
5
International Covenant on Economic Social and Cultural (1966) UN Doc A/6316 (hereafter "ICESCR").
Zimbabwe ratified the ICESCR on 13 May 1991.
6
African Charter on Human and Peoples' Rights (1981) OAU Doc. CAB/LEG/67/3 hereinafter (Banjul Charter).
7
Convention on the Rights of the Child (1989) UN Doc A/44/49. Zimbabwe became a state party on the 11
th
September 1989.
8
Convention on the Elimination of All Forms of Discrimination against Women (1979) UN Doc A/34/46
(hereinafter "CEDAW").
9
Vienna Convention on the Law of Treaties (1969) UN Doc A/Conf.39/27 (hereinafter the "VCLT"). Article 26
of the VCLT requires states to perform their treaty obligations in good faith (pucta sunt servanda).
10
See section 79 (1) LHC 1980.
11
Ibid section 79 (1). Section 79 (B) of LHC titled "Independence of Judiciary" provides that, "in the exercise of
his judicial authority, a member of the judiciary shall not be subject to the direction or control of any person or
authority, except to the extent that a written law may place him under the direction or control of another member
of the judiciary". See also Hellum & Derman "Land Reform and Human Rights in Contemporary Zimbabwe:
Balancing Individual and Social Justice through an Integrated Human Rights Framework" 2004World
Development 1785 -1805. See also Mapfumo Whither to, the Judiciary in Zimbabwe? A Critical Analysis of the
Human Rights Jurisprudence of the Gubbay and Chidyausiku Supreme Court Benches in Zimbabwe and
Comparative Experiences from Uganda (LLM in HRDA, UP).
3
of socio-economic rights violations.
12
Cases reflecting serious and persistent violations of
human rights and therefore in need of provisional measures were often not dealt with on an
urgent basis.
13
For instance, in the case of Dare Remusha Cooperative v The Minister of Local
Government, Public Works and Urban Development and others, Zimbabwe Lawyers for
Human Rights (ZLHR) applied for an interdict to stop the continued violent destruction of
homes in an area called Hatcliffe Extension in the capital Harare.
14
However, the court
dismissed the application deciding that the public policy considerations in destroying their
homes and evicting them far outweighed the interests of the terms of their leases and manner
of settlement.
15
This decision is unfortunate as it allowed the continuation of destruction of
houses leaving many homeless without alternative shelter.
In the case of Batsirai Children's Care v The Minister of Local Government, Public Works
and Urban Development and others (Batsirai case), numerous rights were violated and these
included the right to dignity, housing as well as children's rights.
16
In the Batsirai case,
members of the Zimbabwe Republic Police (ZRP) destroyed an orphanage in Hatcliffe
Extension and unlawfully evicted the inhabitants.
17
Attempts to restore the respect and
protection of the rights of children by the ZLHR failed when it applied for a spoliation order to
halt the destruction of the orphanage.
18
The presiding judge repeatedly postponed the case
ignoring the urgency of the matter and the on-going violations of the rights of the affected
children.
19
Legal remedies proved fruitless on the violations of socio-economic rights despite
many being left homeless, jobless and some even dropping out of school.
20
The year 2005 for example, saw massive forced evictions under what was called Operation
Murambatsvina (drive out rubbish or restore order) where a lot of informal and some formal
structures were arbitrarily demolished by the government in an attempt to keep cities clean
12
See Zimbabwe Lawyers for Human Rights "Public Interest Litigation- Litigation Relating to Murambatsvina"
(2005). Available at
http://www.zlhr.org.zw/index.php?option=com_alphacontent&view=alphacontent&Itemid=76
(accessed
20/12/2013).
13
See Zimbabwe Lawyers for Human Rights "Public Interest Litigation- Litigation Relating to Murambatsvina"
(2005).
14
Dare Remusha Cooperative v The Minister of Local Government, Public Works and Urban Development and
others HC 2467/05.
15
Ibid HC 2467/05.
16
Batsirai Children's Care v The Minister of Local Government, Public Works and Urban Development and
others HC 2566/05.
17
Ibid HC 2566/05.
18
Ibid HC 2566/05.
19
Ibid HC 2566/05.
20
Dare Remusha Cooperative v The Minister of Local Government, Public Works and Urban Development and
others HC 2467/05.
4
leaving many homeless without alternative shelter.
21
There is no doubt that the government
violated its own laws, the Constitution (LHC) and international law. For instance, section 199
of Zimbabwe's Urban Councils Act provides that, authorities are required to give 28 days'
notice to evictees and the opportunity to contest the legality of the actions through a court of
law.
22
Such a legislative requirement was disregarded by the government. The official
explanation for the campaign against the informal settlements and shanty dwellings was that
the structures were erected illegally without proper permits and planning permission. There is
no doubt that in most instances these settlements had no proper sanitation and posed a health
hazard.
23
However, what remains repugnant is not the illegality or otherwise of the homes, but
the total disregard that Operation Murambatsvina had for people's access to shelter, education,
health, dignity and life.
24
This is because the evictions took a particularly heavy toll affecting
vulnerable groups widows, orphans, elderly, and households headed by women or children,
and people living with HIV and AIDS.
25
To date, the government has taken no measure to
investigate allegations of abuses during Operation Murambatsvina and to provide adequate
remedies to those whose rights were violated.
26
The then UN Special Envoy on Human Settlement Issues in Zimbabwe, Anna Tibaijuka, was
deployed to Zimbabwe by the UN Secretary-General in June 2005 to assess the scope and
impact of Operation Murambatsvina. She reported that the Operation was carried out in an
indiscriminate and unjustified manner, with indifference to human suffering and, in repeated
cases, with disregard to several provisions of national and international legal frameworks.
27
Perhaps it must be submitted that had the LHC protected socio-economic rights, better means
of protection could have been put in place to provide effective relief in case of violations of
21
The massive forced evictions were carried out from the 25
th
of May 2005 in various cities leaving about 700
000 homeless without alternative or emergency shelter.
22
Zimbabwe Councils Act 13 of 2002 (Chapter 29:15) provides in section 199 that, any person who is likely to
be aggrieved by the decision of the urban council may, within twenty-eight days after the date of service of the
notice, appeal to the Administrative Court and no action shall thereafter be taken by the council until the appeal
has been determined by that Court or the appeal has been withdrawn or abandoned.
23
See The Zimbabwe Human Rights NGO Forum: Human Rights Monthly No 37 (2006).
24
The Zimbabwe Human Rights NGO Forum: Human Rights Monthly No 37 (2006).
25
Human Rights Watch "Clear the Filth": Mass Evictions and Demolitions in Zimbabwe", A Human
Rights Watch Background Briefing, (2005). Available at
http://www.hrw.org/sites/default/files/reports/zimbabwe0905.pdf, (accessed 18/12/2013).
26
Zimbabwe: Human Rights in Crisis Shadow Report to the African Commission on Human and Peoples' Rights
(2007). Available at
http://www.ibanet.org/Document/Default.aspx?DocumentUid=f8929fc0-ed6c-40c7-a99a-
bb7ed16237d3 (accessed 18/ 12/2103).
27
Tibaijuka, "Report of the Fact-Finding Mission to Zimbabwe to assess the Scope and Impact of Operation
Murambatsvina by the UN Special Envoy on Human Settlements Issues in Zimbabwe Report of the Fact-Finding
Mission to Zimbabwe to assess the Scope and Impact of Operation Murambatsvina by the UN Special Envoy on
Human Settlements Issues in Zimbabwe (2005). Available at
http://www2.un.habitant.org/documents/zimbabwe.pdf
(accessed 20/10/2013).
5
these rights. The next section discusses the Constitutional Commission Draft of 1999 which
was a major attempt to protect socio-economic rights as national objectives or state directives.
1 1 2 Constitutional Commission Draft of 1999
In 1999, the government presented without success, through the Constitutional Commission, a
Draft Constitution that provided for socio-economic issues such as food security, protection of
environment, cultural issues, education, shelter and healthcare.
28
However, civil society and
opposition political parties successfully lobbied and canvassed against the adoption of the
Constitutional Commission's Draft Constitution, alleging that the referendum ignored the
demands of the people to entrench socio-economic rights as judicially enforceable rights.
29
This demonstrated the growing recognition of the need to ensure that socio-economic rights
are legally enforceable. The following section briefly discusses the Zimbabwe Social Charter,
30
which is arguably the most authoritative and formal document which helped build the
momentum towards the constitutionalisation of socio-economic rights.
1 1 3 Zimbabwe Social Charter of 2008
Zimbabwe has experienced, and is still experiencing, socio-economic problems ranging from
high levels of unemployment, poor working conditions and deplorable living conditions, to
high levels of poverty due to the marginalisation of socio-economic rights. These problems
were the reason why non-governmental organisations, civil society, social movements and
other forums came together to draft what came to be known as the Zimbabwe Social Charter
(Charter).
31
The Charter poignantly states that, "there has been a huge negative marginalisation
and massive growth in social inequality because of the colonial and post-colonial periods in
relation to economy and social welfare."
32
Accordingly, the drafting of the Charter
demonstrated the need to diligently correct the historical anomaly of neglecting socio-
economic rights in the Constitution through entrenching these rights as justiciable rights. It was
affirmed that the new Constitution should guarantee everyone, without any distinction, the
rights to dignity, economic and social justice and be guided by the strong principles.
33
These
28
Constitutional Commission Draft Constitution of Zimbabwe (1999), sections 17-32. Available at
http://web.archive.org/web/20000824120354/http://www.gta.gov.zw/constitutional/Draft+Constitution/Contents
.Draft.Const.htm
(accessed 28/05/2013).
29
Zimbabwe Lawyers for Human Rights et al Economic Social Cultural Rights in Zimbabwe (2009) 2 (hereinafter
"ESCR in Zimbabwe").
30
Kubatana Zimbabwe Social Charter, adopted at the Peoples Convention in Harare on the 9th of Feb 2008.
Available at
http://www.kubatana.net/html/archive/cact/080209pc.asp
(accessed 29/02/2014).
31
Zimbabwe Social Charter (2008).
32
See sections 2-4 of the Zimbabwe Social Charter (2008).
33
Ibid sections 2-4. see also section 3, Zimbabwe Social Charter (2008).
6
principles included, among others, social and economic justice as fundamental principles that
should ensure the protection of the people's socio-economic rights in the Bill of Rights.
34
To avoid further socio-economic rights violations and deprivations, Zimbabwe recently
enacted a new Constitution known as the Constitution of Zimbabwe Amendment Act No 20
2013 (2013 Constitution). The 2013 Constitution responds appropriately to the historical
anomaly of neglecting socio-economic rights. The 2013 Constitution entered into force on the
22
nd
of May 2013
35
and joins a few other Constitutions (Kenyan
36
and South African
37
) in
Africa which expressly protect socio-economic rights as justiciable rights in their Bill of
Rights. Accordingly, Zimbabwe is bound to ensure that its citizens enjoy the full complement
of socio-economic rights further providing for domestic remedies for the violations thereof.
It is this background that prompted and motivated this study to assess the domestic protection
of socio-economic rights in Zimbabwe after the enactment of a new Constitution protecting
these rights.
1 2 Statement of the research problem
This study investigates and interrogates the constitutional framework for protecting socio-
economic rights under the 2013 Constitution. The study particularly focuses on the role of the
judiciary in the enforcement of socio-economic rights, the model of review for ascertaining
state compliance with the constitutionally protected socio-economic rights provisions, and the
remedial framework for addressing violations of rights. As part of addressing the key research
problem, the study also focuses on the role of the Zimbabwe Human Rights Commission as
one of the major constitutional organs in the framework for protecting and promoting socio-
economic rights in Zimbabwe. Additionally, this study explores the conceptual and practical
challenges that are likely to arise in the domestic adjudication of socio-economic rights under
the 2013 Constitution.
1 3 Significance of the study
This study focuses on socio-economic rights norms and institutions provided for their
adjudication and enforcement under the 2013 Constitution. The study also discusses the
34
Ibid section 3 Zimbabwe Social Charter (2008).
35
2013 Constitution, Chapter 4 contains the Declaration Rights (Bill of rights) including socio-economic rights
as justiciable rights.
36
The Constitution of Kenya (2010) available at www.kenyan law.org. Chapter 4 contains a set of socio-economic
rights as justiciable rights.
37
The Constitution of the Republic of South Africa (1996), chapter 2 contains a Bill of Rights which entrenches
socio-economic rights as justiciable rights.
7
possible models of reviewing state compliance with the protected socio-economic rights. The
significance of this study lies in its attempt to explore and assess the prospects and challenges
of litigating socio-economic rights under the 2013 Constitution. Furthermore, this study
attempts to illustrate that domestic judicial protection of socio-economic rights is achievable
in a country where such rights are constitutionally entrenched and where there is a political
will to abide by the courts' decisions. Significantly, this study draws lessons from South
African socio-economic rights jurisprudence where courts in that jurisdiction have experience
in judicially enforcing socio-economic rights provisions protected under South Africa's 1996
Constitution. Most importantly, this study also makes important recommendations to policy
makers, human rights litigators and the judiciary who are likely to be at the forefront in ensuring
that the values that underlie the constitutional protection of socio-economic rights under the
2013 Constitution are upheld.
1 4 Objectives/ Purpose of the study
This study has a number of objectives. Firstly, it seeks to illustrate that the domestic framework
for the protection of socio-economic rights is important towards the promotion and realisation
of these rights. Secondly, it seeks to demonstrate that the role of the judiciary is imperative to
the development of the content, meaning and nature of socio-economic rights through domestic
adjudication. Thirdly, this study seeks to illustrate that judicial activism as compared to judicial
deference is more favourable towards the promotion and protection of socio-economic rights.
Fourthly, this study seeks to serve as a guideline to the socio-economic rights litigators on the
issues that are likely to arise in the enforcement and interpretation of these rights under the
2013 Constitution. Lastly, this study seeks to form the basis for further research as well as for
current policy and legal design around socio-economic rights and other rights in the 2013
Constitution.
1 5 Research questions
This dissertation will attempt to answer the following questions:
i.
What is the nature and content of socio-economic rights protected under the 2013
Constitution and what is the nature of duties that such rights impose on the State?
ii.
Does the inclusion of socio-economic rights in the 2013 Constitution guarantee the full
realisation and judicial protection of these rights?
iii.
What mechanisms does the 2013 Constitution introduce into the framework for
protecting socio-economic rights?
8
iv.
What role do the judiciary and quasi judiciary bodies play in the protection and
enforcement of socio-economic rights?
v.
What are the obligations on Zimbabwe, both domestically and internationally, in terms
of the realisation of socio-economic rights?
1 6 Research hypotheses
i.
Constitutional protection of socio-economic rights is central in promoting a dignified
life.
ii.
Constitutional entrenchment of socio-economic rights imposes on the state the
obligations to respect, protect, promote and fulfil the protected rights.
iii.
The effective realisation of both civil and political rights and socio-economic rights
imposes both positive and negative duties on the state.
iv.
In a democratic society based on human dignity, equality and freedom judicial and non-
judicial mechanisms also play an important role in the framework for respecting,
protecting, promoting and fulfilling socio-economic rights.
1 7 Research methodology
This is a desktop based qualitative research. Both primary and secondary legal sources were
used primary data was in the form of constitutional provisions, international and regional
human rights instruments, legislation and case law. Furthermore secondary materials were
referred to. Secondary sources included text books, journal articles and reports in relation to
the framework for the protection of socio-economic rights under the 2013 Constitution of
Zimbabwe.
1 8 Delimitation
The 2013 Constitution protects civil and political rights and socio-economic rights in an
interdependent and interrelated way. However, this study limited itself only to the socio-
economic rights entrenched under this Constitution.
1 9 Ethical implications of the study
In this study, the researcher does not intend to carry out any interviews, questionnaires or
collection of any information from the public. This will be a desktop-based research that will
draw knowledge and analysis from literature, regional and international human rights
instruments, case law as well as constitutional and legislative provisions. The researcher will
9
nevertheless acknowledge all sources of information directly or indirectly referred to in this
study.
1 10 Chapter outline
This study is divided into four chapters. The principal aim of chapter one is to provide an
overview of the study. This chapter further describes the research problem, significance, aims,
methodology, background and the theoretical framework thereof in respect of the protection of
socio-economic rights in Zimbabwe.
Chapter two explores and discusses the specific socio-economic rights provided for under the
2013 Constitution focusing on the nature and content of these rights and the obligations such
rights impose on the State.
Chapter three explores the role of the judiciary and the entire institutional framework
introduced by the 2013 Constitution for protecting socio-economic rights which is core in this
study. Chapter 3 analyses the model of review, interpretation and other practical and conceptual
challenges that are likely to arise in the enforcement of socio-economic rights under the 2013
Constitution. Although this is not a comparative study, this chapter also referred to South
African jurisprudence in the area of socio-economic rights given the experience gained by the
courts and other non-judicial institutions in that country in the enforcement of socio-economic
rights protected under the 1996 Constitution. Such comparative insights are important and
would prove an invaluable learning guide for the protection and enforcement of socio-
economic rights under the 2013 Constitution.
Chapter four provides a summary of the conclusions reached throughout the study. It will also
seeks to articulate the theoretical contribution of the study for scholarship in this field.The
study concludes by making recommendations on a framework for effective protection and
enforcement of socio-economic rights under the 2013 Constitution through judicial and non-
judicial mechanisms.
10
CHAPTER 2
The Socio-Economic Rights Protected under the 2013 Constitution of Zimbabwe
2 Introduction
The Universal Declaration of Human Rights (UDHR) provides for interdependence and
interrelatedness of all human rights by incorporating both socio-economic rights, and civil and
political rights in the same instrument. Thus, human rights law includes all socio-economic
rights, as well as civil and political rights such as the right to freedom of speech and the right
to a fair trial. All rights are deeply intertwined, for example, the right to freedom of expression
means little without a basic or elementary education, and the right to vote means little in the
face of starvation.
38
In the same accord, it can be argued that the right to work means little if
people are not allowed to meet and assemble in groups to discuss working conditions.
39
Civil
and political rights and socio-economic rights are interrelated, indivisible and interdependent
40
and must be given the same means of protection in a democratic society based on human
dignity, equality and freedom. The 2013 Constitution in the similar vein as the UDHR protects
socio-economic rights as well as civil and political rights in the same manner.
41
Zimbabwe's independence Constitution, the Lancaster House Constitution (LHC) did not
provide for socio-economic rights.
42
Even though it was fundamentally weak on socio-
economic rights matters, the LHC made a strong commitment to civil liberties and political
rights that could have been interpreted to protect and realise socio-economic rights. Unlike
India where the judiciary extended civil and political rights to protect socio-economic rights,
this was not the case in Zimbabwe.
43
The new Constitution (2013 Constitution) corrects this
anomaly of neglecting socio-economic rights by firmly protecting these rights in the same
manner as civil and political rights. Furthermore, the 2013 Constitution creates a framework
38
Centre for Economic and Social Rights, "CESR's Basic Primer on ESC Rights Definition of What are Socio-
Economic Social and Cultural Rights?" Available at
http://www.cesr.org/article,php?id=275
accessed
(09/01/2014).
39
Centre for Economic and Social Rights, "CESR's Basic Primer on ESC Rights Definition of What are Socio-
Economic Social and Cultural Rights?" Available at
http://www.cesr.org/article,php?id=275
accessed
(09/01/2014).
40
Article 5 of Vienna Declaration and Programme of Action (1993) adopted by the World Conference on Human
Rights in Vienna. See also Whelan Indivisible Human Rights: A History (2010) Chapter 5.
41
See Constitution of the Republic of Zimbabwe Amendment No 20 2013 (hereinafter 2013 Constitution) chapter
3 of the 2013 Constitution of Zimbabwe.
42
See chapter 2 of the Lancaster House Constitution, 1979 (LHC).
43
See for example Olga Tellis v Bombay Municipal Cotporation 1985 Air 1986 India Supreme Court 18.
11
through which these rights may be protected. Therefore, it is the principal aim of this chapter
to discuss the constitutional protection of socio-economic rights under the 2013 Constitution
of Zimbabwe.
This chapter is divided into sections. The first section discusses the legislative framework that
was designed to protect socio-economic rights in Zimbabwe before their constitutional
protection. This helps to give a historical background and a better perspective regarding the
protection of such rights under the Constitution. The second section which is part of the main
aim of this section explores the obligations imposed by socio-economic rights in the 2013
Constitution. The final section discusses the specific core set of socio-economic rights
protected under the Constitution focusing on the nature and content of these rights, followed
by the conclusion.
Conspicuous under the LHC era, despite the neglect of socio-economic rights in that
Constitution, is that, the government put in place a number of legislative and policy measures
relating to social security, education, housing, labour, health and water.
44
Perhaps what was
lacking and missing was a strong human rights perspective and basis for these social measures.
The language used in the legislative framework was not a rights language. Such legislative
measures however, were broadly formulated limiting the manner in which individuals could
claim these measures as rights in a court of law. In fact, the range of these legislative measures
was part of Zimbabwe's social policies due to the socialist ideology of the government of the
day. The relevant pieces of legislation included the National Social Security Authority Act
12/1989,
45
the Social Welfare Assistance Act 10/1988,
46
the Education Act 5/1987,
47
the
Labour Act 16/1985,
48
the Medical Services Act 27/1998,
49
the Public Health Act 19/1924,
50
the Water Act 31/1998,
51
the Housing Standards Control Act 29/1972,
52
and the Urban
Councils Act 21/1997.
53
However, such legislative measures were not in themselves enough to
ensure the full protection and enforcement of socio-economic measures. The treaty body that
44
This is pursuant to the requirement under Article 2 (1) of International Covenant Economic Social Cultural
Rights 1966.
45
National Social Security Authority Act 12/1989 Chapter 17:04 (as amended).
46
Social Welfare Assistance Act 10/1988 Chapter 17:06 (as amended).
47
Education Act 5/1987 Chapter 25:04 (as amended).
48
Labour Act 16/1985 Chapter 28:01 (as amended).
49
Medical Services Act 27/1998 Chapter 15:13 (as amended).
50
Public Health Act 19/1924 Chapter 15:09 (as amended).
51
Water Act 31/1998 Chapter 20:24 (as amended).
52
Housing Standards Control Act 29/1972 Chapter 29:08 (as amended).
53
Urban Councils Act 21/1997 Chapter 29:15 (as amended).
Details
- Pages
- Type of Edition
- Erstausgabe
- Publication Year
- 2016
- ISBN (PDF)
- 9783960675525
- ISBN (Softcover)
- 9783960670520
- File size
- 877 KB
- Language
- English
- Publication date
- 2016 (June)
- Grade
- 70
- Keywords
- constitutional protection socio-economic rights 2013 Constitution domestic framework Judicial remedy Zimbabwe Socio-economic inequality Role of the courts
- Product Safety
- Anchor Academic Publishing
