The Declaration of Rights Under the Constitution of Zimbabwe 2013: Scope and Limitations
An examination of the Declaration of Rights in Chapter 4 of the Constitution of Zimbabwe 2013, its justiciability, the limitations clause under section 86, and the Constitutional Court's emerging jurisprudence on fundamental rights.
Introduction
The Constitution of Zimbabwe Amendment (No. 20) Act 2013 (the Constitution) represents a transformative moment in Zimbabwe's constitutional history. Chapter 4, the Declaration of Rights, enshrines a comprehensive catalogue of fundamental rights and freedoms that are directly enforceable against the State and, in some instances, against private persons.
The Scope of the Declaration of Rights
The Declaration of Rights covers civil and political rights (sections 58–85) as well as socio-economic rights, including the right to education (section 75), the right to health care (section 76), the right to food and water (section 77), and the right to a clean environment (section 73).
Section 44 imposes a general obligation on the State and every person to respect, protect, promote, and fulfil the rights and freedoms set out in the Declaration of Rights.
The Limitations Clause: Section 86
Section 86 permits the limitation of rights and freedoms by law of general application, provided the limitation:
- Is fair, reasonable, necessary, and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom
- Takes account of all relevant factors, including the nature of the right, the purpose of the limitation, and the extent of the limitation
The Constitutional Court has emphasised that the limitations clause must be applied strictly, and that the burden of justifying a limitation rests on the party seeking to uphold it.
Emerging Constitutional Court Jurisprudence
The Constitutional Court of Zimbabwe, established under the 2013 Constitution, has begun to develop a body of jurisprudence on the Declaration of Rights. Key decisions include:
Jealousy Mbizvo Mawarire v Robert Gabriel Mugabe & Others CCZ 1/13 — the Court's first significant constitutional matter, dealing with the timing of elections and the justiciability of constitutional obligations.
Mudzuru & Another v Minister of Justice & Others CCZ 12/15 — a landmark judgment declaring the Marriage Act's provisions permitting child marriage unconstitutional as a violation of the rights of children under section 81.
Practical Implications for Practitioners
Practitioners must be conversant with the Declaration of Rights to effectively advise clients on constitutional challenges to legislation and executive action. Key considerations include:
- Whether the right is absolute or subject to limitation
- Whether the limitation is prescribed by law of general application
- Whether the limitation meets the proportionality test under section 86
- The appropriate remedy — declaration of invalidity, reading in, or constitutional damages
Conclusion
The Declaration of Rights in the 2013 Constitution provides a powerful framework for the protection of fundamental rights in Zimbabwe. As the Constitutional Court continues to develop its jurisprudence, practitioners must stay abreast of developments and be prepared to advance creative constitutional arguments on behalf of their clients.
Discussion (2)
Thank you for this thorough overview. The proportionality analysis under section 86 is particularly important in practice. I have found that courts are willing to engage in a rigorous proportionality analysis where the right at stake is a civil or political right, but are more deferential to the legislature in matters of socio-economic policy.
An excellent and comprehensive analysis of the Declaration of Rights. I would add that the interaction between section 86 (limitations) and section 44 (general obligations) is an area that the Constitutional Court has not yet fully resolved. In particular, the question of whether positive obligations under section 44 can be limited under section 86 has important practical implications for socio-economic rights litigation.