DECLARATION OF RIGHTS: CHAPTER 4 OF THE CONSTITUTION OF ZIMBABWE

(SECTIONS 44 – 87)

INTRODUCTION

The Declaration of Rights (sometimes referred to as the ‘Bill of Rights’) sets out rights and freedoms that the people of Zimbabwe are entitled to by virtue of being human beings. These rights are Constitutional rights and therefore legally binding. If these rights are violated, one can seek redress by suing for damages or taking the matter to the Constitutional Court or any other Court or to the Zimbabwe Human Rights Commission (ZHRC) or other organisations that deal with human rights issues to access justice. The Declaration of Rights has both civil and political rights as well as environmental, economic, social and cultural rights. While civil and political rights are enforceable at law, the implementation of environmental, economic, social and cultural rights dependents on the availability of resources but the State is required at law to take all steps necessary to ensure the enjoyments of all rights.

PART 1: APPLICATION AND INTERPRETATION OF CHAPTER 4

44 Duty to respect fundamental human rights and freedoms

The State, every person (including juristic persons) and all institutions and government agencies must respect, protect, promote and fulfill the rights and freedoms set out in this chapter.

Note: Juristic persons are legal institutions or entities that are capable of holding rights and duties such as companies, corporations, associations, partnerships and trusts as opposed to natural persons or human beings.

45 Application

The Declaration of Rights is binding and applies to everyone including natural and juristic persons, the State, and all institutions and agencies of government; Executive (President and Cabinet), Legislature (Parliament) and Judiciary (Courts).

46 Interpretation of Chapter 4

When interpreting this chapter, a court, tribunal, forum or body must apply all rights in the constitution, promote the values and principles of a democratic society based on openness, justice, human dignity, equality and freedom. It must also take into account all provisions of the constitution, international law and all agreements that Zimbabwe has signed and consider relevant foreign law.

47 Existence of other rights

The existence of other rights and freedoms not mentioned in the Declaration of Rights is recognised as long as they are in line with this Constitution.

PART 2: FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS

48 Right to life

Every person has the right to life but the law may permit the death penalty imposed as final judgement by a competent court for murder committed in extreme circumstances. The death penalty does not apply to a woman or a person who was less than 21 years or above 70years at the time of committing the crime. A person sentenced to death has the right seek mercy and cancellation for the crime from the President. An Act of Parliament must protect the lives of unborn children, and outline the situations when abortion will be allowed.

49 Right to personal liberty

Every person has the right not to be detained without trial nor to be deprived of liberty without a just cause. No person may be imprisoned for failure to fulfil terms and conditions of a contract.

50 Rights of arrested and detained persons

Any person who is arrested has the following rights:

He or she must be told the reasons for arrest at the time when he or she is arrested;
He or she must be allowed to communicate with a person of his or her choice, consult with his or her lawyer and consult his or her doctor if needed;
He or she must be treated with respect;
He or she must be released unconditionally or on reasonable conditions whilst awaiting trial unless there are strong reasons for keeping him or her in prison (remand);
He or she must be allowed to challenge the lawfulness of his or her arrest in court and must quickly be released if the arrest is unlawful.

A person who is arrested must be brought before a court within 48 hours unless detention is extended by a court authorised to do so by law.

In addition, an arrested person has the following rights:

The right to remain silent;
He or she should not be forced to make a confession or admission;
He or she must be told the crime that they are alleged to have committed by the presiding judicial officer when he or she appears in court for the rst time, and be asked whether he or she is denying or admitting the crime (plead ‘not guilty’ or ‘guilty’ i.e. ‘be charged’) or be told the reason for continued detention if not charged or released.

A detained or sentenced prisoner must be informed of the reason for detention and is entitled to the following rights:

To speak to his or her lawyer in private;
Communicate with or be visited by a person of their choice;
To stay in hygienic conditions, eat adequate nutritious food, exercise and receive medical treatment;
To challenge the lawfulness of their detention before a court of law and to be quickly released if the detention is unlawful.

Any person detained pending trial must be tried within a reasonable time or else he or she must be released without conditions or on reasonable conditions.

When a person has been detained illegally or when there is reason to believe that a person has been detained but one is not sure of his or her whereabouts, one can approach the High Court for an order to have the person brought to court or requiring that a detained person be released or for the whereabouts of the detained person to be disclosed, if not known.

A person who has been illegally arrested or detained can apply for compensation from the people responsible, unless they were public officials acting in good faith and not from ignorance or neglect.

51 Right to human dignity

Every person has the right to dignity both in their private and public life and the right to have that dignity respected and protected.

52 Right to personal security

Every person has the right to control and make decisions about their bodies including reproduction and mental integrity and not to be subjected to any form of violence from public or private sources or be used for scientific experiments without their informed consent.

53 Freedom from torture or cruel, inhuman or degrading treatment or punishment

No person may be tortured physically or psychologically or may be treated or punished in a way that is cruel, inhuman and degrading.

54 Freedom from slavery and servitude

Slavery is not permitted in Zimbabwe.

55 Freedom from forced labour

Forced or compulsory labour is not allowed by law.

56 Equality and non-discrimination

All people are equal before the law; women and men are equal before the law and have the right to equal protection and benefit of the law including the right to equal opportunities in political, economic, cultural and social spheres.

Every person has the right to fair treatment and not to be discriminated on the grounds of their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability, economic or social status, or whether his or her parents were married or not married when he or she was born.

Discrimination is only permitted when measures are taken to protect or advance people or classes of people who have been disadvantaged by unfair discrimination in the past. Such measures shall not be regarded as unfair.

57 Right to privacy

Every person has the right to privacy and not to have his or her home, premises or property entered or searched without his or her permission, have his or her possessions seized, have the privacy of his or her communications interfered with; and have his or her health condition made known without his or her permission.

58 Freedom of assembly and association

Every person has the right to gather with others and join an association of their choice and the right not to belong to or be forced to belong to an association, or to attend a meeting.

59 Freedom to demonstrate or petition

Every person has the right to demonstrate and present petitions peacefully expressing their grievances or expectations.

60 Freedom of conscience

Every person has the right to freedom of conscience including freedom of thought, opinion, religion or belief; and freedom to practise and express these in private or public.

Parents and guardians have the right to decide on the moral and religious upbringing of their children in accordance with their beliefs, provided they do not go against the rights of children, including their rights to education, health, safety and welfare.

Note: Freedom of thought or conscience or ideas is the freedom of the individual to hold or consider a fact, viewpoint or thought, independent of others’ viewpoints.

61 Freedom of expression and of media

Every person has the right to freedom of expression including freedom to seek, receive and communicate ideas and information and freedom of artistic expression, scientific research and creativity; and academic freedom.

Every person is entitled to freedom of the media and journalists do not have to reveal the sources of their information. Broadcasting and other electronic media of communication can be freely established, subject to State licensing procedures that are necessary to regulate the airwaves and are independent of government, political or commercial interests.

Print and electronic state media must be free to decide independently on content; be impartial and non-partisan; and give fair opportunity for presentation of different views including those that conflict with the government’s views.

Freedom of expression and the media does not include promotion of violence, hatred or hate speech or damaging a person’s reputation or dignity or invading the privacy of others without good reason.

62 Access to information

Every citizen or permanent resident of Zimbabwe including juristic persons and the media have the right of access to any information held by any person including the State required for exercising or protecting a right. This right may only be restricted in the interest of defence, public security or professional confidentiality and such restriction must be reasonable in a democratic society.

63 Language and culture

Every person has the right to use the language of their choice and to participate in the cultural life of their choice provided that this does not violate the rights in the Declaration of Rights.

Note: The constitution recognises 16 languages, namely Chewa, Chibarwe, English, Kalanga, Koisan, Nambya, Ndau, Ndebele, Shangani, Shona, Sign Language, Sotho, Tonga, Tswana, Venda and Xhosa.

64 Freedom of profession, trade or occupation

Every person has the right to choose and to practice any kind of profession, trade or occupation but this may be regulated by law.

65 Labour rights

Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage.

Every person or employee, except members of the security services, has the right to form or belong to an association or organisation of their choice and participate in collective job action. This includes the right to strike, sit in and withdraw their labour and to participate in collective bargaining, organise and form federations.

Women and men have the right to equal pay for similar work and women have the right to fully paid maternity leave for at least 3 months.

66 Freedom of movement and residence

Every citizen has the right to enter Zimbabwe, the right not to be expelled from the country, and the right to a passport or other travel document.

Citizens and people in the country legally have the right to move freely within the country, reside in any part of the country or leave the country.

Note: A citizen is a member of a country or nation, in most cases, either by birth or descent or by registration. A non – citizen can apply for a visa to be a permanent resident. With such a visa, the non – citizen can live, work and study without restriction.

67 Political Rights

Every Zimbabwean citizen has the right to free, fair and regular elections and make political choices freely, form, join and participate in the activities of a political party or organisation of their choice and campaign freely and peacefully for a political party or cause.

Every Zimbabwean citizen above 18 years has the right to vote secretly in elections and referendums and stand for public office and, if elected, to hold such office.

68 Right to Administrative Justice

Every person has the right to administrative action or service by government officials that is lawful, prompt, efficient, non-partisan and fair. Any person whose rights or interest have been negatively affected by administrative conduct or action has the right to be given written reasons for the conduct without delay.

69 Right to a fair hearing

Every person accused of an offense has the right to a fair and public trial within reasonable time before an independent and unbiased court.

Every person has the right to have a dispute concerning his or her civil rights or obligations heard and decided by an independent and unbiased court or other lawful forum in a fair and public way.

Every person has the right to access to courts and legal representation at their own expense.

70 Rights of an accused person

Any person accused of an offence has the right to be presumed innocent until proven guilty; and is entitled to adequate time and facilities to prepare a defence; to legal representation of their choice at their own expense; to be assigned a lawyer by the

State using State resources if injustice would otherwise result; to be present when being tried; to challenge any produced evidence; to have the court proceedings conducted and information provided to him or her in a language that he or she understands; not to be tried on a matter which they have been previously pardoned, acquitted or convicted; to non-admission of evidence obtained in an unconstitutional manner; to be given a copy of the trial records or reports within a reasonable time after paying a reasonable fee; and to have the case reviewed by a higher court or to appeal to a higher court against their conviction and sentence.

71 Property rights

Every person has the right to purchase, use and dispose of all forms of property and can only lose their property in terms of the law or if the property is being taken for a lawful purpose, for example, in the interest of defence, public safety, public order or for a purpose beneficial to the community. This right is limited in respect of agricultural land.

The law requires the authority acquiring the property to give reasonable notice of intention to take the property, pay fair and adequate compensation; and if challenged, to apply to a court for an order confirming the acquisition within 30 days.

The person whose property is being acquired has the right to challenge the acquisition or the amount of compensation awarded before a competent court. However, this right is limited in the case of agricultural land.

72 Rights to agricultural land

Agricultural land means land suitable for any form of agriculture (including forestry and the keeping of game); but it does not include communal land or urban land.

The State may acquire agricultural land by notice in the Gazette for settlement for agriculture, land reorganisation, relocation of people and no compensation is payable except for improvements and no person may challenge the acquisition of the land in court.

The former colonial power, not the government of Zimbabwe has the obligation to pay compensation for agricultural land compulsorily or forcibly acquired for resettlement.

73 Environmental rights

Every person has the right to an environment that is safe and protected for the benefit of present and future generations through measures to prevent pollution and ecological degradation and promote conservation to achieve sustainable development.

The State must take measures to achieve the progressive realisation of these rights.

Note: The requirement that States must take measures to achieve progressive or gradual realisation of rights applies to the fulfilment of Environmental, Economic, Social and Cultural Rights (EESCR) as provided for in this section and other relevant Sections (75, 76 and 77). In fulfilling these rights, for example, to shelter, education, health, clean environment, food and water, governments face resource constraints among other challenges, hence, they can only achieve these over time. However, no matter what level of resources they have at their disposal, governments are still obligated to take steps within their means towards the fulfilment of these rights.

74 Freedom from arbitrary eviction

No person may be evicted from their home or have their home destroyed, without a court order that takes into account all the relevant circumstances.

75 Right to education

Every citizen and permanent resident of Zimbabwe has a right to a basic, state funded education (including adult education); and further education which the state must progressively make available and accessible.

Every person has the right to establish and maintain, at their own expense, independent educational institutions provided they meet reasonable standards and do not discriminate on any grounds.

76 Right to health care

Every citizen and permanent resident of Zimbabwe, including a person living with a chronic illness, has the right to have access to basic healthcare and reproductive health care services.

No person may be refused emergency medical treatment in any health care institution.

77 Right to food and water

Every person has the right to safe, clean and potable water that is suitable for drinking and sufficient food.

78 Marriage rights

Every person who is or above the age of 18 years can marry and start a family and may not be forced to marry or be married against their will. Same sex marriages are not allowed in terms of the law.

PART 3: ELABORATION OF CERTAIN RIGHTS

79 Application

This part elaborates certain rights and freedoms. What is written in this part does not limit any right or freedom set out in Part 2 of this Declaration of Rights.

80 Rights of Women

Every woman has full and equal dignity as men including equal opportunities in political, economic and social activities, custody and guardianship of children.

Note: Custody involves day to day care of the minor child, while guardianship involves making decisions concerning the child or being legally responsible for the child’s actions.

All laws, customs, traditions and cultural practices that violate or disturb the enjoyment of rights of women are illegal with regard to the violation.

81 Rights of Children

Every child, that is to say everyone under the age of 18 years, has the right: to equal treatment before the law; to be given a name and family name; to family and parental care, or suitable alternative care; to protection from exploitation, child labour and all forms of abuse; to education, health care services, nutrition and shelter; not to be recruited into a militia or take part in armed conflict, not to be forced to take part in political activity and not to be detained unless as a measure of last resort.

A child’s best interests are the most important consideration in every matter concerning the child.

Children are entitled to protection by the courts, in particular, by the High Court which is the upper guardian of children.

83 Rights of the elderly

People above 70 years have the right to receive reasonable care and assistance from their families and the State, health care and medical assistance from the state and financial support through social security and welfare.

83 Rights of persons with disabilities

The state must take suitable measures within its available resources, to ensure that persons with disabilities realise their full potential; to enable them to become self-reliant; live with their families and participate in social and creative activities; protect them from all forms of exploitation and abuse; have access to medical, psychological and functional treatment; and to provide State – funded facilities for their education; and provide State – funded education and training.

84 Rights of liberation war veterans

War veterans who fought in Zimbabwe’s war of liberation, all persons who assisted liberation war fighters or who were detained or restricted for political reasons during the war, are entitled to recognition for their contribution to the liberation of Zimbabwe and to suitable welfare such as pensions and access to basic healthcare.

PART 4: ENFORCEMENT OF RIGHTS

Persons acting in their own interest or on behalf of others, or acting in the interests of a group/association or in the public interest can approach a court if they believe their rights have been violated, or are likely to be violated. The fact that a person has broken a law does not stop them from approaching a court for relief.

PART 5: LIMITATIONS OF FUNDAMENTAL RIGHTS AND FREEDOMS

Fundamental rights and freedoms must be exercised taking consideration of rights of others.

Human rights may be limited only by a law of general application which is necessary and reasonable in an open, just and democratic society.

Rights that shall not be limited or violated are the right to life (with the exception of the death penalty as provided), right to human dignity, right not to be tortured or subjected to cruel, inhuman and degrading treatment and punishment, right not to be placed in slavery or servitude, right to a fair trial, and the right to obtain an order to disclose the whereabouts of a detained person.

87 Limitations during public emergency

The rights in this Declaration of Rights may be limited by a written law during a public emergency but in accordance with what is strictly required by the emergency. This does not permit the state and government agencies and institutions or people to act unlawfully or authorise the violation of any of the rights listed in the previous section as incapable of limitation.

Contacts

If you have any human rights complaints or wish to know more about your rights and responsibilities, please feel free to contact the Zimbabwe Human Rights Commission at the following addresses:

HEAD OFFICE

144 Samora Machel Avenue, Harare

Tel: + 4 705 426 / 705268 / 703 616 / 703 596 / 701 811

Website: http://www.zhrc.org.zw

Focal Person: Karukai Ratsauka – 0772662853

BULAWAYO OFFICE

49 J.M Nkomo (between 3rd and 4th Avenue) Bulawayo

Tel: +263 9 64170-73

Website http://www.zhrc.org.zw

Focal Person: Alondoliziwe Sitsha – 0783354085

Head Office

Chairperson: Commissioner Elasto Hilarious Mugwadi – 07772644247

Deputy Chairperson: Commissioner Ellen Sithole (Dr) – 0772348182

Northern Region

Commissioner Kwanele Muriel Jirira – 0777281926

Commissioner Sheila Matindike – 0772343597

Commissioner Joseph Kurebwa (Dr) – 0712720593

Southern Region

Commissioner Sethulo Ncube – 0772634029

Commissioner Carroll Themba Khombe (Prof) – 0712805486

Commissioner Japheth Ndabeni – Ncube – 0772515012