Frequently Asked Questions.
Everything you need to know regarding human rights and the law.
Human rights are rights that every person is entitled to by virtue of being a human being hence they are inalienable as they attach to every person. To that extent human rights cannot be taken away by even the government presiding over the state. These rights are indivisible and interdependent. This means the human rights do not exist in isolation but are taken together as a whole.
Human rights have rights on account of being human beings. No one gives or grants human rights but these may find expression in municipal law (a national’s internal legal system – a constitution), regional and international human rights conventions, treaties and agreements. Human rights are important as they serve to preserve the life and worth of every human being.
Human rights have to be respected so that human beings can enjoy the rights without unnecessary restrictions. Most importantly rights have to be respected so as to preserve life and human dignity. In Zimbabwe section 44 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 specifically imposes an obligation on the state and every person, including juristic person, and every institution and agency of government at every level to respect, protect, promote and fulfill human rights and freedoms set out in Chapter 4 of the Constitution.
Every person has human rights including criminals, leaders, children, men, women, Africans, Americans, Europeans, refugees, stateless persons, the unemployed, those in employment, bankers, those accused of carrying out acts of terrorism, charity workers, teachers, dancers, astronauts et cetera.
Indeed. It does not matter who the person is and what they do for a living or whether they are facing a criminal charge is inconsequential. The power of human rights lies in the very fact that they treat everyone as equal in terms of possessing human dignity. Some people may have violated the rights of others or may pose a threat to society and may therefore need to have their rights limited in some way in order to protect others, but only within certain limits. These limits are defined as being the minimum which is necessary for a life of human dignity.
It is important to recognise that some groups, such as the women and children, have been marginalised for a long time within our society. They therefore need special measures to enable them to access general human rights standards on an equal basis with others. Years of institutionalised discrimination and stereotypes, and outright hatred and obstacles, mean that just announcing generally applicable rights to them, and expecting that this is enough to ensure equality, would be a failure to recognise this historic wrong.
Others think that rights should be linked to responsibilities. These would be duties that the state through the government of the day may conceive and enact into law. But this will be inconsistent with the entitlement of every individual to human rights by virtue of having been born. Indeed the Constitution envisages that in our enjoyment of human rights we should not prejudice the rights of others. As such we have a duty to respect the rights of others. We will be hypocritical if we were to abuse the human rights of other people in the process of our enjoyment of our own rights. In Zimbabwe the enjoyment of human rights is to be limited in accordance with the constitutional prescriptions as set out in section 86(2) of the Constitution which requires among other factors, the limitation to be done in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all the following factors:
- The nature of the right or freedom concerned,
- The purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest,
- The nature and extent of the limitation,
- The need to ensure that the enjoyment of the right and freedoms by any person does not prejudice the rights and freedoms of others,
- The relationship between the limitation and its purpose, in particular whether it imposes a greater restriction on the right or freedom concerned than are necessary to achieve the purpose,
- Whether there are any other restrictive means of achieving the purpose of the limitation,
There are other human rights however which cannot under any circumstance be limited and no person may violate them. They are as follows:
- The right to life, except to the extent specified in section 48 of the Constitution,
- The right to human dignity,
- The right not to be tortured or subject to cruel, inhuman and degrading treatment or punishment,
- The right not to be placed in slavery or servitude,
- The right to a fair trial
- The right to obtain an order of a habeas corpus as provided in section 50(7) of the Constitution.
We all need to. There is legislation both at national and at international levels which imposes restrictions on what governments are able to do to their citizens but, if no-one points out that their actions are violating international norms, governments can continue to violate them with impunity. As individuals, we need not only to respect the rights of others in our everyday lives but also to keep watch on our governments and on others. The protective systems are there for all of us if we use them.
Try pointing out that they have been violated; claim your rights. Let the other person know that you know they are not entitled to treat you in this way. Pinpoint the relevant articles in the Constitution, the UDHR, or the other international documents. If there is legislation enacted by Zimbabwe, point to that as well. Tell others about it: tell the press, write to your parliamentary representative and head of state, inform any NGOs that are engaged in human rights activism. Ask their advice. Speak to a lawyer, if you have the opportunity. Make sure that your government knows what action you are taking. Make them realise that you are not going to give up. Show them the support you can draw on. In the final analysis, and if everything else has failed, you may want to resort to the courts.
The Constitution of Zimbabwe in sections 85, 171(1)(c) and 175(4) sets out the procedures for the Protection of Human Rights and Fundamental Freedoms as set out in the Constitution. These should be read together with the relevant court rules, e.g. High Court Rules, 1971, Constitutional Court Rules, 2016 et cetera. This is the individual or group/class complaints mechanism. Consider the admissibility requirements that the procedural law requires in order for you to be properly before the court. If the local courts fail, you are free to send a communication to the African Commission on Human & Peoples Rights alleging that a state party to the African Charter on Human & People’s Rights has violated, also taking into account the admissibility requirements. For instance, there is need to exhaust domestic remedies if these are available and effective. So one has to ensure that the complaint has already been raised in the national courts of Zimbabwe (up to the highest court!) before you can bring a case to the African Commission. If you wish to try, and you believe that you satisfy the admissibility requirements, then you can bring a complaint. However, you are strongly advised to seek legal advice or the advice of lawyers and or NGOs working in the field in order to be sure that your claim has a real chance of success. Both individuals and NGOs in Africa and outside Africa have a right to bring such complaints in the form of communications.
You are at large to claim your human rights from the state as it has already been shown that the state, its institutions and agencies at every level have a duty to protect, respect, promote and fulfil human rights set out in Chapter 4 of the Constitution. You can also claim nearly all the basic human rights that are listed in the international documents against the government, or state officials. Human rights protect your interests against the state, so you need to claim them from the state or from their representatives. If you feel that your rights are being violated by, for example, your employer or your neighbour, you cannot resort directly to international human rights legislation unless there is also something the government ought to have done to prevent employers or neighbours from behaving in this way. In such instances one can claim these rights against these neighbours by invoking the relevant legislation.
Yes. A right is meaningless without a corresponding responsibility or duty on someone else’s part. Every individual has a duty not to violate your personal dignity but your government, in signing up to international agreements, has not just a moral duty but also a legal duty.
There is no country in the world that has a completely clean record on human rights, even today. There may be more frequent violations in some countries than others or they may affect a larger proportion of the population, but every single violation is a problem that ought not to have happened and that needs to be dealt with. An individual whose rights are violated in one of the established democracies is hardly likely to be comforted by the fact that, in general, their country has a “better” record on human rights than other countries in the world!
This is debatable issue. On one hand the country enacted a constitution in 2013 with a far reaching and progressive human rights legal framework. That is a good start. Zimbabwe is also a signatory to a number of regional and international human rights treaties and conventions. However, there are other treaties, agreements and conventions that Zimbabwe still has not signed like the Convention Against Torture (CAT). It is best that it does sign the CAT because many rights are violated in acts of torture of arrested or detained persons. Even those treaties, agreements and conventions that Zimbabwe has actually signed, it may not have ratified and has not further domesticated as is required by our Constitution in section 327. It is also true that a lot of political opponents of the government and civil society activists at times get unnecessarily arrested. This need not be the case because in the majority of these cases no convictions eventuate suggesting that there was no basis to have arrested such individuals. A lot needs to be done to inculcate a culture of respect for human rights and freedoms by a lot of state actors who still seem oblivious to the same. The enactment of the Constitution in 2013 was a major start, but a great deal more remains to be done.
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