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An Analysis of Socio-Economic and Cultural Rights Protection under the Zimbabwe Constitution of 2013

Published online by Cambridge University Press:  11 April 2017

Howard Chitimira
Howard Chitimira*
Affiliation:
North-West University, South Africa
*
[email protected]
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Abstract

This article discusses certain provisions of the Zimbabwe Constitution Amendment Act 20 of 2013 that deal with the protection of socio-economic and cultural rights in Zimbabwe. The purpose of the article is to investigate the adequacy, flaws, challenges and prospects of these provisions in relation to the protection and affording of basic socio-economic and cultural rights to all citizens of Zimbabwe.

Keywords

Cultural rightsflawsZimbabwe Constitution 2013socio-economic rightsprotection
Type
Research Articles
Information
Journal of African Law , Volume 61 , Issue 2 , June 2017 , pp. 171 - 196
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Copyright
Copyright © SOAS, University of London 2017 

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Footnotes

*

LLB, LLM (University of Fort Hare); LLD (Nelson Mandela Metropolitan University). Associate professor, Faculty of Law, North-West University, South Africa.

References

1 Socio-economic and cultural rights are also referred to as “socio-economic rights” in this article.

2 Adopted on 10 December 1948, GA res 217A (III), UN doc A/180 (1948) at 71.

3 Adopted on 16 December 1966, GA res 2200A (XXI), 21 UN GAOR supp (no 16) at 49, UN doc A/6316 (1966), 993 UNTS 3; came into force on 3 January 1976; signed by Zimbabwe on 13 August 1991.

4 Adopted on 18 December 1979, GA res 34/180, 34 UN GAOR supp (no 47) at 193, UN doc A/54/49 (vol 1) (2000); entered into force on 22 December 2000; acceded to by Zimbabwe on 12 June 1991.

5 Adopted on 20 November 1989, GA res 44/25, annex, 44 UN GAOR supp (no 49) 167, UN doc A/44/49 (1989); entered into force on 2 September 1990; ratified by Zimbabwe on 11 October 1990.

6 Adopted on 21 December 1965, GA res 2106 (XX), annex, 20 UN GAOR supp (no 14) at 47, UN doc A/6014 (1966), 660 UNTS 195; entered into force on 4 January 1969; ratified by Zimbabwe on 12 June 1991.

7 OAU doc CAB/LEG/24.9/49 (1990); entered into force on 29 November 1999; ratified by Zimbabwe on 19 January 1995.

8 Adopted by the second ordinary session of the Assembly of the African Union in Maputo on 13 September 2000, CAB/LEG/66.6; entered into force on 25 November 2005; ratified by Zimbabwe on 5 September 2008.

9 Adopted in Banjul on 27 June 1981, OAU doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982); came into force on 21 October 1986; ratified by Zimbabwe on 30 May 1986.

10 Adopted on 16 December 1966, GA res 2200A (XXI), 21 UN GAOR supp (no 16) 52, UN doc A/6316 (1966), 999 UNTS 171; came into force on 23 March 1976; signed by Zimbabwe on 13 August 1991.

11 AJ Mavedzenge and DJ Coltart A Constitutional Law Guide Towards Understanding Zimbabwe's Fundamental Socio-Economic and Cultural Human Rights (2014, Constitutionallythinking, Word press).

12 See the Vienna Declaration and Programme of Action, UN General Assembly, 12 July 1993, A/CONF.157/23, available at: <http://www.refworld.org/docid/3ae6b39ec.html> (last accessed 15 February 2017); Mavedzenge and Coltart, id at 23–24; and Zimbabwe Lawyers for Human Rights (ZLHR), National Constitutional Assembly (NCA) and Harvard Law School International Human Rights Clinic (HIHRC) “Economic, social and cultural rights in Zimbabwe: Options for constitutional protections” (2009), available at: <http://hrp.law.harvard.edu/wp-content/uploads/2009/08/Zimbabwe_6.23.09.pdf> (last accessed 15 February 2017).

13 The initial constitution of the USA was reportedly ratified in 1789 and subsequently amended in 1791. See the 1791 Federal Constitution of the USA, as amended.

14 1995 Constitution of Malawi (as amended), secs 22–31.

15 See 1996 Constitution of South Africa, as amended, secs 13, 15 and 22–31, enshrined in the Bill of Rights.

16 Amendment Act 20 of 2013.

17 Zimbabwe Constitution, chaps 2 and 4.

18 Maseko, B and Ndlovu, K “Indigenous languages and linguistic rights in the Zimbabwean media” (2013) 2/5 Online International Journal of Arts and Humanities 150Google Scholar; Chinomona, R “Analysing the rights of women in the new Constitution of Zimbabwe with reference to international law” (LLM dissertation, University of Pretoria, 2013)Google Scholar; Gotosa, K, Rwodzi, M and Mhlanga, G “Language in education: A critical review of current proposals for official mother tongue use in Zimbabwean classrooms” (2013) 3/14 International Journal of Humanities and Social Science 88Google Scholar; Masuka, T “The new Constitution of Zimbabwe and its implications for social workers” (2014) 2/1 Journal of Social Welfare and Human Rights 29Google Scholar; and Manzungu, E, Jonker, L, Madaka, E, Naka, Z, Sithole, E and Dzingirai, V “Emerging forms of social action in urban domestic water supply in South Africa and Zimbabwe” (2013) 6/3 Journal of Sustainable Development 70CrossRefGoogle Scholar; Amnesty International “‘Walk the talk’ Zimbabwe must respect and protect fundamental freedoms during the 2013 harmonised elections” (2013) Amnesty International Publications 5Google Scholar; and the Zimbabwe Human Rights Forum Zimbabwe Human Rights, Rule of Law & Democracy Report (2013).

19 Mavedzenge and Coltart A Constitutional Law Guide, above at note 11; ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; P Maguchu “No justice for victims of socioeconomic rights violations in Zimbabwe!” (January 2014) 1 Oxford Transitional Justice Research Working Paper Series Op-Ed 1; Gwenhamo, F, Fedderke, JW and Kadt, R de “Measuring institutions: Indicators of political rights, property rights and political instability in Zimbabwe” (2012) 49/4 Journal of Peace Research 593CrossRefGoogle Scholar; and International Crisis Group Zimbabwe: Election Scenarios Africa Report No 202 (6 May 2013).

20 Kersting, N (ed) Constitution in Transition: Academic Inputs for a New Constitution in Zimbabwe (2009, Friedrich Ebert Stiftung)Google Scholar; Mhodi, PT “An analysis of the doctrine of constitutionalism in the Zimbabwean Constitution of 2013” (2013) Southern African Public Law 383Google Scholar; Dzinesa, GA “Zimbabwe's constitutional reform process: Challenges and prospects” (2012) Institute for Justice and Reconciliation 1Google Scholar; Madebwe, T “Constitutionalism and the new Zimbabwean Constitution” (2014) Midlands State University Law Review 6Google Scholar; International Crisis Group Zimbabwe: Waiting for the Future Africa (briefing no 103, 29 September 2014); Dziva, C, Dube, B and Manatsa, P “A critique of the 2008 Government of National Unity and human rights protection in Zimbabwe” (2013) International Journal of Humanities and Social Science Invention 83Google Scholar; Amnesty International “Zimbabwe: Human rights agenda for the government 2013–2018” (2013) Amnesty International Publications 5Google Scholar; and Bourbon, A de “Human rights litigation in Zimbabwe: Past, present and future” (2003) African Human Rights Law Journal 195Google Scholar.

21 Dumbutshena, E “The rule of law in a constitutional democracy with particular reference to the Zimbabwe experience” (1989) South African Journal of Human Rights 311CrossRefGoogle Scholar; and Madhuku, L “Constitutional protection of the independence of the judiciary: A survey of the position in Southern Africa” (2002) Journal of African Law 232CrossRefGoogle Scholar.

22 South Africa has sufficient valuable socio-economic rights jurisprudence to promote and protect such rights in Zimbabwe. See TW Maseko “Prison inmates’ socio-economic rights in South Africa: Compatibility of domestic law with international norms and standards” (LLD thesis, University of South Africa, 2014); Liebenberg, S “The value of human dignity in interpreting socio-economic rights” (2005) 21 South African Journal of Human Rights 1CrossRefGoogle Scholar; Pillay, K “Implementation of Grootboom: Implications for the enforcement of socio-economic rights” (2002) 6/2 Law, Democracy & Development 255Google Scholar; Creamer, K “The implication of socio-economic rights jurisprudence for government planning and budgeting: The case of children's socio-economic rights” (2004) 8/2 Law, Democracy & Development 221Google Scholar; R Kapindu “Towards a more effective guarantee of socio-economic rights for refugees in Southern Africa” (PhD thesis, University of the Witwatersrand, 2014); Soobramoney v Minister of Health (Kwa Zulu Natal) 1998 (1) SA 765 (CC); Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC); Minister of Health and Others v Treatment Action Campaign and Others  2002 (5) SA 703 (TAC case); Minister of Home Affairs and Others v Watchenuka and Another [2004] 1 All SA 21 (SCA); Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development 2004 (6) SA 505 (CC); Larbi-Odam v MEC for Education (North West Province) 1998 (1) SA 745 (CC) 281; and Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC), 2004 (7) BCLR 775 (CC).

23 Lancaster House Constitution, sec 14.

24 Id, sec 16.

25 Mavedzenge and Coltart A Constitutional Law Guide, above at note 11; ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12.

26 Lancaster House Constitution, chap III.

27 Mavedzenge and Coltart A Constitutional Law Guide, above at note 11; ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12.

28 Tsanga, AS “A critical analysis of women's constitutional and legal rights in Zimbabwe in relation to the Convention on the Elimination of All Forms of Discrimination Against Women” (2002) 54/2 Maine Law Review 218Google Scholar; Mavedzenge and Coltart, ibid; ZLHR, NCA and HIHRC, ibid.

29 South Africa Constitution, Bill of Rights, secs 13, 15 and 22–31.

30 The Lancaster House Constitution provided no constitutional-related national objectives.

31 Kersting (ed) Constitution in Transition, above at note 20; Dzinesa “Zimbabwe's constitutional reform”, above at note 20; International Crisis Group Zimbabwe, above at note 20; Amnesty International “Zimbabwe”, above at note 20; de Bourbon “Human rights litigation”, above at note 20; Manzungu et al “Emerging forms of social action”, above at note 18; Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

32 South Africa Constitution, sec 38 read with sec 172; Soobramoney, above at note 22, where the court rejected the appellant's application to request the government to provide him with health care services for dialysis under sec 27 of the South Africa Constitution, on the basis of, inter alia, inadequate government resources; Mazibuko, above at note 22, where the court rejected the appellants’ application to rely on sec 27(1)(b) to compel the respondents to supply them with free water and not install pre-paid water meters in their residences; the TAC case, above at note 22, where the appellant's application on the basis of secs 27 and 28 of the South Africa Constitution to require the government to provide pregnant women and their new born children with nevirapine and access to health services to combat mother-to-child transmission of HIV/AIDS was successful; Government of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC), where the appellants were, inter alia, ordered to provide the evicted and homeless respondent children and their parents with shelter, in accordance with sec 26, read with sec 38 of the South Africa Constitution.

33 Lancaster House Constitution, sec 24(1), read with subsecs (2)–(9), which empowered affected persons to enforce their civil and political rights and other related rights (not necessarily socio-economic rights) in the relevant courts for redress, whenever they allege that such rights in the LH Declaration of Rights have been, are being or are likely to be contravened. These rights could be enforced: for one's own account; for the account of a person who is detained, if any other person alleges such a contravention in relation to the detained person; and without prejudice to any other action with respect to the same matter that was lawfully available to the affected persons.

34 Manzungu et al “Emerging forms of social action”, above at note 18; Amnesty International “‘Walk the talk’”, above at note 18; and Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

35 HH 5948/05.

36 Manzungu et al “Emerging forms of social action”, above at note 18.

37 HH 11152/03.

38 Manzungu et al “Emerging forms of social action”, above at note 18.

39 HC 1312/2005.

40 Manzungu et al “Emerging forms of social action”, above at note 18.

41 Ibid.

42 HH-73-04 HC 2899/04.

43 Manzungu et al “Emerging forms of social action”, above at note 18.

44 Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

45 Human rights defenders include NGOs, human rights activists and members of opposition parties.

46 Amnesty International “Zimbabwe”, above at note 20; Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

47 Bill of Rights, South Africa Constitution, sec 23, read with sec 22, which entrench labour relations rights, and the freedom of trade, occupation and profession respectively.

48 Lancaster House Constitution, sec 14.

49 Kersting (ed) Constitution in Transition, above at note 20; Dzinesa “Zimbabwe's constitutional reform”, above at note 20; International Crisis Group Zimbabwe, above at note 20; Amnesty International “Zimbabwe”, above at note 20; and Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

50 Amnesty International, ibid; the Zimbabwe Human Rights Forum, ibid.

51 The Zimbabwe Human Rights Forum, ibid.

52 P Chipunza “PSMAS fires Cuthbert Dube” (28 January 2014) The Herald, available at: <http://www.herald.co.zw/psmas-fires-cuthbert-dube/> (last accessed 15 February 2017).

53 Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

54 Ibid.

55 Liebenberg, S and Goldblatt, B “The interrelationship between equality and socio-economic rights under South Africa's transformative constitution” (2007) 23 South African Journal of Human Rights 335CrossRefGoogle Scholar.

56 Such marriages include gay and lesbian marriages.

57 ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

58 Ibid.

59 Ibid.

60 ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

61 T Chitagu “Resettle Chingwizi victims, war vets demand” (11 February 2015) Southern Eye, available at: <http://www.southerneye.co.zw/2015/02/11/resettle-chingwizi-victims-war-vets-demand/> (last accessed 15 February 2017).

62 V Langa “Compensate Chingwizi victims” (22 October 2014) Newsday, available at: <https:// www.newsday.co.zw/2014/10/22/compensate-chingwizi-victims/> (last accessed 15 February 2017).

63 This was a government-related project, apparently aimed at ensuring compliance with the required housing and / or health standards in certain towns and cities.

64 “Zimbabwe as bad as it can get” (1 June 2006) Reuters (copy on file with the author);  ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18; Amnesty International “Zimbabwe”, above at note 20; and Amnesty International “‘Walk the talk’”, above at note 18.

65 “Zimbabwe: Mugabe's housing programme grinds to a halt” (3 December 2005) ZimOnline (copy on file with the author).

66 Amnesty International “Zimbabwe: No justice for the victims of forced evictions” (8 September 2006), available at: <https:// www.amnesty.ie/zimbabwe-no-justice-victims-forced-evictions/> (last accessed 15 February 2017).

67 This right is widely recognized; for instance, see UN GA res 42/146 “Realization of the right to adequate housing”, adopted 7 December 1987; Office of the UN High Commissioner for Human Rights “The human right to adequate housing” (fact sheet no 21), available at: <http://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf> (last accessed 15 February 2017); Committee on Economic, Social and Cultural Rights “The right to adequate housing” (1991) (General Comment No 4, 6th session) at 7, available at: <http://www.refworld.org/docid/47a7079a1.html> (last accessed 15 February 2017).

68 ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18; Amnesty International “‘Walk the talk’”, above at note 18.

69 Ibid.

70 Ibid.

71 Ibid.

72 Ibid.

73 South Africa Constitution, sec 27 read with sec 38; Creamer “The implication of socio-economic rights”, above at note 22; Liebenberg, S “The right to social assistance: The implications of ‘Grootboom’ for policy reform in South Africa” (2001) South African Journal on Human Rights 232 at 256CrossRefGoogle Scholar; and Liebenberg and Goldblatt “The interrelationship”, above at note 55.

74 Zimbabwe Constitution, chap 4.

75 Id, chap 2.

76 ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18; and Mavedzenge and Coltart A Constitutional Law Guide, above at note 11 at 23–24. For the purposes of this article, cultural rights include marriage rights, rights to language and culture, women's rights, children's rights, rights of the elderly, rights of persons with disabilities and youth rights.

77 Zimbabwe Constitution, sec 74.

78 Id, sec 75.

79 Id, sec 76.

80 Id, sec 77.

81 Id, sec 78.

82 Id, sec 64.

83 Id, sec 63.

84 Id, sec 55.

85 Id, sec 65.

86 Id, sec 73.

87 Id, sec 80.

88 Id, sec 81.

89 Id, sec 82.

90 Id, sec 83.

91 Id, sec 71.

92 Id, sec 14.

93 Id, sec 15.

94 Id, sec 16.

95 Id, sec 17.

96 Id, sec 19.

97 Id, sec 20.

98 Id, sec 21.

99 Id, sec 22.

100 Id, sec 24.

101 Id, sec 25.

102 Id, sec 26.

103 Id, sec 27.

104 Id, sec 28.

105 Id, sec 29.

106 Id, sec 30.

107 Id, sec 44 read with sec 45. In South Africa, a similar duty to respect, protect, promote and fulfil all the rights (including socio-economic rights) in the Bill of Rights is expressly imposed upon the state alone: South Africa Constitution, sec 7.

108 Zimbabwe Constitution, sec 45; Mavedzenge and Coltart A Constitutional Law Guide, above at note 11.

109 South Africa Constitution, sec 8 read with secs 7 and 38.

110 Zimbabwe Constitution, sec 45 read with secs 44 and 85; Mavedzenge and Coltart A Constitutional Law Guide, above at note 11.

111 For further explanation of the definition of locus standi, see Currie, I and Waal, J De The Bill of Rights Handbook (2013, Juta & Co Ltd) at 73Google Scholar.

112 Zimbabwe Constitution, sec 85(1).

113 Ibid.

114 South Africa Constitution, sec 38.

115 Zimbabwe Constitution, sec 85(2), read with sec 85(1), (3) and (4).

116 See the Bill of Rights, which shows that the right to freedom from arbitrary eviction is not expressly and constitutionally protected in South Africa.

117 Zimbabwe Constitution, sec 74.

118 Ibid.

119 Ibid.

120 Id, sec 28.

121 Notably, only children can enforce a right to shelter as well as a right to freedom from arbitrary eviction: id, secs 81(1)(f) and 74.

122 Id, sec 74; Mavedzenge and Coltart A Constitutional Law Guide, above at note 11.

123 South Africa Constitution, sec 29.

124 Zimbabwe Constitution, secs 27 and 75 respectively. See Committee on Economic, Social and Cultural Rights “The right to education” (General Comment 13, 21st session, 1999) UN doc E/C.12/1999/10 (1999), para 2; and ICESCR, art 13.

125 South Africa Constitution, sec 29; Khosa, above at note 22, from para 505.

126 This could suggest that any persons who do not fall into these categories might not realise and / or enforce their right to education in Zimbabwe. Zimbabwe Constitution, sec 75(1), read with secs 81(1)(f) (relating to children's rights), 83(e) (relating to the rights of persons with disabilities) and 27 (dealing with the national objectives on education); Mavedzenge and Coltart A Constitutional Law Guide, above at note 11.

127 Id, sec 75(1) read with sec 27.

128 Id, sec 75(2) read with secs 75(3) and 27.

129 Id, sec 75(4) read with sec 27.

130 South Africa Constitution, sec 27.

131 Zimbabwe Constitution, sec 76(1) read with sec 29.

132 Id, sec 76(2) read with sec 29. However, it is possible that the right to health care services for chronic patients can be limited in certain instances. For example, see Soobramoney, above at note 22, where the appellant's application for dialysis services under sec 27 of the South Africa Constitution was rejected on the basis of, inter alia, inadequate government resources.

133 Id, sec 76(3) read with sec 29.

134 Id, sec 76(4), read with secs 81(1)(f) (relating to children's rights), 83(d) (relating to the rights of persons with disabilities), 82(b) (relating to elderly persons’ rights), 84(1) (relating to the rights of veterans of the liberation struggle) and 29 (dealing with the national objectives on health care).

135 South Africa Constitution, sec 27.

136 Zimbabwe Constitution, sec 15.

137 Id, sec 77.

138 HH 4266/13.

139 Mavedzenge and Coltart A Constitutional Law Guide, above at note 11 at 47.

140 Zimbabwe Constitution, sec 15 read with sec 77.

141 UN Committee on Economic, Social and Cultural Rights “The right to adequate food” (General Comment No 12, 12 May 1999) and ICESCR, art 11. Mavedzenge and Coltart A Constitutional Law Guide, above at note 11 at 50–54; Chiviru, T “Socio-economic rights in Zimbabwe's new constitution” (2014) 36/1 Strategic Review for Southern Africa 111Google Scholar.

142 Zimbabwe Constitution, sec 77 read with sec 15.

143 Id, secs 78 and 26 respectively.

144 Zimbabwe Constitution, sec 78(1), read with sec 26(a) and (b).

145 Id, sec 78(2), read with sec 26(a) and (b).

146 ICESCR, art 10; Mavedzenge and Coltart A Constitutional Law Guide, above at note 11 at 54–55.

147 Zimbabwe Constitution, sec 78, read with sec 26; Mavedzenge and Coltart, ibid.

148 Id, sec 78(3), read with sec 26.

149 Act 81 of 1964 as amended, chap 5:11.

150 Ordinance 5 of 1917 as amended, chap 5:07.

151 Zimbabwe Constitution, sec 26, read with sec 78.

152 Id, sec 25, read with sec 78.

153 South Africa Constitution, sec 22, extending only to South African citizens the right to freedom of trade, occupation and profession.

154 Zimbabwe Constitution, sec 64.

155 Ibid.

156 Ibid.

157 Id, sec 55.

158 South Africa Constitution, sec 13.

159 Zimbabwe Constitution, secs 63 and 16.

160 This suggests that every person has the right to use any of the official languages enumerated in Zimbabwe Constitution, sec 6.

161 Id, sec 63.

162 South Africa Constitution, secs 30 and 31.

163 Zimbabwe Constitution, sec 16, read with sec 63.

164 Id, sec 63, read with secs 80(3) and 16; Mavedzenge and Coltart A Constitutional Law Guide, above at note 11 at 30–31; Gotosa et al  “Language in education”, above at note 18; Maseko and Ndlovu “Indigenous languages”, above at note 18.

165 Id, secs 65 and 24.

166 South Africa Constitution, sec 23.

167 Zimbabwe Constitution, sec 65(1) and (4), read with sec 24.

168 South Africa Constitution, sec 23(2).

169 Zimbabwe Constitution, sec 65(2) and (3), read with sec 24.

170 Id, sec 65(5), read with sec 24.

171 South Africa Constitution, sec 23.

172 Zimbabwe Constitution, sec 65(6) and (7), read with sec 24.

173 Id, secs 14 and 24, read with sec 65; Mavedzenge and Coltart A Constitutional Law Guide, above at note 11 at 33.

174 Id, sec 73. Notably, related environmental rights are also protected in South Africa; see South Africa Constitution, sec 24.

175 Id, sec 73(1).

176 Id, sec 73(2).

177 Id, secs 80 and 81.

178 Id, secs 17 and 80.

179 Ibid.

180 Id, sec 81.

181 Id, sec 19, read with sec 81.

182 Although the constitution provides no clear classification or categories of the needy or those who can qualify for government social security and welfare, such persons should include orphans, persons with disabilities, children, women and elderly persons: Zimbabwe Constitution, sec 30; Mavedzenge and Coltart A Constitutional Law Guide, above at note 11 at 55–57. On the other hand, sec 27 of the South Africa Constitution expressly extends the right to social security to every person.

183 Zimbabwe Constitution, sec 82, read with sec 21.

184 Id, sec 83, read with sec 22; see the definition of a “disabled person” in the Disabled Persons Act, chap 17:01 of 1992.

185 Zimbabwe Constitution, sec 82, read with sec 21.

186 Id, secs 82 and 83, read with secs 21 and 22.

187 Id, sec 20.

188 South Africa Constitution, sec 25.

189 Zimbabwe Constitution, sec 71.

190 Id, sec 71(2), read with sec 72.

191 Id, sec 71(3), read with secs 71(4) and 72.

192 Id, secs 86 and 87.

193 Necessary factors could include limitations in the interests of defence, public safety and order, public health, public morality, regional or town planning or the general public interest: id, sec 86(2)(b).

194 Id, sec 86(2)(a)–(f).

195 Id, chaps 2 and 4.

196 Appropriate relief includes constitutional remedies such as a declaration of rights and an award of compensation: id, sec 85(1). See the South African position in Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), para 19, where it was held, inter alia, that “depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced … the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights”. Mavedzenge and Coltart A Constitutional Law Guide, above at note 11.

197 Zimbabwe Constitution, sec 85(1).

198 Id, sec 85(1), read with sec 167(3). Mavedzenge and Coltart A Constitutional Law Guide, above at note 11.

199 Id, sec 85(1); Mavedzenge and Coltart, ibid.

200 This usually occurs when the affected person has incurred some financial losses as a result of such violations. See ibid.

201 An interim interdict is usually employed to enforce a prima facie, proven and / or specific socio-economic right for a certain period of time. Mavedzenge and Coltart A Constitutional Law Guide, above at note 11.

202 A final interdict is usually granted where the affected person has succeeded in proving that his or her socio-economic right has been violated or is reasonably likely to be violated and that there are no other appropriate legal remedies available to him or her to avoid suffering prejudice in the future. See Mavedzenge and Coltart, ibid.

203 A structured interdict is usually granted where an affected person has successfully proved to the courts that the offender has refused or is refusing to perform an enforceable undertaking on a particular date or time as initially agreed. See Mavedzenge and Coltart, ibid.

204 Mavedzenge and Coltart, ibid.

205 Ibid.

206 See the Bill of Rights, which shows that the right to freedom from arbitrary eviction is not expressly and constitutionally protected in South Africa.

207 Zimbabwe Constitution, sec 74.

208 Id, sec 28.

209 Amnesty International “Zimbabwe”, above at note 20; and Amnesty International “‘Walk the talk’”, above at note 18.

210 ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

211 For related comments, see ibid and Maguchu “No justice for victims”, above at note 19; Amnesty International “Zimbabwe”, above at note 20; and Amnesty International “‘Walk the talk’”, above at note 18.

212 Zimbabwe Constitution, secs 27 and 75 respectively. ICESCR, art 13.

213 Id, sec 75(1).

214 South Africa Constitution, sec 29.

215 Zimbabwe Constitution, sec 75(1), read with sec 27.

216 Id, sec 75(4), read with sec 27.

217 Masuka “The new Constitution”, above at note 18.

218 Maseko “Prison inmates’ socio-economic rights”, above at note 22 at 186–232; Kapindu “Towards a more effective guarantee”, above at note 22 at 23–315.

219 South Africa Constitution, sec 27.

220 Zimbabwe Constitution, sec 76(1), read with sec 29.

221 Id, sec 76(4) read with secs 81(1)(f), 83(d), 82(b), 84(1) and 29.

222 Masuka “The new Constitution”, above at note 18; Maguchu “No justice for victims”, above at note 19.

223 Ibid.

224 Ibid.

225 Maseko “Prison inmates’ socio-economic rights”, above at note 22 at 186–232; Kapindu “Towards a more effective guarantee”, above at note 22 at 23–315.

226 South Africa Constitution, sec 27.

227 Zimbabwe Constitution, secs 15 and 77 respectively.

228 Mavedzenge and Coltart A Constitutional Law Guide, above at note 11 at 47.

229 ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18; Dzinesa “Zimbabwe's constitutional reform”, above at note 20; Manzungu et al “Emerging forms of social action”, above at note 18.

230 ZLHR, NCA and HIHRC, ibid; Zimbabwe Human Rights Forum, ibid.

231 Maseko “Prison inmates’ socio-economic rights”, above at note 22; Kapindu “Towards a more effective guarantee”, above at note 22.

232 See the Bill of Rights.

233 Zimbabwe Constitution, secs 78 and 26 respectively.

234 Id, sec 78(1) and (2), read with sec 26(a) and (b).

235 Kersting (ed) Constitution in Transition, above at note 20 at at 291–99; ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; and Zimbabwe Human Rights Forum Zimbabwe Human Rights, above at note 18.

236 Zimbabwe Constitution, sec 78(3), read with sec 26.

237 Id, sec 64.

238 South Africa Constitution, sec 22.

239 Zimbabwe Constitution, sec 55.

240 For related remarks, see: Human Rights report on Zimbabwe “Prison and detention center conditions” (2013) (copy on file with the author); and Maseko “Prison inmates’ socio-economic rights”, above at note 22.

241 Zimbabwe Constitution, secs 63 and 16 respectively.

242 Maseko and Ndlovu “Indigenous languages”, above at note 18; Gotosa et al “Language in education”, above at note 18.

243 Zimbabwe Constitution, secs 65 and 24 respectively.

244 “Police clear ZCTU demonstration” (9 April 2015) Newsday, available at: <https:// www.newsday.co.zw/2015/04/09/police-clear-zctu-demonstration/> (last accessed 15 February 2017); “Police clear ZCTU weekend demonstration” (9 April 2015) Newzimbabwe, available at: <http://www.newzimbabwe.com/news-21754-Police+clear+ZCTU+weekend+demo/news.aspx> (last accessed 15 February 2017).

245 South Africa Constitution, sec 23(2).

246 Zimbabwe Constitution, sec 65(2) and (3), read with secs 65(5) and 24.

247 “Zimbabwe police bar protests over job losses” (9 August 2015) Fin24, available at: <http://www.fin24.com/Economy/Zimbabwe-police-bar-protests-over-job-losses-20150809> (last accessed 15 February 2017); “30000 lost jobs last year in Zim” (16 April 2015) NewsdzeZimbabwe (copy on file with the author), which states that, according to the Zimbabwe National Statistics Agency, over 30,000 people lost their jobs in Zimbabwe in 2014 alone, especially in the mining and manufacturing industries.

248 M Mzumara “Indigenisation Act continues to create confusion” (5 June 2014) Zimbabwe Situation, available at: <http://www.zimbabwesituation.com/news/zimsit_indigenisation-act-continues-to-create-confusion/> (last accessed 15 February 2017); T Mangudhla “Clarity, consistency elude indigenisation policy” (16 January 2015) Zimbabwe Independent, available at: <http://www.theindependent.co.zw/2015/01/16/clarityconsistency-elude-indigenisation-policy/> (last accessed 15 February 2017).

249 Zimbabwe Constitution, sec 73.

250 Maguchu “No justice for victims”, above at note 19; K Nyangani “Report exposes abuses at Chiadzwa” (21 January 2014) Newsday, available at: <https:// www.newsday.co.zw/2014/01/21/report-exposes-abuses-chiadzwa/> (last accessed 15 February 2017); O Manayiti “Chiadzwa: The agony of displacement” (9 November 2014) The Standard, available at: <http://www.thestandard.co.zw/2014/11/09/chiadzwa-agony-displacement/> (last accessed 15 February 2017); M Hove, T Nyamunda and P Mukwambo “Violent state operations at Chiadzwa (Zimbabwe) diamond fields 2006–2009” (2014) 6/1 Journal of Aggression, Conflict and Peace Research 56.

251 Zimbabwe Constitution, secs 81 and 17 respectively.

252 UN Population Fund Zimbabwe “Promoting gender equality and protection of women's rights” (30 March 2011) (copy on file with the author); Chinomona “Analysing the rights of women”, above at note 18; Gotosa et al “Language in education”, above at note 18.

253 Zimbabwe Constitution, sec 82, read with sec 21.

254 Id, sec 83, read with sec 22.

255 See id, sec 30; Mavedzenge and Coltart A Constitutional Law Guide, above at note 11 at 55–57.

256 Id, secs 82 and 83, read with secs 21 and 22.

257 Maguchu “No justice for victims”, above at note 19; ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; Amnesty International “‘Walk the talk’”, above at note 18.

258 Zimbabwe Constitution, sec 71.

259 Id, sec 71(3), read with secs 71(2) and (4) and 72.

260 E Mushava “Villagers in Mazowe evicted to pave way for Grace Mugabe wildlife park” (8 January 2015) Nehanda Radio, available at: <http://nehandaradio.com/2015/01/08/villagers-mazowe-evicted-pave-way-grace-mugabe-wildlife-park/> (last accessed 15 February 2017); N Sandu “300 evicted near Mugabe's Mazowe farm” (16 March 2014) The Standard, available at: <http://www.thestandard.co.zw/2014/03/16/300-evicted-near-mugabes-mazowe-farm/> (last accessed 15 February 2017); and Maguchu “No justice for victims”, above at note 19.

261 Maguchu, ibid; ZLHR, NCA and HIHRC “Economic, social and cultural rights”, above at note 12; Amnesty International “Zimbabwe”, above at note 20.

262 Zimbabwe Constitution, secs 258–63.

263 Id, secs 245–47.

264 Id, secs 251 to 253.

265 Id, sec 242, read with secs 243 and 244.

266 Chiviru “Socio-economic rights”, above at note 141.

267 Amnesty International “Zimbabwe”, above at note 20; and Amnesty International “‘Walk the talk’”, above at note 18.

268 Zimbabwe Constitution, sec 44, read with secs 45 and 85.

269 Mavedzenge and Coltart A Constitutional Law Guide, above at note 11; Kersting (ed) Constitution in Transition, above at note 20; and Amnesty International “‘Walk the talk’”, above at note 18.

270 Liebenberg “The value of human dignity”, above at note 22 at 1.

271 Mavedzenge and Coltart A Constitutional Law Guide, above at note 11; Amnesty International “‘Walk the talk’”, above at note 18.

272 Ibid.

273 HB 7, 2015. The Labour Bill 2015 will amend the Labour Act Chap 28:01 (Labour Act).

274 The retrospective application of sec 12 of the Labour Bill 2015 violates sec 3(2)(e) of the Zimbabwe Constitution in relation to the separation of powers, since it overturns Nyamande and Donga v Zuva Petroleum (Private Limited) 17 July 2015 judgment, where the court ruled in favour of retrenched employees. “How Labour Amendment Bill violates Constitution” (20 August 2015) Newsday, available at: <https:// www.newsday.co.zw/2015/08/20/how-labour-amendment-bill-violates-constitution/> (last accessed 15 February 2017).

275 The employees’ retrenchment package of two weeks’ salary for every year worked is too little, since they only receive three months’ salary if they have worked for the company for six years. If the retrospective application of the Labour Bill 2015 precedent is set, the government might arbitrarily change laws to suite its own demands. “Zanu PF Labour Bill ‘more cruel’” (18 August 2015) Newsday, available at: <https:// www.newsday.co.zw/2015/08/18/zanu-pf-labour-bill-more-cruel/> (last accessed 15 February 2017).

276 The employer in Nyamande and Donga, above at note 274, complied with the Labour Act. Consequently, the retrospective application of sec 12 of the Labour Bill is inconsistent with sec 56 of the Zimbabwe Constitution, which provides for equality and non-discrimination before the law. Walls v Walls 1996 (2) ZLR 117.

277 Chiviru “Socio-economic rights”, above at note 141; PM Lenaghan “Trade liberalisation as facilitated through trade agreements within the southern African region: An instrument in the realisation of socio-economic rights” (2004) 8/1 Law, Democracy & Development 25.