Aligning Laws To The New Constitution: Where Are The Citizens?

Harare, June 2, 2014-Much has been said about the government’s failure to implement basic rights contained in the Constitution as well as align laws to the new Charter, a year after the document became the country’s supreme law.

But the question some are beginning to ask is: “Where are the citizens of Zimbabwe?”

The Constitution gives all Zimbabweans the right to approach the Constitutional Court and challenge laws which violate their rights and are inconsistent with the supreme law of the land.

Yet, very few people have taken to the country’s courts despite the continued violation of their basic rights by government agencies and local government authorities.

While the battle for daily survival in a collapsing economy could have resulted in many Zimbabweans putting constitutional issues on the back burner, panellists at the commemoration of the first anniversary of the Constitution held in Harare recently raised concern over the lack of public ownership of the document.

The discussion was held under the Zimbabwe Lawyers for Human Rights (ZLHR) Frankly Speaking Series.

One of panellists, Fungayi Jessie Majome, the Chairperson of the Parliamentary Committee on Justice and Legal Affairs, said government had avoided meeting its constitutional obligations largely because of a passive populace.

“Who are the owners of this Constitution? Is it government? Is it us?” she asked. “Zimbabweans are acting as if they do not own the Constitution. There is definitely no political will but I want to bring it to the citizenry of this country that they too have a responsibility as owners of the Constitution,” she said, adding: “And the question I often ask is ‘does Zimbabwe have citizens? Are there any citizens of Zimbabwe? I ask because I generally don’t see Zimbabweans who are acting as if they have a Constitution.

They are not demanding the promises that are in it. They are just going about their lives in the same usual manner.” Hon. Majome queried why people were queuing from as early as 4am to get a passport when the Constitution guaranteed them access to the travel document.

“Do they know that they have a right and if they know, what are they doing about it? As citizens we don’t seem to be exhibiting the will to push and demand,” said Hon. Majome.

Former High Court Judge, Justice Moses Chinhengo, said the provision of basic social and economic services would empower people to demand their rights with more vigour.

“We must realise that if people do not enjoy social and economic rights they are less able to enjoy their civil and political rights. This is why gradually it has been realised that socio-­economic rights are very important,” he said.

He warned that eventually – with more awareness -­ Zimbabweans will demand their rights, particularly because of the snail pace of the legislative agenda.

“Our courts will be inundated with applications. People will go to court to challenge the existing laws and the courts will be busy. We know that our courts are very busy, they have a backlog and if you make it necessary for people to approach the courts on matters which Parliament can resolve, I am sorry, we will be wasting resources,” said Justice Chinhengo, who was one of the drafters of the Constitution.

While Zimbabweans are yet to test their Constitution more vigorously, in countries such as South Africa, governments have been forced to provide for rights guaranteed in the Constitution through litigation by members of the public.

Former South Africa Constitutional Court Judge Justice Zak Yacoob, who was one of the ZLHR’s “Frankly Speaking Series” panellists, gave the example of a case involving the right to health which was brought before that country’s courts.

The case resulted in the South African government being ordered to provide money and treatment for mother-­to-­child-­transmission of HIV programmes.

“The court ordered the government to provide these services and the government has in fact obeyed the court order and has indeed been providing these important services,” he said. “A law that is inconsistent with the Constitution is invalid and people in South Africa brought cases and the courts set the laws aside.”

“What we need in Zimbabwe is for people whose rights are affected by these laws to go to court and have applications to have the offending provisions set aside. Only then can government take the issue seriously. Citizens’ participation is important particularly when government is slow in implementing the Constitution. Whatever political party they come from, no government can be left to its own devices to implement the Constitution or to implement laws properly,” he said.

Justice Yacoob said the Constitution can serve as a way of mobilising and organising people.

“If you uphold the values of the Constitution you can never be accused of being anti-­government because the government too should be supporting the Constitution. And in a sense support for the Constitution could be a very important rallying point where organisations like ZLHR, who stand for the human rights in the Constitution, can intervene and they cannot be regarded as anti-­ government in any way. It is an important rallying point that should be understood,” he said. Source: The Legal Monitor