Are the High Hopes for the Progressiveness of Zimbabwe’s 2013 Constitution Fading?

Realising the need for government and investors to promote, protect, and fulfil human rights of communities especially Environmental, Economic, Social and Cultural Rights (EESCR), the Zimbabwe Environmental Law Association (ZELA) has introduced a webinar series to deliberate on how Zimbabwe can poise economic expectation against the respect for human rights including how the courts and the legal professionals can play a pivotal role in the protection of EESCR in Zimbabwe.

Speaking during the first segment of the virtual meeting on the 27th of April,2021, ZELA Executive Director in his introductory remarks noted that, progressive realisation of rights also entails the capacity of the judiciary to enforce EESCR including affording remedies when these have been violated. The balance between the promotion of human rights and development projects is hinged on the broader principles of good governance and comprehensive legal framework.

ZELA’s Board Chair and Professor of Law, Tumai Murombo did not mince his words highlighting that theoretically, Zimbabwe has necessary instruments with Section 3 of the Constitution’s founding values and principles being clear on the supremacy of the Constitution; the rule of law; fundamental human rights and freedoms; good governance among others that provide a basis to uphold the tenets of the supreme law of the land hinged on values of promoting, protecting, and fulfilling human rights.

Adding that, “The fulfilment of EESCR depends on the rule of law, good governance, institutional integrity and resilience of institutions a State puts in place to ensure that these rights are protected, promoted and fulfilled. Indicators of good governance include transparency and at theoretical level indeed these values represent a good basis for Zimbabwe. The country has all the values that are expected in a democratic society but the question many have been grappling with for many decades is whether we uphold these indicators which are necessary? These values must be embedded in society and everyone should abide to these. The rule of law is a double-edged sword which can be used to repress or to suppress but it can also be a fundamental principle necessary for everyone to enjoy EESCR. The promotion, protection, and fulfilment of EECR requires a delicate balance at a theoretical level and in practice.”

Tumai Murombo

Speaking on the aspect of litigation, renowned lawyer Tendai Biti Litigation highlighted that litigation is a strong tool for changing the status quo and organisations and lawyers should not tire in using this avenue. He advised that Lawyers need a good knowledge base on procedural law and the law in general that affects the enjoyment of EESC rights. This is because sound appreciation of the politics of the bench will help in crafting strategies when going to court. He gave an example of the Indian jurisprudence in drafting cases that the lawyers can pluck a leaf from.

Mr Biti expressed concern on how the Constitutional court has adopted an attitude of avoidance, in some instances employing doctrines such as that of rightness, mootness. Sadly, some citizens are being thrown out of court over flimsy technicalities. Thus, there is need to know the procedural law, he emphasized.

Legal practitioner, Richard Ncube also highlighted that it is important to encourage litigants to participate and become relevant in the good governance trajectory that is envisioned by the Constitution although it is concerning to note how some of them end up receiving threats and intimidation from known and unknown people. It is therefore critical to manage expectation of communities and ensure that there is close attention paid to their safety and security in politically charged cases.

Commenting on the same one of the participants had this to say,

“When you have, citizens being intimidated to the extent of fearing to vindicate their rights in courts in a lawful manner, then civil and political rights are compromised. This is one of the major challenges in Zimbabwe. Citizens should be free to litigate and defend their rights without fear. Without a guarantee of equal protection of the law EESC rights become difficult to enforce”.

Source: ZELA

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