INTRODUCTION
Socio-economic and cultural rightsFootnote 1 are recognized and protected under various international instruments and treaties, including the Universal Declaration of Human Rights,Footnote 2 International Covenant on Economic, Social and Cultural Rights (ICESCR),Footnote 3 Convention on the Elimination of All Forms of Discrimination Against Women,Footnote 4 Convention on the Rights of the Child,Footnote 5 International Convention on the Elimination of Racial Discrimination,Footnote 6 African Charter on the Rights and Welfare of the Child,Footnote 7 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa,Footnote 8 and African Charter on Human and Peoples’ Rights.Footnote 9 Other related rights, such as civil and political rights, are enshrined separately in the International Covenant on Civil and Political Rights.Footnote 10 Nevertheless, in this article, socio-economic and cultural rights are defined as universal and indivisible fundamental human rights that may generally give rise to the legal protection and realization of other basic and necessary economic, social and cultural interests and / or entitlements for all persons.Footnote 11 In relation to this, socio-economic and cultural rights are fundamental human rights, which must not be discriminated from other related rights, such as civil and political rights.Footnote 12
Socio-economic and cultural rights have been recognized and constitutionally protected for several years in other countries, including the United States of America (USA),Footnote 13 MalawiFootnote 14 and South Africa.Footnote 15 However, in Zimbabwe, these rights were granted further recognition and constitutional protection in 2013. Given this background, this article discusses certain provisions of the Zimbabwe Constitution of 2013 (Zimbabwe Constitution)Footnote 16 that deal, inter alia, with the protection of socio-economic and cultural rights.Footnote 17 The purpose is to investigate the adequacy, flaws and prospects of these provisions in relation to the protection and affording of basic socio-economic and cultural rights to all citizens of Zimbabwe.Footnote 18 More specifically, the article examines the adequacy and prospects of these provisions with regard to their enforcement and the affording of social justice and other constitutional remedies and / or damages to the marginalized poor and other prejudiced persons in Zimbabwe.Footnote 19 In this regard, the article provides a comparative analysis of Zimbabwe's relevant constitutional provisions and the provisions under the Lancaster House Constitution of Zimbabwe 1979 (SI 1979/1600) as amended by Act 1 of 2009 which introduced amendment 19 of 2009 (Lancaster House Constitution).Footnote 20 This is undertaken to determine whether the Zimbabwe Constitution has adequately resolved the problems that were associated with the provisions of the Lancaster House ConstitutionFootnote 21 in relation to the protection of socio-economic and cultural rights and the provision of social justice and other private and / or constitutional remedies to affected persons in Zimbabwe. The article examines the constitutional protection of socio-economic rights in other selected countries, in particular South Africa.Footnote 22 This is undertaken to recommend possible measures that could be employed to promote and protect such rights in Zimbabwe.
SOCIO-ECONOMIC AND CULTURAL RIGHTS PROTECTION IN ZIMBABWE
The protection of socio-economic and cultural rights under the Lancaster House Constitution
Socio-economic rights were not consistently recognized as fundamental human rights under the Lancaster House Constitution. After 1980, the Lancaster House Constitution did not provide for, protect or treat socio-economic rights as fundamental rights. For instance, apart from providing for the right to protection from slavery and forced labourFootnote 23 and the right to protection from deprivation of property,Footnote 24 which are socio-economic related rights, the Declaration of Rights under the Lancaster House Constitution did not expressly provide for many socio-economic rights.Footnote 25 Thus, notwithstanding the fact that the Lancaster House Constitution was amended 19 times, none of the amendments targeted the incorporation of socio-economic rights into its Declaration of Rights (the LH Declaration of Rights).Footnote 26
The Lancaster House Constitution was inadequate in several respects.Footnote 27 The failure to provide for socio-economic rights in the LH Declaration of Rights is probably one of the main flaws that were embedded in the Lancaster House Constitution.Footnote 28 Therefore, unlike under the South Africa Constitution of 1996 (South Africa Constitution),Footnote 29 socio-economic rights were not protected as justiciable fundamental human rights in Zimbabwe before 2013. The Lancaster House Constitution only protected civil and political rights, while socio-economic and cultural rights were provided neither as constitutional-related national objectivesFootnote 30 nor as fundamental human rights in the LH Declaration of Rights. Consequently, the majority of persons whose socio-economic and cultural rights were violated by the state or other persons before 1980, as well as between 1980 and 2012, were not constitutionally empowered to approach the relevant courts for redress.Footnote 31 Thus, unlike in South Africa where affected persons could invoke section 38 of the constitutionFootnote 32 to enforce their socio-economic and cultural rights, affected persons could not rely on section 24 of the Lancaster House Constitution to enforce similar rights in the relevant courts in Zimbabwe.Footnote 33
Under the Lancaster House Constitution, several socio-economic rights were neglected by the government to the detriment of many Zimbabwean citizens. For instance, it did not protect the right to sufficient food and water. Access to water and sanitation has deteriorated across all of Zimbabwe's cities and provinces, particularly in Matebeleland and rural areas.Footnote 34 Cases such as Tracy Maponde v City of Harare Footnote 35 were brought to court. In this case, the appellant's application to the High Court to compel the City of Harare to re-connect water at her house was upheld. Conspicuously, the court's decision was not based on the appellant's right to water per se, but rather on the respondent's breach of contract.Footnote 36 Likewise, in Manyame Park Residents v Chitungwiza Municipality,Footnote 37 the High Court rejected the application by the appellants (Manyame Park residents) to stop the Chitungwiza Municipality from discharging raw sewage into Manyame River (which was a source of their domestic water), citing that the Chitungwiza Municipality had limited resources to remedy the sewage problems at the time of application.Footnote 38 It appears that the court's decision was based on the availability of resources to the respondent, rather than on the importance of the appellant's socio-economic right to water. In Dora Farm v City of Mutare,Footnote 39 the court upheld the appellants’ application to stop the respondent from discharging waste into the Sakubva River, which was their only source of domestic water, and ordered the respondent to resolve the problem urgently.Footnote 40 Nonetheless, the court's decision was not contingent upon the appellants’ right to sufficient clean and safe water, but rather on aspects of the respondent's contravention of the relevant environmental law.Footnote 41 Similarly, in Combined Harare Residents Association v City of Harare,Footnote 42 the court dismissed the appellant's application to restrain the respondent from implementing its proposed 2004 water tariffs, on the basis that the appellant had failed to bring its application timeously to the relevant court.Footnote 43 The court's decision in this case was unfortunately not based on the appellant's right to water.
The Lancaster House Constitution evidently did not provide a right to food. As a result, those who could not have basic food commodities due to unemployment, droughts and other causes were not constitutionally empowered to approach the courts for appropriate remedies and / or to compel the government to provide them with such commodities.Footnote 44 In some instances, members of the Zimbabwe Republic Police (ZRP) precluded non-governmental organizations (NGOs) and other human rights defendersFootnote 45 from providing food aid to affected persons, particularly in rural areas.Footnote 46
Unlike the position in South Africa,Footnote 47 the LH Declaration of Rights did not protect the right to work and / or labour relations, apart from providing for the right to protection from slavery and forced labour.Footnote 48 Accordingly, the working and living conditions of many employees in Zimbabwe deteriorated significantly after the early 1990s.Footnote 49 Thousands of Zimbabwean workers, in both the public and private sectors, were impoverished, with wages ranging between $150 and $300 per month and / or by enduring several months without their salaries being paid in full.Footnote 50 On the other hand, a selected few employees of certain government departments and agencies were being paid exorbitant and unfairly high salaries and allowances.Footnote 51 For instance, the Premier Services Medical Aid Society chief executive officer (Cuthbert Dube) was reportedly receiving a salary of about $230,000 per month, plus several allowances.Footnote 52 Likewise, the Zimbabwe Broadcasting Corporation (ZBC) chief executive officer (Happison Muchechetere) was reportedly earning about $27,000 per month, plus a monthly allowance of $3,000, another $2,500 for his domestic employees, and numerous travelling and shopping vouchers, while ordinary ZBC workers were not paid for over six months.Footnote 53 Thus, although the right to work is protected in various international instruments that Zimbabwe acceded to or ratified, this right was not consistently protected in Zimbabwe before 2013.Footnote 54 In light of this, the author concurs with Liebenberg and Goldblatt, who argue that the right to equality should be carefully considered when interpreting socio-economic rights, to ensure that such rights are fairly provided to all persons without any form of discrimination.Footnote 55
The LH Declaration of Rights also did not expressly protect cultural and marriage rights. Consequently, some minority cultures and certain marriagesFootnote 56 were not constitutionally recognized in Zimbabwe before 2013. This means that some individuals could not freely enjoy their cultures, religious beliefs, practices and languages in Zimbabwe during this period.Footnote 57
The LH Declaration of Rights did not expressly protect the right to health care. Persons who could not afford basic and / or terminal illness related health care services due to unemployment, poverty or other causes were not constitutionally empowered to approach the relevant courts for appropriate remedies.Footnote 58 This was worsened by the fact that major government hospitals in Zimbabwe were poorly funded.Footnote 59 Consequently, most hospitals could not procure the relevant drugs and equipment for the purposes of providing the best health care services to all persons in Zimbabwe before 2013.
The LH Declaration of Rights did not enshrine rights to housing or education. This caused gross violations of these socio-economic rights to be more prevalent in Zimbabwe between the early 1990s and early 2014.Footnote 60 For instance, about 50,000 villagers were displaced by the Tokwe-Mukosi flood in 2014. However, these villagers were given inadequate, poor and deplorable temporary housing and sanitation facilities in Chingwizi and Nuanetsi Range.Footnote 61 No proper schools were constructed to ensure that these villagers’ children could also realise their right to basic education. Nevertheless, the Tokwe-Mukosi flood victims were not constitutionally authorized to approach the relevant courts for redress.Footnote 62 Another related housing and education rights violation was caused by Operation Murambatsvina.Footnote 63 For instance, in 2005, the government of Zimbabwe forcibly evicted over 700,000 people by demolishing their houses.Footnote 64 United Nations (UN) officials estimate that the number of those affected by Operation Murambatsvina exceeds 2.4 million.Footnote 65 These evictions were chaotically executed against those affected, without adequate notice, relevant court permission, due process and appropriate redress measures in place.Footnote 66 Consequently, the victims’ right to housingFootnote 67 was grossly violated, despite the introduction of the government's purported housing related redress project called Operation Garikai / Hlalani Kuhle, which was targeted at providing adequate housing to those whose houses were destroyed through Operation Murambatsvina.Footnote 68 Notably, over 92,460 houses were reportedly destroyed during Operation Murambatsvina, but only about 3,325 houses had been constructed by the end of 2006.Footnote 69 Some of these new houses were poorly constructed in areas where the victims’ families could not have access to schools, healthcare, roads and supermarkets.Footnote 70 Consequently, socio-economic related problems, such as poor living conditions, child mortality and school drop outs, were reportedly rife in Operation Garikai / Hlalani Kuhle resettlement areas, especially in Hopley settlement.Footnote 71 Some of the victims’ new houses were repossessed by the government because they could not afford to renew the lease agreements.Footnote 72
The LH Declaration of Rights did not expressly protect rights of the elderly and the disabled, or the right to social security. Thus, unlike in South Africa,Footnote 73 the elderly, the disabled and other marginalized persons were not constitutionally entitled to enforce their right to social security in the courts against the Zimbabwean government before 2013.
The protection of socio-economic and cultural rights under the Zimbabwe Constitution
Unlike the position under the Lancaster House Constitution, socio-economic and cultural rights are now expressly protected in the Zimbabwe Constitution, under its Declaration of Rights (Constitutional Declaration of Rights)Footnote 74 and national objectives.Footnote 75 This is a commendable effort on the government's part to ensure that the socio-economic and cultural rights of all Zimbabwean people are respected, promoted, protected and fulfilled.Footnote 76 Accordingly, this article discusses the adequacy of the socio-economic and cultural rights that are enumerated in the Constitutional Declaration of Rights, such as the right to freedom from arbitrary eviction,Footnote 77 right to education,Footnote 78 right to health care,Footnote 79 right to food and water,Footnote 80 marriage rights,Footnote 81 freedom of profession, trade and occupation,Footnote 82 right to language and culture,Footnote 83 freedom from forced and / or compulsory labour,Footnote 84 labour rights,Footnote 85 environmental rights,Footnote 86 women's rights,Footnote 87 children's rights,Footnote 88 rights of the elderly,Footnote 89 rights of persons with disabilitiesFootnote 90 and property rights.Footnote 91 It also discusses related socio-economic rights that are protected in the national objectives of the Zimbabwe Constitution, namely empowerment and employment creation rights,Footnote 92 right to food security,Footnote 93 culture rights,Footnote 94 right to gender balance,Footnote 95 children's rights,Footnote 96 youth rights,Footnote 97 rights of the elderly,Footnote 98 rights of persons with disabilities,Footnote 99 work and labour relations rights,Footnote 100 rights to protection of the family,Footnote 101 marriage rights,Footnote 102 right to education,Footnote 103 right to shelter,Footnote 104 right to health servicesFootnote 105 and right to social welfare.Footnote 106
The duty to respect, protect, promote and fulfil all these socio-economic rights is imposed upon the state and all persons in Zimbabwe;Footnote 107 the Constitutional Declaration of Rights binds the state, as well as all state organs and agencies, and all persons, including juristic persons.Footnote 108 Accordingly, like the position in South Africa,Footnote 109 those whose socio-economic rights are violated can now approach the relevant courts in Zimbabwe to enforce their rights against the state (including its organs) and / or other persons (including juristic persons).Footnote 110 This means that all affected persons are now expressly given the locus standiFootnote 111 to approach the courts if they allege that their socio-economic rights enshrined in the Constitutional Declaration of Rights have been, are being or are likely to be contravened.Footnote 112 The persons who have such locus standi include persons acting: on their own behalf; on behalf of other persons who cannot act on their own; as members or on behalf of a group or class of persons; in the public interest; and as an association of persons acting in the interests of its members.Footnote 113 The South Africa Constitution also gives similar classes of persons locus standi.Footnote 114 However, unlike in South Africa, the fact that an affected person has previously contravened a particular law does not debar him or her from seeking appropriate relief under the Zimbabwe Constitution.Footnote 115 Given this background, this article offers a brief analysis of the protection of socio-economic rights under the Zimbabwe Constitution.
Unlike the position under the South Africa Constitution,Footnote 116 the Constitutional Declaration of Rights expressly protects the right to freedom from arbitrary eviction.Footnote 117 For instance, no person may be evicted from their home and / or have their home demolished without a relevant court order. The courts should only grant such an order after considering all the relevant circumstances.Footnote 118 However, the constitution does not specify the actual circumstances that the courts should consider before granting an eviction order.Footnote 119 Moreover, despite the fact that the national objectives clearly recognize the right to shelter,Footnote 120 the Constitutional Declaration of Rights includes no similar provision. The Constitutional Declaration of Rights only recognizes the right to shelter in respect of children under the age of 18.Footnote 121 However, although the Constitutional Declaration of Rights does not expressly provide a right to shelter, it is indirectly protected under the right to freedom from arbitrary eviction.Footnote 122
As in South Africa,Footnote 123 the right to education is now protected in both the national objectives and the Constitutional Declaration of Rights.Footnote 124 Nonetheless, unlike the position under the Zimbabwe Constitution, the South Africa Constitution extends the right to education to “everyone” who is in South Africa.Footnote 125 The Zimbabwe Constitution only expressly extends the right to education to all citizens and permanent residents of Zimbabwe.Footnote 126 Such persons have a right to basic state-funded education, including adult basic education and / or higher and tertiary education.Footnote 127 Every person has the right to establish and maintain, at their own expense, independent educational institutions of a reasonable standard, accessible to all persons without any form of discrimination.Footnote 128 However, the right to state-funded education is contingent upon the state taking reasonable legislative and other practical measures, within the limits of its available resources, to ensure its progressive realization by all citizens and permanent residents of Zimbabwe.Footnote 129
Moreover, unlike the situation in South Africa where the right to health care is provided to “everyone”,Footnote 130 the Zimbabwe Constitution only extends the right to health care to citizens and permanent residents of Zimbabwe.Footnote 131 Nevertheless, it appears that everyone (irrespective of their citizenship and / or permanent resident status) living with a chronic illness has the right to access basic healthcare services in Zimbabwe.Footnote 132 Furthermore, no person may be refused emergency medical treatment in any healthcare institution in Zimbabwe.Footnote 133 This right to health care is dependent upon the state taking reasonable legislative and other appropriate, fair and practical measures, within its available resources, to ensure its progressive realization by all relevant persons in Zimbabwe.Footnote 134
The right to food and water is provided to “everyone” in South Africa.Footnote 135 Likewise, in Zimbabwe, the right to food and water is now expressly recognized in the national objectivesFootnote 136 and provided to everyone as stipulated in the Constitutional Declaration of Rights.Footnote 137 Consequently, every person in Zimbabwe now has the right to safe, clean, potable water and sufficient food. Related water rights were discussed in Farai Mushoriwa v City of Harare (Farai Mushoriwa),Footnote 138 where the High Court discussed the violation of the appellant's right to safe, clean, potable water.Footnote 139 In addition, the state has a positive duty to encourage people to grow and store adequate food, secure the establishment of adequate food reserves, and encourage and promote adequate and proper nutrition through mass education and other appropriate means.Footnote 140 This suggests that Zimbabwe now complies with international best practice on the protection of the right to food and water.Footnote 141 However, the right to food and water is dependent upon the state taking reasonable legislative and other appropriate measures, within its available resources, to ensure its progressive realization by all persons in Zimbabwe.Footnote 142
The Constitutional Declaration of Rights and national objectives now protect marriage rights.Footnote 143 Interestingly, the South Africa Constitution has no similar provision. Therefore, every person in Zimbabwe who has attained the age of 18 has the right to found a family,Footnote 144 unlike the position in South Africa. Additionally, no person may be compelled to enter into marriage against their will.Footnote 145 This provision complies with the relevant ICESCR provisions that, inter alia, outlaw forced marriages.Footnote 146 However, the Zimbabwe Constitution does not indicate the types of marriages that relevant persons may establish in Zimbabwe.Footnote 147 Nonetheless, the Zimbabwe Constitution prohibits same sex marriages.Footnote 148 All marriage rights are subject to legal requirements stipulated in legislation including the Marriage ActFootnote 149 and the Customary Marriages Act.Footnote 150 A positive duty is also imposed upon the state to take appropriate measures to prevent forced marriages and ensure equality of rights and obligations for spouses during marriage and at its dissolution.Footnote 151 A similar duty is imposed on the state to protect the institution of the family and to adopt appropriate measures, within its available resources, to provide all families with care and assistance and to combat domestic violence.Footnote 152
As in South Africa,Footnote 153 the Constitutional Declaration of Rights protects the right to freedom of profession, trade and occupation.Footnote 154 However, the protection of this right is relatively broad in Zimbabwe compared with in South Africa, since all persons in Zimbabwe (irrespective of their citizenship) have the right to choose their own profession, trade or occupation freely.Footnote 155 Despite this, relevant laws in Zimbabwe may regulate the practice of a profession, trade or occupation.Footnote 156 On the other hand, the Zimbabwe Constitution also protects related rights, such as the right to freedom from forced and / or compulsory labour.Footnote 157 Thus, no person may be subjected to forced or compulsory labour in Zimbabwe. This right is also protected in the South Africa Constitution.Footnote 158
The Constitutional Declaration of Rights and national objectives protect the right to language and culture.Footnote 159 Thus, every person in Zimbabwe has the right to use the language of their choiceFootnote 160 and to participate in the cultural practices of their choice.Footnote 161 The South Africa Constitution contains related provisions.Footnote 162 The state has the duty to take appropriate measures in order to promote and preserve cultural values and practices that enhance the dignity, wellbeing and equality of all persons in Zimbabwe.Footnote 163 Accordingly, the state must ensure that no person may exercise his or her right to language and / or to conduct cultural activities in a manner that is inconsistent with other fundamental rights enshrined in the Constitutional Declaration of Rights.Footnote 164
The Constitutional Declaration of Rights and national objectives protect work and labour related rights.Footnote 165 Similar rights are protected under the South Africa Constitution.Footnote 166 For instance, as in South Africa, everyone in Zimbabwe has a right to fair labour practices.Footnote 167 Nevertheless, unlike under the South Africa Constitution where every worker has the right to strike and to form or join a trade union,Footnote 168 the Zimbabwe Constitution does not extend this right to members of the security services.Footnote 169 Similarly, the Zimbabwe Constitution does not extend the right to engage in collective bargaining and to organize, form or join federations to members of the security services.Footnote 170 Unlike the position in South Africa,Footnote 171 the Zimbabwe Constitution expressly protects women's rights to equal remuneration and fully paid maternity leave for a period of at least three months.Footnote 172 The state is obliged to adopt appropriate, transparent, fair and just affirmative action and other measures, within its available resources, to create employment opportunities for everyone in Zimbabwe, especially previously marginalized communities.Footnote 173
The Zimbabwe Constitution specifically protects environmental rights.Footnote 174 Everyone now has the right to an environment that is free from pollution and ecological degradation and not harmful to their health or wellbeing.Footnote 175 Accordingly, the state is obliged to take reasonable measures, within its available resources, to ensure the progressive realization of these rights in Zimbabwe.Footnote 176
Encouragingly, the Zimbabwe Constitution now protects the rights of vulnerable persons. For instance, the Constitutional Declaration of Rights protects the rights of women and children.Footnote 177 All women in Zimbabwe have the right to be treated equally with men (gender balance) and not to be subjected to degrading or unconstitutional cultural practices.Footnote 178 The state must employ relevant measures that promote full gender balance and participation of women in all aspects of Zimbabwean society.Footnote 179 Likewise, all children under 18 have the right to: equal treatment before the law; shelter and education; health care services; freedom from being forced to take part in sexual, political or other unconstitutional activities; and to be given a name and family name.Footnote 180 The state must employ appropriate measures to ensure the progressive realization of these children's rights in Zimbabwe.Footnote 181 Section 28 of the South Africa Constitution also protects related rights.
The state must provide social security and welfare to needy persons in Zimbabwe.Footnote 182 The Zimbabwe Constitution expressly protects rights of the elderlyFootnote 183 and persons with disabilities.Footnote 184 Notably, all persons over the age of 70 have the right to receive medical and health care assistance, and social security and welfare from the state.Footnote 185 Nonetheless, the state must take appropriate measures, within its available resources, to ensure that elderly persons as well as persons with disabilities are empowered to receive food, social security, education and health care support.Footnote 186 The state must employ affirmative action programmes and other reasonable non-partisan measures to ensure that youths (between the ages of 15 and 35) have access to appropriate education, training and opportunities to enable them to participate in political, social and economic empowerment activities in Zimbabwe.Footnote 187 The Bill of Rights of the South Africa Constitution contains no similar provisions. Nevertheless, as in South Africa,Footnote 188 the Zimbabwe Constitution now expressly recognizes property rights.Footnote 189 For instance, every person in Zimbabwe has the right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others.Footnote 190 No person may be deprived of their property unless such deprivation is duly executed as stipulated in the Zimbabwe Constitution.Footnote 191
Evaluation and analysis of the protection of socio-economic and cultural rights under the Zimbabwe Constitution
Although the mere express recognition of socio-economic and cultural rights in the Zimbabwe Constitution is commendable, much still needs to be done to combat various challenges that could impede their practical protection in the future. Thus, socio-economic and cultural rights, like any other fundamental human rights, are limited in certain instances, such as public emergency and under the law of general application.Footnote 192 However, any limitations to socio-economic and cultural rights must be fair, reasonable, necessary and justifiable having regard to other factors such as: the nature of the right or freedom concerned; the purpose of the limitation and whether it is necessary;Footnote 193 the nature and extent of the limitation; the need to ensure that the enjoyment of fundamental human rights by any persons does not prejudice the rights of others; the relationship between the limitation and its purpose, especially, whether it imposes restrictions that are not required to achieve its purpose; and whether there are any other less restrictive means of achieving the purported limitation.Footnote 194 Additionally, the protection of socio-economic and cultural rights is mostly contingent upon the state employing reasonable measures, within its available resources, to ensure their progressive realization in Zimbabwe.Footnote 195
Despite the stated limitations, affected persons may approach the relevant courts for appropriate reliefFootnote 196 and the courts may grant a declaration of invalidity in respect of the infringing legislation or conduct.Footnote 197 Only Zimbabwe's Constitutional Court and High Courts may make such a declaration.Footnote 198 The courts may grant a declaration of rights to those whose socio-economic rights are violated by the state or other persons.Footnote 199 This is likely to be done where there are disputes regarding the validity and applicability of socio-economic rights in Zimbabwe. The courts may also grant compensatory remedies against the perpetrators of socio-economic rights violations in Zimbabwe.Footnote 200 Moreover, those whose socio-economic rights are being violated or likely to be violated may approach the relevant courts for an interimFootnote 201 or final prohibitive interdictFootnote 202 to prevent and / or stop the violation or continued violation of their socio-economic rights. Affected persons may approach the courts for a structured interdict in order to compel the offenders to take certain steps to rectify the violation of particular socio-economic rights in accordance with the courts’ rules.Footnote 203 The courts may also grant a mandamus interdict to compel offenders to perform a certain action to fulfil or protect a particular socio-economic right of the affected person.Footnote 204 A mandamus interdict may be employed where the court seeks to compel the offenders to correct any unconstitutional actions which gave rise to the violation of the affected persons’ socio-economic rights.Footnote 205
Thus, unlike the position under the South Africa Constitution,Footnote 206 any persons in Zimbabwe who are evicted from their houses and / or have their houses demolished without a relevant court order may now approach the courts for redress.Footnote 207 Nonetheless, although the Constitutional Declaration of Rights expressly protects the right to freedom from arbitrary eviction, the right to shelterFootnote 208 is only recognized in the national objectives. Furthermore, the Zimbabwe Constitution does not specify the actual circumstances that the courts should consider before granting an eviction order. This flaw could lead to the courts abusing eviction orders and affected persons suffering other detrimental inconsistences. Given this position, it is unclear whether those whose homes were destroyed by Operation Murambatsvina will be able retroactively to enforce their right to freedom from arbitrary eviction in the courts and receive appropriate relief.Footnote 209 Moreover, Operation Garikai / Hlalani Kuhle, which was targeted at providing redress to the victims of Operation Murambatsvina, has so far failed to provide sufficient houses to all affected persons.Footnote 210 The government has continued to evict people from their homes, especially, in Chiadzwa and Mazowe villages, without providing adequate compensation to those affected.Footnote 211
Likewise, although the national objectives and Constitutional Declaration of Rights now protect the right to education,Footnote 212 this right is only extended to citizens and permanent residents of Zimbabwe,Footnote 213 contrary to South Africa where the right to education is extended to “everyone” in South Africa.Footnote 214 However, given the ongoing political and economic challenges, it is uncertain whether all citizens and permanent residents of Zimbabwe will be able to enforce their right to education in the courts so that they receive basic state-funded education, including adult basic education and tertiary education.Footnote 215 The right to state-funded education is contingent upon the state taking reasonable measures, within its available resources, to ensure its progressive realization by all citizens and permanent residents of Zimbabwe.Footnote 216 Moreover, the Ministry of Education is facing serious funding challenges in relation to the government's purported programme for providing access to education for orphans and vulnerable children: the Basic Education Assistance Module.Footnote 217 It is not certain whether the right to education is also extended to prisoners and refugees who reside in Zimbabwe.Footnote 218
Unlike in South Africa where the right to health care is provided to “everyone”,Footnote 219 the Zimbabwe Constitution only extends the right to health care to citizens and permanent residents of Zimbabwe.Footnote 220 Despite this, it is uncertain whether all citizens and permanent residents will be able to enforce their right to health care in the courts, as stipulated in the Constitutional Declaration of Rights and national objectives. In other words, the right to health care is dependent upon the state taking reasonable measures, within its available resources, to ensure its progressive realization by all persons in Zimbabwe.Footnote 221 Notably, the government has so far struggled to employ sufficient measures to enhance the realization of basic health care services for all persons in Zimbabwe, probably due to maladministration, corruption, political instability and / or economic challenges.Footnote 222 Additionally, in 2011, the Ministry of Health, and the Ministry of Labour and Social Services faced challenges such as high infant mortality rates, especially in the Tokwe-Mukosi flood and Operation Murambatsvina victims’ new resettlement areas.Footnote 223 In 2012, the government of Zimbabwe faced a severe shortage of medical doctors and all categories of medical drugs, including important children's vaccines.Footnote 224 This and other challenges may directly impede the realization of the right to health care by all persons in Zimbabwe, in particular prisoners and refugees.Footnote 225
Notwithstanding the fact that the right to food and water is provided to “everyone” in South AfricaFootnote 226 and Zimbabwe, it is doubtful whether all affected persons in Zimbabwe will be able to enforce this right in the courts, as provided in the national objectives and Constitutional Declaration of Rights.Footnote 227 In Farai Mushoriwa, the court held that the disconnection of the water supply at the appellant's home by Harare City Council was unconstitutional. Nevertheless, the court gave the appellant no remedy.Footnote 228 Furthermore, due to persistent droughts and economic challenges, the government of Zimbabwe constantly faces problems in relation to the provision of adequate food to all persons in Zimbabwe.Footnote 229 This is worsened by the fact that the government sometimes interferes with the distribution of food aid by NGOs and other human rights defenders to vulnerable persons, particularly in rural areas,Footnote 230 prisons and refugee centres.Footnote 231
Unlike in South AfricaFootnote 232 and notwithstanding the fact that marriage rights are now protected in the Constitutional Declaration of Rights and national objectives,Footnote 233 children under the age of 18Footnote 234 are still directly and indirectly forced into early marriages in Zimbabwe, probably due to poverty and other traditional customs respectively.Footnote 235 Moreover, gays and lesbians might not be able to enforce their marriage rights because the Zimbabwe Constitution expressly prohibits same sex marriages.Footnote 236
Similarly, despite the fact that the protection of this right is broader in ZimbabweFootnote 237 than it is in South Africa,Footnote 238 some professions such as commercial sex work and labour broking are still treated with much contempt in Zimbabwe. Additionally, although the Zimbabwe Constitution protects the right to freedom from forced and / or compulsory labour,Footnote 239 it is not expressly stated whether prisoners can utilize this right to prevent themselves from being subjected to unlawful or degrading compulsory labour by the authorities in Zimbabwe.Footnote 240
Despite the fact that the right to language and culture is protected in the Constitutional Declaration of Rights and national objectives,Footnote 241 the practical realization of this right has remained somewhat restricted and problematic in Zimbabwe, particularly in Parliament and in primary, secondary and tertiary institutions.Footnote 242 Likewise, although the Constitutional Declaration of Rights and national objectivesFootnote 243 protect work and labour related rights, an employee's rights to participate in collective job actions and to strike are still not enforced consistently in practice. The ZRP's recent harassment and disruption of peaceful demonstrations and employee petitions is a case in point.Footnote 244 Moreover, unlike the South Africa Constitution, which extends to everyone the right to strike and to form or join a trade union,Footnote 245 the Zimbabwe Constitution does not extend this right to members of the security services.Footnote 246 The right to work is also not consistently enforced in Zimbabwe, as many persons are either unemployed or retrenched from their jobs, probably due to persistent economic challenges in the country.Footnote 247 This is worsened by the fact that the government's indigenization and affirmative action policies, which are plausibly targeted at creating jobs for everyone in Zimbabwe, are sometimes politicized and ineffectively implemented.Footnote 248
Although the Zimbabwe Constitution now specifically protects environmental rights,Footnote 249 the practical enforcement of this right has so far remained problematic. The environmental and other gross human rights abuses associated with the Chiadzwa diamond mines is a case in point.Footnote 250 Additionally, despite the fact that the Zimbabwe Constitution protects the rights of both children and women,Footnote 251 more still needs to be done to promote gender equality and children's rights, especially in influential job sectors and / or marginalized rural areas.Footnote 252 Likewise, although the Zimbabwe Constitution expressly protects the rights of the elderlyFootnote 253 and persons with disabilities,Footnote 254 and the right to social security and welfare,Footnote 255 the government still needs to do much more to ensure that the elderly and persons with disabilities are empowered to receive food, social security, education and health care support, particularly in rural areas.Footnote 256 Notably, the biggest threats to the full realization of these rights in Zimbabwe are the current economic challenges, corruption and the adoption of partisan measures to enforce social security and welfare policies, especially in small towns and rural areas.Footnote 257 Similarly, notwithstanding the fact that the Zimbabwe Constitution protects property rights,Footnote 258 the government still has much to do to ensure that no person may be arbitrarily deprived of their property in Zimbabwe.Footnote 259 This follows the fact that the government has recently arbitrarily evicted and left homeless many people in Mazowe villages without providing adequate compensatory damages.Footnote 260
CONCLUDING REMARKS
The introduction of socio-economic rights in the Zimbabwe Constitution is a commendable step in the right direction for Zimbabwe to comply with the international instruments and treaties it has ratified. Nonetheless, a host of flaws are still associated with the enforcement of these rights in Zimbabwe. If not adequately addressed, such flaws could continue to inhibit the full realization of socio-economic rights by all persons in Zimbabwe. For instance, the practical enforcement of socio-economic rights by affected persons in relevant courts has remained very difficult. Consequently, although the Zimbabwe Constitution provides a number of constitutional remedies that could be utilized by affected persons, such persons are usually unable to claim their remedies against the government.Footnote 261 This could be because all socio-economic rights are dependent upon the state taking reasonable measures, within its available resources, to ensure their progressive realization by all relevant persons in Zimbabwe. Other influencing factors may also include corruption, economic challenges and the adoption of partisan measures by the government, in an attempt to enforce socio-economic rights in Zimbabwe. Therefore, the independent bodies that are involved in the enforcement of socio-economic rights in Zimbabwe, including the National Prosecuting Authority,Footnote 262 the Zimbabwe Gender Commission,Footnote 263 the National Peace and Reconciliation CommissionFootnote 264 and the Zimbabwe Human Rights Commission,Footnote 265 should be adequately financed to enable them to execute their duties consistently and timeously.Footnote 266 These bodies must execute their constitutional duties independently and on a non-partisan basis to enable all affected persons to enforce their socio-economic rights timeously.Footnote 267
The government of Zimbabwe must take an active role to respect, protect, promote and fulfil all the socio-economic rights enshrined in the Constitutional Declaration of Rights.Footnote 268 This will lead to social justice, adequate redress for affected parties, respect for human dignity through socio-economic rights, and equal sharing of government resources among all persons.Footnote 269 Accordingly, the author concurs with Liebenberg who correctly argues that:
“… access to basic social services is crucial not only to people's physical survival, but also to enable the development of their potential to shape their own lives and to be active agents in the shaping of our new society. Human dignity as a relational concept requires society to respect the equal worth of the poor by marshalling its resources to redress the conditions that perpetuate their marginalization. This, in turn, requires a focus on the actual impact of the state's actions or omissions on the life chances of disadvantaged groups, and a response that is proportionate to the seriousness of that impact. In constitutional adjudication, it requires that a high burden of justification is placed on the state in cases involving a deprivation of basic human needs …”Footnote 270
Consequently, the government of Zimbabwe should take appropriate measures adequately to address past and ongoing socio-economic rights violations, such as the environmental ecological degradation and forced evictions caused by Operation Murambatsvina as well as the Chiadzwa diamond mining and Mazowe villages displacements. It must unconditionally stop arbitrary forced evictions and provide appropriate constitutional remedies for all affected persons.Footnote 271 The government should remove unconstitutional restrictions that are usually imposed upon NGOs and other human rights defenders to enable them to provide sufficient clean water, clothes, food, shelter, medicines and other necessary basic needs to persons in prison and in rural areas, and other vulnerable persons in Zimbabwe.Footnote 272 The international community should also be encouraged to provide relevant aid to the needy in Zimbabwe. In turn, Zimbabwe must comply with all international instruments and treaties it has ratified.
The state must consistently protect the right to work for all employees in Zimbabwe, regardless of their political affiliation. The ZRP and other law enforcement authorities must stop the harassment and disruption of workers’ peaceful demonstrations, petitions and other labour actions. The government must adopt relevant non-partisan measures to empower women, youths, children, and elderly and disabled persons across the country. It should also create sufficient jobs to avoid retrenchments of workers in all relevant sectors. Accordingly, the mere passing of the Labour Amendment BillFootnote 273 alone might not end workers’ retrenchments in Zimbabwe, because some provisions of the Labour Bill 2015 violate the Zimbabwe Constitution.Footnote 274 Moreover, the proposed retrospective application of the Labour Bill 2015 creates legal uncertainty that poses significant challenges to both employeesFootnote 275 and employers.Footnote 276
Vital measures on the enforcement of socio-economic rights can be learnt from South Africa and regional and international regulatory bodies, such as the UN Committee on Economic, Social and Cultural Rights, the UN and the Southern African Development Community.Footnote 277 Finally, Zimbabwe should provide adequate training for High Court and Constitutional Court judges to enable them to enforce socio-economic rights more effectively.
