ZADHR’s submission on the new Zimbabwean Constitution

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This submission on the new Zimbabwean Constitution is made by the Zimbabwe Association of Doctors for Human Rights (ZADHR), an association of health professionals concerned with issues of health and human rights. ZADHR has a membership of 127 doctors, nurses, allied health professionals and student health workers throughout Zimbabwe who recognize the role that health professionals play as frontline witnesses of progress in achievement of the right to health.

The constitutional reform process under Article 6 of the Global Political Agreement is not an independently driven constitutional reform process (a process which would not seek to or leave scope for serving the interests of a limited number of people or political parties). Notwithstanding, ZADHR recognises that the Article 6 process led by the Select Committee of Parliament on the Constitution (COPAC), however flawed or far from the ideal, still provides an opportunity for reform of the current Zimbabwean Constitution; a constitution which does not guarantee economic, social and cultural rights, including the right to health.

ZADHR and its members will actively engage in the constitutional reform process. ZADHR will further encourage all health professionals to actively participate in the constitution making process, ensure that their voices are heard and use the limited space created by this process to influence inclusion of adequate guarantee of all human rights, which are universal, interdependent and inalienable. It is evident that human rights cannot and should not be divided and cannot be realized independently of each other. This submission focuses on economic, social and cultural rights and the right to health as an area of particular interest to the Association and one which has been historically neglected in Zimbabwe.

ZADHR submits the following:

On a framework that ensures the rule of law, good governance and implementation of rights:

Guarantees for human rights within the constitution cannot stand alone. To be effective the must be contained within a constitution that upholds the rule of law and promotes good governance and democratic practices.

The independence of the judiciary must be ensured, with mechanisms independent for appointment and removal of members of the judiciary that are not subject to political parties or the privy of the executive. The judiciary must be empowered to offer effective remedies to victims of human rights violations.

The new Constitution should provide for an independent National Human Rights Commission with powers to investigate cases of human rights violations and any other mechanisms, institutions and procedures necessary to ensure that adequate protections for rights are delivered to the population and that rights guaranteed by the constitution can be realized in practice.

Measures must be established within the new Constitution to ensure that legislation which violates human rights enshrined in the constitution is not passed.

Mechanisms that ensure the constitution may only be amended by public vote through a national referendum must be established to guard against amendments to the Constitution that are not in accordance with the will of the people of Zimbabwe.

On freedom from discrimination:

Freedom from discrimination, the cornerstone of all rights, must be completely prohibited. It should further include specific protection for grounds that have historically been used to unfairly discriminate against the population of Zimbabwe. This includes non-discrimination on the basis of race, gender, sex, disability and sexual orientation.

On the right to life

Everyone must have absolute, non-derogable protection of the right to life. As there will be no derogations from this right, the death penalty will of necessity be abolished.

On freedom from torture, cruel, inhuman and degrading treatment:

ZADHR was formed, in 2002, in response to high levels of organized violence and torture and the lack of an appropriate response to this from the medical profession. Torture is still a key focus area of ZADHR’s work. The past decade has witnessed high levels of torture resulting in physical injuries and psychological trauma to thousands of Zimbabweans. There is a need to improve on protection of the population from torture, cruel, inhuman and degrading treatment.

Within the new Constitution:

There can be no justification for torture, cruel, inhuman and degrading treatment.

Freedom from torture, cruel, inhuman and degrading treatment must be non-derogable. There must be an unequivocal guarantee of freedom from torture, cruel, inhuman and degrading treatment without any claw-back causes.

Generally on economic, social and cultural rights:

Zimbabwe has ratified both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (IESCR). While the rights guaranteed by the ICCPR are guaranteed in the current constitution, and it is likely that they will be carried forward in the new constitution, there is need to pay special attention to ensuring obligations under the IESCR, currently unmet, are complied with by domesticating the protections of this instrument in a new Zimbabwean Constitution. These obligations are also contained in the African Charter on Human and Peoples’ Rights (ACHPR) (articles 14 to 18) and the African Charter on the Rights and Welfare of the Child (articles 11 to 15) to which Zimbabwe is party.

Zimbabwe has an obligation to “take steps…to the maximum of its available resources, with a view to achieving progressively the full realization of economic social and cultural rights by all appropriate means”. Inclusion of economic, social and cultural rights in the constitution – the supreme law of the country - is one of the possible legislative measures that the state can take to satisfy its obligations and would subsequently serve as the basis for all other laws, policies and programmes undertaken by the government towards meeting these obligations.

Economic, social and cultural rights should be included in the new Constitution as a part of a justiciable Bill of Rights. This neither has the intention of, nor will it have the effect of, pushing the Government of Zimbabwe beyond the limits of its available resources or obligations. It will however, improve accountability by empowering Zimbabweans with grounds to demand justification for decisions taken in all areas concerning economic social and cultural rights, demands which they currently have a weak basis for making.

It has been acknowledged internationally that countries have different levels of resources available for implementation of economic social and cultural rights. For this reasons it is expected that these rights be progressively realized. Including these rights in the new Zimbabwean constitution sets the basis for the government to begin to take some immediate minimum steps (known as core obligations) to ensure that these rights are realized. It will not create an expectation for the government to deliver what is outside of its capacity or available resources.

Specifically, on the right to health:

Good health is necessary for the exercise of all human rights – civil, political, economic, social and cultural. It is a ‘fundamental human right indispensible for the exercise of other human rights.’ The right to health must guaranteed in the new Zimbabwean Constitution in a justiciable manner and steps to progressively realize this right should be clearly set out.

A guarantee for the right to health in the constitution must recognize that this right encompasses far more than just health care. It also includes the underlying determinants of health (or living conditions necessary for good health) such as safe water, adequate sanitation, adequate nutrition, healthy working conditions and environment and access to health-related information. The right to health also contains freedoms. These freedoms include theright to be free from medical treatment without consent, such as research or medical experiments and the right to be free from torture, cruel, inhuman and degrading treatment or punishment.

The clause in the new Constitution covering the right to health should ensure:

that timely and appropriate physical and mental health care is equally available, accessible and acceptable to all without discrimination;
that no one is denied emergency medical treatment;
there is provision for maternal, child and reproductive health care;
there are guarantees for the underlying determinants of health including safe drinking water, adequate sanitation, safe environment and working conditions and access to health related information;
communities can meaningfully participate in national and community level health decision-making; and
that no one is subjected to medical or scientific experiments without their informed consent.

On the manner of inclusion of the right to health in the new Zimbabwean Constitution

As part of the “National Objectives”

The right to health can be included in the constitution as part of a preamble or a section containing national objectives. This allows for consideration of the right to health in the process of policy making. However, the government is not compelled to ensure that the right to health is respected, protected and fulfilled. Furthermore inclusion of the right to health in the constitution in this manner means seeking remedies for violation of this right remains difficult with the courts unable to enforce it.

Both the 1999 draft constitution from the Constitutional Commission and the Kariba Draft include economic, social and cultural rights as “National Objectives” which “guide all organs and agencies of the State and government….in taking policy decisions.”

General Comment No. 9 of the Committee on Economic Social and Cultural Rights states the following:

“It is sometimes suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts. While the respective competencies of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.”

Explicit guarantees in fully justiciable Bill of Rights

The right to health can also be guaranteed by being explicitly included in a justiciable Bill of Rights as is the case with the Constitution of South Africa, which guarantees this right in a bill of rights that “applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.”It further provides for the “right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.”

This is the preferable manner for inclusion of the right to health in the new Zimbabwean Constitution.