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Trust Maanda
Legal Position
ALTHOUGH we all talk about human rights, we are not acquainted with what they are.
Human rights are fundamental rights that are inherent to all human beings by virtue of their being born human.
They are not granted by any person, but are inherent to our existence.
These rights are not conferred by anybody, but are automatic entitlements based on being born human.
They are from God, and are available to every human being regardless of race, gender, sex, nationality, ethnicity, language, religion, place or origin or any other status.
Rights are universal in that they relate to every human being everywhere, and apply to everyone, everywhere, simply by virtue of being human.
They are inalienable in that they cannot be taken away, though they may be restricted in certain situations according to the law and necessity.
They are indivisible, in that you cannot divide them because no right can exist in isolation and independent from the other rights.
All human rights are equally important and interconnected; one right cannot be enjoyed without the others.
For example, the right to life cannot be divided from the right to health, food or shelter and the other rights.
One cannot have a right to human dignity, and not have the right to be free from torture.
In fact, it is human dignity which is the source of all human rights.
These rights are rooted in respect for human dignity, for how can there be dignity in a life lived without access to housing, health care, food, water or in the case of persons unable to support themselves, without appropriate assistance?
In the case of The State v Willard Chokuramba CCZ 10/19, the Constitutional Court considered the content of the right to human dignity.
MALABA DCJ (as he then was) posited the following: “Section 46 of the Constitution is the interpretative provision.
It makes it mandatory for a court to place reliance on human dignity as a foundational value when interpreting any of the provisions of the Constitution which protect fundamental human rights and freedoms.
This is because human dignity is the source for human rights in general.
It is human dignity that makes a person worthy of rights.
Human dignity is therefore both the supreme value and a source for the whole complex of human rights enshrined in Chapter 4 of the Constitution.
This interdependence between human dignity and human rights is commented upon in the preambles to the International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966).
The preambles state in express terms that human rights ‘derive from the inherent dignity of the human person’.
They all refer to ‘. . . the inherent dignity . . . of all members of the human family as the foundation of freedom, justice and peace in the world’.
The rights and duties enshrined in Chapter 4 of the Constitution are meant to articulate and specify the belief in human dignity and what it requires of the law.”
These rights encompass civil, political, economic, social, and cultural rights.
These rights are essential for living a life of dignity and freedom and are protected by international and national laws.
Civil and Political Rights include the right to life, liberty, security of person, freedom from torture, slavery, and arbitrary arrest, the right to a fair trial, freedom of thought, conscience, religion, opinion, expression, and association.
Economic, Social, and Cultural Rights include the right to work, education, health, an adequate standard of living, social security, and participation in cultural life.
Collective or solidarity rights belong to groups of people, such as indigenous peoples’ rights to their ancestral lands.
All the three categories of rights are often referred to as the first, second and third generation rights respectively.
Their categorisation does not matter because all exist simultaneously and are interconnected.
Chapter 4 of the Zimbabwean Constitution provides for civil and political rights and economic socio-cultural rights.
Although social and economic policies are pre-eminently policy matters that are the concern of Government, they are rights that can be demanded in court.
These rights enjoin that in formulating policies, the Government must consider, not only the rights of individuals to live with dignity, but also the general interests of the community concerning the application of resources.
Although rights are inalienable, they are generally not absolute.
They must be enjoyed responsibly towards other persons and within the law.
They may be restricted in certain situations according to law and necessity.
These restrictions are derogations or limitations.
Derogations by their nature are temporary such as during state of public emergency.
Certain rights can be suspended.
During the Covid-19 era, certain rights were suspended.
There were restrictions on movements and gatherings.
Limitations are by nature permanent and are normally included in the text of the constitution.
In Zimbabwe, Section 86 of the Constitution is a general limitation clause.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
