and health care. The right to be legally represented by a lawyer of one’s choice, for
example, is not much use to someone who cannot afford to pay the lawyer’s fees;
the right to travel anywhere in Zimbabwe is of little importance to someone who
cannot afford a bus fare. If the new constitution does not protect at least some basic
SEC rights it is liable to be seen as a document drawn up by members of the political
and social élite for their own benefit, rather than addressing the concerns of the
broad mass of the people.
Difficulties in Enforcing Constitutionally Protected SEC Rights
If SEC rights are to be protected by the new constitution, how will they be enforced?
This is not an easy question to answer, firstly because it is not always clear who has a
duty to provide SEC rights; and, secondly, because it may be financially ruinous for
the country to provide them.
Who will have the duty of providing SEC rights?
Giving someone a right to something necessarily involves imposing a duty on
someone else to provide that thing. As lawyers put it, every right must have a
corresponding duty, and that duty must be imposed on someone.
Constitutional rights are normally regarded as “vertical”, i.e. enforceable against the
State, and not “horizontal”, i.e. enforceable by one individual against another. This is
the case with most SEC rights: the State is expected to provide the services and
facilities needed to give effect to the rights. But there may be grey areas, where the
responsibility for providing the right is not clear.
Take the right to education, for example. Clearly the State is expected to provide
enough schools and teachers to satisfy the needs of the country’s children. Obviously
the right would not allow poor parents to pick a rich businessman at random and
compel him to pay for their children’s education. But, would the right allow parents
to demand that a private school accept their children even though they cannot afford
the school fees? And would the right prevent a school from expelling a child on the
ground of non-payment of fees? These are some of the grey areas mentioned above.
As another example, take the right to adequate housing. If this right is protected in
the new constitution then generally it is the State that would have a duty to satisfy it.
Householders should not be compelled to accommodate homeless people in vacant
rooms in their homes. On the other hand, the State might call on others to assist it in
providing accommodation, for example by requiring employers to provide housing for
their employees. How far the State could go in sharing its responsibilities in this way
is debatable — another grey area.
How far should SEC rights be enforceable?
Even if SEC rights are set out in the new constitution, it may not be possible to give
full effect to them, given the country’s slender financial resources. As an example,
take again the right to education. Zimbabwe has done better than its neighbours in
providing primary school education to its children, but providing all its children with
secondary and tertiary education would overstretch its resources. The same goes for
other SEC rights: the government lacks the resources to provide all Zimbabweans
with access to clean drinking water and adequate housing, for instance, and is barely
able to provide them with basic health care.
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