Zimbabwe Human Rights NGO Forum CHAPTER ONE THE CONSTITUTIONAL BACKGROUND The Declaration of Rights (a) The Origins of Zimbabwe’s Current Declaration of Rightsiii The Declaration of Rights in the Constitution of Zimbabwe was inherited from colonial Rhodesia, but has been substantially modified and only became fully justiciable well after Independence. In the 1969 Constitution of Rhodesia the Declaration of Rights appeared only as an appendix (the Second Schedule), which was non-justiciable. Section 84 did not permit any court to ‘enquire into or pronounce upon the validity of any law on the ground that it [was] inconsistent with the Declaration of Rights’. Thus under this Constitution any existing or future law would prevail even if it conflicted with the Declaration of Rights. Section 11 of the Second Schedule further suspended a number of rights under conditions of war or a state of emergency. These included rights to personal liberty, property, privacy of the home, the protection of the law, freedom of conscience and discrimination. In 1979, the Constitution of Zimbabwe Rhodesia upgraded the Declaration of Rights from the Second Schedule to Chapter VIII of the text and section 134 introduced for the first time the possibility of direct application to the Appellate Division of the High Court (now the Supreme Court) when fundamental rights were contravened. Section 135 continued to exempt existing statutes and subsidiary legislation from ‘inconsistency’ with the Declaration of Rights. But any future Acts would not enjoy the same blanket exemption as did past legislation. The 1980 Constitution of Zimbabwe drew upon the 1979 Declaration of Rights. The Zimbabwe Constitutioniv laid down the 1980 Constitution of Zimbabwe. It shifted the Declaration of Rights from Chapter VIII to Chapter II. Otherwise it made few substantive changes to fundamental rights. (One specified redress was dropped and property protections were revised.) However, the 1980 Constitution of Zimbabwe also deliberately exempted fundamental rights from court enforcement, under two circumstances. Under a state of emergency, the courts could not enforce certain fundamental rights. For as long as the emergency lasted, section 25 suspended rights to personal liberty, property, privacy of the home, freedom of expression, assembly and association, and movement, and protection from discrimination. The state of emergency lasted nearly 10 years into Independence. Zimbabweans have reason to fear any re-introduction of a state of emergency. Moreover, for five years, until 1985, section 26(3) also exempted all laws existing on the statute books in 1980, and all re-enactments of existing laws, from any enforcement using the Declaration of Rights. Because existing law intruded so extensively upon fundamental human rights, this exemption meant that the new state had a largely unfettered hand in ignoring human rights. So for five years most and for ten years some of Zimbabweans’ fundamental rights ‘guaranteed’ in the Constitution of Zimbabwe were not able to be exercised, in much the same way as they had not been enforceable under the Constitution of Zimbabwe-Rhodesia. The new, independent Government was given this five-year exemption so that it would have time to amend the Rhodesian laws which offended against human rights and which previous Rhodesian constitutions had exempted altogether from court ‘enquiry’. (b) After Independence 7