SEXUAL ORIENTATION AND ZIMBABWE’ S NEW CONSTITUTION:
A CASE
FOR INCLUSION
THE NATURE OF HUMAN RIGHTS
The Universal Declaration of Human Rights was adopted by the General Assembly of
the United Nations in 1948. Since then Human Rights has become the idea of our time 1.
While several Human Rights instruments form the progeny of the Universal Declaration
of Human Rights (UDHR), the purpose of each is to give effect to those rights outlined
in the original declaration. Almost every member state of the United Nations has
adhered to at least one of these major human rights instruments, whether it is the
comprehensive International Covenants on Civil and Political Rights and Economic,
Social and Cultural Rights, or regionally based human rights instruments such as the
African Charter on Human and People’s Rights, the American Convention on Human
Rights or the European Convention for the Protection of Human Rights and
Fundamental Freedoms. All these instruments adopt, with minor variations, the
fundamental rights and freedoms outlined in the original Declaration, its basic
philosophy and jurisprudence. The Universal Declaration of Human Rights is, as will be
seen shortly, no modest document. Its basic principles have profound implications on
questions of governance and sovereignty. That this is so may be either a cause for
surprise or explanation for the fact that the Government of Zimbabwe entered into the
International Covenant on Civil and Political Rights without fanfare or notice to the
public2.
The importance of the Declaration is contained in its rubric. It is Universal. It is a
Declaration. It declares Rights. And it declares Rights which inhere in humanity.
The rights declared are held to be Universal. Hence while the Declaration may be
conspicuously Western in tone and form, it is now accepted that the substantive rights in
the document apply universally, across nations and across cultures. Accordingly, no
culture or tradition can justify a departure from the Declaration’s fundamental rights.
There are no arguments that may justify a violation of fundamental rights that justify
torture, genocide, slavery, racism etc. on the basis that such practices form part of a
State’s sacred traditions or cultural practices. If a right is shown to be a fundamental
right it cannot be diminished by cultural traditions3. This universality is a marked
departure from the pre-Second World War position. Whereas then the manner in which
a State treated its citizens was its own concern, today it forms the substance of
international relations and diplomacy4. Certainly, adherence to the norms of the Charter
may be formal, nominal or hypocritical in the case of some States. But when charged
with violation of a human right, the State response is not usually to deny the existence of
the right itself, but to acknowledge the right and to seek to justify the violation5.
1
Henkin, L, (Ed) The International Bill of Rights (Columbia University Press, 1981) p.1
2
The Covenant was acceded to in May 1991 and ratified in August 1991
3
During its report to the United Nations Human Rights Committee on 25th and 26th March, 1998,
the Zimbabwean government was subjected to strident criticism on precisely this basis when it
attempted to justify homophobic legislation on the basis of cultural relativism. Further details on
the report can be found at the Website address http://www.un.org/news.
4
5
Henkin op. cit. p. 2
It is precisely because Robert Mugabe refused to acknowledge the very existence of human
rights as they pertain to the gay and lesbian community that his pronouncements caused such an
international furore, one which may not have occurred had the rights been acknowledged and an
attempt made to excuse their violation.