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.

Select target paragraph3