Secondly, the document is a Declaration of Human Rights. It does not purport to
legislate, prescribe or bring the rights into being, but to declare and recognise what is
already known to exist prior to the Declaration. Thus the rights exist independently of
any government and inhere in each individual by virtue of each person’s very humanity.
These rights are accordingly seen as natural and “derive from the inherent dignity of the
human person”. The rights are “inborn”, “inviolable”. By definition then, fundamental
human rights do not depend upon State approval for their existence. As rights they
differ from other legal rights, say those under contract, which may be sold or alienated.
Fundamental human rights, existing by virtue of the holder’s very humanity, cannot be
bought or negotiated, and cannot be reduced to a mere privilege dependant on State
beneficence. As they derive from attributes of the human personality they exist
perpetually and universally for all people and for all nations regardless of historical,
cultural, ideological, economic or other differences. If then, sexual orientation rights are
shown to be part of these fundamental rights, those who object to sexual orientation
rights on the basis of cultural difference, object not so much to rights arising from sexual
orientation, but to the very principle of Human Rights itself6.
The fundamental human rights that are of concern for these purposes are
primarily those of equality and privacy.
EQUALITY AND NON-DISCRIMINATION
The importance given to the principles of equality and non-discrimination in the UDHR
can be gathered from the opening lines of the Declaration:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and peace in
the world…
The bedrock nature of the right to equality has been emphasised time and again
by commentators and in international fora where it has been held to be:
In a substantial sense the most fundamental of the rights of man. It occupies the first
place in most written constitutions. It is the starting point of all other liberties7.
Similarly:
Of all human rights, the right to equality is one of the most important. It is linked to
the concepts of liberty and justice, and is manifested through the observance of two
fundamental and complementary principles of international law. The first of these
principles, that “all human beings are born free and equal in dignity and rights”,
appears in the Universal Declaration of Human Rights8; the second, the principle of
non-discrimination has been solemnly reaffirmed in Article 1 of the Charter of the
United Nations. It is upon those two principles that all the instruments on human
rights adopted since 1945 are based…9
Zimbabwe is a signatory to and has ratified the International Covenant on Civil
and Political Rights, the most widely ratified Convention and widely accepted
agreement on human rights apart from the UDHR itself. Equality and nondiscrimination constitute the single dominant theme of the Covenant10. Like the UDHR,
6
Heinze, E, Sexual Orientation: A Human Right (Matinus Nijhoff Publishers, 1995) p. 68
7
Henkin op. cit. p. 247
8
Article 1
9
Henkin op. cit. p. 247
10
Henkin op. cit. p. 246