policy. The South African Constitution protects some social and economic rights
because it was felt that the rights to housing, health care, food and water, for
example, were crucially important to most people in an economically unequal society
such as South Africa’s. The same considerations would apply to Zimbabwe: indeed,
one of the questions COPAC asked in its outreach programme was what social,
economic and cultural rights should be included in the new constitution.
Incorporation of International Instruments?
A constitutional Declaration or Bill of Rights should cover at least the main rights and
freedoms that are recognised internationally; indeed, it has been suggested that it
should cover all of them, perhaps through a provision saying something like: “Laws of
the legislature must not violate any rights recognised by international conventions to
which Zimbabwe is a party.” Such a provision would have two drawbacks, however:
• International instruments are usually broadly and loosely drafted, whereas rights
that are protected by a constitution must be defined clearly and unambiguously
so that the government and its subjects know what they can and cannot do.
• A provision along the lines suggested above would allow a government to remove
the constitutional protection from any right simply be renouncing or withdrawing
from the treaty which embodied the right.
Should it be possible to amend the Declaration of Rights?
Peoples’ ideas of what rights are important vary over time. The French Declaration of
the Rights of Man and of the Citizen, for example, was silent on the rights of women
— a serious omission by present-day standards. And Magna Carta, in addition to
protecting subjects against arbitrary punishment and the expropriation of their
property without compensation — rights which are still regarded as fundamental in
most countries — also protected men against arrest on the accusation of a woman, a
right which could hardly be claimed nowadays. The fact that attitudes towards
fundamental rights may change is important for two reasons:
• Only rights that are truly fundamental should be included in a constitutional
declaration of rights.
• A Declaration of Rights is not only for the present, but also for future generations.
• Although a constitutional declaration of rights should not be easily amendable
[because if it is governments may be tempted to limit or abolish rights that have
become politically inconvenient] it should not be completely unamendable. Like
the rest of the constitution, a declaration of rights may need to be altered from
time to time.
Specific Rights
What follows is a brief [and by no means complete] selection of specific rights that
should be protected by our new constitution, and some of the problems associated
with them:
Right to life
This right is so fundamental that it obviously must be included, but in defining its
extent two questions arise:
• Should the right cover unborn foetuses [i.e. should abortion be permissible]?
• Should the death penalty be allowed?
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