5 2. The constitution The constitution of Zimbabwe, including a Declaration of Rights (Articles 11-12), was inherited in 1980 from the former white-minority regime that had lost the 1970’s civil war. The end of whiteminority rule was supposed to have heralded the establishment of multi-racial democracy and the realization of political, social and economic self-determination for all Zimbabweans, regardless of race or ethnic origin. During colonial and white-minority rule, a justiciable set of individual rights did not exist for all the country’s inhabitants. Indeed, the white settler regime of Rhodesia had constructed their political system around the entrenchment of political power in the hands of the white population. To ensure this, laws were put into place that valued the rights, liberties and aspirations of the white minority over those of the black majority. In effect, a hierarchy of rights was created where one set of rights (for whites) insidiously undercut a secondary set of rights (for blacks.) Independence should have provided the opportunity to strengthen individual rights that had been lacking during the Rhodesian era. However, the constitution still retained its colonial inheritance. Indeed, for the first ten years of independence, a state of emergency made it impossible for the courts to enforce certain rights- such as liberty, movement, speech, assembly and association. Furthermore, until 1985, section 26(3) exempted all existing law from court scrutiny in regard to the Declaration of Rights. Existing Rhodesian legislation exempt under this clause extensively derogated individual freedoms. Even after the state of emergency lapsed in the 1990’s, the State still maintained laws that were offensive to the principle of civil and political liberties. The worst of these was the Law and Order (Maintenance) Act, promulgated by the white minority government in the 1960s to suppress black nationalist dissent against their racialized system of laws. This law has today been effectively and cynically used against the ruling party’s opposition, much in the same way the Smith regime had used it against its own opponents. Rather than amend the constitution to remove such offensive and anomalous legislation to increase or ensure individual entitlements, the government has made many amendments since independence that have taken away or encroached on entitlements that are supposedly guaranteed in the Declaration of Rights. However, the power of the Law and Order (Maintenance) Act has been substantially eroded over the years by a number of Supreme Court decisions. These decisions have been corrected by the widespread use of Constitutional amendments, and the most recent passing of the Public Order and Security Act, an act that has been condemned both by local civil society and the international community. The Declaration of Rights The Declaration of Rights is a set of basic individual rights that are by law entitled to all Zimbabweans. Many of these rights were adopted from the universally accepted individual rights derived from international covenants as well as the Universal Declaration of Human Rights. The rights guaranteed are: the right to life, and personal liberty; the protection of the law, including right to fair trial and to be presumed innocent; freedom of movement, conscience, expression, association and assembly; protection from arbitrary search and entry, inhumane treatment, slavery or forced labour, deprivation of property, and protection from discrimination on grounds of colour, creed, tribe, gender, place or origin or political opinion. Although, no law or action may be made which will derogate from these rights, these rights are qualified by a general claw-back clause. This claw-back clause, or limitation, states, “limitations [are] designed to ensure that the enjoyment of…rights and freedoms by any person does not prejudice the public interest or the rights and freedoms of other persons.” (Preamble) This allows the government some room for interpretive discretion, especially when defining what is in the public interest. This perhaps opens the door for the deprivation of rights. AMANI TRUST: Neither Free nor Fair: High Court decisions on the petitions on the June 2000 General Election.