and whereas it is the duty of every person to respect and abide by the Constitution and the
laws of Zimbabwe, the provisions of this Chapter shall have effect for the purpose of
affording protection to those rights and freedoms subject to such limitations of that
protection as are contained herein, being limitations designed to ensure that the
enjoyment of the said rights and freedoms by any person does not prejudice the rights and
freedoms of others or the public interest.”
Similar wording, but in the form of a preamble to the Declaration of Rights, was
contained in the Constitution of Southern Rhodesia 1961, the Constitution of Rhodesia
1965, the Constitution of Rhodesia 1969, and the Constitution of Zimbabwe-Rhodesia
1979. The up-graded status of s 11 in the present Constitution signifies that it is to be
regarded as a substantive provision conferring rights on the individual. Although
commencing with the word “Whereas”, it underscores that “every person in Zimbabwe is
entitled to the fundamental rights and freedoms of the individual”, and stipulates in
positive terminology that the provisions of Chapter III shall have effect for the purpose of
affording protection to those rights and freedoms itemised as (a) (b) and (c), subject to
such limitations as are contained in the whole of Chapter III being designed “to ensure
that the enjoyment of the said rights and
Page 55 of 1994 (1) ZLR 49 (S)
freedoms by any individual does not prejudice the rights and freedoms of others or the
public interest.”
In Dow v Attorney-General [1992] LRC (Const) 623, a decision of the Appeal Court of
Botswana, Amissah JP, at 636e-637b, considered the identically worded s 3 of the
Constitution of Botswana. He viewed it, most aptly, as “the key or umbrella provision” in
the Declaration of Rights under which all rights and freedoms must be subsumed; and
went on to point out that it encapsulates the sum total of the individual’s rights and
freedoms in general terms, which may be expanded upon in the expository, elaborating
and limiting sections ensuing in the Declaration of Rights.
This analysis of the scope and impact of s 3 is particularly apposite to that of s 11 in the
Constitution of Zimbabwe, and I respectfully associate myself with it. Pertinently put,
s 11 guarantees to the individual in para (b) freedom of conscience, of expression and of
assembly and association, subject to their enjoyment and exercise not prejudicing the
rights and freedoms of others or the public interest.
Section 20, in relevant part, reads:
“(1) Except with his own consent or by way of parental discipline, no person shall be
hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold
opinions and to receive and impart ideas and information without interference, and
freedom from interference with his correspondence.
(2) Nothing contained in or done under the authority of any law shall be held to be in
contravention of subsection (1) to the extent that the law in question makes provision —
(a)
in the interests of defence, public safety, public order, the economic interests of
the State, public morality or public health;
…
except so far as that provision or, as the case may be, the things done under the authority
thereof is shown not to be reasonably justifiable in a democratic society.
…