BILL OF RIGHTS

The starting point is to refer to the American case of West Virginia State Board of Education
v. Barnett 319 US 624 [1993] where it was stated, “The very purpose of a bill of rights was to
withdraw certain subjects from the vicissitudes of political controversy to place them beyond the
reach of majorities and officials and to establish them as legal principles to be applied by the
courts. One’s right to life, liberty and property, free speech, free press, freedom of worship and
assembly and other fundamental rights may not be submitted to vote, they depend on the
outcome of no elections.”

The bill of rights therefore provides a set of rights which cannot be taken away by Parliament
except through an amendment of the bill of rights itself. These are rights which belong to persons
by virtue of them being persons. To qualify for a right in the bill of rights al what is required is to
prove being a person. It is important to make a distinction between human rights in general and
the justiciable rights under the Zimbabwean constitution. If a right is not in the bill of rights it
can’t be enforced in the courts as a constitutional right – it may still be a human right.

Zimbabwe’s bill of rights is in Chapter 3 of the constitution. It stretches from Section 11 to

Section 24.

 Section 11 – This is a preamble

 Section 12 – Right to life

 Section 13 – Right to liberty

 Section 14 - Freedom from forced labour

 Section 15 – Freedom from inhumane or degrading treatment

 Section 16 – Right to private property

 Section 17 – Freedom from search or seizure

 Section 18 – Right to protection of the law

 Section 19 – Freedom of religion and conscience

 Section 20 – Freedom of expression

 Section 21 – Freedom of assembly and association

 Section 22 – Freedom of movement

 Section 23 – Freedom from discrimination

  Section 24 – Sets out the procedure of enforcement by the Supreme Court directly

If a right cannot be accommodated by one of these sections, it is not constitutionally protected in

Zimbabwe (See Banana case where the Supreme Court dismissed Banana’s attempt to have
what was termed consensual sodomy protected under Section 23. The argument was that as
consensual sex between a male and a female was protected, it constituted unlawful
discrimination not to grant similar protection to two males. This was a 3-2 decision with Gubbay
and Ebrahim agreeing with Banana). If Banana was in South Africa there would have been no
prosecution because the South African bill of rights accepts his argument. (See also Madzingo
case, where the right to vote is not in the bill of rights).

The Supreme Court is given a special role to enforce the bill of rights. Its track record in this
regard is ambiguous – sometimes adopting a very generous interpretation. The Dumbutchena and
Gubbay benches have adopted an expansive interpretation while the Chidyausiku bench has
tended to be restrictive. Section 24 gives any person the right to approach the courts directly. The
issue of locus standi has proven to be problematic in some cases. In CCJP v. Attorney-General
1993 (1) ZLR 164 Gubbay CJ opened the gates with an expansive approach to locus standi.
Chidyausiku CJ is busy closing them (See S v. Tsvangirai 2002 (1) ZLR 204)

ANZ v. Minister of Information and Publicity 2003 (1) ZLR 131

The Supreme Court invented the “clean hands doctrine” – the Daily News was not allowed to
approach the courts because it had “dirty hands”. The dirty hands were that it was already
operating contrary to law.

Further, in any proceedings in a lower court, these maybe stayed pending an application in the
Supreme Court for on the constitutionality.

International Human Rights instruments only become part of the law of Zimbabwe if two things
have happened, namely

1. Ratification

2. Incorporation in an Act of Parliament