The draft constitution seeks to explicitly cancel the right of Zimbabweans to appeal to a supreme legal body to protect their fundamental rights.
It also aims to deny any compensation from the Zimbabwe Government for land that has been taken from the rightful owner, stating: “no compensation is payable in respect of its acquisition.”
Furthermore, it directly prevents anyone applying to a court regarding compensation for land: “no person may apply to a court for the determination of any question relating to compensation.”
The draft says that land can be acquired simply by a notice in the gazette “whereupon the land vests in the state with full title with effect from the date of the publication of the notice…”
And most alarmingly, it says in section 4.29(3)c that discrimination is now legal: “the acquisition may not be challenged on the grounds it was discriminatory…”
Douglas Mwonzora, the MDC spokesman, welcomes the move because take-overs in the future will now be able to be done “legally”!
To those of us who do believe in democracy, human rights and the rule of law, this part of the new constitution has to be labeled as retrogressive in the extreme.
How can anyone who champions human rights not speak out against section 4.29? How can anyone endorse a new constitution that explicitly contradicts itself by going against other parts of the draft constitution?
The situation is reminiscent of George Orwell’s 1945 masterpiece of totalitarian evolutionary satire, Animal Farm. At the time of liberation, the Seventh Commandment of the animals said: “ALL ANIMALS ARE EQUAL.” In reality, all over the world, every constitution has equality as a founding principle. In Zimbabwe, equality and the freedom from discrimination only applies to one section of Zimbabwe’s new draft constitution. In section 4.29 of the draft, the rule of equality is dashed.
I wish to expand on what happened in Orwell’s book after the Seventh Commandment of equality had been written: “Some years later when Clover, the old horse, looked at the wall on which the commandments were written, she said, ‘My sight is failing. Even when I was young I could not read what was written there. But it appears to me that the wall looks different. Are the Seven Commandments the same as they used to be, Benjamin?’
For once Benjamin [the donkey] consented to break the rule, and he read out to her what was written on the wall. There was nothing there now except a single Commandment. It ran: “ALL ANIMALS ARE EQUAL BUT SOME ARE MORE EQUAL THAN OTHERS.”
After that it did not seem strange when next day the pigs who were supervising the work carried whips in their trotters.”
Orwell described Animal Farm as being a satire of a “violent conspiratorial revolution, led by unconsciously power-hungry people.”
By endorsing discrimination like the apartheid regime of South Africa before it, the MDC appears to have cast aside its original principles and joined the ZANU PF revolution of inequality. Indeed the new constitution of Zimbabwe goes further than the Apartheid constitution in explicitly endorsing discrimination and taking away the right to appeal against it.
Section 4.29 also goes against the African Charter on Human and Peoples’ Rights which was adopted at the 18th Ordinary session of the Assembly of Heads of State and Government of the Organisation of African Unity (OAU) on 27 June 1981 in Nairobi and came into force on 21 October 1986. The African Charter undertakes to “eliminate… all forms of discrimination.”
Section 4.29 goes against the Constitutive Act of the African Union adopted by the 36th ordinary session of the Assemblies of the Heads of State on the 11 July 2000, in Togo, which came into force on 26 May 2001 and had an objective to “promote and protect human and peoples’ rights in accordance with the African Charter on Human and People’s Rights (ACHPR) and other relevant human rights instruments.”
Section 4.29 goes against the Cairo Declaration on Human Rights in Islam and the Arab Charter on Human Rights regarding discrimination.
It goes against Article 1 of the Charter of the United Nations which aims at “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”
The new constitution of Zimbabwe, in allowing discrimination, goes against the Universal Declaration of Human Rights, parts of which say:
Article 1 : All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 13: (1) Everyone has the right to freedom of movement and residence within the borders of each state.
Article 17 (1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Article 30: Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Alarmingly, United Nations (UN) conventions like the “Convention Against All Forms of Racial Discrimination” and the “Convention on the Suppression and Punishment of the Crime of Apartheid” will also be brazenly violated.
The Southern African Development Community (SADC) Treaty will be violated. It is clear that the ruling of the SADC Tribunal in the Campbell Case on the issues regarding section 4.29 of the constitution is being deliberately disregarded.
The SADC Tribunal stated that “the respondent [the Zimbabwe Government] cannot rely on its national law, its constitution, to avoid an international law obligation.”
It is apparent that the will of the people is also being disregarded.
Most of all it is evident that God’s blue print, written on the Ten Commandments, is being smashed to the ground.
Daniel Webster commented that “God grants liberty only to those who love it and are always ready to guard and defend it.”
If the likes of Douglas Mwonzora, the MDC spokesman, continue to believe that legality can be founded on precepts that are fundamentally flawed, Zimbabwe will continue to fail. Investment will not be attracted and development will not take place. Food security will remain dire and education and health will continue to suffer. The will of the people will have been betrayed.
Just as happened in Animal Farm, and throughout the thousands of farms that were violently stolen without compensation over the last 12 years, destruction will continue to be the order of the day.
Post published in: Opinions & Analysis
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