Mr Winston Churchill, speaking in the House of Commons in 1910, spoke the following words:
“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm, dispassionate recognition of the rights of the accused, constant heat-searching and a desire and eagerness to rehabilitate are the symbols, which in the treatment of crime and the criminal, mark and measure the stored up strength of a nation, and are a sign and proof of the living virtue in it.”
Those wise words spoken so long ago deal with the rights of criminals and link between respect for those rights and civilisation. Today I come to speak to you about the rights of Zimbabweans and the words of Winston Churchill ring even truer in that regard. There is without doubt a correlation between respect for the rights of a country’s citizens and the degree of civilisation. The Government which respects the rights of its citizens can justly claim to be democratic and civilised. A Government which show scant regard for the rights of citizens can be justly termed undemocratic and uncivilised.
I have been asked today to come and speak to you about an amendment to our Constitution brought by the ZANU (PF) Government which will have the effect of withdrawing rights if passed into law. The 14th Amendment to our Constitution seeks to amend the Declaration of Rights contained in our Constitution. It needs to be said at the outset that not one of the 13 amendments to our Constitution passed already have had the effect of enhancing rights. Every one of them has had the effect of detracting from the rights of citizens and entrenching ZANU (PF)’s hold on the reins of power. The Constitution has been butchered to such an extent that we now have one of the most outdated and restricted Declaration of Rights in Africa and this process continues with the proposed 14th Amendment.
The History behind the 14th Amendment
The proposed 14th Amendment can be traced back to 1stJune 1992. On that day the Zimbabwe Congress of Trade Unions asked for permission to hold a public demonstration in Harare. Permission was refused by the police and notwithstanding that refusal the ZCTU went ahead with the demonstration on 13th June 1992. Members of the ZTCU were arrested and subsequently charged with contravening Section 6 of the Notorious Law and Order Maintenance Act for holding a procession without permission. The trade union movement challenged the criminal prosecution in the Supreme Court arguing that Section 6 of the Law and Order Maintenance Act was ultra vires Section 20 and Section 21 of the Declaration of Rights which enshrines freedom of expression, assembly and of association respectively.
On 13th July 1994 the Supreme Court ruled in their favour in the case re Manhemeso and others 1994 (1) ZLR 49 (S). In the course of the judgement the Supreme Court ruled that Section 11 of the Constitution was more than just a preamble. The Court ruled that it had substantive rights. At page 61 of the judgement the Chief Justice Gubbay said:
“The purpose of Section 11 – key or umbrella provision in the Declaration of Rights – is to strike necessary accommodation between the enjoyment of freedom and potential prejudice resulting from the exercise both to others and to the public interest”.
The ruling of the Supreme Court was significant in that it established that some of the rights spoken about in Section 11 were enforceable. For example the only place in the Declaration where the right of privacy is mentioned is in Section 11(c). Had Section 11 been declared to be simply a preamble then it could not have been argued that Zimbabweans had the right to privacy. The relevance of this section will become apparent later on in my talk.
The second major event leading to the proposed amendment occurred in 1994. For several years Government through the Department of Immigration had employed a discriminatory practice in terms of which female citizens were not entitled to have their non-citizen husbands reside in the country with them. Male citizens, on the other hand, were entitled to have their wives reside with them. In May 1994 the Bulawayo Legal Projects Centre challenged this policy and argued in the Supreme Court that a wife’s freedom of movement, enshrined in Section 22 of the Constitution, was infringed by Government’s policy. The argument was fairly straightforward. Women have the right to marry and the right to family life. If women are not entitled to reside with their husbands in Zimbabwe they are faced with the dilemma of either having to live apart or to live outside Zimbabwe. If wives are forced to live outside of Zimbabwe their freedom of movement is infringed.
The Supreme Court agreed with us and ruled that wives have the right to have their foreign husbands reside in Zimbabwe with them. In the judgement the Supreme Court once again stated that Section 11, the preamble provision I mentioned earlier, was the “key and umbrella” provision from which all other rights must be subsumed.
The Bulawayo Legal Projects Centre case, which we shall call the Rattigan versus Chief Immigration Officer 1994 (2) ZLR 54 (S) was followed by a further case at the end of 1994. In the case of Salem v Chief Immigration Officer 1994 (2) ZLR 287 the Supreme Court took the rights enunciated in Rattigan V Chief Immigration Officer a step further. It ruled that the right to reside in any part of Zimbabwe without the right to have one’s husband engaged in gainful employment was unduly restrictive on the wife bearing in mind that husbands are usually the main breadwinners in any family. Accordingly the right of foreign husbands to work in Zimbabwe was enshrined in this case.
After the Bulawayo Legal Projects Centre won the Rattigan case in 1994 the Department of Immigration was faced with a flood of applications brought by Zimbabwean females to have their non-citizen husbands reside in the country with them. The Department of Immigration adopted a contemptuous attitude to the judgement resulting in a number of High Court applications being brought against them. In some instances they refused to grant permanent residence permits and in 1995 the Bulawayo Legal Projects Centre commenced a further application in the High Court against Immigration Department officials to have them held in contempt of the Supreme Court. The Immigration Officials at the eleventh hour relented and permanent residence permits were granted.
Read on David Coltart website: http://www.davidcoltart.com/1996/08/speech-by-david-coltart-objections-to-the-14th-amendment-to-the-zimbabwe-constitution/