IFSDZ Paper 9 July, 2011
Political Rights and Democracy
The fundamental rights provided under the Constitution of Zimbabwe just like similar basic rights provided in other international legal instruments are not only interrelated but interdependent because the fulfilment of one right often depends on the fulfilment of the other. In other words one cannot be fully exercised or enjoyed if another right is denied and such is the indivisibility of human rights. The preamble to the Universal Declaration of rights is revealing to the extent that it makes it clear in this international pledge that the human rights are inherent meaning that human beings are born with them and therefore, they are not given by any authority. The relevant part of the preamble reads ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,’ This conception of the fundamental rights makes human rights naturally primary (in other words, they exist first from the beginning hence the element of inherency and thus inseparable from the benefiting subject, that is the human being). When a Bill of Rights is contained in the Constitution, it merely affirms what human beings are naturally born with that is, it stand as a written expression of affirmation of natural rights that accord all human beings with dignity and personhood regardless of one’s social standing. So fundamental is this conception of basic human rights that its disregard is repugnant to modern human civilisation. What therefore informs this exposé is the value proposition in Article 1 of the Universal Declaration of Human Rights which states that ‘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.’ Therefore, if human beings are born with their freedoms then that makes such basic freedoms inherently linked to the concept of humanity.
Linked to this belief and natural entitlements is the concept of participatory democracy which states inter alia that every citizen must be free to participate in the political affairs of his or her country without undue hindrance and to be able to compete for public office against any individual who may have chosen to do likewise. Implied in this belief are natural rights to freely speak, criticize or encourage those in public offices, the ability to engage with others in political debates that promote democratic pluralism and the freedom to associate with or belong to any political party or ideological group of one’s choice. The understanding of the value of democracy is that it is meaningless without the participation of the citizens in the political affairs of a State. Therefore, the exercise of political rights by the citizenry is critical in the definition of democracy and the protection and respect for political rights is so fundamental that any failure on this duty is a negation of democracy itself and the concept of basic human rights.
The current Zimbabwean Constitution provides for the protection of freedom of Expression and freedom of Assembly and Association guaranteed in Sections 20 and 21 respectively. These basic rights are critical in enabling the citizens to exercise and enjoy political rights guaranteed in section 23A of the Constitution. Regrettably, there exists in the Zimbabwean legislative spectrum, some laws that undermine the interrelated and indivisible relationship between sections 20, 21 and 23A of the Constitution to the extend that the political rights granted in section 23A of the constitution end up being applied for instead of them naturally accruing to the citizens of this country. Perhaps, politicians are either irrational or selfish individuals who are only concerned with their own individual interests and not those of the citizens at large and yet the power and legitimacy to govern is given by the people. The relevant provisions of section 23A read:
‘(1) Subject to the provisions of this Constitution, every Zimbabwean citizen
shall have the right to;
(a) free, fair and regular elections for any legislative body, including a local
authority, established under this Constitution or any Act of Parliament;
(b) free, fair and regular elections to the office of President and to any other
elective office;
(c) free and fair referendums whenever they are called in terms of this
Constitution or an Act of Parliament.
(2) Subject to this Constitution, every adult Zimbabwean citizen shall have the
Right;
(a) to vote in referendums and elections for any legislative body established
under this Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office. ‘
What lies at the core of political rights under our constitution are two profound values and freedoms. Firstly, these provisions accord to every citizen the right to vote in regular elections and referendums that may take place within the country and to do so freely and fairly. Secondly, they further accord to every citizen the right to stand for public office and if elected, to hold office. Inability by citizenry to enjoy and exercise any of these core constitutional values fundamentally undermines what should make us an organised and progressive people that is, the freedom to respect each other’s personal choices within the context of our constitution. To put is crudely, any constraint that any Zimbabwean administration may impose on the exercise of section 23A rights is an affront to the very essence and ideals of our liberation struggle. At the centre of the liberation struggle was the fight for the restoration of our dignity and power to self govern that our colonial oppressors had denied our ancestors. Our forerunners could neither vote nor stand for public office and such was the evil of the colonial past and yet as aptly put by Sachs J in August v Electoral Commission ‘the vote of each and every citizen is a badge of dignity and personhood’[1]. Voting is an end which certifies the citizenry with dignity and personhood, however, what is equally important is the process that yields this profound end.
Without free speech and assembly, political rights are meaningless. Within, the context of the theoretical framework of human rights that identifies them as inherent, their nature of is such that there must never be a time when they are asked for even in terms of any legislation because human beings are born with their basic rights. Regrettably, Zimbabwe Zimbabwe
The greatest risk that we now face as a nation is that our ‘dignity and personhood’ that should be personified in free political participation is ‘under siege’ from some elements within our populace that are revolting against what the Zimbabwean Flag represents. Nobody needs to be reminded that the political freedom that we now have was bought by the blood and sacrifices of the courageous sons and daughters of this country and as such, our political freedom must never be requested or begged for from anyone ever again. It belongs to every citizen and every citizen is born with them. Our political freedom is now an inherent legacy that was bestowed on the current and future generations of this country and no one person has the authority or qualification to give licences, permissions or authority to any citizen to exercise their political rights as individuals or groups. We are born with such rights and it is, therefore, an unforgivable misnomer for any black Zimbabwean to purport to grant permission to any person before they can exercise their rights. It is inconceivable that any rational administration would require citizens to apply for permission to exercise basic rights that they were born with. This is not to say that the natural rights we have are absolute because as individuals or group exercise their political rights they are also naturally bound to respect other citizens’ rights too. The contention here is that any law that requires any political party or individual to seek permission to exercise their political rights is unconstitutional and is an affront to the inherent entitlement that human beings have to basic fundamental rights. The duty of the state is therefore ensure that those that will be exercising their fundamental rights do so freely and the State must only intervene to maintain order in the unfortunate event of disorder arising. The citizens must, therefore, never beg for what belongs to them from birth.
In this respect, therefore, to the extent that the Public Order and Security Act requires political parties to apply for permission from a police officer to assemble for political purposes is reminiscent of our oppressive past and surely stands against what the our badge of freedom, the Zimbabwean Flag represents. The detention centres at Hwahwa and Gonakudzingwa were evil shrines that epitomised the cruel disenfranchisement that our people suffered at the hands of imperialist forces. The constraints and restraints imposed on our people by the oppressive white minority government, in power then, from freely associating, assembling and speaking their political views symbolised revoltingly disgust political misconduct which was anathema to human civilisation. The purchase price paid for our political freedom was sacrificially exorbitant and was paid through the lives and blood of the sons and daughters of Zimbabwe and therefore, no one must ever deny any citizen of this country the freedom to exercise their political rights, that is to freely engage others in political discourse, join or belong to a political party of one’s choice, freely campaign for public office and to compete for election into any public office against anyone because this is what the Zimbabwean flag, which is our badge of freedom, dignity and personhood, stands for. POSA is therefore a curse on the lives and blood of those that sacrificed their lives for our liberty because it reincarnates the Law and Order Maintenance Act that was used by our oppressors to torment and frustrate our liberators. Political violence and intimidation are cancerous to the bones of our political struggle as a nation. Our beautiful flag must cover us as one people who accord each other natural respect even in the beauty of our diverse political opinions and the exercise of basic political rights must never be begged for at Police Stations or from anyone or anywhere else because the Bill of Rights is our natural legacy that we are all inherently entitled to enjoy from birth. It is that which gives us our individual dignity and personhood.
Lyndon T. Nkomo
Institute of Free Speech and Democracy in Zimbabwe
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