Speech By David Coltart: Objections to the 14th Amendment to the Zimbabwe Constitution

Objections to the 14th Amendment to the Zimbabwe Constitution

By David Coltart

5th August 1996

Rotary Club South

Introduction

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 14^th 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 The Constitution has been butchered to such an extent that we now have one of the most outdated and restricted Declaration of Rights in Africa and this process continues with the proposed 14^th Amendment.

The History behind the 14^th Amendment

The proposed 14^th Amendment can be traced back to 1^stJune 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 13^th 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 13^th 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.

The 14^th Amendment

It is in this context that Government has now brought the 14^th Amendment in the Constitution. In essence the 14^th Amendment will take away:

1. The right to be a citizen by birth if at least one of the child’s parents is not a citizen;
2. The right of privacy enshrined in Section 11 of the Constitution and;
3. The right to have one’s non-citizen/foreign wife or husband live in Zimbabwe if she or he is not a Zimbabwean.

The effect of the 14^th Amendment is to reverse the Supreme Court decision in Rattigan v the Chief Immigration Officer and to further detract from the rights of citizens. I shall deal with these three major changes individually.

The right to be a citizen by birth

At present children born of parents who are ordinarily resident in Zimbabwe are entitled to obtain Zimbabwean citizenship. The proposed Amendment will restrict citizenship by birth to children both or either of whose parents are citizens of Zimbabwe. The proposed amendment runs directly contrary to the assurance given by Government when it passed the Citizenship of Zimbabwe Act Chapter 4:01 1984. This was the Act that prohibited dual citizenship. At the time the Act was promulgated, citizens were given the assurance that the only right that would dramatically affect residents who did not keep their Zimbabwean citizenship would be the right to vote. Section 9(8) (e) states that citizens shall be entitled to do all such things as may be done by persons who are ordinarily resident in Zimbabwe. The proposed Amendment constitutes a dramatic change in this position and runs contrary to accepted international forms. It potentially will result in children of residents of Zimbabwe becoming stateless.

The right to privacy

The 14^th Amendment will re-enact Section 11 of the Constitution preamble. In other words it seeks to make clear that Section 11 of the Constitution does not have any substantive rights. Whilst most of the rights dealt with in Section 11 are covered by other sections contained in the Declaration of Rights as stated above, the right to privacy is not specifically stated anywhere else in the Declaration of Rights. Accordingly, Government is abolishing the right to privacy and one is no longer protected against the details of one’s private life being published, one’s telephone being tapped and other rights enjoyed by citizens elsewhere in the world. Government has come up with some disingenuous arguments that the right to privacy is contained in other sections of the Constitution, but the fact remains that the phrase “right to privacy” is not found anywhere else in the Declaration of Rights.

The right to have foreign spouses

As stated above, the 14^th Amendment removes women’s right to have their foreign husbands in the country. It goes further to remove the right that Zimbabwean males used to have and in theory at least a gender neutral approach will be adopted. The memorandum attached to the Bill of Rights states that “in future such foreigners will be subjected to ordinary immigration selection procedures”. The “ordinary immigration procedures” in the past have been dominated by racist, discriminatory, xenophobic and corrupt considerations. The procedures are not stated anywhere and are entirely within the discretion of the Minister of Home Affairs and functionaries within the Immigration Department.

What Motivates Government

Government has been unable to advance coherent reasons for the Amendment. At one meeting held with human rights organisations earlier on this year, immigration officials stated that the amendments were necessary to ensure that racist and criminal elements were kept out of Zimbabwe. I believe that Government is being dishonest and that the reasons for the proposed amendments are as follows:

1. Xenophobia

It is a well known fact that many males who are in the ZANU (PF) hierarchy are fiercely conservative and dislike the notion of Zimbabwean women marrying foreigners. I have no doubt that these amendments are primarily designed to ensure that the discriminatory practice employed before the Rattigan judgement will be employed again. I doubt very much whether wives of Zimbabwean male citizens will be refused permission to reside in the country. I have no doubt that this amendment will be used to frustrate Zimbabwean women from having their foreign husbands reside in the country. Although the proposed changes are gender neutral, given Government’s past performance the policy of Government will in future be sexist and discriminatory. If Government wants to deter criminal elements it can use the criminal laws. They would obviously not be bone fide marriages.

2.   Corruption

The greater amount of discretion given to any department, the greater the prospects for corruption. I am aware that the Department of Immigration is riddled with corrupt officials who have used their wide discretionary powers to extract bribes from people wishing to obtain residence permits. I am aware of two cases where substantial bribes have been paid to ensure that residents’ permits are granted. The ability to extract such bribes was withdrawn as a result of the Rattigan judgement and I have no doubt that if the 14^th Amendment goes through a big enough bribe will ensure that one’s foreign spouse will be able to reside in the country.

3.   Racism

Whilst the Rattigan judgement has benefitted many black women in the country there is no doubt that non-black women benefited disproportionately from the ruling. From my experience of practicing law over the last few years I am left in no doubt that the Department of Immigration frequently racially discriminates against prospective applicants. If you are a black Zimbabwean wishing to return to the country then permits are invariably granted. However, if you are a white, great difficulty is usually encountered in obtaining permission to return. If the discretionary powers of the Department of Immigration are widened as envisaged by the 14^th Amendment I have no doubt that these racist policies will be perpetuated and indeed expanded upon.

4.   Undermining of the Supreme Court

For a number of years I have held the view that the ZANU (PF) Government has done everything in its power to undermine the independence of the judiciary. In the past few years it has reversed Supreme Court decisions on a number of occasions and I am of the view that those amendments have often been motivated by the desire to undermine the respect with which Zimbabweans hold the Supreme Court. The amendments also have the effect of diminishing the respect we have for the Declaration of Rights itself. The Declaration of Rights is meant to embody the fundamental rights of Zimbabweans and should not be amended willy-nilly. When the Supreme Court interprets the Declaration of Rights Government should respect that interpretation.

The Need for a New Constitution

The proposed 14^th Amendment to the Constitution underlines once again the need to hold a Constitutional Conference in Zimbabwe so that the citizens of Zimbabwe, male and female, can decide on what should be contained in our Declaration of Rights. At present our Constitution is being butchered by a small clique of ZANU (PF) males who have shown no respect for human rights in the last 16 years and who show little intention of respecting human rights in the future. A meeting was held with the Minister of Justice and the Attorney General last Monday at which many of the abovementioned concerns were expressed. Government through the Minister of Justice and the Attorney General has indicated that it is determined to push ahead with the 14^th Amendment and no doubt it will become law within the next few weeks. There is precious little we can do to prevent that.

The only thing we can do is to lobby respective Members of Parliament in the hope that they will vote against the proposed amendment. Accordingly, I encourage you all to write letters to your local Member of Parliament and to encourage him or her to vote against this draconian amendment.