Human rights and the draft constitution

Opinion by Tino Chinyoka

Money permitting, Zimbabweans will go to a referendum for the second time in less than 15 years to vote on a new Constitution for the country. The first attempt was voted down in what was the first electoral defeat for Zanu (PF).

The reasons why it failed are outwith this piece, except to observe that as with the current attempt, the main NGO focused on constitutional change (the NCA) is opposed.

Looking at the section dealing with human rights in the new constitution, one is immediately stuck by the number of constitutionally mandated ‘rights’. From the usual civil and political suspects like right to liberty, equality before the law, fair hearing etc are added more NGO inspired rights like those to housing, healthcare, 3 Language and culture, education, food and water.

While an examination of how broad some of these rights are stated (does a right to strike mean that employers can’t do anything to maintain their businesses, such as hiring other people; since hiring other people to carry out the same work defeats the purpose of a strike in that the employer has no incentive to negotiate if all is well?) will be the subject of a different critique, it is important to note for present purposes that many of these rights are stated in language that is very aspirational and seems to place too heavy a burden on the government that might end up undermining their very purpose.

If a government fails to respect human rights because (even with the best will in the world) it cannot, a culture develops where human rights lose their sanctity.

The focus of this piece is on the overall tenor of the rights that our people will soon be voting on. It is my belief that human rights must have a foundation in the culture and history of the country in order to be of any import. I believe that the draft constitution tries this somewhat, but because such attempts are accidental as opposed to deliberate, they fall short.

A case in point: the people of Matabeleland – and, while we are here, when are we going to change these colonial names? Matabeleland? Surely? KwaNdebele, Mzilikazi, Lobengula; all good possible provincial names- anyway, the people of the misnamed provinces in the southwest suffer from perennial droughts. The draft constitution seems to guarantee them a right to water, but notice that it says ‘potable’ water.

That prevents an imaginative lawyer from suing the state to implement the Zambezi water project, because that would be too expensive, and is not ‘potable water’. So, when the people in these provinces go to the referendum, and crafty politicians extoll the virtues of this draft and how it guarantees them a right to water, how many will know that it’s only water in tumblers, migomo, bottles and other potable objects that they will be guaranteed, and not the pipeline?

Does the right to marry guarantee a right to enter into polygamous unions? Because as stated, it clearly says that “Everyone who has attained the age of eighteen years has the right to marry and found a family, and no such person may be prevented from entering into a marriage”.

A polygamous marriage is still ‘a marriage’. To what extent can this be reconciled with efforts to remove women from these unions? (Was my good friend Jessie Majome there when they agreed this right, because I know she wouldn’t stand for it!)

And, to what extent is culture, which is given a right of its own in the draft, a part of the thinking behind the rights in the draft?

The Universal Declaration of Human Rights enumerates many of the rights in the draft, but that was always an aspirational document. The constitution of Zimbabwe will be the law of the land. For this reason, the rights it enumerates must have meaning and application in Zimbabwe.

Proponents of universalism (which in this case means the principle that all human rights must be accorded to all people, no matter who or where they live) hold that certain human rights, like the right to equal protection, fair trials, free speech, freedom of religion and free association are and must be the same everywhere, though they do recognise that many such rights allow for historically and culturally influenced forms of implementation or realisation.

The cultural relativist view is that human rights law and discourse in each society must be influenced by an interaction of all these factors. In order to assess whether universal human rights law need to be understood within the cultural, historical, political, social and economic aspects of a society.

It is all too easy to say that local issues and the respect of local customs as an argument against universal human rights norms ‘is mostly raised by states and liberal scholars, and rarely by the oppressed,- who are only too anxious to benefit from perceived universal norms.’

However, this is a mildly blinkered and paternalistic view, which assumes that local contexts and culture are necessarily oppressive. It also fails to accept that ‘human rights, embedded in cultural assumptions about the nature of the person, the community, and the state, do not translate easily from one setting to another’ .

Some human rights writers believe that the tension that is believed to exist between universalism and cultural relativism assumes that cultures are frozen in time, and are static entities, that they are of necessity traditional and made up of unchanging and longstanding practices, and ignores the patently obvious fact that all cultures undergo constant transformation and reshaping.

Like one author said ‘It is ironic that the human rights system tends to promote its new cultural vision through a critique of culture.’

It is a fact that culture, tradition and claims to cultural identity are always contested within communities. And, sometimes, where the culture argument is raised in opposition to human rights norms, it is no more than ‘an indiscriminate lumping together of self-serving claims by elites of communities’.

The claim here is that there sometimes is a tendency by some states or local communities, in their resistance to human rights norms, to resort to a political misuse of culture. However, raising the issue of culture does not always equate to opposition to universal human rights norms and laws, but may well be an unavoidable and very necessary attempt to flag up issues within the local context that need examination in order to find an accommodation between the two.

And it is all too easy to presume that human rights are not an expression of culture; when the reality is the opposite. Civil and political rights at the very least are the necessary product of a Judeo-Christian tradition that dates back to the Ten Commandments of the Christian bible.

It is the tension that comes when the transnational and universal ideas of human rights come into contact with local customs and norms that bears analysis. Since concepts of what is right and what is wrong, of good and evil are found in all societies, ‘what is held to be a human right in one society may be regarded as anti-social by another people, or by the same people in a different period of their history’

The same Western society that burned Galileo for saying the earth was round later found such beliefs in colonised locales as primitive. In Zimbabwe, both President Mugabe and Tsvangirai agree that homosexuality is evil, despite latter’s commitment to liberal democratic principles.

The idea that societies must be synchronised to think and act alike is absurd. An example will suffice to illustrate this absurdity. The NGO community (and the draft) in Zimbabwe rallies for, among other things, freedom of movement, in a culture where the concept of trespass does not exist: in their haste to impose their values, these Western liberal human rights opponents fail to realise that we already have a more robust right to free movement – you can show up at anyone’s house and cut across anyone’s fields and even help yourself to some watermelons just so long as you stop by to say ‘Makadini (how are you)!

The notion that human rights are universal and intrinsically good does not make any allowances for the possibility that in some local situations, some rights may not be appropriate. The attempt to foist a one-size-fits-all human rights prescription on the African continent by the NGO community assumes without foundation that all ‘rights’ trump all culture.

This is not only wrong, but very paternalistic and insulting. A failure to take into account the specific features of the local cultural context ignores the fact that there are issues of a universal nature that might already be at play within the local arena, such as in the example above regarding the right to freedom of movement.

In addition, it creates a false fight between culture and human rights, instead of allowing the development of culture in a human rights centred trajectory. The result is that culture is presented as arrested in time, while human rights thereby appear alien and unwelcome.

Can a society that guarantees all civil and political rights but very few social and economic rights be said to have an effective human rights regime? And, what happens in a situation where the only way to guarantee social and economic rights for the majority requires that a minority should lose their property?

The first instinct here would be to say that nothing justifies dispossessing a minority to satisfy a majority, for where are told that democracy (and human rights) is about protecting the individual or minority from the tyranny of the majority.

However, what if the minority in question acquired the property that they have through wholesale theft and chicanery? What if the majority were deceived, cheated and beaten off their land so that a minority could parcel it out to themselves on the basis of colour alone?

This is what happened with our land in Zimbabwe. Do we let the minority keep the land just because the common belief is that they have rights to property and know how to use the land productively? Well, as President Mugabe once said;

“The fact that the person that stole my car has a driving licence does not justify him keeping it.”

But, we digress. The answers to these questions cannot be a simple yes or no. Rather, they must depend on whether conditions have been put in place that constitute the structural basis on which human rights can grow, and take hold in future.

Taking note of the local context to put in place conditions that will adapt human rights from within is ultimately more important that seeking to transplant whole human rights conventions, with commas, semi-colons and apostrophes, into a society without any attempt to check whether the conditions suit.

There must be a sense that evolutionary practice with very minimal outside prodding/cultivation will ultimately bring about effective human rights regimes in all locales, while transplantation leads to resistance.

Local knowledge is also important in order to foster both understanding and implementation of universal human rights norms. It is important to avoid making value judgements about what cultural standards must be maintained or go altogether.

A lot of what the West believes about Africa is false, based on the writings of so-called Africa experts whose claim to such expertise is that they visited the continent and them went home to write about it.

Such apparent lack of local knowledge makes the message questionable, as recipients ask why they should trust something coming from someone that seems to have no idea about who they are and where they come from. Very few of these experts are African. Very few live in Africa.

Imagine this: if President Mugabe started campaigning about the rights of the Eskimo people in Canada, he would be condemned as someone who does not have enough knowledge on the subject, corrected on the fact that their correct name is Inuit, and asked why he worries about oppression in Canada when his people don’t have basic rights.

Yet, these same people see no problem with coming to our lands and lecture us on rights, while they lie and mislead their populations into destructive wars, invade their citizens’ rights to privacy through widespread wire-tapping and actively put in place measure, like in several states in the USA, to stop minorities from voting. Following the Florida debacle of 2000, how many foreign observers have been sent to the USA to check that elections are not rigged once again?

It is true that there are certain areas where it must not matter where the local context is in its development/acceptance of rights; where universal human rights norms must always take precedence. However, such areas are not hard to identify: for example; there would be no society that would argue a local context to justify torture. Still, “rights need to be presented in local cultural terms so as to be persuasive, but must challenge existing power relations to be effective”

Anyone seeking to impose their culture on others must not assume that just because they have clothed it in language that does not identify it as culture, it ceases to be. The relationship between proponents of the human rights agenda coming from the West and their intended recipients must be grounded in respect, not paternalism.

The draft constitution that Zimbabweans will vote on leaves a lot of these issues unanswered. This is a mistake. The making of a constitution must not be rushed, and must not be a question of imposing one political will over another. Instead, a constitution must derive its legitimacy from the people, and reflect their cultural and social characteristics.

The wholesale importation of notions from other jurisdictions because they sound good runs the risk of becoming irrelevant once faced with the socio-cultural realities of Zimbabwean society. The fact that not many people can enumerate the rights in the draft without the benefit of a document to remind them suggests that this draft is, in fact, not of the people, by the people, for the people. Sadly.

Tinomudaishe Chinyoka is a Zimbabwean lawyer