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Sharon Hofisi Legal Letters
Generally speaking, the Constitution provides the normative way of describing war veterans in Zimbabwe. In this piece, I consider the last instalment on elaborated rights in the Constitution of Zimbabwe, 2013. Other rights in this regard include women, children, the elderly, and the rights of persons with disability. Because the Constitution broadens the definition of “veterans of the struggle”, there is urgent need to ensure that all those who fit into this description are equally and equitably treated using the constitutional benchmarks.

In setting the tone of this article, allow me to exclude those who feel they were part of the November 21, 2017 revolution, which they equate to the American War of Independence and French Revolution. If there exists in most Zimbabweans the notion that all born before 21/11 ought to receive the roll of honor as some “veterans” I submit that this notion is not yet part of our Constitution.

A realistic appraisal of the rights of war veterans is, however, needed. While one is always on dangerous ground in generalising concerning national characteristics – since the values of the liberation struggle are part of the Preamble, the founding values in Section 3 of the Constitution, and the Bill of Rights, the same cannot be said on the actual realisation of constitutional rights. Every Zimbabwean would agree that human rights are inalienable, indivisible, interdependent and universal – the rights of war veterans included.

Constitutionally speaking, Section 84 of the Constitution considers the following groups of persons to be veterans of the struggle: a) those that fought in the War of Liberation; b) those who assisted the fighters in the War of Liberation; and c) those that were imprisoned, detained or restricted for political reasons during the liberation struggle.

The normative framework under review enjoins the State, faithfully doing what is of its duties, to promote, protect, respect and fulfil constitutional rights as envisaged in Section 44 of the Constitution, to understand that all the persons described above are entitled, or put simply, have a fundamental right to be recognised and to receive pension and access to basic health care.

The fact that the Constitution grants rewards to veterans of the struggle on the basis of some contribution by each group so described gives credence to the need for the State to design laws and policies that ensure that such persons effectively enjoy their constitutional rights. This is especially when regard is given to the fact that the Constitution is both the supreme law and the political map of a country.

Constitutional politicians like me can only interpret the Constitution in light of its givens – the rights and the duties. The State is the primary duty holder and must show how the varying degrees of rewards to the right holder may be justified at both the legal and at policy levels. If it is normatively recognised that there is a reward, it follows that ordinary politicians must also respect such framework.

Now, the Constitution clearly gives us various groups of veterans. We see what it envisages: give them due recognition, cater for their welfare including giving them pensions, and access to basic healthcare. Nothing is clearer than what the Constitution says, whose content is also interpreted using the various methods listed in Section 46 of the Constitution: constitutional provisions; foreign law; international law and so on.

In an attempt to treat the war vets as the measure of their own rights, it can be easily stated that without war vets, the constitutional provisions on their rights would not be in the Constitution. They alone can provide the evidence for the content of their rights: fees for their children, medication, welfare, and even down to farming inputs.

If they are to be complete rights holders, it must be shown that the treatment of war vets stands the normative test; final exam coming at the time when they receive their constitutional entitlements such as pensions. Of course, the rewards may not be the same for all veterans. Let me put it in this way: those who were at the war front may have rewards for such participation; the assistants will be recognised for oiling the liberation machinery; the prisoners will likely be considered for psychological and physical suffering (and have to receive mental health care); the restrictees may need to show how frequent they were prohibited from joining the war front.

In all this, I would say, pitching my argument constitutionally, there is need for a comprehensive State register for all such persons: at ward, district, provincial and national levels. I understand war collaborators are benefiting, yet those who were “chimbwidos” (female assistants) and “mujibhas” (male assistants) to the liberation fighters have not largely been recognised. They are not on Government payroll and this needs urgent review in light of the Constitution.

Because of the interdependence of fundamental human rights, the potential catalyst for the recognition of the rights of all war vets as envisaged by the Constitution is to be found in Section 76 of the Constitution – the right to health care. This right is part of second generation rights or economic social and cultural rights (ECOSOC). Constitutionally, this right includes reproductive health care and care for chronic illness. There is need to ensure that all the war vets who are still procreating benefit from sexual reproductive health and those who have various chronic illnesses are identified and made to benefit.

Under international law, healthcare boasts of developed content in soft laws such as the General Comments and the Universal Declaration of Human Rights (UDHR). Essentially, basic healthcare must be made available; accessible; affordable in a quality manner. Institutionally, civil society organizations such as Zimbabwe Doctors for Human Rights (ZADHR) must also work with the Ministry of Health to ensure that the health laws are fully aligned with the Constitution and also consider the content of soft law provisions under international law.

The evolution and increasing importance of hospice palliative care must also be emphasised so that the needs of every veteran are catered for as envisaged by the Constitution. Because of Budget constraints and general economic downturn, it is important that veterans be clearly advised that the right to basic healthcare is progressively realised (not instant).

Using a human-rights based approach the State has to show the legislative and other measures that show its commitment to fulfilling the minimum content of the right under review. Put differently, there is a minimum threshold that is expected of the State under international law. The State has to show the measures that are biased towards war veterans, simply as rights holders.

The minimum threshold can also be understood by considering the provisions of Section 84 which simply talks about basic healthcare. There is an urgent need for a law to give content to the rights of war veterans as laid out in United Nations Committee on ECOSOC rights’ General Comment No. 14 which deals with the right to the highest attainable right to health.

Most importantly, political will is needed. Interestingly, the President of the Republic of Zimbabwe has benefited immensely from the support of the war veterans. He had, prior to his elevation as President, been overseeing the Ministry of Justice, and was at one stage the leader of Government business in Parliament. Recently, he was conferred with an honorary doctorate in law by the Midlands State University. He has also appointed a new Minister of Justice and confirmed the re-appointment of the permanent secretary for Justice who had been actively involved in the alignment process. The process had been going at a snail’s pace and the hope is that the President will also ensure that this ministry “hits the ground running” to employ his presidential acceptance language.

Further, the permanent secretary in the Justice Ministry has to work with her counterpart responsible for the Defence, Security and War Veterans. For the latter ministry, the merging of the three institutions is important in the grouping of security issues. Those who know the thesis on the confluence between politics and public administration by Woodrow Wilson may consider the need to harmonise the three institutions from a public administration perspective. The President wanted a leaner Cabinet and it was prudent to harmonise the three institutions from a human security perspective. I explained this concept as an emerging concept in one of my previous articles.

The beauty of the merging is steeped in some understanding, to borrow the language of Jabulani Sibanda, and popularised by war veterans, that the war veterans discovered a “bedroom coup”, which led to concerns on party capture in Zanu-PF and State capture which saw the Zimbabwe Defence Forces intervening.

Nationally, on their entitlement to pensions, the war vets may again need to institute a test case or a declaratory order in terms of the standing provision – Section 85 of the Constitution. This will show us how the Public Service Commission can also be involved in ensuring that the rights of war veterans are realised. They are individuals who can use the sovereignty affirmed in the Preamble to the Constitution which places emphasis on the need to extol the liberation ideals. A court can interpret the rights of war veterans and can also grant other constitutional remedies such as an award of compensation for constitutional breaches.

The jurisprudence on constitutional breaches may be drawn from jurisdictions like South Africa. Zimbabwean courts have largely been granting declaratory orders. Of late, we have been seeing some war veterans being arrested, brought before the courts of law, and also blitzed with the reminder of the prospective return of the death penalty.

Further, some are saddled with debts – including school fees for their children, and were shredded by insults, hate speech and general contumely. Some like Victor Matemadanda who were once arrested have now been elevated to the commissariat in Zanu-PF. This is an opportunity for them to preach healing and peace especially as Zimbabwe marches towards the 2018 elections.

Some like Christopher Mutsvangwa had to successfully mount legal challenges to restore their powers as the legitimate leadership of the war veterans. For Mutsvangwa, he is in a better position to sound not only his own trumpet as a war veteran, but to always inform the President of the sirens of hope for every veteran described in the Constitution. This siren received a thumbs-up from the masses on the day that was “18 November 2017”.

As special advisor to the President, he must ensure that the rights of war vets are fully realised. The Government ought forthwith to strongly give war vets a future of hope in which the breach of their constitutional rights is shunned. It can even approximate the continuum of rights in the Constitution – and allow the rights holders to demand their rights without fear or favour. The veterans must be made aware that the mother of all laws in Zimbabwe clearly states that they will be recognised for their contributions to the liberation struggle according to the descriptions stated in Section 84.

Whatever the form of recognition, the Constitution makes it a carrot for the horse – an entitlement points to the fact that all the persons described in Section 84 are holders of the right that is entrenched or made justiciable there. They must assert this right as contemplated by the Constitution. Legally, they can claim specific performance as a remedy which enables them to enjoy their rights under the Bill of Rights – as long as they can show that they fit into the constitutional description.

In essence, there is need for proper documentation on all veterans, which has a standard checklist for identifying the category of veterans. At a professional level, the proper custodians of such a register are the rights holders themselves. They have a much-admired profession – the War Veterans Association, and a ministerial position as shown above. On top of their roles during the war period, we have been given a projection that they can still be alive in 2054 or beyond, God willing. The benchmark on their rights of veterans must also include such projected expectations using the normative standard in the Constitution.

Indeed, if we consider the unflinching constitutional promises of recognition for their contribution to the liberation of Zimbabwe, and the incredible character of “suitable welfare” such as pensions and access to basic health care, then it would seem that our Government needs to give an ear to the sirens of hope that were heard throughout Zimbabwe especially on November 18 017.

The welfare has its foundation in the Constitution. The rights holder has to assert his or her entitlements to pension and basic healthcare using the constitutional foundation, not some “employment” contract with a State institution. Indeed the Public Service Commission is constitutionally obligated to consider veterans as its employers.

In conclusion, it is better to speak of elaborated rights in a Constitution as patent than latent because the latter creates artificial distinctions. The attributes of a war veteran are listed in the Constitution and must be used appropriately. The description of the war veteran is in a variegated form. It is essential that each attribute should be constantly considered, or where possible, treated as different from the other.

If the veteran is constitutionally recognised, it is clear that his recognition is part of the supreme law. If he or she is stripped of the normative attributes, he or she is downgraded to the level of an ordinary rights holder.

The view expressed in this article is not divorced from the theoretical underpinnings such as the protest theory which shows that rights are fought for. The veterans fought for their rights. They also asserted the right for Zimbabwe’s self-determination. Even if we are to consider the deliberative and discourse theories on human rights, rights of war veterans were included during the constitution-making process. They are part of what was “talked about” and ‘“greed upon” first, by the politicians who started the process, and then, by Zimbabweans who voted for the adoption of the Constitution in 2013.

No doubt there is a great satisfaction about the rewards for war veterans at State level such as getting the commissariat and advising the Presidium. At community level, something has to be done. Happy should be the living war veteran and the family of the departed veterans who for long have been “forgotten” servants of this land, yet cheery, the Constitution looks at them.

• Sharon Hofisi is a lawyer and lecturer. He is contactable at [email protected]