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Sharon Hofisi Legal Letters
We desire social cohesion and economic security, yearn for better living standards, and require fulfilling lives for ourselves and our posterity. But for most of us these expectations are like mere wishful thinking. Our society is filled with economic and social woes which make us appear like misfits.

We could easily witness an unfair dismissal, periodic send-off of students from school, arbitrary destruction of a family home or eviction from a family shelter. We lose a loved one moaning and groaning on a hospital bed and wish like we had trained as medical personnel. We go back home to be greeted by lack of sufficient food or clean, safe and potable water.

We struggle to enjoy the fruits of our savings or hard work — the money we “hold” in our bank accounts simply because hard cash is hardly accessible. Never mind the gradual embrace we have given to electronic transactions, because you may be saying the problem is self-inflicted. These grim realities are part of our daily economic and social changes in our society. Cash hoarding and cash backs threaten to create and entrench subsistence lifestyles in Zimbabwe and make even more elusive the realisation of our socio-economic rights.

The liquidity crunch has been felt greasily in the rural areas where, unless you buy half of the money you received through platforms such as EcoCash, Telecash or Nettcash, you can starve with your money in the wallet. There is a real danger that transacting “someone’s way” is fast becoming entrenched as a “new normal” way of life in this country.

The hope is that this “culture” will soon end, lest it becomes a bit herculean to uproot. While uncertainty seems to have found expression in our social and economic lives, we may need to look at the second generation of rights: economic, social and cultural rights. They are not “second” in terms of inferiority.

They only began to be emphasised in justiciable and entrenched ways after civil and political rights. For some who are familiar with third world approaches to international law (TWAIL) such as decolonisation, cultural relativity, cultural particularism and critical race theories, civil and political rights had to come first.

Although civil and political rights were internationally protected in the International Covenant on Civil and Political Rights (ICCPR) in the 1960s, most third world countries (which term is frequently used interchangeably with the phrase “developing countries or world”) were fighting colonialism and struggled to lead respectful lives because of various repressive laws and other policy barriers that bordered on occidentialism and orientalism, supremacy and inferiority of races.

Although the International Covenant on Economic, Social and Cultural Rights came into existence in about the same time as the ICCPR, such rights were not immediately entrenched into the constitutions of many less developed countries. In the absence of justiciability and entrenchment, ECOSOC rights, short form for economic, social and cultural rights, were claimed through civil and political rights.

Zimbabwe took more than three decades to entrench such rights. The Constitution of Zimbabwe, 2013 now entrenches and makes ECOSOC rights justiciable. The starting point on entrenchment of ECOSOC rights is perhaps the preamble which speaks to the whole person with aspirations for a better Zimbabwe. Next would be the following: the democratic nature of our Republic, the constitutional supremacy clause which underlines our constitutional democracy and the founding values and principles which entrench fundamental human rights.

We cannot understand any form of human rights in Zimbabwe without considering our national objectives. Our national objectives are also important in enabling us to practice “priority constitutionalism” which occurs when State institutions and citizens uphold the constitutional obligations to respect, protect, promote and fulfil human rights. This includes public functionaries, agents of the State and parastatals which must shun impunity at all cost.

The objectives on work relations are important as they give content and meaning to the interpretation of two fundamental rights in our constitution: freedom of trade, profession and occupation and labour rights. The female or male right holder must realise these rights as provided for by the Constitution, national labour laws, regulations and other workplace rules. I encourage readers to also read the think piece that I wrote on May Day on freedoms and rights of the worker.

The national objectives obligate the State at every level to adopt reasonable policies and measures, within the limits of the resources available to them to provide work with an opportunity to work freely in a chosen activity with its ultimate aim being to get a decent living for themselves and their families.

They must also strive to secure full employment; remove restrictions that prevent people from working (for those with formal employment) or engaging in gainful economic activities (especially informal traders); provide vocational facilities (including those that train people with disabilities) and to implement measures that have a bias towards family care that enables women to enjoy a real opportunity to work (the most obvious issues include the need to shun spousal stalking, promote feminisation of the workplace, practise paid maternity leave, shun sexual harassment or work-related gender based violence such as carpet interviews, or discourage “quiet corruption” which allows female or other vulnerable employees to bend the workplace rules for their own private interests). A call to action on feminisation of the work place seems to have been gradually entrenched: women are always encouraged to apply for job recruitments. The woman is fast becoming “the measure” of equal opportunities at the workplace.

Besides work-related relations, our national objectives speak to social issues such as free and compulsory basic education for children, as well as higher and tertiary education the State is obliged to ensure that boys and girls are afforded the same opportunities to obtain education at all levels. The State has established several poly-technical colleges, universities and affiliates of universities, and so forth.

Perhaps we need to examine some commitments that were made to promote equal access to education. We have seen the State committing to ending child marriages through the Loveness Mudzuru judgment. We have witnessed the use of positive discrimination practices such as the use of cut-off points in past year to encourage girls to access tertiary education. Recently we heard of cancer screenings in schools and the First Lady is the face of that noble development. This preventative approach to dangerous diseases will ensure that girls do not drop out of school. We have seen STEM (science, technical, engineering and mathematics) programmes that benefit boys and girls. Junior parliamentarians are also drawn from both sexes and schools can use this platform to ensure that girls complete their education. The new Government also suspended the continuous assessment of pupils which was more of a burden for the high school student than a necessity to acquire educational facilities. For those who remember Ghandi’s knowledge without necessity, the suspension of this programme is timely. We are, however, still to define basic-State funded education and further education in our various curricula in Zimbabwe.

Apart from education, the objectives are framed in a manner which allows every person must have access to adequate shelter. This promotes family and societal cohesion.

Put differently, unjustified family displacements, erosion of cultural values, destruction of cultural ties, and so forth are avoided. Municipalities and recently, the Zimbabwe Republic Police (At Charge Office marketplace) have also moved to evict informal traders, albeit on planning or security reasons. No wonder our constitution entrenches freedom from arbitrary eviction.

The objectives also speak to the need for the State to take practical measures to ensure the provision of basic, accessible and adequate health services throughout Zimbabwe (rural, urban, remote or networked places and so forth). The State must also ensure that no person is refused emergency medical treatment at any health institution. We now know that the right to health care is entrenched and is can be asserted by every citizen and permanent resident. We also know that every person living with a chronic illness can also assert this right in respect of the illness.

Although our objectives simply speak about food security, we may use them to explain the right to food and water. The objectives oblige the State to secure the establishment of adequate food reserves; encourage and promote adequate and proper nutrition through mass education and appropriate means. The Bill of Rights shows that every person in Zimbabwe has the right to sufficient food. The content for ‘sufficient’ food is however not developed.

In all this, the State can sometimes hide behind lack of resources to ensure that certain rights are enjoyed. This is where international law is used to provide insights on what is called minimum thresholds. The State must demonstrate that they have taken or are taking some practical steps to uphold the constitutional rights. Various general comments are used to explain the core and minimum contents of socio-economic rights. It is hoped, through Kantian philosophy (this is closer to the normative constitutional framework), that our society will not be built on ‘crooked timber’-even in the manner in which we message or interpret the jurisprudence on socio-economic rights.

Sharon Hofisi is a lecturer in Law and Administration. [email protected]