Limitations of human rights and freedoms

12 | Saving of other rights

Law Society of Zimbabwe: Model Constitution of Zimbabwe (2010)

This Chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Chapter.

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25 | Savings in the event of public emergencies

Constitution of Zimbabwe (at 13th Feb, 2009)

Notwithstanding the foregoing provisions of this Chapter, an Act of Parliament may in accordance with Schedule 2 derogate from certain provisions of the Declaration of Rights in respect of a period of public emergency or a period when a resolution under section 31J(6) is in effect. [Section as amended by section 20 of Act 23 of 1987]

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26 | Interpretation and other savings

Constitution of Zimbabwe (at 13th Feb, 2009)
  1. In this Chapter, unless the context otherwise requires— “child” includes a stepchild and a lawfully adopted child and “parent” and cognate expressions shall be construed accordingly; “court” means any court of law in Zimbabwe, including a local court, but does not, except for the purposes of section 12 or 14, include a court established by or under a disciplinary law; [definition amended by s. 23 of Act 5 of 2005 – Amendment No. 17 - with effect from the 14th September, 2005, by substitution of "local court" for original "tribal court".] “legal representative” means a legal practitioner who is lawfully in Zimbabwe; [Definition as substituted by section 20 of Act 23 of 1987] “parental discipline” includes school or other quasi-parental discipline.
  2. Nothing contained in or done under the authority of any written law shall be held to be in contravention of the Declaration of Rights to the extent that the law in question—
    1. is a law with respect to which the requirements of section 52 were applicable and were complied with;
    2.  …. [Paragraph repealed by section 20 of Act 23 of 1987]
    3. ….. [Paragraph repealed by section 20 of Act 23 of 1987]
    4. ….. [Paragraph repealed by section 20 of Act 23 of 1987] [Subsection as amended by section 15 of Act No. 14 of 1996 - Amendment No. 14]
  3.  ….. [Subsection repealed by section 20 of Act 23 of 1987]
  4. For the purposes of this section, the reference—
    1. ….. [Paragraph repealed by section 20 of Act 23 of 1987]
    2. in subsection (2) to a written law includes any instrument having the force of law. [Subsection as amended by section 20 of Act 23 of 1987]
  5. In relation to any person who is a member of a disciplined force of Zimbabwe, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be in contravention of any of the provisions of the Declaration of Rights, other than sections 12, 14, 15, 16 and 23.
  6. In relation to any person who is a member of a disciplined force that is not a disciplined force of Zimbabwe and who is present in Zimbabwe under arrangements made between the Government and the government of some other country or an international organization, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be in contravention of the Declaration of Rights.
  7. No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights.
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9 | Interpretation of Chapter 3 (Bill of Rights)

National Constitutional Assembly (NCA) Draft Constitution (2001)
  1. When interpreting this Chapter, a court, tribunal, forum or body must-
    1. give full effect to the rights and freedoms set out in this Chapter;
    2. promote the values that underlie an open and democratic society based on human dignity, equality and freedom and in particular, the values set out in Section 1.
    3. take into account international law, treaties and conventions;
    4. consider relevant foreign law interpreting international law, treaties and conventions; in addition to considering all other relevant factors that are to be taken into account in the interpretation of an enactment such as a Constitution.
  2. When interpreting a written law, and when developing the common law or traditional customary law, every court, tribunal and forum must be guided by the spirit and objects of this Chapter.
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49 | Limitation of rights and freedoms

Law Society of Zimbabwe: Model Constitution of Zimbabwe (2010)
  1. Subject to this Constitution, the fundamental rights and freedoms set out in this Chapter may be derogated from or limited only in terms of a law of general application and to the extent that the derogation or limitation is reasonable, is recognised by international law and is necessary and justifiable in an open, just and democratic society, taking into account all relevant factors, including—
    1. the nature of the right or freedom concerned;
    2. the purpose of the derogation or limitation;
    3. the nature and extent of the derogation or limitation;
    4. the relationship between the derogation or limitation and its purpose;  and
    5. whether there are any less restrictive means of achieving the purpose of the derogation or limitation.
  2. No law may derogate from or limit the following rights and freedoms, and no one may violate them—
    1. the right to life;
    2. the right not to be tortured or subjected to inhuman or degrading punishment or treatment;
    3. the right not to be placed in slavery;
    4. the right to equality;
  3. No law that provides for a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of such a declaration, may permit or authorise the granting of immunity, indemnity or amnesty in respect of unlawful acts committed during the state of emergency.
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61 | Extent to which fundamental rights and freedoms may be limited

Kariba Draft Constitution

Except as provided in this Part or in any other provision of this Constitution, no law may limit any right set out in Part II.

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13 | Limitation of rights

National Constitutional Assembly (NCA) Draft Constitution (2001)
  1. Parliament may not pass laws that derogate from or restrict or limit the following rights and no person or body may violate or limit or restrict these rights:
    1. the right to life;
    2. the right to freedom from torture;
    3. the right not to be placed in slavery;
    4. the right to human dignity;
    5. the right to equality;
    6. the right to freedom of conscience, belief, thought and religion;
    7. the right to fair labour practices and standards.
  2. Subject to subsection (1) of this section or any other provision of this Constitution, the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable, is recognised by international human rights standards and is necessary and justifiable in an open and democratic society.
  3. No Act of Parliament authorizing a declaration of a state of emergency and no legislation enacted or other action taken in consequence of such declaration may permit or authorize:
    1. the granting of immunity, indemnity or amnesty in respect of unlawful acts committed during the state of emergency;
    2. the derogation from or limitation or restriction of the following rights
      1. the right to life;
      2. the right not to be tortured or subjected to inhuman or degrading punishment or treatment;
      3. the right to human dignity;
      4. the right not to be placed in slavery.
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62 | General limitations

Kariba Draft Constitution
  1. The rights and freedoms set out in Part II must be exercised reasonably and with due regard for the rights and freedoms of other persons under that Part.
  2. Subject to this Constitution, and in particular to subsection (4), the rights and freedoms set out in Part II may be limited in terms of a law that is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
  3. In determining whether or not a law limiting a right or freedom is reasonable and justifiable for the purposes of subsection (1), all relevant factors must be taken into account, including–
    1. the nature of the right or freedom;
    2. the purpose of the limitation, in particular whether it is imposed in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
    3. the extent of the limitation, in particular whether it permits due recognition to be given to the rights and freedoms of others;
    4. the relation between the limitation and its purpose, in particular whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and
    5. whether there are any less restrictive means of achieving the purpose of the limitation.
  4. The following rights may not be limited, except to an extent permitted by the sections in which the rights are set out
    1. the right to life set out in section thirty-seven;
    2. the rights, set out in section thirty-eight–
      1. to be treated with humanity and respect for inherent human dignity;
      2. to challenge the lawfulness of arrest or detention;
    3. the right not to be subjected to medical or scientific experiments, set out in section thirty-nine;
    4. the right not to be held in slavery or servitude, set out in section forty;
    5. the right not to be tortured or subjected to cruel or inhuman treatment or punishment, set out in section forty-one;
    6. the right to inherent dignity set out in section forty-two;
    7. the right to a fair trial set out in section fifty;
    8. the rights of children set out in section fifty-four.
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63 | Limitations during emergency

Kariba Draft Constitution

In addition to the limitations permitted by section sixty-two, the rights and freedoms set out in Part II may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by the Second Schedule.

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