WHEN IT COMES TO HATE SPEECH, WILL THE ZIMBABWEAN CONSTITUTION HOLD SWAY?

Salc : Anneke Meerkotter

On the 22nd of May 2013 President Robert Mugabe signed into law Zimbabwe’s new Constitution. The text of the Zimbabwean Constitution places human rights at the heart of the vision for Zimbabwe. The rights enshrined in the Constitution, in many respects, exceed those of other countries in the region, and indeed the world. The new Constitution imposes a responsibility on the State and every person, institution and agency of government – at every level – to respect, protect and promote the rights in the Constitution. But what will this mean in reality?

The Constitution entrenches the right of every person to inherent dignity and the right to have that dignity respected and protected. It further provides that every person has the right to bodily and psychological integrity, which includes the right to freedom from all forms of violence from public or private sources. These rights are surely held in high regard by the countless Zimbabweans who have either felt the brutal impact of colonialism on their lives, or faced more recent human rights abuses at the hands of the State.

The Constitution requires that the State acts firmly to prevent instances of hate speech, which invariably affect a person’s dignity and personal security.  The new Constitution explicitly states that the right to freedom of expression excludes incitement to violence; advocacy of hatred or hate speech; malicious injury to a person’s reputation or dignity; or malicious or unwarranted breach of a person’s right to privacy. Thus, no person – including politicians, traditional leaders, religious leaders, activists and government officials – can claim that the right to freedom of expression allows them the space to use hate speech, incite violence or harm another person’s dignity.

Many Zimbabweans might be fairly despondent with the mention of the Constitution or human rights as it is not yet clear to what extent the Constitution will be influential in how the country is governed. The negotiated Constitution, which was accepted in a public referendum earlier this year, is not ‘set in stone’ and may well undergo some changes if President Mugabe’s two-thirds majority in parliament is confirmed.

Even though discussion on the rights of LGBT persons is often an unpalatable option in Zimbabwe, it is this discussion that perhaps best tests the virtue, and fallibility, of the new Constitution.  In the run-up to the elections, President Mugabe made various public statementsagainst the LGBT community in Zimbabwe, emphasising that “gay rights are not human rights”. These statements conceivably set the tone for how constitutional rights will be interpreted or discarded in the future (especially if the judiciary is not able to exert its independence).

The constitutional provisions are broad in application, with both rights and responsibilities applying to every person. Implicitly, it means that the provisions in the Constitution relating to the protection of rights apply to all government officials and politicians. It further means that the rights entrenched in the Constitution apply to persons irrespective of their sexual orientation. If we accept the notion that rights do not apply to all persons or that constitutional responsibilities are not applicable at all times, then the constitutional document becomes a farce open for interpretation by the governing party of the day. If we agree to ignore the constitutional provisions when we speak about dignity and personal security for LGBT persons, others might follow suit when speaking about the dignity and personal security of women, or persons of a different race or place of origin. Surely such an approach defeats one of the main tenets of the constitutional framework – the universality of human rights.

A more coherent interpretation of the Constitution accepts that the provisions of the Constitution apply to every person, and that they apply at all times. Thus, even if we have moral, cultural or religious objections to persons who are attracted to persons of the same sex, we have to accept that we do not have the right to publicly call them “worse than dogs and pigs” or the right to incite violence against such persons.

Respect for every individual’s rights regardless of our personal views is not always an easy road to follow. It is however in all our best interests if our likes and dislikes are not allowed to affect the way we are governed and to lead to rights violations and violence.  To think otherwise, would be to step back into the era of colonialism where the State sought to entrench its values through force and intervened in the privacy of individuals’ lives.

The very notion of universal human rights comes from a line of thought which seeks to ensure that colonisation and other forms of oppression do not re-occur. As Nelson Mandela so eloquently put it, “to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.” It remains to be seen whose rights and dignity will ultimately be protected by the new Constitution, and whose will not.

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