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  • The Protection and Enforcement of Fundamental Human Rights: The Zimbabwean Experience
  • Anthony R. Gubbay (bio)

I. Introduction

This paper reflects the belief that judiciaries should make a greater conscious effort towards the protection and active enforcement of fundamental human rights and freedoms, and should always endeavor, where possible, to construe domestic legislation so that it conforms with the developing international jurisprudence of human rights. There can hardly be a better expression of the nature of human rights than that by the internationally renowned authority, Professor Louis Henkin of Columbia University. He defined human rights as

claims which every individual has, or should have, upon the society in which he/she lives. To call them human [rights] suggests that they are universal: they are the due of every human being in every human society. They do not differ with geography or history, culture or ideology, political or economic system, or stage of development. They do not depend on gender or race, class or status. To call them “rights” implies that they are claims “as of right,” not merely appeals [End Page 227] to grace, or charity, or brotherhood, or love; they need not be earned or deserved. They are more than aspirations, or assertions of “the good,” but claims of entitlement and corresponding obligation in some political order under some applicable law, if only in a moral order under a moral law.

When used carefully, “human rights” are not some abstract, inchoate “good.” The rights are particular, defined, and familiar, reflecting respect for individual dignity and a substantial measure of individual autonomy, as well as a common sense of justice and injustice. 1

Human rights are not conferred by constitutions, conventions, or governments. These instruments do not give rise to human rights but simply recognize them and provide the machinery for their protection and enforcement. Traditionally, human rights fall into two classifications: substantive human rights and procedural human rights. Substantive rights include basic rights and freedoms such as the freedom of conscience and assembly, as well as protection of the right to life. Procedural human rights refer to basic principles of a legal system, including the law of evidence, and of criminal and civil procedure.

In the context of a legal system, rights are not only inseparable from the remedies which enforce them, they are virtually meaningless without them. In the words of that great American jurist, Oliver Wendell Holmes, “[l]egal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp.” 2

The mere fact that a given state has a justiciable declaration of rights in its constitution, no matter how well drafted, does not of itself guarantee the enjoyment of, or respect for, human rights. It is quite possible for two countries with identical declarations to have totally different experiences with the level of human rights that are actually enforced. For example, the Soviet Constitution of 1936 had a Declaration of Rights which included almost every right for which one might wish. Yet that did not stop the Gullags, mass deportations, or other notorious human rights violations of the Stalinist era from occurring. The United States experienced a similar situation. For over two hundred years clauses of the Constitution of the United States have been substantially the same. Nonetheless, the institution of slavery was tolerated; women did not have contractual capacity or the ability to own property until 1848; women and African Americans did not have the right to vote until this century; sex and racial discrimination coexisted with the Equal Protection Clause of the Fourteenth Amendment 3 for at least fifty years. [End Page 228]

A justiciable declaration of rights can protect and enforce fundamental human rights only if the highest court in the land is powerful enough, and independent enough, to proscribe all attempted infringements thereof. This is true whether they be executive, administrative, or legislative in origin. Judges need to be both independent and impervious to extraneous influences. Members of the court must also be able to bring to bear on the problems before them a professional objectivity which transcends personal predilections. In the wise words of United States Supreme Court Chief Justice Earl...

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