Individual Freedoms & State Security in the African Context: The Case of Zimbabwe

By John Hatchard | Go to book overview

5 Constitutional Safeguards
of Individual Freedoms

Introduction

The immense powers contained in the Emergency Powers Act clearly have the potential to undermine, or to at least seriously affect, the exercise of individual freedoms. A State which permits no limits upon executive action is a dangerous place indeed. Thus it is a cardinal rule that although security powers are needed to combat threat to the nation, constitutionalism is never excluded as a result. Just as safeguards are required on the declaration of the state of emergency itself, so protection for individual freedoms is needed against the arbitrary use of emergency powers. In this chapter, the protection of such freedoms in both international and domestic law is examined.


International Protection of Individual Freedoms

The establishment of the United Nations in 1945 was a major step towards the international protection of individual freedoms. Amongst other things, its Charter requires Member States to take joint and several action to achieve 'universal respect for, and observance of, human rights and fundamental freedoms for all'. 1 In 1948 the Universal Declaration of Human Rights was adopted and this sets out a general catalogue of human rights and fundamental freedoms. On the assumption that the Universal Declaration did not impose sufficiently binding obligations, the UN Commission on Human Rights drafted the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both were designed to be legally binding on Member States. The former deals essentially with the legal rights of individuals whilst the latter deals with rights relating to living standards, the family, employment, health, education and the like. Some commentators have argued that rights under the ICESCR take priority over other rights. This is on the grounds that in developing nations, in particular, civil and political rights have little value or importance if people are starving or dying through lack of adequate primary health care. 2 This is the wrong approach, for the Covenants themselves do not place rights in any hierarchical order and are thus all equally worthy of protection. Indeed the UN General Assembly has confirmed that all human rights form an indivisible whole. 3 This integrated approach is confirmed in the African Charter on Human and Peoples' Rights. This was adopted at a meeting of the Heads of State and Government of the Organisation of African Unity in Nairobi on 26 June 1981. It is now in force following its ratification by a simple majority of OAU members, including Zimbabwe in June 1986. The document recognises that it is essential 'to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as their

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