津巴布韦新宪法中的社会经济权利

IF 0.3 Q4 POLITICAL SCIENCE Strategic Review for Southern Africa Pub Date : 2020-12-22 DOI:10.35293/SRSA.V36I1.155
Theophilous Chiviru
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引用次数: 0

摘要

1.引言社会经济权利的合宪性和可审判性一直是学者和从业者争论的焦点。虽然每个人都同意每部宪法都应该包含社会经济权利,但对于这些权利是否应该属于《权利法案》或《国家政策原则》,仍存在分歧。津巴布韦的宪法辩论也包括这些讨论,这些讨论导致将社会经济权利分别列入第二章和第四章的国家目标(国家政策原则)和人权宣言(权利法案)。尽管这是逐步实现社会经济权利的一个可喜举措,但最大的问题仍然是,这是否会改善对这些权利的保护和促进,从而改变人们的生活。本概述对新宪法进行了批判性分析,并通过法院、国家机构和政府为改善津巴布韦的社会经济权利制度提出了建议。2.新宪法新宪法序言(1)承认上帝至高无上,并特别承认解放斗争、自然资源、多元文化、民主价值观、法治和基本人权。它重视法治、基本人权和自由、两性平等、善政和选民代表权等原则,并赋予国家保护和促进这些价值观和原则的义务。尽管宪法序言没有法律地位,但它阐明了宪法的目的,反映了政府的目标和承诺。这是一份介绍性声明,法院可以在与宪法有关的案件中引用它,作为国家承诺实现和为公民提供什么的可靠证据。序言承诺国家维护和捍卫包括社会经济权利在内的基本人权和自由。保护和促进社会经济权利有助于支持序言中的承诺,如透明度、自由、传统和文化、公平和平等。在南非等序言不具有法律约束力的国家,法院对序言中强调的承诺进行了解释,例如,巴托星捕鱼有限公司诉环境事务和旅游部长案,将序言中的承诺解释为国家的义务。除了传统的公民权利和政治权利外,新宪法还包含一整套经济、社会、文化和环境权利。这包括每个人享有不损害其健康或福祉的环境的权利(第73条);以及有义务通过合理的立法和其他措施,为今世后代的利益保护环境。第75条(受教育权)规定,津巴布韦的每一位公民和永久居民都有权接受国家资助的基本教育,包括成人基础教育和继续教育,国家必须通过合理的立法和其他措施,逐步提供和普及这些教育。这符合《经济、社会、文化权利国际公约》第十三条。政府是否会执行宪法,并在一些受传统习俗阻碍的农村地区落实女孩接受教育的权利,还有待观察。第76条(健康权)确认津巴布韦每一位公民和永久居民都有权获得基本医疗服务,包括生殖健康。每个慢性病患者都有权获得基本的医疗服务。任何人不得拒绝在任何保健机构接受紧急医疗…
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SOCIO-ECONOMIC RIGHTS IN ZIMBABWE'S NEW CONSTITUTION
1. Introduction The constitutionalisation and justiciability of socio-economic rights has always been debated among scholars and practitioners. While everyone agrees that every constitution should encompass socio-economic rights there is still disagreement on whether they should be under the Bill of Rights or Principles of State Policy. The constitutional debate in Zimbabwe also included such discussions which resulted in the inclusion of socio-economic rights as both National Objectives (Principles of State Policy) and Declaration of Human Rights (Bill of Rights), under chapter two and four respectively. Though this is a welcome move towards the progressive realisation of socio-economic rights the big question remains whether this will improve the protection and promotion of these rights, subsequently bringing change to people's lives. This overview provides a critical analysis of the new constitution and offers recommendations for the improvement of the socio-economic rights regime in Zimbabwe through courts, state institutions and government. 2. The new Constitution The preamble of the new constitution (1)) recognises the supremacy of God and gives special recognition to the liberation struggle, natural resources, diverse culture, democratic values, rule of law and fundamental human rights. It values the principles of rule of law, fundamental human rights and freedoms, gender equality, good governance and representation of the electorate and places an obligation to the State to protect and promote these values and principles. Though the preamble of the constitution has no legal standing it spells out the purpose of the constitution and it reflects the goals and commitment of government. It is an introductory statement and courts can refer to it on cases pertaining to the constitution as reliable evidence of what the state has promised to achieve and provide for citizens. The preamble commits the state to uphold and defend fundamental human rights and freedoms, which include socio-economic rights. The protection and promotion of socio-economic rights serve to support the commitments set in the preamble, such as transparency, freedom, tradition and culture, fairness and equality. In countries such as South Africa where the preamble is not legally binding, the courts have interpreted the commitments highlighted in the preamble in, for example, the Bato Star Fishing (PTY) LTD vs Minister of Environmental Affairs and Tourism case, interpreting the commitments in the preamble as an obligation on the state. In addition to traditional civil and political rights, the new constitution contains a full catalogue of economic, social, cultural and environmental rights. This includes every person's right to an environment that is not harmful to their health or well-being (section 73); and an obligation to protect the environment for the benefit of present and future generations, through reasonable legislative and other measures. Section 75 (rights to education) entitles every citizen and permanent resident of Zimbabwe to a basic state-funded education, including adult basic education and further education, which the state, through reasonable legislative and other measures, must make progressively available and accessible. This is in line with article 13 of the International Covenant on Economic, Social and Cultural Rights (CESCR). It remains to be seen whether the Government will implement the constitution and enforce the right of girls in some rural areas of access to education where they have been hindered by traditional practises. Section 76 (right to health) confirms the right of every citizen and permanent resident of Zimbabwe to have access to basic healthcare services, including reproductive health. Every person living with a chronic illness has the right to have access to basic healthcare services for the illness. No person may be refused emergency medical treatment in any health-care institution. …
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