Rights inference: Understanding the meaning of Section 46 of the Constitution of Zimbabwe beyond Gubbay CJ’s dictum.
Abstract
The Constitution of Zimbabwe guarantees a wide range of
fundamental rights. These are set out in Chapter four-the Declaration
of Rights. However, the Constitution is silent on a number of
fundamental rights which include the right to access adequate
housing, the right to development and the right to the protection of
family. Thus, the Constitution does not expressly provide for these
rights, yet in the preamble it, captures and expresses a vision of a
prosperous and just society that is based on human dignity. There is
a real risk that this vision will remain a pipe dream if individuals do
not enjoy these rights. In this paper, I examine how and the extent to
which the interpretive guidelines set out in section 46 of the
Constitution, can be applied as a tool to infer or read in rights that
are not expressly provided for in the Constitution’s Declaration of
Rights. Inevitably I also examine the theoretical underpinnings of
the rules provided for in section 46 and argue that, the courts need
to engage with those theories in a critical and nuanced fashion in
order to develop a meaningful jurisprudence on how fundamental
rights should be interpreted in Zimbabwe.
Additional Citation Information
Mavedzenge, A. (2019). Rights inference: Understanding the meaning of Section 46 of the Constitution of Zimbabwe beyond Gubbay CJ’s dictum. University of Zimbabwe Law Journal, 2 (1) . 93-115.Publisher
University of Zimbabwe
Subject
constitutionconstitutional court
section 46
constitutional values
rights
human dignity
constitution of Zimbabwe
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