From time to time, events happen which present an opportunity to explain the Constitution of Zimbabwe, a critical document with which every Zimbabwe must be acquainted. Recent events around the arrest of popular Pentecostal cleric, Prophet Walter Magaya, present an opportunity to explain some important aspects of the Constitution, which may be useful both to religious institutions in general and members of the public.
The church’s constitutional obligations
The first point is that the Constitution applies horizontally, which means it binds not only the state but also every person, including juristic persons. Juristic persons are bodies which have artificial legal personality such as companies, trusts or any other corporate organisations. This means private companies like Econet, Telecel, Old Mutual, Delta Beverages, to name but a few, are also bound by the Constitution. It also means church organisations are equally bound by the Constitution. This is the effect of section 2(2) of the Constitution which states that, “The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them”.
The second point is that the Constitution is the supreme law of the country. As section 2(1) of the Constitution states, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. This is important because it means whatever the state, company or church does, whatever rules, traditions, customs or practices they have, they must be consistent with the Constitution. If these rules and practices are inconsistent with the Constitution, they are invalid to the extent of that inconsistency. It also means a person can go to court to challenge any practice, custom, practice or conduct within the church which is inconsistent with the Constitution. This why for example, if a particular church has a tradition of marrying young girls to older men, this practice or tradition is unconstitutional as it violates the rights of children provided for under the Constitution.
The third point is that every person, including the state and juristic persons, have an obligation to “respect, protect, promote and fulfil the rights and freedoms set out in [the Declaration of Rights]. Chapter 3 of the Constitution is the Declaration of Rights (also known as the Bill of Rights). This is one of the most important parts of the Constitution which sets out every person’s fundamental rights and freedoms which must be protected and respected chiefly by the state but also by every other person, including natural and juristic persons. This is the effect of section 45(2) of the Constitution which provides that the Declaration of Rights “binds natural and juristic persons to the extent that it is applicable to them, taking into account the nature of the right or freedom concerned and any duty imposed by it”. This important because it means just like the state, companies, churches and other corporate organisations have specific obligations to uphold and respect fundamental rights and freedoms and can be sued for violating them.
It is against this background and having watched the public video of Prophet Magaya interrogating some members of his church during a church service, it is clear that the cleric has either been ill-advised or has not taken heed of his legal advisers’ counsel in so far as the church’s constitutional obligations are concerned. I understand the events took place before his arrest. However, it is also evident from his comments during the service that the public interrogation was done in anticipation of the arrest. There is a very real possibility that some constitutional rights may have been placed at serious risk by the church during that particular service. I take this opportunity to explain some of the rights religious institutions, companies and other corporate organisations must be aware of.
Right to protection of the law
A very important, but often under-appreciated right is the right to protection of the law. This is provided for in section 56(1) which states that, “All persons are equal before the law and have the right to equal protection and benefit of the law”. This is a broad right which means every person, whatever their situation is entitled to protections that are offered by the law. In other words, everything must be done in accordance with the law. This right binds the state, natural persons, companies, churches, and any other corporate organisations to ensure that whatever they do in relation to other persons, it must be in accordance with the law. It is a preventive mechanism against arbitrary action. It prohibits the use of extra-legal measures. In this particular case, if an organisation is going to subject a person to atrial, it must do so in accordance with the law. In other words, that person must be given the protection of the law. Failure to do so would render the proceedings null and void and the affected person may sue for compensation.
Right to a fair hearing
Another pertinent constitutional right is the right to a fair hearing. This is protected by section 69 of the Constitution. At the core of this right are the principles of natural justice. An important principle is that any person who is answering allegations of any nature must be allowed a public hearing before an independent and impartial court, tribunal or other forum established by law. While section 69 applies more specifically in relation to the state, it is equally applicable where natural or juristic persons subject anyone to any form of trial. Therefore a company which is conducting disciplinary action against an employee is obliged to meet the constitutional standards under section 69, ensuring that the right to a fair hearing is protected. Likewise, where a church is carrying out any ‘trial’ or interrogation of its member, it must at all times comply with section 69 of the Constitution, failing which it would be in breach of the Constitution. The point is that employees or members of corporate organisations must not be subjected to kangaroo courts because that is contrary to the right to a fair hearing.
This must also be read in conjunction with rights provided for under section 70, which apply to accused persons. When a person is accused of anything, there are certain rights to which they are guaranteed. These include the right to presumed innocent until proven guilty, the right to adduce and challenge evidence and the right to remain silent. This is the right against self-incrimination, which means they are not expected to give evidence which would incriminate them. They must be informed promptly of any charge against them and in sufficient detail to enable them to answer it. Further, they are entitled to adequate time and facilities to prepare a defence and to be represented by a lawyer. These are important rights, whether in criminal or civil matters, where a person is accused and has to answer any charges. The state, companies, churches or any other corporate organisations are required to ensure that these rights are fully guaranteed.
Right to human dignity
Section 51 provides for the right to human dignity, which is very important as it provides the foundation for the enjoyment of other rights. Every person must be treated with dignity, whether by the state or other persons, natural or juristic. A company cannot treat an employee in a manner that violates his dignity because that would be in violation of the Constitution. Likewise, a church is obliged to treat every person, including its members with dignity, consistent with the Constitution. A public interrogation which is designed to humiliate and shame a person is hardly consistent with respect for human dignity. This must also be read together with section 52 which protects every person’s “right to bodily and psychological integrity”. This includes “freedom from all forms of violence from public and private sources”. Most people associate violence with physical harm to the body. However, this provision clearly indicates that violence extends to the psychological domain. Beyond the state, organisations must take care not to subject persons to psychological violence.
In addition, section 53 prohibits “physical or psychological torture or to cruel, inhuman or degrading treatment or punishment”. The public interrogation may not have been torture but it is arguable that the manner in which it was conducted and the subsequent publication of the video constitutes “degrading treatment” of the affected persons.
Conclusion
I have steered clear of commenting directly on the case and possible implications of the public videos on the trial, of which there are many. Suffice to say that the public interrogation was ill-advised as it may be regarded by a future court as interfering with potential witnesses or evidence. The state could argue that the public video was designed to intimidate and silence potential witnesses. For that reason, the public video was ill-advised and could harm his own defence.
However, more important for the purpose of this article is the issue of constitutional rights. It is important for corporate organisations, including companies, churches, NGOs and others to appreciate that the constitution applies horizontally and binds them as well. In addition, they are all specifically bound by the Declaration of Rights and must accord these rights to every person failure of which they will be guilty of violating the Constitution. Any person who feels aggrieved by their conduct is entitled to approach the Constitutional Court for a declaration of violation and a claim for damages.
My advice to all corporate organisations in Zimbabwe is that they would do well to get a better understanding of the Constitution, their rights and obligations, which they should include in their policies and procedures manuals.
waMagaisa
If you are a corporate organisation – company, NGO, church or any other – and you would like a detailed analysis of your constitutional rights and obligations please feel free to contact us at wamagaisa@gmail.com
