DRAFT BILL OF RIGHTS AS CONTAINED IN THE FINAL DRAFT CONSTITUTION OCTOBER 2014
PART V Article 24 Article Status, application and interpretation 1. The Bill of Rights emphasises that human rights are the basis of our democracy and that our social, political, economic and cultural policies should be guided by the constitution. 2. The rights and freedoms set out in the Bill of Rights: a. Are a birth right (inherent ) for each person b. Protect the dignity of each person c. Include those rights and freedoms which are in line with this constitution but may not be expressly stated unless they are against the values of Zambian society d. Dependent on exceptions and restrictions provided for in articles 66, 67 and 68
Article 25 Recognition of the role of social society The government shall recognize the role civil society in the promotion and protection of the Bill of Rights
Article 26 Development of jurisprudence and interpretation of the Bill of Rights 1.
Where the law does not recognize a right or freedom, the Constitutional Court shall make a decision. A court, the Human Rights Commission, government department or person shall interpret a right or freedom in line with articles 24 (status, application and interpretation), 312 (deďŹ nitions in this constitution), 313 (interpretation and 319 (laws)
Civil and Political Rights Article 27 Protection from discrimination You shall not be treated differently (negative discrimination) unless to help disadvantaged persons (positive discrimination) as provided by law.
Article 28 Right to life No court in Zambia is allowed to give a death sentence to a guilty person (convict) who is pregnant
1. You have the right to life. 2. The life of a person starts at the point that one becomes pregnant (conception). 3. Your life cannot be taken way unless you commit an offence which is punishable by death or as provided by other laws. 4.
No court in Zambia is allowed to give a death sentence to a guilty person (convict) who : a. Is pregnant b. Is a child (a person below the age of 18) c. Has convincing reasons that justify or excuse why the offence was committed
Article 29 Freedom of a person No one has the right to harm you.
Article 30 Protection from inhuman treatment and security of a person 1. You have the right not to a. Be caused severe pain (torture) b. Be treated in a cruel manner 2. Be exchanged for someone else's benefit (human trafficking)
Article 31 Protection from slavery, servitude and forced labor 1. You have the right not to be owned by another person (slavery). 2. You cannot be made to work against your will (forced labor)
Article 32 Protection of privacy of person, home, property
and communication You have the right to privacy which includes not to: a. Be searched. b. Have your home or property searched. c. Have your property taken away from you by force (seized). d. Have information about you, your family, health or personal matters revealed unless by law e. Have your personal ( private) communications obtained without your permission (infringed)
Article 33 Freedom of conscience, belief and religion 1.
You have the right to follow your personal beliefs, thoughts and religion.
2. 3.
You have the right to worship as an individual or within a group. You do not the right to disturb other people's right to religion or to cause wars based on religion. No one can force you to act in a way that does not agree with your personal and religious beliefs. You cannot be denied the right to use any facility or institution because of your religion or beliefs.
4. 5.
Article 34 Freedom of expression 1. You have the right to freely say what you want to say
a. b. c. d. e.
which include: Freedom to have you own view on a matter ( opinion) Freedom to receive and or give information or ideas Freedom of creativity Academic freedom Freedom of scientiďŹ c and technological research as by
I defend your right to have a different opinion from mine
outlined by law 2. You freedom of expression should not be used to give statements or behavior that may cause war, or genocide or crimes against humanity or any form of violence that disrupts
peaceful existence of other people or make people hate each other and speak ill of other people
Article 35 Access to information 1. You have the right to ask for and receive information from the state or another person as long as the information you need is allowed by law and is in the interest of protecting a right or freedom. 2.
You have the right to demand the correction of misleading or incorrect information collected and published about you.
3.
The state is required to publish information which is in public interest or aects the well-being of the nation without waiting to be asked to do
so (publishing information proactively).
Article 36 Freedom of media 1. Unless for the purposes of clause (3) below, the independence of all forms of media houses in Zambia including print, broadcasting and electronic will not be interfered with. 2. The state shall not direct (control) or get in the way of ( interfere) a person involved in: a. Broadcasting , production or distribution of published materials b. Distribution or dissemination of information through any media. 3 The government may regulate signals and signal distribution 4 Public media shall; a. Decide on their own editorial content and broadcast b. Give fair coverage to everyone
Article 37 General political rights As a citizen, you have the right to take part in political activities.
Article 38 Freedom of association 1.
You have the right to form, join and belong to any association of your choice and take part in all the activities of that association.
2.
You cannot be forced to join any association
Article 39 Right to assemble, demonstrate, picket and petition You have the right, without carrying weapons, to assemble, demonstrate, protest, and present your demands to the government
Article 40 Freedom of movement and residence You have the freedom of movement which include as a citizen, to have a passport, enter, move, remain, leave or stay in any part of Zambia unless you are prevented to do so by the law
Article 41 Non refoulement for refugees and asylum seekers Any person who is not a citizen of Zambia but has been given permission to stay in accordance with the law has the right to remain in Zambia as long as there is a valid reason or fear of persecution if returned to the country of origin or any other country.
Article 42 Acquisition and protection of property
Your land is now ours!
1. You have the right to own property as an individual or as a group in any part of Zambia. 2. Neither the government or any person can take away your property without following the law (arbitrary). 3. The government cannot take away (acquisition) your property unless it's in public interest. 4. Where it happens that the states takes your property in public interest in accordance
with clause(3 above)a. The government shall without delay compensate you in full b. You or any other person who has an interest in the property can go to court. 5. Those people who do not have title deeds but lawfully acquired the land will also be compensated by the government in cases where the government acquires their land. 6. The above do not apply, if you acquired the property illegally
Article 43 Equality before the law All persons are equal before the law and are entitled to have equal protection and beneďŹ t of the law
Article 44 Fair administration You have the right to a quick, reasonable, fair and lawful administrative procedure.
Article 45 Access to Justice 1.
You have the right to access justice.
2.
You have the right to obtain a court order (execute) to put in force a judgment against the government after one year of its delivery.
3.
A court shall not order payments (security of costs) from a loser in matters of public interest brought before it.
Article 46 Rights of suspects When you are suspected of having committed an oence, you are entitleda. To remain silent b. Be informed in a language that you understand about the right to remain silent and the consequences
Article 47 Rights of persons in custody 1. You are not supposed to be held in custody without being charged 2. While in custody, you are entitled to all your human rights and freedom except those you cannot reasonably enjoy because you are in custody. 3. While in custody, you have the right to apply to the court to demand to appear and be heard in a court of law (habeas corpus).
Article 48 Rights of accused persons and detainees Without overlooking (Subject to) articles 66, 66, 67, 68, 69 when you are accused or detained, you have the righta. To remain silent (not to speak) b. To be informed of the right to remain silence and the result ( consequences) of remaining silent c. To be told why you having been arrested or being detained as soon as possible in the language or manner that you will be able to understand. This may include brail or tactile diagrams for the blind or sign language for the deaf. d. Not to be forced (compelled) to confess or to accept the oence (admission) e. Not to be held separately from other persons serving a sentence. f. To have a police bond within 48 hours of being arrested unless where there are strong reasons why you should not be released on bond which reasons should
be brought before a court of law within 48 hours of your arrest or at the first day the court opens if the 48 hours fell outside the normal working hours of the courts of law. As an accused person, you should be tried with 90 days (3months).
Article 49 Fair trial 1.
You have a right to have a dispute or disagreement handled fairly and timely by a court of law or by a committee that does not take instructions from anyone (independent) and does not take sides with any one (impartial) put in place superficially to handle a particular issue (tribunal).
2.
As an accused or detained person, you also have a right to fair trial which include the righta. To be considered (presumed) innocent person until the courts says you are guilty. b. To be told as soon as possible in a way that you understand details of the offence you are being accused of to enable you answer. c. To be gibe enough time to things that you need (facilities) to help you answer to the accusations leveled against you (defend yourself) d. To be present when your case is being tried, unless it is not possible for you to be there because of the behavior (conduct) of the accused or detained person makes it impossible for the trial to take place or continue(proceed). e. To have the trial started (commenced) and judgment given without wasting time for no justifiable reason ( unreasonable delay) f. To be rewarded (compensated) for wrongful detention or imprisonment g. To be represented by a lawyer of your choice and to be informed about your right to have a lawyer before appearing before a court of law. h. To have a lawyer assigned to you with all costs paid by the state using public resources if it is seen that not assigning a lawyer to you would not help you to get a fair trial (justice). I. To be told about your right to have a lawyer (legal representation ) j. To remain silent during trial and not to testify during the proceedings k. To challenge and give your own ( adduce) evidence to as proof to support your argument l. Not to have evidence obtained without following the law used in a court of law m. Not to be forced to give evidence against yourself (self incriminating ) n. To have without payment the assistance of an interpreter o. Not to be charged, taken to court and pronounced guilty for something you did or did not do at a time when there was no written law to make such as action or non action an offence.
3. a. b. c. d.
Where information is required to be given to you in relation to article 49, that information shall be; In a language that you understand In braille or tactile for the visually impaired (blind) In sign language for the death In other forms of communication suitable to the intended receiver
Article 50 (Right to re-trial and re-examination of evidence) 1. If you have been convicted and your appeal has been dismissed by the highest court, you have the right to ask the Supreme Court to review your case if
strong evidence is found. 2. Where there is strong evidence that a convicted person may be innocent, the government may also ask the Supreme Court to review the case and determine whether the person committed the oence or not.
Article 51 Equality of both genders 1. Women and men have the rights to be treated and given the same chances. 2. Women and men have same (equal) rights own, inherit, use, control and manage property. 3. Women and men have equal rights in marriage and at the and at the point of divorce. 4. Without limiting (restricting) a right or freedom, women and men have the right toa. Reproductive health services including family planning, access to information and education relating to the same. b.
c. d. e.
Obtain, change or maintain their nationality or change the nationality of their child as long as changing the nationality of the child is in the best interest of that child. Choose where to live Decide who takes care of a child Choose a family name.
Economical Social, Cultural and Environmental Rights Article 52 Economic and social rights 1. a. b. c. d. e. f. 2.
You have the right, as laid down, to: Health care services Acceptable standard of housing Clean and safe water Acceptable standards of sanitation Social protection Education You should not be denied urgent medical treatment
Article 53 Choice of trade, occupation or profession A person has the right to choose a trade, an occupation or profession unless restricted by law.
Article 54 Labour Relations 1. You have a right to choose what you want to do in life. 2. When you are employed you have the right to: a. Fair pay according to the work you do and the size of the company. b. Your working conditions should also be suitable.
c. d.
You should further get beneďŹ ts according to the position you hold, the salary you have and the number of years you worked. You are free to join a trade union and to take part in its activities including going on lawful strike.
3. A company or employer has the right to join an employers' association and to take part in its activities including shutting down part or the whole company depending on the situation. 4. Both trade unions and employers' organisation have the right to decide how they operate and to form umbrella organisations.
Article 55 Consumer Rights You have the right to quality services and goods and correct information on them. You have the right to be compensated for loss or injury due to faulty goods and services. You have the right to fair honest and decent advertising of goods and services.
Article 56 Language, Culture and Intellectual Property Rights 1. Depending on the oďŹƒcial language of Zambia which is English and as stated in Article 258 of the Amended Constitution of January 2016 you have the right to use a language that you want. 2. If you belong to a cultural or linguistic (language) group you, with the other members of your group, have the right to: a. Enjoy the culture b. Form, join or maintain the cultural or linguistic group 3. No one should force you to take part in cultural practices or to join or be dutiful to a cultural or linguistic group. 4. The government has to take into consideration science, technology and local technology in national development. It has to support, promote and protect creations of the mind such as devices, literature and art.
Article 57 Environment You have a right to a safe, clean and healthy environment.
Article 58 Progressive realisation of economic, social, cultural and environmental rights 1. The government has to take deliberate, concrete and clearly targeted possible means towards providing the basic minimum of economic, social, cultural and environmental rights. 2. Where someone takes the government to court for failing to provide economic, social, cultural and environmental rights it is the responsibility of the government to prove that the resources are not available. 3. The Constitutional Court shall not interfere with the government's allocation of resources. (weak and seems to negate 1 and 2).
FURTHER AND SPECIAL RIGHTS Article 59 Further rights for older members of society An older member of society is one who has reached 60 years and above. As an older member of society you are entitled to: a. Fully take part in the affairs of society. b. Improve your wellbeing by obtaining knowledge and skills you require to do so. c. Live independently as well as to be provided with social protection.
Article 60 Further Protections and rights relating to marriage and family 1. The family is the accepted and basic unit of society and the foundation of social order and the government shall acknowledge and protect it. 2. A person who has reached 19 years of age and above has a right to choose and marry someone of the opposite sex 3. The government shall ensure the right of women to suitable maternity leave, men to available suitable paternity leave, available mother and child health care and the establishment of child care facilities. 4. A pregnant or breast feeding woman, if convicted of a crime should not be sent to prison unless she poses a danger to society.
Article 61 Special and further rights for children A child is a person that has reached or is below 18 years old If you are a child you: 1. Are equal before the law. 2. In all decisions and actions concerning you, your best interest will guide the decisions and actions. 3. Your mother and father whether married or not have an equal duty to protect and care for you. 4. You have the following further civil and political rights to: a. A nationality; b. Registered at birth and to a name; c. Be protected against corporal punishment or other forms of violence and inhumane treatment at home, school and other places that are responsible for caring for children; d. To be protected from armed conflict and hostilities; e. To be protected from sexual abuse or exploitation; f. To be protected from harmful cultural practices; not to be in prison because of the mother's imprisonment; g. Not to be detained unless there is no other way. If you have to be detained you should not be locked up for more than 48 hours, not be locked up with adults, should be given legal help, should be treated according to age and gender and be tried in a Children's Court. h. When in conflict with the law your identity should not be exposed to the public. i. You should not be treated differently (discriminated against), neglected or
j. k. l. m.
abused. Not to be engaged in work that may harm your health or welfare. Not to marry or be forced into marriage. Your views to be heard and to be taken into consideration according to your age and maturity. When found guilty to be ordered to undergo other programmes (diversion) instead of prison.
5. As a child you have a right to: a. Parental care or if separated from parents to other suitable care b. Free primary and secondary education c. Survive and develop d. Suitable nutrition, shelter, basic health care services, social protection and social services. e. A standard of living that helps you to grow up well, healthy and a good person in society. 6. As a child the government has to provide care for you if: a. You have special needs b. You are an orphan c. Your parent or guardian is in prison d. Your parent or guardian is not ďŹ t to look after you e. You have a disability f. You are a refugee g. You are homeless, live and spends time on the streets
Article 62 Further rights for youth A youth is a person who has reached 19 years but is below 35 years old. If you are a youth you have a right to: a. Personal development. b. Take part in decisions in the running of the country (governance) c. Access beneďŹ cial employment d. Participate in all aspects of national life be it social, economic or political
Article 63 Further Protection of Young Person A young person is a person who has reached 15 years but below 19 years old. If you are a young person you may work for a salary but you should not be employed in a job that may harm your health, interfere with your education or with your physical, mental or moral development.
Article 64 Further rights for persons with disabilities You have a right to: a. Education, access to physical environment, appropriate forms of communication to allow you to take full part in society. b. Be talked about in respectful manner that is not demeaning and in accordance with human dignity. c. Access tax free materials and devices that assist you to lead an independent life. d. Be given equal opportunities in all areas of life. e. Social protection that reduces poverty and helplessness (vulnerability) f. Personal development.
NON DEROGABLE RIGHTS AND FREEDOMS, LIMITATIONS AND DEROGATIONS Article 65 Non Derogable Rights and Freedoms There are some rights that can be suspended briefly in order for the country to deal with a threat or emergency. The brief suspension of some rights to deal with a problem that has arisen in the nation is called derogation. Derogation of rights is temporary and must be lifted once the threat or emergency is over. But there are also fundamental rights that cannot be suspended under any circumstance. These rights are called non derogable rights and freedoms. In our Bill of Rights the non derogable rights are: 1. Protection from cruel treatment and security of person. 2. Protection from slavery, bondage or forced labour. 3. Freedom to conscience (sense of right and wrong), belief (principles) and religion. 4. The right to a habeas corpus (to apply to bring the imprisoned person before the court). 5. Not to be sent back to a country where you would be harmed if you returned (Non Refoulement}. 6. A right to a fair trial
Article 66 Limitations on rights and freedoms Limitations are ordinary restrictions on rights such as trespass to restrict the freedom of movement. Under Article 66, a right or freedom is limited by: a. What is stated in the right itself. b. The limitations in this Article and Article 67. c. Other limitations as set out in law that do not take away the essential content of the right or freedom. This depends on the nature of the right, the purpose for the limitation, the extent of the limitation and whether there are other ways to get the purpose required.
Article 67 Limitations and restrictions under law A law that limits or restricts a right or freedom is valid only if: a. The law is required for public wellbeing local or national planning, taxation, development, management and use of natural and mineral resources. b. To get property for the benefit of the public but after the original owner is compensated. c. For a contract or other legal agreements. d. For licencing of activities. e. To enforce a court decision. f. On defence or security, public or constitutional officers.
Article 68 Derogation of rights and freedoms during emergency or national disaster During war, state of public emergency or national disaster actions taken by the government will be consistent with this article if: a. The act is justiďŹ able for dealing with the situation b. There is a law that provides for detention of persons during or threatened war or state of public emergency
Article 69 Measures applicable during war or emergency 1. If a person is detained during or threatened war or state of public emergency the following shall apply: a. Within 14 days from the beginning of the detention or as soon as reasonably practical be told in writing the reasons of the detention or restriction. b. Not more than 7 days from the beginning of the detention publish the detention in the Gazette naming the place where the person is detained and stating the law under which the detention is based. c. If the detained person requests at any time during detention or not more than 21 days from the date of the detention and thereafter every 30 days the case shall be reviewed by the Constitutional Court. d. The detained person shall be helped to choose a lawyer who shall be allowed to make arguments, on behalf of the detained person, to the authority that ordered the detention or to the Constitutional Court. e. At the hearing of the matter in the Constitutional Court, the detained person may challenge the detention or the declaration of war, or actual or threatened state of public emergency. 2. The President may refer to the Constitutional Court to review the case of the person detained under a lawful detention order. 3. The Constitutional Court shall review and make a decision on the matter.
Article 70 Enforcement of Bill of Rights 1.
A person who claims that his or her right is being violated can apply for correction to the Constitutional Court or to another court which is accessible to him or her.
2.
A person may bring an action on behalf of another person whose rights are being violated.
Article 71 Report on the realisation of rights and freedoms The President of Zambia shall each year report on the progress of the implementation of the Bill of Rights to the National Assembly.