This is an application made in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”) for appropriate relief based on a freedom of religion claim.The application raises questions of the constitutionality of the policy and the actions of the education authorities of compelling school ...
This is an application made in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”) for appropriate relief based on a freedom of religion claim.
The application raises questions of the constitutionality of the policy and the actions of the education authorities of compelling school children to salute the national flag and to say the words “Almighty God, in whose hands our future lies” in the process of reciting a pledge of allegiance to the country....,.
The objection by the applicant, to his children being forced to salute the national flag as being contrary to their religious belief, is based on a literal interpretation of the “Holy Scriptures”, particularly the book of Exodus. Chapter 20 verses 3-5 of the Book of Exodus is in these words:
“3. You shall have no other gods before me.
4. You shall not make for yourself a graven image or any likeness of anything that is in heaven above, or that is in the earth beneath or that is in the water under the earth….,.
5. You shall not bow down to them or serve them, for I the LORD Your God am a jealous God…,.”
Based on the literal interpretation of the above excerpt from the Bible, the applicant and his children hold the belief that worship must be reserved for God only. They believe that the national flag, as a secular object or symbol, is a graven image and that to salute it is to worship the flag.
According to the applicant, being compelled to salute the national flag is to coerce his children to perform an act contrary to their religious belief. He argued, on account of his religious belief, that his conscience remains tormented and gives him no rest or peace when his children take part, under compulsion, in the recitation of the pledge in the current form, which includes pronouncement of the act of saluting the national flag. The applicant, without desire to show disrespect for the national flag and the country, interprets the Bible as commanding, at the risk of God's displeasure, that his children must not go through the form of a pledge of allegiance that involves saluting a secular object such as a flag....,.
That recitation of the pledge is made compulsory in schools has not been disputed by the respondents. The applicant, in his founding affidavit, made a positive allegation to the effect that he had been informed that his children were required to memorise and recite the pledge at the beginning of the next school term on 3 May 2016.
The respondents did not deny the allegation in their opposing affidavit....,.
The circular or directive, to the effect that it was compulsory for every school child to recite the pledge and to salute the national flag, had no legal sanction behind it in the sense that it was not issued under the authority of any statute.
The Education Act [Chapter 25:04] does not empower education authorities to compel a child to do anything which is against his or her religion or religious belief.
Without a provision under the Education Act, in terms of which the legality of their conduct could be tested, the education authorities adopted a position that accepted that their conduct was a direct infringement of the right to freedom of religion.
They sought to justify the conduct by saying that it is authorised by the preamble to the Constitution....,.
JUSTIFICATION OF INFRINGEMENT OF THE RIGHT TO FREEDOM OF RELIGION
Limitation of Fundamental Rights
The contention by counsel for the applicant was that the applicant is proposing a pledge of allegiance, the formulation and execution of which respects the religions and religious beliefs of the school children who have to recite it.
There is, of course, the need to ensure that the public interest in the realisation of the legitimate objective of instilling in school children the virtues of the values of patriotism and the other ethical precepts embraced by the pledge through its recitation is protected.
Counsel for the respondents did not challenge the premise of the proposition on which counsel for the applicant built and advanced the applicant's case.
The reason is that counsel for the applicant's argument was based on a premise, the essence of which was an acceptance of the legitimacy of the secular objective of inculcation of patriotic feelings in school children. He argued, strongly, that what was objectionable about the pledge, in the current form, was the inclusion of the element of compulsion on the children to do acts and to say words contrary to their religious beliefs as part of the pledge as a means of accomplishing the legitimate objective.
Counsel for the applicant's contention was simply that it was the substantive effect of the compulsory religious part of the means chosen for the achievement of the legitimate objective that rendered the pledge unconstitutional.
Having come to the conclusion that the compulsory recitation of the pledge in schools infringes the rights guaranteed under section 60 of the Constitution, the next inquiry is whether the pledge can be saved under section 86(2) of the Constitution or must be declared constitutionally invalid.
Section 86(3) of the Constitution makes provision for fundamental human rights which are non-derogable. The right to freedom of religion is not one of them. It is not unlimited. The justification for limitation of fundamental human rights and freedoms is the principle that they must be reasonably exercised and with due regard for the rights and freedoms of other persons.
The principle enshrined in section 86(1) of the Constitution recognises the fact that, like all the fundamental rights, freedom of religion, guaranteed under section 60, has, as its point of departure, the view of a human being in the Constitution as a responsible personality, developing freely within the social community. It can be restricted by the Legislature by a law of general application with constitutional anchors and sufficient safeguards for the rule of law when community goods are endangered.
Section 86(2) of the Constitution contains requirements, the contents of which include compelling public interests that would justify certain restrictive State actions and limit the exercise of the right to freedom of religion.
The State can limit the exercise of the right to freedom of religion only to the extent and in the manner prescribed under section 86(2) of the Constitution.
An examination of the contents of the requirements of acceptable limitation of a derogable fundamental right or freedom shows that the object of section 86(2) of the Constitution is to ensure that the essence of the fundamental right or freedom is preserved. The primary constitutional duty on the State is to protect and promote fundamental human rights and freedoms enshrined in Chapter 4. The power to limit the exercise of derogable fundamental human rights and freedoms is an exception to the primary duty to respect, protect, promote and fulfil fundamental human rights and freedoms. It is for this reason that limitations to the exercise of fundamental human rights and freedoms must be construed strictly and narrowly, whilst fundamental rights and freedoms must be given broad and generous interpretation.
Section 86(2) of the Constitution provides:
“86 Limitations of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom, taking into account all relevant factors including…,.”…,.
Section 86(2) sets the minimum requirement for the limitation of a fundamental right.
A proper reading of the section points to the fact that only a law of general application may limit a right enshrined in Chapter 4 of the Constitution. The limitation section is premised upon the fundamental tenet of the rule of law which reinforces the idea that public authority may only be exercised where the law clearly provides for it.
CURRIE and De WAAL in 'The Bill of Rights Handbook' (6ed, Juta & Co (Pty) Ltd 2013)…, describe the concept behind the requirement that the limitation must be in terms of a law of general application as follows:
“The 'law of general application' requirement is the expression of a basic principle of liberal political philosophy and of Constitutional Law known as the rule of law. There are two components to this principle;
The first is that the power of the Government derives from the law. The Government must have lawful authority for its actions, otherwise it will not be a lawful Government but will be despotism or tyranny.”
In Chimakure and Ors v The Attorney-General of Zimbabwe 2013 (2) ZLR 466 (S), the Court fortified the position that the rights enshrined in Chapter 4 can only be limited in terms of the law. The Court held as follows…,:
“It is a fundamental principle of Constitutional Law that any restriction which hinders the enjoyment of a fundamental right must be introduced by a legal provision.
The grounds for the justification of the restriction must be found in the law by which it is imposed.
Fundamental rights and freedoms and other constitutional values are protected by the fundamental law which is the supreme law of the land. Restrictions imposed on them must be consistent with the fundamental law otherwise they are void.
The requirement that the restriction on the exercise of the right to freedom of expression must be contained in law is expressive of and consistent with the principle of the rule of law. The principle is to the effect that every governmental action which adversely affects the legal situation of persons in a free and democratic society must be justifiable by reference to an existing law.”
The dictum of NGCOBO J in Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) is apposite. It was held as follows…,.:
“The exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution.”
While interpreting the requirement of section 1 of the Canadian Charter of Rights and Freedoms, to the effect that a limit on the exercise of freedom of expression must be “prescribed by law”, BROWNRIDGE JA, in Regina v Therens [1985] 13 CRR 193…, held as follows:
“The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law, within the meaning of section 1, if it is expressly provided for by statute or regulation or results, by necessary implication, from the terms of the statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule.”
See also R v Thomsen 1988 CanLII 73 (SCC) [1988] 1 SCR 640…,.
In McKinney v University of Guelph 1990 CanLII 60 (SCC) [1990] 3 SCR 229, the Supreme Court of Canada, per WILSON J, remarked as follows…,:
“Section 1…, serves the purpose of permitting limits to be imposed on constitutional rights when the demands of a free and democratic society require them. These limits must, however, be expressed through the rule of law. The definition of law for such purposes must necessarily be narrow. Only those limits on guaranteed rights which have survived the rigours of the law-making process are effective.”…,.
It cannot be gainsaid that a limitation of a fundamental right enshrined in the Constitution must be in terms of a constitutional provision, a statute and/or its subordinate legislation. This is because the limitation of a right must, of necessity, be as a result of a meticulous and extensive legislative process. The limits should be interpreted narrowly, thereby respecting the importance of the fundamental right or freedom sought to be protected and enforced.
A balance has to be found between respecting the religious freedom of the school children objecting to participation in the compulsory recitation of the pledge, as currently formulated, and the legitimate public interest in having the values of patriotism and the other ethical precepts referred to in the pledge inculcated into school children.
The Executive cannot introduce measures which have a direct impact on fundamental rights secured by the Constitution without there being a law that authorizes such action. Where such measures are taken in the absence of legislative provisions backing the impugned measures, the resultant effect is that the conduct will fall short of the standards set by section 86(2) of the Constitution and will consequently be void.
For the pledge to survive constitutional scrutiny, it must be established that it is contained in a law of general application.
PREAMBLE TO THE CONSTITUTION
As regards the legality of the pledge, it is the respondents' contention that the pledge was taken from the Preamble to the Constitution. It is on this premise that the respondents aver that the pledge does not violate fundamental rights enshrined in the Constitution, unless an inference is made that the preamble to the Constitution is ultra vires the substantive provisions of Chapter 4 of the Constitution.
The State has to convincingly establish, with something more than unproven assertions of administrative convenience, that limiting the otherwise constitutionally protected activity is reasonably justifiable in a democratic society. It must do so by reference to the substantive standards of permissible limitation of fundamental rights prescribed by section 86(2) of the Constitution.
The Preamble to the Constitution reads as follows:
“We, the people of Zimbabwe, united in our diversity by our common desire for freedom, justice and equality, and our heroic resistance to colonialism, racism and all forms of domination and oppression; exalting and extolling the brave men and women who sacrificed their lives during the Chimurenga/Umvukela and national liberation struggles; honouring our forebears and compatriots who toiled for the progress of our country; recognising the need to entrench democracy, good, transparent and accountable governance and the rule of law; re-affirming our commitment to upholding and defending fundamental human rights and freedoms; acknowledging the richness of our natural resources; celebrating the vibrancy of our traditions and cultures; determined to overcome all challenges and obstacles that impede our progress; cherishing freedom, equality, peace, justice, tolerance, prosperity and patriotism in search of new frontiers under a common destiny; acknowledging the supremacy of Almighty God, in whose hands our future lies; resolve, by the tenets of this Constitution, to commit ourselves to build a united, just and prosperous nation, founded on values of transparency, equality, freedom, fairness, honesty and the dignity of hard work; and, imploring the guidance and support of Almighty God, hereby make this Constitution and commit ourselves to it as the fundamental law of our beloved land.”
Whilst the fact that the religious words are in the Preamble to the Constitution, is, in itself, not a justification for violation of a fundamental right or freedom as required by section 86(2) of the Constitution,
it is important to locate the role of the preamble in the Constitution.
It is axiomatic that different constitutions assign different roles to preambles. The different functions played by preambles, in constitutional enterprises, are represented in the form of three models.
From Plato's Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy-making. Simply put, a preamble presents the history behind the constitution's enactment, as well as the nation's core principles and values. A preamble may be a part of the constitution. With summary formulae, it may express the fundamental ideas and constitutional aims that the makers wanted to engrave into the text of the constitution. They are sometimes enforceable, but in other jurisdictions, they are not viewed as formally operative.
ORGAD L in 'The Preamble in Constitutional Interpretation, International Journal of Constitutional Law, Volume 8, Issue 4, October 2010…, (2010) comments on the legal status of preambles in the following terms:
“The preamble has several functions:
To begin with, it has an educational purpose: it is one of the most significant sections of the Constitution that is mentioned in educational and public arenas. Unlike the Constitution, usually a very long document including complex provisions, the preamble is relatively short and is written in a more accessible language.
Next, the preamble has an explanatory purpose: it serves to specify the reasons for the Constitution's enactment, its raison d'etre, and eternal ideals.
In addition, the preamble has a formative purpose: it constitutes a political resource for the consolidation of national identity and serves as a national 'calling card'.
The preamble has a legal purpose as well.
This section sketches a three-part typology of preambles: a ceremonial preamble, an interpretive preamble, and a substantive preamble.”
As has been said above, there are basically three types of preambles:
(i) The first one is the ceremonial preamble.
A ceremonial preamble, as per Plato's assertion, is designed to convince the people why laws are morally good. Laws are intended to establish a self-controlled society, and, to that end, they need to be virtuous. This virtue is established in the preamble, the soul of the law, which sets the tone for the people to freely comply with the law. It is a vehicle by means of which the legislator “sells” legislation to the people. Plato's notion of a preamble is meant to justify the law. A good preamble would persuade the people to obey the law, not because of civil or criminal sanctions but because it is a good law. The purpose of the preamble is to mitigate the harshness of the law and thus a law without a persuasive preamble is a “dictatorial prescription.” Plato's preambles use abstract terms and invoke poetic ideals. However, they are not regarded as an integral part of the law and they do not create rights or have binding interpretative power.
ORGAD L in 'The Preamble in Constitutional Interpretation, International Journal of Constitutional Law, Volume 8, Issue 4, October 2010 is of the view that an example of a ceremonial preamble is contained in the Constitution of the United States because it is persuasive, symbolic, and, generally, has no legal force. It is couched in the following manner:
“We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
(ii) The second type of preamble is the interpretive preamble.
The use of preambles in constitutional interpretation is quite usual in Common Law and Civil Law legal systems. This role of preambles is particularly emphasized when they include keynotes or guidelines for constitutional interpretation. A good example is the preamble to the Constitution of South Africa. In interpreting the preamble to the Constitution of South Africa, the Constitutional Court of South Africa, in United Democratic Movement v Speaker of the National Assembly and Others [2017] ZACC 21…, stated the following:
“The Preamble to our Constitution is a characteristically terse but profound recordal of where we come from, what aspirations we espouse, and how we seek to realise them. Our public representatives are thus required never to forget the role of this vision as both the vehicle and directional points desperately needed for the successful navigation of the way towards the fulfilment of their constitutional obligations. Context, purpose, our values as well as the vision or spirit of transitioning from division, exclusion and neglect to a transformed, united and inclusive nation, led by accountable and responsive public office-bearers, must always guide us to the correct meaning of the provisions under consideration. Our entire constitutional enterprise would be best served by an approach to the provisions of our Constitution that recognises that they are inseparably interconnected. These provisions must thus be construed purposively and consistently with the entire Constitution.”
In S v Mhlungu and Others 1995 (3) SA 867 (CC)…, the court stated that:
“The Preamble, in particular, should not be dismissed as a mere aspirational and throat-clearing exercise of little interpretive value. It connects up, reinforces, and underlies all of the text that follows. It helps to establish the basic design of the Constitution and indicate its fundamental purposes; (see too the concluding passages.) This is not a case of making the Constitution mean what we like, but of making it mean what the framers wanted it to mean; we gather their intention not from our subjective wishes, but from looking at the document as a whole.”
(iii) In respect of the third class of preambles, named, substantive preambles, they can be regarded as legally binding constitutional clauses and they serve as independent sources for rights and obligations.
An example of a substantive preamble that governs constitutional interpretation is in France where the Constitution of the Fifth Republic (1958) provides as follows:
“The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004. By virtue of these principles, and that of the self-determination of peoples, the Republic offers to the overseas territories which have expressed the will to adhere to them new institutions founded on the common ideal of liberty, equality, and fraternity and conceived for the purpose of their democratic development.”
The Preamble to the 1958 Constitution did not originally enjoy binding legal force, nor was it even considered an integral part of the Constitution. However, on 16 July 1971 the Conseil Constitutionnel (Constitutional Council) recognised the preamble's binding force as an independent legal source of human rights. For the first time, the Constitutional Council found an Act passed by the French Parliament to be unconstitutional because it contradicted freedom of association, one of the “fundamental principles recognised by the laws of the Republic.”
See Constitutional Council - Decision No.71-44 DC of 16 July 1971.
In India, the significance of the preamble in a Constitution was underscored in the case of Kesavananda Baharati v State of Kerala (1973) 4 SCC 225. At para 538 the court held:
“We shall first deal with the preamble in our Constitution.
The Constitution makers gave to the preamble the pride of place. It embodied, in a solemn form, all the ideals and aspirations for which the country had struggled during the British regime and a Constitution was sought to be enacted in accordance with the genius of the Indian people. It certainly represented an amalgam of schemes and ideas adopted from the Constitutions of other countries. But, the constant strain which runs throughout each and every article of the Constitution is reflected in the Preamble which could, and can, be made sacrosanct. It is not without significance that the Preamble was passed only after draft articles of the Constitution had been adopted with such modifications as were approved by the Constituent Assembly. The preamble was, therefore, meant to embody, in a very few and well defined words, the key to the understanding of the Constitution.”
A distinctly unique example of a substantive preamble appears in Nepal. Article 116(1) of the Constitution of Nepal, 2015 proclaims that “a Bill to amend or repeal any Article of this Constitution, without prejudicing the spirit of the Preamble of this Constitution, may be introduced in either House of Parliament.”
An analysis of the clause shows that it invalidates even a constitutional amendment which violates the spirit of the Preamble. In that regard, Nepal is unique, not only for the specific provision indicating the legal status of the Preamble, but also for taking additional measures to protect the Preamble's spirit.
In Zimbabwe, the preamble to the current Constitution can best be characterised as ceremonial.
It was formulated and added to the Constitution after the instrument and its normative provisions had been drawn up or drafted. The Preamble is not a numbered section in the body of the Constitution. It is not regarded as an integral part of the law as it does not create rights and obligations. The law is independent of the preamble.
It differs from the Preamble that existed in the Constitution prior to the Constitution of Zimbabwe Amendment (No.14) Act No.14 of 1996.
Prior to the Constitution of Zimbabwe Amendment (No.14) Act No.14 of 1996, the preamble to the Declaration of Rights was provided in terms of section 11 of the Constitution and it read as follows:
“Whereas every person in Zimbabwe is entitled to the fundamental rights and freedoms of the individual, that is to say, the right whatever his race, tribe, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely —
(a) Life, liberty, security of the person and the protection of the law;
(b) Freedom of conscience, of expression, and of assembly and association; and
(c) Protection for the privacy of his home and other property and from the compulsory acquisition of property without compensation; and
whereas it is the duty of every person to respect and abide by the Constitution and the laws of Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained herein, being limitations designed to ensure that the enjoyment of the said rights and freedoms, by any person, does not prejudice the rights and freedoms of others or the public interest.”
In interpreting the above preamble, the Supreme Court, in Rattigan and Ors v Chief Immigration Officer and Ors 1994 (2) ZLR 54 (S), found that the Preamble constituted part of the Declaration of Rights. The court made the following pronouncement…,:
“In In re Munhumeso and Ors 1994 (1) ZLR 49 (S) this court was of the view that the upgraded status of the provision from a Preamble, in each of the four earlier Constitutions, to a numbered section, signified that it is to be regarded as conferring substantive rights on the individual, and not merely a guide to the intention of the framers in enacting Chapter III. It was accepted to be the key or umbrella provision in the Declaration of Rights under which all rights and freedoms must be subsumed, and that it encapsulates the sum total of the individual's rights and freedoms in general terms, which may be expanded upon in the expository, elaborating, or limiting ensuing sections 12 to 23. I can perceive of no warrant to differ from that analysis and reiterate my respectful concurrence with the reasoning of AMISSAH JP and AGUDA JA in Dow v A-G supra in the passages of their respective judgments at 636E-637C and 669I-670C.”
It is therefore apparent that the preamble to the Declaration of Rights was construed as a substantive one.
Section 3 of the Constitution makes the intention of the makers thereof clear that Zimbabwe, as a constitutional republic, is based on its fundamental values and principles set out therein.
Section 3(1) is a clear declaration that the Constitution is the supreme law of the land and that any law, conduct, custom or practice inconsistent with its provisions is invalid to the extent of the inconsistency.
The constitutional provisions guaranteeing the fundamental human rights and freedoms take precedence over what is said in the Preamble. What is said in the preamble cannot be used to justify a limitation to a fundamental human right or freedom enshrined in Chapter 4 of the Constitution if such justification does not meet the requirements of acceptable limitation of a fundamental right or freedom prescribed under section 86(2) of the Constitution.
The current Preamble merely sets out the history behind the Constitution's enactment, as well as the nation's core principles and values.
A further key difference is that the current Preamble is a preamble to the whole Constitution, as opposed to the erstwhile preamble which was a prelude to the Bill of Rights.
It has been agreed that the current preamble to the Constitution is merely ceremonial or symbolic and that it does not confer any substantive rights. Consequently, the question that falls for determination is whether a pledge that is premised on such a preamble may be used as a basis to interfere with or limit fundamental rights contained in Chapter 4 of the Constitution.
This brings to the fore the issue pertaining to the limitation of fundamental rights in terms of section 86 of the Constitution.
It has been contended, by the respondents, that there is nothing wrong in “acknowledging God” at the beginning of the pledge, as the preamble to the Constitution acknowledges the same. It is from this background that the respondents justify the acknowledgment of a deity in the pledge.
As has already been established above, the preamble to the Constitution is ceremonial in nature and thus cannot be used to limit rights enshrined in the Constitution.
The Supreme Court of the United States had an opportunity to consider the effect of a ceremonial preamble of the Constitution with regard to executive power. HARLAN J, in Jacobson v Massachusetts 197 US 11 (1905), while delivering the opinion of the court, held as follows…,:
“We pass, without extended discussion, the suggestion that the particular section of the statute of Massachusetts now in question (137, c.75) is in derogation of rights secured by the Preamble of the Constitution of the United States.
Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.
Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted.
Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom.”…,.
It is not disputed that the pledge does not fall within any of the categories mentioned above, and thus does not qualify as a law for the purposes of limiting a fundamental right in terms of the limitation provision.
The pledge has the effect of denying the applicant's children, and other school-going children, their fundamental rights.
Since it is not authorised by any law, there is no possibility of justifying the infringement of the applicant's rights in terms of section 86(2) of the Constitution.