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.