Please follow and like us:

EMERGENCY POWERS AND THE FRAGILITY OF RIGHTS: WHEN THE CONSTITUTION CAN SUSPEND ITSELF

By Princess Eugene Majuru

Every constitution must prepare for moments of crisis—war, natural disasters, or national instability. Zimbabwe’s 2013 Constitution does this through provisions that allow the declaration of a state of emergency. These provisions are intended to protect the nation. Yet they also introduce one of the most delicate tensions in constitutional law: the ability of the state to limit or suspend rights in the name of security.

The question is not whether emergency powers are necessary. The question is how far they can go—and what safeguards exist when they are invoked.

1. The Legal Basis for Limiting Rights

The starting point is Section 86(1), which provides:

“The fundamental rights and freedoms set out in this Chapter must be respected and upheld by the Executive, Legislature and Judiciary…”

However, Section 86(2) introduces a critical qualification:

“The fundamental rights and freedoms… may be limited only in terms of a law of general application…”

What this means:

Rights are not absolute

The Constitution allows limitations under certain conditions

The State can legally restrict freedoms

This is standard in many constitutional systems—but it is where flexibility enters the rights framework.

2. Declaration of a State of Emergency

Section 113(1) provides:

“If the President considers that a situation has arisen which threatens the life of the nation… he or she may, by proclamation in the Gazette, declare that a state of public emergency exists.”

Key issue:

The threshold for declaration is tied to what the President “considers”.

Implication:

The decision is executive-driven

The initial trigger is not independently determined

Significant discretion lies with one office

3. Duration and Extension of Emergency Powers

Section 113(2) states:

“A declaration of a state of public emergency is effective for a period not exceeding fourteen days…”

Section 113(3) adds:

“Parliament may extend the declaration… for further periods not exceeding six months at a time.”

On paper:

There is a time limit

Parliament plays a role in extension

In practice:

Extensions can be repeated

Oversight depends on parliamentary dynamics

4. Rights That Can Be Limited

Under a state of emergency, certain rights may be restricted to maintain order and stability.

While Section 86 protects core rights, others may be limited, including:

freedom of movement

freedom of assembly

certain procedural protections

The risk:

rights that are ordinary in times of peace can become conditional in times of crisis

5. The Safeguards: Present but Conditional

The Constitution does include safeguards.

For example:

Parliament must approve extensions (Section 113)

Courts retain interpretive authority

Some rights remain non-derogable (cannot be limited)

However:

These safeguards depend on:

institutional independence

political balance

access to courts

6. The Core Constitutional Tension

Emergency powers create a paradox at the heart of constitutional governance:

The Constitution exists to protect rights

But it also allows those rights to be limited under certain conditions

This produces a dual reality:

the Constitution both guarantees rights and provides mechanisms to restrict them

7. The Risk of Overreach

Where emergency powers are broad and discretionary, several risks emerge:

prolonged states of emergency through repeated extensions

limitations on civil liberties beyond immediate necessity

reduced space for public participation and dissent

Even if not intended, the structure itself allows for expansion of executive authority during crises.

8. The Deeper Question: Who Guards the Constitution in a Crisis?

When emergency powers are invoked, the balance of power shifts:

toward the executive

away from ordinary rights protections

into a more centralised decision-making structure

This raises a fundamental question:

If the Constitution can be limited during emergencies, what ensures that those limitations remain temporary and proportionate?

Necessary Powers, Fragile Protections

Zimbabwe’s Constitution recognises the need for emergency powers and provides a structured framework through Sections 86 and 113. It attempts to balance national security with rights protection.

However, the balance is delicate.

The Constitution allows rights to be limited:

based on executive judgment

subject to parliamentary extension

within a system that relies on institutional integrity

The result is not a failure of constitutional design, but a point of vulnerability.

Emergency powers are necessary—but they are also where constitutional protections are most at risk.

In this sense, Zimbabwe’s Constitution contains both:

the tools to protect the nation, and the mechanisms that can temporarily weaken the rights it seeks to guarantee.

The challenge is ensuring that in moments of crisis, the Constitution does not lose the very protections that define it.

Please follow and like us:

Comments

comments