“The state and every person, including juristic persons, and every institution and agency of government at every level” has the obligation to “respect, protect, promote and fulfil” the rights in the Declaration of Rights/Bill of Rights. This is what Section 44 of the Constitution of Zimbabwe (Amendment No: 20 Act 2013) provides. This means natural person (human beings) and juristic person (companies, organisations, and institutions) have responsibilities under the Constitution to observe the rights of others.
The state has obligations under the Constitution to ensure that the rights it set out in the Constitution are safeguarded for all Zimbabweans. In the case of social and economic rights, the duties of the state are both negative and positive.
Negative duties mean that the state should not do certain things that, if done would prevent people from enjoying the rights. For example the state should not limit or deprive people of their right to water without good reason. They cannot close off water supply without giving notice; they have to give reasonable pre-termination notice. They cannot remove a borehole from a village and give it to a chief for his personal use. They cannot destroy a community’s own borehole and water tank simply because it was donated by people that the state does not like.
The positive duty places the responsibility on the state to do something to ensure that a right is guaranteed. For instance, again using the example of water, the state has to make sure that there is water supply and that the water is clean, this means setting aside funds in the budget to buy water treatment chemicals, building dams and reservoirs, maintaining pipes and other infrastructure that enables citizens to have clean and safe water.
Is electricity important?
There is no doubt that access to affordable electricity for all is desirable for development. Access to electricity, at a household level, has vast social and economic benefits. It is a source of energy for cooking, water heating, and ironing among other things. It provides lighting, which is very crucial for reading and also a critical part of the right to education. It is used for powering essential gadgets that guarantee preservation of food such as the fridge. It powers devices that are crucial in accessing critical information and also provide entertainment such as TVs, satellite, radios, telephones (cell-phones) computers (through the internet).
At a national level, electricity is key to development. It drives production in almost every industry and enables businesses to function more efficiently. Electricity is needed for productivity be it for water pumps that supply an irrigation system on a maize farm, regulating temperatures in a chicken run on a chicken farm, powering sewing machines in a clothes manufacturing company, keeping machines powered in a tech company, powering game boards in a casino, playing music in a disco or preserving meat in a butchery.
Is access to electricity a right?
The question can be asked, whether access to affordable electricity can be qualified as a socio-economic right to which all citizens are entitled. This question deserves particular attention given that the Constitution of Zimbabwe recognises and spells out a number of socio-economic rights, some of which relate to basic services.
The Constitution does not directly or expressly provide for the right to have access to electricity. In fact, the Constitution is very specific on the rights protected and it would be very hard to read rights that are not expressly provided for in the Constitution. However, there are other rights whose fulfilment is compromised by the absence of electricity.
The right to equality/ non-discrimination
In Section 56(6) of the Constitution, the state has the obligation to:
“…take reasonable legislative and other measures to promote the achievement of equality and to protect or advance people or classes of people who have been disadvantaged by unfair discrimination, and
- Such measures must be taken to redress circumstances of genuine need…”
It is common knowledge and has been documented that there is unequal service provision of electricity. Certain parts of the city always have electricity because a political big-wig lives in that area. This is unfair discrimination on the grounds of political affiliation or social class or both. The right to equality not only requires that when policy choices are made, the state must ensure that the provision of public goods or services occurs equitably but also that everyone is entitled to equal standards of service provision. There should not be differential impact on poor consumers against rich consumers, on political party chefs against poor citizens.
It can be argued that unbalanced load-shedding is a violation of the constitution. Patterns of load-shedding which take into account where big political party chiefs live and ensure they always have supply are discriminatory. If the supply is not enough for everyone then the lack should be distributed to everyone. Further, the individuals who always have electricity supply are the same people who are tasked with ensuring that enough electricity is generated. How will they ever be motivated to ensure the availability of electricity when they always have it and are not affected by its scarcity?
Further, pre-paid meters disadvantage the poor who without paying will not get any electricity. There should be positive measures taken to reduce the cost of electricity to those consumers that simply cannot afford it. Such actions reflect the fundamental demands of pro-poor governance to ensure more affordable electricity and better quality of service delivery to poor people.
The right to human dignity
Electricity is a key component to alleviating poverty. Electricity is used in almost every aspect of life. It is necessary for cooking, storing food, space heating, information, lighting etc. Without sufficient electricity, poor households cannot sufficiently respond to aspects of health, welfare, education and safety. Furthermore, the lack of access to electricity and the increasing costs, forces most poor households to depend on wood as an alternative, which also has a negative impact on the environment. To guarantee these rights and the dignity of citizens, the provision of electricity becomes a matter of right and should not be a privilege.
The right to housing
Several human rights bodies (tasked with the interpretation of international law) have given interpretations that make the right to electricity an implied right under the right to housing. For example, the United Nations Committee on Economic, Social and Cultural Rights (CESCR), which monitors compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR), (which Zimbabwe ratified) with respect to the right to adequate housing (1991), stated that:
“All beneficiaries of the right to adequate housing should have sustainable access” to “energy for cooking, heating and lighting.”
Although the reference is to energy rather than electricity specifically, the United Nations Special Rapporteur on adequate housing, Miloon Kothari, has clarified in his reports that the right to adequate housing “includes access to essential civic services such as electricity.”
The Convention on the Elimination of All Forms of Discrimination Against Women (1979), (which Zimbabwe also ratified) also states that:
“States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas … to ensure … the right … to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply…”
Section 46(1) of the Constitution of Zimbabwe provides that, “When interpreting this Chapter (Declaration of Rights/Bill of Rights), a court must take into account international law and all treaties and conventions to which Zimbabwe is a party.”
The Constitution establishes that, for the purposes of interpretation, international law shall include non-binding as well as binding law. This therefore means that the interpretations to the right to housing given as examples above should be factored in the interpretation of the right to shelter in our constitution and that there is therefore a strongly implied right to electricity in Zimbabwean law.
The right to health
Without electricity, hospitals and clinics are incapable of providing critical services. Certain procedures and processes such as dialysis, scans, x-rays, incubators for premature babies among others work on electricity. The unavailability of electricity is hence a violation of the right to health and in some cases could result in death, another violation to the right to life.
What would it mean to recognise electricity as a right?
If electricity is a right, the state is subject to the same obligations as other socio-economic rights in the Bill of Rights; requiring the state to take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right.”
Therefore, government programmes must respond to citizens’ requirements for electricity and ensure that electricity is made more accessible not only to a larger number of people but to a wider range of people, paying particular attention to the most vulnerable such as the poor. It would also mean that government has an obligation to take all means necessary to ensure the availability of electricity as a key priority area, just as it would ensure the availability of doctors and drugs in hospitals or teachers in schools as bare minimums in realising the right to health and education, respectively.