Ethnic Minority Language Speakers in Zimbabwe: Their Place and Challenges with

regards to their Linguistic Human Rights (LHRs) and Human Rights

Ndlovu Eventhough

evennthough@yahoo.co.uk
Department of South African Sign Language and Deaf Studies, University of the Free State

Introduction

This chapter seeks to establish the place of ethnic minority language speakers in the Zimbabwean
Constitution. It examines the apparent adequacy (or lack thereof) of constitutional provisions on
the status of ethnic minority languages, and to determine the status of ethnic minority languages
in education, media, health and in the judiciary as espoused in the Zimbabwean Constitution.
The chapter also outlines and discusses the challenges faced by ethnic minority language
speakers in Zimbabwe with regards to their Linguistic Human Rights (henceforth LHR) and
human rights. It concludes by proffering suggestions that will ensure that these speakers enjoy
their LHR and human rights.

Ethnic minority language speakers around the world share common problems relating to the
protection of their specific LHRs and human rights as distinct people. They are arguably among
the most disadvantaged and vulnerable groups of people in the world. For years, through bottom-
up language political change, they have sought to have their identities, LHRs and human rights
recognised. The 2013 Constitution of Zimbabwe Amendment (No.20) Act 2013 constitutes a
somewhat enabling policy environment on the LHRs and human rights of ethnic minority
language speakers in Zimbabwe. It reflects a collective consensus on their rights and establishes
a somewhat enabling framework for their survival, dignity and well-being. However, despite this
major milestone, there is still a gap between the formal recognition of these speakers’ linguistic
human rights and human rights and the implementation of the constitutional provisions on the
ground. Consequently, ethnic minority language speakers continue to face exclusion,
marginalisation and other challenges in enjoying their LHRs and basic human rights such as
access to education, health, information and justice.

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Language legislation provides the legal and enabling environment for policy implementation. In
multilingual or linguistically diverse polities, without an appropriate language law, the natural
tendency is to increase the social and economic power of the dominant language community and
its hegemonic language at the expense of the numerical or social minorities (Zvobgo, 1997;
2007; Bamgbose, 1991; 2000; Webb, 2002; Batibo, 2001; 2005; Mwaniki, 2004; Ndlovu, 2011;
2013; Alexander, 2012). For this reason, language legislation is a very powerful language
planning tool for promoting ethnic minority languages. Multilingual language policy planning
and implementation involving ethnic minority language speakers therefore needs to be based on
a legal premise, namely, the Constitution.

For this reason, constitutional reforms are a critical and indispensable essential measure to ensure
the recognition, enjoyment, inclusion and promotion of the LHRs and human rights of ethnic
minority language speakers. A critical appraisal of the Zimbabwean Constitution using critical
discourse analysis is indispensable in order to understand the position of ethnic minority
language speakers in Zimbabwe in as far as their linguistic human rights and human rights are
concerned.

Ethnic Minority Language Speakers’ Linguistic Human Rights and Human Rights in the
Constitution of Zimbabwe Amendment (No.20) Act

Skutnabb-Kangas (2006: 275-277) notes that binding educational clauses of human rights are
riddled with opt-outs, modifications, alternatives and escape clauses. These allow reluctant states
and policy makers and implementers to meet the requirements in a minimalist way, justifying
this by claiming that a provision was not “possible or “appropriate” or “reasonable practicable”.
This means that speakers of the languages concerned might, as far as possible and within the
framework of the state’s education system or whatever sector, enjoy some vaguely defined
rights. Skutnabb-Kangas notes that the articles covering language issues are so heavily qualified
that the speakers of the languages concerned are completely at the mercy of the state, policy
makers and implementers.

Skutnabb-Kangas (1998; 2003; 2006) notes that in binding clauses, especially in binding
educational clauses, two things often happen: language disappears completely or it gets very
weak treatment in legal instruments than other important human attributes. In some cases, the

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articles on education in human rights instruments are silent about the right to choose the
language in which education is provided, even though language is one of the most important
human attributes that should not be subject to discriminated. Based on Skutnabb-Kangas’
observation, this study examines the place and challenges of ethnic minority language speakers
with regards to their linguistic human rights and human rights.

The relevant sections in the Constitution of Zimbabwe Amendment (No. 20) Act are Sections 6,
16, 50, 56, 62, 63, 69, 70, 75 & 76. Given that Section 6 of the Constitution serves as the
reference point for the Zimbabwean language policy, the state, institutions and agencies of
government at all levels should align their policies regulating language use in their respective
domains with the Constitution in order to engender a culture of constitutionalism. Language
policy documents and statutory instruments regulating language use should be the vanguards of
the constitutional ethos, championing and guaranteeing linguistic human rights. They should take
their cues from the Constitution.

Section 6 of the Constitution provides the principal legal framework for multilingualism, the
development and promotion of respect and tolerance for Zimbabwe’s linguistic diversity. It
determines the language rights of citizens, which must be honoured. It exhibits a strong
awareness of the need to intensify efforts to develop the previously marginalised indigenous
languages and promote multilingualism and multilingual service provision in Zimbabwe,
especially Section 6 (3) (a) and (b) as well as 6 (4). There is a clear wish to promote and create
conditions for the development and use of all the officially recognised languages, which is
expressed through the obligatory must.

In obligatory, binding, forceful, positive and firm terms, the Constitution states that the State and
all institutions and agencies of government at every level must ensure that all officially
recognised languages are treated equitably; take into account the language preferences of people
affected by government measures or communications; promote and advance the use of all
languages used in Zimbabwe, including Sign language; and create conditions for the
development of the officially recognised languages. In Africa and the world over, the
Zimbabwean Constitution is among the few that acknowledge Sign language.

Limitations of Section 6

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However promising the Constitutional framework relating to the accommodation of the ethnic
minority languages is, practice reveals a de facto denial of the ethnic minority language
speakers’ linguistic human rights and human rights, especially given that language rights are
indispensable to the enjoyment of other basic human rights, thus language rights facilitate the
enjoyment of other basic human rights. Practice also reveals a de facto denial of several other
principles relating to the status of ethnic minority language speakers and multilingual service
provision, which go hand-in-hand with the entrenchment of the hegemony of English, Shona and
Ndebele, respectively.

While the aim of this section is to assert the position of ethnic minority languages, the bias
towards English, Shona and Ndebele is quite apparent. The role and place of the hegemonic
English, Shona and Ndebele is covertly and overtly secured to maintain the nationist and
nationalist ideology of the current ZANU PF government. The section conforms to Bambgose’s
(1991; 2000; 2007) characterisation of language policies of African countries that they are
characterised by avoidance, vagueness, fluctuation, arbitrariness and declaration without
implementation. In this chapter, it is argued using Critical Discourse Analysis that Section 6
embodies the various forms of declaration without implementation. Inasmuch as the policy
provisions of the Constitution of Zimbabwe Amendment (No.20) Act are a welcome and
commendable policy development, especially when compared to the previous Constitution,
which was completely silent on language matters, it is not clear what informed the choice of the
16 officially recognised languages. A series of questions remain unanswered as to the criteria or
sociolinguistic/language surveys used to select these languages. In the July 2012 Draft
Constitution, the 16 languages were accorded the status of official languages. Why this shift
from official languages to officially recognised languages?

The phrase “officially recognised languages” is a vague formulation and a classic example of a
policy that is couched in sufficiently general terms. It goes down well with everyone, since it is a
“catch all” formula that is interpreted in a flexible manner by the media, scholars and politicians,
etc. The status “officially recognised” is therefore vague and does not empower previously
marginalised languages.

At the level of declarations, the presence of some of the ethnic minority languages is
acknowledged and recognised, but more detailed regulatory frameworks and instruments and

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concrete mechanisms for implementing Section 6 are either ineffective or non-existent. Section
6 is effectively a form of declaration without implementation because implementation
procedures and guidelines are not specified. As it stands, Section 6 remains a mere statement of
intent. The declarative constitutional provisions are not legally enforceable. There is need for an
enabling language policy framework for a coherent multilingual dispensation within the
parameters of the Constitution. This enabling language policy framework should take its cues
from the Constitution and also detail implementation guidelines/frameworks, formal procedures
and sanctions and incentives to discourage non-compliance and encourage compliance
respectively (Bamgbose, 1991; 2000; Webb, 2002; Batibo, 2001; 2005; Mwaniki, 2010; Ndlovu,
2011; 2013; 2018; Alexander, 2012).

Section 6 is not enforceable and infractions do not attract sanctions. The failure to put in place
sanctions to discourage non-compliance with policy stipulations, as well as mandatory follow-
ups and mechanisms to monitor progress in implementation are useful indicators of lack of
political will. The need for language legislation accompanied by sanctions to discourage non-
compliance is indispensable. Legislation relating to language empowerment is meaningless
unless it is accompanied by a detailed plan for implementation, sanctions to discourage non-
compliance and incentives to promote compliance.

If the non-observance of legislative provisions does not attract any sanctions, the policy is as
good as dead. Such legislation ought to be visible, enforceable and accessible to all language
speakers, especially in their languages. At least the Zimbabwean Constitution has been translated
into all the fifteen officially recognised languages as prescribed in Section 7. The plan for
implementation has to set down time frames for the achievement of certain objectives, expected
outcomes, domains of policy application and watchdogs for overseeing policy implementation.

Policy formulation without a clear statement of whose responsibility it is to enforce the policies
and ensure the adequate provision of resources, namely human and financial resources to support
such implementation amounts to carrying on with an existing policy. The absence of
implementation measures, watchdogs, sanctions and incentives means that the policy is likely to
remain unimplemented (Zvobgo, 1997; 2007; Bamgbose, 1991; 2000; Webb, 2002; Batibo,
2001; 2005; Mwaniki, 2010; Ndlovu, 2011; 2013; 2018; Alexander, 2012).

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The constitutional provisions of Section 6 attempt to accommodate Zimbabwe’s linguistic
diversity, but in practice there is no empowerment of ethnic minority language speakers to
ensure their equal participation in decision-making and access to services. There is no
institutional support for the language policy provisions. There is no body that is charged with the
responsibility of advising, making recommendations on implementation, enforcing and
promoting compliance and investigating language-related rights violations. Policy
implementation is a challenge when there are no structures that would enforce its implementation
and compliance with its provisions.

In order to address the language imbalances of the past, the South African government has, for
example, established the Pan South African Language Board (PanSALB), which serves as a
watchdog charged with enforcing compliance with the provisions of the Constitution and
providing for the recognition, implementation and furtherance of multilingualism and
multilingual service provision. PanSALB is an independent statutory body appointed by the
Senate in terms of the Pan South African Language Board Act No. 59 of 1995 (RSA, 1995). The
Board monitors compliance with constitutional provisions and principles relating to the use of
languages, and the content and observance of any existing and new legislation, practice and
policy dealing with language matters.

In addition, the South African government also established a range of support structures aimed at
ensuring policy implementation, such as the National Language Services (NLS) and National
Lexicography Units for each official language and policy frameworks such as The Language in
Education Policy of 1997, The National Language Policy Framework (NLPF) and the SABC
Language Broadcasting Policy. Moreover, all higher education institutions were mandated to
formulate language-in-education policies in a bid to ensure the implementation of the provisions
of the Constitution.

Bamgbose (1991:111-121; 2000:102-103) argues that language planning in Africa is

characterised by non-conformity with the rational processes of decision making. He argues that
in Africa, the neat and systematic nature of language planning is hardly ever followed. Rather,
decisions and decrees are arbitrary and apply with immediate effect. Language planning in
Africa is vested mainly in the area of policy formulation. Bamgbose further contends that the
planning that underlies, or is incidental to such policies is inferred from the policies themselves.

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According to Bamgbose (1991:142), language planning activities in Africa, particularly status
planning, do not fit the ‘rigid economic planning model’ in that policies are formulated without
prior cost-benefit analysis or fact-finding. Language planning is characterised by a pre-
occupation with policy-making, lack of continuity, bureaucratic monopoly of planning and elite
domination of policy-making. Language policies are conceived in a top-down manner with little
or no consultation with the recipient communities.

Zimbabwe is a multilingual country and the exact number of languages spoken in the country is
not known. The language policy in this country is covert. Current Zimbabwean language policy
elements and policy guidelines are enshrined in and inferred from the following documents: The
1987 Education Act as Amended in 2006; The Secretary’s Circulars Numbers 1 and 3 of 2002
and Director’s Circular Number 26 of 2007 on Policy Guidelines on the Teaching of Local
Languages in Primary and Secondary Schools in Zimbabwe and the Constitution of Zimbabwe
Amendment (No. 20) Act as well as various courts acts.

It is worth noting that Section 6 of the Zimbabwean Constitution is in keeping with Bamgbose’s
observation and submission that language planning in Africa is characterised by non-conformity
with rational processes of decision making, since no sociolinguistic surveys or fact-finding have
been carried out in Zimbabwe to ascertain the exact linguistic profile of the nation, including
information on the number of languages, their status, geographical spread, level of development
and popular attitudes towards them. There was no pre-planning where research and cost
estimation were undertaken in view of Section 6.

Planning efforts are crucial steps in the language planning process They include fact-finding,
consideration of alternatives, establishment of goals, selection, evaluation and the prediction of
outcomes in a systematic manner. Since no planning was undertaken prior to the drafting of the
Constitution, Section 6 is effectively a declaration without implementation because
implementation procedures and guidelines are not specified. It was arrived at without
conforming to rational processes of language planning and decision-making.

According to Mwaniki (2012:106), in order to give effect to the language provisions in the
Constitution, national, provisional, local government and institutional language legislation and
language policies require a coherent framework of measurable targets and goals to be achieved

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during the implementation process. Mwaniki further notes that the successful implementation of
multilingual language policies depends on the efficiency and effectiveness of the implementation
programmes put in place at national, provincial, local government and institutional levels.
Mwaniki stresses that the successful implementation of multilingual language policies also
largely depends on an optimal mix of the human, financial resource, and infrastructure
components required to meet the provisions of the legislation. Where Zimbabwe is concerned,
none of these critical issues have been addressed and most policies have not been amended and
aligned with the new Constitution.

Since the coming into force of the current Constitution, in practice, the implementation and
invocation of the provisions of Section 6 are not in evidence especially in view of ethnic
minority languages. The hegemonic English, Shona and Ndebele still enjoy prominence and in
practice, the use of ethnic minority languages is still severely restricted in a number of state
institutions and agencies of government. In essence, the actual practice of ethnic minority
languages falls well short of the promising forceful, binding and obligatory constitutional
principles of Section 6. Not much has been done so far to raise their status, and enforce their use
and development.

Section 50: Rights of Arrested and Detained Persons

Section 50 stipulates that: Any person who is arrested must be informed promptly at the time of
arrest of the reason for the arrest…–…(ii) …and must be informed of this right promptly. This
clause neglects to indicate that the arrested person should be informed in the language of his/her
choice or one which he/she best understands. A detailed discussion of the limitations of this right
is provided in Ndlovu (2017). If there is no implication or reference to the right to be informed
promptly in one’s language of choice or the language best understood by the arrested person, this
right is rendered void.

Language constitutes the basis and avenue for the enjoyment of other basic human rights. Any
violation of an individual’s language rights inevitably leads to a violation and compromise of the
concerned individual’s basic human rights. As such, the provisions of Section 50 fail to ensure
the enjoyment of the rights of the arrested and detained persons. This initial phase of the legal
process constitutes the foundation to the right to justice and should not be underestimated. It

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must be the entry point for the enjoyment of the right to justice by ensuring that the arrested and
detained person’s linguistic rights are guaranteed right from the point of arrest during the
investigation and detention up until the trial process.

As Laster and Taylor (1994:136) rightly observe, the right to an interpreter during arrest,
detention and investigation is more significant than the right to an interpreter in court
proceedings. Its rationale lies in securing trial fairness. Despite the centrality of this phase, the
importance of engaging a competent, qualified interpreter in cases where language is a barrier is
not yet recognised and acknowledged in Zimbabwe, as indicated in Section 50. There is no
regulatory framework for interpreting at this stage, and this constitutes a serious anomaly.

Personal observations and documentary analysis of charge sheets, state outlines and other court
documents show that poor, inaccurate and biased interpretations and translations provided by
police officers and prison officers are common. Police officers engage in a lot of translation and
interpretation activities, yet they possess less than elementary skills and understanding of the
dynamics of translation and interpretation and knowledge of the source language and target
language, especially in as far as ethnic minority languages are concerned. This situation is even
worse when the case involves Sign language. It is often the case that very few, if any, of the
officers, can sign or even interpret Sign language, but they have investigated cases involving
members of the Deaf community. It boggles the mind how they arrest and investigate in such
cases when they are not competent and proficient in ethnic minority languages, such as Sign
language. Zimbabwean courts do not have resident Sign language interpreters and a number of
cases involving the Deaf have been delayed, compromising the right to speedy access to justice,
to a fair hearing and the rights of witnesses, complainants, arrested, accused and detained
persons (See: https://www.newsday.co.zw/2015/09/absence-of-sign-language-interpreter-stalls-
court-case/; https://www.herald.co.zw/teach-sign-language-in schools/;
https://www.chronicle.co.zw/sign-language-must-be-broadly-used/;
https://www.chronicle.co.zw/courts-face-sign-language-challenges/).

In view of the foregoing, there is an urgent and dire need to legislate the right to an interpreter
during arrest, investigation and detention. Interviews should not commence until a properly
qualified, accredited and approved interpreter is present in cases where language is a barrier.
Police and prison officers, relatives, fellow inmates or other mere bilinguals should not be used

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as interpreters because bilingualism is not an adequate attribute of an interpreter and because
they do not have the skills and appreciation of the dynamics of interpreting. Moreover, their
engagement violates the essential ethical considerations of impartiality, conflict of interest and
role boundary.

Section 56: Equality and Non-Discrimination

Subsection (3) of Section 56 states that every person has the right not to be treated in an unfair or
discriminatory manner on as account of their nationality, race, colour, tribe, place of birth, ethnic
or social origin, language, class, religious beliefs, political affiliation, opinions, customs, culture,
sex, gender, marital status, age, pregnancy, disability…Unlike the previous Constitution, the
current one at least outlaws discrimination on grounds of language. Language is an important
human attribute that warrants separate mention because attributes such as race, place of origin,
national or ethnic, origin and colour do not always presuppose one’s language. As good as these
clauses may appear, the question that needs to be asked is how does one enforce this provision in
the absence of sanctions, incentives and watchdogs?

Section 62: Access to Information

According to Section 62,

(1) [e]very Zimbabwean citizen or permanent resident, including juristic persons and the
Zimbabwean media, has the right of access to any information held by the State or by any
institution or agency of government at every level, in so far as the information is required
in the interests of public accountability. (2) Every person, including the Zimbabwean
media, has the right of access to any information held by any person, including the State,
in so far as the information is required for the exercise or protection of a right. (3) Every
person has a right to the correction of information, or the deletion of untrue, erroneous or
misleading information, which is held by the State or any institution or agency of the
government at any level, and which relates to that person. (4) Legislation must be enacted
to give effect to this right, but may restrict access to information in the interests of
defence, public security or professional confidentiality, to the extent that the restriction is
fair, reasonable, necessary and justifiable in a democratic society based on openness,
justice, human dignity, equality and freedom.
Once again, no reference whatsoever is made to language, rendering this right void if there is no
implication or reference to the right to access to information in one’s language of choice. The
provisions do not guarantee access to information and knowledge in and about indigenous
languages. The clause therefore fails to ensure true access to information. Indeed, access to
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information from the media and other information disseminating organisation is a serious
problem for ethnic minority language speakers in Zimbabwe. A survey conducted with
organisations involved in information dissemination showed that they attempt to use ethnic
minority languages wherever possible, especially following their recognition as officially
recognised languages. Before the 2013 Constitution of Zimbabwe Amendment (No. 20) Act these
efforts were very minimal if not entirely non-existent (See Ndlovu, 2015).

In the print media, there is not even a single newspaper in any of these ethnic minority
languages, such that speakers of these languages effectively endure information blackouts. All
the ethnic minority languages share one radio station, National FM, where they compete for
airtime with Ndebele and Shona, which are also exclusively used on Radio Zimbabwe and
alongside English on Zimbabwean Television (ZTV). Most of the ethnic minority languages
(with the exception of those which are accorded the status of officially recognised languages and
a few others) in Zimbabwe are not used in the television station. ZBC was at some point dragged
to court by the deaf community for its exclusionary tendencies (https://www.herald.co.zw/zbc-
in-the-dock-over-sign-language/). The majority of National FM radio and television programmes
are in the dominant and hegemonic languages, English, Shona and Ndebele, respectively.

Language use for public, commercial and community radio and television stations in Zimbabwe
is regulated by Section 6 and Section 249 of the Constitution of Zimbabwe Amendment No. 20
Act and Section 11 (4 (a) – (b)) and the Seventh Schedule (Section 11 (1) (b1)) of the
Broadcasting Services Act (Chapter 13:06) as amended in 2007. A Critical Discourse Analysis
of the relevant policy provisions and observations of language use patterns show that public,
commercial, community radio and television stations have very limited airtime for ethnic
minority languages and do not adhere to the provisions of the Constitution of Zimbabwe relating
to the equitable treatment and use of the officially recognised languages which include some of
the ethnic minority languages. The Broadcasting Services Act (Chapter 13:06) as amended in
2007 is not aligned with the provisions of the new Constitution. Findings of the study also point
to the dire need for a language broadcasting policy that promotes and embraces multilingual
broadcasting. ZBC should draw lessons from the SABC, which has a language broadcasting
policy based on the Constitution and champions the constitutional ethos of ensuring multilingual
service provision.

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The findings of this study also show that even in commercial radio stations in Zimbabwe; the
trend is that English, Shona and Ndebele respectively enjoy the lion’s share of airspace. In as
much as radio stations such as Star FM celebrate mother tongue month from February to March,
the use of the ethnic minority languages in this station is only limited to this period and only in
very few selected programmes. Of all the ethnic minority languages, Tonga currently seems to be
faring well on National FM and in two commercial radio stations, Nyaminyami FM and Breeze
FM. The same is true for Nambya, which enjoys considerable airtime on National FM and in
Breeze FM. IsiXhosa is also to some extent privileged because it enjoys considerable airplay in
National FM and in the commercial radio station, Khulumani FM.

Sotho, Venda, Kalanga and Shangani are only confined to National FM. Observations of
language use and practices on ZTV news show that all the ethnic minority languages which are
also officially recognised languages are accorded two and half minutes during weekends on ZTV
for news broadcasts. It is very rare to see them in other information, entertainment and
educational programmes other than the news because ZTV programming is largely dominated by
English, Shona and Ndebele in this order. This reflects the violation of the provisions of Section
6 of the Constitution relating to the equitable treatment and use of the officially recognised
languages. It also violates the provision of taking into account people’s language preferences.
The imbalances observed are attributable to the absence of a regulatory framework for language
use in the media and are perpetuated by a lack of watchdogs, sanctions and incentives.

Section 63: Language and Culture

This section provides that:

Every person has the right— (a) to use the language of their choice; and (b) to participate
in the cultural life of their choice; but no person exercising these rights may do so in a
way that is inconsistent with this Chapter.
However, (a) does not specify the domains in which this right can be exercised. Redundant as
this may sound, such specification is essential to avoid unnecessary justifications. As it stands, it
is incomplete and can provide an easy way out for many. This provision is so vague and open-
ended that it does not impose much of an obligation on the state, its institutions and agencies
(See Ndlovu, 2017).

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Section 68: Right to Administrative Justice

According to Section 68,

(1), [e]very person has a right to administrative conduct that is lawful, prompt, efficient,
reasonable, proportionate, impartial and both substantively and procedurally fair. (2) Any
person whose right, freedom, interest or legitimate expectation has been adversely
affected by administrative conduct has the right to be given promptly and in writing the
reasons for the conduct. (3) An Act of Parliament must give effect to these rights, and
must-- (a) provide for the review of administrative conduct by a court or, where
appropriate, by an independent and impartial tribunal; (b) impose a duty on the State to
give effect to the rights in subsections (1) and (2); and (c) promote an efficient
administration.
Section 69: Right to a Fair Hearing

(1) Every person accused of an offence has the right to a fair and public trial within a
reasonable time before an independent and impartial court. (2) In the determination of
civil rights and obligations, every person has a right to a fair, speedy and public hearing
within a reasonable time before an independent and impartial court, tribunal or other
forum established by law. (3) Every person has the right of access to the courts, or to
some other tribunal or forum established by law for the resolution of any dispute. (4)
Every person has a right, at their own expense, to choose and be represented by a legal
practitioner before any court, tribunal or forum.
Limitations of Sections 68 and 69

The right to an interpreter in the context of the rights to justice, a fair hearing, administrative
justice, by accused, arrested and detained persons is an indispensable part of the legal process.
Despite this consensus among scholars (See: Carroll, 1995; Morris, 1999; Berk-Seligson, 2000;
Kadric, 2000; Dobinson and Chiu, 2005; Hale, 2007; Ndlovu, 2017) in this field, interpreters in
the Zimbabwean legal system are still treated with a lot of suspicion and a lack of respect for
their role. Above all, they are not always trained or skilled, experienced and fully competent.

In Sections 68 and 69, where the rights to administrative justice and a fair hearing are
guaranteed, no reference is made to language or the provision of a competent interpreter or to
what happens in cases where the language of the proceedings is not the accused/witness person’s
language of choice. This is, in effect, a violation of one’s right to administrative justice and a fair
hearing/trial. Any statutory instrument that guarantees the right to a fair hearing/trial and access

13
to justice, but does not guarantee access to these rights in one’s language of choice, denies the
individual access to administrative justice and a fair trial or hearing.

In as much as all Zimbabwean courts are open courts as provided in the Magistrate Court Act,
High Court Act, Supreme Court Act, Small Claims Court Act, Criminal Procedure and Evidence
Act and Evidence Act, they only guarantee physical access and deny linguistic access. Physical
access to the courts is not access in the true sense of the word, and this therefore defeats the
whole purpose of these courts being open courts (See Ndlovu, 2017).

Section 70: Rights of Accused Persons

(1) Any person accused of an offence has the following rights--… (b) to be informed
promptly of the charge, in sufficient detail to enable them to answer it;…(f) to be
informed promptly of the rights conferred by paragraphs (d) and (e); (g) to be present
when being tried; (h) to adduce and challenge evidence; (i) to remain silent and not to
testify or be compelled to give self-incriminating evidence; (j) to have the proceedings of
the trial interpreted into a language that they understand; (2) Where this section requires
information to be given to a person-- (a) the information must be given in a language the
person understands; and (b) if the person cannot read or write, any document embodying
the information must be explained in such a way that the person understands it. (3) In any
criminal trial, evidence that has been obtained in a manner that violates any provision of
this Chapter must be excluded if the admission of the evidence would render the trial
unfair or would be otherwise detrimental to the administration of justice or the public
interest. (4) Any person who has been tried for an offence has the right, on payment of a
reasonable fee prescribed by law, to be given a copy of the record of the proceedings
within a reasonable time after judgment is delivered in the trial.
Limitations of Section 70

Section 70 makes clear the policy position regarding court interpreting in Zimbabwe. It at least
guarantees the provision of an interpreter, but it is incomplete in that it does not guarantee that
the accused person will be informed promptly of the charge by a trained, qualified, competent
and accredited interpreter in the language of his/her choice, so as to enable him/her to answer it if
his/her language is not the language of the proceedings. Court observations also show that when
the accused person/witness is legally represented, members of the gallery are denied linguistic
access to the proceedings if they cannot understand English, the de facto official language of our
courts because interpreters are not provided in such situations.

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The major shortcoming of this section is that it does not state who will provide the interpretation
services and what qualities/qualifications this individual should have. This open-endedness of
this clause allows for the use of untrained bilinguals as interpreters. Section 70 (1) (j) of the
Constitution should take its cue from Section 55 (1) of the Civil Evidence Act, which specifies
that the court interpreter must be properly qualified and approved by the court. Section 70 (2) (a-
b) does not specify who will give/explain information in a language that the accused person
understands when this information is presented in a language that he/she cannot understand, read
or write.

This clause provides a leeway for the engagement of untrained bilinguals as interpreters or
translators. There is need to clearly state that this work should be assigned to a state-sanctioned,
trained, qualified, competent and accredited interpreter or translator to avoid the engagement of
mere bilinguals.

Section 75: Right to Education

Education promotes individual freedom and empowerment and plays a key role in the struggle
for sustainable human development. It enables and capacitates a nation and its citizens to make
progress, acquire and disseminate knowledge and gain an awareness of its ability to shape its
own destiny. Education makes citizens more knowledgeable and ensures their equal participation
in decision-making as well as equal opportunities for upward social mobility.

A nation’s language-in-education policy is the most useful and primary indicator of the nation’s
vision and commitment to education for all or universal and inclusive education. It also makes
clear a nation’s human development agenda in terms of whether it is inclusive or exclusionary,
elitist or people-centred and-driven. Inclusive sustainable human development cannot be
achieved without the people’s languages, since one’s mother tongue enables access to and
success in education. The key to inclusive sustainable human development entails the
acknowledgement, validation, mainstreaming and integration of indigenous languages as key
enablers for inclusive sustainable human development. The education sector is one of the most
reliable sectors through which the government’s commitment to language development can be
measured and demonstrated. The delay in aligning policy documents in this sector with the
Constitution is testimony that the Constitution is a case of declaration without implementation.

15
Education is an element, tool, indicator, precursor, key and instrument for inclusive sustainable
human development. It is an essential ingredient of productivity and also one of the most potent
and indispensable fundamental human rights for the exercise and enjoyment of all other rights.
However, education can only assume and serve this role if it is people-centred and oriented, that
is, when it is offered through a language which the masses understand and use sufficiently well
enough and in which they are most fluent, most creative and innovative; the languages which
speak to them most primordially, namely their mother tongues. Ouane (2010: x) succinctly
captures the role of language in education by noting that “[e]verything is nothing in education
without language.”

Without language, there is no education, therefore. If the right to education is perceived as an

indispensable human right, then the right to education in one’s mother tongue is a necessary
prerequisite to the right of access to education. Mother tongue medium education therefore has to
be guaranteed as a human right (Skutnabb-Kangas, 2000; 2003; 2006; Kamwendo &
Kachiwanda, 2002; Henrard, 2003; Paulston & Hiedamann, 2006; Skutnabb-Kangas & Dunbar,
2010; Skutnabb-Kangas & Heugh, 2010; Ndlovu, 2011; 2013).

The right to access to education is null and void if there is no implication or reference to the right
to mother tongue education. Any language-in-education policy that guarantees the right to
education, but does not guarantee access to such education in the mother tongue fails to ensure
access to the right to education. Language in the education sector is therefore central to the
realisation of the right to education. There cannot be universal access to education and education
for all without a serious consideration and careful choice of the language of education
(Skutnabb-Kangas, 1998; 1999; 2000; 2003; 2006; May, 2001; 2006; Henrard, 2003; Paulston &
Hiedemann, 2006; Skutnabb-Kangas & Heugh, 2010; Skutnabb-Kangas & Dunbar, 2010;
Ndlovu, 2013).

In clauses enshrining the right to education, language often disappears or is not given due
consideration and attention because of the widely-held misconception that local languages,
particularly African languages, cannot play a significant role in development. According to
Section 75,

(1) Every citizen and permanent resident of Zimbabwe has a right to-- (a) a basic State-
funded education, including adult basic education; and (b) further education, which the
16
 State, through reasonable legislative and other measures, must make progressively
available and accessible. (2) Every person has the right to establish and maintain, at their
own expense, independent educational institutions of reasonable standards, provided they
do not discriminate on any ground prohibited by this Constitution…(4) The State must
take reasonable legislative and other measures, within the limits of the resources
available to it, to achieve the progressive realisation of the right set out in subsection (1).
Limitations of Section 75

Once again, no reference is made to language. In fact, language disappears completely, and the
right to education is not guaranteed in one’s language of choice. The clauses in Section 75 are
cautiously and very tentatively formulated and include a technical justification “within the limits
of the resources available to it.” Technical justifications, modifications, alternatives and opts-
outs enable reluctant government officials, policy implementers, agencies and institutions to
meet the requirements minimally, based on the justification that the available resources were not
available to do so/to do it.

The above-mentioned formulation heavily qualifies the provision and does not oblige, but merely
encourages the State to provide this basic service, if resources so permit. The right is therefore
contingent on the availability of resources and weakened by the discretionary phrases within the
limits of the resources available to it. As a result, the actual implications of this provision are not
as far reaching as they appear to be. Unlike the Zimbabwean Constitution, the South African
Constitution guarantees access to education in one’s language of choice (See Section 29 (2).
However, the clause in the South African Constitution is weakened by the technical justification
…where that education is reasonably practicable.

If the right to education is perceived as an indispensable human right, then the right to mother
tongue education is a necessary prerequisite to the right of access to education. Mother tongue-
based multilingual education has to be guaranteed as a human right for ethnic minority language
speakers. Mother tongue-based multilingual education must therefore be supported by the most
progressive constitutional language provisions because inclusive sustainable socio-economic and
human development cannot be achieved without language.

Access to education in ethnic minority languages remains cosmetic and controversial in

Zimbabwe, especially for the deaf and hard of hearing as seen in these newspaper articles
(https://www.herald.co.zw/teach-sign-language-in-schools/; https://www.herald.co.zw/call-for-

17
new-sign-language-curriculum/; https://www.chronicle.co.zw/sign-language-must-be-broadly-
used/; https://allafrica.com/stories/201508200095.html;
https://allafrica.com/stories/201605050481.html; https://www.chronicle.co.zw/learning-falls-on-
deaf-ears/; https://www.thepatriot.co.zw/old_posts/include-sign-language-in-education-
curriculum/).

According to the 1987 Education Act as Amended in 2006, Section 62, subsection (1) and (2));
the Director’s Circular Number 26 of 2007; the Secretary’s Circular Number 3 of 2002, the so-
called minority languages, as mother tongue, will be introduced in their respective areas in
addition to Shona or Ndebele and English. At secondary school level, they will be offered as
optional subjects and learners’ interest, abilities and available resources should guide their
selection. School heads should note that the choice of optional subjects depends largely upon the
environment, facilities and staff available in the school as well as the individual learners;
preferences and ability to cope with the curriculum. The Minister or the school may authorise
their teaching and during the course of instruction at primary and secondary school levels,
teachers could use them whenever they help to communicate fundamental ideas and concepts
better.

A close examination of these provisions show that they contain the most stringent conditions in
as far as mother tongue education for ethnic minority language speakers is concerned ultimately
making their teaching impossible (See Ndlovu, 2011; 2013). Implicit and explicit language-in-
education policies are declared and implemented to secure the hegemonic status of English,
Shona and Ndebele and assimilate or suppress ethnic minority languages. The policies are
declared with escape clauses, let-outs, opt-outs, modifications, alternatives and stringent
conditions built into them, which provide a justification for non-implementation, thereby
maintaining the status quo. Escape clauses, let-outs, opt-outs, modifications, alternatives and
stringent conditions are clear indicators of the lack of political will and that the policies are not
obligatory. They promote reluctance among implementers to implement the policy. It can
therefore be argued that these policy documents present a very weak case for ethnic minority
languages.

Section 27 of the Constitution only acknowledges money and gender as the impediments to
access to education, overlooking language as another major barrier to access to and success in

18
education. Language does not feature in Section 4 of the 1987 Education Act as Amended in
2006, where the right to education in enshrined.

The recently published Education Amendment Bill, 2019 also bears the weaknesses of Sections
27 and 75 of the Constitution. Section 62 (3 (a) and (b) of the Bill contain stringent conditions in
as far as the teaching of officially recognised languages is concerned. It states that:

(3) The use of any language in terms of subsections (1) and (2) shall be subject to— (a)
the availability of resources to the State for giving effect to these provisions; and (b) the
availability of teachers, examiners, textbooks and other educational materials necessary
for instruction in and of any of the languages.”
The Bill also restricts mother tongue education to early childhood education only, and this goes
against the best practices and trends globally of recommending the use of the mother tongue to as
late a stage in education as possible (UNESCO, 1953:47-8). Section 68B of the Bill states that
every registered school should provide infrastructure suitable for use by learners with
disabilities; however, this clause is weakened by the technical justification, subject to availability
of resources. There is need to include software or ICTs suitable for learners with disabilities
under infrastructure, which is largely and generally restricted to buildings, especially of wheel-
chair bound learners and the visually impaired. This leads to the exclusion of visually-impaired
learners who require suitable special software and ICTs, including Braille. In this Section, the
issue of language does not feature, especially where the deaf and hard of hearing are concerned.

In 68D of the Bill, language also disappears in the Section that outlaws the exclusion of learners
from school, although this is one of the most common variable which is used to exclude learners
and deny them access to certain schools. At least Section 4 now outlaws discrimination on the
basis of language. However, in this Section which guarantees children’s right to education, the
issue language does not feature, a weakness also seen in Sections 27 and 75 of the Constitution
and in Section 5. The right to education is null and void if there is no implication or reference to
the right to mother tongue education or the right to receive that education in one’s language of
choice. In Section 25 where adult education is guaranteed, the issue of language does not feature
either. Learners in this category are not guaranteed the right to receive this type of education in
their language of choice.

Section 76: Right to Healthcare

19
According to WHO (1999; 2005; 2006), UNDP (2003), Bloom and Canning (2000) and Djitẻ
(2008), health is the most potent component of human development, a significant indicator of
economic growth and a fundamental and basic human right, which is indispensable to the
exercise and enjoyment of all other human rights. Health is the power house of development in
every nation. An investment in health, the oil to the developmental engine of a nation, ensures
sustainable human development. Despite this, however, less than 35% of the Africans have
access to basic health services, largely due to the fact that the system is generally privatised and
most people cannot afford it and even where it guarantees clients physical access, it denies them
linguistic access.

In light of this observation, it is incumbent upon all governments to develop, adopt and
implement multi-dimensional, comprehensive and integrated health policies which take into
account all variables which will ensure that all citizens have equal, universal, true and
meaningful access to healthcare services. As rightly observed by Djitẻ (2008:94), language
issues are rarely included in the list of priorities for ensuring that all citizens in Africa enjoy this
right.

Research is unequivocal that the language used in medical encounters is critical to a successful
health practitioner-patient interaction. Scholars in health interpreting unanimously agree that the
right to access to health is null and void if healthcare services are provided in languages which
the patients do not understand. Research in this field shows that in as much as the provision of
multilingual services in the health sector might not solve all healthcare challenges, the
importance of using a language understood by both the practitioner and the patient as strategic
and primary healthcare intervention tool cannot be overstated (Cohen, Rivara, Marcuse,
McPhillips, & Davis, 2005; Ku & Flores, 2005; Ainsworth-Vaughn, 2001; Ferreira & Makoni,
2002; Youdelman & Perkins, 2002; Kamwendo, 2004; Bischoff, Bovier, Isah, Francoise, Ariel
& Louis, 2003; Djitẻ, 2008).

The provisions of Sections 29 and 76 of the Zimbabwean Constitution are examined against
these postulations to see the extent to which the Zimbabwean government invests in languages
and language services in order to ensure that all Zimbabweans have equal, universal, true and
meaningful access to healthcare services. Although there have been significant increases and
improvements in the Zimbabwean healthcare infrastructure and qualified health personnel, the

20
potent language factor continues to be overlooked in the matrix of healthcare strategies, plans
and policies which seek to improve access to healthcare in Zimbabwe. As such, these efforts
have not yielded the desired results.

As indicated earlier, Section 6 of the Constitution of Zimbabwe shows a clear wish to ensure
multilingual services provision where it states the State and all institutions of government and
agencies at every level must ensure that all officially recognised are treated equitably and take
into account the language preferences of people affected by governmental measures or
communication.

Accordingly, the sections relating to healthcare provision are critically examined to assess the
extent to which they ensure and guarantee equal, universal, true and meaningful access to
healthcare services to all Zimbabweans, irrespective of their linguistic background.

Section 76 of the Zimbabwean Constitution states that:

(1) Every citizen and permanent resident of Zimbabwe has the right to have access to basic
health-care services, including reproductive health-care services. (2) Every person living
with a chronic illness has the right to have access to basic healthcare services for the
illness. (3) No person may be refused emergency medical treatment in any health-care
institution. (4) The State must take reasonable legislative and other measures, within the
limits of the resources available to it, to achieve the progressive realisation of the rights
set out in this section.
Limitations of Sections 29 and 76

Once again, no reference is made to the issue of language, which does not feature at all therein.
The right to healthcare is not guaranteed in one’s language of choice. Any statutory instrument
that guarantees the right to healthcare, but does not guarantee access to this right in one’s
language of choice, denies the individual access to healthcare and services, especially given that
language can be a barrier to access. The clauses of both sections are carefully worded using
technical justifications and qualifications “within the limits of the resources available to it.” The
use of this formulation inevitably concedes a wide margin of discretion to the government. The
overall effect of this technical justification in Sections 29 and 76 is that it heavily restricts the
recognition of the rights in practice.

21
The Zimbabwean government seems to think that the primary and essential tools of medicine are
infrastructure, technology, adequate qualified medical practitioners, overlooking the fact that
language plays an equally important role. Language is the linking thread of all the necessary
factors for efficient health service delivery. An investment in language, the oil to the health
sector, ensures the continued health of a health system and is therefore worth undertaking.
Language is one of the most fundamental tools upon which all use of technology rests and it is
indispensable in the enjoyment of the right to access to healthcare. It is language that determines
the success of health practitioner-patient interactions, especially given that language can be a
barrier to access to health services and successful diagnosis and prognosis.

As such, it is critical to also ensure that linguistic considerations are made in the deployment of
healthcare practitioners or else the State must provide properly trained and qualified medical
interpreters.

In Zimbabwe, there is a prevailing misconception that everyone understands either Shona or

Ndebele and, to some extent, English. As a result, Sign language users and other ethnic minority
language speakers, particularly the former, are denied true and meaningful access to healthcare
services. The majority of health practitioners in Zimbabwe cannot sign and one wonders how
doctor/nurse-patient interaction takes place in situations involving the deaf and hard of hearing.
A similar question may be asked in contexts involving other ethnic minority language speakers.
It is common knowledge that patients prefer and resort to the language they understand best, are
most fluent in, usually their mother tongue, to best describe their conditions. In situations where
there is no shared or common language between the doctor/nurse and patient, it effectively
means that communication in such settings is largely one-way and not mutual.

All things being equal, effective communication should be two-way and mutual. When
communication is just one-way, it means that patients do not necessarily understand what is
being said or discussed. As rightly observed by scholars in medical interpreting, when there is
communication breakdown due to a language barrier between the doctor/nurse and patient,
chances are that the health practitioner will not be able to properly conduct a diagnosis or
prognosis. Moreover, the patient will not be able to describe and explain her/his condition and
get the appropriate treatment largely because the patient lacks the vocabulary to best describe
what she/he is experiencing. In essence, the resultant breakdown of communication violates the

22
patient’s right to understand their health practitioner’s instructions, and conversely it makes it
difficult for the practitioner to actively and efficiently deal with the patient’s condition because
he/she does not have the requisite and appropriate linguistic tools for this.

Based on the foregoing discussion, it is reasonable to conclude that the majority of Zimbabweans
ethnic minority language speakers are denied true access to essential and adequate healthcare
services and information largely due to language barriers. The following media reports aptly
capture the plight of the deaf and hard of hearing in as far as access to health is concerned
(https://www.dailynews.co.zw/articles/2018/02/14/hospitals-lack-sign-language-
interpreters;https://www.herald.co.zw/teach-sign-language-in-schools/;https://
www.chronicle.co.zw/sign-language-must-be-broadly-used/;
https://allafrica.com/stories/201508200095.html;http://healthtimes.co.zw/2018/09/10/deaf-zim-
rolls-out-nationwide-sign-language-training-for-nurses/;https://allafrica.com/stories/
201705190315.html;https://allafrica.com/stories/201810080558.html;https://
www.thepatriot.co.zw/old_posts/include-sign-language-in-education-curriculum/).

Apart from the Constitution, the Public Health Act Section 34 states that:

(1) Every health practitioner shall inform a user of -

(a) the user's health status except in circumstances where there is substantial evidence
that the disclosure of the user's health status would be contrary to the best interests of the
user;
(b) the range of diagnostic procedures and treatment options generally available to the
user;
(c) the benefits, risks, costs and consequences generally associated with each option; and
(d) the user's right to refuse health services and explain the implications, risks,
obligations of such refusal.
(2) The health practitioner concerned shall, where possible, inform the user as
contemplated in subsection (1) in a language that the user understands and in a manner
which takes into account the user's level of literacy.
In as much as the Act makes a provision for the use of the language understood by the patient, it
does so using a technical justification, where possible, which is not compelling and allow
reluctant implementers to meet the requirements in a minimalist way, justifying this by claiming
that it was possible.

23
Section 83

This Section guarantees the rights of persons with disabilities. It obliges the State to take
appropriate measures to ensure that persons with disabilities realise their full mental and physical
potential, including ones that ensure access to medical, psychological and functional treatment,
provide special facilities for the education as well as state-funded education and training.
However, there is no mention of the issue of language and the clause is weakened by the
technical justification within the limits of the resources available to it. This explains the
vulnerability of persons with disabilities in relation to their other basic human rights and
linguistic human rights.

Conclusion

In binding clauses of the Constitution relating to basic human rights and linguistic human rights,
we note that two things often happen: language disappears completely or it is not given as much
attention as other important human attributes. Language is one of the most important human
attributes which guarantees access and enjoyment of the basic human rights discussed here. Most
of the policy documents in the sectors mentioned above do not embrace the constitutional
obligations to treat and use all the officially recognised languages equitably and take into account
the language preferences of the people affected by governmental measures and communication.
The failure or delay to amend and align these policies with the new Constitution is a serious
cause for concern. The mere acceptance of language rights is in itself relatively meaningless.
Legal provisions should specify exactly who the holders of the rights are and what legal
sanctions can be imposed if those rights are denied or violated and what funds can be provided
for acceptable court cases. Listing language rights is a relatively easy task, but making them
everyday realities is much more difficult. A right is only of value if there are accessible legal
avenues to enforce it and if litigants are sufficiently clear about the manner in which language-
related rights violations can be handled and redressed. Citizens need to be clear about the
meaningful basis for the promotion and protection of language rights. Citizens also need to know
the different structures available to redress language-related rights violations.

These structures need to be dedicated, independent, impartial, highly visible, accessible and
affordable for the ordinary citizens. This implies a need to establish dedicated independent

24
institutions that will mediate language-related rights violations and independent institutions that
will educate citizens about their language rights, language-related rights violations, help them
protect their rights and monitor government to ensure that it respects the citizens’ language
rights. There is need to develop instruments, systems and processes with which ordinary citizens
can litigate armed with the necessary knowledge, skills and resources.

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