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HARMONISATION OF NATIONAL AND INTERNATIONAL LAWS TO

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HARMONISATION OF NATIONAL AND INTERNATIONAL LAWS TO Powered By Docstoc
					Harmonisation of laws relating to
              children

             Zimbabwe




     Prepared by Catherine C Makoni




                           The African Child Policy Forum
                    PO Box 1179, Addis Ababa, Ethiopia
                    Tel: +251 (0)116 62 81 92/ 96/ 97
                             Fax: +251 (0)116 62 82 00
                              www.africanchildforum.org
                                    www.africanchild.info


                                                       1
Table of contents

Acronyms ....................................................................................................................... 3
Acknowledgements ....................................................................................................... 4
Executive summary ....................................................................................................... 5
Introduction ................................................................................................................... 9
   Background to the study ........................................................................................... 9
   Methodology .............................................................................................................. 9
   Literature review........................................................................................................ 9
Chapter 2: Country status ........................................................................................... 11
   Socioeconomic overview ............................................................................................. 11
   HIV/ AIDS overview ...................................................................................................... 12
   Overview of Legislative Processes in Zimbabwe ....................................................... 14
Chapter 3: Emerging issues ........................................................................................ 15
   3.1 Key actors in legislative reform ............................................................................ 15
   3.2 Status of the CRC & the ACRWC since ratification ............................................. 16
   3.3 Analysis of the laws in place vis a vis core provisions ........................................ 16
   Article 2: Non-discrimination ...................................................................................... 17
   Article 3: The best interests of the child ..................................................................... 22
   Article 6: The right to life ............................................................................................ 26
   Article 12 Respect for the views of the child.............................................................. 28
   3.4 Review of policies and frameworks pursuant to Article 4 of the CRC ............... 30
   3.5 Reporting status & law reform initiatives ............................................................ 31
   3.6 Implementation mechanisms for policies ........................................................... 32
   The process .................................................................................................................. 35
   Coordination ................................................................................................................. 36
   Implementation ............................................................................................................ 36
Chapter 4: Conclusions and recommendations ........................................................ 37
   4.1 Challenges to harmonisation and reform ............................................................ 37
   4.2 Recommendations ................................................................................................ 38
Conclusions ................................................................................................................. 41
Bibliography ................................................................................................................. 42
Annex: About the author .................................................................................................. 43




                                                                                                                                  2
Acronyms

ACRWC      African Charter on the Rights and Welfare of the Child
AIDS       Acquired Immune Deficiency Syndrome
BEAM       Basic Education Assistance Module
CBO        Community-based organisation
CRC        Convention on the Rights of the Child
FBO        Faith-based organisation
HIV        Human Immune Virus
MOHCW      Ministry of Health and Child Welfare
NGO        Non-governmental organisation
NPA        National Plan of Action
OVC        Orphans and vulnerable children
UN         United Nations
VFC        Victim Friendly Courts




                                                                    3
Acknowledgements

I would like to express my gratitude to the various people who assisted with this study,
providing information, materials as well as valuable insights into the state of children’s rights
in Zimbabwe. Particular thanks go to UNICEF’s Country Office for providing invaluable
background information. Particular appreciation goes to Ms Muriel Mafico of UNICEF who
assisted with valuable information and background documents, which formed the basis of
this report. I would also like to acknowledge Mr. Andrew Mugandiwa for providing insights
into the workings of the legal system when it comes to litigating children’s rights.




                                                                                                4
Executive summary

Zimbabwe is a Southern African country with a population of about 11.6 million people. The
period after the country’s independence from Britain saw the expansion of rural
infrastructure, and expansion of immunisation, while primary health care services were
subsidised to enable access by previously excluded groups. The infant mortality rate dropped
from 88/1,000 births in 1980 to 61/1,000 births by the early 1990s. The country was a net
exporter of grain and was generally considered the breadbasket of Southern Africa. All these
gains have sadly been eroded by a complex crisis of poor economic policies, poor
governance as well as one of the highest HIV/ AIDS prevalence rates in the world. These
problems have resulted in the country recording a galloping inflation currently at 782% and
expected to hit 1,000% before the year is out. Unemployment levels are presently at more
than 85% of the population and the under-five mortality rate has doubled from 61 per 1000
in the 1990s to 129 per 1000 in 2004. Similarly life expectancy at birth has been slashed
from 67 in the 1990s to 37 in 2004.


The constitution is the supreme law of the land and in terms of Section 111B of the
constitution international instruments do not automatically form part of the law unless
approved by parliament or incorporated into the law by an Act of Parliament. Zimbabwe
ratified the Convention on the Rights of the Child (CRC) in 1990, while the African Charter on
the Rights and Welfare of the Child (ACRWC) was ratified on the 19th January 1995. However,
neither the Convention on the Rights of the Child nor the African Charter on the Rights and
Welfare of the Child has been incorporated into domestic law through an Act of Parliament.
They thus remain on the international level, serving only to give guidance to the courts but
not legally binding on the government of Zimbabwe to fulfil. A comprehensive review of the
laws relating to children was only done in 2003-4 by UNICEF and not the government of
Zimbabwe.


The legislative environment is characterised by an impressive and comprehensive set of laws
and policies protecting children against physical or mental violence, injury or abuse, neglect
or maltreatment, and sexual abuse and exploitation. These laws include the Guardianship of
Minors Act, Chapter 5:08, which deals with the guardianship of minor children and the
Children’s Protection and Adoption Act, Chapter 5:06 which attempts to protect children from




                                                                                                 5
physical or mental violence, neglect, injury, abuse and maltreatment, as well as providing for
the adoption of minor children.


Apart from these very child-specific laws, there are a number of other laws that seek to
protect or that in other ways impact on children’s rights. These laws include the Sexual
Offences Act, which widens the range of sexual offences as well as increasing the penalties
for offenders. The Matrimonial Causes Act, Chapter 5:13 exhorts judicial officers to ensure
that in handing down orders for divorce or judicial separation they make provision for the
custody and maintenance of children in that relationship. While the Maintenance Act seeks
to ensure that minors are taken care of in terms of their material needs, regardless of
whether their parents are married or not.


An analysis of the laws however reveals some contradictions and gaps which militate against
the realisation of children’s rights. The constitution allows for discrimination on the basis of
age, while the equality clause, in section 23 (3), allows for discrimination in matters of
personal law and in the application of customary law and practices. Some provisions in
marriage laws are contradictory with one law providing for a minimum age for marriage while
another law, does not provide for a minimum age. Some laws still provide for corporal
punishment of male children in contravention of the Convention. In some instances,
principles like the best interests of the minor child is not fully applied- for instance, fathers of
children born out of wedlock do not have an automatic right of access to their minor children,
being required to go through a strenuous legal process to secure access to their children.



It is commendable that given the immense challenges facing the country and its children,
Zimbabwe has some 200 NGOs, faith-based organisations and community based
organisations working with children in different capacities, but mainly in the provision of
services to children in response to the escalating numbers of orphans. Programmes for OVC
focus on psychosocial and material support, and educational and humanitarian assistance.
Other programmes include children’s rights, behaviour change, youth programs, life skills
training, caregiver training, HIV/ AIDS information and health care. Most of these
programmes have links with the government of Zimbabwe through the different line
Ministries. However, coordination of these programmes still remains a big challenge as they
all report to their specific sector ministries.




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The country is facing serious challenges as it seeks to implement the CRC. Economic
difficulties have had the effect of pushing the issue to the periphery which calls for law
reform around children’s rights. Competing interests of perceived higher priority include
economic reforms, land redistribution and political contestations between the ruling party
and the opposition party.


A few recommendations are pertinent. There is need for raising public awareness of
children’s rights so that this awareness stops being confined to children’s rights
organisations, but becomes part of the national consciousness. This would contribute not
only to the increased uptake of laws by the community, but would also contribute to changing
some of the problematic cultural practices that expose children to harm. A part from this, the
Convention on the Rights of the Child is comprehensive and all encompassing in its coverage
of rights pertaining to children. It seems to follow therefore that there should be one
overarching instrument to cover all facets of children’s rights in Zimbabwe. This holistic law
would address some of the contradictions existing at present in the law.


In much the same way that some countries have in place Gender Equality Commissions and
in the same way the same way that the Zimbabwe government is now proposing a Human
Rights Commission, a national Child Rights Commission could be established. One clear and
immediate mandate for this commission would be to ensure the comprehensive reform of all
laws relating to children’s rights to ensure their compliance with the CRC. Analysis of
children’s lived realities shows that there is a gap in the implementation of those rights. This
gap has largely been the result of lack of adequate resources. It is therefore recommended
that a system be introduced whereby every Bill is properly costed before it is passed into an
Act. If a Bill is costed and supported by Treasury, this would result in more immediate
concrete benefits for children, as it would be immediately possible to recruit and train staff
as well as to procure and maintain the necessary equipment to support implementation
activities. Perhaps the most obvious recommendation arises from the analysis of the gaps in
laws and policies relating to children in Zimbabwe. There is need to reform these laws to
make them comply with the provisions of the CRC. In this regard, there is need for political
commitment so that the requisite reform can be done expeditiously.


It is evident that while Zimbabwe has some very good laws and policies on the books, it has
equally immense challenges when it comes to translating these laws into reality and tangible



                                                                                                 7
benefits for its children. These challenges arise not only from the economic problems that
the country is currently reeling from, but also from the socio-political context. It is noteworthy
that in the midst of all these challenges there are over 200 NGOs and other stakeholders
working to address the many problems facing Zimbabwe’s children. It is also clear from the
work around the National Plan of Action for OVC that collaboration between government and
civil society is possible, and it can lead to the meaningful work around children’s rights1. It is
therefore obvious that work on reform and harmonisation has a firm foundation to build on. It
now remains for the government to take up the challenge and with the necessary political
commitment; the requisite reform can be done.




1Even in a country where there is polarisation and where government and civil society view each other
with suspicion


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Introduction

Background to the study
In September 1990 heads of States and Governments met for the World Summit for
Children. The near-universal ratification of the International Convention on the Rights of the
Child, which comprehensively deals with children’s rights, have been welcomed the world
over. No other international treaty has received the same support in such a short time. Given
the excitement generated by this record, it would be easy for child rights activists to rest on
their laurels, thinking that because a great deal of countries has ratified the CRC, their job
has been done. History shows however that ratification is only half the battle. The real work
begins with ensuring that governments of the world honour their commitments to the various
conventions that they ratify or sign to. Notwithstanding its record ratification, the CRC is not
an exception. It is this realisation that prompted the commissioning of this study, which is
part of a multi country initiative in Africa, aimed at ascertaining among other things:


       The extent of harmonisation of national laws and policies with the provisions of the
        CRC and the ACRWC
       Existing and planned mechanisms at national level for coordinating policies relating
        to children and for monitoring the implementation of the CRC and ACRWC

Methodology
Because this study was aimed at ascertaining the extent to which the country’s laws, policies
and programmatic frameworks complied with the obligations contained in the CRC as well as
the ACRWC, this study was largely a desk study, which concentrated on reviewing these
existing laws, policies and programmatic frameworks. The research was also aimed at
ascertaining the realities on the ground, vis a vis, the protection and promotion of child
rights. To this extent, interviews were conducted with key players in the protection and
promotion of child rights. In analysis of the findings, their insights were then contrasted with
the theoretical frameworks. This enabled the researcher to obtain a clearer and more
complete picture of the reality of children’s rights on the ground.


Literature review
A review of relevant literature from books, papers, previous relevant research and the review
of some judicial decisions were carried out in order to gain insight into what had already
been conducted as a way of informing and strengthening the research. It has to be said that



                                                                                                   9
a lot of work has been conducted in Zimbabwe around analysing the extent of the
harmonisation of children rights conventions into domestic law. This made the task of
conducting this review a much simpler one than it would otherwise have been had no work at
all been done in this regard.


Key informant interviews
The researcher interviewed key players in the area of child rights policy and programming.
These interviews were conducted with the aim of eliciting first hand information on the
progress and the challenges they as practitioners were facing in trying to secure for children
the rights guaranteed under the CRC and the ACRWC. These insights enriched both the
findings and the analysis. Interviews and discussions were held with staff from civil society as
well as UN agencies that support child rights programming. The researcher also spoke to
lawyers who litigated some of the cases cited in this study to understand from a legal
practitioner’s perspective, some of the challenges to dealing with child rights within the
courts.


Data analysis and report writing
Throughout the data collection process, the researcher took time to review the quality of data
being collected and to see whether these were answering the research questions. At the end
of the data collection period, the researcher then collated all the data collected to identify
gaps and consider implications for the research results. The researcher then developed a
data analysis framework, which forms the main report-writing framework.


Scope of the study and limitations
While appreciating that rights are indivisible and interdependent, the decision was made,
owing to time and resource constraints, to limit the scope of the analysis to what have been
identified as the four core principles of the CRC, namely, Article 2 (non discrimination), Article
3 (best interest of the child) Article 6 (the right to life, survival and development and Article
12 (respect for the views of the child or participation). It was felt that an analysis of these
principles would be indicative of the extent of the country’s compliance with the regional and
international conventions on child rights, it not being possible in the time and with the
resources available to conduct an article-by-article study of the regional and international
conventions. This analysis therefore covers these articles, but in doing so, other clauses are
necessarily canvassed where relevant.



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Chapter 2: Country status

                                       Map of Zimbabwe




Socio-economic overview
Zimbabwe is a landlocked country with a land area of 390 757 square km, of which 85% is
agricultural land and the remaining comprises national parks, state forests and urban land.
Its capital city is Harare and the second largest city is Bulawayo to the south-west. Official
population figures put the population at 11.6 million people2. The annual average inter-
census population growth rate has been showing a steady decline from 2.2% between 1992
and 1997 to 1.1% between 1997 and 2002. The period between 1980 when Zimbabwe
gained its independence from Britain and 1995 was characterised by accelerated
government efforts to address social and economic inequities inherited from the previous
government. This period saw the expansion of rural infrastructure, expansion of
immunisation, while primary health care services were subsidised to enable access by




                                                                                                 11
previously excluded groups. The infant mortality rate dropped from 88/1,000 births in 1980
to 61/1,000 births by the early 1990s. Severe and moderate malnutrition of children under
the age of five with 70 per cent standard weight for age was reduced from 21 per cent
(1980) to 12 per cent (1990). Life expectancy increased from 56.7 years in 1982 to 62
years in 1986.3 By 1995, Zimbabwe had registered a net primary school enrolment of 85%,
signalling a near attainment of universal access to primary education.


The 1990s saw the introduction of Economic Structural Adjustment policies and these had
the consequences of increased poverty as factories and companies closed or shrank and
workers were made redundant. Households in poverty increased from around 40% in the late
1980s to 62% by 1995.4


In the past few years, Zimbabwe has assumed the dubious honour of being the country with
the fastest-shrinking economy for a country not at war. The country is currently battling a
galloping inflation of record levels, currently at 782% and expected to hit 1000% before the
year is out. Unemployment levels are presently at more than 85% of the population. More
than half the population now lives on less than us$1 a day. A combination of HIV/AIDS and
economic woes has doubled the under-5 mortality rate from 61 per 1000 in the 1990s to
129 per 1000 in 2004. Similarly life expectancy at birth has been slashed from 67 in the
1990s to 37 in 2004.5


HIV/ AIDS overview
As mentioned above, apart from its many economic woes, the country has also been battling
one of the worst HIV/ AIDS epidemics on the African continent and indeed the world over.
The country has the fourth highest prevalence rates for HIV in the region. The estimated adult
sero-positive prevalence rate is presently of 20.1 %6. Since 1990, HIV/ AIDS has slashed the
average life expectancy from 61 to 33 years.

There were an estimated 174 000 new AIDS cases during 2003 alone. The country currently
experiences more than 3,000 adult and child deaths due to AIDS per week. It is a sad
indictment on global institutions that while Zimbabwe has one of the highest rates of HIV in
the world, for a long time it was receiving no funding support from such initiatives as the

3 1995, Government of Zimbabwe State Party Report
4 Ibid.
5 Ibid.
6 2005, UNAIDS and MOHCW




                                                                                              12
Global Fund to Fight AIDS, TB and Malaria. While some funding has now been approved, it is
still not receiving as much as its Southern African neighbours. 7 Because of the cuts in donor
funding, Zimbabwe receives the lowest donor support in southern Africa for people living with
HIV, at only $4 per person per year; for comparison, in neighbouring Zambia the figure is
$184 per person per year.8

It is quite clear therefore that the challenges facing the country in so far as its children are
concerned are immense.


Overview of the challenges facing children in Zimbabwe
As noted above, the HIV/ AIDS epidemic has assumed staggering proportions. With nearly a
quarter of the population HIV-positive; more than half of all new infections are among young
people, primarily girls. There are also approximately 165,000 children under the age of 15
living with HIV/ AIDS, while an estimated 1.3 million or one fifth of all Zimbabwean children
have lost one or both parents due to AIDS. Zimbabwe has 318 000 children living in child-
headed households, while 12,500 children live on the streets.9

In addition to homelessness and displacement, the controversial government effort to “clean
up cities and fight the black market across Zimbabwe” by means of evictions and
demolitions in 2005 led to considerable economic hardship.

Drought, a land-redistribution scheme, and skyrocketing inflation have produced serious food
shortages. Among the most food insecure households are households affected by AIDS as
well as households headed by children. Shortages in personnel, equipment and supplies
plague Zimbabwe’s health-care infrastructure. Over the past five years, Zimbabwe’s
educational system has deteriorated, with attendance falling by about a quarter.

It is commendable that given the problems bedevilling the Zimbabwean economy, the
Zimbabwe government has dedicated itself to addressing the rights of children. It is also
understandable that the government has prioritised orphans and other vulnerable children
(OVC) as deserving particular attention given the sheer magnitude of the problem. In light of
these statistics, the government’s stand on OVCs becomes understandable.


7 2004 ‘Children and Women’s Rights in Zimbabwe, Theory and Practice: A Critical Analysis in Relation
to the Women and Children’s Conventions’ UNICEF
8 Ibid.
9 Ibid.




                                                                                                   13
Overview of legislative processes in Zimbabwe
In Zimbabwe the state is made up of three organs namely the executive, the legislature and
the judiciary bodies. This system is meant to provide checks and balances against the
excesses and abuse of power by one. This system is premised upon the assumption that
each of the organs enjoys some power which would make it effective. The situation in
Zimbabwe at the present moment is one in which the executive body has amassed a lot of
powers and thus rendered the other arms of the State ineffective.


The Constitution of Zimbabwe is the Supreme law of the land and any law which is
inconsistent with the constitution, is void to the extent of that inconsistency. In terms of
Section 111B of the Constitution, international instruments do not automatically form part of
the law unless approved by parliament or incorporated into the law by an Act of Parliament.
The section states that:


          1) Except as otherwise provided by this Constitution or by or under an Act of
          Parliament, any convention, treaty or agreement acceded to concluded or executed
          by or under authority of the President with one or more foreign governments or
          international organisations:
          a) Shall be subject to approval by Parliament
          b) Shall not form part of the law of Zimbabwe unless it has been incorporated into
          the law by or under an Act of Parliament.10


Unless an international instrument goes through either of the above processes, it will remain
on the international level and will not become justiciable in a court of law. There have been
some instances that an international instrument has been incorporated into law by an Act of
Parliament. The Convention on the Civil Aspects of International Child Abduction is one such
convention. It was incorporated into law through an Act of Parliament whose aim is to ‘give
effect within Zimbabwe to the Convention on the Civil Aspects of International Child
Abduction which was signed in the Hague on the 25th October 1980, and to provide for
matters connected therewith or incidental thereto.’ The Act is known in Zimbabwe as the
Child Abduction Act.11


10   Section 111B of the Zimbabwe Constitution
11   Chapter 5:05


                                                                                               14
Zimbabwe has a dual source of law namely customary law and the general law. Customary
law refers to those laws and practices of the indigenous peoples of the country, while general
law refers to the imported Roman-Dutch common law as well as the legislation put in place
from time to time. This dichotomy sometimes results in confusion as people are at a loss as
to what system of law applies to them. This confusion often arises in the administration of
estates where the parties are indigenous but were living a modern lifestyle, or what usually
happens the parties were living a combined modern and traditional lifestyle. Often these
disputes involve the rights of women and children who find themselves fighting patriarchal
relatives of a deceased husband or parent.


There are three court structures in Zimbabwe that deal specifically with children’s rights. At
the lowest level there is the Magistrate Court. Apart from its other functions, the High Court is
designated as the upper guardian of all minors, while the Supreme Court acts both as the
court of appeal as well as the constitutional court.




Chapter 3: Emerging issues


3.1 Key actors in legislative reform

In terms of law reform, the line Minister becomes the strategic player as s/he is the one who
is responsible for introducing the Bill in Parliament. Once introduced, the Bill goes through
the various stages in Parliament. Once the Bill has passed through both the lower house and
the senate, the President then signs the Bill into law, after which it can be gazetted. The
President also has the option of rejecting the Bill in which case it does not become law.


NGOs have been the agents provocateurs, instigating research and pushing for reform of
various laws, depending on their area of interest. United Nations agencies like UNICEF have
all worked with governmental and non-governmental actors to push for reform of law. UNICEF
has been particularly active in supporting research towards evidence-based policy and
legislative reform as well as facilitating inter-linkages between all the stakeholders working
on children’s rights.




                                                                                                 15
3.2 Status of the CRC & the ACRWC since ratification


Zimbabwe ratified the Convention in 1990, while the African Charter on the Rights and
Welfare of the Child was ratified on the 19th January 1995. However, neither the Convention
on the Rights of the Child (CRC) nor the African Charter on the Rights and Welfare of the
Child (ACRWC) has been incorporated into domestic law through an Act of Parliament. They
thus remain on the international level, serving only to give guidance to the courts but not
legally binding on the government of Zimbabwe to fulfil. The late Chief Justice, Mr.
Dumbutshena was a proponent of judicial activism in Zimbabwe. His term in office in the
1980s saw some of the most progressive, human rights enhancing judgments coming out of
the Supreme Court. Among these was the landmark case of Katekwe vs Muchabaiwa which
pronounced that women were at law considered majors and that the law had freed them
from the minority status that they had been burdened with. In A Juvenile vs The State in
1989 [2] ZLR 61 at 72, the Chief Justice in finding that corporal punishment was
unconstitutional stated that:


        ‘The courts of this country are free to import into the interpretation of … [the
        Declaration of Rights] Interpretations of similar provisions in International and
        Regional Human Rights Instruments such as, among others, the International Bill of
        Rights, the European Convention for the Protection of Human Rights and
        Fundamental Freedoms, and the Inter-American Convention on Human Rights. In the
        end international human rights norms will become part of our domestic human rights
        law. In this way our domestic human rights jurisdiction in enriched.’


This tradition unfortunately has not been carried forward. In the majority of the cases
discussed below, the courts restricted their interpretation of rights to what was provided in
the specific legislation under inquiry not venturing to import the provisions of international
and regional human rights instruments as the chief justice had exhorted.


3.3 Analysis of the laws in place vis a vis core provisions in the conventions
It has been said and rightly so that the legislative environment is characterised by ‘an
impressive and comprehensive set of laws and policies protecting children against physical
or mental violence, injury or abuse, neglect or maltreatment, and sexual abuse and




                                                                                              16
exploitation’.12 These laws include the Guardianship of Minors Act, Chapter 5:08 which deals
with the guardianship of minor children and the Children’s Protection and Adoption Act,
Chapter 5:06 which attempts to protect children from physical or mental violence, neglect,
injury, abuse and maltreatment, as well as providing for the adoption of minor children.


Apart from these very child-specific laws, there are a number of other laws that seek to
protect or that in other ways impact on children’s rights. These laws include such laws as the
Sexual Offences Act, which widens the range of sexual offences as well as increasing the
penalties for offenders. The Matrimonial Causes Act, Chapter 5:13, exhorts judicial officers to
ensure that in handing down orders for divorce or judicial separation they make provision for
the custody and maintenance of children in that relationship. While the Maintenance Act
seeks to ensure that minors are taken care of in terms of their material needs, regardless of
whether their parents are married or not.


The analysis below considers the ways in which the courts in Zimbabwe have interpreted the
law in Zimbabwe in matters involving children. The analysis will focus on Articles 2 (non
discrimination), Article 3 (best interests of the child), Article 6 (right to life, survival and
development) and Article 12 (respect for the views of the child and participation). Because
rights are often interlinked and interdependent, the analysis of the decisions coming out of
the courts in Zimbabwe will necessarily touch on other rights outside of these where this
adds more meaning to the discussion.


Article 2: Non Discrimination
          (1)         States Parties shall respect and ensure the rights set forth in the present
                      Convention to each child within their jurisdiction without discrimination of
                      any kind, irrespective of the child’s or his or her parent’s race, colour, sex,
                      language, religion, political or other opinion, national, ethnic or social
                      origin, property, disability, birth or other status.
          (2)         States Parties shall take all appropriate measures to ensure that the child
                      is protected against all forms of discrimination or punishment on the
                      basis of the status, activities, expressed opinions or beliefs of the child’s
                      parents, legal guardians, or family members.13


12   2004 Children and Women’s Rights in Zimbabwe Tsanga et al, p11
13   UN Convention on the Rights of the Child, Article 2


                                                                                                   17
In Zimbabwe, the principle of non-discrimination is dealt with under the Constitution. Section
23 of the Constitution constitutes Zimbabwe’s equality clause. It provides in pertinent part
that:


          (a) ‘No law shall make any provision that is discriminatory of itself or in its effect
          (b) No person shall be treated in a discriminatory manner by any written law or in the
              performance of the functions of any public office or public authority’.14


Section 23 (2) makes provision for the grounds under which discrimination is prohibited,
these include, race, tribe, place of origin, political opinion, colour, creed, sex, gender, marital
status or physical disability. Sex, disability and marital status as prohibited grounds for
discrimination were only added in September 2005 through constitutional amendment
number 17. It can therefore be said that the constitution of Zimbabwe provides some
protection from the most commonly occurring grounds of discrimination.


However, while the constitution has some notable grounds which can be used to protect
children from discrimination, there are still a number of problems arising from the equality
clause as it presently stands. The constitution in the clauses cited above, makes reference to
discrimination being outlawed when it comes to any written law, or in the actions of any
public official or in the performance of any public office. In theory this may be taken to mean
that discrimination is outlawed only when it occurs in the public domain and it has been done
either pursuant to the provisions of any written law or by a public official in the performance
of his duties. This begs the questions, what then happens when the discrimination is
perpetrated by a private individual in the private domain? Will this not be regarded as
discrimination for the purposes of the constitution? It would appear that at this moment in
time, the constitution only outlaws discrimination where it occurs in the public domain. It is
common cause that discrimination can occur in both private and public spaces; the
constitution should therefore be amended to reflect this reality.


The problems of this artificial dichotomy are compounded by the existence in Section 23 of
the so called claw-back clauses which exclude personal law and customary law from the
application of the provision. Section 23 (3) provides in pertinent part that:



14   Zimbabwe Constitution, section 23.


                                                                                                   18
          ‘Nothing contained in any law shall be held to be in contravention of subsection (1)
          (a) to the extent that the law in question relates to any of the following matters-
                  a) Matters of personal law;
                  b) The application of customary law in any case involving Africans or an
                      African and one or more persons who are not African where such persons
                      have consented to the Application of African customary law in that case’15


It is common cause that most matters touching on the lives of children belong in the private
law arena rather than in the public arena. They therefore fall within the purview of ‘personal’
rather than public law. Matters of custody, guardianship, inheritance among others are all
personal. This distinction is evident in matters such as the legal status of children born to
parents who are not in a legally recognised marital relationship. These children are often
routinely discriminated against in such matters as inheritance from the estates of deceased
parents. In practice, the facts that their parent’s relationships are not recognised, or are
frowned upon by society means that they also fall victim to stigma and labelling.


In matter of customary law, the constitution also permits discrimination. Some of the
practical examples of discrimination under customary law and practice relate to the laws of
inheritance; male children are routinely given preference as heirs than female children,
especially when inheriting from the estates of deceased male relatives. This means that in
most cases, a girl child will fail to proceed with her education and will lose some of the
opportunities she would have accessed had her deceased parent been alive.


The Zimbabwe Constitution states that, ‘according to tribes people to the exclusion of other
persons of rights or privileges relating to Communal Land shall not be deemed to be
discriminatory.’16 This is problematic in a country where the majority of people survive off
subsistence farming on the communal pieces of land. It is especially problematic when
considered in light of the fact that given the magnitude of the OVC problems in the country,
the majority of whom are surviving off the pieces of land their parents left them, the
possibility of dispossession owing to the demands of customary law is very real. This is
especially so, when there are no male children in the family as title in communal land in
Zimbabwe passes through the male of line of the family. Women and girls therefore cannot


15   Ibid.
16   Zimbabwe Constitution


                                                                                                 19
have any title to land. Where land is very often the only means of production, this leaves girl
children with very insecure livelihood options. These inequities are permitted by the
constitution provided they can be justified on the basis of customary law.


One glaring omission of the constitution is the absence of the one ground of discrimination
which children are most prone to suffer, which is age. The constitution of Zimbabwe does not
prohibit discrimination on the grounds of age. Children are routinely not consulted in the
formulation of laws and policies affecting their lives. Nor do they have meaningful
representation in national processes. The justification for this exclusion is that they are
young. This evidently contravenes article 12 of the CRC which enjoins States Parties to
assure children’s right to be heard and to participate.


It has often been said that it is not enough to have constitutional protections. There is need
to ensure that subsidiary legislation complies with the constitution. The constitution prohibits
discrimination on the basis of sex. Section 15 (3) (a) of the same constitution provides for
whipping of male offenders under the age of 18. The Education Act in section 65 (2) (c)
allows school authorities to can boys as a disciplinary measure, while section 353 of the
Criminal Procedure and Evidence Act provides ‘where a male person under the age of 18
years is convicted of any offence the court which imposes sentence upon him may sentence
him to receive moderate corporal punishment not exceeding six strokes.’ These provisions
are clearly discriminatory in effect. Corporal punishment is inflicted on boys and not on girls.
The idea is not to have girls and boys being accorded the same negative treatment in relation
to canning, but for the law to do away with corporal punishment as it is inhuman and
degrading treatment. It is important to note that at the time Zimbabwe’s state party report
was considered by the Committee, in 1996, the committee noted with concern the existence
of corporal punishment on the law books and its incompatibility with the Convention17.
Corporal punishment remains on the country’s law books.


The law in Zimbabwe also allows for discrimination when it comes to marriage laws. The
Marriages Act, Chapter 5:11 sets the minimum age for marriage for boys at 18 and the
minimum for girls at 16 years. This means that the law makes a distinction on the basis of

171996, Concluding observations of the Committee on the Rights of the Child, CRC, Zimbabwe
18. The Committee expresses its concern at the acceptance in the legislation of the use of corporal
punishment in school, as well as within the family. It stresses the incompatibility of corporal
punishment, as well as any other form of violence, injury, neglect, abuse or degrading treatment, with
the provisions of the Convention, in particular Articles 19, 28 paragraph 2 and 37


                                                                                                    20
sex, between boys and girls. It permits the marriage of girls at an earlier age than boys. A
number of issues arise in as far as the early marriage of girls is concerned. It leads to school
drop outs, which sets them on a path to economic dependence, illiteracy, disempowerment
and vulnerability to violence and HIV infections. On a physiological level, early marriages
predispose girls to complications arising from pregnancy which complications result in
increased maternal mortality. At customary law the situation is worse. The Customary
Marriages Act, Chapter 5:07 does not provide for a minimum age for marriage. The effect of
this is that in practice when a young girl is married off; more often than not it is not an
offence.


Another gap in the law exists in relation to the definition of a child. In terms of both the CRC
and the ACRWC, a child is any person below the age of 18 years. The ACRWC for instance
defines a child as ‘every human being below the age of 18 years’. Acts, such as the
Children’s Protection and Adoption Act define a child as being below the age of 18. The
problem comes to legislation such as the Marriage Act, which permits children of 16 years to
marry. The Criminal Procedure and Evidence Act permits sexual relations between an adult
man and a girl of 17, in effect sexual intercourse between minors and adults is permitted.
One very negative manifestation of this legal vacuum is that in terms of the Criminal
Procedure and Evidence Act, it is an offence for an adult male to have sexual intercourse
with a girl below the age of 16 years. Even when the girl consents to the sexual relations, it is
still an offence as she is deemed incapable of consenting. For most offenders, the obvious
escape route from a conviction of statutory rape becomes marriage- to the minor girl. Thus
marriage or the offer of marriage is routinely used by offending men to escape prosecution.
In most instances the parents of the minor child are usually so happy to be receiving lobola18
that they do not care about the impact of their decision on the girl. The irony of the situation
lies in the fact that immediately after the threat of prosecution is removed, the offender
usually dumps the young girl.


These contradictions between the different pieces of legislation were in existence at the time
of ratification of the CRC and the ACRWC. They are still present in the law books today. It is
clear therefore that the government has not taken the requisite measures in terms of Article
4 to reform laws to ensure their compliance with the dictates of the convention.



18   The bride wealth


                                                                                                 21
3.3.2 Article 3: The best interests of the child
      (1) In all actions concerning children, whether undertaken by public or private social
           welfare institutions, courts of law, administrative authorities or legislative bodies, the
           best interests of the child shall be a primary consideration.
      (2) States parties undertake to ensure the child such protection and care as is necessary
           for his or her well-being, taking into account the rights and duties of his or her
           parents, legal guardians, or other individuals legally responsible for him or her, and to
           this end shall take all appropriate legislative and administrative measures.
      (3) States parties shall ensure that the institutions, services and facilities responsible for
           the care or protection of children shall conform with the standards established by
           competent authorities, particularly in the areas of safety, health, in the number and
           suitability of their staff, as well as competent supervision.19


The principle of best interests of the child is a long established and recognised principle of
the law in Zimbabwe. Section 5 of the Customary Law and Local Courts Act Chapter 7:05
provides that:
      ‘In any case relating to the custody or guardianship of children, the interests of the
      children concerned shall be the paramount consideration, irrespective of which law or
      principle is applied.’


The Matrimonial Causes Act, Chapter 5:13, which deals with matters relating to marriages,
judicial separation and divorce, provides in Section 10, that before granting any decree of
divorce, judicial separating or nullity of marriage, a court should ensure that provision has
been made for the custody and maintenance of the children, and in making this provision,
the Act further states that in doing this, the court is enjoined to:
           ‘(1) (a) commit the children into the custody of such of the parties or such other
           person as the court may think best fitted to have such custody.’


It is a principle that the courts recognise and routinely and consistently make reference to in
deciding on such matters as custody, guardianship, access, maintenance, and paternity
disputes. It is therefore the principle by which they are guided. An array of cases bears
testimony to this. In the case of Goto vs Goto20, in determining which parent should have


19   Convention on the Right of the Child, Article 3: The Best Interests of the Child
20   Goto vs Goto in 2000 (1) ZLR 257


                                                                                                   22
custody of a child following divorce, the court found that there is no principle of the law that
girls should be placed in the custody of their mothers, as this would be contrary to the rule
that in deciding on the custody of a child, the primary or paramount consideration is the best
of the child. In this case the judge held that it was in the best interests of the minor children
for custody to be awarded to their father, notwithstanding the fact that they were female.


In Zimbabwe, the legal system is an adversarial one, where the parties to a dispute fight it
out in court, with the judge or presiding officer, being the impartial arbiter or referee.
However, in disputes concerning minor children, the courts play a very rigorous role, often
descending into the arena, making enquiries into the matter. The court can even call
witnesses of its own initiative, to further guide the court in reaching its decision. This was the
case in the case of F vs W and Anor21, the facts of which bear repeating in full. In this case,
the Applicant and 2nd Respondent were husband and wife but had for some time been
experiencing matrimonial problems and had been living apart. Divorce proceedings had been
instituted. The couple had 2 minor children, one of whom was a girl aged 17 years. About six
months before he brought the application for an interdict, the applicant became aware that
his daughter had become friendly with the 1st Respondent, who was aged 30, and who was
married with a young child. The appellant objected to the relationship, although the 2nd
Respondent, his wife, saw no harm in it. The applicant was concerned that his daughter
would suffer the same fate as the 1st Respondent’s wife who had been married at 18,
already pregnant and who was now a few years later, going through an acrimonious divorce.
Failing to persuade his wife and daughter that the relationship should be ended, the
Applicant approached the courts seeking an order that the 1st Respondent be barred from
communicating with his daughter and compelling the 2nd Respondent to take all steps to
prevent the girl from communicating with the first Respondent.


The court felt that it could not rely on the evidence of the two parties alone so it ordered that
a curator ad litem be appointed to compile a report, which the courts would use to aid it in
reaching a decision as to the best interests of the child.


Having taken the evidence of all the parties into account, the court held that a custodian
parent has the right to determine a child’s social associations and the courts will not
interfere with this right as long as it is practices in good faith and in what the parent


21   F vs W and Anor 1998 (2) ZLR 1


                                                                                                23
reasonably believes to be the best interests of the child. Where a custodian parent espouses
a view that is not in the best interest of the child or encourages an association which is not
beneficial, it is the duty of the court to make an order consonant with the wishes of the one
parent who has made a case favourable to the best interests of the child. There being no
good reason to believe that the association with the 1st Respondent was in the girl’s best
interests, the court awarded the order sought by the girl’s father. In coming to this decision,
the court considered a report prepared by the curator ad litem appointed to prepare the
report for the court. The judge in that case made the important statement that:


          ‘[The] Court has the duty, as the upper guardian of all minor children to make such
          orders in their interests as it deems proper, despite the position adopted by the
          custodian parent, if it is contrary to the interests of the child.’


While the discussion above has shown that the law in Zimbabwe in theory and practice, to a
large extent, meets the requirements of Article 3 of the CRC, there are still some
contradictions within the law and these contradictions have the effect of undermining the
principle of best interests of the child as the paramount guiding factor in the determination
of children’s rights. This contradiction arises from the application of the principle that
guardianship and custody of children born out of wedlock/ non-marital children is vested in
the mothers of those children, with the fathers being regarded as having no automatic right
to custody or access and therefore standing in relation to those children in the position of
any third party. The father of a child born out of wedlock/ non-marital child, at present only
has the obligation to maintain that child, but not the right of either access or custody. Two
leading cases in Zimbabwean law, illustrate this point. In the case of Douglas vs Meyers22,
the applicant, the natural father of a child born out of wedlock applied to the court to be
granted access to his child. The mother of the child opposed the application arguing that the
development of the father-child relationship between the natural father and the child was not
in the interest of the child as it would jeopardises her future efforts to have the child adopted
by her future husband whom she would want the child to develop an exclusive father-child
relationship with.




22   Douglas v Meyers, 1987, (1) SA 910.


                                                                                                 24
The judge in that case ruled that the father of a child born out of wedlock, had no inherent
right of access, but that he like any other third party could apply for access and the court
would grant it if it was in the child’s best interests. The judge went further to state that the
court would not grant such access ‘unless there were some very strong grounds, compelling
it to do so’. With respect, this reasoning is flawed. The judge in deciding this case seemed to
have been influenced more by the marital status of the parties than the best interest of the
children. It is difficult to see how the development of a father-child relationship could be
detrimental to a child’s best interests, nor how the existence of that relationship could
jeopardise a future relationship between that same child and a stepparent.


While it can be argued that this case was decided pre-ratification of the Convention, the
situation post ratification has not changed, as the case of Cruth vs Manuel23 illustrates. In
that case the parties had lived together for four years. They were not married but conducted
themselves like husband and wife. A child resulted from this union. When the relationship
ended, the father was initially allowed to see the child every twice per week for about a
month, and thereafter the mother insisted that he could only see the child every last Sunday
of the month for two hours at a public park, in her presence. On three occasions, the father
went to the park, but the mother did not turn up with the child. In an appeal by the father for
access to his minor child, the Supreme Court dismissed his appeal. The judge, the same one
who had dealt with the case of Douglas v Meyers above while he was in the High Court, now
dealt with the matter of Cruth vs Manuel as judge of appeal in the Supreme Court. His view
was that to succeed, Cruth (the father) had to show that the mother was not exercising her
rights properly and that there had to be strong and compelling reasons for access to be
awarded to him. Again this was a faulty judgment. The court did not properly apply its mind to
the best interests of the child; it was more concerned with the respective rights of the parties
to the dispute.


The minority judgment of Sandura JA in that matter was with respect, the ‘right’ judgment.
Dissenting from the opinion of his colleagues, Sandura JA stated that in his opinion, there
was no need for the father to show strong and compelling evidence of the custodian parent’s
wrong doing, but merely to show that on a balance of probabilities, it was in the best
interests of the child if he were to be granted access, as long as this would not unduly
interfere with the mother’s rights. The learned judge further held that since there was a


23   Cruth vs Manuel, SC 73/98


                                                                                                   25
dispute of fact concerning the conduct of the parties, the matter should have been referred
back to the High Court so that it could investigate and then make an informed decision. This,
it is submitted, is a decision that is consonant with the principles enshrined in the CRC. It
becomes clear therefore that, while in the majority of cases, Zimbabwean laws and practice
comply with the provisions of the Convention, there are still areas that need to be reformed
to bring the law in line with the country’s obligations under the Convention.


3.3.3 Article 6: The right to life
         (1) States parties recognise that every child has the inherent right to life.
         (2) States parties shall ensure to the maximum extent possible, the survival and
             development of the child.24


In Zimbabwe the right to life is a constitutionally guaranteed right. Section 12 of the
Constitution of Zimbabwe states that:
     ‘No person shall be deprived of his life intentionally save in execution of the sentence of
     a court in respect of a criminal offence of which he has been convicted.’


While the provision does not specifically refer to children, it should be understood as also
referring to children since they are also human beings. The right to life of children is
therefore guaranteed. Further to this however, while the Constitution states that deprivation
of life in relation to the carrying out of a death penalty is allowed in terms of the Constitution,
the law in Zimbabwe exempts children from receiving the death penalty. Section 338 of the
Criminal Procedure and Evidence Act Chapter 9:07 states that:


         ‘The High Court shall not pass a sentence of death upon an offender who-
                 (c) At the time of the offence, was under the age of 18 years’.25


The courts have given effect to this provision by finding in sundry cases, that the death
penalty cannot be imposed on a person who at the time the capital offence was committed,
was a minor.26 In a recent newspaper report, another juvenile also escaped the death
penalty after committing a capital offence. In this case, the juvenile, aged 15 hanged an 8
year-old boy from a tree and killed him. The facts were that the juvenile stole a pen from

24 Article 6: The Right to Life
25 Section 338 of the Criminal Procedure and Evidence Act Chapter 9:07
26 State vs Musina Supreme Court 16/93




                                                                                                26
another pupil at school. The eight year-old then reported the juvenile to the teacher, resulting
in the juvenile being canned by the teacher. After school the juvenile followed the younger
boy and assaulted him, forcing him to hang from a tree using tree bark, leading to his death.
The juvenile was convicted of murder with actual intent, but was not given the sentence that
would have been attendant upon that conviction had he been an adult. Instead, the High
Court judge having regard to his age and having taken into account the social worker’s
report, ordered that the juvenile be committed to a training institution for rehabilitation and
reform.27


It must be noted however that while the law in Zimbabwe seeks to protect the right of life of
children in the public law arena, this is not sufficient for purposes of the CRC. The restrictive
interpretation of the Bill of Rights as relating only to Civil and Political rights is problematic. It
does not take into account the obligation of the State to ensure ‘to the maximum extent
possible, the survival and development of the child’. The Constitution in Zimbabwe
guarantees civil and political rights; it does not guarantee socio-economic and cultural rights
and therein lies the gap. It is common cause that rights are indivisible and interdependent. A
child’s right to survival is compromised if she cannot access adequate nutrition, if she does
not have access to adequate health care and if she does not have shelter and is exposed to
the elements. In the same vein a child’s right to development is compromised if does not
have access to education and if does not have adequate time to play and be a child, because
she is working. Progressive courts the world over have been interpreting the law in a manner
that attempts to give meaning not just to the letter, but also to the spirit of the law. Yakoob J.,
speaking in a South African court said:


          ‘[Our] The South African Constitution entrenches both civil and political rights and
          social and economic rights. All the rights in our Bill of Rights are inter-related and
          mutually supporting. There can be no doubt that human dignity, freedom and
          equality, the foundational values of our society, are denied those who have no food,
          clothing or shelter. Affording socio-economic rights to all people therefore enables
          them to enjoy the other rights… The realisation of these rights is also key to the
          advancement of race and gender equality and the evolution of a society in which men
          and women are equally able to achieve their full potential.’28


27   2006, The Herald, Tuesday 14th March 2006
28   Yakoob J Republic of South Africa and Ors vs Grootbroom and Ors Constitutional Court 11/00


                                                                                                    27
While the Judge in the above case was addressing the South African situation, his
observations are nonetheless appropriate. All rights are inter-related and mutually
supporting, those who are denied food, medication and shelter have their very survival and
their very lives threatened. It is this aspect that has long been a problem for the Zimbabwean
government. From the situational analysis in Chapter 1, it is clear that Zimbabwe is battling a
socio-economic crisis that has deprived thousands of children of their livelihoods and that
have compromised their chances of survival and development.


3.3.4 Article 12 Respect for the views of the child
           (1) State parties shall assure to the child who is capable of forming his or her views,
               the right to express those views freely in all matters affecting the child, the views
               of the child being given due weight in accordance with the age and maturity of
               the child.
           (2) For this purpose, the child shall in particular be provided the opportunity to be
               heard in any judicial and administrative proceedings affecting the child, either
               directly or through a representative or an appropriate body in a manner
               consistent with the procedural rule of national law.29


The Convention in this Article recognises the personhood of children, viewing them not as
passive subjects to be taken care of by adults, but as human beings who are right holders.
The convention therefore seeks to ensure that children are given a voice and the opportunity
to make meaningful contributions when decisions are being made about their lives. The law
in Zimbabwe recognises that children should be consulted when decisions are being made
that affect them. Section 61(c) of the Children’s Protection and Adoption Act, Chapter 5:06
states that before making an order of adoption, a court must be satisfied inter alias that:


      (c) ‘the order if made will be for the welfare of the minor, due consideration being for this
      purpose given to the wishes of the minor having regard to the age and understanding of
      the minor.’30


The courts in Zimbabwe recognise that children can and should be consulted when decisions
are being made that can impact on their lives. The courts hold the view however that such


29Convention    on the Right of the Child, Article 12: Respect for the Views of the Child
30   Section 61(c) of the Children’s Protection and Adoption Act, Chapter 5:06


                                                                                                   28
contributions are not decisive in themselves, but are to be taken into consideration together
with all the other relevant factors in a particular case, so that a child’s views will go towards
assisting in a determination of what is in the best interests of that child.


This approach, it is submitted, properly applied, is the right approach. It recognises that in
matters such as custody disputes, the opinions expressed by the child may not be her own
views, but the views of the custodian parent. It also recognises that even if they are the
child’s views, they could be the result of the custodian parent indoctrinating the child and
poisoning her mind against the non-custodian parent, or that they could be influenced by the
need to avoid displeasing her custodian parent. Further this approach recognises the
limitation of the child’s reasoning capacity as a result of age and maturity or lack thereof.


The Zimbabwean High Court case of Hardy vs Skaramangas31, illustrates the court’s
approach to the issue. In this case the Respondent and Appellant lived together as husband
and wife, but did not get married. Their relationship resulted in the birth of a minor child. The
parties then separated but remained living near each other for the sake of the child. After the
Appellant started a relationship with another man, the child began to harbour feelings of
resentment and anger towards his mother. One day the minor child arrived at the
Respondent’s (his father’s) flat, distressed, alleging that he had been beaten by his mother
for inquiring why she was using her car to ferry her new partner around. The child was
unwilling to go back home to his mother. The Respondent applied for an urgent custody
order. At the hearing both parents of the child gave evidence and the court also interviewed
the minor child. The evidence of a qualified clinical social worker was also adduced.


The High Court found that the Magistrate had placed undue reliance on the child’s testimony.
It held that whilst it is appropriate to have regard to a child’s testimony, the magistrates
ought to have paid heed to all surrounding circumstances. It was not disputed that to all
intents and purposes, the appellant (the mother) was a good and caring parent. The
Respondent (the father) even admitted this fact. After considering all the evidence, including
the child’s views, the court was of the opinion that the child needed time and perhaps
counselling to come to terms with the new situation in his life. The court did not find that the
relationship between the appellant and the other man had so detracted from the appellant’s
competence as a custodian parent. She was therefore awarded custody of the minor child.


31   Hardy vs Skaramangas 2000 (1) ZLR 196 (H)


                                                                                                 29
It is submitted that the approach of the courts in Zimbabwean fulfils the requirements of
Article 12 of the Convention, which demand that the views of the child be given ‘due weight
in accordance with the age and maturity of the child’. Due weight does not mean complete
reliance on the views of the child, it simply means that the child’s views must be accorded
proper consideration. This is what the courts in Zimbabwe have endeavoured to do.


3.4 Review of policies and frameworks pursuant to Article 4 of the conventions


The Children’s Convention places an obligation on States Parties to undertake a
comprehensive review of all domestic legislation and policy in order to harmonise them with
the provisions of the CRC. Article 4 of the convention states in particular that:
          ‘States Parties shall undertake all appropriate legislative, administrative and other
          measures for the implementation of rights recognised in the present convention with
          regard to economic, social and cultural rights. States Parties shall undertake to the
          maximum extent of their available resources and where needed, within the
          framework of international cooperation.’32


In 1996, the committee on the rights of the child recommended that Zimbabwe carry out a
comprehensive review of all legislation to bring it in line with the provisions of the convention.
It recommended in pertinent part that:
          ‘The state party undertakes a comprehensive review of the national legal framework,
          with a view to ensuring its full compatibility with the principles and provisions of the
          Convention. Particular attention should be paid to ensuring effective implementation
          of the principle of non-discrimination, including by revising relevant constitutional
          provisions, as well as other legislative texts reflecting any kind of discrimination such
          as on the basis of gender, race, birth or marital status.’ 33


It therefore behoves any inquiry into the extent of harmonisation to ascertain what measures
a State party to the convention has put in place to fulfil this obligation. From the analysis of
the core provision above it becomes clear that Zimbabwe certainly has ‘an impressive and
comprehensive array of child laws’. However it has to be noted that most of these pieces of
legislation with the exception of the Sexual Offences Act which was promulgated in 2001,

32   CRC, Article 4
33   Recommendation of the CRC


                                                                                                  30
were in place at the time of ratification of the Convention in 1990. Therefore while it is
commendable that the government already had an impressive legislative framework in place
it cannot be said that it has done much since then by way of law reform to ensure that those
gaps and loopholes in the legislation are plugged and to ensure that it reforms the laws in
place to bring them into line with the provisions of the convention as well as the children’s
charter. Those of the country’s policies which impacted on children’s rights for a long time
sat on the shelves gathering dust until about 2003, when an initiative spearheaded by
UNICEF, re-galvanised work around national level policy implementation.


Zimbabwe has two key policies pertinent to children. These include the National AIDS Policy
and the National Orphan Care Policy. The country also has a National Gender Policy although
the latter would appear to be more relevant for women that children. These policies were
developed using broad-based consultative processes. Adopted in 1999, the policies seek to
establish the government infrastructure to implement and coordinate services and benefits
provided for in the policies. The Orphan Care Policy provides among other things for the care
and support of orphans and other vulnerable children. It also seeks to establish a
partnership between government ministries and private voluntary organisations, the
community, faith based organisations and non-governmental organisations both national and
international. Some of the programmes initiated by the government of Zimbabwe under
these policies include BEAM- the Basic Education Assistance Module, through which tuition
fees, levy and examination fees assistance is provided to vulnerable children. In addition the
government raises funding for HIV and AIDS programmes through the 3% AIDS levy. Some of
this money supports children affected by HIV and AIDS.


3.5 Reporting status & law reform initiatives


After considering Zimbabwe’s report to the CRC committee in 1996, the committee observed
with concern that:
          ‘The state party has not yet undertaken a comprehensive legal reform with a view to
          ensuring that the national legislation fully conforms to the Convention. It notes that
          the existence of a dual system of common law and customary law creates additional
          difficulties in implementing the Convention and impedes effective monitoring of its
          enforcement.”34


34   Concluding Observations of the Committee on the Rights of the Child: Zimbabwe 07/06/96


                                                                                                   31
Some law review initiatives have taken place since the CRC and the ACRWC were ratified in
1990 and 1995 respectively. Lamentably, these have not been in the comprehensive
manner called for by the committee. What has been done has been piecemeal and sector
specific. The result is that legislation relating directly to children as well as legislation
impacting on children, still contains the contradictions and gaps discussed above.


After Zimbabwe ratified the CRC, a desk review was conducted in 1994 by a committee
made up of government officials and NGO representatives and headed by the Ministry of
Health and Child Welfare was set up to coordinate the reporting process. This committee was
divided into subcommittees which were tasked with ascertaining the measures put in place
to harmonize national law and policy with the Convention, monitor progress made in ensuring
this harmony and the constraints they had met in guaranteeing that the laws were
implemented.35 However there was no national strategy to conduct the review and reform in
a systematic manner.


In this context, law reform has been driven by various state and non-state actors, with a view
to bringing about changes to laws in their areas of interests. Some of the notable law reform
initiatives include the Sexual Offences Act of 2002, in which women’s rights NGOs were
major players and the current Domestic Violence Bill enactment initiative, again driven by
women’s rights NGOs, even though the law will impact on children’s rights.


It was only in 2003, that UNICEF commissioned a comprehensive and all-encompassing
review of the laws relating to women and children. The objectives of the review were to
compare the national legal provisions and regulatory framework in Zimbabwe against the
standards set down in the Convention on the Rights of the Child and CEDAW, to compare this
theory with the reality on the ground in terms of implementation and finally to capture the
recommendations for action from practitioners.


3.6 Implementation mechanisms for policies

It becomes clear from the gaps and contradictions in the laws of Zimbabwe that there are
still some outstanding issues when it comes to the protection, promotion and fulfilment of


35   Report of the Government of Zimbabwe 1996


                                                                                                32
children’s right. It is common cause that a purely legal centralist approach (which is an
approach that seeks to analyse how the law seeks to address a problem is a limited
approach to ascertaining the situation of children. It is a much better and broader approach
in the analysis of the situation of children to look at children’s lived realities – the grounded
approach to research and analysis that has been propounded by such scholars as Agnet
Weis Bentzon. While of course this approach is used by women’s law scholars in ascertaining
the position of women, it is a useful methodology to employ even for children’s rights. The
methodology takes women’s lived realities as the starting point in any investigation into the
situation of women in any given context. The rationale is that if you want to unearth the truth
about the situation of women’s or children’s lives, you have to look at the reality of their lives.
This approach is informed by the realisation that there is usually a gap between the
legislative and policy framework and the reality on the ground. It is beneficial therefore to
approach the analysis of the situation of children from this perspective.


This discussion will therefore now turn to an analysis of some of the mechanisms on the
ground for the promotion, protection and fulfilment of children’s rights.


Zimbabwe has some 200 NGOs, faith-based organisations and community-based
organisations working with children in different capacities, but mainly in the provision of
services to children in response to the escalating numbers of orphans.36 Programmes for
OVCs focus on psychosocial and material support, and educational and humanitarian
assistance. Other programmes include children’s rights, behaviour change, youth programs,
life skills training, caregiver training, HIV/ AIDS information and health care. Most these
programmes have links with the government of Zimbabwe, through the different line
Ministries, like the Ministry of Health for HIV/ AIDS as well as health related programmes,
while those dealing with education, training and life skills have links with the Ministry of
Education. Those programmes related to the provision of psychosocial support have links
with the Ministry of Public Service, Labour and Social Welfare.


At the governmental level different Ministries have been working on different initiatives, all
aimed at advancing and protecting the rights of children. For instance within the Zimbabwe
Republic Police, a Victim Friendly Unit has been established at the Police General Head
Quarters with units in all districts. These Units have the specific mandate of handling cases

 Chinake, TA, Deputy Director, Child and Family Welfare, Ministry of Public Service, Labour and Social
36

Welfare, February 2005


                                                                                                   33
of child abuse. The Ministry of Education Sport and Culture has an institutionalised Schools
Psychological Services and Special Needs Education department whose functions include
the provision of support to learners with disabilities. The Ministry of Justice has tried to
institutionalize the provision of Victim Friendly Courts for vulnerable witnesses, most of whom
are children. The courts are however plagued by chronic under funding and breakdown of
equipment. For children in conflict with the law, a Pre-trial Diversion Programme has been
added to the pre-existing Juvenile Courts system. The Social Welfare Department has a
decentralised provincial and district structure, which among other things, administers the
Children’s Adoption and Protection Act and with respect to poverty related educational needs
a Project Management Unit is in place to co-ordinate the Basic Educational Assistance
Module (BEAM). Overall, it is quite clear that there is a lot of institutional support for the
implementation of the CRC.


A major challenge with such an implementation scenario relates to the lack of coordination
of the different initiatives. This in some instances leads to duplication of efforts and lack of
efficiency in the use of resources. In an attempt to address this gap, the government of
Zimbabwe put in place a National Plan of Action for children whose main functions were to
document the programme, and projects for the realisation of children’s rights that different
Ministries, co-operating partners and other stakeholders are implementing. This Secretariat
is located within the Ministry of Health and Child Welfare. However the operations of this
secretariat have been hampered by lack of resources. It has therefore not been very effective
in carrying out its mandate.


3.7 The National OVC Plan of Action: A best practice


As already noted in the background section of this paper, Zimbabwe is facing an
overwhelming HIV and AIDS crisis. With over 3,000 deaths per week, the orphan population
in Zimbabwe has been increasing sharply. To date an estimated 1.3 million or one fifth of all
Zimbabwean children have lost one or both parents due to AIDS. Zimbabwe has 318 000
children living in child headed households. Given the magnitude of the problem,
stakeholders working on children’s rights decided to come together to address the
challenges faced by orphans and other vulnerable children.




                                                                                                   34
This realisation informed the production of the National Plan of Action for OVC in Zimbabwe.
The work that has been done around the NPA for OVC best exemplifies what the Committee
on the Rights of the Child meant when it highlighted:


          ‘The importance of developing an effective and permanent system of monitoring the
          implementation of the Convention based on close cooperation between all the
          relevant government ministries and departments at the national and local levels, and
          encourages the State party to pursue its efforts with a view to institutionalizing the
          collaboration with non-governmental organisations.’37


3.7.1 The process


In 2003 the Government of Zimbabwe endorsed a plan to coordinate, expand and
strengthen work being undertaken by different government ministries, NGOs, CBOs, FBOs
and UN agencies around orphans and vulnerable children. The National OVC Conference –
“Children at the Centre” held in June 2003 marked the beginning of a collaborative and
coordinated approach to OVC responses in Zimbabwe. Children were active participants at
different stages, giving their input on what they perceived to be the priority areas for
attention and how best these challenges could be addressed. The vision of the NPA is to
reach out to all OVC in Zimbabwe with basic services that will positively impact on their lives.
Some of the key objectives of the NPA include:
         Increasing school enrolment and retention
         Increasing access to food, health services, water and sanitation and psychosocial
          support
         Enhancing meaningful child participation in OVC responses
         Reducing the number of children living outside of family environment


Key strategies for the NPA include strengthening coordination and resource mobilisation. The
time span for the implementation of the NPA for OVC is 3-5 years using a phased approach.




37   Concluding Remarks of the Committee, 1996


                                                                                                   35
3.7.2 Coordination

The Ministry of Public Service Labour and Social Welfare (MOPSLSW) coordinates and
houses the human resources at the National, Provincial and District Secretariat levels. The
National secretariat works closely with the National AIDS Council (NAC), which is mandated
with the coordination of all HIV/AIDS programming in the country. UNICEF has been
instrumental in supporting and coordinating the formulation of the NPA. The agency will also
be instrumental in supporting the stakeholders implementing the NPA.


3.7.3 Implementation

The NPA has been accounted for and a resource mobilisation sub committee is in place, led
by UNICEF. Resource mobilisation for implementation is therefore underway. The budget is
Zim$365 billion (US$40.5M) in year 1, scaling up to Zim$864 billion (US$96M) by year 4.
Implementation of activities that have been successfully fundraised for has already begun
with UNICEF managing the funds that are coming in from the different partners who have
responded positively to the call to support the NPA.


Some of the activities conducted to support the NPA for OVC include the development of a
Monitoring and Evaluation (M and E) strategy, which has come up with a shared definition of
an orphan and of a vulnerable child. Through a participatory process, the M and E strategy
also seeks to provide commonly shared indicators for tracking the progress of the
implementation of the NPA for OVC by measuring the contribution of project activities to
improving the socioeconomic conditions of the OVC and their households as well as ensuring
that quality services are available to the OVC and their households. The M and E Strategy
also seeks to strengthen the M&E capacity of the coordinators at the district, provincial and
central levels through provision of adequate equipment and the recruitment and training of
staff on data management and analysis.




                                                                                             36
Chapter 4: Conclusions and recommendations

4.1 Challenges to harmonisation and reform


Zimbabwe is a country that is facing immense socio-political and economic problems. With
ever rising poverty levels, children’s rights are being sacrificed for expediency. For example,
more and more children are being forced to work, sometimes in hazardous conditions, to
support themselves and their families.


The difficult economic conditions have led to massive brain drain, to the extent that essential
services like health and Child Welfare offices in Social Services have become extremely
understaffed. With the closure of industries owing to economic hardships and the resultant
dwindling revenue base, the government is struggling to support essential services. The
result is that services that impact on children like the victim friendly courts, health and
education are severely under-resourced.


These economic difficulties have had the effect of pushing to the periphery calls for law
reform around children’s rights. Competing interests of perceived higher priority include
economic reforms, land redistribution and political contestations between the ruling party
and the opposition party. An example of detrimental actions taken for political expediency
was the Operation Restore Order conducted by government from May 2005 to July 2005. In
May 2005 the government embarked on a programme called Operation Murambatsvina
(Restore Order) which saw the destruction of urban homes deemed ‘illegal’. The operation
also saw the destruction of urban livelihoods in the informal sector. The Operation displaced
over a million people and most of the affected were women headed households as well as
households headed by children. It is now generally accepted that the operation was
conducted not as an urban renewal initiative, but as a pre-emptive strike against a restive
urban population that was getting increasingly disgruntled with the economic hardships and
which would have provided fertile ground for opposition-led protests. The rights of children to
shelter, life, education, health care, family among other rights were easily discarded. This
environment largely remains, hence the possibility for future abuse when politically expedient
cannot be negated.


Generally, new legislative and policy changes have been inadequately resourced. This has
led to some laws beneficial to children remaining largely unknown and therefore


                                                                                               37
underutilized. In other instances where due to largely NGO initiatives, the laws have become
known, the system has failed to cope with increased numbers of users. For instance work
around child abuse and the Sexual Offences Act largely by NGOs have led to higher reporting
rate to the Police and hospitals. Shortages of critical manpower on a 24 hour basis, rape
kits, and long waiting lists for access to child-friendly courts as well as high staff turnover in
the absence of on-going in-service training have negatively impacted on the potential
benefits of the law reform.


4.2 Recommendations


These recommendations are in part adapted from the review study into children and
women’s rights conducted by UNICEF in 2004. However some flow from the foregoing
discussion as well as from the researcher’s experiential knowledge of the state of children’s
rights in Zimbabwe.


       A comprehensive children’s law
        The Convention on the Rights of the Child is comprehensive and all encompassing in
        its coverage of rights pertaining to children. It seems to follow therefore that there
        should be one overarching instrument to cover all facets of children’s rights in
        Zimbabwe. This holistic law would address some of the contradictions existing at
        present in the law, for example, contradictions existing in the definition of a child
        (some acts set it at 16 others at 18), minimum age of sexual consent, minimum age
        for marriage (some laws providing for 16 years for girls and 18 years for boys, others
        18 and yet others not providing for a minimum age at all.) The Ministry of Justice,
        Legal and Parliamentary Affairs is best placed to draft this overarching legal
        instrument.


       Child Rights Commission
        In much the same way that some countries have in place Gender Equality
        Commissions and in the same way the same way that the Zimbabwe government is
        now proposing a Human Rights Commission, a national Child Rights Commission
        could be established. One clear and immediate mandate for this commission would
        be to ensure the comprehensive reform of all laws relating to children’s rights to
        ensure their compliance with the CRC. This national level structure would address the



                                                                                                 38
    challenges posed by the sector ministry approach, which have led not only to overlap
    of some functions, but have in some instances meant that some children fall through
    the net. The interests and functions of the various sector ministries could still be
    addressed by the establishment of multi-sectoral supporting units. Such a structure
    would also provide for a more sustainable and efficient national co-ordination
    framework. This national structure would be easy to operationalise if the requisite
    human and material resources were provided.


   Mobilising commensurate resources
    It has already been noted that Zimbabwe has a lot of laws that by and large comply
    with the requirements of both the CRC and the ACRWC. However as the analysis of
    children’s lived realities has shown, there is a gap in the implementation of those
    rights. This gap has largely been the result of lack of adequate resources. It is
    therefore recommended that a system be introduced whereby every Bill is properly
    costed before it is passed into an Act. If a Bill is costed and supported by Treasury,
    this would result in more immediate concrete benefits for children. This financial
    support would translate into an improved human resources base to properly
    implement the reforms. It would also enable the different implementing agencies to
    procure the materials and equipment needed to support the reform. This need was
    made obvious by the experience of the victim friendly courts whose operations have
    been hampered by lack of audio-visual equipment among other things.


   Child-friendly budget
    Related to the above point is the need to take measures to implement child-friendly
    budgets. This would involve not just allocating sufficient money for work on children’s
    rights, but would involve the analysis and monitoring of spending on children. Work
    on child-friendly budgeting is already ongoing where UNICEF is working with a
    coalition of NGOs on this initiative. This initiative has already seen sensitization of
    local government officials on child friendly budgeting. It is therefore proposed that
    this project be scaled up into a full-fledged programme, which the relevant Ministries
    should commit to.




                                                                                              39
 Training
    As noted above, Zimbabwe has a lot of NGOs working on what can properly be
    termed, children’s welfare issues. Their involvement is best understood in the context
    of the HIV and AIDS pandemic which has seen a rise in the number of orphans. Most
    of these NGOs regrettably do not have knowledge of children’s rights. It is therefore
    imperative that institutional training be conducted so that they can approach their
    work from a rights based perspective. This would enable the creation of an
    environment where there is increased uptake of laws for the benefit of children.
    Training can be targeted at judicial officers, medical personnel, social workers,
    teachers, psychologists and the police among others.

    Public awareness

    Related to training is the need for raising public awareness of children’s rights so that
    this awareness stops being confined to children’s rights organization, but become
    part of the national consciousness. This awareness would also contribute not only to
    the increased uptake of laws by the community, but would also contribute to
    changing some of the problematic cultural practices that expose children to harm.
    This awareness drive should not be the responsibility of non-state actors as is
    presently the case, but it should be the primary responsibility of government, with
    non-state parties coming in to complement government efforts.


   Family courts
    The need for family-friendly courts has long been realized. However it has been
    women’s rights organization and not child rights organisations that have been driving
    the call for their establishment. These courts would improve the handling of legal
    matters related to both the Convention on the Elimination of all forms of
    Discrimination against Women and the Convention on the Rights of the Child.
    Children’s courts and juvenile courts could then be subdivisions of these family
    courts. Given the pressure on resources, government may involve other partners to
    augment its budget and so establish family courts.


   Harmonisation of Laws with the CRC
    Perhaps the most obvious recommendation arises from the analysis of the gaps in
    laws and policies relating to children in Zimbabwe. There is need to reform these



                                                                                          40
        laws to make them comply with the provisions of the CRC. In this regard, there is
        need for political commitment so that the requisite reform can be done expeditiously.
        Some of the laws crying out for attention include, harmonisation of marriage laws so
        that the minimum age of marriage is uniform. There is also need to amend the
        Sexual Offences Act to remove the ambiguity surrounding the concept of
        ‘extramarital sexual contact’ in reference to sexual intercourse with children under
        the age of 16, which gives the impression that intra-marital sex with under-aged
        persons is acceptable. There is also need to amend the constitution to address the
        issue of corporal punishment which Zimbabwean courts had long ruled inhuman and
        degrading.


Conclusions
It is evident that while Zimbabwe has some very good laws and policies on the books, it has
equally immense challenges when it comes to translating these laws into reality and tangible
benefits for its children. These challenges arise not only from the economic problems that
the country is currently reeling from, but also from the socio-political context. It is noteworthy
that in the midst of all these challenges there are over 200 NGOs and other stakeholders
working to address the many problems facing Zimbabwe’s children. It is also clear from the
work around the National Plan of Action for OVC that collaboration between government and
civil society is possible, and it can lead to the meaningful work around children’s rights (even
in a country where there is polarization and where government and civil society view each
other with suspicion). It is therefore obvious that work on reform and harmonisation has a
firm foundation to build on. It now remains for the Government to take up the challenge and
with the necessary political commitment, the requisite reform can be done.




                                                                                                41
Bibliography

List of statutes
Administration of Estates Act            Chapter 6:01
Children’s Protection and Adoption Act   Chapter 5:06
Constitution of Zimbabwe
Criminal Procedure and Evidence Act      Chapter 9:07
Customary Marriages Act                  Chapter 5:07
Education Act                            Chapter 25:04
Guardianship of Minors Act               Chapter 5:08
Maintenance Act                          Chapter 5:09
Marriage Act                             Chapter 5:11
Matrimonial Causes Act                   Chapter 5:13


List of cases
Douglas vs Meyers                        1991 (2) ZLR HC
Cruth vs Manuel                          SC 73/98
F vs W and Anor                                 1998 (2) ZLR 1 (HC)
Goto vs Goto                             2000 (1) ZLR 257 (HC)
Hardy vs Skaramangas                     2000 (1) ZLR 196 (HC)
S vs A Juvenile                          1989 [2] ZLR 61
S vs Musina                              SC 16/93
Rosa vs Rosa                             1980 ZLR




                                                                      42
Annex: About the author
  CATHERINE CHAMAPIWA MAKONI is currently working for the Catholic Agency for
  Overseas Development (CAFOD) as the Southern Africa Regional Programme Officer for
  Justice and Peace. She is responsible of the organisation’s partners in Zambia,
  Zimbabwe, Malawi and South Africa. She has formerly worked as Policy and Advocacy
  Programme Coordinator for ActionAid International in Zimbabwe. Catherine has been an
  active member of the women’s and human rights movement in Zimbabwe. She has
  conducted a number of researches and studies focusing on the rights of women and girl
  children in Zimbabwe. She has among other things investigated women and girls’ access
  to public services in Zimbabwe; she was part of a team that conducted a research into
  the rights of women to land in Zimbabwe in the context of HIV and AIDS- part of a multi-
  country study by UN FAO. This report is published by the United Nations Food and
  Agriculture Organisation. Catherine has written and presented numerous analysis papers
  focusing on women and children’s rights in Zimbabwe. She has special interest in the
  rights of women infected and affected by HIV and AIDS.



  Catherine is a past board member of the Zimbabwe Women Lawyers Association and a
  member of the Zimbabwe Lawyers for Human Rights. She obtained her Bachelor of Laws
  (LLBS) (Hons) degree from the University of Zimbabwe and she holds a Masters Degree
  in Women’s Law from the Southern and Eastern Africa Centre for Women’s Law at the
  University of Zimbabwe.



  Catherine can be contacted on:     catherine_makoni@yahoo.com




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