Children’s rights in Zimbabwe: An Analysis of how the State seeks to protect Children’s’ Rights.

A LEGAL PERSPECTIVE – 

This Article explores children’s rights as enshrined in the Constitution of Zimbabwe Amendment (No 20) Act of 2013. Zimbabwe has prioritized children’s rights, it adopted the Convention on the Rights of the Child and various laws have been passed in the recent years which protect children. 

 

Before Amendment (No 20) of 2013, children’s rights were not set out in the Constitution of Zimbabwe. With Amendment (No 20) of 2013 we see children’s rights being set out in the superior law of the land. Children’s rights are now set out in section 19 of the Constitution. Section 19 (1)  clearly sets out that the State must adopt policies and measures to ensure that in matters relating to children, the best interests of the children concerned are paramount. In section 19 (2)  the State has undertaken to ensure that children enjoy family or parental care, or appropriate care when removed from the family environment, have shelter and basic nutrition, health care and social services, are protected from maltreatment, neglect or any form of abuse and have access to appropriate education and training.  

Section 19 (3) of the Constitution which deals with child labour also compels the state to take appropriate legislative measures to protect children from exploitative labour practices and to ensure that children are not required or permitted to perform work or provide services that are inappropriate for the children’s age or place at risk the children’s age, their children, education, physical or mental health or spiritual, moral and social development. With Section 19 (3) we see the State fighting against acts such as human trafficking and child prostitution, where children are abused in order to obtain income to support families. In Africa we have high cases of child headed families were children are forced to support each other, this is because of the increasing rates of HIV/AIDS. 

If we take a look at our Maintenance law which is one of the most controversial topics to most men in Zimbabwe, the State protects children. The Maintenance Act [Chapter 5:09] has brought up so many changes which protect children, both parents have a duty to maintain their children. Under traditional customary law, the father of a child who was born out of wedlock had no duty at all to maintain his child, in Shona they said “gomba harina mwana” this meant that even if a man impregnates a woman and does not marry her, and the man had no duty to maintain this child. However, in modern days, maintenance has extended beyond formally recognized links to those who have created a relationship by reproduction. For example, if a married man impregnates his girlfriend and is sued for maintenance, whilst the man is legally liable to maintain the child, which does not mean that both the married man and girlfriend are husband and wife. In Zimbabwe a child is supported up until he or she turns 18 years of age or becomes self-supporting.  

In Zimbabwe the mother of a child born out of wedlock is entitled to recover expenses from the father of the child. These include maternity, home and medical expenses, maternity clothing and clothes for the child as well as food. The expenses can only be claimed after the birth of the child. 

Similarly, upon divorce or judicial separation, children are protected from the conflicts between their parents. When a decree of divorce or judicial separation is granted by the High Court of Zimbabwe, the court looks at the best interests of the child. Although custody is vested naturally by mothers, custody can also be granted to the father after taking into account the best interests of the child which are provided in section 4 of the Guardianship of Minors Act [Chapter 5:08]. The court looks at the age of the child, health, sex, educational and religious needs, social and financial position of the parties, character of parents, temperament, past behaviour of parent to child. A parent who leads an immoral life is deprived of custody and a parent who travels a lot is deprived of custody too because children need the attention of parents and they need to be brought up under a good and religious background. A non-custodian parent is also granted access in terms of section 6 of the said Act, meant to keep the natural bond between the child and the parent. 

The Child Abduction Act [Chapter 5:05] which is international in nature is meant to safeguard the removal of children when a custodian parent wants to leave another country with the child. When parties fail to agree, the High Court of Zimbabwe makes that decision for the parents since it is the upper guardian of the minor child. The Hague Convention on the Civil Aspects of International Child Abduction was adopted in Zimbabwe by virtue of Child Abduction Act. 

With the Children’s Act [Chapter 5:06], establishing the children’s court, provisions for the protection, welfare and supervision of children and juveniles as well as certain institutions and institutes for the reception and custody of children were established. The same Act also deals with issues of adoption of minors. Before the Children’s Act came into effect, an adopted child could get married to the adopted parent if the child was over 18 years, nowadays marriage between a parent and adopted child is prohibited.

Criminal law has protected children against sexual offences that might be committed against them. Various acts of crimes are defined in Criminal Law (Codification and Reform) Act [Chapter 9:07] which attract heavy fines and custodial sentences. Section 87 of the Code states that anyone who allows a child to be a prostitute commits a crime. Meanwhile, section 70 of the Code also penalizes adults who have sexual intercourse with minors or who perform indecent assaults on young people. It is not a defense that a young child consented to the act because at law, children cannot consent to sexual acts. Section 49 of the Code also protects the right to life as enshrined in the Constitution anyone who within six months of the birth of her child and causes its death intentionally or by conduct realizes that there is a real risk to the child’s life shall be guilty of infanticide, just as abortion is prohibited. Section 94 of the Code also protects the rights of the girl child, any female custodian who hands over a young girl who is under the age of 18 as compensation of the death of a relative of another person (kuripa ngozi) and for a debt or obligation commits a crime.

In conclusion, the State plays a great role in the protection of children’s rights. Although the State has made it an offence to have sexual intercourse or indecent acts with children, offences such as rape, sodomy and indecent assault continue being committed by adults. The right to education and the right to health of children are still being violated due to religious grounds for example apostolic sects. It is therefore imperative that the Church engages in massive civic education to promote the rights of children in faith communities, especially African Initiated Churches.

Rutendo Muchenje is a Harare based lawyer. Her passion lies with family law and she writes on the legal side of children and family law.

 

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