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Children and Women's Rights in Zimbabwe, Theory and Practice. A critical analysis in relation to the women and children’s conventions
United Nations Childrens Fund (UNICEF)
November 11, 2004

Children and Women’s Rights in Zimbabwe, Theory and Practice is a review of Zimbabwe’s progress and achievements in meeting its commitments to advance and uphold the principles of the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) which Zimbabwe ratified in 1990 and 1991 respectively.

Although Zimbabwe has a well established legal and regulatory framework to advance and protect the rights of children to meet most of the standards of the Convention, there are some notable exceptions and in many cases implementation of existing policy is weak. In addition, the impact of HIV and AIDS pandemic and the political, economic and social challenges, fuelled by lack of human and financial resources have further pushed child rights down the agenda.

The report notes that often the indirect repercussions of law and policy can have a negative impact on women and children. It details how the competing agenda’s of customary law, protected under the constitution, continue to adversely affect the rights of women and children, especially in terms of inheritance and ownership of land, further putting them at risk of marginalization.

The review report, which was conducted in a highly participatory manner and in partnership with Government of Zimbabwe, civil society organizations academia and UN agencies, explores the extent to which both these Conventions have been domesticated and operationalised in Zimbabwe’s regulatory systems, establish what is happening on the ground, and finally to reflect the views of practitioners and consumers on what can and should be done to address gaps both constitutionally and in implementation.

The research for the report was carried out in three stages. The first was a desk review of the two conventions in comparison with current legislation in Zimbabwe, the second stage was focused on reviewing the literatures and research that had already been published by practitioners on the issues and challenges they face in implementing the laws within the framework of the CRC and CEDAW. The third stage was from primary research, namely focus group discussions and interviews or questionnaire completion.

The report calls for specific actions to bridging the gap between the Convention on the Rights of the Child, CEDAW, Zimbabwean laws and their implementation. The recommendations include:

Statutory body
In view of the number of practical constraints to implementing child rights legislation and provisions, a coordinating approach to policy review and resource mobilization is recommended that would harmonize local legislation and the CRC.

Comprehensive children’s law
Although Zimbabwe has a well established legal and policy framework for children, the report recommends a more comprehensive approach that provides an overarching legal instrument and more consistency between the legislative process and the legal framework.

Mobilising adequate resources
The report argues that the greatest hurdle to the realization of children’s rights in Zimbabwe is to mobilize sufficient resources to implement the laws and their supporting structures and processes.

Aligning customary and modern law
Many children can be adversely affected by different applications of customary and local law. For example around issues of inheritance which exclude female children from being appointed heirs, or the different application of law for martial and non marital children which affect custody issues. The report calls for more effort to be placed on reconciling these laws around child protection values that are common to both systems.

The right to free education, although enshrined in the CRC, is not a constitutional right and despite significant gains made at independence to achieve universal primary education, this goal was affected by the introduction of user fees under structural adjustment. The report recommends that further strategies are developed to obtain universal primary education; close the gender gap at all levels of the education system; to promote inclusive education and provide resources for disadvantaged groups, and to discontinue corporal punishment as a disciplinary option for boys.

Children and the judicial system
For children in conflict with the law, Zimbabwe’s criminal law and procedures provide the necessary safeguards as required by the Convention. The use of juvenile courts and more recently the introduction of the victim friendly courts are in line with the requirements of the Convention, although this initiative lacks adequate resources. The report calls for greater support for the pre-trial diversion initiative and more specialized rehabilitation programmes for juveniles who commit more serious offences

To address the legal handling of juvenile cases, the report recommends that children and juvenile courts could be subdivisions of family courts that could specialize around issues of women’s and children’s issues.

Discriminatory provisions – Section 23 of the Constitution
Constitutionally, children and women’s rights are affected by section 23 (3) in which the primacy accorded to customary law allows decisions to be taken affecting children which would otherwise be regarded as discriminatory. The consequences of these provisions, which give precedent to customary law, have far reaching consequences for women and children. The report recommends that customary law be re-positioned within the general common law framework to address inconsistencies and discrimination.

The report also calls for more attention to be paid to budgeting appropriate resources, prior to the enactment of laws, to ensure adequate funding for implementation. It stresses that a number of issues related to women and children’s rights could be addressed, especially difficult areas such as inheritance, gender based violence, sex roles and stereotyping, if interventions are targeted at three different levels.

  • Changing and enacting the necessary laws
  • Establishing enabling structures and procedures, including training, to facilitate implementation of the law, and
  • Creating public awareness of progress in the various areas affecting women’s rights.

The report argues that although laws are crucial for creating the legal framework within which the rights can be enjoyed, it is necessary to have a legal system and judiciary that is innovative and conscious of the given social economic environment and the changes taking place in society. But it also acknowledges that the legal and policy framework will not succeed without the social and economic investments needed to ensure there effective operation.

UNICEF hopes that the findings and the recommendations will serve as a roadmap to obtain the realization of children and women’s rights in Zimbabwe and serve as a tool to educate a wide audience on the importance of fulfilling the commitments enshrined in these Conventions. The Zimbabwe study is part of a regional review of existing child related legislation in East and Southern Africa to better understand and lobby for child friendly laws and policies.

Background Note to the Conventions:

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations General Assembly. It entered into force as an international treaty on 3 September 1981 after the twentieth country had ratified it. By the tenth anniversary of the Convention in 1989, almost one hundred nations have agreed to be bound by its provisions.

The Convention was the culmination of more than thirty years of work by the United Nations Commission on the Status of Women, a body established in 1946 to monitor the situation of women and to promote women's rights. The Commission's work has been instrumental in bringing to light all the areas in which women are denied equality with men. These efforts for the advancement of women have resulted in several declarations and conventions, of which the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is the central and most comprehensive document.

Among the international human rights treaties, the Convention takes an important place in bringing the female half of humanity into the focus of human rights concerns. The spirit of the Convention is rooted in the goals of the United Nations: to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women. The present document spells out the meaning of equality and how it can be achieved. In so doing, the Convention establishes not only an international bill of rights for women, but also an agenda for action by countries to guarantee the enjoyment of those rights.

In its preamble, the Convention explicitly acknowledges that "extensive discrimination against women continues to exist" and emphasis’s that such discrimination "violates the principles of equality of rights and respect for human dignity". As defined in article 1, discrimination is understood as "any distinction, exclusion or restriction made o.1 the basis of the political, economic, social, cultural, civil or any other field". The Convention gives positive affirmation to the principle of equality by requiring States parties to take "all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men"(article 3).

The agenda for equality is specified in fourteen subsequent articles. In its approach, the Convention covers three dimensions of the situation of women. Civil rights and the legal status of women are dealt with in great detail. In addition, and unlike other human rights treaties, the Convention is also concerned with the dimension of human reproduction as well as with the impact of cultural factors on gender relations.

The implementation of the Convention is monitored by the Committee on the Elimination of Discrimination against Women (CEDAW). The Committee's mandate and the administration of the treaty are defined in the Articles 17 to 30 of the Convention. The Committee is composed of 23 experts nominated by their Governments and elected by the States parties as individuals "of high moral standing and competence in the field covered by the Convention".

At least every four years, the States parties are expected to submit a national report to the Committee, indicating the measures they have adopted to give effect to the provisions of the Convention. During its annual session, the Committee members discuss these reports with the Government representatives and explore with them areas for further action by the specific country. The Committee also makes general recommendations to the States parties on matters concerning the elimination of discrimination against women.

The Convention on the rights of the child
The human rights of children and the standards to which all governments must aspire in realizing these rights for all children, are most concisely and fully articulated in one international human rights treaty: the Convention on the Rights of the Child. The Convention is the most universally accepted human rights instrument in history – it has been ratified by every country in the world except two – and therefore uniquely places children centre-stage in the quest for the universal application of human rights. By ratifying this instrument, national governments have committed themselves to protecting and ensuring children's rights and they have agreed to hold themselves accountable for this commitment before the international community.

Built on varied legal systems and cultural traditions, the Convention on the Rights of the Child is a universally agreed set of non-negotiable standards and obligations. It spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. Every right spelled out in the Convention is inherent to the human dignity and harmonious development of every child. The Convention protects children's rights by setting standards in health care, education and legal, civil and social services. These standards are benchmarks against which progress can be assessed. States that are party to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child.

The Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights – civil and political rights as well as economic, social and cultural rights. Two Optional Protocols, on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography, were adopted to strengthen the provisions of the Convention in these areas. They entered into force, respectively on 12 February and 18 January 2002. Zimbabwe has yet to ratify either of the Optional Protocols.

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