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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.
Education
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 sex...in 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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