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  • New Constitution-making process - Index of articles

  • Towards constitutionalising children's rights
    Petronella Nyamapfene nee Nenjerama, Justice for Children Trust
    August 07, 2009

    Background to the Constitutional reform process

    On the 15th of September 2008, ZANU (PF) and the two formations of the MDC signed an agreement now popularly known as the Global Political Agreement. It is that agreement which led to the formation of the current Inclusive Government. In their agreement, the three political parties provided for a constitution making process under Article 6. The process is underway, having been launched by the Speaker of Parliament on the 12th April 2009. This process came at a time when children's rights have not been observed in Zimbabwe.

    What is a Constitution and its importance?

    A constitution is a set of norms and rules that sets out an operational framework of the arms and institutions of government, their powers and how they relate to each other when governing a country. It also sets out the rights and obligations of citizens and the limits to which these rights can be subjected. It is usually in the form of a written document.

    The constitution is the supreme law of any country, no other law should be enacted that is in conflict or inconsistent with the provisions of the constitution. If anyone, including the government, does anything in contravention of the constitution, then such action can be challenged in the courts of law and set aside.

    The current Zimbabwe Constitution and children's rights

    The current Zimbabwe constitution is the Lancaster House Constitution that was agreed upon in 1979 as part of a peace settlement. This constitution does not have explicit provisions which are committed to the protection of children's rights. Children's rights are bundled together with adults' rights. Children have suffered the most from the social, political and economic environment that has prevailed in Zimbabwe for the past decade. They have been subjected to political violence and displacements. The HIV and AIDS pandemic has also left a lot of them orphaned and without care. The economic situation has had an impact on the education sector which has been malfunctioning for the past 2 years. It is in line with the realities that our children have gone through that the current constitutional dispensation should introduce social, political and legal structures that ensure that children's rights are protected. The constitution should not only depict injustices of the past, but also depict Zimbabwe as an open and democratic society which protects the dignity, equality and freedom of vulnerable groups, children included.

    Why should children's rights be constitutionalized?

    Children need special protection because they are among the most vulnerable members of society. They are dependant on their parents and families or the state for care and protection when all else fails. Zimbabwe should constitutionalize children's rights as it signed and ratified the United Nations Convention on the Rights of the Child in 1990 which is the world's leading instrument on the rights of children. By signing the Convention in 1990, our government promised to respect, promote and protect children's rights.

    The benefits of Constitutionalising children's rights

    Being the supreme law of the land, a constitution must enshrine the nation's fundamental values, which live beyond the life of any citizen. It must enshrine values which guide and bind existing and future generations. This therefore means that the constitution can not be overturned if there is a change in government. In view of the situation of the Zimbabwean children, inserting children's rights in the constitution can have the following effects;

    (i) it ensures that the protection of children is enshrined in the highest source of law in the land. As it stands, cases that have gone through the courts show that children's rights are of secondary importance.

    (ii) as regards children's welfare, it establishes in principle that children should receive the care they need to allow them to realize their potential.

    (iii) it ensures that those who make policies and laws and allocate resources would have to take children's rights into account when making their decisions and would have a firm basis from which to guide their decisions.

    (iv) children's voices would be heard in all matters affecting them. As it stands children are neither seen nor heard; adults make the decisions and children live with the consequences.

    (v) the profile of children's issues would be raised and put on the political agenda.

    (vi) by inserting children's rights in the constitution, we would be sending a strong message that children are valued in Zimbabwe and that childhood is recognized as a special and vulnerable time which needs to be protected.

    Final words: A call for child participation

    In terms of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, children have a right to participate in issues that affect them hence their voices should be heard in the development of the supreme law of the country.

    As Justice for Children Trust, we are encouraging organizations working with children and the children themselves to participate in the process through attending the various stakeholders' consultative meetings so that children's issues are given priority.

    Visit the Justice for Children Trust fact sheet

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