Back to Index

April 2012 e-newsletter
Justice for Children Trust
May 17, 2012

Download this document
- Acrobat PDF version (376KB)
If you do not have the free Acrobat reader on your computer, download it from the Adobe website by clicking here

Constitutionalising the best interests of the child principle!!

After children were consulted on the issues they wanted included in the constitution, the draft constitution which was released in the media showed that children have been considered and their views heard. The constitution being the supreme law of the land, the presence of children`s rights is a major milestone towards the respect, protection and promotion of children`s rights in Zimbabwe especially the enshrining of the best interests of the child principle.

Section 2.9 (1) of the draft constitution produced state 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". This principle has also been enshrined as a right in section 4.33(2) of the draft constitution which state that 'the child`s best interests are paramount in every matter concerning the child". This is one principle which is important with regards to children`s issues. The principle had been adopted in selected acts in Zimbabwe such as the Guardianship of Minors Act and the Matrimonial Causes Act. The selected application of this principle meant that children`s best interests was in selected issues as well thus not comprehensive. Its application in practice has also been said to be less satisfactory. Ensuring that the best interests of the child is paramount in matters relating to children as a constitutional right creates a new dimension in the interpretation of the principle.

According to the United Nations High Commissioner for Refugees (UNHCR) Guidelines on Determining the Best Interests of the Child, the best interests determination should facilitate adequate child participation without discrimination, involve decision-makers with relevant areas of expertise, and balance all relevant factors in order to assess the best option". When dealing with children, judicial officers, parents and the community should ensure that each action gives a primary consideration to the child's best interests. Children should be given an opportunity to participate in order to bring about a good decision. An action 'concerns' children not only when it is directly about them, or in reference or relation to them, but also when it regards or touches them. Even if the child is not the object of the decision, the principle applies if the decision affects her or him.

The stance to include the best interests of the child principle in the constitution also conforms to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child which Zimbabwe ratified. The best interests of the children should be the primary consideration in all matters affecting children.

Download full document

Visit the Justice for Children Trust fact sheet

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP