Assessing the impact of the Constitution of Zimbabwe on Children’s Rights
By Maxine Chisweto
“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they grow in peace”- Kofi Annan
The Impact of Section 81 of the Constitution on Children's Rights
One of the most notable changes brought on in 2013 was the stand-alone section that addresses children’s rights in the Constitution. Unlike their predecessors, the 2013 drafters were conscious of this often forgotten group. If children are the custodians of tomorrow, how can they not be the right holders of today?
Section 81 of the Constitution guarantees children the right to a name, the right to education and the right to nutrition. It also entrenches the best interests of the child as paramount and it recognises the High Court as the upper guardian of the child– inter alia many other rights. 2023 marks 10 years since section 81 has been in operation. Has it actually changed the lives of Zimbabwean children?
Progress in Implementing Children’s Rights
Section 81 is the anchor upon which all rights related to children hinge. It establishes the working definition of a child in Zimbabwe – any person under the age of 18 years. There is also mention of children throughout the Constitution such as in clauses related to marriage, guardianship and education. Over the past 10 years, there have been three most notable milestones in the children’s rights discourse, these are;
The banning of child marriages (Mudzuru v Minister of Justice)
The raising of the age of consent to 18 (Kawenda v Ministry of Justice)
The banning of judicial corporal punishment (S v Chokuramba)
In all three of these cases, applicants sought to enforce their rights according to the protections afforded by the Constitution and they succeeded. The Constitution, as a shield, protected children.
There has also been a rigorous project to align old legislation with the current Constitution. One of the fruits of these efforts has been the birth of the Child Justice Bill. A Bill that seeks to establish a means of dealing with children in conflict with the child justice system. It is expected to become an Act before Parliament is dissolved before the 2023 harmonised elections. Further, there is also the Children’s Amendment Bill which gives effect to s81 of the Constitution in protecting the rights of the child. Whether or not it will pass parliamentary processes any time soon, is a question for another day. The good has been progressive.
Challenges in Implementing Children’s Rights
Although there has been notable progress, there are aspects in the children’s rights discourse which are still lagging behind. For example, there has been very little fiscal commitment from the government to realising the right to education and moreover, the right to free basic education for children. According to Zimbabwe National Statistic Agency(Zimstat), in May 2022, only 26% of parents in Zimbabwe could afford to fund their children’s education. UNICEF, in the same period, also reported that up to 47% percent of youth are not enrolled in school because of extreme poverty. The gap between what the Constitution says and what is on the ground is far too wide.
The realisation of the right to education is further hindered by children living without birth certificates. Section 81 (1)(c) guarantees children the prompt provision of a birth certificate yet statistics show that just up to 40% of children who are school going age have no birth certificates. Like the issue of education, it is something that has been talked about but there are still missing pieces of the puzzle. We need to reconcile what we have said we will do on paper with what is actually taking place on the ground. Who will pick up the mantle and right the wrongs?
Perhaps the ugly thing that has come about in the last 10 years has been implementation or lack thereof of the Constitution. For example, we have the Constitutional provision. The court case banning child marriages was won – seamlessly aligning legislation to the Constitution. But the questions remain; how do we successfully implement these court and constitutional wins? Have we successfully understood the idea of Constitutionalism as a country? When do we stop seeing it as something that’s above us? When are we going to start believing in the efficacy of the Constitution? When will we get tangible and enforceable results? When will we give the Constitution the weight it deserves? When will we realise the constitution has nothing to do with politics?
The Role of Society in Upholding Children’s Rights
Despite the child marriages ban, we still have a rising number of cases of child marriages. We still have pockets in our community that wed off children and now and again newspapers report girls as young as 8 years pregnant. The Constitutional provision for the rights of the child was entrenched to allow all Zimbabwean children to have a chance at life, at opportunity and at childhood. As Kofi Annan mentioned, “there is no duty more important than ensuring [the rights of the child] are protected”.
Should we continue on this path where constitutional provisions are like the teeth of paper tigers, the ugly will only get uglier!
Reflection and Renewal: Celebrating 10 years of the Constitution
Celebrating 10 years of a Constitution is no small feat. It calls for deep reflection and it is an opportunity for us all to renew our hope and faith in the Constitution. As with anything, there are things that have worked well, things that have not and things that should have worked well. The first ten years have indeed changed the lives of children, particularly the girl child, for the better but there is still a long way to go for all children. It is not enough to say we have a Constitution and that children have rights and then chuck the Constitution to the side. We need to walk the talk. After all, a Constitution is only as powerful as the respect a government gives it.
Maxine Chisweto is an LLM Child Care and Protection student. She writes in her own capacity.