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A rigorous perspective on domestic and international law on women and children




THIS article is novel in that no known study has so far made a comparative analysis of religion and law from a perspective of church-state relations.

A number of studies have been done on religion and rights denial without explicitly referencing the constitution.

The study found out that Zimbabwe operates on a dual legal system, namely customary and civil law.

To note in this study is that most of the provisions contained in customary law are in sync with the Johanne Marange Apostolic Church (JMAC) theology and a majority of scholarship has referred only to civil law in order to justify the fact that women and children’s rights are being deprived in JMAC.

The 2013 national constitution clearly stipulates that when interpreting it, one should recognise the conventions and treaties to which Zimbabwe is a signatory. The study noted that some of the provisions in some of the treaties and conventions to which Zimbabwe is a signatory recognise marriage of 12-year-old girls. Customary law in Zimbabwe recognises arranged marriages to minors and a majority of scholarship was quick to dismiss alleged child marriages in JMAC without due legal considerations.

This study, therefore, makes use of the dialectical method in analysing the nexus between theology and human rights on women and children in JMAC in particular and the African Independent/Initiated Churches (AICs) in general. It made use of case laws to tap into the wisdom of jurists through landmark rulings.

The article reviews international conventions, treaties, agreements which are binding on Zimbabwe, in line with section 327 of the Zimbabwean constitution Amendment No. 20 of 2013. In this section, the constitution stipulated that Zimbabwe when interpreting its legislation should consider conventions, treaties and agreement which are binding on Zimbabwe (Zimbabwean constitution Amendment number 20 of 2013).

The study goes on to review relevant treaties or agreements and conventions entered and ratified by the government of Zimbabwe on women and children’s rights.

The reviewing of these pieces of legislation helped the study to have a broader understanding of the extent to which the rights of children and women are observed.

The same also helped to explain points of convergence and divergence between JMAC practices, rituals and teachings and the human rights discourse.

Zimbabwe ratified the African Charter on the Rights and Welfare of the Child (ACRWC) in 1995.

According to Article 43 of the ACRWC, Zimbabwe is obliged to update the African Union (AU) periodically on the state of wellbeing of children in the country (ACRWC, Article 43:1995).

In Zimbabwe the well-being of the children is under the purview of the ministry of Health and Child Care (MoHCC).

Within the MoHCC, the National Programmes for Action for Children (NPAC) chairs the committee for Child Rights and Welfare.

According to the 2017 Inter-Censual Demographics Survey (ICDS), in Zimbabwe there are 6 466 867 children constituted of 3 242 754 males and 3 224 114 females (ICDS:2017).

This number constituted 47.6% of the Zimbabwe’s total population of 13 572 560. Since children in JMAC do not have, birth records and birth certificates owing to them shunning health institutions.

The JMAC teaches against Western civilisation and its followers are strictly not allowed to visit hospitals or clinics. JMAC teaches that there is no disease that the church cannot heal and when a person dies, they simply preach that it is God’s time.

Of note also is that the church does not participate in any government programmes like surveys, vaccination, census, registration of the foetus amongst others.

Henceforth, the 2017 Inter-Censual Demographics Survey’s findings might not be too objective. The state cannot account for child mortalities and children in JMAC because they are not registered and neither do they have birth records nor burial orders. 

These practices and teachings by JMAC are inconsistent to ACRWC, MoHCC and NPAC in the management of the child rights and welfare.

According to the Zimbabwe Demographic Health Survey (ZDHS) 2015 the infant mortality rate stood at 50 deaths per 1000 live births, a drop from 57 deaths per 1000 live births (ZDHS:2015).

The 12% decrease is a result of some measures that were implemented to improve accessibility to health services such as the scrapping of payment of hospital user fees for children under the age of five years and pregnant mothers, and availability of essential drugs, blood and related products.

While the government in line with Millennium Developmental Goals (MDGs) and Sustainable Developmental Goals (SDGs) instituted measures meant to reduce infant mortality rate through the scrapping of hospital fees for children under the age of five years and pregnant mothers, JMAC teaches that children are bricks and that every JMAC member should take a vow that they together with their families must never visit secular hospitals.

Any member of the JMAC who defies the order risks being permanently expelled from both the church and the kingdom of God. The church teaches that once expelled from JMAC, the angels from heaven will remove your name automatically from the “book of life”, meaning you are no longer fit for the Kingdom of God.

In terms of the relationship between human rights and the theology of JMAC, by denying children access to health, the church is contravening the Public Health Act (Chapter 15:09) which provides for and makes it compulsory for the immunisation of children (Public Health Act: Chapter 15:09).

JMAC’s teaching is therefore incompatible with the Public Health Act (Chapter 15:09), hence a human right violation.

The ministry of Primary and Secondary Education monitors the school attendance register. In addition, schools are mandated to record gender disaggregated statistics on all cases of school dropouts by grade, and reason thereof.

With relation to issues of gender equality, section 27 (2) of the constitution states that the state must take measures to ensure that girls are afforded the same opportunities as boys in education at all levels.

While this is a commendable policy by the government, the same is irrelevant to JMAC because the church does not allow children to go to school. The state in terms of section 27(2) is failing to execute its mandate of ensuring that all children have the same educational opportunities.

The JMAC theology is thus a major barrier to children’s right to equal educational opportunities. The state as the guarantor of human rights must put in place measures that force churches to revise their theologies, especially those aspects of the church teachings which violate the rights of women and children.

While the 2014 Education Management Information System shows that gender parity has been achieved at primary and ordinary levels, the participation rate of girls at “A” Level is still at 44% (Education Management Information System:2014).

Whilst these statistics are quite encouraging, they are inapplicable to AICs and JMAC in particular whose theology, doctrine and traditions are blocking children from enjoying and benefiting from their Constitutional rights.

Statutory Instrument 362 of 1998 and Policy Circular P35 provide for girl learners who fall pregnant to return to school (Statutory Instrument 362:1998). Due to different family circumstances and other unmet needs of the teenage mother and the baby, not many have returned to school within the given time space.

Whilst this initiative would have benefitted young women in child marriages to benefit from the bridge model, the church’s theology is the major hindrance.

The government as evidenced by its policies is not falling short on laws and policies but on implementation and political will.

Since 1980 to date, Zimbabwe is one such country with sound policies on paper yet the worst on implementation strategies.

The Children’s Act Amendment Bill prohibits child marriage. Marriages of children perpetrated mostly by parents or close relatives have paralysed the social sphere, testimony to the famous African Union campaign against child marriages outcry.

The practice can only be reduced by enacting watertight laws with long custodial sentences having no option for a fine.

It also seeks to propose consequential amendments of the Marriage Act 5:11 and the Customary Marriages Act 5:07 in line with the constitution, the African Charter on Rights and Welfare of the Child, The Protocol of the African Charter on Human and People’s Rights on the Rights of Women in Africa (Article 6), The African Youth Charter (Article 8), The Sadc Protocol on Gender and Development (Article 8),  and Section 26 (b) of the constitution provides that children should not be pledged in marriage.

This perspective is in line with the study’s assumption that section 60 of the constitution needs to be repealed because it does not reflect on the seriousness by the government to monitor and scrutinise churches.

Churches in section 60 were given unlimited rights without any demand for a corresponding obligation.

Realising the important role traditional leaders play in ending child marriages, the Government of Zimbabwe engaged with traditional leaders on ending child marriages.

Resultantly, traditional leaders did come up with a communique on ending child marriages.

Through the communique, traditional leaders committed to taking the lead in ending child marriage in the country.

The government has been working with religious leaders of the Apostolic Christian Council of Zimbabwe (ACCZ) and Union for Development of Apostolic Churches in Zimbabwe (UDACIZA).

As a result of this engagement they conducted sensitisation meetings within their churches in the ten Provinces of Zimbabwe. In 2016 the government appointed a focal person for the ACCZ resulting in the organisation instituting a child protecting committee for the organisation which now deals with child protection issues amongst their affiliates.

The main agenda for these sensitisation meetings was to sensitise the apostolic sect members on the negative effects of marrying off children as well as shunning of the act among the apostolic sects.

It must be admitted that, for the first-time, members of AICs began to build structure and social amenities like schools and clinics. St Peters school which was built by JMAC in Bocha, Marange, demonstrated that the government’s position to engage AICS for transformation is yielding positive results.

JMAC teaches that the woman was created for procreation and that the role of children in their socialization process is the provision of labour. Thus, children in JMAC are sources of labour, which is a violation of the labour laws.

Subject to the Labour Relations Act (Chapter 28:01), no parent or guardian of a child or young person shall permit such child or young person to engage in hazardous labour. The Children’s Act (Chapter 5:06), in section 2, provides for conditions of work and defines hazardous labour as any work, that is likely to jeopardise or interfere with the education of that child or young person and involving in underground mining (Children’s Act, Chapter 5:06: Section 2).

In contrast to this provision, minors are being employed and made to engage in illegal artisanal mining. The majority of school dropouts in Zimbabwe are as a result of illegal gold mining activities and in farms where they are at the end of the day unfairly remunerated.

The Children’s Act, Chapter 5:06 section 10 (a) restricts the employment of children and young persons.

The Act goes on to prohibit parents or guardians of children or young persons of school going age to knowingly cause or permit children or young persons to absent themselves from school in order to engage in employment for gain or reward (Children’s Act, Chapter 5:06: Section 10).

In JMAC, children are purposefully withdrawn by the parents during the rain season to work in the fields and herd cattle. They are also made to go and work in other people’s fields in exchange for food handouts. 

More so, the Children’s Act, Chapter 5:06 section 10 (a) restricts any person from employing a child or young person of school going age at a time when the child or young person might reasonably be expected to attend school (Children’s Act, Chapter 5:06: Section 10).

The government is mandated at law by the same provisions to carry regular inspections to assess the existence of child labour in industries and farms and raise awareness as well as take appropriate action.

The 2014 Labour Force and Child Labour Survey found out that 210 813 out 3 563 057 children of age 5 to 14 were involved in child labour. In addition, 168 760 (4.7%) were involved in economic child labour and 42 053 (0.1%) were involved in non-economic child labour (Labour Force and Child Labour Survey:2014).

In 2017, 136 males and 116 females were identified as being in child labour situations.

Any person who contravenes subsection (1) shall, according to the law, be guilty of an offence and liable to a fine not exceeding two thousand and five hundred dollars or to imprisonment for a period not exceeding six months or both such fine and imprisonment.

This punitive measure is not deterrent enough to curb child labour in Zimbabwe; the fine is insignificant due to inflation.

About the writer: Matthew Mare is a Zimbabwean academic who holds two bachelor’s degrees, five master’s qualifications and a PhD. He is also doing another PhD and has 12 executive certificates in different fields. Professionally, he is a civil servant and also board member at the National Aids Council of Zimbabwe.