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Gender legal framework in Zim




THIS section of the study contains domestic pieces of legislation in Zimbabwe in order to have a bird’s view in terms of effectiveness of these laws towards the rights of women and children in the Johanne Marange Apostolic Church (JMAC).

The approach is to identify a particular Act and to assess whether women and children in JMAC are benefitting.

The study also looked at legal gaps which if exploited can help to eradicate human rights abuses in JMAC. The assumption of this study was that Zimbabwe has adequate secular laws, but the problem is the JMAC theology which does not recognise these laws.

The overall aim is to effect a transformation in JMAC theologies and doctrines in the drive towards achieving fair and just recognition between both men and women in JMAC.

In view of customary laws, there are certain rights that do not fully protect the rights of women and children. Section 60 of the constitution does not have internal modifiers with regard to the right to freedom of worship; section 86 limits rights and has not been invoked.

In a case of Nin Re Munhumeso 1995 SA551 ZS, the Supreme Court made it clear that the courts must give the constitution the fullest protection through limiting some constitutional rights (Nin Re Munhumeso, 1995:SA551 ZS).

The only exception on the principle of limiting constitutional rights, the only rights in section 86 sub-section 3 which cannot be limited is the right to life. Section 46 stipulates that the courts must promote the values and principles that underline a democratic society based on openness, justice, human dignity, equality, freedom and the founding values set out in section 3 of the constitution.

Table 5. 1 Theology versus constitution JMAC and rule of law

Constitution on freedom of worship JMAC has its unique theology that does not allow women and children to have equal privileges with their male counterparts.

In the constitution, section 60 is very clear that churches have the right to practice their faith without any conditionalities or internal modifiers.

Section 86 permits internal modifiers to the rights provisions.

When talking of the relationship between human rights and theology in JMAC, all the domestic, regional and international laws on women and children’s rights must apply.

Section 46 of the constitution of Zimbabwe says the courts must take into account international law and all treaties to which Zimbabwe is party to when interpreting a declaration. This is to say that the courts are legally empowered to deal precisely with the rights of women and children.

In addition, the national objectives in chapter 2 of the constitution must also be considered. In analysing the relationship between the theology of JMAC and the human rights discourse on women and children, lessons must be drawn on how other states faced with similar circumstances resolved them.

Thus, section 46 of the constitution also permits Zimbabwean courts to consider relevant foreign laws too. They may consider judicial procedures from other countries in solving issues.

This is important in that foreign courts may have dealt with issues similar to those that have been faced by Zimbabwean courts.

JMAC does not recognise the rights of women and children in its theology and doctrines.

Section 46 of the constitution permit the courts to consider all the treaties, conventions and international law which pertain to women and children`s rights to which Zimbabwe is a signatory.

There are so many studies that have been carried out on JMAC in respect to women and children’s rights, but there is no known individual or organisation which has challenged these practices.

The constitution of Zimbabwe is very clear on locus standi and the enforcement of constitutional rights.

Section 85 of the constitution stipulates that any person acting in his own interest, or on behalf of other persons who cannot act for themselves, or any member of group or class of person acting on behalf of group or class, any person acting on behalf of public interest, has the locus standi to approach the constitutional court for litigation.

The provision also allows anyone to bring a constitutional application even if he/she has contravened the law or has not complied with a court order. If women and children are having their rights grossly violated as is reflected in the studies on JMAC, section 167 sub-section 5 of the constitution of Zimbabwe grants direct access to the Constitutional Court wherever it is in the interest of justice. This means to say the constitution allows the by-passing of the lower courts. The study seeks to challenge the findings by scholarship with regard to abuses obtaining in JMAC with a view to ascertaining whether they are not a result of desktop research.

Scholarship, NGOs, CSOs and interest groups claimed to have identified practices, rituals, teachings in the theology of JMAC that infringe on the rights of women and children. In the view of these claims there is no known

formal complaint of who has so far lodged any complaint with either law enforcements agents or the courts in Zimbabwe. JMAC is said to be a closed society but scholarship claims to have conducted academic research and positively identified those practices that infringe on women and children rights Section 85 of the Zimbabwean Constitution gives the locus standi to individuals or organisations to bring before the court in a case where they are acting for themselves, or any group/class, public interest

Section 167 sub-section 5 grants direct access to the constitution of Zimbabwe and also nullifies the dirty hands doctrine.

The Bill of Rights is there to ensure that citizens fully enjoy their rights under the protection of the constitution.

The Bill of Rights additionally demand that the state has the sole obligation to enforce, protect and promote the rights of citizens.

The rights of women and children are fully covered in the Bill of Rights and the state is mandated by the constitution, section 232 through a legal principle called vertical application, to protect and promote them.

The vertical application means that citizens have the right to use their rights to invoke against the state, its laws and its officials. The purpose of section 232 of the constitution is to protect citizens against the state in that whenever a right exists, there must be naturally a corresponding obligation to respect and uphold the rights concerned.

More recently, horizontal application has been adopted which allows the prosecution of the “private jurist person”.

JMAC teachings versus Bill of Rights Women and children are not accorded full rights like their male counterparts including leadership positions in the church.

Under Bill of Rights, section 232 of the constitution, the state has the sole obligation to enforce, protect and promote the rights of children

There are provisions of the constitution which do not give full rights to children, especially the unborn child. The word children in sub-section 3 of section 48 of the Constitution is significant in this study, because it means unborn human life in Zimbabwe is regarded constitutionally as simply a collection of cells. The word children point to a born child and not unborn child.

Section 48, sub-section 3 compels that there must be an Act of Parliament to protect the rights of unborn children. However, the right to life of the unborn children in Zimbabwe is not absolute because sub-section 3 made reference to the Act of Parliament only when it was addressing the issue of termination of pregnancy.

The law is silent on backyard  of pregnancies. This piece of legislation only applies to those who want to terminate formally. In JMAC, its congregants do not go to hospitals and clinics.

Therefore, this Act does not apply to JMAC. There is a problem of unrecorded still births as well as maternal deaths in JMAC and there is apparently no law that criminalise these elements. There is need for sector specific laws which dovetail with challenges obtaining in JMAC.

Whilst the constitution is silent on the rights of the unborn child, the Termination of Pregnancy Act tried to prevent the termination of pregnancy.

The Termination of Pregnancy Act, however, allows termination of pregnancy in three circumstances, that is, when a pregnancy poses a serious threat to life and permanent physical health, where there is reasonable possibility that the foetus is conceived as a result of unlawful intercourse meaning rape other than within a marriage, statutory rape and incest and lastly, where there is a serious risk of the child to be born that he/she will suffer from physical or mental defects of such a nature that will permanently be seriously handicapped. In addition to that, in Zimbabwe even if the pregnant women’s case falls within one of the three grounds for termination, various procedures have to be complied with before the pregnancy can be terminated.

Section 5 sub-Section 1 of the Termination of Pregnancy Act says the pregnancy may only be terminated by a medical practitioner in a designated institution with permission in writing of a medical superintendent.

As if that is not enough, this permission will not be granted unless two medical co-practitioners who are not members of the same medical partnership are able to state that in their own opinion the physical or life-threatening condition actually exist.

The act specifies other procedures that also have to be complied with, hence effectively securing lawful termination of a pregnancy is a mammoth task in Zimbabwe.

In view of all these legal provisions set to protect the rights of children both born and unborn, their right to life in JMAC theology is not guaranteed. Instead JMAC openly equates children’s life to that of the bricks. It can be argued that this is influenced by African customary beliefs which do not consider foetus and a newly born baby as human beings.

Hence, in the event of their death or miscarriage they are not accorded the burial befit a grown up person and they are not supposed to be mourned as it is believed such may result in misfortune befalling the family. Thus, children from inception are not valued that mucJMAC versus Section 48, Sub-sec 3

JMAC teaches that children are replaceable Section 48, sub-section 3 compels that there must be an Act of Parliament to protect the rights of unborn children.

The Termination of Pregnancy Act allows termination of pregnancy

Overview of conventions and treaties on women and children’s rights

The UN Convention on the Rights of Children (UNCRC) document has been reviewed by this study in order to give the legal basis of the rights to be enjoyed by children globally.

The document is not just a list of rights but it represents a way of viewing children. The convention incorporates a number of provisions which includes right to express their opinion, right to seek, receive and impart information, freedom of conscience, thought and religion.

It also guarantees child protection against sexual exploitation, inhuman and degrading treatment, and sexual abuse (Articles 12, 13, 14, 33, 34). In addition, the African Charter on the Rights and Welfare of Children

(ACRWC), regional uman Rights Organisation of African Union in 1992 captured rights to be enjoyed by children.

The ACRWC captured some of the specific problems of children in Africa such as the unequal treatment of female children, including female genital mutilation. Of note is the divergent area of emphasis – the charter highlights the preservation of positive African morals, tradition and cultural heritage.

The two documents help highlight how the rights of children are interfaced globally. This study, however, is concerned with, whether children in the religious sphere are benefiting from these identified rights.

The assumption of this study is that, secular laws have not yet cascaded into the religious sphere, to benefit vulnerable groups such as women and children.

The Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw) was adopted in 1979 and signed by 180 states. Cedaw sought to transform the structural barriers to equality as well as to address multifaceted nature of problems women face.

The principles that govern Cedaw include, amongst others, equality of opportunities, access to resources and non-discrimination. Article 5 of Cedaw safeguards women against cultural malpractices, Article 19 addresses issues of violence against women, Article 21 deals with marriage and family relations, Article 23 women in public life and Article 24 on health-related matters.

Women are 52% of the world population, but due to effects of patriarch they are unable to use their numbers to advance their own cause, hence, the need to advance gender equity. This important document that seeks to advance the rights of women and children is yet to benefit women in the religious sphere, be it Christianity or Islam.

Cedaw, if implemented in the religious sphere, may help to transform some discriminative theologies and eradicate all forms of discrimination against women.

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.

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