Matthew Mare
THE Constitution of Zimbabwe removed the dirty hands doctrine which was in the old constitution. The doctrine stated that no unclean person is allowed to come to court seeking court assistance if they are guilty of a lack of probity in circumstances which cause them to seek relief from this court.
Technically speaking, the removal of the dirty hands doctrine has increased access to justice.
The doctrine was elaborated in a High Court case judgement, Nyasha v Chiredzi Wildlife inv. & Another (HH 68-18, HC 6790/17) 2018 ZWHHC 68 (O7 February 2018) where the judge stated that a litigant with unclean hands is allowed to seek court’s assistance.
This position is an antithesis to an old constitutional court case between Deputy Sheriff Harare v Mahleza & Anor 1997(2) ZLR425(HC) where the judge stated that people are not allowed to come to court seeking the court’s assistance if they are guilty of lack of probity.
The removal of the dirty hands doctrine means more justice to the litigants. The women in Johanne Marange Apostolic Church (JMAC) are not benefiting from increased access to courts and justice because the theology of JMAC does not allow the teaching of secular law to its congregants.
In addition, members are not allowed to approach secular courts, yet in the church’s succession dispute the children of Marange approached the courts for litigation. These are some of the double standards found in JMAC where the leaders of the church seem to have a different doctrine from the one used on general congregants.
No study has been done on ways through which JMAC congregants can be helped to access the courts to defend their rights.
The new constitution Section 85(1) allows anyone to represent any public interests even if one is not directly affected. This means researchers, Non-Governmental Organisations (NGOs), Civil Society Organisations (CSOs) using Section 85(1) now have the locus standi to approach courts suing JMAC or individual members with the church since JMAC is a legal person.
It is a legal person in that it can sue or be sued. Non-state actors are now empowered by the law to represent the women and children, as long as they are acting in public interests.
Scholars and non-state actors as long as they have credible evidence of the abuse can, without the involvement of the state, take JMAC to court and get a court verdict to bar JMAC from violating the rights of women and children.
Credibility of information is important in that the constitution places the burden of proof doctrine to the one reporting the matter to the courts. The legal person must prove beyond reasonable doubt that indeed the rights of women and children are being violated.
With the digital era, they record these abuses as evidence to be placed before the court. Since child marriages take place, mostly during church service, a secret recording can be done and findings used in court for prosecution purposes. Why is it that the JMAC is yet to be recorded marrying off minors at the church, as is claimed by scholarship?
The Civil Evidence Act, Chapter 8.1 does recognise video evidence as proof beyond reasonable doubt. This is one of the gaps exposed by literature review that can be exploited for the benefit of women and children’s rights in religious circles.
Whilst the government is to blame for perhaps being complicity and accessory to human rights violations with the AICs, the study noted that, the constitution has a number of remedies that are not being exploited by non-state actors. Also, whilst non-state actors are blaming the government for failure to decisively eradicated gender related abuses in JMAC, they are equally failing to utilise the provisions in the constitution which empower them to sue JMAC for human rights violations.
In qualitative and quantitative terms, a number of NGOs, CSOs are found to fight the government more than they fight churches for their involvement in Human Rights violations and peddling injustice. There are lots of Human Rights violations by churches, yet not much is being done to ensure that churches realign their dogmas and traditions to the constitution.
The 1648 Westphalia Treaty was convened at a time when the Roman Catholic Church had lost the moral campus.
Gross (2011:34) argues that the level of worldliness and wildness to include corruption, selling of papal indulgencies, disgruntlement, views of Martin Luther and John Calvin, Council of Trent 1537, thirty years’ war, Bohemian revolt and the whole of Europe was forced into a disaster and war led to the 1648 Westphalia Treaty.
The 1648 Treaty of Westphalia was convened primarily to limit the power of the church since the church was being blamed for triggering wars. It is a common cause that wars usually affect more the rights of women and children. The 1648 Treaty of Westphalia created states to govern and regulate the behaviour of the church. This position made the church a subject to the state.
The gap identified by this research is that, whilst the international law places the church as a subject of the state and that the state is the guarantor of Human Rights, in Zimbabwe, both the state and the church are violating the rights of women and children.
Terms such as war on gender can be adopted if the fight against women and children’s rights is to achieve its intended results. The UNSC is seemingly not serious in its fight against religious abuse.
While there is an array of treaties, conventions and protocols, human rights are yet to extensively address religious Human Rights violations. The gap identified by this research on the United Nations (UN) is lack of religious sector specific protocols, treaties and conventions to address human rights violations and the gender question in the religious sphere.
There is no known explicit religious sector specific United Nations Security Council (UNSC) resolution that addresses church related human rights abuses and yet church related human rights abuses are on an upward trajectory.
This is further compounded by the fact that religion related human rights abuses are not limited to Zimbabwe, but are a global problem. The continued abuse of women and children is an anti-thesis to the attainment of the millennium developmental goals and sustainable development ones.
The abuse of women and children within the religious sphere must be regarded as a serious human security issue. The international systems are seemingly concerned with politics and less attention is being given to other spheres like religion.
The UN human rights peer review system is failing women and children by assigning states the responsibility to safeguard the rights of congregants and yet the states themselves are equally key human rights violators. The UN system must think beyond states when addressing Human Rights.
In Islamic State (IS) sponsored or related terror movements such as Alshabab; Boko Haram; Al Qaeda etc, women and children are being used as human shields, suicide bombers, sex slaves, tools of war and child soldiers.
In christianity, the abuses are rooted in some theological errors which manifest in teachings, rituals, sermons, practices where elements like child marriages, access to education and health facilities are limited, virginity testing, arranged marriages, homosexuality, forced labour are theologically sanctioned.
There must be political will by UN member states and the UNSC to address and confront churches for human rights abuses.
The constitution of Zimbabwe had made commendable strides towards inclusive constitutionalism where it sought to recognise international treaties, conventions and protocols to which Zimbabwe is a signatory to, in its interpretation of the domestic law.
The developments at UN level in terms of more sector specific treaties, protocols and conventions helps the local courts to respond to sector specific Human Rights violations more effectively.
The UN system is further aiding human rights abuses in religious circles by according religious bodies statehood status. The UN, for example, recognised Vatican City and the Islamic Republic of Iran, and yet they are religious movements.
Some states are at declarative level calling themselves either Christian or Islamic states. This means that the aforesaid states would be governed by either Shariah or Christian value systems.
If this initiative continues unabated, the net effect is the reversal of the 1648 Treaty of Westphalia. In most countries across the globe, the majority of citizens are either Christian or Islamic.
With the surge in Christianity and Islam, the impact of some religious doctrines on human rights requires the UN to have a strategic vision, so as to be able to contain the impact of religion in future. The UN needs to consider theological and religious doctrines seriously.
It appears as if there is a strong appetite for politics in Zimbabwe over any other sphere of life.
The 2013 constitution provide legal remedies and access to the Constitution by creating a Constitutional Court and limiting the hierarchy or bureaucrats of courts. The question of theology and constitution being at crossroads, the Constitutional Court is there to interpret the law and ensure that there is compliance.
Theologies must be in sync with the constitution because in a constitutional democratic state, the constitution takes precedence over any other laws, practices, norms and values (Constitution of Zimbabwe Amendment 20 Act 2013:16).
The faculty of religious studies and philosophy must consider courses in constitutionalism and politics because religion survives in a state. This will help religious scholars not to generalise legal facts when addressing or writing about Human Rights abuse in the religious sphere.
This is perhaps a novel research that has so far, combined theology and law, shifting from the traditional view of taking the two discourses independent of each other. The presumption of this study is that future scholars of religious studies and systematic theology shall develop the concept further.
This study also argues that scholars must go beyond generalisation of findings especially on how the rights of women and children are being abused in JMAC. Without combining qualitative data and statistical evidence, the argument on abuse of women and children becomes a mere academic exercise. This study assumes that the majority of researches on African Independent Churches (AICs) and JMAC in particular largely appeared to be desktop researches. None of the studies known to this researcher quoted the constitution and yet rights are constitutional matters, the same way the bible is an anchor to theology.
All that was noted in previous researches is that children are being married off as minors, denied basic education and health, subjected to cultural practices like virginity testing, polygamy and how the practice is spreading HIV/Aids. However, without linking these identified practices, teachings and rituals to either the constitution, customary or civil law the argument would be incomplete. The interface between theology and human rights is demonstrated in the interaction between the bible and the constitution or between the church and the state.
The church uses the bible to craft its theology and doctrines and the state the constitution. Churches recognise and teach about law from the perspective of the ten commandments of the scripture and not the constitution.
There is no known church that teaches about the constitution, gender and Human Rights from a secular point of view. Even church affiliated organisations like the Catholic Commission on Peace and Justice hereinafter (CCJP) is not permitted to preach these values in church.
These values are mechanisms which define the role of the Catholic Church in terms of church-state relations. The CCJP has on numerous occasions publicly condemned despotic states for human rights violations, but it has never condemned the Catholic Church or AICs for human rights abuse.
There is a sense in which the church is an accomplice in human rights violations though these are hidden under the cover of media backout. This means the religious sphere does not want their human rights violations exposed.
The World Council of Churches is equally to blame for failing to expose the human rights violations by their affiliated churches. There is a sense in which the church affiliated organisations have incriminating evidence but are unwilling to expose it for fear of losing membership and, indirectly, funding.
Without tangible evidence, it is very difficult to apply the law to try and limit the church doctrine, especially when the approach is targeted.
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.
