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Legal remedies to Zim state when responding to human rights issues




LEGAL remedies to the state when responding to human rights concerns refer.

African independent churches (AIC)s’ practices, rituals, teachings and beliefs have over the years drawn scholarly attention in terms of when secular rights are applicable in the religious sphere.

The Johanne Marange Apostolic Church (JMAC) has theologically established some practices, rituals and teachings which are viewed to be a violation of the rights of women and children by virtue of them being inconsistent with the constitution of Zimbabwe.

These theological practices, teachings and rituals are being challenged in the rise of global criminal law codification and rise in feminism culminating from the Universal Declaration of Human Rights.

There has been a growing demand first by feminists, and now by the general populace, for third-generation rights to safeguard women and children’s rights, especially the girl child, in all spheres of life.

In JMAC women and children are not being accorded the three generational rights, namely: first, second and third generation rights and the most common ones being the right to life, quality health, education and free determination in the social, economic, political and religious sphere.

The laws pertaining to the rights of children and women seem not to be of paramount importance to the Zimbabwean government as the law enforcers and lawmakers are seemingly turning a blind eye to cases of abuse of women and children in JMAC.

AICs are an important voting constituency in Zimbabwe. The government is thus a political beneficiary of AICs, resulting in political parties stampeding for political support and negating their duty to eradicate human rights abuses emanating therefrom.

There is glaring evidence that children and women’s rights are being violated in the church. It appears in Zimbabwe political interests of the state override any other rights.

The state is very quick to notice and even respond when the citizens’ rights are violated, especially in cases where its political interests are at stake. The same principle is not being applied to the human rights considerations despite the fact that the state has a legal duty to promote and protect the rights of the general citizenry.

There is a sense in which JMAC and the state believe that human rights are foreign and do not safeguard its interests. There are human rights concerns against the state and the church, further that the state is under Western sanctions for violating human rights.

The constitution is very clear that whenever there are concerns of human rights abuses, the state can institute a commission of inquiry in order to investigate, account and recommend.

The commission at law is appointed by the President from people of high integrity. Of note to this study is that the Zimbabwean government has instituted a number of commissions of inquiry in line with constitutional provisions as set out in chapter 12, section 232 and section 242 (Constitution of Zimbabwe, Amendment 20 Act, 2013, sections 242, 232:95,92).

This section deals with the establishment of the Zimbabwe Human Rights Commission and section 245 on the Zimbabwe Gender Commission to respond to the human rights concerns from any section of society.

Notably, the academic fraternity, non-governmental organisations and civil society organisations have on numerous occasions raised a red flag. Since 1936 when JMAC was founded, the government of Zimbabwe is yet to establish a commission of inquiry into alleged abuses of women and children in JMAC. The outcome of the commission would help to respond to allegations of gross human rights violations of women and children in JMAC.

The theology of JMAC teaches that members of the church must not accept to appear before secular courts. There is a lot of evidence pointing at congregants who would disappear, evade arrest, fight the law enforcement agencies (The Herald, 28 April 2003: 13, The Herald, May 10: 2003, Ashcroft et al 2007:125). This evidence points to resistance by the church to secular authority. The majority of human rights violations collapse due to lack of evidence and unwillingness by the victims to stand before secular courts.

This is perhaps due to the fact that they are mostly illiterate, lack exposure to secular laws and courts, lack resources to hire lawyers to defend their rights and the fear of being excommunicated from the church or expelled from home for exposing the church and the family. Since the recruitment in JMAC runs within family links, expulsions from the family imply that no family can accept you for fear of breaking the church rule.

Meanwhile, the ministry of Public Service, Labour and Social Welfare does not have adequate resources to safeguard the livelihood of the victims.

To add on, the majority of human rights violations lack evidence due to unwillingness by the members to co-operate because the theology of JMAC teaches that the state is a domain of Satan.

The failure by victims to cooperate is an issue that the state must find ways of crafting victim friendly policies. The only evidence on the abuse of women and children in JMAC is scholarly work and reports by the non-state actors. This type of evidence cannot sustain prosecution, since there must be prima facie evidence to enable successful prosecution.

The hobius corpus principle demands that the person must be physically present in a court of law. The right to be heard principle demands that both parties must be given their right to be heard in a court of law. Since the major challenge in JMAC is child marriages or statutory rape, it means Zimbabwe is faced with a challenge of child friendly courts if it is to secure prosecution. Rape cases are one of the most delicate cases which usually take up to two or three years to be completed.

To add on, with the high-level of corruption and political interference in the judiciary system, successful prosecution is now very difficult and expensive to secure.

The case of Dr Munyaradzi Kereke is a classic example where the minor’s rights were undermined due to political interference and was only prosecuted after Charles Warara applied for private prosecution.

Meanwhile, rape cases require examination and cross examination and in the absent of cooperation by the victim, it is very difficult to secure prosecution. The church’s doctrine is limiting cooperation by victims who usually run from investigative officers.

In light of what was discussed above, no victim from JMAC will likely report abuse. The problem being faced by the government of Zimbabwe is to dismiss the occurrence of human rights abuses on the basis of non-availability of victims. The state must study the level of indoctrination by the church which makes it difficult for the victims to voluntarily admit and cooperate. 

Under-age marriages and rape cases are taken very seriously if the victim is on the forefront, which leaves one to wonder if the government of Zimbabwe is waiting for women and children in the JMAC to report abuses for the constitution to be invoked.

According to an African Union communique in 2014, about 14 million adolescent and teen girls are married, almost always forced into the arrangement by their parents (African Union Communique, 2014:1).

The Multiple Indicator Cluster report of 2014 indicated that child marriages in Zimbabwe stood at 32.8%. This translates to about one in three women and less than 1 in 20 (3.7%) of men aged 20-49 who were first married or in union before age of 18 years (Zimbabwe Multiple Indicator Cluster: 2014:35-36).

The state is empowered at law to limit rights which it feels must be curtailed and this is done in Zimbabwe through section 86, the General Limitation Clause.

With the human rights concerns that churches are abusing women and children, section 60 which give churches unlimited rights can be limited under section 86 which is the General Limitation Clause 242 (Constitution of Zimbabwe, Amendment 20 Act, 2013, sections 60, 86:30,40).

Whenever the state feels that an entity might abuse their given rights, it limits that right under the General Limitations Clause.

However, this does not apply to laws under the Bill of Rights that are protected under the doctrine of abrogation.

Section 60 which gives legal status to churches is not covered under the Bill of Rights. Therefore, it can be limited under General Limitations Clause Section 86 of the Constitution (ibid, 2013:30,40).

The General Limitations Clause is found in section 86 of the Constitution of Zimbabwe Amendment number 20 of 2013242 (Constitution of Zimbabwe, Amendment 20 Act, 2013, Section 86:40).

The government of Zimbabwe has limited a number of freedoms, for example section 56, the right to demonstrate and petition (Constitution of Zimbabwe, Amendment 20 Act, 2013, Section 59:30).

The constitution set conditions under which the right to demonstrate and petition can be enjoyed. The constitution states that the right must be enjoyed or exercised peacefully. Of note to this study is that section 60 of the Constitution of Zimbabwe Amendment number 20 of 2013 did not limit religious rights as if to confirm that churches in Zimbabwe are not a legal persona and that they are immune to the laws of the country.

The rights are not just enjoyed but they must have a corresponding obligation. Of note, also to this study, is section 60 (3) which give parents and guardians of a minor the right to determine in accordance with their beliefs, the moral and religious upbringing of their children.

The constitution went on to cite only four rights that parents cannot religiously deprive their children, namely: education, health, safety and welfare (Constitution of Zimbabwe Amendment 20 Act, 2013, Section 60:30).

The JMAC is not according any of the four key rights and yet the state is taking no action.

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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