Draft Constitution 2012
The Rights of Women in Zimbabwe’s Draft Constitution
Alex T. Magaisa
Yesterday was Mothers’ Day in some parts of the world. So I thought the theme of today’s blog should one that reflects the recognition of women and girls in the supreme law of the land. The fundamental line of enquiry is as follows: To what extent does the new constitution provide for the protection of the rights of women and children?
The issue of gender equality is one that occupied my mind greatly during the exercise. My own mother was and remains a great inspiration to me. I have many friends in the women’s movement who have fought the good fight over the years. I thought that their voices should be heard and recognised, their limited space at the negotiating table notwithstanding.
I will therefore highlight what I regard as the key features in the constitution that recognise, protect and advance the rights of women and girls in the constitution. The only qualification I should make is that this is a brief analysis – a ‘women’s-rights-in-the-constitution-at-a-glance’ type of presentation – I have a more detailed analysis but it’s not quite suitable for a blog.
Gender Equality – a Founding Value
First, in terms of Clause 3(1) (f) gender equality is recognised as one of the founding values and principles of the draft constitution. This is an important validation of gender equality so that in interpreting the constitution and all other laws, the value of gender equality will have to be taken into account. Consequently, the legality of laws or practices that undermine the value of gender equality will be questionable.
Equality & Non-Discrimination
Second, Clause 4.7 which provides for equality and non-discrimination recognises in specific terms the equality between men and women. Clause 4.7(2) states that:
“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres”.
It is important that this recognises not just equality of rights but also of opportunities, which will have a significant impact on Zimbabwe’s equal opportunities legislation.
The clause also prohibits unfair discrimination on the grounds of religious belief, custom, culture, sex, gender, marital status. Historically women and girls have been disadvantaged through unfairly discriminatory rules and cultural practices or religious beliefs that treat females as inferior. The infamous case of Magaya v Magaya (1999) in which the Supreme Court reversed a line of progressive judgments, starting with the famous case of Katekwe v Muchabaiwa (1984) that protecting women’s rights of equality in inheritance matters, demonstrated the need for clear constitutional safeguards. Section 23 of the current constitution provided a leeway for traditional laws and customs that discriminate against women, which was regarded as unfair from a gender perspective. The new clause provides a platform to rid the country of such discriminatory laws and practices.
Inheritance and Divorce Laws
There have also been problems for women in regard to division of matrimonial property upon divorce. It is important to note that one of the National Objectives in the draft constitution (Clause 4.16 on Marriage) requires the state to ensure that “in the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses”. These provisions will impact fundamentally on divorce and inheritance laws, enhancing the protection of spouses, the most vulnerable of whom are often women. It is important to note that Clause 4.32 (3) makes is very clear that “All laws, customs, traditions and cultural practices that infringe the rights of women are void to the extent of the infringement”.
Legality of Affirmative Action
The equality and non-discrimination clause also recognises the need for affirmative action measures to redress disadvantages of the past. Clause 4.7(6) reads:
“To promote the achievement of equality, reasonable legislative and other measures may be taken to protect or advance people or classes of people who have been disadvantaged by unfair discrimination, and—
(a) such measures must be taken to redress circumstances of genuine need;
(b) no such measure is to be regarded as unfair …”
This must be read together with the National Objective on Education under Clause 2.17 which stats that:
“In particular, the State must take measures to ensure that girls are afforded the same opportunities as boys to obtain education at all levels”.
It must also be read together with Clause 2.3 on the National Objective of Development and Empowerment which reads as follows:
“All State and governmental institutions and agencies at every level must endeavour to facilitate rapid and equitable development, and in particular must take measures to—
(e) rectify imbalances resulting from past practices and policies”.
Past practices and policies include cultural and other practices that have materially disadvantaged women and girls. This means that in empowerment programmes, such as land reform and indigenisation, women have a platform to claim special privileges to advance their position on the basis that past practices and policies have materially disadvantaged them on account of their gender.
Further, the draft constitution recognises in specific terms that Gender Balance is one of the key national objectives. Clause 2.7 states that
“The State must promote full gender balance in Zimbabwean society, and in particular—
(a) the State must promote the full participation of women in all spheres of Zimbabwean society on the basis of equality with men;
(b) the State must take reasonable measures, including legislative measures, to ensure that both genders are equally represented in all institutions and agencies of the State and government, in particular in Commissions and other bodies established by or under this Constitution; and
(c) State and governmental institutions and agencies at every level must take practical measures to ensure that women have access to resources, including land, on the basis of equality with men.
(d) The State must take positive measures to rectify past gender discrimination”.
Of particular significance is paragraph (b) above which requires equal representation of women in all institutions and agencies of the State and government. This means that there should be 50-50 representation of women in all state institutions and agencies, something that was demanded and supported strongly during the outreach process.
Equality of Representation in Parliament
Complementary provisions providing for equal representation of women are to be found in parts of the draft constitution that deal with the composition of legislative bodies. Clause 7.9 (3) on the composition of the National Assembly provides that
“The Electoral Law, or some other Act of Parliament, must make provision to ensure that, so far as practicable, at least half the membership of the National Assembly consists of women”.
Similarly, Clause 7.5 (4) on the composition of the Senate states that
“The Electoral Law, or some other Act of Parliament, must make provision to ensure that, so far as practicable, at least half the total number of Senators referred to in [the provisions on composition] are women”.
Arguably, these provisions provide a platform upon which to advance and give full effect to the noble aspiration of 50-50 representation of both sexes in Parliament.
Rights of Guardianship
One of the fundamental gains for women in the draft constitution is the specific recognition of women’s equal rights to guardianship of children under Clause 4.32 (2). The existing law has traditionally vested guardianship rights in fathers. Mothers have struggled to claim and exercise guardianship rights and this has been extremely burdensome particularly on single mothers. The recognition of equality of guardianship between father and mothers introduces a fundamental and positive change in the law of families.
Fully Paid Maternity Leave
Finally, the draft constitution gives constitutional recognition to the right to fully paid maternity leave for at least three months. While this is currently recognised under the Zimbabwe’s labour legislation, it was resolved that this is an important matter that requires constitutional protection. Therefore, Clause 4.16 (6) states that:
“Women employees have a right to fully paid maternity leave for a period of at least three months”.
Equality of Remuneration
There is also a further provision which recognises that women and men have a right to equal remuneration for similar work (Clause 4.16 (5)). The problem of unequal pay between men and women for similar work is not unique to Zimbabwe. Indeed, this problem continues even in the developed world. Not many constitutions around the world, even in the developed countries, provides for the recognition of equal remuneration between men and women for similar work and this has to be one of the draft constitution’s unique milestones.
Of course, whether or not these rights are given full effect is dependent on the character of the government and its commitment to ensure their realisation. The national objective on gender balance, quoted in full in this blog places specific obligations on the state. There are more aspects of gender equality which would make this blog too long if I were to cover them all at once. I will therefore, write another blog which will cover the remaining issues, including provisions for the establishment of a Gender Commission.
All in all, I believe the draft constitution makes fundamental advances to women’s rights compared to the existing constitution and legislation.