Final Papers of the 2022
National Symposium on
Ten Years of the
Declaration of Rights in
the Zimbabwean
Constitution
i
The designations employed and the presentation of the material herein do not imply the
expression of any opinion whatsoever on the part of the Raoul Wallenberg Institute of Human
Rights and Humanitarian Law (RWI) or any of its partners or donors concerning the legal status
of any country, territory, city or area, or of its authorities, or concerning the delimitation of its
frontiers or boundaries.
Final Papers of the 2022 National Symposium on Ten Years of the Declaration of Rights
in the Zimbabwean Constitution
© 2023 Raoul Wallenberg Institute of Human Rights and Humanitarian Law
ISBN: 978-91-86910-66-2
Supported by:
This collection of papers is authorised by RWI for training, educational and research purposes
only.
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Table of Contents
Foreword……………………………………………………………………………………..iii
Final Papers of the 2022 National Symposium on Ten Years of the Declaration of Rights
in the Zimbabwean Constitution
1 An Analysis of the Accessibility of Sanitation and Hygiene Services to People with
Disabilities since the Passing of the 2013 Constitution: The Case of the City of Mutare –
Tawanda Nyikadzino, Godfrey Dzveta and Tapiwa Dzapasi …………………………………..1
2 A Review of the 2013 Constitutional Environmental Rights Clause, Policy Developments and
Judgements for the Protection of the Environment – A Review of the 2013 Constitutional
Environmental Rights Clause, Policy Developments and Judgements for the Protection of the
Environment –
Alpha Chikurira and Mutuso Dhliwayo……………..……………………...………………...17
3 Article 5 of the Maputo Protocol and Ten Years of a New Constitutional Order: An
Assessment of Child Marriages in Zimbabwe –
Emmaculate Murawu, Blessing Manezhu and Tendai Ganduri…………………….................40
4 Article 5 of the Maputo Protocol and Ten Years of a New Constitutional Order: An
Assessment of Child Marriages in Zimbabwe –
Innocent Tonderai Mahiya and Isheanesu Chirisa………………………………………........58
5 The State of the Human Rights of Ethno-Cultural Minority Groups in Zimbabwe: Reflections
on the Doma People of the Zambezi Valley –
Kwashirai Zvokuomba, Itai Kabonga and Pachipano M. Chingozha.…………………….......73
6 Contributions of Local Authorities to the Realisation of Human Rights in Zimbabwe: The
Case of Bindura Rural District Council (BRDC) and the Right to Health Care –
Lawrence Mhandara and Ashton Murwira…………………………………………………....87
7 The Future of Corporal Punishment in the Family Home and Other Similar Settings in
Zimbabwe –
Nkosana Maphosa, Idaishe Grace Zhou and Gladys Paidamoyo Mungwari.……..................102
iii
Foreword
The seven research papers contained herein are the final, peer reviewed papers from the 2022
National Symposium on Ten Years of the Declaration of Human Rights in the Zimbabwean
Constitution, held at Cresta Lodge, Harare, Zimbabwe, on 31 October and 1 November 2022,
under the Zimbabwe Human Rights Capacity Development Programme (hereinafter
‘Zimbabwe Programme’).
The overall objective of the Zimbabwe Programme is: to contribute to enhanced enjoyment of
constitutional rights in Zimbabwe, through legislation, policies, practices and decision-making
being increasingly informed by international human rights standards and principles. Its main
implementing partners at the time of writing are: Raoul Wallenberg Institute of Human Rights
and Humanitarian Law (hereinafter ‘RWI’) at Lund University, Sweden; Centre for Applied
Legal Research (hereinafter ‘CALR’) in Harare, Zimbabwe; College of Business, Peace,
Leadership and Governance at Africa University in Mutare, Zimbabwe; Faculty of Law at
Midlands State University in Gweru, Zimbabwe; Herbert Chitepo School of Law at Great
Zimbabwe Univerisity in Masvingo, Zimbabwe; Faculty of Law at University of Zimbabwe in
Harare, Zimbababwe; Faculty of Law at Ezekiel Guti University in Bindura, Zimbabwe;
Council for Legal Education in Zimbabwe; Zimbabwe Human Rights Commission; Zimbabwe
Prisons and Correctional Services; and Zimbabwe Anti-Corruption Commission. The
Zimbabwe Progamme is supported by the Swedish International Development Agency (Sida).
The national symposium is an annual event under the Zimbabwe Programme. It is co-organised
by RWI together with the academic partner institutions and CALR, and is a forum where
research funded and conducted during the year is packaged and presented before an audience
representing diverse sectors of Zimbabwean society, thereby allowing the presenters and
participants to in plenary engage in vibrant discussions around the topics at hand and together
deliberate on the way forward with regard to critical human rights reform issues. The feedback
and experiences shared during the national symposium also aid and feed into the preparation of
final papers for publication and dissemination.
With that said, RWI would like to conclude by thanking the researchers for their hard work and
determination, which resulted in these final papers that make up this collection. RWI would
also like to thank the Swedish International Development Cooperation Agency (Sida) for
supporting the research, and thereby ensuring it saw the light of day. Finally, it is RWI’s sincere
wish that you, the reader, find these papers thought-provoking and informative as well as an
eventual source of inspiration and guidance in your own potential efforts towards furthering the
provisions contained in the 2013 Constitution of Zimbabwe and its comprehensive Declaration
of Rights.
About the Raoul Wallenberg Institute:
The Raoul Wallenberg Institute, based in Lund, Sweden, is a research and academic
institution with offices, programmes and convening power covering 40 countries. RWI
combines evidence-based human rights research with direct engagement in close
collaboration with its partners to bring about human rights change for all. The Institute is
named after Raoul Wallenberg, the Swedish diplomat who saved tens of thousands of Jews
and other people at risk in Hungary at the end of World War II.
For more information on RWI, please visit: www.rwi.lu.se
1
1 An Analysis of the Accessibility of Sanitation and Hygiene Services to People with
Disabilities since the Passing of the 2013 Constitution: The Case of the City of Mutare
Tawanda Nyikadzino, Godfrey Dzveta and Tapiwa Dzapasi
*
Abstract
People with Disabilities (PwDs) in Africa face multiple challenges including restricted access
to sanitation and hygiene services. This is the case regardless of concerted national and
international efforts to enhance disability-inclusive development. The dearth of disability-
friendly sanitation and hygiene services causes accidents, and injuries and compromises the
dignity of PwDs. This study sought to assess the accessibility of sanitation and hygiene services,
in particular public toilets, among PwD and explore the challenges the Mutare City Council
(MCC) faces in its endeavour to provide inclusive services. The researchers adopted a human
rights-based qualitative approach in which they conducted key informant interviews, in-depth
interviews, observation and documentary review for the data collection. The findings of the
study exemplify that, regardless of the constitutional provisions that every person has a right
not to be treated in an unfairly discriminatory manner, the MCC, nearly a decade after the
promulgation of the 2013 Constitution, is failing to provide sanitation and hygiene facilities and
services that are accessible to PwDs. Most of the public toilets in the Central Business District
(CBD) are inaccessible to PwDs, particularly wheelchair and crutch users. The MCC has four
public toilets in the CBD and most of them are raised and have steps making it difficult for
wheelchair users to access the facilities. Against this background, the study recommends the
MCC prioritise PwDs in service delivery by involving them in planning processes.
Keywords: accessibility; sanitation and hygiene services; people with disability; Mutare
1 Introduction
The need for disability-inclusive development has gained popularity across the globe. Countries
around the world are adopting legal and institutional reforms to enhance the inclusion of people
with disabilities in development processes.
1 Globally, the ratification of the Convention on the
Rights of Persons with Disability (CRPD), which Zimbabwe ratified, is the first human rights
convention to expressly protect persons with disabilities.
2 Through this, the world testifies the
global recognition of the rights of persons with disabilities. The CRPD provides an opportunity
to enhance and strengthen the provision of disability-inclusive sanitation and hygiene services.
The ratification of the CRPD makes addressing disability inclusivity a legal obligation.
Different countries should now align national legislations and policies with the purpose and
intent of the CRPD.
3 The 2030 Agenda for Sustainable Development and Sustainable
Development Goals (SDGs) provides a firm foundation for the enhancement of disability-
inclusive development. The Agenda 2030 prioritises disability as a key issue to be considered
in all programming activities towards the realisation of all the SDGs. It is designed to leave no
one behind and is thus inclusive of people living with disabilities (PwD). However,
* The authors are human rights professionals and researchers active in Zimbabwe.
1 S. Thompson, ‘Accessible sanitation in the workplace – Important considerations for disability-inclusive
employment in Nigeria and Bangladesh’. Working Paper Number 561 (2022).
2 N. C. Richards et al. ‘Disability, non-communicable disease and health information’. 94(3), Bulletin of the
World Health Organization (2016), p. 230.
3 United Nations Convention on the Rights of Persons with Disabilities (CRPD), A/61/611, 2006.
<www.un.org/disabilities/documents/convention/convoptprot-e.pdf> (accessed 3 January 2023).
2
notwithstanding noble global efforts to enhance disability-inclusive development, PwDs,
especially those with severe disabilities in developing countries are still facing challenges in
accessing sanitation and hygiene facilities and services.
4
In Zimbabwe, there are local legal and policy frameworks that set the tone for disability-
inclusive development. For instance, section 56(3) of the Constitution provides that every
person has the right to be free of being treated in an unfairly discriminatory manner.
5 The
National Disability Policy of 2021 further makes commitments towards disability-inclusive
development.
6 However, nearly a decade after the promulgation of the 2013 Constitution,
sanitation, hygiene facilities, and services remain largely inaccessible to people with disabilities
in the Mutare. Most of the public toilets in the Central Business District are inaccessible to
PwDs, particularly to wheelchair users. The inaccessibility of public toilets, for instance, creates
difficulties for PwDs with mobility challenges as they struggle to locate bathrooms and have to
wait in the queue. For many years, sanitation and hygiene needs for PwDs have been denigrated
and treated as low-priority needs. The lack of disability-friendly facilities and services means
that PwDs are forced to engage in dangerous and unhygienic practices. For instance, wheelchair
users end up crawling on the floor and, in the worst case, some end up defecating in open spaces.
Very few systematic studies have been done from a human-rights-based perspective to unpack
the challenges faced by local authorities, as duty bearers, in providing disability-friendly
sanitation and hygienic services. This study addresses the identified gap and provides new
knowledge on the challenges and measures that can be adopted towards the enhancement of
disability-inclusive sanitation and hygienic services. If such studies are not conducted in cities
and other urban areas, the marginalisation of PwDs in the provision of sanitation and hygienic
services will persist to the detriment of their rights as provided for in the 2013 Constitution.
PwDs will be exposed to increased health risks because of dangerous and unhygienic practices.
Mutare, as a medium-sized, integrated city in Zimbabwe, is an ideal site for this investigative
study which serves as initial research that can be replicated in other cities and urban areas. The
study is guided by the following questions:
o What are the international, continental and national obligations to PwDs with special
reference to public sanitation and other related facilities in Zimbabwe?
o To what extent are the sanitation and hygiene facilities and services in the Mutare
accessible to people with disabilities?
o What measures did the MCC take since 2013 to make sanitation and hygiene facilities
and services accessible to people with disabilities?
o What challenges did the MCC face as the duty bearer in providing disability-inclusive
sanitation and hygiene services since 2013?
o What can the MCC do to provide disability-inclusive sanitation and hygiene facilities
and services?
4 H. Jones, ‘Mainstreaming disability and ageing in water, sanitation and hygiene programmes - A mapping
study carried out for WaterAid’. WaterAid UK, 2020. < wedc-
knowledge.lboro.ac.uk/resources/learning/EI_WASH_ageing_disability_report.pdf> (accessed 3 January 2022).
5 Government of Zimbabwe. Constitution of Zimbabwe. 2013.
<www.constituteproject.org/constitution/Zimbabwe_2013.pdf> (accessed 3 January 2023), section 56(3).
6 Government of Zimbabwe. National Disability Policy. 2021. <veritaswomen.net/wp-
content/uploads/2021/09/National-Disability-Policy-June-20211.pdf> (accessed 3 January 2023).
3
2 Literature Review
This section reviews literature to understand the current stock on literature around disability,
disability inclusive development and its importance
2.1 Understanding Disability
Disability is an evolving and contested concept.
7 There is no consensus concerning a singular
definition in the literature. The World Health Organization’s International Classification of
Functioning (ICF), a popularly used disability classification framework, defines disability as an
"umbrella term for impairments, activity limitations and participation restrictions, referring to
the negative aspects of the interaction between an individual (with a health condition) and that
individual's contextual factors (environmental and personal factors)”.
8 The ICF definition
highlights three factors critical in defining disability, namely, impairment, activity limitations
and participation restriction. Impairment involves complications in body function or structure
(e.g. physical, vision, hearing); Activity limitations entail challenges in executing everyday
tasks or actions (e.g. walking, eating); and participation restrictions encompass problems
individuals may face in participating in life activities (e.g. attending school, work, community
activities).
9 Similarly, the CRPD defines disability as “the interaction between persons with
impairments and attitudinal and environmental barriers that hinder their full and effective
participation in society on an equal basis with others”.
10
Disability is “any condition of the body or mind (impairment) that makes it more difficult for
the person with the condition to do certain activities (activity limitation) and interact with the
world around them (participation restrictions)”.
11 A person with a disability has a long-term
physical, mental, intellectual, or sensory impairment which interacts with various barriers to
hinder their full and effective participation in society on an equal basis with others.
12 Although
literature uses the phrase PwD to refer to a single population, there are many types of
disabilities. Some disabilities affect a person's vision, movement, thinking, remembering,
learning, communicating, hearing, mental health and social relationships.
13 This study,
however, focused on those with body impairments that affect movement, for example,
wheelchair users, crutch users, those with compromised strength and those who crawl. These
were selected because they require toilet facilities with special design features.
7 World Health Organization (WHO), ’Disability-inclusive health services toolkit-A resource for health facilities
in the Western Pacific Region’.2020. <apps.who.int/iris/bitstream/handle/10665/336857/9789290618928-
eng.pdf?sequence=1&isAllowed=y> (accessed 3 January 2022).
8 WHO and World Bank, ‘World report on disability’. 2011.
<documents1.worldbank.org/curated/en/665131468331271288/pdf/627830WP0World00PUBLIC00BOX361491
B0.pdf> (accessed 3 January 2022).
9 WHO, supra note 7.
10 WHO. ‘Emergency medical teams: minimum technical standards and recommendations for rehabilitation –
Emergency Medical Teams’. <www.who.int/publications/i/item/emergency-medical-teams> (accessed 3
January 2023).
11 Centre for Disease Control and Prevention. ‘Disability and Health Overview’,
<cdc.gov/ncbddd/disabilityandhealth/disability.html#:~:text=A%20disability%20is%20any%20condition,around
%20them%20(participation%20restrictions)> (accessed 3 January 2023) .
12 www.washingtongroup-disability.com/about/definition-of-disability
13 Centre for Disease Control and Prevention. ‘Disability and Health Overview’,
<cdc.gov/ncbddd/disabilityandhealth/disability.html#:~:text=A%20disability%20is%20any%20condition,around
%20them%20(participation%20restrictions)> (accessed 3 January 2023) .
4
2.2 Understanding Disability Inclusivity and Its Importance
Similar to the word disability itself, disability inclusivity has been defined widely in the
literature. According to Al Ju'beh, disability inclusivity “seeks to ensure the full participation
of people with disabilities as empowered self-advocates in development processes and
emergency responses and works to address the barriers which hinder their access and
participation”.
14 Rimmerman highlights six fundamental dimensions of disability-inclusive
development as follows:
1. being accepted and recognised as an individual beyond the disability;
2. having personal relationships with family, friends and acquaintances;
3. being involved in recreation and social activities;
4. having appropriate living accommodation;
5. having employment; and
6. having appropriate formal and informal support.
15
Thus, disability-inclusive development implies that “all stages of development processes are
inclusive of and accessible to persons with disabilities”.
16 Disability inclusivity underscores the
importance of affording PwDs equal opportunities to access socio-economic development
through enhanced healthcare services, education, employment, and social protection, among
others.
17 This is against the background of widespread exclusion of PwDs in both developed
and developing countries alike.
The existing literature indicates that discrimination and exclusion impoverish PwDs and
undermines their involvement and active participation in public discourses and development
planning processes.
18 Given the nexus between disability and poverty, the inclusion of PwDs
in development processes becomes critical. It contributes towards “the elimination of poverty,
achievement of social inclusion and equitable, fair and sustainable development”.
19.Disability
inclusivity is, therefore, crucial for the realisation of local, national and international
development goals. Across the world, “there is growing recognition that disability-inclusive
development benefits not only persons with disabilities and their families, but also societies as
a whole”.
20
14 K. Al Ju’beh‘Disability-inclusive development toolkit’. CBM Christoffel-Blindenmission Christian Blind
Mission e.V. <cbm.org/article/downloads/54741/CBM-DID-TOOLKIT-accessible.pdf> (accessed 3 January
2023) p.49.
15 A. RimmermanSocial inclusion of people with disabilities: National and international perspectives. CUP.
(Cambridge University Press, Cambridge, 2013) p. 1.
16 UN Division for Social Policy Development and Department of Economic and Social Affairs. ‘Toolkit on
disability for Africa: Disability-inclusive development’. 2016.
<un.org/esa/socdev/documents/disability/Toolkit/Disability-inclusive-development.pdf> (accessed 3 January
2023).
17 Ibid.
18 WHO,supra note 7; H Kuper,. et al. ‘Should disability-inclusive health be a priority in low-income countries?
A case study from Zimbabwe’, 15(1) Global Health Action, (2022); T. Smythe, et al. 'A path toward disability-
inclusive health in Zimbabwe Part 1: A qualitative study on access to healthcare’, 11(0) African Journal of
Disability (2022).
19 UN Division for Social Policy Development and the Department of Economic and Social Affairs. ‘Toolkit on
disability for Africa: Disability-inclusive development’. 2016.
20 Ibid.
5
3 Methodological Orientation of the Study
The study was anchored on the human rights-based approach (HRBA). It was selected because
of its emphasis on the enhancement of human rights in various public policy processes. Its dual
objectives, namely, a)”to empower people (rights-holders) to claim and exercise their rights,
and b) to strengthen the capacity of the actors (duty-bearers) who have a particular obligation
or responsibility to respect, protect and fulfil the rights of the poorest, weakest, most
marginalized and vulnerable, and to comply with these obligations and duties”
21 made it very
useful for this study.
The HRBA enabled an understanding of the perceptions of PwDs (rights-holders) towards the
sanitation and hygiene services provided by the MCC (duty-bearer). It also helped in
understanding the challenges the MCC is experiencing concerning the provision of disability-
friendly sanitation and hygiene services.
3.1 Research Design
To develop an in-depth account of the accessibility of sanitation and hygiene services among
PwDs in Mutare, a qualitative research design was utilised. The choice of qualitative research
was based on the need to understand the experiences of PwDs with sanitation and hygiene
services in Mutare’s CBD. Through qualitative research, the researchers also managed to obtain
insights into the experiences and perceptions of the MCC officials within the health department
regarding the provision of disability-inclusive sanitation and hygiene services. Thus, the
interactions between the researchers, PwDs and the MCC officials who are involved in the
provision of sanitation and hygiene services enabled the researchers to understand the reality
from the participant's point of view. The researchers mainly relied on purposive sampling in
selecting PwDs and officials from the MCC. A sample of 14 participants was used. The
principle of data saturation was used to determine the study's sample size.
The researchers collected data through a triangulation of obtrusive and unobtrusive methods.
Under obtrusive data collection methods, the researchers used key informant interviews and in-
depth interviews. Key informant interviews were used to unpack the initiatives that the MCC
undertook to make sanitation and hygiene services accessible to PwDs and the challenges
undermining the provision of those services. The researchers utilised in-depth interviews to
gather data on the extent to which sanitation and hygiene facilities and services in the MCC are
accessible to PwDs. On the other hand, a documentary review and observation were undertaken,
and this involved discrete observation and unobtrusive research.
To guide the observation process, the researchers developed an observation checklist for
assessing public toilets in the CBD. The observation checklist was designed based on the
following parameters of accessible toilets developed by von Münch:
Proximity: A short distance to the toilet is important. […]
Approach path: The ideal path is 120-180 cm wide. Elevations are crossed via ramps, which should have
handrails at 70-90 cm height and curbs on both sides. […]
21 A. Hausen and A. Launiala, ‘Introduction to the Human Rights-Based Approach: A Guide for Finnish Finnish
Ngos and Their Partners’. UNICEF Finland, 2015,
<unicef.studio.crasman.fi/pub/public/pdf/HRBA_manuaali_FINAL_pdf_small2.pdf> (accessed 4 January 2023)
p. 8.
6
Path surface: A firm, even, non-slip surface such as concrete benefits everyone […]. It prevents the surface
from becoming muddy and slippery during the rainy season.
Doors: The minimum door width should be 90 cm. The door should fully open and have grab bars out-side
and inside instead of knobs to allow easy opening and closing from a wheelchair or by people with reduced
strength.
Floors should have smooth and easy to clean surfaces, especially for those people with impairments who have
to crawl due to lack of assistive devices.
Room size: Allow for a wheelchair-turning circle of 150 cm, and a space of at least 80 cm beside or in front
of the toilet to allow positioning.
Toilet seat: Provide a sitting toilet (pedestal) or bench rather than a squatting pan. The toilet seat should be
easily cleanable. It should be well attached, or moveable in case other family members prefer a squatting
position.
Interior: Provide adequate handrails or grab bars attached to the walls or to the floor at 70-90 cm height to
assist people moving from a wheelchair or people with reduced strength to reach the seat. […]
22
Regarding the documentary review, the researchers reviewed documents such as the
Constitution of Zimbabwe), the Urban Councils Act, and the Disability Policy. The data
obtained through all these approaches were analysed and organised thematically using thematic
analysis. The study was guided by ethical principles in line with the RWI’s ethical guidelines
including gender inclusivity, informed consent, avoidance of harm, voluntary participation,
confidentiality and anonymity.
4 Results
In this section, guided by the research questions of the study, the researchers present the major
findings.
4.1 The International, Continental and National Obligations to PwDs
This section presents the international, regional and national legal provisions that oblige
governments to prioritise PwDs, with special reference to public sanitation and related facilities.
The study revealed that “against a historic background of ‘benign neglect’ of disability rights,”
23
the world has witnessed a paradigm shift towards disability-inclusive development. Countries
across the world have made concerted legal efforts to reposition PwDs in political and socio-
economic processes. The United Nations, through the CRPD, set the tone for the international
shift towards inclusivity in the area of disability rights. The CRPD is widely regarded as a
landmark and comprehensive international human rights treaty and development tool that
catalyses worldwide transition towards viewing PwDs as full and equal members of society.
24
It represents an ideological shift from treating PwDs as “subjects of charity, medical treatment
and social protection”.
25 According to the CRPD, all PwDs, as any other member of the society,
must be able to enjoy all human rights and fundamental freedoms. It affirms that PwDs must
enjoy rights related to all facets of life, for example, equality, accessibility, education,
independent living, health, environment and freedom from violence.
26
22 E. von Münch, ‘Making sustainable sanitation inclusive for persons with disabilities’, Deutsche Gesellschaft
für Internationale Zusammenarbeit (GIZ) GmbH (2011), <susana.org/_resources/documents/default/2-1210-
giz-2011-sustainable-sanitation-and-disability-barrierefreie-version-final.pdf> (accessed 4 January 2023).
23 T. P. van Reenen, and H. Combrinck, ‘The UN Convention on the Rights of Persons with Disabilities in
Africa: Progress after 5 Years’. 8(14) International Journal on Human Rights (2011), p.133.
24 Government of Canada, ‘Promoting rights of persons with disabilities’, <www.international.gc.ca/world-
monde/issues_development-enjeux_developpement/human_rights-droits_homme/rights_disabilities-
droits_handicapees.aspx?lang=eng> (accessed 4 January 2023).; United Nations, supra note 3.
25 Government of Canada, supra note 24.
26 United Nations, supra note 3.
7
Of particular importance to this study is Article 9 of the CRPD that underscores the centrality
of accessibility in advancing inclusivity.
27 To realise the above-mentioned benefits, Article 9(2)
of the CRPD mandates States to development mechanisms to ensure that public facilities and
services are accessible to PwDs.
28
To monitor compliance with the provisions of the CRPD among member states, the UN
established a committee, namely, the UN Committee on the Rights of Persons with Disabilities
(UNCRPD). The committee reviews the implementation of the convention. States parties are
mandated to report to the committee on measures taken to operationalise the provisions of the
convention two years after ratifying it.
29
Following international developments towards disability inclusion, the African Union, on
January 29
th, 2018, in Addis Ababa, adopted the Protocol to the African Charter on Human and
People’s Rights on the Rights of Persons with Disabilities in Africa, also referred to as African
Disability Rights Protocol (ADRP). Although there has been reluctance among African
countries in ratifying the ADRP
30, its adoption was widely celebrated as a milestone
achievement towards the protection of PwDs’ rights.
31 The ADRP seeks to “promote, protect
and ensure the full and equal enjoyment of all human and people’ rights by all persons with
disabilities, and to ensure respect for their inherent dignity”.
32 This is important given the
historical marginalisation of disability issues in Africa. To address the challenges that PwDs
face on a daily basis, the protocol obliges member states to:
[…] take appropriate and effective measures, including policy, legislative, administrative, institutional and
budgetary step, to ensure, respect, promote, protect and fulfil the rights and dignity of people with
disabilities, without discrimination on the basis of disability […].
33
Of particular importance to this study is Article 15 of the ADRP which emphasises the
importance of accessibility. It provides that:
Every person with a disability has the right to barrier free access to the physical environment, transportation,
information, including communications technologies and systems, and other facilities and services open or
provided to the public.
34
Against this background, the Protocol provides that state parties ought to take appropriate and
pro-active steps to enable the full enjoyment of rights by PwDs through the modification of all
inaccessible infrastructure and the implementation of universal designs of all new
infrastructure.
35
27 United Nations, supra note 3, Article 9 (1).
28 Ibid., Article 9 (2).
29 United Nations, supra note 3.
30 CIPESA, 'CIPESA Submission to the ACHPR on Ratification of the African Protocol on Disability Rights’,
<cipesa.org/2022/05/cipesa-submission-to-the-71st-ordinary-session-of-the-achpr-calls-upon-states-to-ratify-the-
protocol-to-the-african-charter-on-human-and-peoples-rights-on-the-rights-of-persons-with-disabilit/> (accessed
4 January 2023).
31 United Nations, ‘African states affirm the rights of persons with disabilities in a new landmark Protocol -
Africans with disabilities’, 2018, <ohchr.org/en/press-releases/2018/02/african-states-affirm-rights-persons-
disabilities-new-landmark-protocol> (accessed 4 January 2023).
32 African Union, Protocol to the African Charter on Human and Peoples' Rights on the Rights of Persons with
Disabilities in Africa, 2018, <au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-
persons-disabilities-africa> (accessed 4 January 2023), Article 2.
33 Ibid., Article 4.
34 African Union, supra note 32, Article 15 (1).
35 Ibid., Article 15 (2e).
8
Zimbabwe, after ratifying the CRPD, also took some legal steps towards the protection and
promotion of the rights of PwDs. The Constitution of Zimbabwe of 2013, as the supreme law,
mandates state entities to take measures to ensure the equal enjoyment of human rights by all
persons with disabilities. For instance, section 56(3) of the Constitution provides that “every
person has the right not to be treated in an unfairly discriminatory manner on such grounds as
their nationality, race, colour, tribe, place of birth, […] disability or economic or social status”.
36
Furthermore, section 83 of the Constitution of Zimbabwe also provides for the rights of PwDs.
Section 83 provides that:
The State must take appropriate measures, within the limits of the resources available to it, to ensure that
persons with disabilities realise their full mental and physical potential, including measures—
a) to enable them to become self reliant;
b) to enable them to live with their families and participate in social, creative or recreational activities;
c) to protect them from all forms of exploitation and abuse;
d) to give them access to medical, psychological and functional treatment;
e) to provide special facilities for their education; and
f) to provide State-funded education and training where they need it.
37
In addition, section 73(1a) of the Constitution provides that “every person has the right to an
environment that is not harmful to their health or well-being”
38. As provided in sections 44 and
45 of the Constitution, the MCC, as part of the State, “must respect, protect, promote and fulfil
the rights and freedoms” provided in chapter 4 of the Constitution.
39 More so, Zimbabwe
enacted the Disabled Persons Act (Chapter 17:01), which provides for the welfare and
rehabilitation of PwDs. Section 8 of the Disabled Persons Act (Chapter 17:01) prohibits denying
PwDs access to public premises, services and amenities.
40 This section, therefore, mandates
state institutions, the MCC included, to make provisions to enhance the accessibility of public
facilities such as public toilets. The National Disability Policy of 2021 further makes
commitments towards disability-inclusive development.
4.2 The Accessibility of Public Toilets in Mutare’s Central Business District
In theory, the MCC officials acknowledged and appreciated the importance of disability-
inclusive sanitation and hygiene services, particularly of public toilets. Disability-friendly
public toilet facilities are a central part of many PwDs' public outing experiences. In essence,
inaccessible public toilets alienate PwDs from attending public gatherings. Mr Maynard
Mutamuko, the Hitbay Sanitation Services' Chief Executive Officer, succinctly captured the
criticality of toilets in his World Toilet Day commemoration message in Mutare, explaining
that:
[…] a toilet is not just a toilet. It's a lifesaver, dignity-protector and opportunity-maker. We must expand
access to safe toilets and leave no one behind. Because whoever you are, wherever you are, sanitation is your
human right.
41
36 Government of Zimbabwe. supra note 5, Section 56(3).
37 Ibid., Section 83.
38 Ibid., Section 73 (1a).
39 Ibid., Section 44.
40 Government of Zimbabwe, Disabled Persons Act, Act 5/1992, 6/2001. Chapter 17:01.
41 The Manica Post, ‘Mutare commemorates World Toilet Day’ 2019, <manicapost.co.zw/mutare-
commemorates-world-toilet-day/> (accessed 4 January 2023).
9
In reality, however, disability-inclusive public toilets were limited, if not lacking, in Mutare's
CBD. The analysed data from observations and in-depth interviews suggest that there are only
four public toilets in Mutare's CDB. The toilets are located at the Mudzviti Bus Terminus, in
Meikles Park, at the Manica Post Market, and the Old-rank Cross Border Rank. It is important
to note that, of the four public toilets, only one, the Mudzviti toilet, is not prepaid. The rest are
prepaid.
There was a consensus among the interviewed PwDs in the study that Mutare lacks adequate
public toilets that accommodate them. Respondent 2 expressed concern about the nature of
public toilets in the Mutare, explaining that “there are no adequate toilets for PwDs in the city”.
This view was supported by Respondent 3 who averred that “I don't have a toilet in town. I use
hotel toilets and bush toilets instead”. Respondent 3, a wheelchair user, highlighted that the four
available toilet facilities are not user-friendly and hence opts to use toilets at local hotels with
the nearest being around one kilometre from his place of work.
Respondents further complained that public toilets in the CBD are not only inadequate but also
concentrated in the upper part of the town. According to Respondent 1 “the toilets are too far
from where I do my business-like shopping. In downtown there are no public toilets, you have
to walk a long distance towards uptown to access a toilet.” The above-mentioned views
highlight that PwDs feel discriminated against seeing as sanitation and hygiene services
provided in the CBD are not easily accessible and are not disability-friendly. This goes against
section 83 of the Constitution of Zimbabwe, which provides for the rights of PwDs. Most
importantly, it violates section 56(3) of the Constitution of Zimbabwe which clearly states that:
Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their
nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political
affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or
social status, or whether they were born in or out of wedlock.
42 (Emphasis added)
Findings from observations complemented the respondents’ review. The researchers, guided by
a literature review, developed a disability-inclusive toilet observation toolkit that assessed the
disability-inclusiveness of public toilets in the CBD.
4.3 Physical Barriers That Undermine the Accessibility of Public Toilets to PwDs
PwDs were asked whether the public toilets in the CBD have disability-friendly design features.
There was consensus among PwDs that the public toilets lack the basic infrastructure that would
accommodates their needs. The following section presents some of the disability design gaps
that the study identified.
4.3.1 Surface
In-depth interviews with PwDs, particularly with wheelchair and crutch users, showed that
public toilets in the CBD are not properly designed to accommodate PwDs. The following are
some of the views the respondents expressed when asked about the path surface. R1 explained
that “the surface is not easy to walk, the pavements are always filled with vendors. We,
wheelchair users, have challenges navigating to toilets.” In support of the preceding view, R2
also indicated that the surfaces have potholes and raised pavements that make it difficult for
wheelchair users to move smoothly. Some respondents complained that the surfaces are
42 Constitution of Zimbabwe section 56(3), emphasis added.
10
sometimes slippery and muddy, especially during rainy seasons. This is particularly the case
with the Mudzviti public toilets which are mostly wet due to lose water taps and overflowing
urinary wastes. Given that the Mudzviti toilets are the only ones that are not prepaid, they are
usually congested and have very poor hygiene standards. The public toilets at Meikles Park are
prepaid and, as a result, people frequently prefer the Mudzviti toilets. A respondent quoted in
the Manica Post described the state of the Mudzviti toilets as follows, “they are so dirty that
most people have to wait until day end so they can use their toilets back home”.
43 Respondents
with walking impairments without assistive devices complained that they crawl, and it becomes
difficult for them to use wet and slippery toilets. Slippery surfaces not only compromise PwD’s
mobility but also expose them to accident risks, thus endangering their hygiene and health.
4.3.2 Entrance Space
In addition, PwDs were asked whether the entrance space of public toilets in Mutare's CBD
accommodates wheelchair or crutch users. The responses indicated that most public toilets are
not easily accessible. As R7 explained, "the entrances got stairs which are a big challenge to
wheelchair users. My wheelchair can't pass through in all of the toilets because of the stairs and
the size of the entrance". Similarly, R10 indicated that "I face difficulties with steps and the
absence of rails when accessing the facility. The steps are narrow limiting space to
accommodate us as users of crutches". Evidence from observations also substantiated the lack
of disability accommodative entrances to all the public toilets in the CBD. Through
observations, the researchers discovered that the entrances are either raised or have steps
without ramps and rails to assist the physically impaired.
During observations, a member of the research team, a crutch user, could not enter one of the
Meikles Park toilets due to steep steps and narrow entrance space. The presence of steps without
an alternative entry point with ramps and rails excludes many PwDs from accessing sanitation
and hygiene facilities in the CBD. As a result, PwDs often have to be lifted to access toilet
facilities, a situation which significantly undermines their dignity and privacy. Even if there
might be other people willing to assist, the narrow entrances and passages present mobility
challenges. This exposes PwDs to risks of injuries. However, the newly built toilet at the Old
Rank shows some improvements regarding disability inclusivity. The entrance space is wide
enough to accommodate a wheelchair user. There is also a gentle ramp that enables PwDs,
particularly wheelchair users, to independently enter the toilet. The only shortcoming, however,
is that the authorities fitted bars to secure the toilets at night. The bars on the women's toilets
wing require someone to lift a wheelchair for one to enter the toilet. Despite the highlighted
limitations, the Old Rank toilet serves as a good starting point towards disability-inclusive
public toilets.
4.3.3 Cubicle Size and Availability of Doors
The study further analysed the quality of doors and the size of cubicles at the public toilets in
the CBD. Through observation, the researchers discovered that most public toilets do not have
doors. The site visit at Mudzviti toilets exemplified an intolerable situation that fails to fulfil
any acceptable standards of privacy and dignity. The researchers saw some people squatting
where everyone can see. PwDs interviewed in the study flagged the absence of doors as a major
cause for concern. To them, toilet facilities without privacy undermine their dignity and because
of that, they force them to shun public toilets. However, respondents had divergent views
43 The Manica Post, supra note 41.
11
regarding the size of the cubicles. Some respondents, particularly wheelchair users, expressed
concern over the narrow cubicle spaces in most of the public toilets. The respondents indicated
that most of the cubicles were too small to allow wheelchair turning. R8 explained that “the
rooms at Mudzviti do not accommodate wheelchairs. The space there is not enough for my
wheelchair to turn freely. I do the positioning with great challenges”. In concurrence, R10
indicated that “I cannot turn when I am in the toilet area. I have challenges in positioning myself
when the facility has a small cubicle area and no seats”. On the other hand, crutch users were
comfortable with the cubicle spaces. For instance, R9, a crutch user, revealed that “I have no
challenges of turning on my crutches. The area allows me to appropriately position myself to
use the toilet facility well”. The above view highlight that most of the public toilets in Mutare's
CBD are not accommodative to a wheelchair users. They fall short of international best
practices and standards.
Observations, however, showed that some of the toilet cubicles at the Old Rank toilets are wide
enough to accommodate a wheelchair user. The Old Rank toilets are designed in such a way
that for both male and female toilets, there is one wide toilets cubicle to accommodate PwDs
and other people with compromised strength who might need support in using toilet facilities.
The MCC should, therefore, use the Old Rank toilets as a model in developing other public
toilets.
4.3.4 Availability of Handrails or Grab Bars Attached to the Walls or the Floor
Generally, most of the toilets in the CBD do not provide adequate handrails and grab bars
attached to the wall or floor to assist wheelchairs and people with compromised strength to
reach the toilet seat. Observation results showed that, of the four public toilets in the CBD, only
one toilet, the Meikles toilet 1, has handrails on the stepped passage. However, although
Meikles toilet 1 has handrails attached to the passage wall, the toilet interior does not have any.
This presents mobility challenges in and out of the toilet cubicles. International standards
emphasise the importance of handrails in the cubicles to allow wheelchair users and other PwDs
with compromised strength to easily navigate toilet spaces.
4.3.5 Availability of a Sitting Toilet (Pedal) or Bench and Flushing System
A disability-inclusive toilet provides a sitting toilet (pedestal) or bench rather than a squatting
pan. Observations revealed that only one toilet, the Mudzviti toilet, was still using squatting
pans while all the other toilets had toilet seats. Nevertheless, the flushing systems of the toilets
were not properly functional. Some toilets used the bucket flushing system which presents
challenges for PwDs, particularly those with mobility challenges and reduced strength.
4.3.6 The Measure the MCC Adopted to Provide Disability-Inclusive Services
Interviews with the MCC key officials revealed that, although the discourse of disability
inclusivity is relatively new in Zimbabwe, the Council is making efforts to address the disability
gap in council operations. R11 (MCC) explained that the city has the plan to revamp sanitation
facilities in the CBD and accommodation for PwDs to make them disability friendly. The
respondent highlighted that the problem of disability-exclusive sanitation and hygiene services
prevails not only in the CBD but also in council offices and council houses that accommodate
PwDs, for instance, houses in Sakubva. R11 (MCC) indicated that even council offices are not
accessible to PwDs. She expressed concern over a PwD, who is a member of one of the council
committees, who is always lifted to access council offices. The involvement of PwDs in council
12
committees, however, provided a policy window for disability issues to be on the council’s
agenda (R12, MCC). The council is now taking disability matters seriously because of the
increased involvement of PwDs in local government structures.
Another important development the study revealed was the inclusion of PwDs in budgetary
processes. R11 (MCC) highlighted that, in the past, the disability dimension was not adequately
represented in council operations. This perpetuated the marginalisation of the disability
dimension in socio-economic development. To address this gap, R11 (MCC) pointed out that
the council has created structures to enhance the inclusion of PwDs in the budget consultation
processes. He referred to the budgetary consultations that were ongoing during the time of data
collection. The PwDs are represented in the consultation processes which allows them to raise
their grievances. However, PwDs interviewed in the study expressed concern regarding the
lethargic pace at which the MCC is moving towards the provision of disability-inclusive public
toilets. R3 (PwD) highlighted that they have been participating in the consultative process for
decades, but nothing has changed. In support of this view, R9 (PwD) explained that:
I don't see the reason for me to participate in the budget processes because even if you participate the council
will not do anything to address the issues that we raise. I don't think the council takes us seriously.
The preceding views show that although the MCC official made efforts to include PwDs in
socio-economic development, the efforts have not yet changed the fortunes of PwDs. The
people affected are disgruntled and feel side-lined in local development processes.
4.4 Factors Undermining Disability-Inclusive Sanitation and Hygiene Services in Mutare
The study revealed two main factors undermining the provision of disability-inclusive public
toilets. Firstly, inquiries on the disability-inclusive sanitation and hygiene services gap revealed
that, in the past, there was limited recognition of disability-inclusive development in the
council. A key informant from the MCC explained that:
In the past, there was not much recognition of the PwDs getting into town. People thought that persons with
disabilities would stay at home. This was the idea and it explains why the infrastructure was built in a way
that does not accommodate persons with disabilities. Now that they have been integrated into society wholly,
they are participating in socio-economic activities like the other community members. That is why they now
need access to all facilities.
It can be inferred from the preceding excerpt that the concept and practice of disability
inclusivity is a relatively new development in the MCC. Regardless of the promulgation of the
2013 Constitution, which emphasises non-discrimination on any grounds, disability included,
the MCC failed to recognise and prioritise disability-inclusive public toilets. The views of the
PwDs interviewed in the study support the lack of recognition and prioritisation of disability
matters. There was a general agreement among PwDs that the council is not prioritising
disability matters. Instead of prioritising disability-inclusive development, some key informants
from the MCC viewed disability investments as costly, non-performing social investments.
Secondly, there was consensus among the key informants from the MCC that funding is the
major obstacle in the council's pursuit of disability-inclusive development. A senior official
from the MCC highlighted that while the council was committed to disability-inclusive
development, securing adequate funding to revamp the council's infrastructure and make it
disability compliant has remained a challenging task (R12, MCC). R11 (MCC) highlighted that,
since the central government's 2013 debt cancellation directive, revenue generation in local
governments has dwindled to levels that cannot sustain service delivery. The economic
13
challenges that befell the country since the passing of the 2013 Constitution further exacerbated
the crisis. As R13 (MCC) explained:
Addressing the current disability inclusivity in all council operations requires capital. Before we talk of public
toilets in town, just look around and consider this building (council head office). Wheelchairs cannot navigate
this place. As a council, we know about this problem and we have plans to address the problem but we don't
have the means. We don't have funding.
Another council official from the department of finance (R14, MCC) blamed the inflationary
environment and central government monetary controls for the council's failure to renovate
public toilets to make them disability-inclusive. The respondent observed that the council
collects revenue in Zimbabwe dollars (ZWL) whilst infrastructural development requires the
American dollar (USD). The respondent further explained that ratepayers frequently fail to
uphold their duties and do not pay their rates, a situation that further paralyses the council's
operations. It can be inferred from the foregoing discussion that financial constraints and
economic challenges Zimbabwe experienced have compromised the capacity of the MCC to
modernise public toilets to make them disability friendly and accommodate everyone.
However, PwDs had different views. The perceived problem, from the PwDs' perspective, was
the matter of prioritisation. The PwDs interviewed in the study argued that the MCC was not
prioritising disability issues. This line of argument is exemplified through the answers of some
key informants from the CoM who classified public toilets investments as non-performing
social investments that do not generate any income for the council (R14, MCC).
4.5 Discussion of Findings
Generally, the study sought to assess the extent to which the sanitation and hygiene facilities
and services in Mutare's CBD are accessible to people with disabilities. As highlighted above,
the public toilets in Mutare’s CBD are widely inaccessible to PwDs. The toilets’ surfaces have
potholes and elevated pavements, and some are slippery. This affects the mobility of wheelchair
and crutch users and also those who crawl. The study further revealed that the entrance space
of public toilets in Mutare's CBD do not accommodate wheelchair or crutch users. Most of the
entrances are raised and some have steps with ramps and rails to cater for wheelchair and crutch
users and other people with reduced strength. This exposes PwDs to accident risks. Most of the
toilets had narrow entrances, cubicles and passages that could not accommodate wheelchairs.
In addition, the toilets lacked basic design requirements such as doors to enhance privacy and
protect people’s dignity. Although the other two public toilets had toilet seats, the Mudzviti
toilets, which are the only free public toilets in the CBD, had squatting pans. Squatting pans are
not disability friendly. The state of public toilets revealed serious insufficiencies, inequalities,
and discrimination for PwDs that warrant the council's attention to make sure that citizens from
all walks of life are accommodated in social and economic development. The public toilet
situation in the CBD violates section 56(3) of the Constitution, which provides that every person
has the right not to be treated in an unfairly discriminatory manner, and section 73(1)(a), which
provides that every person has the right to an environment that is not harmful to their health or
well-being. As provided in section 44 and 45 of the Constitution, the MCC, as part of the State,
must respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4 of the
Constitution.
These problems are, however, not specific to Mutare. Other local authorities in Zimbabwe and
across the world are grappling with the problem of making public toilets disability friendly. A
study by the Poverty Reduction Forum that focused on access to health services for PwDs in
14
Zimbabwe focusing on Mutasa, Mutare urban and Mutare Rural District also highlighted
similar disability management gaps in municipal healthcare provision.
44 The study highlighted
that PwDs are generally left behind in the provision of disability-friendly health services. The
survey results from the Zimbabwe Coalition on Debt and Development (ZIMCODD) indicated
that 95 per cent of public toilets in Zimbabwe were not user-friendly to people with
disabilities.
45
The findings of the study are also consistent with Kuper et al., who found that PwDs are lagging
behind in the core pillars of Universal Health Coverage (UHC).
46 PwDs also face difficulties in
accessing basic health services.
47 This gap requires serious attention so that local government
services accommodate citizens with different needs. Consistent with the findings of this study,
Kuper et al. argue that Zimbabwe’s failure to provide disability-inclusive healthcare services
might hamper the country’s efforts to achieve the SDGs.
48
Studies outside Zimbabwe also revealed a similar concerning picture in terms of disability-
inclusive provisions of public toilets. Lakwo’s study on disability inclusion in water, sanitation
and hygiene services in Uganda found limited local planning and budgeting for PwDs at sub-
county levels.
49 The study also highlights that local governments have limited capacity to
address disability needs and provide disability-inclusive sanitation and hygiene facilities.
5 Recommendations
The duty bearer, in this case the MCC, should prioritise the provision of disability-inclusive
public toilets considering that the report found a glaring gap in the provision of public toilets
that accommodate PwDs. The lack of disability-inclusive public toilets significantly
undermines the mobility of PwDs and, as a result, excludes these important constituents from
socio-economic activities. The ZIMCODD emphasised that equal rights as provided by the
Constitution can only be achieved if “significant investments in adaptive infrastructure like
public toilets and transport should be prioritized”.
50
The MCC should actively involve PwDs in addressing disability exclusion in the provision of
public toilets and other local government services. The MCC should ensure more participation
and involvement of PwDs in the council’s decision-making and planning structures and
processes. PwDs should be actively involved in local government budget processes so that
disabilities are prioritised in local economic development processes. In line with Article 4 of
the CRPD, PwDs, directly or through their representative organisations, should be fully
consulted and actively involved in all stages of formulating policies, laws and services that
relate to them. The MCC should, therefore, involve or partner with local and national
44 Poverty Reduction Forum Access to health services for people with disabilities in Zimbabwe – a case of
Mutasa, Mutare Urban and Mutare Rural Districts in Manicaland Province’, 2021,
<evidenceforinclusion.org/wp-content/uploads/2021/09/Zimbabwe-ECID-Research-Report.pdf> (accessed 4
January 2023).
45 Zimbabwe Coalition on Debt and Development (ZIMCODD), ‘Public Resources Management: Situational
Report’, 2021, <zimcodd.org/wp-content/uploads/2022/06/Public-Resources-Management-Situational-
Report_April-2022-1.pdf> (accessed 4 January 2023).
46 Kuper et al., supra note 18.
47 Smythe et al., supra note 18.
48 Kuper, et al., supra note 18.
49 L. D. Lakwo, ‘An assessment of disability inclusion in water, sanitation and hygiene services. A case study of
Gulu District, Northern Uganda’, 2020.
50 ZIMCODD, supra note 45, p.24.
15
organisations that represent and work for the rights of PwDs. As highlighted by the WHO, these
organisations can “play a representative role, undertake advocacy, provide services and peer
support”.
51 Through cooperation and collaboration, the MCC can actively involve PwDs,
identify barriers to disability inclusivity and co-create strategies to enhance access to sanitation
and hygiene services for PwDs. Collaborative governance is critical given the financial
challenges that the MCC is confronted with. The MCC leadership can also initiate collaborative
initiatives to mobilise community members, the business community, non-governmental
organisations and other interested stakeholders in raising resources for the construction of
disability-inclusive sanitation and hygiene services.
The MCC should develop a comprehensive local disability-inclusivity reforms. Firstly, the
MCC should conduct an inventory analysis of all council sanitation and hygiene facilities, other
council facilities (offices, health facilities, among others) and by-laws to determine if they are
disability inclusive. Based on the results of the inventory analysis, the council should act on the
findings to facilitate accessibility to local services. The MCC should holistically address
disability exclusion through the adoption and implementation of comprehensive disability
reforms. The council should focus on the cultural, physical, attitudinal and policy barriers to
disability-inclusive sanitation and hygiene services. It is important to note that enhancing
disability-inclusive sanitation and hygiene services is not a matter of simply installing ramps
and some rails. Instead, it involves paying particular attention to the various factors
undermining accessibility such as toilet style, design, dignity concerns and hygiene needs.
The residents' associations and other interested stakeholders should raise awareness among
council leaders and staff on disability-inclusive sanitation and hygiene services and their
implications on the participation and involvement of PwDs in socio-economic development
activities. This can be achieved through the training of council staff. The council leadership and
employees should be trained on the needs and rights of PwDs. In addition to disability-
inclusivity awareness raising, organisations representing PwDs should collaborate with resident
associations in lobbying for the rights of PwDs.
In the interim period, the MCC could utilise mobile public toilets to specifically cater for PwDs
who cannot access the existing public toilets. This is critical given the urgent need for disability-
inclusive public toilets.
Some of the factors undermining the accessibility of public toilets, highlighted above point to
maintenance gaps in the MCC. For instance, the study found that some toilets do not have doors,
properly functioning flushing systems, seats and have potholes, are paved and often have
slippery surfaces. The MCC should, therefore, have an ongoing monitoring plan of the toilet
facilities to identify and rectify damages. The MCC should also conclude the pending
construction stages at the Old Rank toilets. Although the toilets are already in use, they are not
yet connected to electricity supply lines. This presents challenges in using the facility at night
and during extreme weather conditions.
6 Conclusion
Although the MCC recognised the importance of disability-inclusive development, the state of
public toilets in the CBD shows a glaring implementation gap. Most of the public toilets in the
CBD are far from meeting the basic requirements for a disability-friendly toilet. As highlighted
51 WHO, supra note 7.
16
above, the nature of toilet surfaces, entrance space, cubicle size and the absence of handrails or
grab bars and toilet seats undermine the accessibility of public toilets in Mutare's CBD. This
paper argues that the provision of disability-inclusive public sanitation and hygiene services
would strengthen the MCC's inclusive development endeavour as well as help the council, as
the duty-bearer, to enhance the realisation of fundamental human rights to achieve local,
national and global development goals. Achieving national development goals and the global
SDGs will be difficult if PwDs continue to be left behind. Based on this, the paper urges the
MCC to prioritise disability inclusivity in the provision of sanitation and hygiene services and
local services in general. This can be achieved through the development and enforcement of a
disability policy, disability-inclusive development awareness programmes, inclusion and
integration of PwDs in sanitation and hygiene service provision, and possibly collaborative
crowdfunding initiatives for disability-inclusive sanitation and hygiene services.
17
2 A Review of the 2013 Constitutional Environmental Rights Clause, Policy
Developments and Judgements for the Protection of the Environment
Alpha Chikurira
1 and Mutuso Dhliwayo2
Abstract
The 2013 Constitution has an environmental rights clause. The clause protects and promotes
environmental rights as human rights and help in addressing the negative impacts of climate
change. However, the realization and fulfilment of the environmental rights clause is dependent
is dependent on the enactment of laws, adoption of policies and setting up of institutions. This
chapter assesses the laws that have been enacted, the policies that have been adopted and the
institutions that have been put in place by the Government of Zimbabwe since 2013 in support
of the environmental rights clause and how these have helped in the protection and promotion
of environmental rights as human rights and addressing the negative impacts of climate change.
1 Introduction
The year 2022 marks the 10
th anniversary of the adoption of a new Constitution in Zimbabwe.3
The Constitution enshrines the right to an environment that is not harmful to one’s health and
well-being as well as the right to have the environment protected for the benefit of present and
future generations through reasonable legislative and other measures.
4 The constitutional
environmental right builds on the foundation laid by the Environmental Management Act of
2002.
5 As the Government of Zimbabwe reflects on a decade of constitutionally enshrined
environmental rights, the world gathered for the Stockholm + 50 International Meeting under
the theme “A healthy Planet for the Prosperity of All – Our Responsibility, Our Opportunity”.
6
The meeting was timely as it took place 50 years after the first United Nations Conference on
the Human Environment (UNCHE) also known as the Stockholm Conference which was held
in 1972. The conference’s conclusions, which are commonly referred to as the Stockholm
Declaration, provided a set of principles aimed at giving a guide on how humans can preserve
the environment for their own economic development. The UNCHE eventually led to the
evolution and adoption of the concept of sustainable development, which is based on three
pillars namely the economic, social and environmental spheres.
7 It is described as “a conceptual
framework for achieving economic development that is socially, equitable and protective of the
natural resources base on which human activity depends”
8.
1 Environmental Quality Manager , Environmental Management Agency
2 Environmental lawyer , Zimbabwe Environmental Law Association
3 Government of Zimbabwe. Constitution of Zimbabwe (No.20). 2013
<www.constituteproject.org/constitution/Zimbabwe_2013.pdf> (accessed 23 January 2023).
4 Ibid., Section 73.
5 Ibid., Section 4.
6 United Nations General Assembly, Stockholm +50: A Healthy Planet for the Prosperity of All – Our
Responsibility, Our Opportunity. A/CONF.238/3,2022. <documents-dds-
ny.un.org/doc/UNDOC/GEN/K22/117/97/PDF/K2211797.pdf?OpenElement> (accessed 23 January 2023).
7 J. C. Dernbach, ‘Sustainable Development as a Framework for National
Governance’, 49 (1) Case Western Reserve Law Review (1998).
8 UN General Assembly, Resolutions 2994/XXIII,2995/XXVIII and 2996 XXII(1972),p.11.
18
The Stockholm Declaration laid the foundation for the Brundtland Report,
9 the United Nations
Conference on Environment and Development
10, the World Summit on Sustainable
Development
11 and the United Nations Conference on Sustainable Development.12
It is, however, important to note that since 1972, environmental challenges in the form of
biodiversity loss, climate change and pollution, have increased. In November 2022, the world
gathered in Egypt for the Conference of the Parties 27 (COP27) to reflect on one of the most
existential threats facing the world today – climate change. Climate change continues to pose
serious environmental problems globally, and approaches dealing with the phenomena must be
given serious consideration. Environmental rights protection in the Environmental
Management Act and enshrined in section 73 of the Constitution are all based on the concept
of sustainable development. Hence, the need to pause and reflect on what has been achieved
and the opportunities that are there to further develop the protection of environmental rights
and the negative effects of climate change.
The growing importance of framing environmental rights as human rights and the need to
address the climate crisis is reflected in several multilateral environmental agreements (MEAs),
declarations and resolutions. These include the United Nations Framework Convention on
Climate Change (UNFCC), the Rio Declaration on Environment and Development, Sustainable
Development Goals (SDGs), the African Charter on Human and Peoples’ Rights, the Kyoto
Protocol, and the Paris Climate Agreement. In 2021, the Human Rights Council adopted a
resolution on “the human right to a clean, healthy and sustainable environment”.
13 The
resolution urges member states to adopt policies for the enjoyment of the right to a clean,
healthy, and sustainable environment as appropriate including with respect to biodiversity and
ecosystems.
14 In 2022, the United Nations Assembly adopted a resolution on the same topic.15
Zimbabwe, as a member of the international community, is required to adopt policies and enact
legislation at the national level to fulfil its commitments and obligations at the international
level reflected in various MEAs, declarations and resolutions.
16 Zimbabwe is one of the
countries that has adopted the concept of sustainable development which is reflected in several
laws and policies. These include the adoption of a Constitution that recognises environmental
rights as human rights
17 and incorporated the Environmental Management Act18. The objective
9 UN General Assembly, Report of the World Commission on Environment and Development: Our Common
Future, A/42/427,1987 <digitallibrary.un.org/record/139811#record-files-collapse-header> (accessed 23 January
2023).
10 The meeting was held in Rio de Janiero, Brazil from the 3-14 June 1992 and is also known as the Rio Earth
Summit and came up with Agenda 21 as an action plan
11 The meeting was held in Johannesburg , South Africa from 26 August-4 September, 2002 and came up with
the Johannesburg Declaration on Sustainable Development and the Plan of Implementation of the World Summit
on Sustainable Development
12 This meeting was held in Rio de Janeiro, Brazil from the 20 -22 of June ,2012 and is also known as the
“Future We Want”.
13 UN General Assembly, The human right to a clean, healthy and sustainable environment, A/HRC/RES4813,
2021, <documents-dds-ny.un.org/doc/UNDOC/GEN/G21/289/50/PDF/G2128950.pdf?OpenElement> (accessed
23 January 2023).
14 Ibid., 4 (c).
15 UN General Assembly, The human right to a clean, healthy and sustainable environment ,A/76/L.75,
2022<digitallibrary.un.org/record/3982508?ln=en> (accessed 23 January 2023).
16 Government of Zimbabwe, supra note 3, Section 327. See also Government of Zimbabwe, Constitution of
Zimbabwe Environmental Management Act Chapter 20:27, 2005, <ucaz.org.zw/wp-
content/uploads/2019/08/ENVIRONMENTAL-MANAGEMENT-ACT.pdf> (accessed 23 January 2023).
17 Government of Zimbabwe, supra note 3, Section 73.
18 Chapter 20:27, supra note 16.
19
of this research paper is to assess executive, legislative and judicial developments and measures
that have taken place since the adoption of the 2013 Constitution to promote and strengthen
environmental rights as human rights and respond to the climate crisis.
1.1 Justification and Relevance
This review is very important because the realisation of environmental rights is progressive
19
rather than immediate and, therefore, depends on supportive measures that the government
takes. Without these measures, the constitutional right to a clean and healthy environment will
remain a pipeline dream. This has become even more urgent and necessary considering the
triple threat that the planet faces because of climate change, increased environmental
degradation and biodiversity loss and pollution. Climate change is no longer regarded as an
environmental issue only but a human rights issue which has the potential to and is undermining
the realisation of human rights that are provided for and protected under national, regional, and
international law. Such rights include the right to food, water, health, shelter, life, and
development among others. Hence, the question is, has Zimbabwe made progress since 2013?
This can only be determined by analysing legal, policy and institutional measures that have
been put in place by the Government of Zimbabwe since the adoption of the Constitution in
2013 to determine the effectiveness of their implementation and court judgements.
The review is based on existing laws, policies and institutional frameworks and proposed legal
and policy reforms that have implications on the environment and climate change. These laws
and policies include the Renewable Energy Policy, Energy Policy, the National Environmental
Policy and Strategies, Integrated Solid Waste Management Plan, National Climate Policy,
Wetlands Policy, Zimbabwe Climate Change Response Strategy, Zimbabwe’s National
Development Strategy 1, Zimbabwe ‘s Long Term Low Greenhouse Gas Emissions
Development Strategy (2020-2050) and Nationally Determined Contributions under the Paris
Agreement. There are also ongoing legal and policy reforms. These include the amendment of
the Parks and Wildlife Act, the Environmental Management Act, the review of Zimbabwe’s
Wildlife Policy of 1992, the Mines and Minerals Amendment Bill, the development of a
Climate Change Act and the National Forest Policy. There are also several judiciary
pronouncements that have implications on environmental rights and climate change. There are
also conversations about establishing specialised environmental courts. These will be analysed
to determine if they promote environmental rights as human rights and help in the fight against
the climate crisis.
2 Legal Developments Since 2013
There have been many developments that have changed the legal, policy and institutional
framework of environmental management in the country over the last decade. Most of the
notable legal developments that have taken place since the inclusion of environmental rights in
section 73 of the Constitution in 2013 have been through Statutory Instruments (SIs). Pollution
and poor management of waste including the transboundary movement (TBM) of plastic waste
and the environmentally sound management of plastic waste (ESM) is a major challenge in
Zimbabwe.
20 These challenges are reflected in the National Development Strategy 1(NDS 1)
2021-2025. The NDS1 set environmental protection, climate change and the sustainable use of
19 Government of Zimbabwe, supra note 3, Section 73(2).
20 Environmentally Sound Management of Plastic Waste is defined as the taking of all practical steps to ensure
that hazardous wastes or other wastes are managed in a manner which will protect human health and the
environment against adverse effects which may result from such wastes
20
natural resources as key priority areas. It is estimated that Zimbabwe generates about 1.9 million
tonnes of waste annually.
21 Plastic as well as other hazardous and domestic waste are sources
of pollution, and this affects the realisation of environmental rights that are provided under the
Environmental Management Act and the Constitution.
2.1 Environmental Management Regulations on Prohibition and Control of Ozone Depleting
Substances and Greenhouse Gas Dependent Equipment
22
The regulations give effect to the provisions of the Montreal Protocol under the Vienna
Convention to which Zimbabwe is a signatory. The regulations recognise that, as a signatory,
Zimbabwe must mitigate the emission of ozone-depleting substances (ODSs) and ODS-
dependent equipment that destroy the ozone layer. Through the regulations, the Ozone Office
in the Ministry of Environment, Climate, Tourism and Hospitality Industry controls the
importation and use of such substances and equipment through permits. Although not present
at border posts, the Ozone Office works in collaboration with the Zimbabwe Revenue Authority
(ZIMRA) and the Environmental Management Agency (EMA) in screening imports destined
for Zimbabwe or transits through the country. Although not directly affected by the depletion
of the Ozone layer, Zimbabwe has an obligation to act due to the common but differentiated
responsibility principle.
2.2 Environmental Management Regulations on Control of Hazardous Substances
23
The ESM of chemicals and their waste is critical in promoting the realisation of environmental
rights.
24 The poor management of chemicals has demonstrated negative effects on human health
and the environment owing to their toxicity, persistence, long-term environmental impacts and
ability to bioaccumulate. It is against such a background that global action has been taken in
terms of the Basel, Rotterdam and Stockholm (BRS) and Minamata Conventions to restrict or
ban the use of highly hazardous chemicals. In order to fully realise the benefits of such actions
they, however, need to be domesticated or contextualised in the country’s individual legislation.
To this end, Statutory Instrument 268/2018 attempts to include key elements of global action
through the consolidation of several prior amendments to the principal regulations. The
amendment not only sought to capture changes in terms of the ESM of chemicals in MEAs but
also sought to capture changes in the functional currency after the adoption of the United States
Dollar in 2009. License fees under the regulation are pivotal for the implementation of the
“polluter pays principle”. The regulation repealed a notable number of SIs that provided the
general framework for the management of chemicals in Zimbabwe. The repealed SIs include
the following:
Environmental Management (Hazardous Substances, Pesticides, and other Toxic
Substances) Regulations, 2007.
Environmental Management (Importation and Transit of Hazardous Substances and
Waste) Regulations, 2009; and
21 Governemnt of Zimbabwe, ’Intergarted Solid Waste Management Plan,2021.
https://www.ema.co.zw/agency/ziswmp
22 FAO, Environmental Management (Prohibition and Control of Ozone Depleting Substances, Greenhouse
Gases, Ozone Depleting Substances and Greenhouse Gases Dependent Equipment)Regulations, 2016. Statutory
Instrument 131 of 2016, [CAP. 20:27]. <faolex.fao.org/docs/pdf/zim203470.pdf> (accessed 23 January 2023).
23 FAO, Environmental Management (Control of Hazardous Substances) (General) Regulations, 2018. Statutory
Instrument 268 of 2018, [CAP. 20:27]. <faolex.fao.org/docs/pdf/zim187704.pdf>. (accessed 23 January 2023).
24 Health Safety Executive,‘Background: Globally Harmonized System (GHS)’. <www.hse.gov.uk/chemical-
classification/legal/background-directives-ghs.htm> (accessed 23 January 2023).
21
Environmental Management (Hazardous Substances, Pesticides, and other Toxic
Substances) (Amendment) Regulations, 2011.
The regulation also incorporated the Globally Harmonized System (GHS) for the classification
and labelling of chemicals, a key requirement for identifying and communicating the risks
associated with a chemical. Such information is critical in chemical screening at ports of entry
as well as for informing emergency preparedness and responses in the event of a chemical spill
or incident. In the Plan of Implementation of the World Summit on Sustainable Development
held in Johannesburg, South Africa, in 2002, countries were encouraged to implement the GHS
as soon as possible with the goal to have the system fully operational by 2008.
25
In keeping with the prior informed consent (PIC) requirement of the BRS and Minamata
Conventions, the regulation provides an inclusive list of chemical substances that are
considered dangerous and that, as a result, require to be licensed prior to importation,
transportation, storage, use and sale. Given the infinite number of chemical formulations that
are possible, this presents an operational challenge in terms of the implementation of the
regulation, notwithstanding the footnote to the Third Schedule of SI 268/2018 that reads:
The list of hazardous substances provided in this Schedule is non-exhaustive. Any substance not specifically
covered under the list will be identified and licensed or labelled in accordance with the characteristics or
hazard posed by the substance as provided in this Schedule
26
Notable additions included in the SI 268/2018 include PIC from the Environmental
Management Agency before the manufacture, storage, sale, use, import, transport, distribution
or transit of derivatives of cyanide and mercury in particular. Cyanide and mercury are
predominantly used for the extraction of gold in the mining sector. The leading source of
mercury in Zimbabwe is artisanal mining in the amalgamation sector. The regulation, in
keeping with the Minamata Convention on Mercury, therefore, seeks to ensure that mercury
imports are regulated given the public health and environmental risks associated with exposure.
A survey conducted by the World Health Organisation (WHO) in 2014 indicated that chronic
mercury intoxication is likely to have been one of the top 20 hazards for the population health
in Zimbabwe
27.
2.3 The Environmental Management Regulations on the Control of Alluvial Mining
28
Statutory Instrument 92/2014 created a legal framework that regulates riverbed mining, also
known as alluvial mining, and gives further support to the need to conduct an environmental
impact assessment (EIA) beforehand. Alluvial mining has been proven to harm aquatic
ecosystems which in turn affected their ability to continue to offer ecological services. The
ecological services that such ecosystems produce include water for irrigating crops and for
drinking by farm animals and communities. Where water courses are diverted or polluted, this
affects the livelihood of communities and spurs further environmental damage. The principal
25 SAICM, ‘Pilot Project to support African Countries in overcoming barriers in implementing the UN
GHS’,<saicmknowledge.org/projects/pilot-project-support-african-countries-overcoming-barriers-implementing-
un-ghs> (accessed 23 January 2023).
26 Environmental Management (Control of Hazardous Substances) (General) Regulations, 2018 p2853
27 Steckling, N., Bose-O’Reilly, S., Pinheiro, P. et al. The burden of chronic mercury intoxication in artisanal
small-scale gold mining in Zimbabwe: data availability and preliminary estimates. Environ Health 13, 111
(2014). https://doi.org/10.1186/1476-069X-13-111
28 FAO, Environmental Management (Control of Alluvial Mining) Regulations, 2014. Statutory Instrument 92 of
2014, [CAP. 20:27], <faolex.fao.org/docs/pdf/zim170806.pdf> (accessed 23 January 2023).
22
regulation sought to initially protect water courses and wetlands by creating a 200-meter buffer
from the highest flood level in which mining, processing plants, washing plants, ore stockpiles
and slimes dams would not be allowed. Further restrictions imposed in the buffer zone include
banning the use of the highly toxic chemicals mercury and cyanide. In addition, the regulation
in section 5(4) empowered a magistrate to direct that remedial action should be taken to restore
degraded ecosystems during alluvial mining, at any point of cessation and upon mine closure.
Statutory Instrument 92/2014 was subsequently amended by the Environmental Management
(Control of Alluvial Mining) (Amendment) Regulations, 2018 (No. 1), published in Statutory
Instrument 258 of 2018 which was in turn repealed by the Environmental Management (Control
of Alluvial Mining) (Amendment) Regulations, 2021 (No. 2) published in Statutory Instrument
92 of 2014. The amendment introduced the following key provisions in a bid to foster the
conservation of watercourses and wetlands:
The no mining buffer was increased from 200 meter to 500 meter; and
mining operations were permitted to only go as deep as the original bed of the water
system and not deeper than the distances specified in the geological report of the water
system.
There are also a number of strategies that have been developed since 2013 that relate to waste
management. These include the Harare Integrated Solid Waste Management Strategic Plan
(2021-2025) and the Draft National Strategy for the Environmental Sound Management of
Plastic Waste in Zimbabwe (2022-2025). These strategies will address waste management
including plastic waste which is a big threat to the realisation of the right to a clean environment
as provided for in the Constitution and the Environment Management Act.
3 Policy Developments Since 2013
Equally, there are a number of important policy developments that have taken place since 2013.
While policies, by their nature, are not enforceable in a court of law, they are a statement of
intent that can be harnessed or marshalled for the realisation of environmental rights depending
on political will.
3.1 The National Development Strategy (NDS 1)
The NDS1 recognises environmental protection and climate resilience as key enablers for the
attainment of vision 2030 and the SDGs.
29 If climate change and its impacts on human rights
are not addressed, then it will affect the realisation of environmental rights as envisaged by the
Constitution. The relevance of NDS1 to the promotion and protection of environmental rights
as human rights is very evident under strategies to achieve improved climate action. These
include the improvement of pollution and waste management, land and ecosystems
management and protection, strengthening capacity building and awareness on climate change
adaptation and mitigation and promoting low emission development pathways and the
reduction of GHG and alternative energy sources.
29 Government of Zimbabwe, ’National Development Strategy 1, January 2021-December 2025. Towards
Prosperous and Empowered Upper Middle-Income Society by 2030’, 2020, p.205
<www.dpcorp.co.zw/assets/national-development-strategy-1_2021---2025_goz.pdf> (accessed 23 January
2023).
23
3.2 The Zimbabwe National Climate Change Response Strategy (NCCRS)
This strategy was developed as a response to the acknowledgement that Zimbabwe is
experiencing climate change and variability.
30 Its objectives is to coordinate Zimbabwe’s efforts
to respond to climate change through mitigation and adaptation. This is reflected in its vision,
mission, and goal. The goal of the NCCRS is to mainstream climate change adaptation and
mitigation strategies in economic and social development at national and sectoral levels through
multistakeholder engagements.
31 The strategic objectives of the NCCRS lay a very strong
foundation for developing laws, policies and strategies that can help the country to respond to
the climate crisis and its impacts on human rights including environmental rights.
3.3 The National Environmental Policy and Strategies (NEPS)
32
The NEPS is a national environmental policy that is recognizes environmental rights as human
rights and the climate crisis. This is provided under its key policy principle provisions.
33 The
provisions are the same as the ones under section 73 of the Constitution and section 4 of the
Environmental Management Act. The policy recognises the importance of energy to
Zimbabwe’s economic development but is also recognizes the contribution of the energy sector
to climate change especially one generated from coal-fired power stations, hydro petroleum
products, propane gas and wood fuel. It notes that “coal-fired power stations release
greenhouses to the atmosphere and gases that form acid rain. These and other emissions from
fossil fuels may initiate climate change”
34. To address climate change problems that may be
caused by the use of fossil fuels that emit GHGs, the policy calls for the promotion of renewable
sources of energy through the introduction of appropriate incentives and investments.
35
Furthermore, it calls on the government to observe and support international conventions and
protocols designed to promote the use of more energy-efficient and environmentally friendly
energy sources.
36
It further recognises that oil and gas operations can result in environmental pollution, including
air pollution that contributes to climate change. Based on this understanding, the policy calls
for the consideration of sustainability, biodiversity, and ecology to counteract environmental
impacts, including climate change. The policy lays a broad foundation for the development of
laws and policies to deal with climate change thereby protecting and promoting environmental
rights as human rights.
30 Government of Zimbabwe, Ministry of Environment and Natural Resources Management. ‘Zimbabwe
National Climate Change Response Strategy’,2013, <swm-
programme.info/documents/20142/407481/ZWE_MI_WE_20141231.pdf/00ca1677-6620-cce6-5fb3-
367a57cfe71b?version=1.0&t=1626442737947&>(accessed 23 January 2023).
31 Ibid., Goals 1-3,p.9.
32 Government of Zimbabwe,Ministry of Environment and Natural Resources Management, ‘National
Environmental Policy and Strategies’,2009. <swm-
programme.info/documents/20142/407481/ZWE_PO_WE_20090630.pdf/28c96ebd-e12e-5248-5cb9-
7b22781e6782?t=1626442767886> (accessed 23 January 2023).
33 Ibid., Section 3.1.
34Ibid., Section 6.2.5.
35 Ibid., Section 6.2.5.
36 Ibid., Section 6.2.5
24
3.4 The National Climate Policy
The objective of the National Climate Policy is to “guide climate change management in the
country, enhance the national adaptation capacity, scale up mitigation actions, facilitate
domestication of climate related global policies and ensure compliance with to the global
mechanisms”
37. It also further provides an overarching framework for the country in form of
basic principles and guidance under which the National Climate Change Response Strategy
(NCCRS) and other climate related strategies can be implemented.
38
3.5 The Renewable Energy Policy
This policy framework provides a pathway of how Zimbabwe can move away from fossil fuels
that are among the major contributors of GHG emissions that cause climate change. The good
thing is that Zimbabwe has an abundance of renewable energy sources that can be harnessed as
alternatives to create a sustainable energy portfolio in the country. The Renewable Energy
Policy thus builds on the priorities and aspirations of the Zimbabwe National Climate Policy
and the country’s efforts to reduce GHG emissions.
39 One of the policy's primary objectives is
setting overall targets for renewable energy based on the Nationally Determined Contributions
(NDCs) interventions.
3.6 The National Wetlands Policy
Wetlands play a very important role in the realisation and protection of environmental rights
including the right to water. It is against this background that the Government of Zimbabwe
adopted a Wetlands Policy.
40 The policy aim to “establish an effective and efficient institutional
and legal framework for integrated management and wise use of wetlands which will provide
an enabling environment for the participation of all stakeholders”.
41 The policy is based on a
number of principles that are all at the core of sustainable development. These include
integration, precautionary, polluter pays, collaborative and participatory and global
dimension.
42 To improve and enhance wetlands management, the Government of Zimbabwe
adopted the National Wetlands Management Guidelines.
43
4 Institutional Arrangements
The institutional framework is important in the environmental rights agenda since it raises
awareness in communities concerning their rights and because it supports them to be able to
effectively participate in the management of the environment and to take action through
litigation where necessary.
44 In this context, it is noteworthy that the key institutions ensuring
the monitoring of environmental rights from a regulatory standpoint, include the Environment
37 Government of Zimbabwe,Ministry of Environment, Water and Climate,National Climate Policy,2017.
38 Ibid., p. 2.
39 Government of Zimbabwe, Ministry of Environment, Water and Climate, supra note 37.
40 Government of Zimbabwe, Ministry of Environment, Climate, Tourism and Hospitality Industry, Zimbabwe
Wetland Policy,2020.
41 Ibid., Section 5.
42 Ibid., Section 6.
43 Ministry of Environment, Climate, Tourism and Hospitality Industry, National Wetlands Management
Guidelines,2021.
44 T. Madebwe, ‘A rights-based approach to environmental protection: The Zimbabwean experience’, 15(1)
African Human Rights Law Journal (2015), 110-128.
25
Management Agency (EMA), the Zimbabwe Parks and Wildlife Authority (ZIMPARKS) and
the Forestry Commission. The mandate of these institutions is outlined in their respective
enabling Acts. The sections that follow will discuss the evolution of the institutional framework
over the last decade including funding mechanisms and programmes implemented that raise
awareness and enhance the capacity of communities to uphold their environmental rights in
terms of section 73 of the Constitution.
4.1 Environmental Management Agency
The role of the EMA appears to primarily focus on coordination as espoused in section 10(1)
of the Environmental Management Act. The function of the agency includes the formulation of
quality standards on air, water, soil, noise, vibration, and waste management; and assisting and
participating in any matter on the management of the environment. In addition, the Act extends
EMA’s mandate to:
45
the preparation of guidelines for the preparation of a National Environmental Action
Plan (NEAP);
regulating the disposal of environmental discharges and wastes;
overseeing the Environmental Impact Assessment (EIA) process;
develop model environmental bylaws;
coordinate the state of the environment formulation; and
Undertake work deemed necessary for the protection of the environment.
Although many SIs have been enacted to regulate various areas that include chemicals and
waste, namely SI 10/2007 & SI 268/2018, water and solid waste (SI 6/2007), air pollution
(SI72/2009), and ecosystems (SI 7/2007), SI 61/2009, it is through institutions such as
Environmental Management Agency that they are implemented. In order to facilitate the work
of the agency, the Environmental Management Act in section 42 establishes funding
mechanisms that include grants from parliament and the government, donations, the proceeds
of Carbon Tax and any other funds that may accrue from its operations. These sources of
funding are meant to establish a predictable source of financial resources to sustain the
operations of the agency. In its annual report
46, the agency indicated that the bulk of its revenue
in 2020 accrued from environmental licence fees and penalties. Additional support was granted
from the treasury for the capital projects that included the purchase of a state-of-the-art
emergency response van. Although additional support is provided as grant funding through
projects sponsored under MEAs there is still a need for additional resources to cater for capital-
intensive projects such as the reclamation and rehabilitation of disused mines in terms of section
10(1)(b)(xii) of the EMA Act.
Despite the limitations in funding, notable milestones in the capacity-building of the agency
over the last decade include:
47
the accreditation of the agency’s laboratory to ISO17025 in 2012 and expansion of its
analytical capacity from 12 methods to 34 methods covering folia, fauna, water and soil
samples - a key enabler for producing data on environmental quality;
roll-out of vehicular emissions and point source monitoring programmes in 2013;
45 Environmental Management Act [CAP20:27] Section 10
46 Environmental Management Agency, “Annual Report”, 2021
47 Environmental Management Agency, “Annual Report”, 2022
26
establishment of a biomonitoring programme to monitor variations in biota as a result
of water pollution episodes in 2014;
establishment of a specialised Environmental Law Enforcement Unit in collaboration
with the Zimbabwe Republic Police (ZRP) to expedite the opening and processing of
dockets for environmental offences and ticket follow-ups
expansion of the ambient water monitoring programme to monitor dam and lake water
quality in 2021;
enhanced chemical emergency capacity through the procurement of a state-of-the-art
HAZCHEM response vehicle and training of responders in 2021;
development of several guidelines including the Wetland Utilisations Policy and Guide,
draft guidelines for the design and operation of landfills, guidelines for the Local
Environmental Action Plans (LEAPs);
establishment of an ambient air quality monitoring system for particulate pollution
focusing on PM10 and PM2.5 in 2022.
4.2 Environmental Management Board
The Environmental Management Act established an Environmental Management Board.
48 The
board controls and manages the functions of the Environmental Management Agency including
giving guidance on the promotion and protection of environmental rights as human rights. The
board also has access to all the ministers when carrying out its mandate which means that it can
approach any minister on environmental rights and environmental issues whenever it deems it
necessary. This is very important in promoting integrated decision making and cooperative
governance. The board also has the authority to hold hearings on any matter and it can sit as a
court.
49 The board is further required to consult experts on technical issues which can include
problems related to environmental rights as human rights as well as to climate change.
50 An
Audit and Risk Committee was established under the board in order to align the agency’s
operations with the corporate governance tenets.
4.3 National Environmental Council
The establishment of the National Environmental Council (NEC) is provided for in terms of
section 7 of the Environmental Management Act. The NEC plays an important role in
facilitating the enjoyment of communities’ right to a clean, safe and healthy environment. The
duties of the NEC, in terms of section 8, are to advise the minister on policy formulation and
give directions on the implementation of the Environmental Management Act, national goals
and objectives and determine policies and priorities for the protection of the environment. The
NEC was set up and constituted in 2013.
4.4 The Standards Enforcement Committee (SEC)
The Committee was established under section 55 of the Environmental Management Act. As a
committee of the board, its functions as provided in section 56 include the following:
a) To advise the board on how to come up with criteria and procedures for the
measurement of water quality; and
48 Government of Zimbabwe, supra note 16, Section 11.
49 Ibid., Section 27
50 Ibid., Section 26
27
b) To recommend to the board minimum water standards
While the committee‘s constitution is currently biased towards water which is good in that water
quality is a key component of the realisation of environmental rights, it should be broadened to
include other aspects of environmental rights as human rights. Although the Act provides for
the SEC it has not been constituted as a result affecting the formulation of environmental quality
standards that should otherwise form the basis of setting pollution reduction targets. The
ambient waster standards adopted for benchmarking water quality are derived from the
discharge standards set in terms of the SI 6/2007.
4.5 Parliamentary Portfolio Committee on Environment, Climate and Tourism
Another important institution is the Parliamentary Portfolio Committee on Environment,
Climate and Tourism. The committee has an oversight role over the Executive that includes
the following:
a) To consider and review all international treaties , conventions and agreements relevant
to it , which are from time to time negotiated , entered or agreed upon
b) To monitor , investigate , inquire , or make recommendations relating to any aspect the
legislative programme or policy or any other matter it may consider relevant to
government departments falling within the category of affairs assigned
The Committee‘s oversight role is broad enough to include issues that may relate to
environmental rights as human rights and climate change.
4.6 Climate Change Management Department
To facilitate the coordination and mainstreaming of climate change programmes in the country,
the Government of Zimbabwe established a Climate Change Management Department in the
then Ministry of Environment, Water and Climate. The department has overseen the
development of several climate-related policies and strategies which are key for mitigating the
effects of climate change. Furthermore, the policy is a key enabler for accessing multilateral
funds from the Global Environmental Facility and other sources of climate finance.
5 Judicial Developments Since 2013 That Reflect Judicial Awareness of Environmental
Rights
One of the ways of assessing the constitutional environmental rights clause and its role in
promoting environmental rights as human rights is through judicial developments that have
taken place since 2013. The protection and promotion of environmental rights entails finding a
balance between developmental and environmental issues for which courts play a crucial role.
51
Similar to other rights, constitutional environmental rights mean nothing if they are not
adjudicated, enforced and developed by courts.
52 It is through the interpretation by courts that
the right to a clean and healthy environment can promote environmental conservation and
sustainable development. The way the courts interpret and adjudicate environmental rights as
human rights, provides guidance to both the executive and the legislature. This is particularly
51 L.J. Kotze, ‘The constitutional court’s contribution to sustainable development in South Africa’, 6 (2)
Potchefstroom Electronic Law Journal (2003).
52 C.B. Soyapi, ‘The role of the judiciary in advancing the right to a healthy environment: eastern and southern
African perspective’,PhD Thesis. (Northwestern University, 2018).
28
useful as they attempt to balance two important competing demands, namely economic
development and environmental protection.
53
This balance is usually achieved through the concept of sustainable development. Sustainable
development is defined as a conceptual framework for achieving economic development that is
socially equitable and protective of the natural resource.
54The concept of sustainable
development is made up of a number of principles that derive largely from the Rio Declaration
on Environment and Development.
55These include the polluter-pays-principle56, the
precautionary principle,
57 EIA,58 and access to information and public participation.59 The
protection of property rights, locus standi, the awarding of costs and the role of the judiciary in
developing the law, are also among some important principles that can be used to determine
how the constitutional environmental rights have been promoted and advanced by the judiciary
in Zimbabwe since the adoption of the 2013 Constitution. This section consequently reviews
and analyses environmental jurisprudence that has been developed through court decisions
since the adoption of the new Constitution. Several cases have been brought before the courts
based on section 73 of the Constitution which builds on section 4 of the Environmental
Management Act.
6 Understanding Section 73 of the Constitution
Since the analysis of the court decisions will be based on section 73 of the Constitution, it is
worthwhile to reflect on its provisions. The environmental rights provision in the Constitution
of Zimbabwe is modelled after those of Kenya, Uganda and South Africa.
60 Section 73 provides
as follows:
(1) Every person has the right
(a) to an environment that is not harmful to their health or wellbeing; and
(b) to have the environment protected for the benefit of present and future generations through reasonable
legislative and other measures that –
(i) prevent pollution and ecological degradation
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting economic
and social development.
61
(2) The State must take reasonable legislative and other measures, within the limits of the resources available
to it, to achieve the progressive realistation of the rights set out in this section.
62
It is important to note that while this provision is justiciable, its realisation is progressive and
some have argued that this may explain why significant progress in the realisation of
53 F. Ndhlovu, ‘An appraisal of the judicial enforcement of environmental protection in Zimbabwe’, Master
Thesis, (Northwestern University, 2021).
54 Dernbach, supra note 7.
55 United Nations General Assembly, Report of the United Nations Conference on Environment and
Development, A/CONF.151/26 (Vol. I), 1992.
<www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_2
6_Vol.I_Declaration.pdf> (accessed 24 January 2023).
56 Ibid., Principle 16.
57 Ibid., Principle 15.
58 Ibid., Principle 17.
59 Ibid., Principle 10
60 Soyapi, supra note 52.
61 Section 73(1)(a)(b), p.37
62 Section 73 (2)
29
environmental rights has not been achieved even though a decade has passed since the
enactment of the 2013 Constitution.
63 Section 73 of the Constitution builds on the provisions
of section 4 of the Environmental Management Act. Its provisions are as follows.
64
Both the constitutional and EMA provisions are based on the concept of sustainable
development. With regards to the enforcement of the fundamental human rights and freedoms,
under which section 73 falls, the Constitution provides as follows:
(1) Any of the following persons, namely –
(a) any person acting in their own interests
(b) any person acting on behalf of another person who cannot act for themselves
(c) any person acting as a member, or in the interests, of a group or class of persons
(d) any person acting in the public interest
(e) any association acting in the interests of its members
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter, has
been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration
of rights and an award of compensation.
65
The expanded locus standi which is provided for in section 85 is very important when it comes
to environmental rights and their role to address the negative effects of climate change. It is
important to note that environmental rights, as provided in section 73, are not absolute but are
subject to limitation. With regards to the limitation of rights, section 86 of the Constitution
provides as follows that “[t]he fundamental rights and freedoms set out in this Chapter must be
exercised reasonably and with due regard for the rights and freedoms of other people”.
66 This
means that the rights and freedoms, including environmental rights as human rights, can be
limited in those cases where they infringe on other people’s rights including property rights.
7 Analysis of Court Decisions
In analysing the constitutional environmental right since its implementation in 2013, it is
important to note that there are limited cases that have been brought before the courts based on
section 73. As Soyapi observes “[t]here is little scholarship and commentary on the right to a
healthy environment in Zimbabwe or on the cases in which the right has been an issue (both
before and after the 2013 Constitution)”
67. Soyapi further argues that there is a dearth of
scholarship analysing the development, or lack thereof, of the right to a healthy environment in
relation to the work of the courts.
68 While Soyapi’s observations are correct in that there are
limited cases that have been adjudicated by the courts based on section 73 for a number of
reasons, there is evidence that there is an increasing interest, to test its justiciability, from
stakeholders that include civil society organisations, residents associations, the Environmental
Management Agency and community-based organisations and individuals alike. Several cases
have been brought before the Administrative Court, the High Court and the Supreme Court.
63M. Dhliwayo, ‘A critical examination of the scope, content and extent of environmental rights in the
Constitution of Zimbabwe’ Master Thesis (Midlands State University, 2016).
64 See section 4 of the Environmental Management Act
65 Ibid., Section 85.
66 Government of Zimbabwe, supra note 3, Section 86(1).
67 Soyapi, supra note 52.
68 Ibid.
30
7.1 The Concept of Sustainable Development
In the case of Harare Wetlands Trust and Newlands Residents Association v New Life Covenant
Church and Others
69, the judiciary had an opportunity to make a pronouncement on the concept
of sustainable development. The first respondent New Life Covenant Church was building a
superstructure on area which is a wetland. The applicants averred that the development would
result in detrimental and irreparable harm to the environment in violation of sections 73 and 4
of the Constitution and the Environmental Management Act respectively which provides for
the right to a clean and health environment which is not harmful to one ‘s health and
encompassing sustainable development. Justice Chinamora pointed out the need to strike a
balance between development and sustainable environmental management which is at the heart
of the concept of sustainable development. He articulated the concept by noting as follows:
in each individual case the particular economic and benefits of planned action must be assessed and weighed
against the environmental costs, alternatives must be considered which would affect the balance of values.
70
Based on the need to strike a balance between economic development and environmental
protection, the court was able to grant both a declaratory order and an interdict that was sought
by the applicants. This judgement shows that judges are increasingly becoming aware of the
importance of environmental rights as human rights.
7.2 Environmental Impact Assessment
In RCM Civil (Private) Limited v. Petrotrade (Private) Limited,
71 the issue centred on the
construction of a service station without obtaining an Environmental Impact Assessment (EIA)
certificate from the Environmental Management Agency as required by the Environmental
Management Act. The construction was stopped by the EMA. In his ruling the judge pointed
out that the defendant had begun construction of the service station without an EIA certificate
which was in direct violation of section 97 of the Environmental Management Act. Under the
first schedule of the Act, petrochemical projects including service stations, are among the
projects that should not be implemented in the absence of an EIA certificate. The plaintiff was
trying to recover costs from the defendant. The judge noted that the plaintiffs knew the
requirements of the law. Furthermore, they had employed a specialist consultant whose services
they ignored when he advised on the need to obtain an EIA certificate before the
commencement of the project. He concluded by saying that:
any project to do with fuel or petroleum products is potentially hazardous to the environment and the
community. It would not in my view be in the interests of public policy to allow the plaintiff to recover under
circumstances where it has brazenly acted in violation of the law. To do so would be to send the wrong signal
to would be offenders.
72
This shows judicial understanding and consciousness about environmental issues.
The importance of an EIA certificate before the commencement of activities was also reinforced
in the case of Debsham (Private) Limited v. The Provincial Mining Director for Matabeleland
69 See Harare Wetlands Trust and Newlands Residents Association v. New Life Covenant Church and Others,
HC 3440/19.
70 Ibid.,p.1
71 See RCM Civil (Private) Limited v. Petrotrade (Private) Limited , HH 34-20, 2020.
72 Ibid., p. 4
31
South and the Provincial Mining Director for Matebeland North and Others.
73 In that case, the
respondents had been granted mining permits and rights in the absence of an EIA certificate.
This was based on the wrongful understanding and assumption that an EIA certificate was not
a prerequisite for the issuance of a mining certificate. Issuing mining licences, certificates and
permits in the absence of an EIA certificate is in violation of sections 97 and 100 of the
Environmental Management Act. The respondents argued that the EIA certificate was only
required for the commencement of mining operations or activities and not before. In granting
the declaratory order against mining authorities, the judge pointed out that trying to get an EIA
certificate after the granting of mining licences, certificates and permits is like trying to close
the gate after the horse has bolted. The judge noted that the Environmental Management Act,
based on the first schedule, has a requirement for an EIA certificate before mineral prospecting,
mineral mining or processing and concentrating and quarrying can be undertaken.
This understanding and interpretation are also reinforced in the recent case of Shangani Holistic
(Pvt) Ltd v. Pearline Mineral Exploration (Pvt) Ltd.
74 In this case, the High Court through
Justice Musuthu granted an interim interdict to the applicant prohibiting Pearline Mineral
Exploration from conducting an aeromagnetic over the applicant‘s property before carrying out
and obtaining an EIA certificate from the Environmental Management Agency as required by
section 62 the Environmental Management Act. The judge correctly noted that, in terms of
section 97 of EMA, it was unlawful for one to carry out mineral prospecting. The judge had
this to say:
The mere fact that one had obtained an Exclusive Prospecting Order (EPO) under s90(2) of the Mines and
Minerals Act does not in exempt them complying with section 97 (1) of the EMA Act. It follows that the
respondent conducted the mineral prospecting in violation of the law.
75
He further noted that exploration had the potential to cause harm to the environment. The
importance of this case with regards to EIA is aptly captured by Mitsi when he noted that:
[t]he statement by the judge with regards to the requirement for EIA before commencement of mining related
activities should be closely looked at by mining companies as an indication of how the judiciary is likely to
look at future cases brought on an urgent basis for interdicts. Mining companies should make efforts to comply
with environmental legislation as they invest in the mining sector. Failure to comply may delay projects or
affect their projects leading to financial loss. The case is a flashpoint on litigating environmental rights and
mining rights.
76
Similarly, in the case of Fidelis Chima and Zimbabwe Environmental Law Association v.
Zimbabwe Zhongxin Mining Group Tongmao Coal Company (Pvt) Ltd and Others
77, the court
upheld the need to conduct an EIA and obtain a certificate before carrying out mining activities
that include exploration, prospecting, and drilling in the Sinamatella Camp of Deka Safari Area
within the Hwange National Park. The respondents had obtained a Special Mining Grant and
had commenced exploration without an EIA certificate as required by the EMA Act.
73 See Debsham (Private) Limited v. The Provincial Mining Director for Matabeleland South and the Provincial
Mining Director for Matebeland North and Others, HB 11/17, HC 538-16, 2017.
74 See Shangani Holistic (Pvt) Ltd v. Pearline Mineral Exploration (Pvt) Ltd. , HH 4074/22, 2022.
75 Shangani Holisitic (Pvt) Ltd v. Pearline Mineral Exploration (Pvt ) Ltd
76 S. Mtisi, ’Environmental Impact Assessment at the Mining and Environmental Litigation Flashpoint’, Africa
Institute for Environmental Law (2022).
77 See Fidelis Chima and Zimbabwe Environmental Law Association v. Zimbabwe Zhongxin Mining Group
Tongmao Coal Company (Pvt) Ltd and Others, HH 4888/20, 2020.
32
In the Hillside Residents Association v Glorious All Time Functions (Private) Limited and
Others
78 case, the applicant wanted to establish/build a function or a wedding venue on a
wetland without an EIA certificate. In granting the order to stop the construction of the venue
without EIA certification, the judge exemplified that the applicant Hillside Residents
Association was representing the public interest, specifically residents’ rights to protection of
Harare’s natural resources in terms of section 73, 77 and section 4 of the Environmental
Management Act.
Such cases also help to promote the concept of sustainable development. More often than not,
projects have been approved based on economic considerations at the expense of the
environment. In some cases, a cost-benefit analysis through a Strategic Environmental Impact
Assessment (SEIA) may show that it would be better to not proceed with the project taking into
account the irreparable environmental and ecological damage that it would cause.
7.3 Precautionary Principle
The precautionary principle is aptly demonstrated in the case of The Cosmo Trust and Others
v. City of Harare and Others.
79 The case pertained to the awarding of a development permit
by the City of Harare for the construction of 121 clusters houses on part of stand within a
wetland called Meadows of Monavale which attracts a range of birds and mammals. It was
argued during the hearing that the wetland attracts a diverse range of migratory birds from as
far as Europe, Cameron, Kenya and the Democratic Republic of the Congo for breeding
purposes. However, there were no scientific studies that determined what attracted these birds
to this wetland. In that case, Justice Mandeya relied heavily on the Ugandan case of Amooti
Godfrey Nyakaana v. National Environmental Management Authority and 6 Others
80 to provide
an understanding of the concept of the precautionary principle. He noted that the precautionary
principle alongside the polluter-pays principle is at the core of the concept of sustainable
development. He defined it as requiring the State to anticipate, prevent and attack the causes of
environmental degradation. Consequently, where there is a serious threat of serious and
irreversible damage, lack of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
In this case, all the parties agreed that the proposed area for the construction of the housing
units was a wetland. However, the scientific studies that had been conducted were not clear on
the potential impact of the construction of houses on the wetland and the bird habitat. The court
correctly reasoned that this was a proper case for the application of the precautionary principle
as allowing the project could result in massive degradation and irreparable destruction of the
wetland thereby affecting the bird habitat and the natural water processes performed by a
wetland.
The same reasoning regarding the precautionary principle was applied in the case of
Munyaradzi Mutsai and Others v. City of Harare and Others.
81 This case was concerned with
the construction of Rhodesville Holding Bay. The respondents argued that the holding bay was
not being constructed on a wetland. The court held that “in the absence of any scientific
78 See Hillside Residents Association v. Glorious All Time Functions (Private) Limited and Others, SC 327/19,
2019.
79 See The Cosmo Trust and Others v. City of Harare and Others, AC3/19, 2019.
80 See Amooti Godfrey Nyakaana v. National Environmental Management Authority and 6 Others, CA 5/11,
2011.
81 See Munyaradzi Mutsai and Others v. City of Harare and Others, HH 835/17, 2017.
33
certainty that the Holding Bay is not being constructed on a wetland, it is prudent to err on the
side of caution by granting a provisional order”
82. The court’s reasoning in these two cases on
the precautionary principle is admirable and is comparable to the reasoning by the court in the
South African case of Fuel Retailers Association of Southern Africa v. Director General
Environmental Management, Department of Agriculture, Conservation and Environment,
Mpumalanga and 11 Others.
83
7.4 Public Participation and Access to Information
One of the ways of promoting environmental rights is through access to information and
encouraging public participation. In their rulings, the courts have tried to promote both
publication participation and access to information. The cases in which projects have been
stopped because of failure to carry out an EIA before their commencement, promote public
participation and access to information. During the EIA process, interested and affected
stakeholders are consulted which contributes to a participatory policy and decision-making
process related to environmental rights. Stakeholders also have the opportunity to object to
projects during the EIA process. The EIA process also provides access to information as
provided for in section 62 of the Constitution and section 4 of the Environmental Management
Act. During that, EIAs stakeholders are informed about projects that they may not be able to
know about in the absence of an EIA. With this vital access to information, they are able to
participate effectively in the policy and decision-making process and hold duty bearers
accountable for the violation of their environmental rights.
In the case of Community Water Alliance v. Environmental Management Agency and Minister
of Environment, Tourism and Hospitality Industry,
84 the Community Water Alliance, an
organisation with vested interests in service delivery and the right to water which relates to the
preservation of wetlands, tried to gain access to EIA reports from the Environmental
Management Agency. While unsuccessful, this was an attempt to promote accessibility of
information as provided for under section 4 of the EMA Act and section 62 of the Constitution.
They were challenging section 108 of the Environmental Management Act which restricts
members of the public from making copies or reproducing copies of the EIA reports. They
argued that this restriction infringed the right to access information that is provided for under
the Constitution. They further argued that the provisions of SI 7 of 2007
85, which required the
payment of 3000 Zimbabwean dollars to gain access to the EIA reports for inspection, also
effectively limits the access to information. The applicant was seeking a declaratur to have
section 108 declared unlawful and inconsistent with the constitutional provision on access to
information and SI 7 of 2007 to be ultra vires section 62 of the Constitution. The court ruled as
follows:
a) Section 180 of EMA was held to be ultra vires section 62 to the extent it prohibited the reproduction in
possession of EMA and was therefore null and void
b) Members of the public were allowed to make inspections on the machine-readable record and make notes
of the Environmental Impact Assessment report and copies thereof
82 Ibid., p.129.
83 2007(6) SA 4 (CC)
84 See Community Water Alliance v. Environmental Management Agency and Minister of Environment, Tourism
and Hospitality Industry, HH258/19, 2019.
85 Environmnental Management ( Environnental Impact Assement and Ecosystems Protection ) Regulations ,
2007.
34
c) The Ministry of Environment, Climate, Tourism and Hospitality Industry was ordered to take reasonable
measures to review the fees in line with reasonable standards to promote rather than impinge access to
information.
86
The decision by the court is a remarkable judgment of our time in the environmental justice
sector. It is progressive and vindicates fundamental rights that are provided for under section
62 of the Constitution.
87 Access to information is a key anchor for effective public participation
and a lack of it results in speculations, mistrust and, at times, conflicts.
Cases such as The Cosmo Trust, Shangani Holistic (Pvt) Ltd v Pearline Mineral Exploration
(Pvt) Ltd, RCM (Private) Limited v Petrotrade and Debshan (Private) Limited v The Provincial
Mining Director Matebeland South and Others must also be viewed from this perspective of
promoting access to information.
7.5 Locus Standi
Before the adoption of the 2013 Constitution, one of the major drawbacks to promoting
environmental rights as human rights was locus standi. Applicants were required to demonstrate
that they had a direct and substantial interest in the case. This was meant to curb busy bodies
who would bring cases to court for frivolous and vexatious reasons and a lot of cases were
dismissed based on this technicality.
88 The respondents argued in this case that the applicants
lacked locus standi, yet the judge ruled the contrary. While the judge made the correct decision
on locus standi, he based it on international and foreign law. There was no need for that as the
Constitution is very clear in terms of section 85 which provides for expanded locus standi. In
this context, Dhlakama notes that:
[w]hile it went at length to look at the interpretation of standing for an environmental organization in a foreign
jurisdiction, the question could swiftly have been answered based on section 85 of the Constitution. The
Constitution incorporates environmental rights in section 73. This right is clearly subject to the expanded locus
standi provision just like all other rights within the Declaration of rights.
89
7.6 Property Rights and Environmental Protection
Property rights is another opportunity that the courts have had to deal with the constitutional
right to a clean and healthy environment that is not harmful to one’s health. The Constitution
provides for concrete property rights.
90 While property rights are fundamental rights, the courts
have had the opportunity to apply the limitation of rights and freedoms clause provided in
section 86 of the Constitution with regards to property rights to promote environmental rights
as human rights. This was very evident in the case of the Cosmo Trust and Others v City of
Harare and Others.
91 In that case, Justice Mandeya relied heavily on the Ugandan case of
86 Community Water Alliance and Anor v. City of Harare and Anor , HH 194-20
87 R. Ncube, ‘Case note – Community Water Alliance v Environmental Management Agency HH 258/19’, 2019,
<zela.org/case-note-community-water-alliance-vs-environmental-management-agency-hh-258-19/> (accessed
24 january 2023).
88 Dhliwayo, supra note 63.
89 T.Dhlakama , J.Tsabora and M.Dhliwayo,‘Harare Wetlands Trust and Newlands Residents Association v. Life
Covenant Church and Others:A commentary on Wetlands Conservation v Physical Development in Zimbabwe’,
2020, <zela.org/download/harare-wetlands-trust-and-newlands-residents-association-v-life-covenant-church-
and-others-a-commentary-on-wetlands-conservation-versus-physical-development-in-zimbabwe/> (accessed 24
January 2023).
90 Government of Zimbabwe, supra note 3, Section 71.
91 See Cosmo Trust and Others v. City of Harare and Others, SC 172/19, 2019.
35
Amooti Godfrey Nyakaana v National Environmental Management Authority and 6 Others.
With regards to property rights and the environment, The Chief Justice of Uganda noted as
follows:
A person cannot degrade a wetland and cause pollution to other citizens simply because he owns the land.
This would defeat the whole purpose of the Constitution which requires that citizens may own land, but not
cause pollution or degradation of the environment which may affect other people and the country as a whole.
92
He further stated that “[t]he individual‘s interest must be viewed in the context of the larger
interest of society as a whole and in the context of the Constitution and the laws made there
under”
93.
Similar approaches of limiting property rights to promote environmental rights as human rights
were used in the cases of Harare Wetlands Trust and Another v. Life Covenant Church and
Others
94 and Munyaradzi Mutsai and Others v. Harare City and Others95 respectively. In both
cases, environmental rights triumphed over property rights.
7.7 Award of Costs
This awarding of costs against the losing party have been a big stumbling block for the
promotion and protection of the constitutional right to a clean and healthy environment. The
promotion of this right is dependent on an active civil society that is able to litigate on matters
of public interest related to the environment even if they lost. It is through public interest
litigation that courts are able to give scope and content to the constitutional environmental right.
However, if punitive costs are awarded to those that litigate in the public interest in
environmental cases when they lose, this will discourage future public interest litigation.
This principle was evident in the case of Harare Wetlands Trust and Newlands Residents
Association v. Life Covenant Church and Others. The court ruled that the costs application were
to be borne by the defendant. This award was based on the manner in which the defendant
defended its case as it lacked evidence. The defendant argued that the area was not a wetland
despite the fact that an independent consultant, hired by the defendant, clearly stated in its EIA
report that the area was a wetland. In awarding the costs against the defendant, Justice
Chinamora said that “[t]he first respondent cannot escape an exemplary order of costs in
defending these proceedings. The applicants have been put out of pocket by having to deal with
an opposition which lacks merit”.
96
This approach by the courts where by costs are not awarded against those that brings cases that
are in the public interest, helps to promote Public Interest Litigation (PIL). Zimbabwe courts
can also further learn from South Africa courts on the awarding of courts in public interest
environmental litigation. Exemplary cases include Silvermine Valley Coalition v. Sybrand van
der Spuy Boerdrye and Others
97 and Hichange Investments (Pty) Ltd v. Cape Products
Company Ltd t/a Pells Products and Others.
98
92 Ibid.
93 Ibid.
94 See Harare Wetlands Trust and Another v. Life Covenant Church and Others, HH819/19, 2019.
95 See Munyaradzi Mutsai and Others v. Harare City and Others, HH835/17. 2017.
96 Harare Wetlands Trust and Anor v Life Covenant Church and Others , HH 819-2019, HC3440/19
97 See Silvermine Valley Coalition v. Sybrand van der Spuy Boerdrye and Others, (1) SA 478 (C), 2002.
98 See Hichange Investments (Pty) Ltd v. Cape Products Company Ltd t/a Pells Products and Others,
JDR00040, 2004.
36
7.8 Development of the Law by the Courts
The court judgements have also resulted in the development of environmental law. In the case
of Shangani Holistic (Pvt) Ltd v. Pearline Minerals Exploration (Pvt) Ltd , the respondent
argued that the applicant should have approached the Environmental Management Agency for
relief support in stopping prospecting activities as an alternative remedy as provided under
section 97 (3) of the Environmental Management Act. In dismissing the argument for an
alternative remedy, the judge said that:
The victim of the illegal exploration may well fold their arms, and wait for the Agency to issue the order
referred to in section 97 (3) of the EMA Act. Such an argument is clearly unsustainable since a party, in the
position of the applicant with all the massive investments at stake, would not choose to remain nonchalant
while its rights were being trampled upon.
99
Similar arguments of seeking an alternative remedy under the Environmental Management Act
have been raised in the case of Zimbabwe Environmental Law Association and Others v. Anjin
Investments and Others.
100 In that case, the plaintiffs wanted a declaratory order against the
defendants who were discharging wastes into the Odzi, Singwizi and Save Rivers. The court
rejected the arguments by the defendants regarding the need to exhaust remedies offered under
the EMA Act pointing out that the High Court has the discretion to hear and offer relief when
approached at the instance of an interested person.
These cases and the judgements by the High Court are help developing/advancing the law with
regards to the constitutional environmental rights clause. One of the ways that rights are
vindicated or claimed is through litigation including public interest litigation. Judgements such
as these help stakeholders to develop trust in the law that assures them that when they approach
courts for adjudication regarding violations of their environmental rights the courts are ready
to hear their cases and where their rights have been violated, they will get remedy. One of the
reasons for public interest in environmental litigation is to promote environmental justice and
environmental jurisprudence. These two cases show that the courts are in the right direction.
The case of Augur Investments v. Minister of Water and Climate and Environmental
Management
101 also encourages the advancement of environmental rights jurisprudence. In
this case, the Minister of Environment declared an area a wetland through a general notice in
terms of the Environmental Management Act. The applicant wanted the order to be declared a
nullity. While the judge ruled in favour of the applicant by declaring it a nullity on the basis
that the minister cannot declare a wetland outside of what is defined by the EMA Act as such,
she made some observations that can be used to promote environmental rights as human rights.
She observed as follows:
It is hoped that the citizens of Zimbabwe will vigorously pursue and enforce their rights as provided in terms
of the Environmental Management Act, lest we be judged and found wanting, by future generations, for failing
to play our part in preserving and protecting the environment.
102
99 Shangani Holistic (Pvt) Ltd v Pearline Minerals Exploration (Pvt) Ltd, supra note 74, p.6
100 See Zimbabwe Environmental Law Association and Others v. Anjin Investments and Others, HH523/15,
2015.
101 See Augur Investments v. Minister of Water and Climate and Environmental Management, HH278/15, 2015.
102 Ibid.
37
This is an encouragement by the judge for stakeholders like communities and civil society
organisations to litigate in pursuit of their environmental rights as provided under the EMA Act
and the Constitution. The essence of the judge’s point here is that the more stakeholders litigate,
the more the courts will have an opportunity to give life and meaning to environmental rights
as provided in the Constitution and EMA Act, through their judgements. Although Soyapiis
critical of the judge in that this was an opportunity for the court to give meaning to the right to
a healthy environment by interpreting the Act in detail which it failed to do
103, this must
nonetheless be seen as a clarion call to public interest environmental litigation. Since the Augur
Investment judgement, we have seen a steady increase on environmental litigation cases based
on the EMA Act and constitutional provisions.
8 Ongoing and Proposed Legal and Policy Reforms
There are ongoing legal and policy reforms that present an opportunity to further strengthen the
protection and promotion of environmental rights as human rights and fight the climate crisis.
The ongoing legal reforms include the amendments of the Mines and Minerals Act
104, the
amendment of the Parks and Wildlife Act
105and the amendment of the Environmental
Management Act
106. Regarding climate change, the development of a Climate Change Act is
in the process. The Climate Change Bill Principles have already been submitted and presented
before the cabinet.
Concerning policies, the review of the Wildlife Policy of Zimbabwe and the National Forest
Policy, present valuable/promising opportunities to establish clear policy directions on
strengthening environmental rights as human rights and fighting the climate scourge.
9 Emerging Findings from the Analysis
From the analysis, several findings with regards to the protection and promotion of
environmental rights and the fight against the climate crisis are emerging. These are reflected
in the legal and policy developments and provisions, institutional provisions, and court
judgements.
Firstly, it is evident that Zimbabwe has adopted a number of laws, policies and institutional
frameworks since the 2013 Constitution that are aimed at advancing and promoting
environment rights as human rights and addressing climate change. Concerning climate change,
Zimbabwe’s actions primarily focuses on policies that are specific to climate change such as
the Climate Policy and the Zimbabwe National Climate Change Response Strategy. An
evaluation of said policies showed that there is a recognition and understanding of the threats
and risks that climate change poses to Zimbabwe’ developmental ambitions as reflected in the
NDSI. The responses include both adaptation and mitigation strategies. However, when it
comes to laws, the response has been mainly through Statutory Instruments. While policies are
needed, the next logical step for Zimbabwe to comprehensively deal with the human rights
103 Soyapi, supra note 52.
104 Government of Zimbabwe, Mines and Minerals Act Chapter 21:05, 2021,
<www.veritaszim.net/sites/veritas_d/files/Mines%20and%20Minerals%20Act%20Cap%2021-
05%20updated%20to%201%20August%202021.pdf> (accessed 23 January 2023).
105 Government of Zimbabwe, Parks and Wildlife Amendment Bill, 2021. See also the proposed Principles to
amend the Parks and Wildlife Act, Chapter 2014 of 1975.
106 Environmental Management Amendment Bill (2021)
38
impacts of climate change, is to enact a Climate Change Act.
107 This is what Kenya, Uganda
and Nigeria have done, with South Africa also being in the process of enacting one.
Promisingly, momentum seems to be gathering in Zimbabwe towards the enactment of a
Climate Change Act. Recently, the Minister of Environment, Climate Tourism and Hospitality
Industry submitted a Memorandum to the cabinet on the Principles of The Climate Change
Bill.
108
Secondly, there are several institutions that have been put in place to advance environmental
rights as human rights and address the negative impacts of climate change. However, while
these institutions exist, there appears to be a general agreement that these could be improved
through the establishment of a Climate Change Authority. Such an institutional body could be
particularly valuable in an advisory role on climate change to conduct regular and specific
commissioned reviews and research on climate change-related topics. Uganda has an Advisory
Committee under its National Climate Change Law. Kenya has a National Climate Change
Council. Therefore, as Zimbabwe works towards the enactment of a Climate Change Act, this
is something that should be considered.
Thirdly, there is a general increase in environmental cases that are being brought before the
courts, especially over the past five years, primarily focusing on wetlands and mining. Wetland
cases are predominant in Harare spearheaded by Residents Associations while mining cases
occur mainly in rural areas. Most cases are based on project proponents’ failure to carry out an
EIA before the commencement of projects. EIAs are a very important way of promoting
environmental rights and the courts have generally ruled favourably in those cases where an
EIA was not conducted. While the work by the judiciary in the last five years is commendable,
it can further be enhanced through the establishment of specialised courts focusing on
environmental crimes similar to other jurisdictions.
109 The Environmental Management
Agency’s Strategic Plan
110, advocates for the establishment of such a specialised environmental
court.
Fourthly, while climate change is a big threat to the realisation of environmental rights as human
rights, none of the cases assessed dealt specifically with climate change. Climate change is
implied through section 73 of the Constitution and section 4 of the EMA. With the lack of a
Climate Change Act, issues related to it are currently embedded into the right to a clean and
healthy environment. However, a specific Climate Change Act can help to spur specifically
tailored litigation. In South Africa, where there is currently no Climate Change Act either,
litigants have nonetheless addressed climate change through the inclusion in the mandatory
EIAs. In the South African case of Earthlife Africa Johannesburg v. Minister of Environmental
Affairs and Others
111, it was argued that a climate change EIA was to be considered before the
grant of an EIA certificate. A climate change impact assessment must be conducted before an
environmental authorisation is granted. This aims to enable relevant decision makers to
determine firstly whether the proposed activity, which was in this case the construction of a
coal-fired power station, should be allowed at all. If allowed, this also ought to establish which
107 M. Dhliwayo, ‘The Urgent Need for a Climate Change Act in Zimbabwe’, 2022, <zela.org/the-urgent-need-
for-a-climate-change-act-in-zimbabwe/> (accessed 24 January 2023).
108 Minister of Environment, Climate, Tourism and Hospitality Industry, Honorable N.M Ndhlovu, MP “
Memorandum to Cabinet on the Principles of the Climate Change Bill” ( 2021).
109 Africa Institute for Environmental Law , “ Feasibility of the establishment of Special Environmental Courts in
Zimbabwe”,(2022).
110 Republic of Zimbabwe, ‘Environmental Management Strategic Plan 2021-2025’,2020.
111 See Earthlife Africa Johannesburg v. Minister of Environmental Affairs and Others,65662/16.
39
conditions and safeguards should be imposed to limit the GHG emissions that contribute to
climate change.
10 Conclusion
From the analysis, it is evident that the Government of Zimbabwe has taken legal, policy and
institutional measures to advance the protection and realisation of human rights that are
provided for in the 2013 Constitution. After initial hesitation, there is evidence that the support
and interest of stakeholders to vindicate the right to a clean and healthy environment that is not
harmful to one’s health has increased/grown over the past five years as reflected by the
strengthening of environmental laws and policies as well as an increase in court cases,
especially with regards to mining and wetlands protection. This contributes to cautious
optimism among researchers and the broad public alike. While the courts are fulfilling their
obligations to develop environmental jurisprudence, this can be greatly enhanced through the
establishment of specialised environmental courts.
40
3 The Conflict Between Mining Investment and the Communal Land Rights of
Indigenous Communities in Zimbabwe: Case Study of Nharira Hills
Emmaculate Murawu, Blessing Manezhu and Tendai Ganduri
*
Abstract
The chapter draws from section 10 of the Communal Land Act [Chapter 20:04] which allows
the President to alter purposes of communal land usage. Under the country’s second President
Emmerson D. Mnangagwa, Zimbabwe envisions becoming a middle-income economy by 2030.
This has led to rigorous diplomatic and economic re-engagement efforts with the global
community. As such, foreign direct investments are a priority and mining has become a leading
industry that is being exploited at an unprecedented rate to facilitate the country's expansion.
This, however, has far-reaching consequences for indigenous land inhabitants such as the
Nyamwenda of Nharira Hills who were evicted to pave way for mining by a Chinese company.
Guided by the conflict theory, the chapter explores the consequences for human rights that such
mining developments have, especially for local communities. Data was collected through
multiple methods including desk reviews, documentary analysis, and key informant interviews,
transect walks and observation. The Nyamwenda and Nharira communities at large experienced
numerous losses largely of intangible socio-cultural value. While Zimbabwe enshrines most
international human rights statutes in its Constitution, the Nharira case exemplifies a lagging
position in terms of implementation. Without opposing economic development, the chapter
proposes reconciliation of Acts of Parliament to the Constitution for sensitivity towards
indigenous peoples’ property rights. Further, the chapter proposes a clear implementation
framework in terms of legal and administrative procedures in cases where land is reserved for
mining activities. .
Keywords: Nharira, constitution, land rights, indigenous people, Chinese investments
1 Introduction
The chapter takes a socio-legal approach to analyse human rights consequences of mining
developments in Zimbabwean communities. A special consideration of the case of the
Nyamwenda of Nharira Hills located about twenty-four kilometres to the west of Harare
towards Norton is hereby made. The Mwembe people of Moyo Ziruvi clan commonly known
as the Nyamwenda of Nharira Hills are officially recognised as custodians of the Nharira
heritage. The group was, however, forcefully evicted from their inhabited land to pave way for
mining activities. In turn, the mining caused the destruction of the Nyamwenda’s cultural and
religious shrines among other socio-cultural artefacts. The community, therefore, bemoans a
forsaking of the nation’s history as evidenced through an escalating dearth of reverence towards
traditional heritage sites and practices. Consequently, the community suggests that socio-
economic ills such as droughts and diseases devilling the country are consequences of ‘careless’
decisions that forsake the nation’s traditional values.
1 Beyond that, the key argument is that
land constitutes a person’s identity, and a separation is comparable to living without a soul. In
a rather appalling manner, which numerous human rights conventions have sought to redress,
the circumstances at Nharira are indicative of a perpetuating indigenous peoples’ loss of a voice
* The authors are all human rights professionals and researchers active in Zimbabwe.
1 Emphasis is added. This is in allusion to the conscious decisions made to advance economic merits over
preservation of indigenous people’s cultural heritage which is essentially of national significance.
41
and authority.
2 Unfortunately, these events continue despite the existence of a Constitution that
advances indigenous people’s rights including the right to property and enabling circumstances
to prosperity.
3
The purpose of this chapter is threefold. In the first instance, the chapter assesses Zimbabwe’s
adoption of regional and international human rights principles in respect of indigenous people’s
rights and economic developments. Next, an exploration of the human rights the Nyamwenda
and Nharira community at large perceive to have lost because of the mining developments in
their community is done in view of the law as it is. The paper aims to use those insights to
provide recommendations that facilitate human rights-based futures for communities. Those are
then put into relation with the often competing need for economic advancement. . Zimbabwe is
celebrating a decade of its Constitution which came into effect in 2013. As such, this chapter
is a contribution to the assessment of the country’s progress in terms of implementation.
2 Background: A Land, History and Socio-Cultural Legacy – The Significance of the
Nharira Hills
The Nharira Hills are a collection of independently standing hills. Despite the distances between
them, the hills are conjoined by their historical, cultural and traditional religious uses. Studies
have often suggested that the term Gwiranenzara Hills collectively refers to the Nharira Hills,
alas, they are a collection. Each of the hills has its own name and cultural significance. Further,
they have a complementary role in the performing of traditional rites. Namely, the hills are
Gwiranenzara, Bvopfo, Chembudzi, Chikomo chaDzapasi, Chikomo chaMachembere,
Gwendesu, Mafemera, Washamira, Ziware raMachembere, Zvingwere and Zvematura.
4
Gwiranenzara, Bvopfo and Ziware raMachembere have alternative names which are
Gwiranemuzvo, Stonehearst and Sam Levy, respectively.
The hills have almost similar cultural artefacts and uses, and some are interconnected with each
other through underground tunnels. Most known are the Somerby tunnels which interlink with
the Chinhoyi caves.
The reigning chief of the Mwembe people of the Moyo Ziruvi clan, Chief Ziruvi took over
following the death of his father the celebrated Chief Mushore and acclaimed spirit medium
who dwelt amongst the Nharira Hills.
5 Chief Mushore is believed to have mostly lived in
Bvopfo and Gwiranenzara whereas the latter is believed to be his final resting place.
The Gwiranenzara Hills were declared a national heritage site in 2000 but became a target of
mining activities soon after the death of Chief Mushore. Out of respect, which extended to
socio-political obeisance, Sekuru Mushore had derailed plans of an even earlier occupation at
2 The chapter considers indigenous peoples as those with particular social and cultural practices and ancestral
ties with their land.
3 Government of Zimbabwe. Constitution of Zimbabwe. 2013, Section 282.
<constituteproject.org/constitution/Zimbabwe_2013.pdf> (accessed 3 January 2023).
4 On average, these are the hills that local interviewees could identify. This is significant in this chapter as it
correlates to their perceived losses. There are other hills as suggested by Morreira and Illif (2021) and these are;
Chevakadzi, Chiburi, Chiturike, Chizhanje, Chemukoreka, Gnoriono, Marimizike, Maringapasi and Zvetsoko.
See S. Morreira and F. Iliff, ‘Sacred Spaces, Legal Claims: Competing Claims for Legitimate Knowledge and
Authority over the Use of Land in Nharira Hills, Zimbabwe’, in A.S. Steinforth and S. Klocke-Daffa (eds.),
Challenging Authorities, (Palgrave Macmillan, Cham, 2021). p. 301.
5 See T. Chara, ‘Stranger than Fiction. Revisiting Sekuru Mushore’s mysteries’, The Sunday Mail, 14 March
2021, Revisiting Sekuru Mushore’s mysteries | The Sunday Mail> (accessed 20 September 2022).
42
Gwiranenzara. In the later turn of events even the periphery of Gwiranenzara Hills was
occupied and active mining currently takes place. Besides the Gwiranenzara Hills being Sekuru
Mushore’s resting place, the Moyo royal ancestry are also buried in the caves. Additionally,
artefacts of socio-cultural and economic value such as grains, jewellery, and pottery were also
hidden in the secret tunnels.
6 As such, the hills are sacrosanct religious and cultural entities.
Due to the perceived sacredness of these underground places, Chief Ziruvi acknowledged that
he would only go there when summoned by the spirits, especially to Gwiranenzara.
Gwiranenzara which are synonymously called Gwiranemuzvo Hills also have nharira
dzemuzvo. These are grains believed to have been stored away by the ancestors and the name
strongly resonates with the hills’ name. As applicable to other hills, this is reflective of a
traditional Shona naming system that derives from a person or object’s most special or
outstanding attribute. Amongst other uses, the hills are used for traditional ceremonies such as
mukwerera.
7 As the Nyamwenda peoples argue, the hills are not only crucial to the Nharira
community but the entire nation. Despite the peoples’ belief or appreciation of the traditional
practices, the Nharira chief pleads for good rains and fortunes on the nation’s behalf.
Community members acknowledged that the rains are mostly abundant and harvests bounty
even during the harshest farming seasons across the country. This has perpetuated the belief
that such circumstances are due to observation of traditional rites particularly by the
community’s traditional leadership.
The history of the Nyamwenda reflects their dedicated custodianship of the Nharira Hills as
religious and cultural sites. During the colonial era of the country in the 1960s, Sekuru Mushore
had a gentleman’s agreement with Ross Hinde the then legitimate white settler farmer at Saffron
Walden Farm. The duo agreed that the former could have three months long stays once per
annum to perform rain-making ceremonies in the hills.
8 Despite this agreement, a desire for
permanent residency on the ancestral land caused Sekuru Mushore and his community to
illegally settle on the farm. This was resisted through evictions and burnings of the huts of the
illegal tenants by the colonial law-keepers. Post-independence, several developments ensued
and these include the fast-track land reform programme, assessment and verification of the
“cultural, historical and archaeological significance of the Nharira Hills. This saw the hills
being gazetted a national heritage status in 2000 for purposes of protecting the burial sites, rock
paintings, cave deposits and the grain bins.”
9
During the colonial era, the Nharira area was split into large commercial farms namely Rasper,
Kilworth, Lilfordia, Saffron Walden, and Bardwell also known as Stonehurst. Post-
independence, the Land Acquisition Act gazetted the fast-track land reform programme which
saw white settlers being evicted. The farms were then divided into smaller plots for the national
land settlement programme.
10 The land was redistributed to individuals and entities through
official land offer letters, leases or permits and through this process, Sekuru Mushore obtained
an offer for the Saffron Walden Farm. He also facilitated the issuance of offer letters to members
6 Morreira and Iliff, supra note 4, p. 296.
7 A traditional rain-making ceremony.
8 Morreira and Iliff, supra note 4, p. 301.
9 Morreira and Iliff, supra note 4, p. 306.
10 Chapter 20:10 which is now the Gazetted Land (Consequential Provisions) Act Chapter 20:28 in terms of
Section 16B and Schedule 7 of the former Constitution (Constitution of Zimbabwe Amendment (No. 17) Act,
2005), and now Section 72(4) of the current Constitution (Constitution of Zimbabwe Amendment (No. 20) Act,
2013) and the Land Acquisition Act [Chapter 20:10] (now the Gazetted Land (Consequential Provisions) Act
[Chapter 20:28]).
43
of his family and nominated community members for purposes of safeguarding other hills and
performing cultural rites.
11
The land reform programme created a scenario whereby sections of the Nharira Hills fell within
different plots. The Mwembe people in question became residents of an area falling within
Somerby Farm. The land remained communal land as it was not redistributed during the land
reform programme due to its small size. They settled there in 2001 under Sekuru Mushore as
custodians of the Somerby caves. It is from this location that in December 2018 the community
was evicted and relocated to three hector settlements at Stonehurst Farm. The evictions were
done to pave way for mining activities by Chinese-owned Berrytech Investments (Pvt) Ltd at
Bvopfo Hills. The company first started in 2007 but had operations suspended after the
community’s outcry. Operations were later resumed in 2012 after the company was issued an
Environmental Impact Assessment (EIA) by the Environmental Management Agency. By
October of the same year, the company had started re-pegging. It was only at the beginning of
2019, after evictions of the Nyamwenda the previous December that the company began
reconstructing a mine at the site.
12 This was not an isolated incident as other cultural custodians
at sites such as Sam Levy and Kilworth were also evicted. The Ministry of Mines has allegedly
continuously eluded providing information on issued mining rights. However, it is believed that
mining claims have been granted for the entire Nharira area.
13 There is a general belief that the
mining activities, which also led to the evictions of the Nyamwenda community, began after
the partitioning of districts. This exercise transferred Nharira from Mhondoro North to Zvimba
South District and later to Zvimba East District in 2000 and 2008 respectively. The community
argues, in contrast, that the entire Nharira traditionally falls under the Nyamwenda jurisdiction.
It is noteworthy that the traditional authority was transferred to Chief Zvimba and Beperere of
the Gushungo clan after the administrative partitioning, allegedly, for political gain by the then
President Robert Gabriel Mugabe.
14 As such, Chief Ziruvi lost his official recognition and was
excluded from consultative protocols. He remains uninformed of developments in the
community including mining trajectories at the periphery of Gwiranenzara which is a short
distance from his residence. Further, it is alleged that following the community’s initial outcry,
the mining activities were continued out of need to honour existing relations between
Zimbabwe and China. However, the operations were supposed to be ceased after the lapse of
permits. Yet, the contrary occurred with the granting of widespread expansions. .
The Indigenous and Tribal Peoples Convention upholds respect and protection of cultures,
spiritual values, land and territories.
15 A relationship with land constitutes identify forms of
human beings yet, unfortunately, is often overlooked.
16Increasingly, indigenous groups are
threatened with being uprooted from their natural territories to pave way for economic
advancements.
17
11 Morreira and Iliff, supra note 4, p. 303.
12 Ibid, p. p.303.
13 Morreira and Iliff, supra note 4. p. 30.
14 Ibid., p. 310.
15 See L. Swepston, ‘Indigenous and Tribal Peoples Convention, 1989 (No. 169)’, in The Foundations of Modern
International Law on Indigenous and Tribal Peoples (Brill Nijhoff) p. 345..
16 S. Weil, ‘The Need for Roots: Prelude to a Declaration of Duties Towards Mankind’ (Ark. New York, 1987).
p. 43.
17 Centre on Housing Rights and Evictions (COHRE) COHRE International Secretariat, ‘Global Survey on
Forced Evictions: Violations of Human Rights 2003-2006,’ December 2006. < COHRE Forced Evictions Global
Survey No.10 2006 by The Centre on Housing Rights and Evictions (COHRE) - Issuu > (accessed 12 September
2022).
44
2.1 Conceptual Framework
The chapter is guided by the conflict theory. The theory was first proposed by Karl Marx in
1848 and propounds issues of competition and structural inequality. A key argument of the
theory is that due to competition for limited resources, society is drawn into conflicts and social
order becomes obtainable through domination and power.
18 Instead of conformity and
consensus, the theory explains how the vulnerable are suppressed. The Nyamwenda and Nharira
community at large are feeble against the status quo which is enabled through the legislature.
The loss of normal habitats impacts mental, psychological and spiritual well-being and this
results in conflicts at an early stage. Further, cultural norms are eroded due to forced evictions
and they are replaced by prescribed norms.
19 Accordingly, the Nharira case constitutes a typical
example of how the absence of war and physical demonstrations does not imply peace. The
theory explains influential and powerful actors prescribe outcomes in society through means
often void of consent.
3 Methodology
Data was collected through a desk review, documentary analysis, legal analysis and
extrapolation. Additionally, primary data was collected through key informant interviews with
traditional leaders, in-depth interviews with members of the community as well as transect
walks and observation which complemented narratives provided by the community.
Participants in key informant interviews included the chief, a community member involved in
traditional rites such as the mukwerera ceremony, a member of the Nyamwenda police and the
evictees. Most informants were generous in their responses and provided a detailed history of
the contestations over the land, losses and preferred future. The evictees were apprehensive and
generally unwilling to disclose information. They unanimously suggested to engage the chief
as he was the most suitable informant in terms of knowledgeability and authority. Having
explained the importance of hearing their personal experiences and reiterating their rights as
informants, the respondents mostly remained silent through a series of questions. This provoked
questioning of whether “intimidations or violence often supported by the state” had occurred in
this case of forced evictions.
20 The answer was not far as the experiences of force, threats and
physical assault upon them had been well documented.
21
Due to the limited responses that the relocated informants offered, each interview was a
pertinent complimentary piece in generating a complete script from the displaced Nyamwenda.
Interviews were then extended to indigenous locals who had an appreciation of the local affairs
and who also had a relationship with the hills despite not having been displaced. While focus
group discussions had been scheduled, the reluctance of participants regrettably led to the
abortion of the planned data collection. As an alternative, additional interviews were conducted
with migrant locals for an assessment of an outsiders’ envisaged value of the hills. A tour with
18 P. Kivisto (ed), Illuminating social life: Classical and contemporary theory revisited, (Pine Forge Press,
2011). p. 155.
19 C. L. Robertson and S. J. Hoffman, ‘Conflict and Forced Displacement. Human Migration, Human Rights and
Science Health’. Nursing Research, (2014),
<journals.lww.com/nursingresearchonline/FullText/2014/09000/Conflict_and_Forced_Displacement__Human_
Migration,.1.aspx >, (accessed 21 November 2022).
20 Amnesty International, ‘Indigenous People,’ 2022, <amnesty.org/en/what-we-do/indigenous-peoples/ >,
(accessed 10 September 2022).
21 Kubatana, ‘ZLHR Challenges Eviction of Community Members from Sacred Heritage Site’, Kubatana.net, 18
December 2018, <kubatana.net/2018/12/18/zlhr-challenges-eviction-community-members-sacred-heritage-site/
> (accessed 3 September 2022).
45
three participants, each from the respective categories (evictee, indigenous, and migrant locals)
provided insights into spaces held dear and where possible, the extent of land degradation
because of the mining activities.
4 The Lived Realities
The locals and affected Nyamwenda were particularly shocked by having had neither
consultative engagements nor information about the land privatisation plans and scheduled
evictions communicated to them. Yet, this was not even the culmination of the disrespect for
the communities' right to be consulted as they later became aware of the administrative
dissections of the land and consequently the newly presiding traditional leadership. Neither
consultations nor notices before immediate evictions and consequent mining activities at the
hills were issued to any member of the concerned community. All informants stated
unanimously that they were solely given 24 hours to vacate their land and properties. . There
was a heavy police presence and the Nyamwenda faced physical violence. In the absence of
civil engagements, the entire process translates to forced evictions. As a common form of
violence, forced evictions are coercive and aim to dislodge habitants from their housing or land
whereas, typically, the evictees have little to no legal protection.
22 . From the list of
characteristics that describe forced evictions, the following apply to the Nharira case: removal
from dwellings against will, use of force, disregard of human rights obligations and action
motivated by the need to pave way for mining activities.
23 There is a shocking lack of
accountability considering the contradiction between the legal framework and what transpired
at Nharira Hills. The sections below consider the legal consequences of the experience.
4.1 A Divergent Course from Conventions on Human Rights
The Nharira case reflects an ambush approach on community. Military studies reveal as a
technique, ambush works to surprise, weaken, capture, or kill the enemy.
24 Supported by force
through a show of power, the strategy psychologically disbands people and for the Nyamwenda,
it caused submission and immediate relocation to allocated spaces. This was, however, after
having spent a night directly exposed to elements of the weather as they were barred from
accessing their homes.
25 In contravention of the protection of the United Nations Declaration
for Human Rights (UNDHR), the action disregarded human dignity. The Nyamwenda were
obstructed from the right to shelter, subordinated under force by the police and had no
opportunity to access legal representation. Before considerations of the Nyamwenda
community as an indigenous group, these basic human rights applied nonetheless based on
simply being human.
26
22 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 7: The right to
adequate housing (Art.11.1): forced evictions’, CESCR, 20 May 1997, <refworld.org/docid/47a70799d.html >
(accessed 8 September 2022).
23 Ibid.
24 United States Marine Corps, ‘Actions on the Objective – Ambush’, Marine Corps Training Command,
<benning.army.mil/Infantry/DoctrineSupplement/ATP3-
21.8/chapter_08/CombatPatrols/ActionsontheObjective_Ambush/index.html#:~:text=6%2D102.,or%20an%20as
sault%20by%20fire > (accessed 5 September 2022).
25 Kubatana, supra note 21.
26 See UNDHR, Article 1 and Article 7.
46
The UNDRH emphasises equality, freedom from discrimination, human dignity, the right to
remedy by a competent tribunal and non-interference towards the realisation of rights.
27
Amongst other conventions, developments at Nharira contravened the International Covenant
on Civil and Political Rights (ICCPR)
28, the African Charter on Human and People’s Rights
(ACHPR)
29 and the Convention on the Rights of the Child.30 The latter ought to ensure the
consideration of the best interests of the child as a primary factor in all instances.
31 Regrettably,
the state failed as children were among the evictees and slept outside their normal shelters which
was a clear violation of the provisions of the Zimbabwean Constitution.
32 The interests of the
child constitutes one of the four principal pillars for interpreting and implementing the
children’s rights. The events at Nharira represented an undeniable failure to uphold them.
To the Nyamwenda, not being priorly informed was as degrading as the evictions. One
indigenous local commented, “pane kakubatena senge tisiri vanhuwo (there is treatment of
others as lesser beings)”. The informant was not directly affected by the evictions, but, as a
resident within an area with progressing mining developments, there was apprehension that a
similar crisis would befall them. The lack of engagement, in this case, amounts to deprivation
of an opportunity to participate. Indigenous people are already disproportionately more
vulnerable to such infringements which is only worsened by poverty; a condition they
commonly live in.
33
There was an opportunity for participation through dialogue but this was circumvented. The
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the national
Constitution compel consultations between the State and concerned communities to ensure
informed consent before initialising legislative or administrative measures that would affect
concerned communities.
34’
4.2 The Constitution and Implementation Frameworks
The Constitution of Zimbabwe is the supreme law of the country, and any opposing practices
or inconsistent circumstances would be legally void.
35 The Constitution weaved into itself the
United Nations fundamental human rights. As such, rights to dignified treatment, personal
security, equality, right to property and non-discrimination are salient in the document.
36 Rural
local authorities and traditional leaders are responsible for the administration of communal land
guided by relevant Acts of Parliament.
37 In the case of privatisation of communal land; the
Communal Land Act
38 and the Mines and Minerals Act39 are respectively applicable.
27 Ibid., Articles 2-3, 5, 8 and 30 respectively. These reiterate the need for equality and protection before the law,
the right to property and the promotion of human rights..
28 See Article 26 which asserts equity and equality before the law.
29 Adopted by the second ordinary session of the Assembly of the African Union in Maputo on 13 September
2000, CAB/LEG/66.6; entered into force on 25 November 2005; ratified by Zimbabwe on 5 September 2008.
30 See UNDHR, Article 3.
31 Kubatana, supra note 21.
32 See Government of Zimbabwe, supra note 3, Section 19.
33 Amnesty International, supra note 20.
34 See UNDHR, Articles 10, 15,17 and 19.
35 Government of Zimbabwe, supra note 3, Chapter 1 (2) (1).
36 Ibid., Chapter 4, Part 1 (46) (1b).
37 Ibid., Chapters 14 and 15.
38 Communal Land Act, Chapter 20:04, passed as Act 20 of 1982 amended 2016.
39 Mines and Minerals Act, Chapter 21:05, Revised Laws of Zimbabwe, 1996, an Act to consolidate and amend
the law relating to mines and minerals, Supplement to the Government Gazette, p. 659-752.
47
Communal land usage is limited to residential, agricultural, and pastoral purposes. The
inhabitants of the land are mostly identifiable as a traditional community and have
distinguishable land rights; either individually or collectively. The evicted Nyamwenda
identified as a collective group religiously and culturally connected to the Nharira Hills. The
rights of indigenous groups are enshrined in the Constitution which conditions that deprivation
should only be in the interests of “[…] defence, public safety, public order, morality, health or
town and country planning; or […] in order to develop or use that or any other property for a
purpose beneficial to the community […]”.
40 In case of change of land usage, those concerned
should be issued a notice of intention to acquire the property, be compensated fairly as agreed
between both parties and in case of any contestations, have an opportunity to be heard before
the law.
41 The human rights enshrined in the Constitution were, therefore, not maintained in
this case as the battle for legal arbitration only ensued after resettlement. Where evictions
should be done or are inevitable, the Constitution requires that the process be “fair, reasonable,
necessary and justifiable in a democratic society based on openness, justice, human dignity,
equality and freedom”.
42
4.2.1 The Communal Land Act – Consequences for Inhabitants
The Constitution has a comparatively progressive position on human rights but the supporting
instruments leave gaps for rather regressive outcomes. Communal land in Zimbabwe is
governed under the Communal Land Act. The constitution describes communal land as “land
set aside under an Act of Parliament and held in accordance with customary law by members
of a community under the leadership of a chief”.
43
Under the Communal Land Act, authority over the land is vested in the President and managed
on his behalf by responsible ministers and rural district councils. This means the President can
declare when communal land ceases to be as such to pave way for other developments in the
best interests of the country. Before the execution of any plans, the concerned Minister in his
or her representative role of the President is mandated to consult with the rural district council
under whose jurisdiction the land in question falls.
44 Traditional leadership in form of chiefs or
village headmen have a co-dependant relationship with local government authorities in so far
as communal land planning is concerned.
45 Accordingly, the State holds de jure ownership over
communal land while rural communities and individuals exert de facto rights. A dweller on
communal land does not have a title and can therefore, neither sell, mortgage, lease nor transfer
the land. Usufruct rights in respect of agriculture, housing and pasture are awarded by local
councils communities that have traditionally used the land in question
46 The Communal Land
Act stipulates that the responsible Minister can set aside areas of communal land for respective
developmental plans, engage the rural district council under whose jurisdiction the land falls
and accordingly publish a notice in the Government Gazette.
47 The Act further provides the
need to make the approved plans known to the people in the areas affected “[…] as appear to
him [designated Minister] sufficient to disseminate the terms of the notice within the area of
the land concerned.”
48
40 Government of Zimbabwe, supra note 3, Chapter 2 Part, Section 71 (3b).
41 Ibid., Section 3c.
42 Ibid., Section 86 (2).
43 Ibid., Section 332.
44Ibid., Chapter 2, Section 8 (2) a1.
45 Government of Zimbabwe, supra note 3 Section 8 (2) a-b.
46 Ibid., Section 8.
47 Ibid., Section 10.
48 Ibid., Section 10 (3) d.
48
The Act leaves fairness subjective to the authorities’ discretion. As happened in the case of the
Nharira, occupants of a communal property can consequently be presented with what amounts
to an eviction notice without prior or adequate knowledge. Consequently, inhabitants are
deprived of a timely opportunity to seek legal counsel and representation as per their
constitutional rights.
49
Considering the aforesaid, the grounds for legal contestation that due processes were followed
in the case of Nharira are fertile. In so far as recalling state land concerns, the law is clear; it
allows repossession of communal land and relocation of affected inhabitants as was done.
Effectively, there is neither security nor communal land tenure rights in Zimbabwe. Communal
land can be recalled when the state deems it necessary. This provision only exempts settlers by
virtue of the Mines and Minerals Act.
4.2.2 Vision 2030 and the Mines and Minerals Act
The President of Zimbabwe, Emerson Dambudzo Mnangagwa, ushered in a re-engagement
drive to mend and expand Zimbabwe’s economic and diplomatic relations with the global
community. Relations with the West in particular are historically marred by tensions on grounds
of perpetration against human rights and regressive economic reforms.
50 These contested
circumstances caused the country to be sanctioned with economic and diplomatic restrictions
since the Mugabe era and these have been retained to date.
51 Upon ascension to the country’s
highest office, President Mnangagwa introduced his working mantra Zimbabwe is open for
business. This was validated by the National Development Strategy (NDS1) 2021-2025,
National Investment Policy (NIP) and Investments Guidelines and Opportunities in Zimbabwe
(IGOZ). Collectively, NDS1, NIP and IGOZ are the blueprint towards attaining the
Government of Zimbabwe’s vision of an upper middle-income society by 2030. In the IGOZ,
mining comes first among opportunities available for appropriation.
52 Irrefutably, the industry
is lucrative and highly prioritised. This seems utilitarian given its 60 per cent contribution to
export earnings and 16 per cent contribution to the national gross domestic product (GDP).
53
Besides the open call to the global community for business investments, China dominates the
industry.
The Mines and Minerals Act was first introduced during the colonial era and has been in
existence for a longer period than NDS1 and the NIP. The latter reinforce the Act into a
powerful provision towards expanding and safeguarding mining interests in Zimbabwe.
54 A,
communal land is entirely available for prospecting.
55 Communal land inhabitants have surface
rights to land, even after discovery of minerals on one’s household. Only those with mining
49 See Government of Zimbabwe, supra note 3, Section 71.
50 M. Musiwaro, ‘Zimbabwe’s Economic Meltdown: Are Sanctions Really to Blame?,’ The Washington
Quarterly (2021), p. 95.
51 Ibid.
52 Government of Zimbabwe, ‘Investments Guidelines and Opportunities in Zimbabwe,’ January 2018,
<http://www.zimfa.gov.zw/index.php/media-centre/downloads?download=8:investment-guidelines-and-
opportunities-in-zimbabwe>, (accessed 8 September 2022), p. 19.
53 London School of Economics Consulting, ‘Sustainability Impact Assessment in Support of Negotiations with
Partner Countries in Eastern and Southern Africa in view of Deepening the Existing Interim Economic
Partnership Agreement Case Study: Mining Sector in Zimbabwe and Madagascar’, London School of Economics
and Political Science. May 2021, <lse.ac.uk/business/consulting/reports/sia-in-support-of-the-negotiations-with-
esa5 > (accessed 2 September 2022).
54 Government of Zimbabwe, supra note 3, Section 10 (3) d.
55 Government of Zimbabwe, supra note 3, Section 26 (a).
49
rights are entitled to conduct mining activities. It is worth noting that most people in Zimbabwe
live on communal land. Consequently, the larger population are a vulnerable group in terms of
land ownership and rights.
56 Miners have more superior land rights which leaves affected
communal land dwellers up for eviction or co-existence with the miner. Where co-existence is
considered, inhabitants under Communal Land Act should not infringe the miner’s interests.
57
In the event that relocations are the best way forward, compensation respective to entitlements
as provided in the Act through which land is occupied should be made
58. Royalties from the
mining are channelled to the State. There are no provisions for direct payments to communities
but, the local authorities can receive payments from mining companies under directive of the
Minister.
59
5 Findings
Zimbabwe is celebrating ten years since the declaration of human rights through its Constitution
of 2013. While the provisions for protection and further developing the scope of economic,
social and cultural rights in Zimbabwe are upheld in the Constitution, the country still lags
behind in terms of implementation. Research findings from the Nharira case reflect that
economic, social and cultural rights largely remain endowed on paper. On the other hand,
implementing statues such as the Miners and Minerals Act are segregational. We argue that in
consideration of the law as it is, the evictions could have been lawfully executed. Further, we
observe how human rights are typically disregarded in such processes. We also dispute the
fairness of the prevailing legal provisions in view of how economic considerations are of higher
regard compared to intangible components that define the socio-cultural grounding of the
human existence. The existence of legal provisions that leave gaps for inequality implies an
uneven turf of existence for humanity and this requires rectification. The following testaments
from the Nyamwenda and Nharira community at large assist in bringing to light consequences
of unnegotiated mining investments in communities.
5.1 Loss of Legitimate Traditional Leadership and the Shortcomings of Customary Law
The Nharira community considers political weaponisation of traditional leadership as one of
country’s biggest challenges. This is in view of the administrative dissections and appointment
of illegitimate chiefs as the community does not recognise them. The general sentiment is that
appointments should be done following the traditional norms of succession and the role of the
State should only be to endorse those decisions.
60 Legitimate chiefs are argued to be more
intimately appreciative of cultural and traditional demands of their geographical jurisdictions.
61
As such, in case of developments requiring mediations an honourable legitimate chief would
consider his bestowed mandate to protect his people and the land. These sentiments are
problematic given how traditional leadership is guided by customary laws. Customary laws are
56 J. Nyoni, ‘USAID Strategic Economic Research and Analysis – Zimbabwe (Sera) Program Land Tenure and
Land Marketability in Zimbabwe: Policy Options and Recommendations’, Nathan Associates Inc (2016),
<pdf.usaid.gov/pdf_docs/PA00MDKB.pdf)> (accessed 2 September 2022).
57 Communal Land Act, supra note 38, Ibid., Part 3, Section 10 (3d).
58 See Government of Zimbabwe, supra note 3, Section 12.
59 Government of Zimbabwe, supra note 3, Part XV.
60 O. Dodo, ‘Traditional leadership systems and gender recognition: Zimbabwe’, 1 (1) International Journal of
Gender and Women's Studies (2013) p. 30.
61 There are many cultural practices in Zimbabwe. Some practices are specific to certain groups of people while
others are more widely practised. However, the values that underpin the way of life, particularly customs and
traditions, vary between cultural groups guided by their traditional customs and traditional leadership.
50
rules developed from a people’s customs and traditions practised since time immemorial.
62 In
Zimbabwe, these laws remain largely unwritten.
63 The Constitution of Zimbabwe recognises
African customary law where any unwritten law is also law.
64 The de facto circumstances are
that in terms of land distribution indigenous locals should have preference.
65 Traditional
leadership works with local authorities in the administration of districts in Zimbabwe.
66 Their
rule does not necessarily subscribe to the formal boundaries of districts since numerous
chieftainships can fall within one district.
67 In the unwritten state of the customary laws and
competing roles for power and influence, customary laws are riddled by challenges of
inadequate tenure thereby causing partial protection from the courts.
68 The inhibitive extent of
the traditional leaders’ roles, as provided in the Communal Land Act, perpetuate these
circumstances.
69
5.2 Loss of Socio-Cultural Identity
Despite the lack of a consultative process in the Nharira ordeal, the authorities made land
relocation arrangements. The procedure lacked consent, the extent of readiness for immediate
human occupation was questionable, and the intimate relationship between people and their
ancestral land was largely disregarded. For the Nyamwenda, the hills in question directly
connected them to their ancestors and were a site for related cultural and religious practices. It
was for such purposes that they settled on the land in the first place since territoriality “provides
a means of reifying power”.
70 Indigenous inhabitants gain their strength from their land through
the belief that the spirit of the ancestors buried in the land cares and protects their living
descendants.
71 In turn, the descendants conduct religious rites in gratitude and honour of their
ancestors.
72 Land is not just a place but a story place of ancestral history which defines and
shapes a peoples’ understanding of themselves.
The UNDRIP stipulates the rights of indigenous people such as full enjoyment, equality,
security and self-determination whereby they can freely distinguish their cultural development
among other provisions.
73 Further, the State is mandated to put in place effective mechanisms
62 Pfumorodze and Chitsove, infra note 66.
63 Ibid.
64 Government of Zimbabwe, supra note 3, Section 281 (1).
65 I. Scoones et al., ‘Zimbabwe's land reform: myths and realities’, The Zimbabwean, 18 November 2010,
<ids.ac.uk/download.php?file=files/dmfile/zimbabwean3pdf.pdf> (accessed 2 September 2022).
66 J. Pfumorodze and E. Chitsove, ‘Update: The Law in Zimbabwe’, GlobaLex. July/August 2021.
<nyulawglobal.org/globalex/Zimbabwe1.html > (accessed 3 September 2022).
67 T. Chigwata, ‘The role of traditional leaders in Zimbabwe: are they still relevant?’, 20 (1) Law, democracy and
development (2016) p. 71.
68 P. B. Matondi and M. Dekker, ‘Land rights and tenure security in Zimbabwe’s post fast track Land Reform
Programme’, A Synthesis report for LandAct. March, 2011,
<humanitarianlibrary.org/sites/default/files/2013/08/Zimbabwe_RuzivoTrust_ASC_0.pdf> (accessed 6
September 2022).
69 See Constitution of Zimbabwe, Section 10. Land governance in event of land repossession by the state largely
remain the business of presiding Minister and local government.
70 R. Sack (ed.), Human Territoriality: Its Theory and History, (Cambridge University Press, Cambridge, 1986).
p. 32.
71 J. Artikinson, ‘Trauma Trails: Judy Atkinson’, Sharing Culture, <Judy's Story - Sharing Culture>, (accessed
13 September 2022).
72 M. Kickett, ‘Examination of how a culturally appropriate definition of resilience affects the physical and
mental health of Aboriginal people, Doctoral dissertation’, University of Western Australia, School of Population
and Global Health, 2012 <research-repository.uwa.edu.au/en/publications/examination-of-how-a-culturally-
appropriate-definition-of-resilie > (accessed 13 September 2021).
73 See UNDRIP, Articles 1-3.
51
that prevent or rectify any action that deprives indigenous people of their integrity as distinct
peoples, of their culture, ethnic identities or seeks to dispossess them of their land.
74 While the
country complies with international standards through its Constitution, implementation remains
a challenge. For the Nyamwenda, the separation with the land effectively implied the creation
of a void, a loss of true being which was replaced by mere existence as a body without a soul.
5.3 Vilification of Sacred Spaces
In the process of losing their identity through separation with the ancestral land, the
Nyamwenda simultaneously lost the sacrosanctity of their lost dwelling place. The mining
activities at the once sacred spaces extract grains of the soil that once held their traditional faith.
The Nyamwenda had a revered and endearing approach to the hills as their sacred place of
worship and the connection with their ancestors. Reverend speech was to be used always,
artefacts or behaviour offensive to the indigenous traditional faith were not tolerated and
delinquent behaviour was believed to bring bad omen to the assailant. With the commencement
of the mining activities, it seemed also, these values were withered away. .
The reverence of the hills now seemingly only remains in the memory of the locals whereas
some have even began questioning the religion and sacrosanctity of the hills. As apparent, the
Chinese miners persisted despite having desecrated the sacred spaces in a deeply horrendous
manner. One immigrant local suggested,
[…] ndokwave kuitirirwa mabasa ose erima ikoko; vobva vasiya zvinhu zvavo imomo
(the hills are now undignified. They have become places for the works of darkness [implied sexual immorality]
and lovers leave evidence of their immoral deeds there)
[…]. The miners break open the hills, level it out and dig further in leaving patches of hollow ground […].
Nothing is left unused, even quarry dust is used for making bricks and sold back to us […].
With such activities, the once perceived importance was eroded. In consequence of that, the
land has allegedly become a hideout for adulterous lovers and thieves while it was once a sacred
place of worship and ancestral presence. .
The interviewed migrant locals were mostly present as beneficiaries of the land reform
programme or workers at the mines. Despite their direct economic benefit, they agreed that the
community had more to lose as the mining did not directly benefit them in any way.
The Nharira community believes that the Chinese are deeply religious people who practice their
own traditional and spiritual rites. Further, they believe that for their protection, the Chinese
miners engage their ancestors and fumigate the hills through these traditional rituals. Such
actions would then protect them from the consequences the subsequent mining activity could
potentially bring upon them. Considering such views, the Nharira community bemoans the
double-fold embarrassment the circumstances bring to the community and nation at large. In
the first instance, the Nyamwenda had to pave way for the mining activities and next, in the
battle of the ancestors, theirs were fumigated silent as there are no bad omens known to have
befallen the miners. However, some incidences of supernatural activity are believed to have
happened and caused suspension of mining activities at some sites, for example, at the heart of
Gwiranenzara and Ziware raMachembere.
74 Ibid., Article 8 (2 a-b).
52
The reality at Nharira recalled the question of whether, supposedly in the event of discovery of
precious minerals under the Great Walls of China, the Chinese themselves would tear down the
walls to a grotesque and unredeemable state, particularly, by an enterprising foreign national.
The question applies to other historically and culturally significant heritage sites such as the
Pyramids of Egypt whose existence premise a spirituality comparable to that of the Nharira
Hills. To answer this rhetoric question, the thought of how wars were started over comparatively
less-worthy causes in the history of mankind came to mind.
In equal essence of how other heritage sites bear an analogous worth to their indigenous locals
and countries, the Nharira hills are equally valuable to the Nyamwenda. Accordingly, there is
a need for the State to be firm in preservation of the heritage sites in honour of its Constitution.
On the contrary, there is an outcry over how the Nharira heritage sites were preserved during
the colonial era only to be destroyed in the post-colonial. As the Constitution provides, there is
a need for motivated efforts to preserve traditional cultures, heritage and sacred sites.
75
Economic pursuits undoubtedly bring income to the state coffers, however, balance is a
necessity. A suggestion was made to preserve such heritage entities by law, with a breach by
an individual or a State entity being accompanied by serious consequences.
5.4 An Embezzled Religious and Recreational Space
The Nharira community practices different religious beliefs as per every individual’s
constitutional right.
76 While the Nyamwenda and other community members are of an
indigenous African traditional religion, the rest of the community belongs to various other
religions, most often of Christianity. The use of the affected hills was not restricted to those of
African traditional religion but, within customarily approved parameters, anyone could enjoy
their existence. Individuals could simply walk to the hills for some air as comparable to a stroll
in the park. In case of personal problems, one could go up the hills and tell them (the problems)
to the ancestors or pray about it to their God. The hills proffered a space for individual worship,
meditation and relaxation. Due to the mining activities the community at large lost a space of
therapeutic and psychologically calming effect.
5.5 Lost Conservation Opportunities
The Nharira Hills are viewed as a gift. The community benefitted from them through fruits and
firewood. It is noteworthy that use of aids, such as axes and wheelbarrows, was forbidden for
the gathering of firewood. . Hands had to be used to collect firewood from the ground, break
off branches from trees and carry the firewood back home. These values of conservation and
sharing which informed such practices also prevailed for other provisions the hills gifted. In a
fashion similar to how vilification of sacred spaces caused a shift of perceptions and attitude,
the conservation opportunities that once prevailed because of reverence towards the hills were
also lost. Further, the geographical location of the Nharira Hills is not beneficial either since it
is situated between a high-density suburb of Harare and the town of Norton. . There is an
ongoing challenge of dwindling household incomes, increasing cost of electricity and power
cuts in Zimbabwe. Consequently, there is a spike in deforestation as people seek alternative
energy sources. The traditional values that once helped with responsible extraction of resources
are undermined.
75 Government of Zimbabwe, supra note 3, Section 282.
76 Ibid., Section 60 (1).
53
The poaching communities are aware of the Nharira community police which is made up of
members of the Moyo clan and their followers. They took it upon themselves to persecute
perpetrators. The police is aware that some members view this exercise in mockery. Some
members perceive such practises as absurd considering the severity of actions directed towards
countrymen gathering firewood in direct comparison to the little counteraction towards miners
who disregard the significance of hills, caves, shrines, ancestral graves and traditional artefacts.
The local police has remained motivated to preserve what they can as the battle for recognition
and conservation of their cultural heritage continues.
The circumstances that befell the Nharira Hills created a general apprehension within the
community. There is grave concern of an imminent threat to the futures of other heritage sites
and indigenous peoples’ rights. This is in hindsight of the growing number of other contested
mining investment cases. For example, Zhongxin Coal Mining Group and Afrochine Smelting
were granted rights to prospect for minerals in the pristine area of Hwange National Park
77. The
case of granite mining in Mutoko by another Chinese company is also another contested issue
and these examples are only a fraction of ongoing mining exploits across the country.
78
ParkOne informant suggested that, “we are in a difficult position as a nation […] because of
financial gain, all these (cultural sites) are at risk […] it is not surprising that we will wake up
one day and find even Inyangani Mountain under detonations”.
6 Comparative Perspectives
The circumstances at Nharira are not isolated occurrences. The legal cases below present
realities of higher considerations of economic expansions and continued struggles for
preservation of traditional territories by marginalised groups.
6.1 Livison Chikutu and 2 Others v. Minister of Lands
A trio of the Hlengwe Shangani tribe, a Zimbabwean ethnic minority from Chilonga, Chiredzi
applied to have sections 4 and 6 (1) (b) of the Communal Land Act declared unconstitutional.
This was in a bid to interdict the commercial production of lucerne grass
79 which would cause
the relocation of 13 840 Indigenous Shangani people from their indigenous land spanning
12940 hectares.
80 The applicants argued that the land in question was their ancestral heritage
from time immemorial, as such, they sought a departure from the Communal Land Act that
currently governed them. They stated that relocations undermined and violated the rights to
human dignity, property, equal protection, culture and heritage. Further, no consultations had
initially been done and at a later point when conversations were initiated, a consensus could not
be reached. In making a ruling, the judge argued that land was invested in the President by
virtue of his powers provided to him for purposes of development. While the lack of
consultations remained a fact, that did not warrant constitutional determination. Further, spans
of land would be left for the people’s habitation. As such, the case was dismissed.
77 J. Watts, ‘Chinese mining firms in Zimbabwe pose threat to endangered species, say experts’, The Guardian, 3
September 2020, <theguardian.com/world/2020/sep/03/chinese-mining-zimbabwe-pose-threat-endangered-
species-hwange-national-park>, (accessed 13 September 2022).
78 Mining Zimbabwe, ‘Chinese companies fall short of CSR’, Mining Zimbabwe Magazine Issue 58. 26 April
2022, <miningzimbabwe.com/chinese-companies-fall-short-on-csr/ > (accessed 13 September 2022).
79J. Tarusarira, ‘The grass versus the people: Sacred roots of environmental conflict in the Chilonga communal
lands in Zimbabwe’, 6 (1), Zeitschrift für Religion, Gesellschaft und Politik (2022), p. 72.
80 D. Mavhinga, ‘Chilonga Evictions Show Government Insensitivity’, Zimbabwe Independent, 12 March 2021,
<hrw.org/news/2021/03/12/chilonga-evictions-show-government-insensitivity >, (accessed 8 September 2022).
54
6.2 Green Fuel Company v. Chisumbanje Community
The Chisumbanje case involves forced evictions to pave way for Greenfuels Company’s bio-
fuel project. The evictions were forcefully conducted. Villagers under Chief Garahwa reported
of beatings and being barred from the land by armed security and dogs.
81 The company later
tried to engage the community but that was marred by conflict. An affected informant in
Chisumbanje suggested the need for a more human approach through consultations with the
community from the onset and queried:
How do you expect us to accept a deal that is imposed on us and further displaces us while at the same time
ignoring our livelihoods and cultural concerns? I am not entirely opposed to the project but I am just not happy
with the process as the government failed to engage us during the project inception. It is not fair to us, since
we have built a history in this community and we cannot just pack and leave it behind just like that.
82
In case of any land contestations and evictions, a lack of consultations equals the absence of
free and informed consent.
83
In the Chisumbanje case, the project initially started in the 1960s to capacitate the then colonial
government’s irrigation project at their Agricultural and Rural Development Authority (ARDA)
farm. The project did not commence due to escalated inflation and budgetary constraints.
84
Through the present-day Build Operate and Transfer (BOT) agreement with private investors
for a period exceeding 20 years, the project required about 40 000 hectares of land for expanded
sugar plantations and ethanol plant.
85 As a consequence of the US600 million project, 1754
households were displaced in 2008.
86 This occurrence was in line with the problematic notion
of viewing land as a novel way for business deals and new profit opportunities.
87 As a
consequence, farming opportunities that sustained the community were lost.
6.3 Satond Investment v. Munashe Shava
The overarching dominance of mining can be seen through Satond Investment v. Munashe
Shava case.
88 The two co-existed on a piece of land and the applicant had mining rights whereas
81 C. Benard Chiketo, ‘Green Fuel ‘annexes’ 500h of cotton, maize fields’, Nehanda Radio, 13 December 2018,
<nehandaradio.com/2018/12/13/green-fuel-annexes-500h-of-cotton-maize-fields/> (accessed 5 September 2022).
82 C. Mandihlare, ‘Large Scale Acquisition and its Implication on Rural livelihoods: The Chisubanje Ethanol
Plant Case-Zimbabwe. A Research in Partial fulfilment of the requirement for obtaining the degree of Master of
Arts in Development Studies’, International Institute of Social Sciences,
<academia.edu/68423481/Large_Scale_Land_Acquisition_and_Its_Implication_on_Rural_Livelihoods_The_Chi
sumbanje_Ethanol_Plant_Case_Zimbabwe > (accessed 29 August 2022).
83 P. Zamchiya et al. ‘The silent dispossession of Customary Land Rights holders for urban development in
Zimbabwe’, Institute for Poverty, Land and Agranian Studies, 21 June 2021, <plaas.org.za/the-silent-
dispossession-of-customary-land-rights-holders-for-urban-development-in-zimbabwe/> (accessed 18 September
2022).
84 E. K. Makombe, “I Would Rather Have My Land Back”: Subaltern Voices and Corporate/State Land Grab in
the Save Valley’, The Land Deal Politics Initiative. February 2013, Microsoft Word - LDPI WP 20 (iss.nl))>,
(accessed 16 September 2022).
85 P. Mutopo and M. Chiweshe, ‘Large-scale land deals, global capital and the politics of livelihoods:
Experiences of women small-holder farmers in Chisumbanje, Zimbabwe’, International Journal of African
Renaissance Studies-Multi-, Inter-and Transdisciplinarity. (2014) p. 94.
86 E.K. Makombe , supra note 84.
87 P. Mutopo and M. Chiweshe, ‘Large-scale land deals, global capital and the politics of livelihoods:
Experiences of women small-holder farmers in Chisumbanje, Zimbabwe’, International Journal of African
Renaissance Studies-Multi-, Inter-and Transdisciplinarity. (2014) p.98.
88 Satond Investments (Private) Limited vs. Munashe Shava, High Court of Zimbabwe (HH 336-18, 2018), (18
May 2018 and 20 June 2018).
55
the defendant was a farmer. The case circumstances are that the defendant instructed his
employees to farm on a land within the miner’s jurisdiction thereby disturbing the miner’s
operations. The court considered the miner’s superior land tenure rights, as such, a ruling in
favour of the applicant was made in terms of Section 22 of the Mines and Minerals Act. To
avoid any doubt, Section 179 of the Act was alluded to in the ruling. The section stipulates that
a landowner had inferior rights to a miner’s which is why the defendant had to exist without
infringing Satond Investment’s rights.
6.4 Shangani Holistic v. South African Pearline Mineral Exploration Firm
In line with the country’s Vision 2023, this case reveals how a bias towards economic pursuits
generally impacts the status quo. The Oppenheimer family, through their company Shangani
Holistic was granted a court interdict that protected its cattle ranch from exploration by the
defendant. The family acquired and inhabited the land in 1937. They were not affected by the
land reform evictions of white settlers. It has been widely argued that the request was granted
on the basis of their political relationship with the former President Robert Mugabe, economic
merits of their existence and recognition of the property as their natural home after a 63 year
long stay.
89 The same economic merits worked as well in the legal case against Pearline
Minerals. In carrying out the ruling, it was considered that a huge herd of cattle would have to
be relocated, the export supply of beef disturbed, retrenchment of some farm workers would be
inevitable and children would be uprooted from their school at the farm. In contrast to the
Nyamwenda who sought the preservation of graves and pottery that is of cultural significance
as well as shrines for religious practices respective to their small community, the Oppenheimer
case had grounded economic merits. As such, the interdict was granted despite arguments that
the stretch of the farm was rich in diverse minerals including gold, copper, graphite and
lithium.
90The rulings above are indicative of how mining and large-scale economic pursuits are
of higher recognition over other smaller economic pursuits as demonstrable in the Munashe
Shava case. The bias also overlooks how land is a form of social identity and basic subsistence
as in the Chisumbanje case. The uneven considerations ignore how land is a traditional and
religious symbol that interconnects people to their faith and heritage as in the Nharira and
Chilonga cases.
7 Recommendations
The crisis being brought about by mining developments in Zimbabwe is not an isolated
phenomenon. Mining investments are a growing concern across the globe and efforts to address
human rights issues within affected communities have become more pressing considering the
growing plight.
91 We approach the law as it is in making recommendations. Presently, the law
89 L. Ndebele, ‘Oppenheimer family goes to court to block mineral exploration at their Zimbabwe cattle ranch’, News24, 3
July 2022, <news24.com/news24/africa/news/oppenheimer-family-goes-to-court-to-block-mineral-exploration-
at-their-zimbabwe-cattle-ranch-20220703#:~:text=Podcast-
,Oppenheimer%20family%20goes%20to%20court%20to%20block,at%20their%20Zimbabwe%20cattle%20ranc
h&text=Nicky%20Oppenheimer.&text=A%20court%20has%20stopped%20a,owned%20by%20the%20Oppenh
eimer%20family.>, (accessed 13 September 2022).
90 Ibid.
91 The Economic, Social and Cultural Council (ECOSOCC) of the African Union, ‘Making the Kampala
Convention work for IDPs. Guide for Civil Society on supporting the ratification 31 and implementation of the
Convention for the Protection and Assistance of Internally Displaced Persons in Africa.’ Africa Union, July
2010, <internal-displacement.org/sites/default/files/publications/documents/2010-making-the-kampala-
convention-work-thematic-en.pdf> (accessed 21 November 2022).
56
permits the change of purposes of land usage and limits property rights.
92 These provisions
leave gaps that contradict provisions of the Constitution. Accordingly, the recommendations
are not based on the absence of the law but need for implementation frameworks that can sustain
values of equality and fairness. In hindsight, this can be noted in most African countries with
adequate laws that are rendered insufficient due to the political culture of impunity.
93 Some
state officials, powerful politicians and other influential persons are perpetrators of human
rights but often untouchable. However, as a signatory to the Kampala Convention of 2009 on
internally displaced people, the country can enhance and catalyse efforts for mainstreaming
indigenous people’s rights in its economic developmental agenda. This can be achieved through
inclusion and participation of earmarked and displaced persons. In the first instance, this begins
with obtaining consent of those to be relocated. The beneficiation and protection of
communities can come through deliberate consultative efforts by authorities. In the case of the
Nharira, there exists widespread concern over neglect due to a lack of consultative processes
and accessibility of authorities. While they fail to support affected communities, they are also
inaccessible when community leaders seek their audience.
In the case of the Nharira Hills, a consultative process would have influenced a community-
informed solution and negotiated relocation plan. As they argued, the community would have
assisted in crafting a mutually-beneficial arrangement that advanced economic advancements
while also preserving their cultural heritage and human rights. Yet, this was made impossible
due to the Ministry of Mines' decision to refrain from being transparent on the magnitude of
issued claims.
94 Such information would present an opportunity for authorities, including
national museums and monuments and local councils to work together in safeguarding national
heritage and the indigenous peoples’ rights.
Zimbabwe is advancing the component of concerned persons’ consent through the Mines and
Minerals Act Amendment Bill. This position will improve the protection of the rights of
communities. It will also improve the protection of the rights of communities. As such, we
propose catalysed processing of the matter so that it speedily becomes law. In the meantime, a
moratorium on all evictions to ensure the protection of indigenous locals’ rights would be
necessary.
The Nharira community expressed a need for authorities to show that they car. Communities
are strong critics even in their eco-socially inferior positions. The community expressed that in
the event of officials evidencing of sensitivity towards community needs, confidence in the
systems, good governance and good will could be resuscitated. The general sentiment in
Nharira made an imprint that every circumstance could be amicably resolved but required both
authorities and communities to be intentional about achieving that goal.
A clear implementation framework is also invaluable as it would identify and mandate all
responsible stakeholders including representatives of affected communities, government
ministries and investors to encourage an agreed course of action. Further, clear channels of
communication, a transparent case progression, and a tracking system would be necessary. The
platform can be live for the duration of the mining activity until post-mining assessments and
remedial action where necessary is carried out.
92 Government of Zimbabwe, supra note 3, Section 71 (3).
93 ECOSOCC, supra note 91.
94 Chara, supra note 5.
57
For effective consultative processes and the protection of rights of communities, the role of the
civil society cannot be over emphasised. As the State cannot audit itself, there is a need for
engagements based on good faith with international, humanitarian and civil society
organisations. The Kampala Convention recognises the role these stakeholders play in
respective phases of displacements and beyond. Apart from financial resources, their expert and
technical involvement in negotiations and planning is invaluable.
95 While relations between the
State and civil society in Zimbabwe have been tense over the years, success stories have been
registered in some interventions such as education, humanitarian aid during disasters and rights
for vulnerable groups such as children and people living with disabilities. It is urgently needed
that communities scheduled for internal relocations due to economic developments as equally,
be recognised as vulnerable groups whose rights require dedicated interventions in Zimbabwe.
Communities directly bear environmental and socio-cultural hazards associated with industries
such as mining.
96 As such, agreements attached to conditions of issuing a mining license should
mandate social corporate responsibility. Further, for added security, transparency and
accountability; agreements between mining entities should be entered into for a direct share of
royalties with the hosting community. Information of such agreements should also become
public so that communities, through their traditional leadership, local government authorities
and the legislative arm of the State can hold the miners accountable.
8 Conclusion
This chapter has argued for the urgent need to find a balance between economic pursuits through
mining and preventing intangible losses caused by evictions from communal land. This goal
can be achieved through consultative processes that ensure consent, compensation and
preservation of the human rights of local communities. In sum, an open, meaningful and
participatory approach that involves all concerned stakeholders including miners, legitimate
traditional leadership, community, non-governmental organisations, respective ministries and
local authorities, is necessary. In line with various conventions the country subscribes to,
implementation of respective recommendations would assist in the country’s efforts to plug the
prevailing gaps and effectively implement respective constitutional mandates.
95 ECOSOCC, supra note 91.
96 “physical and economic displacement, criminal activity, social dislocation, inflationary pressures, impacts
on services such as health, education, water, sewerage, communicable diseases, and gender-based
violence etc., as well as and environmental impacts such as dust, erosion, vibration, and noise and water
pollution”, See G.L. Smith and L. Brooks, ‘Incorporation of the socio-cultural dimension into strategic long-
term planning of mineral assets in South Africa’, 118(4), Journal of the Southern African Institute of Mining
and Metallurgy, (2018) p. 331.
58
4 Article 5 of the Maputo Protocol and Ten Years of a New Constitutional Order: An
Assessment of Child Marriages in Zimbabwe
Innocent Tonderai Mahiya and Isheanesu Chirisa
*
Abstract
Article 5 of Maputo Protocol sets a concrete yardstick for effective eradication of child marriage
in Zimbabwe, and the rest of Africa. Despite several attempts to implement Article 5 of the
Maputo Protocol, child marriage remains a clear infringement of human rights of girls. In 2013,
Zimbabwe enacted a new Constitution with a comprehensive Declaration of Rights that
guarantees the rights of women and girls was enacted. Further in May 2022, the government of
Zimbabwe promulgated Marriages Act (Chapter 5.15) to harmonise various types of marriages
and criminalise child marriage. This paper explores the potential efficiency of this Marriages
Act in curbing child marriages in Zimbabwe to fulfil the spirit of the Maputo Protocol. It
discusses the adequacy of this law to curb child marriage as a way to give effect to Article 5 of
the Maputo Protocol in face of other non-legal drivers of child marriage in Zimbabwe. It has
been observed that although there is a myriad of harmful practices against girls and women still
existing in Zimbabwe, child marriage is among the most significant harmful practices which
have thrived against a background of legal lacuna and misalignment of laws as well as cultural
and religious value systems existing in Zimbabwe. The paper argues that efforts to eradicate
child marriage should be predicated on solid legal framework and advocacy efforts targeting
underlying cultural, religious, and socio-political factors contributing to the scourge of child
marriages. The paper recommends adequate administrative and technical support and strategies
that give full effect to the implementation of the recently enacted Marriages Act.
1 Introduction
Child marriage refers to a marriage in which either one or both contracting parties are below
the age of 18 and said marriages can be entered voluntarily or involuntarily. While both men
and women can be victims of child marriage, girls and women are disproportionately affected.
Child and forced marriage have been identified by the Committee on the Elimination of
Discrimination against Women (CEDAW) as one of the most pervasive forms of harmful
practices perpetrated against girls and women.
1 These and other harmful practices have negative
consequences for the physical and psychological health and infringe the socio-political rights
of affected girls and their broader communities. The Protocol to the African Charter on Human
and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) was adopted to
protect women and girls’ rights against discriminatory cultural practices.
2 In compliance with
the Protocol, member states are obligated to eliminate all forms of discrimination against
women and girls through appropriate legislative and institutional measures and commit to
prohibit all forms of harmful practices which negatively affect the human rights of women and
girls.
3 The Protocol provides for a comprehensive legislative framework as a basis for national
laws and has been instructive to national and regional courts in the adjudication of cases. It is
* The authors are all human rights professionals and researchers active in Zimbabwe.
1 CEDAW, ‘Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination
against Women/general comment No. 18 of the Committee on the Rights of the Child (2019) on harmful
practices’, 8 May 2019, CEDAW/C/GC/31/REV.1 - CRC/C/GC/18/Rev.1, p.7.
2 Was adopted by the African Union in Maputo, Mozambique on 11 July 2003, and came into force on 25
November 2005.
3 UNICEF, ‘Early Marriage: Child Spouses’, Innocenti Digest No. 7, <unicef-irc.org/
publications/pdf/digest7e.pdf> (accessed 15 September 2017).
59
thus, a useful tool to ensure that women’s rights enshrined in the Protocol become a reality for
women and girls in Africa.
Article 5 of the Protocol states that “States Parties shall prohibit and condemn all forms of
harmful practices which negatively affect the human rights of women, and which are contrary
to recognized international standards. States parties shall take all necessary legislative and other
measures to eliminate such practices.”
4 This wording and the language influenced the wording
of the Constitution of Zimbabwe concerning the promotion and protection of women’s rights
especially from harmful cultural practices.
5 Section 80(3) of the Constitution provides that all
laws, customs, traditions, and cultural practices that violate or infringe against the broader rights
of girls and women are deemed void.
6 This constitutional provision gives effect to Article 5 of
the Maputo Protocol that seeks to eliminate harmful cultural practices .The Protocol defines
harmful practices as “all behaviour, attitudes, and/or practices which negatively affect the
fundamental rights of women and girls, such as their right to life, health, dignity, education and
physical integrity”.
7 This definition is unique to the Protocol as it not only includes acts that
disregard the fundamental rights of women and girls but also attitudes towards women
including mind-sets, opinions and ways of thinking. This is not only ambitious but also raises
the question of what can realistically be regulated by laws and legal mechanisms. Harmful
cultural practises primarily target women and girls in certain communities and are frequently
considered and deliberately presented as established and valuable cultural traditions.
8 Harmful
practices refer, amongst others, to child marriage, virginity testing, the appeasement of
avenging spirits, and forced wife inheritance. These practices often extend beyond multiple
generations and are continuously perpetuated.
9
In Zimbabwe, the Constitution is the supreme law and nullifies all other laws, customs, and
cultural practices that are inconsistent with its provisions. The national standard of human rights
protection, cannot be compromised even in observance of traditional or cultural norms. In 2016,
the Constitutional Court of Zimbabwe delivered a landmark judgment in relation to child
marriage. The applicants, young women at the age of 18 and 19 years, applied to the
Constitutional Court for a declaratory order that the Customary Marriages Act was
unconstitutional in that it did not provide for a minimum age limit of 18 years.
10 It was also
held that section 22 of then Marriages Act, Chapter 5:11
11 was unconstitutional as it permitted
the marriage of girls under the age of 18 with parental or guardians’ permission and provided
that girls below the age of 16 require a Minister’s permission to marry.
Despite this progressive court ruling, the protection of girls in Zimbabwe from harmful cultural
practices remains highly insufficient. Discriminatory and prejudicial norms that are perpetuated
across generations are deeply enshrined in religious and cultural norms which effectively
4 African Union,’Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa’, 1 July 2003, <au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-women-
africa> (accessed 7 December 2022).
5 Ibid, p.7.
6 Constitution of Zimbabwe Amendment (No. 20) Act, section 80(3), 2013.
7 African Union, supra note 4, p.4.
8 Public Health Scotland, ‘Harmful traditional practices’, <healthscotland. scot/health-topics/gender-based-
violence/harmful-traditional-practices#: ~:text=Harmful%20traditional%20practices%20are%20forms,
forced%20or%20early%20marriage> (accessed 17 November 2022)
9 Ibid.
10 Constitution of Zimbabwe, Chapter 5:11 Marriages Act (No. 1), <osall.org.za/docs/2011/03/Zimbabwe-
Marriage-Act.pdf> (accessed 7 December 2022).
11 This Act has since been repealed and substituted by Marriages Act, Chapter 5:15
60
maintains child marriage. Child marriage predominantly affects girls who live in low-income
and rural communities. The prevalence of child and forced marriages oftentimes stems from a
lack of education and widespread poverty. Zimbabwe has one of the highest rates of child
marriage in Africa, with approximately 31 percent of Zimbabwean girls being married before
reaching the age of 18 and 4 percent before they turn 15.
12 Early marriages frequently lead to
premature pregnancies that pose numerous health risks for the girl child. In July 2021, a 15-
year-old girl, who was married to a 26-year-old man, died giving birth inside a church which is
only one example that sheds light on to the horrifying implications attributable to child
marriage.
13 This is certainly not a sole incident but rather a representative case that points
towards the reality of countless Zimbabwean girls.
This study reviews the continued occurrence of child marriage as an infringement of women
and girls’ human rights despite the progressive Constitution of 2013. The study recognises the
significance of the promulgation of the new Marriages Act for curbing child marriage in an
attempt to give effect to Article 5 of the Maputo Protocol.
14 It discusses the possible limitations
and obstacles during the implementation of the law to give full effect to Article 5, especially in
light of other non-legal drivers of child marriages in Zimbabwe. The study further proposes
necessary administrative and technical support measures that may be necessary to facilitate the
implementation of the Act to eradicate child marriages in Zimbabwe. Although the Maputo
Protocol lists several practices that constitute harmful cultural practices, this study focuses
solely on child marriage due to the scope of the paper.
1.1 The Maputo Protocol and Harmful Cultural Practices
The Maputo Protocol is a comprehensive document introduced to complement the African
Charter on Human and People’s Rights to protect and promote the women and girls' rights in
Africa. The Protocol was designed to protect women in a more comprehensive manner than
pre-existing instruments. Paragraph 11 of the Preamble explains that the adoption of the
Protocol aimed to address the concern that “despite the ratification of the African Charter on
Human and Peoples' Rights and other international human rights instruments by the majority
of States Parties, […] women in Africa still continue to be victims of discrimination and harmful
practices”.
15 It is often argued that the Protocol should not be viewed as correcting normative
deficiencies in international human rights law dealing with women's rights, but rather as a
response to the lack of implementation of these norms’.
16 The Protocol focuses on gender
inequality and abuse of women in order to provide legal and non-legal measures to protect them
from violence, inequalities within marriages and during divorce as well as from discrimination
in the education sector and the workplace. It further aims to extend protection to women
concerning inheritance rights and counteract harmful practices such as child marriages and
female genital mutilation.
Article 5 obligates state parties to take necessary legislative and non-legislative measures to
eliminate harmful cultural practices. Such measures include public awareness campaigns in all
sectors of society and the provision of comprehensive support for victims. Further, Article 6(c)
12 African Union, ‘The Republic of Zimbabwe Launches AU Campaign to End Child Marriage in Africa’, 2
August 2015, <au.int/en/newsevents/20150802/republic-zimbabwe-launches-au-campaign-end-child-marriage-
africa> (accessed 24 September 2022).
13 https://edition.cnn.com/2021/10/11/africa/zimbabwe-church-abuse-intl/index.html
14 Chapter 5:15 was announced in May 2022 and came into force on 16 September 2022.
15 African Union, supra note 4, p.2.
16 F. Viljoen, 'An introduction to the Protocol to the African Charter on Human and Peoples,' 16, Rights on the
Rights of Women in Africa (2009) page 17
61
states that the minimum age of marriage is 18, which effectively prohibits the practice of child
marriage. Article 6(a) also declares that no marriage should be entered without the free and full
consent of both parties. When one or both parties are under 18, their circumstances inevitably
dictate that they are not able to give consent, which is why child marriage can never be free nor
consensual. Considering that child marriage is frequently described as a cultural practise, it is
noteworthy that the Maputo Protocol explicitly addresses the issue of culture. It does not deny
the importance or relevance of culture in Zimbabwe’s society but rather asserts, through Article
17, states must ensure women’s right to live in a “positive cultural context”.
17 The Protocol is
hailed as the most inventive and promising development in women’s rights protection since the
formation of the African Union (AU) as it defines essential human rights standards for African
women.
18
1.2 Zimbabwe’s Obligation to Eradicate Child Marriages Under Regional and International
Conventions
Zimbabwe is a signatory to some of the significant international treaties on children’s rights,
including the Convention on the Elimination of all Forms of Discrimination against Women
(1984) and the Convention on the Rights of the Child (1989).
19 The Joint General Comment
No. 31 of the CEDAW Committee and No. 18 of the Committee on the Rights of the Child on
Harmful Practices of 2014 provide clarification on child marriage. The provisions of Article 1
of the African Charter on the Rights and Welfare of the Child (ACRWC) weighs in and state
that “any custom, tradition, cultural or religious practice that is inconsistent with the rights,
duties and obligations in the Charter shall, to the extent of such inconsistency be discouraged”.
20
Article 21(2) further provides that “child marriage and the betrothal of girls and boys shall be
prohibited and effective action, including legislation, shall be taken to specify the minimum age
of marriage to be eighteen years and make registration of all marriages in an official registry
compulsory”.
21 This does not provide for any exceptions.
Section 78(1) of the Constitution was enacted for the purpose of complying with the obligations
Zimbabwe had committed to under Article 21(2) of the ACRWC to legally establish 18 years
as the minimum age for marriage and abolish child marriage. Section 78(1), as read together
with section 81(1) of the Constitution, shows that Zimbabwe is a signatory to the Convention
on the Rights of the Child (CRC) and the ACRW. The signing of these conventions is an
expression of commitment to take all appropriate measures, beyond legislative reforms, to
protect, promote, and fulfil children’s rights. Under Article 18 of the Vienna Convention on the
Law of Treaties which came into force on 2 January 1980, a state party is enjoined to hold in
good faith and observe the rights and obligations in a treaty to which it is a party.
Thus, the state parties are placed under a positive obligation to take effective measures,
including legislation, to specify the age of 18 years as the minimum age for marriage. The paper
is based on the firm conviction that legislation cannot suffice as the sole tool for effectively
addressing child marriage. Contrary to other human rights conventions, Article 21(2)
17 African Union, supra note 4, p.16.
18 E. Durojaye and L.N. Murungi, ‘The African Women's Protocol and sexual rights’, 18 The International
Journal of Human Rights, p. 893.
19 As early as 1998, in its concluding comments addressed towards Zimbabwe, the Human Rights Committee
recommended that the Government of Zimbabwe adopt measures to prevent and eliminate prevailing social and
cultural attitudes supporting early and child marriage and to address perspective legal reforms.
20 African Union, ‘African Charter on the Rights and Welfare of the Child’, 1 July 1990,
<au.int/en/treaties/african-charter-rights-and-welfare-child> (accessed 8 December 2022), p.8.
21 Ibid., p.19.
62
successfully avoided omissions and exceptions that previously allowed state parties to exploit
local laws to authorise child marriages. Article 19(1) of the UN Convention on the Rights of
the Child (CRC) provides that the State should take measures to “protect the child from all
forms of physical abuse or mental violence, maltreatment or exploitation including sexual
abuse”.
22
Zimbabwe’s initial report to the African Committee of Experts on the Rights and Welfare of
the Child (ACERWC) was submitted in 2013 and considered by the Committee in April 2015
under Article 43 of the ACRWC. In July 2015, the Human Rights Council also adopted its first
substantive resolution recognizing child and forced marriage as a human rights violation. In its
2015 concluding observations, the ACERWC raised similar concerns against the Marriages Act
of Zimbabwe that still did not provide a minimum age of marriage, hence creating a gap that
permitted child marriages in direct violation of Articles 2 and 21 of the African Children’s
Charter.
23 This shows that Zimbabwe’s efforts of eradicating child marriages remained
insufficient at that time. The Committee on the Convention on Rights of the Child noted that
statutory difference in the minimum age of girls and boys for marriage, should be prohibited by
law.
24 The Government of Zimbabwe was asked to adopt measures to prevent and eliminate
prevailing social and cultural practices that threaten the welfare of children. CEDAW also noted
that section 22(1) of the Marriages Act, which provided for different ages for girls and boys,
assumed incorrectly that girls have a different rate of intellectual development from boys or
that their stage of physical and intellectual development at marriage was immaterial.
25 The
Committee recommended that these provisions should be abolished.
Zimbabwe submitted its initial country report to the UN Committee on the Rights of the Child
which was due in 1992, sometime in 1995. The second report was submitted 19 years later in
2015. From a procedural perspective on reporting under the UNCRC, Zimbabwe continuously
fails to uphold its obligations has not been doing as well as it should. This inconsistency and
poor adherence to reporting requirements prevent effective monitoring and the evaluation of
the implementation of the Convention on the Rights of the Child. The 1995 initial report from
Zimbabwe to the UNCRC is relevant to the understanding of the commitment of Zimbabwe in
fighting child marriages. Converging observations from concluding observations from both
committees show that Zimbabwe is still battling to address certain gaps in its legal frameworks
which are impeding the full implementation of the provisions of both commitments. The 1995
initial report from Zimbabwe to the Committee on the UNCRC acknowledged the challenges
around the definition of the child in the context of cultural and religious practices that
perpetuated child marriages.
26 There is a specific reference to the Apostolic Faith Sect sustained
a pattern of obstructing national immunisation efforts carried out by the government. The
silence in the Customary Marriages Act on the minimum age for marriage perpetuated child
marriages. The concluding observations from the CRC Committee recommend that the
minimum age should be raised to 18 for both girls and boys and that the government ought to
facilitate the effective enforcement of laws that outlaw child marriage to counteract practises
based on religious beliefs.
22 OHCHR, ‘Convention on the Rights of the Child ‘, General Assembly resolution 44/25, 20 November 1989,
<ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child> (accessed 8 December 2022), p.5.
23 CRC Committee, ‘Concluding observations on the second periodic report of Zimbabwe’, CRC/C/ZWE/CO/2,
7 March 2016, <icj.org/wp-content/uploads/2016/01/Concluding-Observations-CRC-Zimbabwe-2016-
eng.pdf> (accessed 22 September 2022).
24 CRC Committee, ‘Concluding Observations on Zimbabwe’, A/53/40, (1998), para. 214.
25 CEDAW, ‘General Recommendation No. 21: Equality in Marriage and Family Relations’, 1994, para. 38.
26 CRC Committee, ‘Concluding Observations: Zimbabwe’, CRC/C/15/Add.55, 7 June 1996.
63
As part of the internal monitoring systems of state parties, the CRC acknowledged and
commended the government for its pledge to submit annual reports to both the parliament and
cabinet.
27Though this was deemed progressive, the lack of alignment of national laws with the
UNCRC provisions and the dual system of common law and customary law compromise the
successful implementation of the provisions.
28 Some of the key issues highlighted in the
concluding observations focus on the rampant corruption which misuses resources from the
national budget that could have contributed to end child marriages. In its periodic report in
2015, the CRC concluding observations raised recurring concerns over slow progress, scarce
evidence for a practical framework of investigation, and insufficient rehabilitation of all victims
including compensation through the government.
29 There was also a highlight of the need to
have a robust monitoring system in place to monitor the gains being made.
30
Zimbabwe continue to undertake to deal with the pervasive issue of child marriage that
continues to be a dominant practice. As part of the efforts to address the culturally and
religiously imbedded roots of child marriages, Zimbabwe reported that it identified the
Apostolic Sect as a risk factor. The government, therefore, partnered with the Apostolic
Christian Councils to change the attitudes and perceptions of its members. This was to be
followed by a plan to increase awareness through apostolic ambassadors for child rights in
collaboration with civil society organisations. The Mudzuru case was a step towards the
realisation of the provisions of the ACRWC because child marriage was found to be
unconstitutional. This judgment affirmed the provisions of the ACRWC that established 18
years as the age of marriage to counteract the prevalence of child marriages in Zimbabwe. The
Marriages Act in section 22(1) allowed women of the ages of 16 and older to be lawfully
married.
31 In the Mudzuru case, the Constitutional Court noted the importance of adopting
legislative measures for the abolition of the offending statutory provisions such as section 22(1)
of the Marriages Act which had become a compelling social need. The Court further noted that
there was overwhelming empirical evidence of the horrific consequences of child marriage.
Study after study has exposed child marriage as an embodiment of all the evils against which
the fundamental rights are intended to protect the child.
32
Zimbabwe has remained confronted with a high volume of cases of child marriage that can be
attributable to religious and cultural norms which support and protect these practices. The
practices also thrive through the persistence of legal dualism, fragmentation of laws and low
policy implementation.
1.3 Relevance of the Study to the Overall Theme
Zimbabwe has made substantial progress towards the implementation of Article 5 of the
Maputo Protocol from 2008 through constitutional, legal and policy provisions targeting the
elimination of harmful practices such as child marriages. Thus, the recent enactment of the
Marriages Act is a welcome development, and it is important for the legislation to have the
necessary implementation framework and plan of action to give it full effect. The study
purposively focuses on the Maputo Protocol Article 5 because of its overarching nature which
27 CRC Committee, supra note 23, para 4.
28 Ibid, para 42.
29 CRC Committee, ‘Concluding observations on the second periodic report of Zimbabwe’, 29 January 2016, 47
(a-d).
30 Ibid.
31 Chapter 5.11 was subsequently repealed in May 2022 through Chapter 5.15.
32 Mudzuru & Anor v. Minister of Justice,
64
is particularly relevant for the response to child marriage as a harmful practice. It consequently
highlights the significance of the Declaration of Rights. Any efforts to eradicate child marriage
should be based on solid legal analysis to determine any gaps to then address them
systematically through programming and advocacy efforts that target underlying cultural,
religious, and socio-political factors. The Constitution provides, arguably, for some of the most
advanced international standards for the protection of human rights. This study was conducted
at an opportune time, when the enactment of the new legislation was underway and there was
a greater room to influence future policy frameworks necessary for the implementation of laws
that apply to child marriages. The study sought to generate insights into how child marriage
may be effectively dealt with under the new legislative framework while equally
acknowledging non-legal drivers of the practice to contribute to recommendations that may be
considered for subsequent policy briefs.
1.4 Methodology
The current legislative framework on child marriage particularly section 3 of the Marriages Act,
Chapter 5:15, offers an opportunity to consider and build momentum for the eradication of child
marriage in Zimbabwe.
33 This study is built on thorough and nuanced secondary review of
existing literature and the legal framework, complemented by limited primary data collection
using the data collection methods of key informant interviews and mapping. These research
tools enabled the data collection on child marriage prevalence in Zimbabwe as well as the legal
and policy framework affecting the issue. It is also based on doctrinal review of domestic and
international laws, policy documents, court judgements relevant to the study, relevant
concluding observations, and general comments from treaty monitoring bodies. In terms of
primary data, in-depth interviews from selected key informant interviews were utilised (human
rights lawyers, gender activists, programmers and policy makers) to complement the legal and
policy analysis.
Since this was an exploratory study done to gather prominent views about the subject, purposive
sampling of key informants was preferred as it provided higher chances of including relevant
cases for the study. Following this approach, a total of 12 key informant interviewees (KIIs)
were selected as the sample. This selection was viewed as adequate since the participants were
from diverse backgrounds with substantial organisational experiences and knowledge on the
subject matter that goes beyond personal views. This brought to light, historical evidence that
has previously been gathered by organisations on the topic of child marriages.
To ensure the effectiveness of the sampling procedure, referral sampling or snowballing method
was used to identify participants for the study. Suitable inclusion criteria were established to
guide the sampling process that took the commitment of the participants concerning related
issues such as girl child rights, education of marginalised peoples and general child protection
efforts into consideration. People who had experience in any of the highlighted areas were
deemed knowledgeable on the subject matter, hence were recruited as KIIs. The utilisation of
different data collection methods for the study intended to generate information relevant for
answering the project questions. Although child marriage is now established as illegal, it is still
a contested issue as it is deeply embedded in and protected through religious and cultural
practices. Such practises are oftentimes met with insufficient counteraction that fails to address
33 Constitution of Zimbabwe, Chapter 5:15 Marriages Act (No. 1),
<veritaszim.net/sites/veritas_d/files/MARRIAGES%20ACT%20No.%201%20of%202022.pdf > (accessed 8
December 2022).
65
the root causes and usually face little opposition from within cultural and religious
communities.
This often takes place with the consent from the girls’ parents or guardians. Special attention
has been paid to the ethical considerations given the sensitive nature of the research topic that
requires participants to share highly personal information. The researchers were aware that
getting people to freely share such information could be problematic hence a strict observance
to ethics was followed. The data that was collected from KIIs was treated confidentially with
any potentially identifying information being carefully omitted in the presentation. An effort to
restrict narratives to broader societal dynamics was followed to respect the sources of
information. This also involved not mentioning the organisations from which KIIs came from
since their participation in the study involved sharing information to third parties.
2 Child Marriage and the Law: Understanding Recent Legal and Policy Developments in
Zimbabwe
When discussing the issue of child marriage, regard must also be paid to the existing legal
framework and emerging consensus of values in the international community to which
Zimbabwe is a party. The said frameworks provide on how children should be treated and their
well-being protected so that they can play productive roles in society upon attaining adulthood.
2.1 The Law and Child Marriage in Zimbabwe
The Constitution ensures gender equality, which provides for justiciable rights and well-
elaborated array of children's rights under section 81. Section 78 of the Constitution (Marriage
Rights) sets a minimum age for marriage at 18 and prohibits forced marriage. Section 80(3) of
the Constitution permits no exception for religious, customary, or cultural practices that permit
child marriage, nor does it allow for exceptions based on the consent of a public official, or of
the parents or guardian of the child. When read together with section 81(1) of the Constitution,
section 78(1) has effectively reviewed local traditions and customs on marriage. The legal
change is consistent with the goals of social justice at the centre of international human rights
standards requiring Zimbabwe to take appropriate legislative measures, including constitutional
provisions, to modify or abolish existing laws, regulations, customs and practices inconsistent
with the fundamental rights of women and by implication the girl child.
34 The apparent need to
overcome obsolete traditions that allow for girls to enter into marriage below the age of 18, or
at times, even at the age of 16, is indisputable.
The Domestic Violence Act criminalises domestic violence, any cultural or customary rites as
well as any practices that discriminate or degrade women.
35 Examples of such practices include
virginity testing, female genital mutilation, offering women and girls for purposes of appeasing
spirits, abductions, child marriage, forced marriage, and forced wife inheritance. In terms of
section 4 of the Act any person who commits an act of domestic violence shall be guilty of an
offence and liable to a fine, not exceeding level fourteen, or imprisonment for a period not
exceeding ten years, or to both. Section 94(1b) Criminal Law (Codification and Reform Act)
34 http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100002 accessed September
2022
35 Constitution of Zimbabwe, Chapter 5:16 Domestic Violence Act (14), <www.law.co.zw/download/160>
(accessed 8 December 2022).
66
also prohibits the pledging of a woman without her consent and of anyone under 18 years of
age in marriage.
36
In the case of S v Ivhurinosara Ncube, the High Court on review noted that, although the State
had not incorporated the CRC into domestic law, it takes its obligations seriously, including the
requirement under Article 19 that it ought to protect children from all forms of violence
including sexual abuse.
37 The High Court disapproved of the magistrate considering a
consensual relationship as a mitigating factor in such a case, particularly due to the age
discrepancy seeing as the accused was 30 years old and the complainant was only 15 years old
at the time of the crime. In the court’s view, this age difference placed the girl in a vulnerable
position. The High Court did not approve the decision by the marriage to endorse a child
marriage, the magistrate ought to have been more critical of the nature of the relationship and
considered that the family reported the criminal charges against the accused.
The Customary Marriages Act did not specify the minimum age of contracting into a marriage.
The new Marriages Act in section 3 outlaws child marriage. This legislation is in line with the
SADC Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage
(Model law). The main objective of the Model Law is to serve as a measurement and advocacy
tool for legislators in the SADC region. It also establishes the most advanced practice and
language that can be easily adopted or adapted by member states in their national laws. The
Marriage Act reaffirms a human rights approach focused on the rights of women and children
to effectively tackle the issue of child marriage. This is the first legislation in Zimbabwe that
comprehensively outlaw’s child marriages without any exceptions. However, it can be argued
that specific issues relating to child marriage should have been addressed in a separate
legislation.
There is room for improvement as the problems associated with child marriage requires
substantial and comprehensive approaches to curb it. The Act could have borrowed some of the
standards set out in the SADC Model law on child marriages to promote full implementation,
hence some sentiments to the effect that the issues of child marriage would have been best
provided for in a separate Act. This would have resulted in a more encompassing institutional
framework and a necessary multi-sectoral approach. Nonetheless, parts of the legislation such
as section 46 appear promising since it enables the responsible Minister to introduce regulations
to provide for administrative implementation framework of the Act.
2.2 Potential Legal and Policy Gaps as Drivers for Child Marriages
Laws on their own do not transform people’s circumstances unless there are deliberate
coordinated efforts to implement them. The implementation and enforcement of laws on child
marriage across Africa are associated with several common problems.
38 These include weak
judicial systems, a lack of effective monitoring and enforcement mechanisms that could prevent
36 Constitution of Zimbabwe, Chapter 9:23 Criminal Law (Codification and Reform) Act 23, 2004
<old.zimlii.org/zw/legislation/num-
act/2004/23/Criminal%20Law%20%28Codification%20and%20Reform%29%20Act%20%5BChapter%209-
23%5D.pdf> (accessed 8 December 2022).
37 S v. Ivhurinosara Ncube, High Court of Zimbabwe (CRB M 225/10, REV 33 of 2010), ZWHHC 335 (25
September 2013).
38 See B. Kombo et al. (eds.), ‘A journey to equality: 10 years of the Protocol on the Rights of Women in Africa:
Equality now’, 201:3.; V. O. Ayeni, ‘The impact of the African Charter and the Maputo Protocol in selected
African states: Zimbabwe’, 2016, p.281-296.; F. Banda, ‘'Blazing a trail: The African Protocol on women's
rights comes into force’, 50, Journal of African Law, 2006, p.72-84.
67
or sanction child marriage, a poor understanding of laws, a lack of adequate training and
coordination between amongst government ministries, a lack of a clear delegation of
responsibilities to specific authorities, a lack of guidelines on how to handle child marriage
cases, and ad hoc responses.
39 Concerning the African continent, very few examples of
prosecutions are mentioned within the literature.
40 It is also noteworthy, that in cases where
existing laws have been reinforced, child marriage is conducted in secrecy. This has far-
reaching implications for the accessibility of health care services for underage married children,
forcing them to give birth without medical supervision and support.
Enacting a law that addresses child marriage allows the government to clarify its position
around this controversial and sensitive issue. Whilst it may be premature to discuss the
consistency of implementation at this stage, it is important to analyse whether the legislation
has been framed with the necessary imperatives that support effective and consistent
application. Notably, the Act is meant to consolidate and provide various laws pertaining to
marriage in Zimbabwe. This immediately shows that child marriage is not the focus of this
Act but is rather one of the issues dealt with amongst other marriage-related topics.
The law also fails to address the role of traditional justice systems as chiefs who will be
appointed as customary marriage officers under the Act. A clear framework for technical
support and training for traditional leaders should be in place. The impact of informal justice
system on curbing child marriage cannot be undermined. The key consideration should be on
what entails real community participation in fighting child marriages. Community participation
in this case can therefore be equated with a local or bottom-up approach, and can be contrasted
with state-driven, top-down or legalistic approaches. Sceptics would argue that several
governments adopt laws initially to look good and to satisfy developmental aid donors and
other powerful international actors rather than meeting the societal needs.
41 It is imperative for
communities to have ownership of this law for improved attitudinal and practice reforms. Local
courts should have jurisdiction to deal with cases involving child marriage within the limits of
their ordinary jurisdiction in terms of the Customary Law and Local Courts Act [Chapter 7:05].
Child marriage remains prevalent in remote rural areas where there is limited access to
information and infrastructure. The other ever-present challenge that remains is the necessity
to raise awareness and promote acceptance of the recently enacted law, particularly in areas
where child marriage is disproportionately often practised such as in rural areas. Thus, laws can
often be seen as foreign or irrelevant concepts to remote rural populations. Thus, to improve
implementation and ownership of this Act, the responsible minister should, in consultation with
other relevant ministries, such as the Ministries of social welfare, health, child welfare and
gender or women's affairs, set up committees of social welfare officers or any person involved
in community work, such as chiefs or headmen, to anti child marriage champions. Section 9(1)
of the Act makes every chief a marriage officer for a customary law marriage in the district in
whichthey hold office. Section 9(2) provides that:
No later than four months from the date of commencement of this Act, or from the date of investiture of any
Chief, as the case may be, the Minister shall ensure that every chief is certified as competent to carry out the
39 Ibid.
40 C. Chikunda et al., 'The impact of khomba - a Shangaan cultural rite of passage - on the formal schooling of
girls and on women's space in the Chikombedzi area in Zimbabwe, Indilinga', 5 (2), African Journal of
Indigenous Knowledge, 2006.
41 M. Kim et al., ‘When Do Laws Matter? National Minimum-Age-of-Marriage Laws, Child Rights and
Adolescent Fertility, 1989-2007’. 47(3), Law & Society, 2013, pp.589-619.
68
duties of a marriage officer for the purposes of solemnising marriages according to customary rites. Chiefs
could even be prosecuted under s3 if they solemnise a marriage of underage persons or a person.
42
Following the introduction of the Marriages Act, by January 2023, all chiefs should have
received such training. This is an ambitious timeframe and will require that the Minister of
Justice prioritises that effort. This training is key in detecting instances or likelihood of child
marriage.
In 2019, a novel National Action Plan and Communication Strategy on Ending Child
Marriage (2019-2021) was crafted. The plan was said to be an expression of the commitment
by the government, civil society organisations, and development partners to work together
to end child marriage.
43 A simple yet effective evaluation process should have been adopted
to determine accomplishments and to inform future actions especially in light of the new
legislation.
2.3 The Intersection Between of Gender, Culture, and Child Marriages – Conceptualising
Non-Legal Drivers of Child Marriages.
Besides the gaps that exist in the legal and policy framework in Zimbabwe, child marriage must
be understood as a practice that is ingrained in normative and structural arrangements of the
society. In 2018, UNICEF recorded that one in every five children is married before reaching
18 years, with one in every three of these children being from Sub-Saharan Africa.
44 This is
further supported by the Plan International report from 2019 that identifies the prevalence of
child marriages as a worrying development in Africa.
45 In other sects of communities, child
marriage has been normalised. Cultural, gender, and structural dynamics of society have a
crucial impact on child marriage both as risk factors and as potential protective factors. This
paper argues that, in addition to legal and policy gaps that facilitate child marriages, there are
other factors that must be considered such as the intersections of poverty, lack of educational
opportunities as well as norms which are gendered in their existence.
2.3.1 Cultural and Religious Norms Enabling Child Marriages
Culture is a source of identity for every community and playsa crucial role in the life of individuals
andthecommunity at large.
46 It represents customs, practices, and beliefs which provide a sense
of belonging, identity, and continuity with past existing values.
47 Different cultures exist
around the world and the diversity that exists among cultures is recognised and emphasised
in the values of cultural relativism and specifically in the discourse on the relationship
42 Constitution of Zimbabwe, Chapter 7:05 Customary Law and Local Courts Act,
<www.zimlii.org/akn/zw/act/1990/2/eng@2016-12-
31#:~:text=AN%20ACT%20to%20provide%20for,or%20incidental%20to%20the%20foregoing.> (accessed 8
December 2022).
43 The National Action Plan, coordinated by the Ministry of Women Affairs, Community, Small and Medium
Enterprises Development, was developed in consultation with several stakeholders.
44 UNICEF, ’Child Marriage: Latest Trends and Future Prospects’, July 2018, <data.unicef.org/resources/child-
marriage-latest-trends-and-futureprospects/>, (accessed 9 December 2022).
45 Plan International, ‘18+ Ending Child Marriage and Teen Pregnancy in Eastern and Southern Africa, Learning
for Change’, 20 August 20, < plan-international.org/publications/18-ending-child-marriage-and-teen-
pregnancy/>, (accessed 9 December 2022).
46 T. Kaime, (ed.), The African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective, (Pretoria
University Law Press, 2009), p.32.
47 N. Wadesango et al., ‘Violation of Women’s Rights by Harmful Traditional Practices’, 13:1, The
Anthropologist (2017), pp.121–129.
69
between human rights and culture.
48 Consequently, within African societies contradictions
prevail between the practical applicationof human rights standards and the promotion of
customs and traditional practices. The discourse on the contradictions often results in a
debate between the universality of human rights and cultural relativism.
49 The age of marriage
for a girl, for example, is such an area of contradiction between human rights and culture that
is highly contested. Equally controversial and disputed are the concepts of adulthood and
childhood in Africa. While Article 21(2) of the ACRWC sets the minimum legal age of
marriage at 18 years, there are cultural practices and religious beliefs in several African states
that do not recognise the legal age of marriage, nor do they use age to determine a girl’s level
of maturity.
50
In our exploratory investigation in the study, we engaged key informants to gather their views
on the subject. It was apparent that child marriage is still upheld as part of certain communities’
way of life especially from a religious point of view. This was corroborated by the advent of
puberty among girls which was seen as the key trigger development for child marriages
especially for girls who were then considered mature enough for marriage.
51 This is further
supported by studies conducted in and on Tanzania that identified puberty as one of the main
triggers of child marriages for girls.
52 In the context of Zimbabwe, key informants who included
activists against child marriage, identified the Apostolic Sect which is mostly concentrated in
the Manicaland province of Zimbabwe as the most prominent region where the practice
continues to be prevalent. The religious factors were said to promote child marriages mostly
due to the polygamous practice of the sect which promotes early marriages of underaged girls.
Evidence showed that such apostolic sects are highly exclusive societies which are sheltered by
norm enforcement among the followers making it difficult to access to victims. The limited
access to such communities facilitates the perpetuation of the practice and sometimes makes it
difficult for the law to take its course in punishing those committing or aiding child marriages.
One key informant described apostolic sects as communities governed by their own rules and
norms which are mostly contrary to the national laws especially concerning adolescent health
and child marriages. The respondent further highlighted that there is a political dimension to
the issue in which the state is reluctant to completely enforce the law because members of the
Apostolic Sect are a key population of loyal voters whose values and norms need to be
protected. It is difficult to conclusively confirm this argument but most activists shared similar
sentiments through extrapolation. Anecdotal evidence shows rampant practice of child marriage
in Manicaland especially in the apostolic sects, yet there is limited evidence of the national law
being enforced to punish those aiding or committing child marriage.
The study also attempted to engage people who have married underage girls to establish their
reasons behind such actions. Evidence showed that cultural norms driven by the need to satisfy
48 Ibid.
49 UNICEF,‘Early Marriage a Harmful Traditional Practice, A Statistical Exploration’, October 2015,
<data.unicef.org/resources/early-marriage-a-traditional-harmful-practice-a-statistical-exploration/>, (accessed 9
December 2022).
50 C. Himonga, ‘The Right of the Child to Participate in Decision Making - A Perspective from Zambia’, in W.
Ncube (ed.), Law, Culture, Tradition and Children’s Rights in Eastern and Southern Africa (Ashgate
Dartmouth, 1998) p. 100.
51 African Union, ‘The Effects of Traditional and Religious Practices of Child Marriage on Africa’s Socio-
Economic Development - A Review of Research, Reports and Toolkits from Africa’, October 2015,
<au.int/sites/default/files/documents/31018-doc-5465_ccmc_africa_report.pdf>, (accessed 9 December 2022).
52 L. Stark, ‘Poverty, Consent, and Choice in Early Marriage: Ethnographic Perspectives from Urban Tanzania’,
54:6, Marriage & Family Review, (Taylor & Francis, 2018), pp. 565–81.
70
masculinity fantasies was a strong force. The desire to marry a virgin was highlighted as
particularly significant in line with the notion of purity. There was a strong belief that younger
girls who are just entering puberty were most likely to be pure and virgins, hence they would
be the best candidates to satisfy masculine fantasies. This consequently promoted a belief
system that is based on the idea that the purity of girls would be damaged or diminished if they
were allowed to grow into adults prior to their marriage. This unwritten normative belief system
directly influences and enables men as the main drivers and perpetrators of child marriage. Such
positions were also supported by key informants who shed light on the topic through their
experiences gathered as they worked in communities with high levels of child marriages. They
indicated that men believe that marriage is meant to meet the expectations and fantasies of men.
Linked to the above, it emerged that men viewed underage girls as more submissive and
generally amenable to go under cultural practices or rites. By extrapolation on the mentioned
point, victims of child marriages were easy to manipulate and dominate which reinforces toxic
patriarchal tendencies that portray girls and women as objects for manipulation. Girls and
women were, therefore, relegated to the reproductive duty and being exposed for exploitation
by men who viewed themselves as entitled to the control of girls and women. It can then be
argued that child marriage becomes a manifestation of the sexual conquest perpetuated by toxic
masculinities in Zimbabwe, concentrated in areas where child marriages is rampant. In one
interview with an activist whose organisation has been working in the Chipinge area of
Manicaland Province to eradicate child marriages, an exercise referred to as normative mapping
has shed light on why men end up marrying underage girls. Their reasons showed that
deprivation and limited exposure to external environments creates low self-esteem among men
who then seek validation through marrying someone they can dominate, exploit, and fulfil a
sense of power. In their analysis, this becomes reverse exploitation which starts from men being
marginalised and exploited by the broader macro system. It is important to note that these toxic
ideas and perceptions of masculinity and the notion of purity is deeply enshrined and oftentimes
stems directly from religious beliefs. The broader macro environment in which people live
influences how they make every day decisions including sexual relations.
2.3.2 Limited Educational Opportunities
The intersectionality of drivers of child marriages should be understood in their broader context
to achieve a more nuanced picture. There is evidence that poor educational opportunities could
be understood as both a driver and consequence of child marriage.
53One key informant from an
organisation dealing with survivors of child marriages elaborated that child marriages resulting
in teenage pregnancies are the biggest drivers of school dropouts for girls. Contextualising this
with the COVID-19 pandemic, there was an acceleration of incidences of teenage pregnancies
in Zimbabwe. According to a report presented by Women Affairs Minister Mrs. Sithembiso
Nyoni on the level of public service delivery related to sexual and gender-based violence during
the COVID-19 pandemic in Parliament, Zimbabwe recorded, for instance, approximately 5 000
teenage pregnancies and about 2 000 child marriages between January and February 2021.Such
high numbers reflect the rampant sexual exploitation that adolescents especially girls suffered
during the COVID-19 lockdown. Interviews with key informants in the education sector
confirmed that teenage pregnancies during COVID-19 led to school dropouts among girls
despite the law providing for the reintegration of girls into the official school system.
53 A. Karam, 2015), ‘Faith-Inspired Initiatives to Tackle the Social Determinants of Child Marriage’, 13:3, The
Review of Faith & International Affairs (2015), pp.59–68.
71
The study highlights that once girl becomes pregnant; they be expected to get married. This
was also explained as being perpetuated by family pressure that drives girls to enter marriages
to avert bringing shame to the girl’s family. These are additional normative systems which are
contributing towards child marriage despite the existing legal and policy framework against
such practices. The nexus between child marriage and poor education opportunities was also
explained by our key informant in the education sector who described schools as protective
factors. It was established that the more girls remain in schools, the more they are protected
from teenage pregnancies and child marriage. In communities where child marriage is
particularly prevalent, there is evidence that girls have an extremely low educational attainment
level. The schools’ system occupies the girls and provides an alternative life pathway outside
of marriage.
54
The law, especially in the context of Zimbabwe, is often poorly understood in rural areas and it
is indisputable that it would become more effective to those who are aware of it and who can
utilise it to advocate for their rights. People who have a substantial understanding of the law
and are aware of its implications are mostly based in urban areas and rarely in rural ones. Such
people are mostly based in urban areas and a few in rural areas who are enlightened. The gap
that is created in rural communities due to lack of knowledge is quickly exploited in by cultural
and religious norms. Rural communities find their norms as more relevant to their way of life
than state laws. This was supported by a key informant who has been working in rural areas to
sensitise rural communities on laws around child marriages. The key informant indicated that
there is a general perception among people in the rural areas that the law serves the interests of
the state while culture serves the interests of the people. This divide, therefore, implies that
people are likely to believe in their cultural norms than they are likely to embrace law which
they see as foreign and serving the state’s interests. This has led to the perpetuation of harmful
cultural practices such as child marriages despite the laws against it.
2.3.3 Vulnerability of Children Due to Poverty
Families that have children who become victims to child marriages are generally extremely
poor in both absolute and relative forms. This section connects to the earlier explored normative
factors that drive child marriages by contextualising how deprivation and pervasive poverty has
also catalysed child marriage in Zimbabwe. In this view, girls are then regarded as economic
objects their families. This is also linked closely to the payment of roora/lobola (bride price)
and how this is inadvertently considered as a source to secure livelihoods for the overall survival
of the family. In this study, KIIs corroborated that the marrying off girls is often for economic
gains. Under such circumstances, parents of the victims become complicit in the commission
of the practice and participate in the covering up against any possible prosecution and
investigation.
KIIs who have collaborated with survivors of child marriages explained that the practice thrives
on legacy referencing in which a mother who was a victim of child marriage would not see
anything wrong about the practice and will likely have her girls enter into marriage while they
are still underage. This creates generations upon generations of victims of child marriage.
54 A. Biddlecom et al., ‘Associations between Premarital Sex and Leaving School in Four Sub-Saharan African
Countries’, 39 (4), Studies in Family Planning (2008), pp. 337-350.
72
2.4 Best Standards to Curb Child Marriages
Legislative reforms alone may not lead to the desired change. Instead, a comprehensive
approach is recommended. The SADC Model Law lays out concrete guidance around
prevention of child marriage and betrothal and takes a multi-faceted approach. It provides that
a person who is requested to, or is about to, solemnise a marriage, and suspects that one or both
parties are children, must verify the age of the child by means of a birth certificate, identification
card, or other official document that can reveal the identity and age of the child. The issue of
birth registration remains problematic in Zimbabwe with most people not having personal
identity documents including birth certificates. The need to make birth registration mandatory
is, consequently, urgent. The law should provide for establishment and continuous training of
child marriage prohibition officers, judicial officers, law enforcement officers, traditional
leaders, religious authorities, other public officers and policy makers to raise awareness about
the dangers and effects of child marriage and how to report them.
For the law to work, a clear collaborative framework for stakeholders in necessary. The Minister
of Justice Legal and Parliamentary Affairs should immediately set out the regulations specific
to section 3 of the Act to build necessary framework for awareness raising and preventive
measures. The framework should involve and mobilise local committees to enable reporting of
child marriages and, for instance, to establish community watch committees with the support
of traditional leaders or religious authorities to prevent and respond to child marriages. The
Model law also recommends the establishment of an anti-child marriage fund for purposes of
eradicating child marriage, preventing child marriage, assisting children already in marriages,
assisting victims of child marriages and supporting the general implementation of the measures
towards this cause. This is very pertinent as fighting child marriages urgently requires more
resources.
The law will only be effective if there is increased awareness among the local communities,
traditional leaders, and comprehensive strategies to address the main drivers of child marriage
such as poverty, gender inequality, and lack of security. Traditional and religious leaders ought
to be given pronounced roles and responsibilities in curbing child marriages considering that
some of the key causes are embedded in cultural and religious beliefs.
3 Conclusion
The enactment of the Marriages Act is a progressive step towards the elimination of child
marriage in Zimbabwe. However, there is a lack of a strong framework to implement it in order
to successfully curb the scourge of child marriage. The critical question that must be raised to
design and implement this framework is: In what context does child marriage exist? This
question looks at the political, economic, and social environment. This includes judicial systems
that conduct criminal trials, investigations, tracking, monitoring, effective prosecutions, other
constitutional systems that create a framework for administering justice and accountability
processes, education, and religious and cultural norms.
73
5 The State of the Human Rights of Ethno-Cultural Minority Groups in Zimbabwe:
Reflections on the Doma People of the Zambezi Valley
Kwashirai Zvokuomba, Itai Kabonga and Pachipano M. Chingozha
*
Abstract
The promotion and advancement of the rights of ordinary people set out by the Declaration of
Rights in Zimbabwe is enshrined in the Constitution of Zimbabwe Amendment (No. 20) Act,
2013. The role of the Declaration is the protection, implementation and enforcement of the
rights of all human beings. Many aspects of human life are now legally or in principle
protected by the Declaration despite many challenges, including alignment and
operationalisation of the various statutes with the Constitution. The rights of minority groups
have always been an aspect of human rights debates as evidenced by the contestations around
the rights of other minorities elsewhere such as the Batwa commonly known as Bushmen
people in the Kalahari Desert and the inhabitants of the Amazon rain forest. The study,
therefore, assesses the rights of the Doma minority group in the Zambezi valley and, guided
by a qualitative research framework and a human-rights-based-approach, brings to the fore
new insights. For the fieldwork, purposive sampling was utilised to target informants and
participants in Wards 1 and 11 which are the Doma domiciles. The data from respondents was
complemented by the desk inquiry to sustain the main study argument that the Doma’s way of
life is devoid of enjoyment of fundamental human rights. This is highlighted by limited
education services provided to them since there are fewer schools in the wards than in any
other region of the country. The study further argues that limited schooling and low literacy
levels has subsequent effects on being receptive of one’s rights considering that a lack of
knowledge affects, for instance, the participation in public life or the access to health care. The
study concludes by arguing that the State, as the key duty bearer, ought to provide effective
mechanisms and special policy positions on the Doma people that not only protect but promote
Doma traditional way of life and involve relevant stakeholders in the movement.
Keywords: human rights, minority group, ethnicity, law, Zambezi valley, Doma people.
1 Introduction
The study interrogates the interplay of the Doma people’s way of life and the fundamental
human rights as enshrined in the Constitution of Zimbabwe of 2013. It poses the question
whether the Doma people’s form of civilisation is promoted and protected by new aspects of
the Constitution which were absent in the 1979 Lancaster House Constitution. The answers to
this research question arise from the Doma people’s experiences and other field-based
empirical evidence. Within this methodological context, the study highlights the nuances about
contemporary human rights of ethno-cultural minorities in Zimbabwe from a human-rights-
based approach. The findings inform not only the academic community but policy makers and
other stakeholders as well as the Doma people themselves about basic human rights,
accountability levels and decision-making. The promotion of human rights augurs well for
those who have historically been neglected in mainstream socio-cultural, political and
economic development. The research satisfies the main research question of how much the
fundamental human rights and freedoms, as provided in the Zimbabwean Constitution of 2013,
affect the lives of the Doma people who are a cultural minority group that practices a semi-
* The authors are human rights professionals and researchers active in Zimbabwe.
74
foraging lifestyle in the Dande Forest. Therefore, the study examines the role and application
of the Declaration of Rights amongst this ethno-cultural minority group to answer the
following research questions: a) How are the Doma, as a minority group that follow a
traditional way of life protected by the Declaration of Rights in the Constitution of Zimbabwe?
b) How much does the Declaration of Rights in the Zimbabwean Constitution challenge the
behaviour of the Doma as right holders? c) What can be done to promote and protect the rights
of the Doma people as a minority group? The research article is structured as following: the
first part introduces the study by providing a historicised background of the Doma. It further
provides a theoretical framework, namely a human-rights-based-approach, which guided the
whole investigation and the methodological directions as well as the field-based data
generation modalities. The second part focuses on the presentation of gathered data and the
discussion in which the major findings and arguments are presented.
2 Justification and Contextualisation of the Doma Study
The rationale for the study is based on the fact that few scholars have investigated the cultural,
political and economic life of the Doma from a human-rights-based-approach. That is partly
because the Doma are geographically located in an isolated area of the Zambezi valley which
is difficult to navigate due to poor communication and the lack of public infrastructure including
roads.
1 The semi-arid region of Zambezi is characterised by harsh climatic conditions, very
high temperatures and is infested by tsetse flies. Such conditions effectively discourage
researchers
2 which is why it is widely acknowledged that little has been written about the Doma
as a minority group and their rich knowledge systems. In his book, Guns and Spirit Mediums,
David Lan states that, “[the Doma people] are a small population and in keeping with their
elusive and recalcitrant style they appear only occasionally in this book”.
3 The lifestyle of the
Doma people has been shrouded in mystery, racist mythology and in recent years,
misconceptions.
4 Myths about the Doma exist because little is known about them through
researchers and policy makers, hence, their stories have been told by travellers, hunters and
tourists who had the capacity to transverse the bad terrain around the Zambezi valley. The media
has equally given a limited account of the situation of the Doma culture and, where newspapers
have done so, and where newspapers have done so, they depict them as primitive and over-
emphasise the prevalence of ectrodactyly for economic gains.
5 The ectrodactyly phenomenon
is a split-foot malformation which has been exaggerated in the case of the Doma people to
reinforce the negative stereotypes about this minority group. The few studies that exist about
the Doma did not focus on the Doma human rights but instead only on their traditional
knowledge systems.
6 Thus, the study of the Doma people from a human-rights-based-approach
is meant to be part of new body of legal anthropology studies in Zimbabwe on minority groups.
1 D. Lan, Guns and rain: Guerillas and spirit mediums in Zimbabwe (African Publishing Group, Harare, 1985).
2 R.A.P Hasler, Agriculture, Foraging and Wildlife Resource use in Africa (Kigan Paul Publishers, London,
1996).
3 Lan, supra note 1.
4 E.M. Chiwome, Z. Mguni, and M. Furusa, Indigenous Knowledge and Technology in Africa and Diaspora
Communities (Multi-Disciplinary Approaches National Council for Black Studies, California, 2000).
5 C. Matema, ’Zimbabwe’s CAMPFIRE public investments: Impact on education, adaption and preferences’.
PhD Thesis (University of Cape Town, 2019).
6 C. R. Cutshall, . Kanyemba/Chapoto Ward: A socio-economic baseline survey of community households,
(Centre for Applied Social Sciences, University of Zimbabwe, Harare, 1990); C. Nhira, ‘A socio-economic
appraisal study of the Chapoto ward – Guruve District’, working paper (University of Zimbabwe, 1989); S. T.
Hachipola, ‘A Survey in the Minority Language of Zimbabwe’, (University of Zimbabwe Publications, 1998);
Lan, supra note 1; Hasler, supra note 2; Chiwome et al., supra note 4.
75
At the international level, Minorities Declaration of December 1992 grants the right to
minorities to be protected by states, including the protection of their existence and their national
or ethnic, cultural, religious and linguistic identity. At the national level, the Zimbabwean
Constitution of 2013 is very clear on the rights of all groups as article 16 (1) states that “[t]he
State and all institutions and agencies of government at every level must promote and preserve
cultural values and practices which enhance the dignity well-being and equality of
Zimbabweans”
7.
This should be read together with article 63 which elaborates the rights to language and culture,
the use and preservation of an own language and the right to participation in the cultural life of
choice. How these rights, including the right to education as provided in article 75 as well as
the right to health care, are promoted by the State and other stakeholders remains to be seen.
Thus, the goal of the study is to produce field-based empirical evidence and documentation on
the state of human rights of the Doma several years after the implementation of the Declaration
of Human Rights in the Constitution of the country. The study closely examines how the Doma
peoples’ human rights are promoted or abrogated.
3 The Doma in the Historical Context
The Doma qualify both as a minority and an indigenous group in Zimbabwe. The United
Nations report acknowledges that there is no agreed international definition of what constitutes
a minority group. However, the study adopts the 1977 definition of Francesco Capotorti which
he gave as a UN Special Rapporteur as part of the UN Sub-Commission on the prevention of
discrimination and protection of minorities:
A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose
members being nationals of a State possesses ethnic, religious and or linguistic characteristics different from
those of the rest of the population and show, if only implicit, a sense of solidarity, directed towards preserving
their culture, tradition, religion or language.
8
Besides being a minority group, the Doma people also fit into an indigenous category, as
defined by the FAO as, “[…] those who retain knowledge of their land and food resources
rooted in historical continuity within their region of residence”.
9 Another definition, which
refers to the Doma as indigenous people, also states that, “communities…people…which,
having been a historical continuity with pre-invasions and pre-colonial societies that have
developed on their territories, consider themselves distinct from other sectors of societies now
prevailing in those territories or parts of them”.
10 Thus, oral history about the Doma makes them
both a minority group and indigenous peoples of the Zambezi valley.
11 This relates to
speculations about the origins of the Doma who are believed to originate from the same group
of people as the Chikunda. It is unknown to historians and anthropologists at which point in
time they separated from each other. Another speculation argues that the Doma could have
come from Chicoa or Songo, an area around Kebera Bassa gorge in Mozambique, sometime in
7 Government of Zimbabwe. Constitution of Zimbabwe (Harare, 2013).
<constituteproject.org/constitution/Zimbabwe_2013.pdf> (accessed 16 January 2023). Article 16(1).
8 United Nations,‘Minority rights: International Standards and Guidance for Implementation’. HR/PUB/10/3,
2010, <ohchr.org/sites/default/files/Documents/Publications/MinorityRights_en.pdf> (accessed 16 January
2023).
9 V. H. Kuhnlein B. Erasmus, and D. Sprigelski,Indigenous Peoples Food Systems, (FAO,Geneva, 2009).
10 D. A. Posey(ed.), ‘Cultural and Spiritual Values of Biodiversity’, UN Environmental Programme, 1999,
<unep.org/resources/publication/cultural-and-spiritual-values-biodiversity> (accessed 16 January 2023).
11 A. Isaacman, ‘Chikunda transfrontiersmen and transnational migrations in pre-colonial south central Africa,
ca1850-1900’. Zambezia XXV11 (11), (2000).
76
history and moved to their present location well before the Chikunda moved to the Kanyemba
area.
12 This narrative fits into many historian’s accounts today which state that the Doma left
Kabora Bassa gorge as they fled from Portuguese slave raiders who arrived to capture local
populations to force them to work on their plantations. The third speculation claims that the
Doma are the descendants of a sub-ethnic group of the Shona, namely the Korekore, who may
have decided to live in isolation around the Chewore Mountain to avoid raids from the
Chikunda, the Kololo, the Lozi and the Ndebele armies.
13 It is argued states that the Doma
lineage was linked to a grand ancestor called Nyamapfeka.
14 Evidence indicates that the Doma
might have been a low status group in this era of raids and counter raids who depended on the
rouged terrain to live in an isolated and independent existence. This argument fits into
contemporary cultural practices of the Doma, hence, the origins of the Doma people remains
shrouded in mystery with no clear explanations. The issue has become even more complex due
to inter-marriages with other groups through deepening complexities of ethnic identity.
15 The
map of the Mbire district below shows the areas where the Doma people reside on the fringes
of the Dande national parks.
Figure 1: Map of the Mbire district
16
The Mbire district endowed with wildlife and located on the peripheries of the metropolitan
areas has not been a candidate for legal anthropological studies. Thus, the study focuses on
aspects of international human rights and their application at the local level in communities that
usually only attract research on food security, disaster management and wildlife-human
conflicts. Three communities, that is, Chapoto on the north and bordering with Zambia, Angwa
on the general east and Masoka on the south western side are communities around Dande forest.
Ethically, they are habited by the Kore-Kore, Chikunda, Karanga and the Doma. However, the
Doma dwell on the border with the forest for easy navigation and pursuing their hunting
lifestyle. See map above.
12 Ibid.
13 D. Beach, The Shona and Zimbabwe 900-1850: An outline of Shona history. (Heinemann, Londom, 1980).
14 C. S. Lancaster, ‘Ethnic identity, history and ‘tribe’ in the middle Zambezi valley’ 1 (4) American Ethnologist.
pp. 707-730; Nhira, supra note 6; Cutshall, supra note 6.
15 Hasler, supra note 2.
16 Matema, supra note 5.
77
4 Theoretical Framework
A human-rights-based approach (HRBA) aims to support better and more sustainable
development outcomes by analysing and addressing inequalities, discriminatory practices and
unjust power relations which are often at the heart of development problems. In this vein, the
human-rights-based approach has been viewed as a central pillar of the United Nations work
since its inception in 1945 as an organ that is believed to address the inadequacies of the League
of Nations as it adopted the Charter on human rights. This was motivated by the fact that world
leaders realised that humanity deserved better approaches to life as opposed to the horrendous
effects of World War I and World War II that they had witnessed. The Human Rights Based
Approach (HRBA) is a conceptual framework for the process of human development that is
normatively based on international human rights standards and operationally directed at
promoting and protecting human rights. It seeks to analyse inequalities which lie at the centre
or heart of all development problems that affect communities in order to address discriminatory
practices and the unjust distribution of power. The inequalities inevitably impede development
progress and often result in a group of people being left behind.
Under the HRBA, the contemplated plans, policies and processes of development are included
in a system of rights and corresponding obligations established by international law. The HRBA
also requires human rights principles to guide a nation’s development cooperation and focus on
developing the capacities of both duty bearers, to meet their obligations, and rights holders, to
claim their rights. The human rights principles include transparency, individuality, equality,
accountability, universality, participation and non-discrimination. There is, however, no
universal formula for a HRBA but the UN agencies have agreed on a number of essential
aspects that should be considered. These features, as agreed in 2003, indicate the following:
All programs of development cooperation, policies and technical assistance should
further the realisation human rights as laid down in the UDHR and other international
human rights instruments
Human rights standards contained in and principles derived from the UDHR and other
international human rights instruments guide all development cooperation and
programing processes
Development cooperation contributes to the fulfilment of duty bearer’s obligations
and/or of rights holders to claiming their rights
17
The HRBA is one of the six guiding principles of the United Nations Sustainable Development
Cooperation Framework and is also guided by the principle ‘leave no one behind’ (LNOB).
This is the central and transformative promise of the 2030 Agenda for Sustainable Development
Goals (SDG). It represents the unequivocal commitment of all UN member states to eradicate
poverty in all its forms, end discrimination and exclusion, reduce inequalities and vulnerabilities
that place people in a disadvantaged position and undermines the potential of individuals. The
LNOB principle not only entails supporting the poorest of the poor but requires addressing
discrimination and rising inequalities within countries at their root causes. A major cause that
results in people being left in disadvantaged positions is discrimination, including gender-based
discrimination, which leaves individuals, families and whole communities marginalised and
excluded.
17 United Nations Sustainable Development Group, Human Rights Based Approach (2023), available at
https://unsdg.un.org/2030-agenda/universal-values/human rights based approach (accessed 02 May 2023).
78
5 Methodology
The study utilised a qualitative approach to understand the state of human rights of the Doma
people in Zimbabwe. A qualitative approach was used because it enabled the researchers to
capture the realities of the state of human rights from the perspective of the Doma people
themselves.
18 As argued, a qualitative approach allows the use of multiple data collection
methods.
19 We found this useful to acquire a deeper understanding of the state of human rights
of the Doma people through the use of in-depth interviews and a desktop review of relevant
literature. Purposive sampling, defined as a sampling approach in which the researcher has a
direct control over the elements included in the study
20, was utilised to select the respondents.
For this study, we wanted indigenous Doma people with extensive knowledge of the people’s
way of life, therefore, purposive sampling was particularly valuable as it allowed the inclusion
of respondents with rich information that were able to answer the research questions. In total,
we sampled 20 indigenous Doma people and eight key informants for the study. Even the
literature we reviewed was purposively sampled. Only the literature focusing on the state of
human rights of the Doma people, and their way of life was included in the study.
Data was collected using in-depth interviews to answer the research questions and further
clarifications were obtained through face-to-face interviews with key stakeholders. These data
collection tools and techniques were appropriate for the study as they allowed for researcher
probes and follow-up questions.
21 A total of 20 in-depth interviews were conducted with Doma
people to understand how the 2013 Constitution has been guaranteeing the human rights of the
Doma people in reality. The interviews were conducted in Shona to be accommodating to the
language kills off the Doma. The interviews lasted not more than 40 minutes, with a few
exceptions lasting up to an hour. Besides the interviews with the Doma people themselves, eight
key informant interviews were also conducted to buttress the data emanating from the Doma
people. These key informants included councillors from the two wards, a chief, a nurse, a police
officer, a teacher, a social welfare officer and a representative from the Mbire Rural District
Council. Their views were considered important for unravelling how the 2013 Constitution
promotes or undermines the human rights of the Doma people. We also conducted a desktop
study to complement primary data collected through the interviews. The desktop study was
carried out in form of a literature review as it ensured a contextual understanding of the way of
life of the Doma people. Though we worked with a guide who helped us navigate during our
fieldwork, we further obtained the active consent of all research participants which was
provided verbally due to illiteracy issues. There was no coercion to participate in the study and
the participants had the option to refuse participation or terminate and withdraw it at any given
point without any negative implications. We guaranteed anonymity of the data through the use
of non-identifying marks of the collected data as suggested in the literature.
22 We did not share
our field notes and recordings with people not involved in the study, thus guaranteeing
confidentiality. Data for this study was analysed through a thematic analysis which can be
18 D. Eyisi, ‘The usefulness of qualitative and quantitative approaches and methods in researching problems
solving ability in science education curriculum’. 7(15) Journal of Education and practice, (2016) pp. 91-100.
19 Ibid.; M. S. Rahman, ‘The advantages and disadvantages of using qualitative and quantitative approaches and
methods in language “testing and assessment” research: A literature review’. 6(19) Journal of Education and
Learning, (2017), pp. 102-112.
20 L. A. Palinkas, et al. ‘Purposeful sampling for qualitative data collection and analysis in mixed method
implementation research’, 42(5) Adm Policy Ment Health, (2015), pp. 533-544.
21 R. Rivas, and M. Gibson-Light, ‘Exploring culture through in-depth interviews: is it useful to ask people about
what they think, mean and do?’,57 Cinta Moebio, (2016), pp. 316-329.
22 A. Surmiak, ‘Confidentiality in qualitative research involving vulnerable participants: Researcher’s
perspectives forum’, 19(3) Qualitative social research, (2018), pp. 1-26.
79
understood as a process of identifying patterns and themes in qualitative data.
23 After
transcribing of the data, we went through the transcripts to identify emerging themes which are
presented below.
6 Data Presentation and Discussion of Findings
In this last part of the research document, we present the research findings and provide an
analysis which allows for cross referencing with other scholars and the HRBA. Since the field
engagements were within the qualitative research framework, data is presented and analysed
thematically, hence, the following themes are represented below: human rights and the Doma
culture; Doma traditional/ancestral land, food security and livelihoods; the Doma language,
school services and availability of health systems. Therefore, the central themes exemplify that
despite the introduction of the new Constitution in 2013 the Doma remain geographically
isolated and disadvantaged in terms of protection and enjoyment of their basic human rights
compared to other citizens. The attainment of basic rights, such as the right to food, education,
health, maintaining and retaining cultural practices, remains largely an idealistic goal among
the Doma people.
6.1 Lack of Claim to Ancestral Land
Historically, the Doma are the indigenous people of the area designated as Dande Game Park
under the Parks and Wildlife Authority today.
24 This was enacted during the colonial era and,
for the Doma community, the process of passing the law disregarded the fact that this was their
area of domicile. An interview with a representative of the Mbire Rural District Council, which
is the local government for the area, indicated that the Doma people have been in the Dande
area prior to the Mtapa invasion era but have partly lost total control of their land through the
establishment of the non-hunting area in 1952 which was enforced under the above act As an
indigenous minority group, the Doma do not have a claim to indigenous land since that right is
presently reserved for the Government of Zimbabwe.. As such, they are restricted to the fringes
of the game park which gives them limited opportunities to hunt. Under the Parks and Wildlife
Act, anyone who engages in hunting without the authority of the government is considered a
poacher and is liable for prosecution and may be arrested or shot on sight by armed park rangers
as authorised by the Act. Respondent 1 said:
Yes the Doma’s way of life is centred on hunting and gathering such that we do hide and seek with them in
the forest such that at times the discretion lies with the ranger to shoot or not. We know this is their way of
life but it contradicts the wildlife conservation approach held by governments worldwide.
25
The anti-poaching activities, despite the efforts to involve the Doma in wildlife conservation
under the Campfire programme, remains a hindrance to the expression of the Doma culture.
Respondent 2:
Hunting and gathering is a way of life of the Doma. Whereas the rest of us go to the shops to buy
groceries and other life necessities, the Doma get into the forest to acquire their basics, thus for the
Doma the forest is a ‘supermarket’, a pharmacy and a place to worship for them.
26
23 M. Maguire and B. Delahunt, ‘Doing a thematic analysis: A practical step by step guide for learning and
teaching scholars‘, 3 All Ireland Journal of Teaching in Higher Education, (2017), pp. 3351-33514.
24 The Parks and Wildlife Act [Chapter 20:14].
25 Interview with the Parks Ranger, June 2022.
26 Interview with the Ward Councilor, June 2022.
80
While section 66 of the Constitution states that every Zimbabwean citizen has the right to move
freely within Zimbabwe and reside in any part of the country, this fundamental human right is
disregarded for the Doma due to the requirements of the Parks and Wildlife Act. The
understanding and assumption derived from the constitutional provision indicates that the
Doma people’s rights should be given special protection by the provision of special privileges.
The case of the Doma people ought to be understood in line with provisions of the International
Covenant on Civil and Political Rights and the United Nations Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Those are the
blueprints for the UN systems concerning the standards that should be followed by all member
states on handling minorities. Said standards provide a guideline for crafting appropriate laws
and mechanisms to protect minorities. Thus, the argument presented in this section is that the
Doma, as a minority group whose livelihoods are dependent on hunting and gathering, deserve
special mechanisms that cater to their culture and way of life. Having access to their ancestral
land is also in line with Article 4 (1) of the United Nations Minorities Declaration which says:
States shall take measures to create favorable conditions to enable persons belong to minorities to express
their characteristics to develop their culture, language, religion, tradition and customs.
27
It is, therefore, up to the State to establish mechanisms to promote the Doma’s way of life on
the basis of special arrangements. As previously argued, Doma people’s life in the forest is
anchored on hunting and gathering. In the Chapoto area, they live on the fringes of the forest
on the western side of the Mwazamutanda River while the main Shona groups, the Korekore-
Shona and the Chikunda live a village lifestyle on the eastern side of the river. We were told,
by research participants and a key informant from the police, that the Doma are sometimes
arrested for poaching especially when their hunting goes beyond hunting for meat:
It is now a criminal offence to hunt in those mountains. Our ancestors used to hunt in those mountains and
surrounding areas without being harassed by anyone. We believe that those mountains are part of us and they
are being taken away from us. Hunting and gathering is ‘us’. This is what we know and has historically
practiced. Our hunting areas have all been made parks and they are out of bounds from us”.
28
At international level, the Aborigines managed to get legal representation and took the
Government of Australia to court and won recognition and went on to create a political party
for the purpose of representing their interests in parliament.
29 The indigenous Amazonians also
contested the depletion of the forest through the Brazilian judiciary system from the stand point
of international and national law.
30 In the African region, the Ogiek people of Kenya who were
displaced from their ancestral land during the colonial era deployed international human rights
law to fight for their rights to ancestral land.
31 They had lived in the Mau Forest in the Ri valley
as forest dwellers for time immemorial but were subjected to forced evictions. Deploying both
the national law and the African Charter on Human and Peoples Rights, they contested their
eviction and the African Court on Human and People’s Rights (ACHPR) allowed for the return
27 United Nations Declaration.
28 Interview with a Doma community leader, June 2022.
29 H. Gobbett, ‘Indigenous parliamentarians, federal and state: A quick guide’. Research paper series 2017-18,
Parliament of Australia, 2017,
<parlinfo.aph.gov.au/parlInfo/download/library/prspub/3923594/upload_binary/3923594.pdf;fileType=applicati
on/pdf> (accessed 16 January 2023).
30 B. R. O’Donnell, ‘Indigenous tribes in the Brazilian Amazon: Finding a balance between sustainability and
economic development’, University Honors Program Theses, 361 (Georgia Southern University, 2018).
31 D. A. Ochien’g,.‘The rights to land of indigenous people in Kenya: A case study of the Ogiek community and
the conflict of articles potrayed in the constitution of Kenya’,. Undergraduate Thesis. (Strathmore University,
Law School, 2017).
81
of the Ogiek to the Mau Forest in a 2017 ruling.
32 It is the research’s primary question whether
the Doma people in the Zambezi valley would be able to gather themselves and take the
Government of Zimbabwe to court or be assisted by an individual outside their group or a civic
organisation.
Due to these legal restrictions to accessing their traditional hunting and gathering lands in the
Dande Game Park, some advocate for the integration into villages and the attempt to adjust to
the mainstream village lifestyle has evolved into a struggle for survival. As opposed to a hunting
and gathering lifestyle, integrated village life requires people to join the monetary lifestyle in
which services are purchased from the market. This has led many of the relocated Doma to
resort to offering their labour in other people’s fields and in other manual labour jobs. Cases of
exploitation of cheap labour were reported where, for instance, people were working a full day
shift weeding in the field for a bunch of bananas. The mainstream communities that hire the
Doma people for menial jobs accuse them of not being skilled in those jobs as justification for
exploitation. The lack of skills is due to the fact that the original Doma culture has less crop
cultivation and animal husbandry since their villages were located on the fringes of the forest
that are easily reachable by wild animals. Based on the data above, we are of the view that the
food insecurity rampant amongst the Doma people is because of disturbances of their
livelihood. In concurrence
33pp 5 submitted that “a recent government action designating the
area as a game reserve have left the Doma vulnerable as food has become scarce.” Currently,
they are being forced to adopt agriculture which is not their livelihood speciality as established
by Kanengoni
34and emphasized by the United Nations which argues they are35 restricted to
fishing on a small stretch of the Zambezi River. On many occasions, they have gotten into
trouble and been accused of poaching by the Zimbabwe Parks and Wildlife Management
Authority. Population pressure from mainstream villagers was also found to be pushing the
Doma away from the small traditional land that they possessed. Thus, the question whether the
Doma are protected by the Declaration of the Rights in the Constitution of Zimbabwe remains
unanswered.
6.2 The Right to Maintain a Culture of Their Own
The extensive field engagements revealed a key aspect of the Doma people as represented by
how outsiders view them. A common view amongst the local Shona Korekore and Chikunda
people in Mbire is that the Doma people are backward, ignorant and uncivilised. This revelation
was not a surprise as our field visit exposed us to the activities of many churches and non-profit
organisations meant to ensure the enlightenment of the Doma people. Our findings suggest that
churches are geared to ‘redeem’ the Doma people from their ignorance and ensure that they
hear the word of God and bring ‘light’ to them. This is against the background of the Doma
people being viewed as ‘trapped in the life of backwardness’.
36 During our fieldwork, we were
informed about various churches coming to the Doma communities in an attempt to spread the
word of God. These conversion attempts aim to assimilate the Doma into Christianity which is
corroborated by one key informant who said:
32 M. Parvathi, ‘The uncomfortable balance between a minority and a people: The global/local disconnect‘, 24(1)
International Journal on minority group rights. (2017), pp.254-272.
33 T. Kanengoni, ‘Doma Community Faces Challenges as Nature Reserve Designation Restricts Hunting’,
Global Press Journal, (2017).
34 Ibid.
35 United Nations, supra note 8.
36 The NewsDay, ‘Relief for the Doma people’, The NewsDay Zimbabwe, 2014.
<newsday.co.zw/2014/06/21/relief-doma-people> (accessed 16 January 2023).
82
The people [Doma] believes in the worship of ancestors. The dead are key in the religious structure
of the Doma people. However, with the flooding of religious group who come to materially assist
the people and spread the word of the God, there is encouragement to abandoned this and believe in
Jesus.
37
The Doma people equally live semi-nomadic but build semi-permanent huts on the fringes of
Dande Gave Reserve along the banks of Mwazamutanda River near Kanyemba centre as well
as in Masoka and Angwa Bridge. A life of foraging attracts stereotypical views from other non-
Doma people, including the media which circulates negative misconceptions in newspaper
articles. A review of documents and newspaper journals revealed that the Doma are sometimes
presented as ‘forest dwellers’ ‘mysterious people of the Zambezi valley’ ‘people of no toes’
38.
Based on these misrepresentations of the Doma way of life, they have been regarded as second
class people and are persistently excluded from central planning for service provision and are
less recognised as a stand-alone cultural society. This and many other forms of discrimination
were noted in the Doma world despite the constitutional provisions. For instance, section 6 only
recognises 16 official languages excluding Doma's native tongue. Furthermore, section 16
states that:
(1) The State and all institutions and agencies of government at every level must promote and preserve
cultural values and practices which enhance their dignity, well-being and equality of Zimbabweans”.
39
Our field-based evidence pointed to the lack of mechanisms established by the government for
the preservation and promotion of the Doma culture. Section 63 provides that every citizen has
the right to not only speak but maintain and promote their language and culture. By not officially
recognising the Doma language, the State failed to fulfil its obligation of promoting and
protecting its citizens’ languages and cultures. A human rights-based approach, both at a local
and international level according to Broberg and Sano
40 , puts a lot of emphasis on the
obligation of the State, as a key duty bearer, to provide a conducive environment for minorities
and the ordinary citizens to ensure the enjoyment of their cultural rights. While the Doma people
are not forced into adopting and adapting to other cultural practices, there is an indirect cohesion
described by Bellamy
41 as cultural hegemony which forces them into submission or
withdrawing into the forest and live a life far away from other people’s influences. We argue
and share Gramsci view
42 that the cultural hegemonic traps are a violation of the Doma’s human
rights which are not only enshrined in the Constitution of Zimbabwe but other regional and
international legal provisions converge as well.
43 Article 1 (1) of the International Covenant on
Economic, Social and Cultural Rights states that States shall protect the existence and national
or ethnic, cultural, religious and linguistic identities within their respective territories and shall
encourage conditions for the promotion of that identity. While Zimbabwe is a signatory to the
UNDRIP and other international treaties, field-based evidence in the Zambezi valley shows a
lack of application of specific measures to protect the Doma language and culture. Hence, the
Domahood is at the risk of extinction. The assumption is that the rights of minority groups
37 Interview with a Doma villager, June 2022.
38 The NewsDay, supra note 36.
39 Constitution of Zimbabwe, supra note 7.
40 M. Broberg and H. Sano, ‘Strengths and weakness in a human rights based approach to international
development: An analysis of the rights based approach to development assistance based on practical
experiences’, 22(5) The International Journal of Human Rights, (2017), pp.664-680.
41 A. Gramsci, Pre-Prison Writings. In R. Bellamy (ed.) (Cambridge University Press, Cambridge, 1994).
42 Ibid.
43 United Nations Development Programme (2017).
83
ought to be protected on a practical level. Tied to this discussion, about language and cultural
rights, is the right to education which is discussed in the next paragraphs.
6.3 The Doma’s Right to Education and Health from a Human Rights Perspective
While we started empirical data collection under the impression that we would engage an
interpreter of the Doma language, we learnt that all the Doma understood the Shona and
Chikunda languages, which are spoken especially in Kanyemba, efficiently. They would,
however, converse in their native language when they were by themselves. There are three
primary schools which are supposed to be centres for learning including the Chapoto primary
school in Kanyemba rural centre which is near the Zambezi River near the borders to Zambia
and Mozambique. This school is within the community of the Korekore-Shana and Chikunda
people where the dominant language used in the school is Shona. The Doma people are located
at least 18 kilometres away on the western side of a big river as mentioned earlier. During the
rainy season, the river cannot be crossed by children. Thus, the distance and geographical
barriers, namely the river, determine whether Doma children may go to school or not. Doma
children also frequently face challenges in schools, for instance with their school uniforms, due
to the prevalence of high poverty levels. This is compounded by the language dilemma
considering that the school curriculum does not include their unrecognised language. The same
applies to Doma people in the Masoka area on the general southeaster side of the Dande Game
Park. Again, there exists a river barrier between the Doma villages and the school. The Angwa
River is a permanent obstacle which makes it dangerous for school-aged children. The
curriculum is another crucial factor due to the disconnect to the Doma life as it fails, for
instance, to take the lack of affordability of school uniforms and tuition fees into account. These
factors contribute to the Doma children’s high drop-out rates in the school system. Similar
circumstances were noted at the Angwa primary school on the northeast side of the forest. Few
children attending up to grade seven, highest primary education level is Zimbabwe. Angwa
secondary school, which is on the other side of the forest, is located too far away from the
habitat of the Doma. Based on these observations, the Doma children are unable to utilise the
educational facilities and their parents provide instead ethno-education and training in the
forest. That is based on hunting, identifying non-poisonous tubers for consumption, poisoned
arrow hunting, the tracking of animals, fire making and salt production from particular salty
soils.
The field-based evidence analysed above ought to be understood in relation to the section 75
(1) of the Zimbabwean constitution according to which every citizen and permanent resident of
the country has the fundamental right to basic education as well as adult education.
44 The same
section also states that the State must take reasonable steps and measures to achieve the
progressive realisation of the right to education.
The Doma face similar challenges in terms of health service availability. Clinics are either too
far away or are not staffed with professionals. Consequently, the Doma people do not rely on
modern health services but rather on their traditional and ethno-medicines systems. In the few
instances when the Doma visit the poorly equipped health delivery systems, their sick relative
already deteriorated to critical stages and, in most cases, dies on arrival at the clinics. Such
cases resulted in negative perceptions of hospitals and clinics as places of medical and health
care. The clinics are viewed as places of death and despair. Respondent 6:
44 Constitution of Zimbabwe, supra note 7.
84
What benefit does it give to our people when on those few cases visit the clinic and lose their beloved one?
Thus, the clinic really work or it quickens one’s death?
45
The question is what that means in terms of the Doma people’s human rights as enshrined in
the Constitution. The non-availability of basic services for the Doma as a minority group
qualifies to be described as a discriminatory practice despite section 56 of the Constitution
stating that all persons are equal before the law and must not be discriminated against. Further,
sections 75 stipulates the rights of all citizens to education. Evidence in the Doma communities
highlights the lack of these service especially for Doma people who are geographically located
far away from the schools and clinics. The section below presents data about the state of the
health delivery system for the Doma people.
6.4 Doma Ethno-Medicine versus Clinics: Access to Public Health Services in Dande
Empirical evidence from the Zambezi valley about the Doma pointed to the similarities in
circumstances between the educational and health care systems. Interviews with key informants
showed that medical clinics are geographically located at the same sites as educational centres,
that is, in Chapoto at the Kanyemba service centre, at Masoka community centre as well as at
the Angwa Bridge. It is at these centres that schools, clinics as well some grocery shops are
sited. As already alluded to, these community centres are far away from the Doma people and
even the few who chose to be villagers are still a considerable distance away from them. More
so, the study established that physical barriers of rivers between the Doma and the medical
centres contribute to the inaccessibility of these services. The other observation, made by the
research team in terms of Doma people’s rights to health delivery services, was the scarcity of
medical supplies at the clinics as well as the unavailability of trained medical staff. In the few
instances when a Doma person decides to seek out medical treatment from the clinic, he or she
does not get adequate services. A case was reported, by a health worker at the Masoka clinic,
in which one of the Doma members who was bitten by a snake was brought to the clinic when
his condition was already deteriorating after they initially attempted to use home remedies.
Upon arrival at the clinic, the staff was unable to provide any anti-venom or an ambulance for
further treatment at the Guruve hospital which is more than 100 kilometres away along a dust
road in extremely poor condition. When the patient passed away at the clinic, the responsibility
of carrying the dead body back home was imposed on the family who did not have any means
except the use of a make-shift stretcher bed with which they carried the body on their shoulders.
Respondent 8 said that:
These are the case we all know here that they discourage the Doma people from relying on modern medicine
and clinic services. They feel that the clinics are places for death and grief hence, they disregard them.
46
This scenario that the research team was exposed to exemplifies the real-life experiences of the
Doma people despite the provisions of section 76 (1) which states that:
Every citizen and permanent resident of Zimbabwe has the right to have access to basic health care including
reproductive health care services… and that the state must take reasonable legislative and measures to achieve
the goal […].
47
45 Interview with the Doma village head, June 2022.
46 Interview, Medical health worker June 2022
47 Constitution of Zimbabwe, supra note 7.
85
The state of the Doma people’s human rights seemed to be failing to meet the acceptable
standard, both at a national and international level. When a marginalised community fails to
benefit from the services provided by the State, it means that, there is a need for a revision of
the way the services are provided to establish strategies and mechanisms that enable all citizens
in a constituency to access said services.
6.5 Upholding the Principle of Non-discrimination
Through the human-rights-based lens, the study also highlights that the Doma people
experience varying levels of discrimination both directly and indirectly. This is, for instance,
reflected in the way they are viewed by their neighbours but also in the way they are treated on
the basis of their illiteracy and living in a different civilisation. The study established that the
non-Doma communities around the Zambezi valley regard them as backward, barbaric and
uncivilised tree or forest dwellers who must be integrated in the mainstream lifestyle. The same
perceptions are also held by many in the private corporates, the hunting and safari companies,
as well as in non-governmental organisations that operate in the same area. This is exacerbated
the way the media portrays them in both print and digital media. These institutions contribute
to the construction of a stereotypical view and perspective towards the Doma people, which is
also reflective of the current governmental approach towards them which includes
institutionalised forms of discrimination. The Constitution of Zimbabwe clearly states that in
section 56 hat no persons shall be subjected under discriminatory behaviour while the
International Covenant on Civil and Political Rights article 26 states that all persons are to be
equal before the law and should not be discriminated on the basis of language, social origin,
class, race or ethnicity.
48 Thus, attempts at integrating the Doma people in mainstream village
lifestyle may interfere with Article 1 of the same international law which says that all people
have the right to self-determination and are free to determine their political status and pursue
freely their economic and cultural development.
49
7 Human Rights Challenges Amongst Minorities
Our field-based evidence concurs with the argument that the unclear definition of who qualifies
as a minority remains a central issue in the human rights discourse.
50 The decision to not
establish a concise definition may be ignored or delayed for political reasons. The case of the
Doma language being excluded from the curriculum fits that pattern, hence, it is uncertain
whether the Doma language will be recognised in the near future. Scholars such as Papoutsi
51
and Parvathi
52 similarly argue that state expenditures towards minorities become political issues
when job security of elected politicians in their respective offices largely depends on prioritising
the interests of the majority. Within this context, the study argues that there appears to be some
lack of international moral authority and of capacity to be present in individual parts of the
nation to supervise the implementation of the best practices. International rules may not be self-
executing especially with boundaries of states. More so, not all UN members states are
signatories to treaties and conventions, hence, they do not have obligations to adhere to the
international human rights standards as provided in the statutes since “[…] it is up to the State
48 International Covenant on Civil and Political Rights.
49 International Covenant on Civil and Political Rights.
50 E. Papoutsi, ‘Minorities under international law: How protected they are?’ 2(1) Journal of social welfare and
human rights. (2014), pp.305-345.
51 Parvathi, supra note 32.
52 Papoutsi, supra note 50.
86
itself opinion and interest to decide about minority’s future […]”.
53 Thus, Lennox54 argues that
international bodies either do not have the capacity to police nation states or and deliberately
leave the responsibility with said states. In line with the above argument is the observation that
of lack of knowledge of their basic rights is common among the Doma people. They have very
limited knowledge about their rights which places them in a particularly vulnerable position
since they are dependent on donors. More so, civic society organisations that operate in the
Doma communities were found to be only interested in the provision of humanitarian food aid
and seemed to not have any mandate towards human rights. The other complicating factor
concerning the human rights of the Doma is also linked to what Lennox
55 regards as a western
bias in two fronts. The first bias originates from international law being too focused on
individualistic rights while the Doma people ought to be approached as a group or community
with collective rights. Secondly, international human rights law tends to consider minorities
according to their western definitions, meaning that minority groups generally consist of a
majority of migrants. Thus, there is a separation of minority groups and indigenous groups. The
Doma are, however, both indigenous and a minority and their human rights should be
considered combined.
8 Conclusion
The study has reflected on the human rights of the Doma people of the Zambezi valley, who
are an indigenous minority group, premised on the fact that since 2013, the new Constitution
provides for the protection of the rights of minorities. The research, through an in-depth
literature review and documentary inquiry, provides basic information on the Doma people in
context to the constitutional protection under relevant sections. We further deployed a
qualitative research framework to generate and collect field-based empirical evidence guided
by the human rights based approached to establish the following sub-themes: Doma people’s
rights to language and culture, rights to ancestral land, a form of civilisation and non-
discriminatory lifestyle, rights to education, health and equal access to services. While the study
could not provide an analysis of all areas of the Doma life, it brought to the fore critical aspects
of their life from the human rights perspective which may encourage further research on the
topic. This is particularly crucial since the human-rights-based approach creates a social
science-law nexus which risks being marginalised by mainstream research.
53 Ibid.
54 C. Lennox, ‘Human Rights, Minority Rights,Non-Discrimination and Pluralism: A Mapping Study of
Intersections for Practitioners’., Global Center for Pluralism, (2018).
55 Lennox, supra note 54.
87
6 Contributions of Local Authorities to the Realisation of Human Rights in Zimbabwe:
The Case of Bindura Rural District Council (BRDC) and the Right to Health Care
Lawrence Mhandara and Ashton Murwira
*
Abstract
The paper examines the contributions of rural district councils towards the realisation of the
right to health care in Zimbabwe. Conventional literature has predominantly focused on the
contributions of the central government and challenges it has faced in fulfilling the right to
health care. However, little is known about the obligations that local authorities as the
agencies of the central government have concerning the realisation of this right. The paper
aims to fill this gap by focusing on the extent at which BRDC has respected, protected, and
fulfilled the right to health care among the rural people in Bindura Ward 16. A mixed
methodology was adopted for the study based on a human rights approach. Data emerging
from a literature review, in-depth interviews and a survey, demonstrate that the majority of
the rural people are aware of health care issues but have little knowledge on the right and the
obligations that local authorities have. Despite the limited knowledge, the findings show that
the BRDC has played a complementary role to the central government through the
construction of the Chiveso clinic, management of the infrastructure, and roads leading to the
health point. The central government has provided financial resources, solar power, medicine,
and personnel for the clinic. These contributions are worth celebrating as they indicate the
milestones that both central and local authorities have achieved with regard to the right to
health care in Bindura. Respondents noted that the BRDC has, to some extent, not been
effective in contributing towards this right. For example, people still walk long distances to
access health points, poor road networks, and critical drugs are scarce. Such factors
compromise the quality and accessibility of health care that people are entitled to. The
challenges faced by the BRDC cannot be separated from the general macro-economic
challenges of the central government. This paper exemplifies that there is need for additional
funding towards the BRDC for it to effectively contribute towards the right to health care.
Instead, the rural people of Bindura need awareness campaigns concerning the right to health
care in order to improve public accountability.
1 Introduction
The 21
st century is characterised with inequalities between developed and less developed
countries. Moreover, economic disparities are also prevalent within individual countries
regardless of their development statuses. Indeed, troubling inequalities continue to define the
development trajectory and the associated challenges of exclusion and discrimination remain
in most societies a key obstacle that restricts human potential. In the context of these ongoing
challenges, an emergent philosophy is that integrating human rights approaches in service
delivery has the potential to steer the world towards the collective aspirations of dignified
human existence. Among the rights, included under the expanding human rights framework,
is the right to health. Experts, such as London avers that the right to health is “both an
essential requirement for the realization of health for all … and a sine qua non for a world
based on social justice”.
1 There is no contestation on the importance of the right as it is now
* The authors are human rights professionals and researchers active in Zimbabwe.
1 L. London, ‘What Is a Human-Rights Based Approach to Health and Does It Matter?’, 10:1 Health and Human
Right (2008) p.66.
88
widely recognised in key international human rights instruments.
2 In all the instruments, the
right to health is acknowledged as an all-encompassing right that includes both health care
and the underlying determinants of health such as access to safe water and adequate sanitation
among others.
3
As signatory to the international human rights law instruments, Zimbabwe has given effect to
these international instruments by entrenching explicit provisions in its Constitution
(Amendment No.20) that guarantees the right to health as an inclusive right. The country has
a strong legal framework protecting socio-economic, civil and political rights. Among the
rights clustered under the former category is the right to health care. The right to health is
highlighted in Section 29 of the Constitution relating to ‘National Objectives’ and further
emphasised and expounded under Section 76 as one of the fundamental rights.
As the nation is poised to celebrate a decade since the adoption of the Constitution, it is worth
to evaluate the extent to which local authorities, in particular the Bindura Rural District
Council (BRDC), have contributed or are contributing towards the realisation of human
rights. Despite its importance, there is a tendency to consider health care a privilege. The
Government and its agencies appear to place less emphasis on the right, leaving non-
governmental organisations and the foreign aid community with the task to provide services.
Yet these organisations do not have the primary responsibility to do so according to the
Constitution. In addition, a human rights approach is lacking in scholarly research on public
health in Zimbabwe.
4 In the few studies that have attempted to focus on the right to health,
local authorities have not been studied as much as the central government.
5 It is, therefore,
necessary to examine whether the policies, plans, programs and projects of local governments
support a rights-based approach to health care. In the absence of an empirical inquiry, the
exact contributions of local authorities towards the right to health care, 10 years after the
historic promulgation of the Constitution, shall remain the subject of conjecture. Since this
study is focusing on a local authority, it is obligatory to clarify the obligations at that level of
government. From the onset, it has to be stated that the rights-based framework does not
clearly delineate the responsibility of local authorities toward the realisation of human rights.
These obligations apply primarily to States who are the subjects of international law.
However, borrowing from London and Krennerich’s interpretations,
6 we reason that there is a
prominent pattern in which responsibility falls on local authorities. Local authorities are
2 See, for instance, the Universal Declaration of Human Rights, International Covenant on Economic and Social
Rights and The African Charter on Human and People’s Rights.
3 See Committee on Economic, Social and Cultural Rights, General Comment No. 14 cited in Centre for Health
and Human Rights 2013; OHCHR, ‘Fact Sheet No. 31: The Right to Health’, 2008,
<ohchr.org/sites/default/files/Documents/Publications/Factsheet31.pdf> (accessed 12 December 2022); E. D.
Kinney, ‘The International Human Right to Health: What does this mean to our Nation and the World?’, 34
Indian Law Review (2001), pp. 1457-1475.
4 A. Chikanda, ‘Skilled Health Professionals Migration and its Impact on Health Delivery in Zimbabwe’, 32:
4 Journal of Ethnic and Migration Studies (2006), pp. 667-680; S. Shamu. et al., ‘Who Benefits From Public
Health Financing in Zimbabwe? Towards Universal Health Coverage’, 12: 9 Global Public Health 12 (2017)
pp. 1169-1182; W. Zeng. et al., ‘Utilization of Health Care and Burden of Out-of-Pocket Health Expenditure in
Zimbabwe: Results from a National Household Survey’, 4:4 Health Systems & Reform (2018), pp. 300-312; K.
K. Kidia, ‘The Future of Health in Zimbabwe’, 11: 1 Global Health Action (2018) pp. 1-4.
5 Labour and Economic Development Research Institute, 2020.
6 M. Krennerich, ‘The Human Right to Health: The Fundamentals of a complex Right’, in S. Klotz, H.
Bielefeldt, M. Schmidhuber and A. Frewe (eds.) Health care as a Human Rights Issue: Normative Profile,
Conflicts and Implementation (Beilefeld:Verlag, 2017), pp.23-54.; London, supra note 1, p. 68.
89
critical components of the central government (the State) and Zimbabwe is no exception.
Therefore, anybody, institution or individual directed, controlled or acting on behalf of the
State effectively becomes the instrument through which the State upholds the right to health.
Those actors, should, consequently, be involved in the respect, protection and fulfilment of
the right. Indeed, Section 45(1) of the Constitution supports this interpretation. The provision
states that the Declaration of Rights is binding for governmental agencies at every level. It is
thus possible for this study to generate new knowledge and policy recommendations on the
contributions of local authorities to the realisation of the right to health. The research achieved
this through a case study of the BRDC in Mashonaland Central Province.
The major question answered in the study is to what extent local authorities have, in particular
the BRDC, fulfilled their obligations as defined in the Constitution, to respect, protect and
fulfil the right to health care among citizens under their jurisdictions in Zimbabwe. The sub-
research questions were as follows:
To what extent are public health care facilities and services available to people in the
BRDC area?
How readily and freely accessible are the facilities and services to all the people under
the BRDC without discrimination?
Is information about these facilities and services easily accessible?
Does the quality of facilities and services meet international and national standards
(for instance, trained medical personnel and certified drugs)?
2 Literature Review and Conceptual Framework
To fully implement the right to health, an unambiguous definition is required that can provide
policy makers with clear markers in the practical application as well as benchmarking
progress, stagnation or failure to fulfil the right to health.
2.1 Definition of the Right to Health
A brief review of the existing body of literature shows that there is convergence on the
meaning of the right to health care. Scholarly works on the right largely draw from
international legal documents, in particular, the International Covenant on Economic, Social
and Cultural Rights (ICESCR) and related treaties on the right. For example, Hunt defines the
right to health as “a shorthand for the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health as provided in Article 12 of the ICESCR”.
7
The broad implication of this definition is that States, as duty bearers, ought to have
comprehensive and all-encompassing approaches to respect, protect, and fulfil the right. The
aim is to satisfy the requirement to ensure that their citizens as the right holders, are not
deprived of the best attainable health facilities and care achievable within their jurisdictions.
The right is comprehensive and all-encompassing in the practical sense that the existential
condition of being healthy connotes complete physical and mental well-being and not just the
absence of diseases. Prior to unpacking the content of the right, it is appropriate to briefly
examine the development of the right in the corpus of international law. This entails an
examination of the key instruments and the interpretation of the right which yielded its extant
core elements.
7 P. Hunt, ‘Interpreting the International Right to Health in a Human Rights-based Approach to Health’, 18:2
Health and Human Rights (2016) p. 111.
90
2.2 Interpretation of the Right: Its Core Elements
Gleaned from the international instruments and literature in the preceding sections is the fact
that the right to health is widely acknowledged as a binding human right. Yet, there are
ongoing debates on what elements constitute this right. Bielefeldt et al. note that the right to
health frequently evokes sceptical reactions and they, consequently, highlight some of those
critical voices.
8The first is that a right to health cannot be universal since health infrastructure
is expensive and dependent on the availability of resources. Scarcity of resources in some
States can hamper the development of a minimum health infrastructure. The right to health
then becomes nothing but a hollow promise.
9 The second is a radical claim. Based on a
comparison of civil and political rights, critics posit that since the right to health requires
expensive infrastructural investments in health care, it imposes positive duties upon the State
such as the obligation to fulfil the right to equality rather than respect and protection.
However, this dichotomisation of the right, indeed of all economic, social, and cultural rights
(ESCR), against civil and political rights has not been exhausted. The current state of the
debate has challenged this conceptualisation. London, for example, argues for the
indivisibility of the ESCRs from the civil and political rights arguing that the dichotomisation
is artificial and unsustainable.
10
The dispute over the interpretation of the right is not resolved by the composite sources of the
law. A general and conclusive interpretation of the right is thus never easy. Nonetheless, the
premise of departure is the Committee on Economic, Social and Cultural Rights (CESCR) and
the comments from the UN Committee on Economic, Social and Cultural Rights, established
in 1988 both of which guide the interpretation and structure of the right.
11 The comments
guide the interpretation of the right as a human right. “The right to health is a fundamental
part of our human rights and of our understanding of a life in dignity”.
12 In a summative way,
the right refers to the following core elements:
13
a) Inclusivity: According to WHO, the right to health extends beyond access to health
care and related facilities. It also contains a range of factors and underlying
determinants identified by the Committee. These include safe drinking water and
adequate sanitation; safe food; adequate nutrition and housing; healthy working and
environmental conditions; health-related education and information; and gender
equality.
b) Freedom of choice with respect to one’s health and body as well as freedom from
interference with decisions on one’s health. This element underscores the importance
of individual agency. London comments that “agency is critical to a human rights
approach. In order to address conditions that create vulnerability, a human rights
approach must seek to give voice to those who are vulnerable and enable them
8 H. Bielefeldt et al., ‘Health Care in the Spectrum of Human Rights: An Introduction’, in S. Klotz, H. Bielefeldt,
M. Schmidhuber and A. Frewe (eds.), Health care as a Human Rights Issue: Normative Profile, Conflicts and
Implementation (Beilefeld:Verlag, 2017), p. 23.
9 Ibid, p. 23.
10 London, supra note 1, p. 67.
11 C. Ngwenya, ‘The Recognition of Access to Health Care as a Human Right in South Africa: Is It Enough?’ 5:
1 Health and Human Rights (2000), p. 27.
12 OHCHR, supra note 3, p. 1.
13 Nunes, R., Health Care as a Universal Right: Sustainability in Global Health (Routledge, New York, 2022.)
p.7.; London, supra note 1, p. 68; Krennerich, supra note 6, p. 30; OHCHR, supra note 3, p. 3.
91
decision-making scope to change their conditions of vulnerability”.
14 Thus,
individuals, groups, and communities whose rights have been or are likely to be
violated have choices and capabilities, and a human rights-based approach enables
them to exercise this agency. In addition, citizens must enjoy the freedom from non-
consensual treatment such as medical experiments and degrading treatment.
15
c) Entitlements: This relates to conditions established or maintained to enable people to
lead a healthy life. The entitlements include equality and accessibility to the highest
attainable standard of health; the right to prevention, control and treatment of diseases;
access to essential medicines; the provision of health-related education; and the
participation of people in health-related decision-making at all levels. Entitlements
also extend to access to safe water and adequate sanitation, and an adequate supply of
safe food, nutrition, and housing. To give effect to the entitlements, the UN
Committee for ESCR uses the categories of availability, accessibility, acceptability,
and quality in order to substantiate the right.
16
Availability refers to the provision of functioning health care facilities and medical care.
However, the actual conditions of these are dependent on many factors such as infrastructure
and economic resources.
Access to health care services must be delivered on the basis of non-discrimination, economic
affordability – including among the poor and socially disadvantaged groups; and information
on all health-related issues.
Acceptability requires respect of medical ethics and standards when providing medical
facilities and care.
In terms of quality, medical services should be of appropriate and adequate quality. For
example, be reflected in the availability of trained personnel, drugs and facilities that are
comparable to the current medical standard.
The above elements show that the right has a structure that allows one to measure its
realisation.
17 In other words, the core elements defined in the instruments, together with the
obligations of States, provides a conceptual framework for this study to compare progress
concerning the implementation of the right in Zimbabwe.
The realisation of the right in the aforementioned dimensions is dependent on States
respecting their obligations and budgeting for the provision of health care services.
2.3 State Obligations
In its General Comment No.3 of 1991, the Committee pronounced that the notion of
progressive realisation in accordance with maximum available resources set out in Article
2(1) ICESC, “should not be misinterpreted as depriving the obligation of all meaningful
content […] the phrase must be read in the light of the overall objective, indeed the raison
14 London, supra note 1, p. 67.
15 OHCHR, supra note 3, p. 3.
16 UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest
Attainable Standard of Health, E/C.12/2000/4, 11th August 2000, para. 12.
17 M. Da Silva, ‘The International Right to Health Care: A Legal and Moral Defence’, 39: 343 Michigan Journal
of International Law (2018), p. 347.
92
d’etre, of the Covenant which is to establish clear obligations for States parties in respect of
the full realisation of the rights in question.”
18 The general rule, applicable to all human
rights, is that any right provided for in international law is binding on all States and their
agencies.
19 With respect to the right to health, the substantive obligations of States are three-
fold and these are extracted from the core elements of the right:
a) Obligations to Respect – States are precluded from undertaking any action that
jeopardize the enjoyment of the right. This includes any action that obstructs
availability, accessibility, acceptability, and quality, to the effect that people’s health is
endangered.
b) Obligations to Protect – The obligations to protect are not prohibitions but rather
requirements to act (positive duty). For instance, a State must not fail to regulate and
control the training of medical personnel carried out by private institutions.
c) Obligations to Fulfil – The State obligation here relates to creating the prerequisites
for the realisation of the right to health through respective statutes (new laws or
amendments of existing ones), institutions and procedures as well as through State
provisions in the form of money, goods, or services. London asserts the importance of
recognising the indivisibility of civil and political rights and socio-economic rights as
he urges states to spend substantial effort and resources on developing health care
policies.
20 Commenting on these obligations, Bielefeldt et al. surmise that:
[t]he right to health, as in other types of human rights, is internally differentiated. On one hand it
implies an obligation to respect and on the other [the obligation to] fulfill. This makes the distinction
between the right to health and civil and protection rights simplistic and unsustainable. The right to
right is linked to both negative and positive duties… In the context of human rights, freedom and
equality are two closely interwoven principles. Neither can exist without the other. Without a due
account of equal implementation, freedom would end up as the privilege of the happy few, and without
the spirit of freedom, equality could easily be mistaken for sameness, uniformity or homogeneity.
21
The ICESCR and the CESCR’s interpretation of the Covenant define several procedural
obligations which ought to guide states in the domestic concretisation process of the
substantive obligations. These are as follows:
22
a) The participation of the population in all health-related decision making must be
ensured at all levels. This means that states should provide for a mechanism that
allows for participation in political decisions relating to the right to health taken at
both the community and national levels.
b) The adoption of domestic laws must be advanced to specify the minimum core right
and corresponding duties at the national level. Article 2(1) ICESCR refers, in
particular, to the adoption of legislative measures to achieve the progressive
realisation of the right to health. The parliament is explicitly obligated to create such
an enabling legislation.
c) States need to pay particular attention to the health needs of vulnerable and
marginalised peoples. This could imply an obligation for the agents of the State to
18 A. Müller, ‘The Minimum Core Approach to the Right to Health: Progress and Remaining Challenges,’ in S.
Klotz, H. Bielefeldt, M. Schmidhuber and A. Frewe (eds). Health care as a Human Rights Issue: Normative
Profile, Conflicts and Implementation (Beilefeld: Verlag, 2017) p. 57.
19 Krennerich, supra note 6, p. 33.
20 London, supra note 1, p. 69.
21 Bielefeldt et al., supra note 8, p. 24.
22 Müller, supra note 18, p. 76.
93
consult on the health priorities and primary health care needs of these groups prior to
formulating and implementing decisions.
d) Decisions about the scope of health care services need to be transparent and backed by
credible data from health professionals and experts.
e) The provision of effective remedies of the alleged violations of the minimum core of
the right to health. This obligation implies that states should provide judicial and
administrative remedies within a democratic framework of separation of powers. The
remedies may come in various forms but a human rights-based approach to promote
the right to health usually emphasises the following aspects:
23
Adversarial approaches such as holding the government and its agents
accountable. This includes activities such as public critiques to litigation.
Proactive development of policies and programs so that health care related
objectives can be operationalised in ways that are consistent with human rights.
This approach includes mechanisms to allow rights holders to incorporate their
input to policy formulation.
In cases of violations, there ought to be enough remedies to redress violations. In
the case of Zimbabwe, the judiciary and Chapter 12 commissions such as the
Zimbabwe Human Rights Commission may be particularly valuable in securing
redress of violations.
The use of human rights frameworks to mobilise civil society action to achieve the
realisation of the right to health.
24
2.4 Conceptual Framework
The conceptual model proposed in this paper merges and builds on the provisions of
international instruments, interpretations by treaty bodies, and commentaries from the
research bodies introduced in the preceding sections. In order for the BRDC to contribute
meaningfully to the realisation of Section 76 of the Constitution relating to health care,
enabling factors must favourably converge. These factors are summarised in the research
questions presented in the introductory section of the paper. In particular, variables under
investigation are availability; accessibility; acceptability and quality. These variables are
dependent on the State and its agencies (in the case of the study of the BRDC) implementing
its constitutional obligations that are derived from international instruments. The interrelation
of the dependent variables (entitlements) and the independent variables (State obligations)
contributes to the realisation of the right. This framework was the basis upon which the field
research findings were analysed and discussed.
2.5 The Right to Health in Zimbabwe: The Research Gap
The right to health is relevant to all states considering that every State has ratified at least one
international human rights treaty recognising the right to health. Moreover, States have
committed themselves to protecting this right through international declarations, domestic
legislation, policies, and during international conferences.
25 As already noted in the
introduction, Zimbabwe has developed a strong legal framework protecting socio-economic
and political rights. However, research and a relevant body of literature on the right to health
in Zimbabwe continues to be disappointingly scarce. This is, most probably, a direct
23 London, supra note 1, p. 70.
24 Ibid.
25 OHCHR, supra note 3, p. 1.
94
consequence of the decreasing importance of ESCR in research agendas, especially in
comparison to civil and political rights.
The dominant voice in research has tended to approach health issues from a policy
perspective, with a tendency towards challenges and prospects of recovery of the health sector
and health care issues. Scholarly work on public health research confirms this observation. A
few examples will suffice to demonstrate the point. One piece has investigated the magnitude
of migration of health professionals from Zimbabwe, the causes of such movements, and the
associated impacts on health care delivery.
26 Others have explored beneficiaries of public
health financing and expose the lack of universal health coverage.
27 Recently, Kidia attempted
to broaden of knowledge on public health issues by tackling the health reform debate in the
post-2017 period with key policy recommendations centred on repairing relations with the
international community, strengthening the health work force, and community engagement.
28
Zeng et al. have also added their voices in literature by revisiting the utilisation of health care
services and health care expenditure patterns among ordinary citizens.
29 Equally, Nhapi has
analysed the health policy administration.
30 The work applies social work tools to examine the
socioeconomic barriers to health care among vulnerable groups. The common threads
adjoining these scholarly works are the lack of interest in the rights-based approach to public
health and the obsession and fascination with the obligations of the central government.
There are few exceptions with regard to research on the rights-based approach to health care.
One such is the longitudinal research, covering the period of 1980 to 2018, undertaken by the
Labour and Economic Development Institute of Zimbabwe in 2020. The research explores the
struggles of the State in fulfilling its international and national obligations towards the right to
health. The scope of the study is limited to the duties and responsibilities of the central
government. The agents of the central government, including the regional and local tiers of
government that exercise devolved and decentralised functions are excluded from the study.
The proposed research aspires to plug this lacuna in scholarship by recognising the agentic
role of local authorities in fulfilling the rights of citizens at that level of governance.
This study focused on a local authority, making it necessary to clarify the obligations at that
level of government. The rights-based framework does not clearly delineate the responsibility
of local authorities toward the realisation of human rights since human rights obligations
appear to apply primarily to states as the main subjects of international law. Therefore,
anybody, institution or individual directed, controlled or acting on behalf of the State, should
be involved in the respect, protection and fulfilment of the right.
Indeed, local authorities are agencies at the centre of action with a clearly defined and
constitutionally entrenched duty to advance and protect human rights. Section 44 of the
Constitution explicitly states that “[…] every institution and agencies of the government at
every level must respect, protect, promote and fulfil the rights and freedoms set out in Chapter
4.” Understanding the role of local authorities from this legal perspective necessitated this
inquiry. The study seeks to enhance the understanding of the actors who are duty bearers on
the right to health care and encourage a better understanding of the contributions of local
26 Chikanda, supra note 4, pp. 667-680.
27 Shamu, supra note 4, pp. 1169-1182.
28 Kidia, supra note 4, pp. 1-4.
29 Zeng et al., supra note 4, pp. 300-312.
30 G. T. Nhapi,‘Socioeconomic Barriers to Universal Health Coverage in Zimbabwe: Present Issues and
Pathways Toward Progress’, 35:1 Journal of Developing Societies (2019), pp.153-174.
95
authorities to the realisation of the objectives of Chapter 4 of the Constitution. These are tiers
of the government that are considered to be outside and beyond the traditional realms of
decision-making processes. Yet, there is unjustifiable to ignore their agency and significance
for the full realisation of the right to health care.
3 Research Methodology
The study triangulated quantitative and qualitative research methods. In order to understand
the contributions of local authorities for the advancement of the right to health care, the
research design utilised a case study of one local authority, the BRDC.
3.1 Target Population and Sampling Procedure
The research was conducted in Bindura rural. The BRDC has a total adult population of
124.160 (18 years and above) in 21 wards.
31 The target population for the survey was 26
randomly selected respondents from ward 16, which has a total population of 9550 people.
The rural council clinic in the ward is Chiveso. The ward was selected based on a random
selection procedure. In addition, key-informants included health administrators and officers,
village health workers, select public servants, community leaders, women, youth and men
who were purposively selected. To preserve the anonymity of the respondents they will
hereinafter be referred to through numerical description such as Participant 1, 2 etc.
Respondents who are rights holders (citizens) were randomly selected to enhance
representativeness. Random selection of respondents allows for every right holder to have a
chance to participate in the study. The sampling procedure was two-staged with an initial
selection of households in ward 16 followed by the selection of interviewees in the selected
households. One interviewee was selected in each household. In cases where there was more
than one adult per household, simple random selection of a respondent was done after
assigning numbers to all the potential interviewees. The key informants were known in
advance and, therefore, purposively selected by virtue of the offices they occupy in the BRDC
political and administrative structure.
3.2 Data Collection Methods and Analysis
Secondary sources were used to review relevant literature on human rights instruments and
the right to health as a prelude to field research. The reviewed literature helped refine the
research by taking contextual information, emerging issues, debates, and methods on human
rights research into account. The literature review also helped in the development of the
conceptual framework used to analyse the findings of the study. Quantitative data was
collected through a survey. The survey gathered data on the availability of public health care
facilities and services. These include hospitals, clinics, or other health-related buildings as
well as services such as trained medical and professional personnel, and essential drugs. A
structured questionnaire was administered to gather quantitative data. Data on the
accessibility of services and facilities; and the quality of said factors rendered by the BRDC
were gathered through interviews with citizens from randomly selected households. An open-
ended interview guide was used to collect qualitative data.
31 ZimStats 2012 survey.
96
Statistical analysis was utilised for the analysis of quantitative data. Thematic analysis was
applied in the analysis of qualitative data. Combining the two methods is appropriate for the
mixed methodology that the study adopted.
4 Findings and Discussion
The ensuing section presents the findings in thematic form. The findings from the interviews
are reinforced with literature from documentary review.
4.1 Defining the Right to Health Care
Respondents had varying definitions for the right to health care. Most of the interviewees
acknowledged that rights are found in the Constitution but had little to no knowledge on what
this specifically entails. From this view, respondents chose to define health care without
linking it to the right. In response to the question of how the participants would define health
care, the following answers were provided:
Participant 1 said: “Health care a system that is put in place by local authorities to serve health needs of the
people in a particular jurisdiction, the system must be accessible and meeting the set standards by World
Health Organisations”.
Participant 2 noted that: “It is a situation when a patient receives treatment and care at health point of
choice.”
Participant 3 understood it as: “The presence of a medical facility accessible to all people in a given ward
(school teacher). I associate it with free health that we received in the first decade of independence.”
Participant 4 noted that: “This is when our children under five receive immunization at schools and nearby
clinics or hospitals.”
Participant 5 articulated that: “Health care is associated to the COVID-19 vaccines that were given to the
people by the government and local clinics.”
The recurring themes from the responses are that health care is the presence of a medical
facility, treatment of patients, and the vaccination of people by the government. It is clear that
respondents held the belief that the government is the key actor concerning any health care
related topic. Local authorities as well as private and missionary health facilities were not
mentioned except by the health officer. The health officer brings a dimension of linking
services to WHO standards and the question of accessibility. From the findings, the study
conceptualises health care as the presence of medical facilities, personnel, funds, and
information that is required by people in a reasonable distance within a ward. Health care can
be provided by the central and local government as well as by private and church related
institutions. This paper narrows the discussion to the local authorities as they are agencies of
the central government charged with the same health care responsibility.
4.2 Role of the BRDC in the realisation of the Right to Health Care
It was important to unpack the views of the respondents on the role that the BRDC has
concerning the right to health care. Results from the survey showed the following:
97
Figure A: Role of BRDC towards the realization of the right to health care
From a qualitative perspective, respondents had this to say:
Council has clinics in some of the rural wards where we stay (Participant 6).
Give the elderly free medication like BP drugs (Participant 1).
Conduct health campaigns in schools and at shops about immunization (Participant 4).
They are present in times of pandemics like COVID-19 where they had tents vaccinating the people
(Participant 4).
My wife is employed as a nurse at BRDC’s clinic (Participant 2).
All local authorities, BRDC included, complement central government’s provision of health care. This is
becoming more pronounced in devolution system that the government has been following. BRDC runs
clinics that fall under their jurisdiction (Participant 5).
The responses show that people have an understanding of the role that the BRDC has in the
context of health care. This is consistent with the data from the quantitative survey.
Participant 3 brought in the devolution dimension which has made it possible for the BRDC
to play a more visible role in health care. However, most of the interviewees did not tie the
role to the right as provided for in the Constitution. This confirms the findings from the
survey that people have an understanding of health care and not the right to health care (see
figure A below). In short, they acknowledge that the BRDC plays a role through medical
infrastructure, vaccines and employment of staff. On the employment aspect, Participant 6
noted that rural council clinics salaries are met by the central government as RDCs have small
budgets that can enable them to cater for all the expenses. However, part of the responses
provided explain the role of BRDC towards the realisation of the right.
Figure B below shows the levels of the right to health care as provided for in the Constitution.
Participants were asked whether they know about the existence of the right as provided for in
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
Respondents
Does BRDC have a role?
Has a role No role Unsure
98
the Constitution. 88.9 per cent said no, while 6.1 per cent said yes and 5 per cent were unsure.
The findings are consistent in that the few people who are knowledgeable about rights as
enshrined in the Constitution are administrators, and other selected professionals. The
majority, 88.9 per cent who were not familiar with the constitutional right to health care,
consisted of people who are not working within the health care sector or in related
administrations. This may possibly explain why there is lack of public accountability for the
delivery of health care.
4.3 Effectiveness of the BRDC in Contributing to the Realisation of the Right to Health
Care
The study sought to assess the effectiveness of BRDC in advancing the right to health care
from the respondents. The following issues emerged:
We only see posters at shopping centres on immunization dates and messages around preventing HIV/AIDS.
The posters will be in English and Shona (Participant 6).
Normally village health workers move around our ward announcing outbreaks of diseases affecting children
and the dates for immunization (Participant 2).
BRDC complements central government efforts in the health sector. In fact, their effectiveness mirrors that
of the ministry or central government. For example, access to health care is free to children under five and
adults above 65. Where people pay they can pay between usd$1 or usd$5 for services offered. The fees are
meant to cover for costs running a health point. It is also critical to note that rural council clinics receive
funding to boost their contribution towards health care through the Results Based Funding model where
money is allocated based on performance ratings and needs per clinic (Participant 1).
They are not, these days they open late and can start lunch anytime (Participant 4).
The workers appear less motivated and however, drugs are sometimes available depending on the dispatches
that would have been made by NATPHARM which is run by the government (Participant 3).
Health points are not close to us, as such BRDC is not effective. The issue of long distance tends to
discriminate access to health in particular by people living with disabilities and the elderly who may not
have transport (Participants 3 and 4).
There are mixed feelings on the effectiveness of BRDC in promoting the right to health care.
Some of the respondents believe that it is playing an effective role in ensuring information
dissemination and immunisation of children while others noted that the health personnel
appear to be compromising the effectiveness of the BRDC. Participant 4 implied that the
BRDC is not effective because people travel for unreasonable distances to have access to
health care services. Long distance indirectly leads to discrimination in form of inaccessibility
to medical facilities since younger generations and those with access to motor vehicles and
scotch carts are at an advantage while the older generations suffer due to a lack of resources
and insufficient support systems. This issue resonates with the need to ensure that health
facilities must be closer to people for the right to be fully enjoyed by everyone.
The study also aimed to answer the question from a quantitative perspective as it asked
participants to rank their perceptions on the effectiveness of the BRDC against set variables
that ensure the right to health care. It can be noted that the BRDC performance lies in the
average in its contribution to the right to health care. The council has poorly performed in
terms of availability of drugs, reasonable access of the clinic, and quality of services. The
council has performed above average to near best in the fields of non-discrimination,
dissemination of information in an understandable language, and professionalism among staff
99
members. The study argues that effectiveness can only be measured by looking at the totality
of the performance of the BRDC in all the areas stipulated above. No single factor can be
used to make a conclusive assessment since a variety of variables are critical and interrelated.
Thus, the survey points to an average performance which is close to the mixed reactions from
the in-depth interviewees conducted. The study sought to assess the challenges that may
prevent the full contribution of the BRDC to the right to health care and the following
emerged.
4.4 Challenges Inhibiting BRDC Contribution to the Right to Health Care
The central goal of the study was to understand the factors that could prevent the BRDC from
ensuring the full realisation of the right to health care. The qualitative responses were as
follows:
Brain drain at local and national level. Some of the health personnel are leaving rural wards to the towns and
cities and others are flocking to greener pastures in neighboring countries and the United Kingdom
(Participant 3).
Poor road networks that connect villagers to the clinics. Some of the roads are in a poor state that makes
accessibility of ambulances to ferry patients difficult or in some cases it delays the delivery of medicine
(Participant 3).
Macro-economic environment. An unstable macro-economic environment affects the budgetary allocations
which have a bearing on the quality of services offered by local authorities (Participant 6).
Shortage of essential drugs and delays in dispatch from NATPHARM (Participant 1).
Lack of vehicles that can be used in effective door to door or road show health advocacy campaigns
(Participant 4).
Generally, the respondents have attributed the poor performance of the BRDC to the national
economy. The macro-economic environment plays a critical part for most of the variables
needed for the right to health care to be respected, protected and fulfilled by the BRDC. The
study tried to tackle the question from a quantitative perspective and the following emerged:
Factors Affecting BRDC’s Contribution to the Right to Health Care
Inhibiting factors Yes No Not Sure Total
Macro-economic issues 75% 20% 5% 100%
Management of BRDC 11% 85% 4% 100%
Budget 90% 10% 0% 100%
Health personnel 40% 45% 15% 100%
Health care information 6% 90% 4% 100%
Rights-centred health care administration 4% 30% 66% 100%
Corruption 91% 3% 6% 100%
Figure B: Factors Impeding the Right to Health Care by BRDC
From the results, we can note that budgetary issues and macro-economic issues affect the
functionality of the BRDC in promoting access to health care. The same finding emerged
from the in-depth interviews. Corruption is also key concern that was noted by most
participants. The tendency to engage in corruption can also be tied to poor working conditions
100
or low performance of the economy. An interesting factor is the rights-centred health
administration to which few people said ‘yes’. This can be explained by the fact that most of
the people are not aware of what it is and the 66 per cent figure of ‘not sure’ confirms this
observation. Other factors that are believed to have an impact on health care include health
care information, management of the BRDC and health personnel. Additional barriers stated
by the respondents in the survey, but not listed on the table, are brain drain and low
remuneration. The two can be tied to the performance of the national economy.
4.5 How Can These Challenges Be Mitigated?
The following issues were suggested by the respondents to mitigate the challenges faced by
the BRDC in complying with its duties to respect, protect and fulfill the right to health care.
Most of the participants argued that the BRDC should create various funding models through
Private-Public-Partnerships. This would enable them to limit their over-reliance and
dependency on the government and donors. Participant 2 articulated that “community projects
like food-for-work were handy in the maintenance of roads that connect clinics to the main
roads which ambulances and medical delivery trucks would use”. Accordingly, food-for-work
programs or other community-led projects need to be resuscitated. There is a need to improve
the macro-economic stability which has a huge impact on the performance of the BRDC, as
emphasised by most of the participants. Attached to this “is the improvement of working
conditions and recruitment of more nurses per rural clinic. Most rural clinics have four nurses
that are provided for by the central government through the ministry of health” (Participant 6).
There is a need to build more clinics within the rural wards (Participant 1). This suggestion
could help to reduce the distance travelled by patients within the rural wards run by the
BRDC.
5 Conclusion and Recommendations
The discussed literature and evidence arising from the in-depth interviews and the survey
point to the fact that local authorities have a vital role to play towards realisation of the right
to health care. The case of the BRDC shows that it is one of the agents that complements the
central government’s primary responsibility to respect, protect and fulfill this right. There are
mixed perceptions on the contributions of the BRDC. The downside of it has been explained
by the performance of the national economy, unfavourable working conditions, low
remuneration, corruption, and lack of essential drugs. The study notes that the full
contribution of the BRDC to the realisation of the right to health care is possible through
addressing these multiple variables as they are interrelated. The study, consequently,
proposes the following recommendations:
1. The Ministry of Health and Child Care in collaboration with the Ministry of Local
Government and Public Works should conduct capacity building workshops for the
health and the BRDC personnel on a rights-centred approach in health administration.
This emerges from the results that only a few respondents had substantial knowledge
about this.
2. Non-governmental organisations in the health sector, human rights and the World
Health Organisation should conduct awareness campaigns among the broader
population who are not part of the health care workforce on the right to healthcare, the
obligations of the state and the BRDC. This enables a rights culture that people can
use to hold authorities accountable for the provision of health care.
101
3. The Ministry of Finance and Economic Development should raise more funding for
the construction of clinics in rural wards to reduce distances between people and
health care centres. This will also address indirect discrimination against the elderly
and people living with disabilities who may not be able to walk long distances for
treatment.
4. The Ministry of Health and Child Care and the Ministry of Local Authorities and
Public Works should recruit more nurses and other health officers for rural council
clinics.
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7 The Future of Corporal Punishment in the Family Home and Other Similar Settings in
Zimbabwe
Nkosana Maphosa, Idaishe Grace Zhou and Gladys Paidamoyo Mungwari
*
[…] Recognising that the child occupies a unique and privileged position in the African society and that for
the full harmonious development of his personality, the child should grow up in a family environment in an
atmosphere of happiness, love and understanding;
Recognising that the child, due to the needs of his physical and mental development, requires particular care
with regard to health, physical, mental, moral and social development, and requires legal protection in
conditions of freedom, dignity and security […].
Abstract
The central argument is that corporal punishment is irreconcilable with children's rights as
enumerated in international, regional and national normative standards. The research takes a
cue from tipping-point contemporary legal developments that have led to the abolition of the
practice in criminal justice and education systems. Moreover, corporal punishment is a hard
case since it implicates complex, convoluted, and polarised non-juridical considerations.
Germane to the study is the instructive and progressive architecture of the United Nations
Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the
Child and the burgeoning constitutional provisions on children’s rights under the 2013
Zimbabwean Constitution. In the main, the authors deploy a qualitative doctrinal research
methodology to conclude that the prevalence of corporal punishment in the home, care facilities
and other settings is incompatible with the tenor of the Constitution and international law.
1 Introduction
The advent of children’s rights is revolutionary since it has ignited a broader paradigmatic
social, economic, political and cultural shift. The jurisprudence in S v. Ndlovu, S v. Banda, S v.
Chakamoga,
1 Bhila v. The Master of the High Court and Others,2 Hale v. Hale3 and several
* The authors are human rights professionals and researchers active in Zimbabwe.
1 See S v. Banda, ZAFSHC 114, (2015); S v. Chakamoga, HH 47-16, (2016) The appellate court per Charehwa J,
relying on S 81(3) of the 2013 Zimbabwean Constitution emphatically reasoned that: “More specifically, the
specific obligation placed on the courts, and the High Court in particular, by s 81(3) made me consider that it
may be high time that the courts has a serious relook at the sentencing regime for sexual offences so that the
message is clearly sent that the courts, in the discharge of their protective mandate for young persons, find that it
is totally unacceptable to sexually exploit young persons. This is especially pertinent for offences committed
against those young victims aged between 12 and 16 who were directly or impliedly assumed to have
“consented” to the sexual violations […]”.
2 See Bhila v. The Master of the High Court and Others, ZWHHC 549 (2015). The case is the hallmark for the
constitutionalisation of administration of estates and succession laws in Zimbabwe mainly via the equality
provision (S 56).
3 See Hale v. Hale, HH 271-14. The case fleshes the right to be heard and what breadth of the best interests of
the child principle. Per Tsanga J, “In any event it would also seem to me that this issue regarding the children’s
schooling cannot be dealt with satisfactorily without hearing the views of the children themselves, especially the
two older children who are already at the boarding school in question. I say this because a particularly
noteworthy aspect of the new Constitution is that it grants both parents’ and children rights…Yet all these rights
that undoubtedly impact on parents now have to be balanced against those which our Constitution also gives to
children. This is even more so where parents as in this case, are not in agreement as to what is the best interest
for the child. Constitutionally, as of right, children are no more at the margins and periphery of decisions
affecting them. They have effectively have a right to be part of those decisions” (pp.8-9). Emphasis added.
103
investigations conducted by human rights bodies support this view.
4 The premier human rights
institution in Zimbabwe has acknowledged the existence and utility of children’s rights in an
open and democratic polity.
5 Secondly, it notes that the Constitution “calls for a change of
perspective as it describes children as holders of a range of human rights”.
6 Third, it ties the
landmark constitutional developments to the broader global human rights movement. Fourth, it
illuminates the view that children’s rights impose obligations, both direct and indirect, on
parents, the family and the State.
7 Consequently, cognizant of these germane legal
developments as pinnacled by the United Nations Convention on the Rights of the Child and
the African Charter on the Welfare and Rights of the Child in Africa, we evaluate whether
corporal punishment in the home, care institutions and other similar settings is compatible with
the human-rights based approach in the burgeoning laws. The answer is arguably non-
affirmative. Nevertheless, we note the discernible contradictions and paradoxes involved in a
subject such as the one under review in this study. In the foregoing, the definition of corporal
or physical punishment is essential. The United Nations Committee on the Rights of the Child,
which oversees the Convention on the Rights of the Child, has defined it as “any punishment
in which physical force is used and intended to cause some degree of pain or discomfort,
however light.” According to the Committee, this mostly involves hitting smacking, slapping
or spanking children with a hand or using tools such as whips, sticks, belts, shoes or wooden
spoons. It can, however, also involve, kicking, shaking, scratching, pinching, biting, pulling
hair, boxing ears, throwing children or forcing them to stay in uncomfortable positions as well
as burning, scalding or forced ingestion. While the study does not rely on primary empirical
data, it nevertheless analyses existing studies to better understand the current state of corporal
punishment and the future of the practice.
8
2 Background and Context
Globally, an estimated 732 million children, which translates to 1 in every 2 children between
the ages of 6-17 years, live in countries in which corporal punishment is not fully prohibited.
9
In 2021, studies by various scholars showed that Africa and Central America have a 70 per cent
prevalence of corporal punishment in schools, while in the Eastern Mediterranean and South
East Asian regions, the prevalence stood at 60 per cent. The lowest prevalence was found in the
Western Pacific region where the lifetime and past year rates were 25 per cent.
10 Those high
rates are found in both secondary and primary schools. Globally, corporal punishment remains
a controversial disciplinary method. Although such physical punishment is prohibited in many
Western countries, it is still used in various parts of the world especially in the Global South.
Historically, an increase in juvenile crime has been followed by calls for the reinstatement of
corporal punishment in those regions where it had been prohibited. Opponents of corporal
punishment, however, argue that it is inhumane and that juvenile corporal punishment risks
4 For a ZHRC investigation pertaining to participation of children in political activities see ZHRC/CI/0069/17
and an investigation on barring learning from writing examinations see ZHRC/CI/226/2019.
5 See A. Moyo, ZHRC Practitioners Training Manual on Constitutional Rights of Specific Groups of People Vol.
2 (Zimbabwe Human Rights Commission, 2020) p.43.
6 Ibid.
7 Ibid.
8Pathshala, ‘Research Methodology, Module IV: Socio-Legal Research’
<epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/09._research_methodology/04._socio-
legal_research/et/8151_et_et.pdf> (accessed 11 January 2023). pp.26-28.
9 World Health Organization, ‘Corporal Punishment and Health’, 2021, <who.int/news-room/fact-
sheets/detail/corporal-punishment-and-health> (accessed 30 August 2022).
10 Ibid.
104
reinforcing the delinquent behaviour of those who receive it.
11 In Zimbabwe, corporal
punishment remains legal although the contexts in which it is used have been limited. Corporal
punishment is no longer allowed in schools as a method of discipline
12 and neither is its use in
the criminal justice system.
13 The prohibition of corporal punishment in schools has been met
with mixed reactions, for instance, with a student teachers’ union calling for the return of
corporal punishment in schools in order to stop increasing rates of teenage delinquency and
crime.
14
In the home and other similar private settings, where corporal punishment is still legally
allowed, corporal punishment remains a point of contestation. While there is growing evidence
that corporal punishment is harmful to the development of children, many parents and
caregivers remain committed to the idea that it is necessary for the development of children. In
the home, the distinction between private and public enables the subjugation of vulnerable
groups, and children are treated with paternalism and subordination, thus limiting their
enjoyment of their rights.
15
2.1 Theoretical Underpinnings of Corporal Punishment
The logic behind children needing to be punished in order for them to develop into respectable
adults is rooted in the punishment theory of deterrence. As a theoretical concept, deterrence was
first articulated in the 17
th and 18th centuries and is based on the idea of a rational person.
Deterrence theory states that if punishment is well-suited for the harm that was done, then a
rational person would weigh the potential benefits and losses before engaging in rule-breaking.
If the loss or punishment is greater than the joy they gain from breaking the rule, then they
would follow the classical deterrence theory which entails three concepts: severity, certainty
and celerity or swiftness. If a punishment had all three components, then a person would likely
not break the rules and would, therefore, be deterred from committing a similar offence in the
future. Other people would also be deterred from offending in a similar manner when they
witness the punishment as they would not want to suffer the same fate.
16
Regarding corporal punishment, the pain and humiliation of the punishment was thought to be
enough to prevent people from committing similar offences in the future. In fact, that is one of
the main reasons given by parents for why they continue to use the practice: they want to correct
their children and turn them into respectable, law-abiding adults.
17 Even so, research on
criminality, where deterrence has been tested, shows that deterrence is not effective in reducing
11 Ibid.
12 Government of Zimbabwe, Education Amendment Act [Chapter 25:04], 2020,
<mopse.co.zw/sites/default/files/public/downloads/EDUCATION%20AMENDMENT%20ACT%2C%202019%
20%5B%20Act%2015-2019%5D.pdf> (accessed 11 January 2023).
13 S v. Chokuramba, CCZ 10/19 ZWCC 10 (2019).
14 T. Muchabaiwa, ‘Student Teachers want corporal punishment back’, Newsday, 2022,
<newsday.co.zw/2022/04/student-teachers-want-corporal-punishment-back/> (accessed 11 January 2023).
15 S. Tamale, Decolonization and Afro-Feminism, (Daraja Press Ottawa, 2020) pp. 328-329; B. Schmueli, ‘What
Has Feminism Got To Do With Children’s Rights: A Case Study of a Ban on Corporal Punishment’, 22,
Wisconsin Women's Law Journal (2007), p. 185.
16 J. Abramovaite et al., ‘Classical deterrence theory revisited: An empirical analysis of Police Force Areas in
England and Wales’, European Journal of Criminology, (2022); D. S. Nagin, Deterrence in the Twenty-First
Century, 42(1) Crime and Justice, (2013) pp. 199-263.
17 P. Gwirayi, ‘Functions Served by Corporal Punishment: Adolescent Perspectives’, 21:1. Journal of
Psychology in Africa (2011) pp. 122-123.
105
recidivism.
18 Another point of contention is that deterrence is based on the theory of a rational
adult person. Children are still developing and often lack the rational qualities that adults have
and so harming them physically will not have the desired effect because their ability to
rationalise is compromised.
2.2 The Rationale for the Continued Use of Corporal Punishment
Proponents of corporal punishment argue that it is a necessary part of discipline in the home
that is culturally appropriate. Most parents believe that it is a way to steer children towards the
right path and that a ban on corporal punishment would promote bad behaviour because parents
would no longer have a primary method of control.
19 A common argument is, consequently,
that parents and guardians would lose control over children win the absence of corporal
punishment.
20 In addition to losing control, parents believe that corporal punishment reduces
bad behaviour in children in the short term and long term. Studies, however, provide contrary
evidence, proving that for short-term results, it is unclear if corporal punishment is effective.
21
For long-term behaviour change, empirical data also does not support the effectiveness of this
method of parenting. Where children change their behaviour, it is because they associate
negative experiences with it, but the children would not have internalised why they should
behave appropriately.
22
It is noteworthy, that even opponents of corporal punishment urge the public to take possible
adverse consequences into consideration when arguing for a total ban. Such laws could, for
instance, lead to arrests of parents for minor violations, such as isolated spankings that do not
result in injury. This could then disturb the life of children and put their psychological wellbeing
in jeopardy due to feelings of guilt.
23 While Zimbabwean law allows for parents and guardians
to raise children according to the morals and religion of their choosing; it nevertheless provides
a qualifier in the form of children’s rights.
24 This implies that “parents should not prejudice the
rights to which their children are entitled under the Constitution including the right to education,
18 B.C. Watson et al., ‘Different approaches to measuring specific deterrence: some examples from speeding
offender management’, Prodeedings of the 2010 Australasian Sorad Safety Research (2010) p. 7.
19 G. D. Gwenzi et al., ‘The prevailing social attitudes towards child discipline in Zimbabwe’, 11:5 African
Journal of Social Work, (2021) p. 217.
20 ibid pp. 213-221.
21 T. Hecker et al., ‘Corporal Punishment and Children’s Externalizing Problems: A Cross-Sectional Study of
Tanzanian Primary School Aged Children’, 38 Child Abuse and Neglect (2013) pp. 884-894.
22 Ibid.
23 B. Wood, ‘A Report from New Zealand: four years post law change’, 2016
<epochnz.org.nz/images/stories/media-
ol/ResearchAndOtherPapers/Violence_free_childhoods_September_2016.pdf> (accessed 7 September 2022).
24 Section 60(3) of the Constitution provides that “parents and guardians of minor children have the right to
determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do
not prejudice the rights to which their children are entitled under this Constitution, including their rights to
education, health, safety and welfare.” Emphasis added. The Zimbabwe Human Rights Commission (ZHRC) in
‘ZHRC Practitioners’ Manual On Constitutional Rights’ (Vol.1,p.62) has summarized the scope and content of S
60 as follows: “(a) the freedom to choose one’s religious or other beliefs without direct and indirect pressure
from the State, individuals or other sources. This suggests that religious entities may not bar people from leaving
their fold and converting to other religions; (b) the right to declare one’s faith or religious beliefs openly and
without fear of victimization means that every person has the right to profess or express their religious beliefs in
public and the State or any other person or entity should not compel members of a particular religion to worship
in private; (c) it entails the right to express one’s religious beliefs by worship and/or to practice them by teaching
and dissemination; (d) it entails the right to assemble to practice religious or other observances with other
members of the same religion (sic) or other community.”
106
health, safety and welfare”.
25 Notwithstanding, many Christians who constitute the majority of
Zimbabwean parents, believe they not only have a right to use corporal punishment on their
children, but that they contemporaneously have a duty to do so. Adherents often rely on the
Proverbs 13:24’s ‘spare the rod, spoil the child’ rhetoric which has often been used to justify
the use of corporal punishment on children as it is believed that failing to beat children will
result in unruly children who eventually become criminals as adults.
26 Thus, corporal
punishment becomes a site of struggle for children’s rights promotion. Sloth-Nielsen
27 quoting
Freeman
28 postulates that “the case that children have rights has to a large extent been won: the
burden now shifts to monitoring how well governments honour the pledges in their national
laws and carry out their international obligations”.
29 Our contention is that corporal punishment
in the home and other similar settings is irreconcilable with children’s rights. We note, however,
that this position could generate debate. On one hand, there is the uncontested view that children
are physically and economically vulnerable and powerless. This implies their inability to
overcome their disadvantaged status merely by fully exercising the rights granted to them.
30
2.3 Rationale for Ending Corporal Punishment
Perhaps the most common argument for the abolishment of corporal punishment is the lack of
clear direction between reasonable chastisement and child abuse. Acts of corporal punishment
have the potential to escalate to incidents that cause injury or death. In many incidents where
parents were arrested for child abuse, the parent had intended to discipline the child. In
Zimbabwe, of the 19 child deaths in the first nine months of 2022 that have been reported by
the Herald, four of the ten who died at the hands of their parents were killed during the
administration of corporal punishment.
31 Nevertheless, the general sentiment appears to be that
children are entitled to equal protection under the law, including in the privacy of the homes in
which they reside. When corporal punishment is legal, parents and guardians are more likely to
believe that it is an acceptable practice. Consequently, making the practice illegal can encourage
parents and guardians to seek alternative forms of disciplining children in their care.
32
Additionally, it can encourage governments to provide resources and education for the purpose
of eliminating corporal punishment in all environments. The Children's Amendment Act, 2023
25 ZHRC, supra note 4, p. 62. A conspectus of core international instruments on freedom of conscience include
Article 18 of UDHR, Article 18 of the ICCPR, Article 5 of the International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD), Article 14 of the CRC, Article 9 of the ACRWC, Article 8 of the
African Charter on Human and People’s Rights (ACHPR), Article 12 of the International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families (CRMW).
26 J. Becker, ‘Corporal Punishment: Legal Reform as a Route to Changing Norms’, 85, Social Research: An
International Quarterly, (2018) p.255; Gwenzi, supra note 19, pp. 213-221.
27 J. Sloth-Nielsen, ‘Chicken soup or chainsaws: some implications of the constitutionalisation of children’s
rights in South Africa’ in U Kilkenny and L. Lundy (eds.), Children’s Rights (Routledge, London, 2017).
28 M. D. A. Freeman, ‘The Limits of Children’s Rights’,in M. Freeman P. E. Veerman (eds.), The Ideologies of
Children’s Rights (Brill, Leiden,1992). pp. 29-46.
29 Sloth-Nielsen, supra note 27, p.6.
30 Ibid., p.7.
31 The Herald, ‘Man kills daughter (5), dumps body along highway’, 2022, <herald.co.zw/man-kills-daughter-5-
dumps-body-along-highway/> (accessed 8 September 2022); The Herald, ‘Missing girl (11) found murdered’,
2022, <herald.co.zw/missing-girl-11-found-murdered/> (accessed 10 August 2022); The Herald, ‘Crimes of
passion involving women up’, 2022, <herald.co.zw/crimes-of-passion-involving-women-up/> (accessed 15 June
2022).
32 M. A. Strauss, ‘Prevalence, Societal Causes, and Trends in Corporal Punishment by Parents in World
Perspective’, 73 Law and Contemporary Problems, (2010), pp. 22-23.
107
(No. 8 of 2023) is an example of this. Section 49B states that the government will ensure the
promotion of positive and non-violent forms of discipline.
33
Another reason cited for the abolishment of corporal punishment is psychological in nature. It
recognises that although moderate corporal punishment is not meant to cause injury to the child
it nonetheless causes pain.
34 Corporal punishment from parents is unique since an assumption
that the parents love and care for their children can be inferred.
35 As corporal punishment uses
violence, however mild, it can create the connection, in the minds of children that love and
violent behaviour go hand in hand. Numerous studies have made the connection between men
who were physically punished as children becoming adults who use violence with their partners
and children.
36
The contention is that any form of physical violence can hurt children. In addition to direct
physical harm, including death, they can also suffer emotional harm. It can also result in long-
term physical diseases that are caused by prolonged stress and worry.
37 With corporal
punishment, it is not only the physical strike that is harmful but the anticipation regarding when
the next strike will hit their body.
38 If the home is a place where pain occurs, children also learn
that family and home is not a safe place. Corporal punishment leaves lasting lessons that
violence is a method of achieving one’s goals. In order for children to conform to the behaviour
their parents want, they use violence on their children and that can raise them to adults who
believe that this is the way to convince others to do what they desire. Numerous studies have
demonstrated that people who experienced violence as a child go on to perpetuate violence as
an adult.
39
33 Children's Amendment Act, 2023 (No. 8 of 2023)
https://www.jsc.org.zw/upload/Gazette/Act%20No.%208%20of%202023%20Children's%20Amendment.pdf
<www.veritaszim.net/node/5375#:~:text=Among%20other%20definitions%2C%20the%20definition,at%20risk
%20of%20being%20unlawfully> (accessed 1 June 2023)
34 Convention Against Torture Initiative, ‘Positive Discipline and Alternatives to Corporal Punishment of
Children’, <endcorporalpunishment.org/wp-content/uploads/2021/04/CTI-Tool-10-Positive-Discipline-2021-
ENG-draft6_FINAL.pdf> (accessed 2 September 2022).
35 A. Moyo, ‘(Il)limitable and Non-Derobagle Rights, Judicially Sanctioned Whipping and the Future of
Punishment in All Setting in Zimbabwe’, in Raoul Wallenberg Institute, Final Papers of the 2017 National
Symposium on the Promise of the Declaration of Rights under the Constitution of Zimbabwe, 2017,
<old.zimlii.org/zw/blog/Final%20Papers%20of%20the%202017%20National%20Symposium.pdf> (accessed 8
September 2022), pp.18-37.
36 E. Fulu et al., ‘Pathways between childhood trauma, intimate partner violence, and harsh parenting: findings
from the UN Multi-country Study on Men and Violence in Asia and the Pacific’, 5(5) Lancet Global Health,
(2017) pp. e512-e522.
37 P. Mahlangu et al., ‘Prevalence and Factors Associated with Experience of Corporal Punishment in Public
Schools in South Africa’, 16(8) PLoS ONE (2021), pp. 1-15.
38 Moyo, supra note 35.
39 P. Romito, A Deafening Silence: Hidden Violence against Women and Children. (The Policy Press, Great
Britain, 2008). p. 25.
108
3 Constitutionalisation of Children’s Rights and Corporal Punishment: Children, the Rod
and the Law
40
The Constitution of Zimbabwe Amendment (No.20) Act, 2013
41 champions children’s rights.42
It presents the judiciary in particular with an opportunity to advance children’s rights
43 and
protect minors from all forms of violence. In that sense, the Constitution recognises the need to
address both contemporary and antecedent forms of violence. The current work falls in the
continuum of similar scholarship on children’s rights which tries to evaluate the contribution
of the 2013 Constitution to achieve an egalitarian, free and just society.
44 Magaya and
Fambasayi for example conceptualise the 2013 Zimbabwean Constitution as a catalyst for the
realisation of children’s rights. In their audit of evolving children’s rights jurisprudence, they
take a more nuanced view and a historical and evaluative methodology. They embark on a
constitutional exegesis to look back at the former Constitution of Zimbabwe to examine the
jurisprudence and gain a deeper understanding of the 2013 Constitution. In relation to the
current project, their work supports the idea that the 2013 Zimbabwean Constitution could serve
as a liberating and protective device for children who find themselves being subjected to or
threatened by violence, impunity and any inhibiting environment. Therefore, having surveyed
the Court’s performance in a myriad of areas such as the administration of estates and
succession, judicial corporal punishment inter alia, they conclude with brevity that Zimbabwe
is making promising progress in the development of children’s rights, due in part to the 2013
Constitution.
45
The above-cited authors concur with Moyo who not only sees enormous potential in the 2013
Zimbabwean Constitution; but also observes that both child law and children’s rights are
nascent expressions in Zimbabwe.
46 Moyo contrasts the 2013 Constitution, which provides
children with protection, provision, and participation rights with its predecessor, which
protected customary laws from constitutional provisions, allowing traditional norms that violate
children’s rights to continue.
47
40 Adapted from D. Benatar, ‘The child, the rod and the law’ in R. Keightley Children’s Rights (Juta, 1996) p.
197.
41 Subsequently referred to as the 2013 Constitution.
42 See Mudzuru and Another v. Minister of Justice, CCZ 12/2015.
43 See Dzvova v. Minister of Education Sports and Culture and Others, ZWSC 26 (2007) (freedom of religion
and conscience under section 19(1) of the Lancaster House Constitution); Bhila v. Master of the High Court,
supra note 2; S v. FM (A Juvenile), ZWHHC 112 (2015); S v. Banda, supra note 4; S v. Chakamoga, supra note
1; S v. Chokuramba, supra note 13.
44 A Moyo, ‘The Judiciary and Children’s Rights in Zimbabwe’, in J Tsabora (eds.), The Judiciary and the
Zimbabwean Constitution (University of Zimbabwe Press, 2022) pp.228-250; B.Mushowe, ‘A ray of hope for
the outlawing of corporal punishment in Zimbabwe: A review of recent developments’, The Zimbabwe
Electronic Law Journal (2018), <old.zimlii.org/zw/journal/2018-zelj-
01/%5Bnode%3Afield_jpubdate%3Acustom%3AY/ray-hope-outlawing-corporal-punishment> (accessed 12
January 2023).; The Herald, ‘Ban on corporal punishment opens new era for children’, 2015,
<herald.co.zw/ban-on-corporal-punishment-opens-new-era-for-children/> (accessed 12 January 2023).; A.
Moyo, ‘The Legal Status of Children’s Rights’, in A Moyo, Selected Aspects of the 2013 Zimbabwean
Constitution and the Declaration of Rights (2nd Edition, 2022), pp.243-286
<staging.rwi.hemsida.eu/wp-content/uploads/2022/09/RWI-HR-Anthology-FINAL2-1.pdf> (accessed 12
January 2023).
45 I. Magaya and R, Fambasayi, ‘Giant leaps or baby steps? A preliminary review of the development of
children’s rights jurisprudence in Zimbabwe’, De Jure Law Journal, (2021),
<scielo.org.za/pdf/dejure/v54n1/02.pdf> p. 34.
46 Moyo, supra note 44, p.228.
47 Ibid. Emphasis added. p. 228.
109
The post-Chokuramba period has seen a surge in the interest on the legality of corporal
punishment in other settings. Nevertheless, these calls are not in themselves new since various
institutions have previously implored Zimbabwe to outlaw the practice. For instance, “in 1998,
the Human Rights Committee emphasized to Zimbabwe that corporal punishment is
incompatible with the International Covenant on Civil and Political Rights”.
48 Also, the
Government of Zimbabwe responded affirmatively to the results of the first cycle of the
Universal Periodic Review in 2011 which urged the country to outlaw corporal punishment in
all settings.
49 Now that the Constitutional Court has outlawed judicially sanctioned corporal
punishment, the main objective of this paper is to demonstrate why all forms of corporal
punishment should be outlawed in all settings. The main argument is that a liberal and purposive
construction of the 2013 Zimbabwe Constitution will have the effect of outlawing corporal
punishment in the home, alternative care settings, day care institutions and foster homes alike.
With respect to the latter, recent studies seem to suggest that some parents are in support of
corporal punishment.
50
Corporal punishment has a long genealogy in constitutional adjudication in Zimbabwe.
51
Recent analyses straddle abolitionist and relativist constructions of the law on corporal
punishment.
52 Nevertheless, the central contention is that corporal punishment is irreconcilable
with the elaborate rights of children under the 2013 Constitution.
53 The Constitution provides
no carve out probably indicative of the drafters’ intention to engender a society free from
violence. Moreover, the international agreements that Zimbabwe is party to arguably
demonstrate that corporal punishment cannot pass muster. The Constitutional Court of
Zimbabwe concurs partially with the ongoing discourse when it comes to deploying certain
rights, especially right to dignity, to judicially imposed corporal punishment.
54 Magaya and
Fambasayi evaluate the evolving children’s rights jurisprudence in Zimbabwe.
55
The test to determine if an impugned law, conduct or custom should still subsist in a
constitutional democracy would largely depend on whether it can co-exist with dignity as a
constitutional value. Before, the Court was the legality of the extant practice of corporal
punishment under adjectival law. The Court found the right to dignity (and as a principle) was
instructive. It explained that:
Human dignity… is a special status which attaches to a person because he or she is a human being […] Human
dignity is therefore inherent in every person all the time regardless of circumstances or status of the person...
Human dignity is not created by the State by law; the law can only recognise the inherence of human dignity
in a person and provide for equal respect and protection of it.
56
However, it is pertinent, before proceeding to illuminate the holding and reasoning of the Court,
to provide a crisp background to the constitutional matter. As noted above, the matter was
brought to the Constitutional Court via the section 175 of the Constitution route where the
Constitutional should confirm preliminary constitutional findings made by the High Court. The
48 S. Owen, ‘Briefing on Zimbabwe for the Committee on the Rights of the Child’, End All Corporal Punishment
of Children, June 2015, visited on 13 July 2023 p. 4.
49 Ibid. p. 4.
50 Gwenzi, supra note 26, p 218.
51 Veritas, ‘Court Watch 6/2019 Corporal Punishment: When the Beating Had to Stop’, (2019),
<veritaszim.net/node/3507> (accessed 12 January 2023).
52 Moyo supra note 44.
53 Ibid.
54 S v. Chokuramba, supra note 13; S v C (A Juvenile).
55 Magaya and Fambasayi, supra note 45.
56 S v. Chokuramba, supra note 13, p 19.
110
pertinent facts are that a juvenile of fifteen years, who had been convicted of rape in the
Magistrate’s Court, was sentenced to corporal punishment. This meant that he was to be
subjected to three strokes based on Section 353 of the CPEA and as fleshed out in the
Regulations.
57 Furthermore, the court a quo concluded that it was inconceivable to justify the
administration of corporal punishment without violating the inherent dignity of the juvenile. In
unequivocal words, the High Court found that Section 353 was incompatible with the spirit of
Chapter 4 of the Constitution, in particular Section 53 as read with 52(a) and 51 of the 2013
Zimbabwean Constitution.
Despite the progressive ruling of the High Court, it suffices to note that judicially sanctioned
corporal punishment has a long genealogy in constitutional practice. In the late 1980s, it was
found to be inconsistent with the then s 15(1) of the maiden Constitution of Zimbabwe
(Lancaster House Constitution), and by the Supreme Court, in S v A Juvenile.
58 Although the
latter case was decided under the auspices of the former Constitution, it matters still that
Zimbabwean courts have consistently maintained that corporal punishment stood in sharp
contradistinction with the ideals and values of a progressive and civilized society.
Notwithstanding, the differences between the Chokuramba and S v A Juvenile decisions is
mainly that the legislature effected a constitutional amendment which overturned the judgment
of the Supreme Court. In essence, the end result of the reforms was that they defied court
decisions, and by doing so, undermined tenets of judicial independence and the rule of law.
Accordingly, the limited judicial review powers sanctioned by Section 15(3) (b) of the now
defunct Lancaster House Constitution, meant that corporal punishment remained extant.
Despite the controversial architecture of Section 15 (3) (b), cited above in relation to the powers
of the judiciary, it appears now, by virtue of Chokuramba, that the constitutional morality has
been revolutionised. In the opinion of the Court, in the absence of any constitutional prohibition
or limitation of its powers, it is empowered to test either executive or legislative conduct for
compliance with the Constitution. In other terms, in the pre-2013 constitutional era, courts were
unable to contest judicially sanctioned corporal punishment as unconstitutional since the
amended Constitution made it permissible. Moreover, the holding of the Court, was that in the
absence of a provision such as Section 15(3) (b) of the Lancaster House Constitution, the Court
was empowered to determine whether the conduct of the President or Parliament were
compliant with the constitutional intent. Further, the Court appeared to reemphasise that its
powers are directly derivable from the Constitution which created it.
According to the Court, the determination of whether or not corporal punishment still had a
place in Zimbabwean society could be answered by asking one broad question which has two
components. The core question was whether moderate corporal punishment violated the
inherent human dignity of juveniles as protected under the Constitution. The sub-questions
hinged on the epistemological formulations of the terms “inhuman punishment” and “degrading
punishment”. One preliminary observation is that the ancillary questions are derived from the
constitutional right to inherent dignity enumerated in the Constitution. The court reasoned that
dignity is a supreme, foundational value and right which permeates the whole constitutional
enterprise. Furthermore, a distinction was made between dignity in the general sense and
inherent human dignity in juridical terms. The latter is innate and therefore different from its
counterpart which is narrower in scope. Furthermore, the Court held that the test ought to be
objective in that extra-legal factors are irrelevant in the constitutional adjudication of corporal
punishment. In essence, this connotes that the lived political, social, cultural, religious and other
57 S v A Juvenile 1989 (2) ZLR 61 (S).
58 Ibid.
111
personal experiences and innuendos of judges should not cascade into the adjudication process.
The constitutional morality, which is itself fluid and dynamic and deeply rooted in the
Constitution, should drive the interpretation exercise instead. Arguably, the reasoning of the
Court aligns with the Dworkinian Herculean model for judges who possesses superb
adjudicative and lawyering skills, patience, acumen, foresight, objectivity and impartiality.
This could also imply that there is no law beyond the law.
3.1 Limitation of Rights and Corporal Punishment
The general rule is that all rights in the Declaration of Rights can be limited.
59 If the limitation
or the infringement is found to be reasonable and justifiable then it is constitutional.
60 Section
86 of the 2013 Constitution sets out the test for determining whether a limitation is reasonable
and justifiable in an open and democratic society based on human dignity, equality and freedom.
The limitation process involved a two-legged approach:
in cases where there is direct application of the Constitution, the court considers two issues. The first is
whether a right in the Bill of Rights has been limited or infringed. If the answer to the first inquiry is that a
right has been limited or infringed, then the court moves on to the second issue: is the limitation reasonable
and justifiable?”
61
Accordingly, Section 86 captures the notions of acceptability of limitations to human rights
such as the conditions of legality, legitimacy and necessity.
62 Olivier De Schutter succinctly
explains the limitation of human rights as follows:
[R]ights of an absolute character are the exception. In general, limitations may be imposed on human rights,
provided three conditions are satisfied. First, any interference with a right should be prescribed by law
(condition of legality). Second, it must be justified by the pursuance of a legitimate aim (condition of
legitimacy). Third, the interference must be limited to what is necessary for the fulfilment of that aim, which
means that it must be appropriate to pursuing the objective, and that it may not go beyond what is required in
order effectively to achieve that aim-or, at a minimum, that all the interests involved should be carefully
balanced against one another (condition of proportionality)”.
63
Consequently, under the Section 86 inquiry, the question would be whether corporal
punishment is a justifiable and reasonable limitation of rights such as the right to personal
security in Sections 52 (right to personal liberty), 53 (freedom from torture or cruel, inhuman
or degrading treatment or punishment), 56 (equality and non-discrimination) and 60 (freedom
of conscience) of the Constitution. Section 241(2) (a) of the Criminal Law (Codification and
Reform) Act 2004, for instance, enunciates that “a parent or guardian shall have authority to
administer moderate corporal punishment for disciplinary purposes upon his or her minor child
or ward”.
64 Subparagraph (6) states that:
59 In South Africa a provision (S 28(2) similar to S 81 of the 2013 Zimbabwean Constitution has been used to
limit children’s rights. See Sonderup v Tondelli and Another SA 1171 (CC) (2001), De Reuck v. Director of
Public Prosecutions and Others, CCT5/03, (2003) S v M (Centre for Child Law as Amicus Curiae) CCT 53/06,
(2007).
60 S. Human, ‘The Theory of Children’s Rights’, in T. Boezaart (ed.) Child Law in South Africa (Juta2018)
p.261.
61 Ibid, p. 274.
62 See generally, O. De Schutter, International Human Rights Law: Cases, Materials, Commentary (3rd Edition),
(Cambridge, 2019), pp.344-386.
63 Ibid. p. 652.
64 Criminal Law (Codification and Reform) Act 2004, Section 241 (2) (a), p. 124.
112
In deciding whether or not any corporal punishment administered upon a minor person is moderate for the
purposes of this section, a court shall take into account the following factors, in addition to any others that are
relevant in the particular case: (a) the nature of the punishment and any instrument used to administer it; and
(b) the degree of force with which the punishment was administered; and (c) the reason for the administration
of the punishment; and (d) the age, physical condition and sex of the minor person upon whom it was
administered; and (e) any social attitudes towards the discipline of children which are prevalent in the
community among whom the minor person was living when the punishment was administered upon the minor
person.
65
Thus, we are called to question the impugned provision in light of the above constitutional
provision. Section 86(3) is beyond the scope of the study to the extent that the Chokuramba
Court has already dealt with it in the context of corporal punishment. The contention is that
Section 241 will not pass muster given the discussion below. Also, we draw comparative
constitutional law inspiration by virtue of Section 46 (1) (e) of the 2013 Zimbabwean
Constitution, from jurisprudential developments in South Africa, a common law jurisdiction,
where courts outlawed corporal punishment via the Section 36 (limitation clause) route which
is the Zimbabwean equivalent of S 86 of the Constitution.
66 The argument is that corporal
punishment should be outlawed in the home. Specifically, there is no reasonable connection
between its use and purpose. The examination of the legality of reasonable chastisement
culminates into collateral issues. The practice affects the development of children, and its
impact can only be seen in the long run. Section 86 is meritorious in that it involves a balancing
exercise, one that leans in favour of child protection. There appears to be no cogent explanation
from the State as to why the practice should still subsist except for the public opinion which the
court is not bound by. In the context of Section 46 the judiciary is provided with a platform to
develop common and customary law progressively.
4 International Framework: Convention on the Rights of the Child and African Charter
on the Rights and Welfare of the Child
The CRC is an international treaty which entered into force on 2 September 1990 and
Zimbabwe is a signatory.
67 The Convention is an amalgam of civil and political rights and
economic, social, and cultural rights, which is unconventional in the human rights sphere.
68
Article 1 circumscribes the definition of the “child” to “every human being below the age of
eighteen years unless, under the law applicable to the child, the majority is attained earlier.”
Within the CRC are obligations by State Parties to create an enabling legal environment in the
spirit of children’s rights, including protection of rights irrespective of their status and other
criteria.
Overall, the key feature of the CRC is that it captures the Four Ps of provision, protection,
participation and prevention rights in the Convention.
69 Provision rights denote “rights that
children have to be provided with services to realise their basic needs; examples are the right to
the highest attainable standard of health, the right to social insurance and the right to
education”.
70 Moreover, protection and prevention rights refer to “rights aimed at protecting
65 Ibid, Section 241, (6).
66 Freedom of Religion South Africa v. Minister of Justice and Constitutional Development and Others,
CCT320/17, ZACC 34, (2017).
67 The Law of the Treaties apply.
68 P. Mahery, ‘The United Nations Convention on the Rights of the Child: Maintaining its Value in International
and South African Child Law’, in T. Boezaart (ed.), Child Law in South Africa (Juta, 2016), p.311.
69 Ibid, p.314.
70 Ibid., p.314.; See UN General Assembly, Convention on the Rights of the Child, 20 November 1989United
Nationas Treaty Series vol 1577 Articles 24, 26 and 28.
113
children from harmful and violent acts or practices and preventing children from being
subjected to such acts and practices, for example a child’s right to privacy and to be protected
against unlawful interference in his or her private life”.
71 The central argument is that children
should be protected from harmful acts especially economic, sexual and any other exploitation.
Participation rights refer to rights that allow children to participate in decisions affecting them.
Examples are the child’s right to express his views in all matters affecting him or her and the
right to freedom of expression.
72 Scholars such as Moore et al. have proposed perception as the
fifth “p” which denotes a consideration of the impact that human perception has on the rights
and lives of children.
73 Furthermore, the CRC contains four general principles which are
fundamental to its implementation. These are non-discrimination in Article 2; the best interests
of the child in Article 3; the right to life survival and development in Article 6; and respect for
the views of the child in Article 12 of the Convention respectfully. The Committee established
under the Convention has occasionally applied these canons in specific contexts.
74 Specifically,
General Comment 8 calls for the protection of children from corporal punishment and other
forms of degrading punishment.
75 Prohibiting all corporal punishment asserts children’s equal
right to full respect for their human dignity and physical integrity.
The African Charter on the Rights and Welfare of the Child (African Children’s Charter,
ACRWC) is an African legal instrument on children’s rights which was adopted in 1990 and
came into force in 1999.
76 To date, it has been ratified by 49 African countries, with Zimbabwe
among them. Drawing inspiration from the CRC, the ACRWC emphasizes the rights of the
child and requires states to protect children from inhuman or degrading treatment while in the
care of a parent or guardian.
77 The Charter also requires that in the act of disciplining a child,
the child should be treated with humanity and with respect to the inherent dignity of the child.
78
In 2011, the African Committee of Experts on the Rights and Welfare of the Child issued a
statement on violence against children, highlighting corporal punishment as one of the issues
that should be addressed by governments. In the statement, not only did the experts rely on legal
reasoning, but also included the harms which come from experiencing violence as young
person. Those include trauma, challenges to their education, and increased risk for perpetuating
violence themselves, as children and as adults.
79 It is in that spirit of recognizing the harms of
corporal punishment that the ACRWC recommended that the government abolish corporal
punishment in all settings and instead adopt methods of positive discipline.
80
71 Ibid, Article 16.
72 Ibid, Articles 12 and 13.
73 S. Moore, L. Melchior and J. Davis, ‘Me and the 5 P’s: Negotiating rights-based critical disabilities studies
and social inclusion’, 16(2) International Journal of Children’s Rights, 2008, p.249.
74 UN Committee on the Rights of the Child (CRC), General Comment No. 3, HIV/AIDS and the Right of the
Child, CRC/GC/2003/3, (2003) CRC, General comment No. 4 (2003): Adolescent Health and Development in
the Context of the Convention on the Rights of the Child, CRC/GS/2003/4 (2003); CRC, General Comment 7
Implementing Child Rights in Early Childhood, CRC/C/GC/7/Rev1, (2006); CRC, General Comment 12: The
Right of the Child to be Heard, CRC/C/GC/12, (2009).
75 CRC, General Comment 8 (2006) The Rights of the Child to Protection from Corporal Punishment and other
Cruel and Degrading Punishment, CRC/C/GC/8, (2008).
76 African Union, African Charter on the Rights and Welfare of the Child, 1990/1999 Accessed from <
https://au.int/en/treaties/african-charter-rights-and-welfare-child>
77 Ibid, Article 16 (1).
78 Ibid, Article 11 (5); Article 20
79 African Committee of Experts on the Rights and Welfare of the Child, ‘Statement on Violence Against
Children”. 2011, Accessed from <http://endcorporalpunishment.org/wp-content/uploads/key-docs/ACERWC-
statement-on-VAC-2011-EN.pdf> accessed 19 July 2023. pp. 2-3
80 African Committee of Experts on the Rights and Welfare of the Child. ‘Concluding Observations and
Recommendations by the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) in
the Republic of Zimbabwe Report on the Statuts of Implementation of the African Charter on the Rights and
114
5 Conclusion
The study sought to demonstrate that corporal punishment in the home and other similar
situations violates children’s rights as contained in leading international standards. The point
of departure was that the legal protection of children’s rights marked a massive departure from
archaic approaches that regarded children as objects of parental control. The adoption of the
Constitution which elaborately enlists children’ rights specifically and human rights broadly is
the hallmark of progress as it calls for equality, dignity, justice and freedom. The grand norm
creates a world of possibilities coupled with discernible contradictions and paradoxes which it
tries to resolve. Nevertheless, corporal punishment presents a compelling challenge in that it
implicates moral and religious norms whose status is determinable by resorting to the
Constitution and international law. Suitable interventions should be considered in light of the
legal commitments that Zimbabwe has made. Having noted that the country has outlawed
corporal punishment in the criminal justice and educational systems, the call to action is that
the deployment of the canons of child law especially the best interests the child, non-
discrimination, life and development principles equally demand that the practice is repugnant
and cannot pass constitutional muster. In the main, an intentional reading, for example, of the
CRC and the African Children’s Charter, arguably demonstrates that corporal punishment in
the home violates children’s rights. While the study relied on other rights than the right to
dignity which is an elusive and all-encompassing right, the conclusion is that there are less
restrictive means to achieve the same goals which corporal punishment serves to achieve. To
that end, we argued that such punishment is disproportionate and therefore unnecessary in an
open and democratic society that is founded on the values espoused in section 3 of the 2013
Constitution. And for that reason, we recommend the following non-exhaustive interventions:
5.1 Recommendations for the Government
Ensure that domestic child law is compliant with international normative standards. This
can be achieved through domestication of the CRC and the African Children’s Charter.
Adopt and implement a clear and comprehensive National Policy on Corporal
Punishment. The policy should contain a comprehensive and up-to-date assessment and
analysis of the extent, nature, causes and consequences of violence especially corporal
punishment against children as a basis for further policy and programmes. This should
include constant evaluations of the effectiveness of existing programmes and
approaches; ongoing research on the socio-economic costs of violence against children;
services, such as hotlines that allow children to report cases of violence against them
and the maintenance of official records on child deaths, disaggregated by cause. A
protective environment for children requires an effective monitoring system that records
the incidence and nature of child abuses and allows for informed and strategic responses.
Ensure that adequate resources are available to implement laws. This process would
involve detailed budget analysis and agreed implementation strategies across sectors.
Adopt participatory approaches to ensure that children are involved in legal reforms
and development of legal frameworks on corporal punishment. Promoting child
participation and strengthening children’s own resilience.
Welfare of the Child.’ 2018 Accessed from < https://www.acerwc.africa/sites/default/files/2022-
06/Concluding_Observations_Zimbabwe.pdf> .accessed 19 July 2023. p. 8
115
5.2 Recommendations for the Zimbabwe Human Rights Commission and Other Stakeholders
Ensure that information on the impact of corporal punishment on children is widely
disseminated and, more particularly, that the CRC is available in the sixteen local
languages. This can be achieved through public speeches on corporal punishment and
child protection; public debates on television and radio; articles for newspapers on
corporal punishment; public events to celebrate 20 November, International Children’s
Day, and through drawing attention to corporal punishment. Public information
campaigns should involve religious, traditional, community, and peer education
involving parents and children.
5.3 Recommendations for the Public
Social development programmes designed to help children and adolescents develop
social skills, manage anger, resolve conflicts and develop a moral perspective;
Prevention of offending to ensure that those who come forward because they fear they
may resort to corporal punishment are offered counselling and treatment programmes.
The availability of such programmes should be widely promoted;
Training in positive parenting practices and family therapy programmes for general,
long-term prevention.
About Raoul Wallenberg Institute
The Raoul Wallenberg Institute of Human Rights and Humanitarian Law is an independent academic institution founded in 1984 at the
Faculty of Law, Lund Universlty, Sweden. The Institute is named after the Swedish diplomat Raoul Wallenberg, in order to honour his
work in the cause of humanity. Our mission is to promote universal respect for human rights and humanitarian law by means of research,
academic education and institutional development programmes.
www.rwi.lu.se
The seven research papers contained herein are
the final, peer reviewed papers from the 2022 Na-
tional Symposium on Ten Years of the Declara-
tion of Human Rights in the Zimbabwean Consti-
tution, held at Cresta Lodge, Harare, Zimbabwe,
on 31 October and 1 November 2022, under the
Zimbabwe Human Rights Capacity Development
Programme (hereinafter ‘Zimbabwe Programme’).
The national symposium is an annual event under
the Zimbabwe Programme. It is co-organised by
RWI together with its Zimbabwean partner institu-
tions, and is a forum where research funded and
conducted during the year is packaged and pre-
sented before an audience representing diverse
sectors of Zimbabwean society, thereby allowing
the presenters and participants to in plenary en-
gage in vibrant discussions around the topics at
hand and together deliberate on the way forward
with regard to critical human rights reform issues.
The feedback and experiences shared during the
national symposium also aid and feed into the
preparation of final papers for publication and dis-
semination.
With that said, it is RWI’s sincere wish that the
reader finds these papers thought-provoking and
informative as well as an eventual source of inspi-
ration towards furthering the provisions contained
in the 2013 Constitution of Zimbabwe and its
comprehensive Declaration of Rights.