It seems a lifetime ago that Zimbabwe’s government showed its support and respect for women when it refused to accede to a request by a visiting Iranian delegation that women should not be seated at the top tables at a state dinner.
The government noted that women had fought alongside men in the liberation struggle and therefore could not be ignored or treated as second-class citizens.
This was not a one-off. The early years saw the creation of a Ministry of Women’s Affairs headed by the current vice-president and the passing of the controversial Legal Age of Majority Act, which transformed the legal landscape for women. The Act proclaimed that like men, women who reached the age of 18 could enter into contracts and make decisions that affected them by themselves.
Prior to this, African women were considered minors throughout their lives, passing from the guardianship of fathers to husbands.
The case of Katekwe v Muchabaiwa, which allowed a woman who had achieved majority status to marry without parental consent and without the payment of lobola if she wished, together with the Chihowa v Mangwende case, permitting daughters to inherit family property, sparked disapproval. There were demands for the repeal or amendment of the statute.
But the government held its nerve and refused to take back rights already won by women.
More recently, in February this year, the government enacted the Domestic Violence Act, which seeks to provide both criminal sanctions and civil remedies to those experiencing violence in the home or the community. In addition to battery, it covers practices as diverse as forced marriage to a brother of the deceased husband and compulsory sex with a father-in-law.
But women are failed by the Constitution. A 1996 amendment to the Constitution barred discrimination on the grounds of gender. This would seem to cover women. Unfortunately, the Constitution goes on to note that there are certain instances where the non-discrimination provision does not apply. These include family-law issues governed by customary law.
Customary family law is the area most likely to affect the vast majority of women. While there are many customs, and some families are generous in their interpretation of women’s entitlements, women should not be left at the mercy of family members for justice.
Rather, the Constitution should provide that discrimination is not permitted, without any exceptions or exemptions being made for any legal system. Women’s rights should not be held hostage to custom, culture or religion.
A related issue that needs consideration is that of legal harmonisation or consistency. While the new Domestic Violence Act outlaws compulsory “inheritance marriages”, the Customary Marriages Act appears to recognise them, if they are registered. To deter a practice that has become even more dangerous in light of the high HIV infection rate, it may be best if the recognition given to this type of marriage is removed.
Given the current climate, which has witnessed widespread violations of human rights, it is worth highlighting the eagerness of the state to ratify international human rights instruments, including the International Covenants on Civil and Political Rights (ICCPR), on Socio-Economic and Cultural Rights, as well as the Women’s Convention.
However, the government has not taken the important step, required by the Constitution, of passing a law to enable the human rights norms to be used in the national courts. It has also not ratified protocols that would allow citizens who feel that their rights had been violated and who are not satisfied with the handling of their cases to appeal to the United Nations committee tasked with receiving complaints from nationals of states.
Showing remarkable honesty and self-knowledge, the government has not bothered to ratify the 1994 Convention against Torture (in any event torture is outlawed in the Constitution). It is now accepted that severe violence against women can constitute torture.
These omissions, together with the government’s propensity for ignoring court decisions with which it does not agree, speak volumes about its commitment to human rights.
In addition, the country needs to take its reporting obligations to international human rights bodies more seriously. As it stands, it owes the Human Rights Committee, which oversees the ICCPR, two reports. The Women’s Committee is owed three reports; and the committees on economic, social and cultural rights, race and children’s rights are all owed two reports each.
More surprising, given its self-avowed commitment to African institutions, is the failure of the government to ratify the African Protocol on Women’s Rights adopted by the African Union in Maputo in July 2003. This protocol contains many rights that could benefit women.
Lawyers like to think that passing laws can solve most problems. Clearly this is wishful thinking. Policy and context are equally important. With this in mind, it will be important for greater attention to be paid to the effects of certain policies on the lives of women.
Dr Fareda Banda is a reader in the laws of Africa at the school of Oriental and African studies at the University of London. She is the author of Women, Law and Human Rights: An African Perspective (Hart Publishing)