Children’s rights and judicial activism
The High Court is the upper guardian of children. It is the court that understands the interests of children better. There is nothing amiss in protecting the rights of children.
THE best interests of children take precedence in many instances, especially in applications for custody and guardianship. The Constitution states that “a child’s best interests are paramount in every matter concerning the child”.
Natural parents, step parents, godfathers or those who stand in loco parentis must respect children’s rights. The recent High Court judgment outlawing corporal punishment has to be understood from the best interests of children.
Culturally, Zimbabwe is a largely conservative society. Family issues are usually decided from the perspective of the extended family. Mwana haanzi ndewa mubereki nhingi. A child is part of the family. Children could be disciplined using the rod. They would say “ingomunyapudzira” ( just discipline him a bit). You could be disciplined at school through corporal punishment. Frequently, “spare the rod and spoil the child” was a common saying.
Children are the best weapons against the world’s evils. How they are treated shapes their world-view. The High Court is the upper guardian of children. It is the court that understands the interests of children better. There is nothing amiss in protecting the rights of children.
Natural parents can be taken to task if they fail to act in the best interests of their children.
This holds in legal inquiries such as maintenance applications, or general application such as when a parent applies to court for custody or access to children. Judges who outlaw certain conduct against children are following and upholding the Constitution.
Section 81 (3) of the Constitution is clearly framed: “Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian.” Natural parents and any other parent must therefore uphold the Constitution and commend progressive judges who interpret our Constitution from a rightsbased approach.
The Constitution of Zimbabwe, 2013 brought a radical shift to the treatment of children. The founding provisions and values consider the respect of children’s rights as part of the values that keep our social fabric as Zimbabweans. It treats the rights of children in a special way the rights of women are treated. Women and children are usually vulnerable.
The Constitution places their rights at the same level with other values such as good governance, separation of powers, rule of law and multiparty politics.
Section 81 of the Constitution gives children the right to equal treatment before the law. This right is usually claimed by parents using section 56, which speaks about equal protection and benefit of the law.
One important aspect in the Constitution is the right to family or parental care or to appropriate care when removed from the family environment.
Teachers and other adults who are not part of the immediate family must give children appropriate care. Their discipline should fall under the purview of appropriate care. Linked to appropriate care is the right to be protected from maltreatment or any form of abuse.
The Constitution also gives children their own fundamental rights. Their rights are elaborated just like the rights of previously marginalised and vulnerable groups such as women, the elderly and people living with disabilities. Constitutionally speaking, every parent is obliged to respect, protect, and promote the rights of children.
All parents are also obliged to fulfil certain constitutional obligations that relate to children’s rights.
The Constitution also gives children economic, social and cultural rights. The State has a duty to ensure that children exercise their right to education by making sure that they receive basic education. Those in loco parentis such as teachers or other religious institutions are obliged to respect these rights.
From a human rights- based approach, the children are rights holders in their own right. They are not objects of their rights. They are independent subjects of their rights.
Court decisions that outlaw corporal punishment are meant to encourage the Zimbabwean society to start appreciating the constitutional provisions that respect the rights of children.
The Book of Books, the Bible, speaks on disciplining children. It also places an obligation on children to respect their parents. Correspondingly, parents are enjoined by the same book to love their children.
There have been mixed reactions the world over regarding the disciplining of children using the rod. This has seen the emergence of behaviour models such as the consequential model. A child is disciplined because of certain behaviour.
Traditionally, elderly parents would not rush to use the rod. They would observe basic tenets of natural justice such as the audi alteram partem rule. For instance, during the shelling of nuts, a child would concentrate on consuming the nuts than putting them in a basket.
Warnings would be given repeatedly. After a while, our golden ladies, the lovely grannies, would ask us to chew some fine material from tree barks, gavi to be precise. They would then discipline us after proving our guilty or otherwise. We would even laugh and appreciate the punishment. We were innocent though!
Sometimes our parents would make us realise that it was wrong to assault our young siblings. They would allocate roles to us. We would play the father-figure or mother-figure. We would make merry as we “disciplined” our siblings.
They would then come to where we would be and remind us of the day when they once disciplined us. They would ask us how we feel and we would reply in unison that; “But I am the father. I was disciplining them”. We would not understand them as we played the big brother, caring father or mother then. It makes constitutional sense now. Sharon Hofisi is a lecturer in law and public administration at the University of Zimbabwe. He is contactable at sharonhofii@ gmail.com