Legal advances on child rights welcome

SINCE independence, Zimbabwe has been moved rapidly on social and legal issues to ensure not only that all citizens, both men and women, have equal rights and these are practically enforceable, a more tricky issue since it requires cultural changes, but also that children receive full protection and the best deal possible to prepare them for adult life.

This required a lot of legislative work, for everything from the Legal Age of Majority Act and the Education Act onwards. Anyone comparing the stature book on the last day of settler rule and today will find huge changes, and a fair amount of new law and rewritten law when it comes to social issues.

The changes cover a huge range of issues, sometimes backed by the practical judgments of the courts setting precedents on how these legal changes work in individual cases.

One of the older legal changes made in the 1980s was the Matrimonial Causes Act, the law governing divorce and the rules the courts needed to follow when cleaning up the mess after a divorce. That Act changed dramatically the old law where divorce was only permitted when one spouse behaved abominably and the “innocent” spouse wanted out.

The new law dumped the division between “guilty” and “innocent” spouses and instead made civil divorce a way of wrapping up a marriage that had broken down with no hope of it being put back together. Bad behaviour was a symptom of breakdown, but a marriage could fail simply because the couple simply could not stand living together. The reasons really did not matter. The couple wanted to split and there was a mess to clean up.

Cleaning up the mess afterwards usually involved two areas: one was how property would be divided and the other was how minor children would be looked after. The property issue was the easiest to sort out; the law simply laid down that property created during the marriage would be divided equally, which excluded the property each partner brought into the marriage and could take out when it was over.

The trickier issue was how the children would be looked after. Older legal precedent used to in almost all cases grant custody to the mother after a divorce in a civil marriage and to the father after a divorce in a customary marriage. Those were chucked out and the new rule was that the best interests of the child became paramount. Parents could no longer “win” or “lose”: only the child. And parents could no longer use access and custody to “punish” a former partner they really disliked.

New precedents were set as judges applied the new laws, new priorities and new understanding in individual cases, and quite often consulted the child especially if the child was in secondary school or the upper grades of primary school.

The basic rules when it came to children and even to how the property would actually be divided in practice were that the child should have a secure place to live and was entitled to continue a close relationship with both parents. Details could vary dramatically in individual circumstances, even to the extent in some odd cases of the child living with grandparents under a court ruling.

One problem, now being addressed by the courts, was a child from a relationship where there was no recognised marriage and where the parents just split. All legal rights of custody, access and guardianship were with the mother, although the father had to pay his share of the bills. Last year, the High Court ruled that fathers of such children had equal rights in all circumstances. The Supreme Court has now modified that general ruling by putting the interests of the child first.

The upshot of the modification is that when it comes to cleaning up the mess of a split it does not really matter if the child was born in or out of wedlock, and that corresponds to all sorts of other legal changes made since independence. How the parents behaved should not affect let alone harm the child.

The Supreme Court wants the judge landed with the job of sorting out the details to use the same priorities and rules for all children, with everything depending on the individual circumstances. The rights of the children trump the rights of the parents, regardless of who was or was not married to whom.

While the Constitutional Court has been asked to look over the Supreme Court judgment, it is unlikely that even if it does make a ruling it will make any practical change to the basic Supreme Court desire for all rows over custody, access and guardianship to be decided on the individual circumstances of each child, with the type of the previous relationship that led to the birth no longer being a factor. The precise legal details of how to do that matter less than the intention.

But there are still some legal issues. One, now being actively addressed by Parliament, is the law on marriage. We still have two laws for two systems without much change since the earliest days of colonialism. There is basic legislative and society agreement to have a single law, that spells out two types of marriage, civil and customary and, critically, allows a registered customary monogamous marriage to be converted into a civil marriage. It also upgrades customary unions by having these solemnised before a chief or magistrate, rather than just filling out a form at the “native commissioner’s office” as the old law put it before language was updated.

The draft law now being considered goes a lot further by applying the property division laws to couples just cohabiting without any registered marriage. Assets created during the cohabitation will be divided, solving a common social problem that usually involves a dumped woman.

Technically this appears to cover unregistered customary unions, now a very common occurrence as the only way under present law for a couple to have both a customary union and civil union. But a group of women lawyers want the Constitutional Court to rule that the Matrimonial Causes Act must include such unregistered unions in its definition of marriage. Everyone agrees this is now needed with the only point of contention being whether it should be done by Parliament or ordered by the courts.

The argument of the Ministers responsible for Justice and Women’s Affairs last week in the preliminary hearing before the Constitutional Court was that a suitable one-clause amendment to the new Marriages Bill now before Parliament would be the best way forward, with the courts only being involved if Parliament disagrees.

Generally it is better if Parliament writes laws and courts interpret, with the Constitutional Court just ruling if a fundamental right is omitted or defied in the resulting law, but the women lawyers are worried about the legislative delays.