CONSTITUTIONAL FOUNDATIONS FOR MAINSTREAMING GENDER EQUALITY

AND NON-DISCRIMINATION IN THE LAW CURRICULUM IN ZIMBABWE.

By Rosalie K Katsande1 and Slyvia Chirawu-Mugomba2

ABSTRACT

In 2013 Zimbabwe adopted a new Constitution. This Constitution protects a wide range of women’s
rights to equality and non-discrimination. Section 2 of the Constitution on supremacy of the
constitution provides that any law practice, custom or conduct inconsistent with the provisions of the
Constitution is invalid to the extent of the inconsistency. Section 80 (3) on the rights of women further
provides that all laws, customs, traditions and cultural practices that infringe the rights of women
conferred by the Constitution are void to the extent of the infringement. However, close to five years
after the coming into effect of the Constitution, there is evidence of failure to address issues of
inequality and discrimination in a holistic manner. What is clear is that Zimbabwe does not have a
shortage of laws but implementation is a major challenge. The challenges as the article will show can
be attributed to the lack of awareness of the laws; lack of resources to enforce laws; lack of political
will and lack of a coordinated approach. This article outlines the major areas that are of significance to
women. The critical areas of the article include laying the foundations for gender equality and non-
discrimination, the role of state and non-state actors in dealing with discrimination and social and
economic rights. In doing so, the article examines the right to equality and non-discrimination as
important principles that should be observed in a society that strives for the promotion and
protection of human rights.

Key words Constitution, Gender, Equality, Non-discrimination

1. INTRODUCTION

The Constitution-making process which began in April 2009 culminated in the promulgation of a new
Zimbabwean Constitution on 22 May 2013. In this constitution, gender equality is firmly entrenched
as a constitutional principle. The inclusion of gender equality as a founding value of the Constitution
affirms the principle of non-discrimination3 and further provides for respect for fundamental human
rights and freedoms, recognition of the inherent dignity and worth of each human being, and
recognition of the equality of all human beings. Equality and non-discrimination are core principles of
international human rights law4. States must ensure that there is non- discrimination on the basis of
gender in all legislative processes as this is one of the key steps towards achieving a democratic and
equal society5. Often, gender equality has not been achieved because of continued discrimination
against women6. In order to achieve gender equality, it is necessary to examine all issues, in this case
the Constitution, from the perspective of the lives of both men and women. It is also a fact that the
modern world has taken measures to rectify the reality of discrimination against women. This is clear
from the existence of major international and regional instruments that promote women’s rights

1 A Senior lecturer at the Southern and Eastern African Centre for Women’s law, (SEARCWL).
2 A lecturer in family law and law of succession, Faculty of Law, University of Zimbabwe
3 Article 1 of CEDAW defines discrimination against women as any distinction, exclusion or restriction made on the basis of sex

which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of
their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.
4S Fredman, Substantive equality revisited, International journal of Constitutional law, Volume14, Issue 3 July 2016 pages 712 –

738 https://doi.org/10.1093/icon/mow043
5 RJCook and S Cusack (2010) Gender Stereotyping: Transnational legal perspectives. University of Pennsylvania Press p229
6 ibid

1|P ag e
This article outlines the major areas that are of significance to women. The critical areas of the article
will include laying the foundations for gender equality and non-discrimination, the role of state and
non-state actors in dealing with discrimination and social and economic rights.

1.1 THEORETICAL AND METHODOLOGICAL APPROACH

This article entails a doctrinal analysis of the right to equality and non-discrimination as important
principles that should be observed in a society that strives for the promotion and protection of human
rights. Further, it considers the extent to which the Government of Zimbabwe has made undertakings
to ensure that these rights are fulfilled. The article is divided into three parts. Part A focusses on
principles of equality and non-discrimination as a broader framework to interrogate the provisions of
the 2013 Constitution. Part B will look at the gender, constitutional and legal rights gained through
the 2013 Constitution in order to eliminate gender inequality and achieve substantive equality. Part C
will look at the legal barriers in achieving full gender equality in Zimbabwe and what needs to be
done to ensure enforcement and implementation of existing laws in relation to the identified issues.

In analysing the above, the article adopts a descriptive and analytical approach to relevant and
applicable legislation, regulations, case law, international and regional instruments and relevant
literature.

Part A

1.2 PRINCIPLES OF EQUALITY AND NON-DISCRIMINATION AS A BROADER

FRAMEWORK TO INTERROGATE THE PROVISIONS OF THE 2013
CONSTITUTION.

The principle of equality is a fundamental assumption of a democratic society. 7 Equality means the
proposition in law that people who are alike should be treated alike and that people who are unlike
should be treated unalike.”8

1.2.1 THE FORMAL MODEL OF EQUALITY

The formal model of equality regards men and women as being the same and therefore sets out to
treat women the same as men. In the 2013 Constitution of Zimbabwe, the formal model of equality is
found in section 56(1) which provides that all persons are equal before the law and have the right to
equal protection and benefit of the law. Similarly, although the 1979 constitution did not specifically
provide for equality between women and men, it generally took a formal equality approach. The 1979
constitution had a non-discrimination clause in section 23 which prohibited discrimination on the
basis of sex, creed, race, tribe, place of origin, political opinions and colour. This section was later
amended to include gender and marital status.9 The section however had a “claw back” clause which
permitted discrimination in the matters of personal and customary law.10 The net effect of this
provision was that in relation to issues like divorce, inheritance and marriage, where customary law
is deemed applicable, customary law was given precedence over general law11.

7E Grant “Dignity and Equality” (2007) vol 7 Human Rights Law Review 300.
8P Western “The empty idea of equality” (1982) vol 95 Harvard Law Review 537, 539-40.
9 This was introduced in 1996 through Amendment No 14.
10 Section 23(3)(a)(b) of the 1979 Constitution.
11 See also C, Damiso, J.E & Stewart. (2013). Zimbabwe and CEDAW Compliance: Pursuing Women;s Equality in Fits and

Starts. In A. Hellum, & H. S. Aasen (Eds.), Women's Rights CEDAW in International, Regional and National Law (pp. 454 - 481).
Cambridge: Cambridge University Press.
2|P ag e
Formal equality is sometimes known as the ‘sameness’, ‘similarly situated’, or ‘identical treatment’
approach to equality.12 Under this model, men and women are regarded as being the same. The
problem with this model is that it does not take into consideration the biological and gender
differences between women and men. This places pressure on women who have to perform
according to male standards.13 Women cannot have access to or benefit from opportunities in the
same manner as men when there is so much difference between the conditions of women and men14
The formal model of equality adopts what are called ‘single standard rules’ and fails to acknowledge
that there are social and economic disparities between groups and individuals in society that may not
necessarily be remedied by prohibiting sex-based discrimination. Insisting on formal equality might
actually reinforce inequality15

Adherence to the formal equality may hinder the attainment of equality as the application of
standards that appear to be neutral often embody the interests and experience of socially privileged
groups and that exacerbates the inequality of socially or economically disadvantaged groups.”16

1.2.2 SUBSTANTIVE EQUALITY

Substantive equality recognises that genuine equality can only be achieved if the relevant government
programmes respond to the historical, social and political developments of communities in which
these programmes are implemented. A good example is section 56(2) of the Constitution which states
that women and men have the right to equal treatment, including the right to equal opportunities in
political, economic, social and cultural spheres. The notion of substantive equality is used in theories
of sex or gender inequality which focus on asymmetrical structures of power, dominance and
disadvantage at work in society.17 The 2013 constitution generally takes a substantive approach which
recognizes that in order to redistribute benefits equally between women and men, there must be
measures to promote women's rights that must transform the unequal power relations between
women and men in the process. This should not only be equal opportunities for women, but also
equal access to those opportunities.18

The concept of equality of opportunity constitutes a departure or shift from the traditional notion of
formal equality or treating those who are the same alike and those who are different, different. It is
partially based on the redistributive justice model which suggests that measures must be taken to
rectify past discrimination, because to fail to do so would leave people and groups at different
starting points.19 Under this model positive discrimination, reverse discrimination and affirmative
action are acceptable and do not amount to breaches of the notion of equalityIn advancing
substantive equality of opportunity over formal equality of opportunity, there is need to question
how opportunities of some individuals have been limited by historical disadvantages,
marginalisation and discrimination.20

12 A Byrnes (2012). Article 1. In M. Freeman, C. Chinkin, & B. Rudolf (Eds.), The UN Convention on the Elimination of all forms of
Discrimination Against Women: A Commentary (pp. 51 - 99). Oxford: Oxford University Press. p53
13 AF Bayefsky. The principles of Equality or Non disrimination in International Law. Human Rights Law Journal Vol11 No 1-2 ,

11, 1-34. (1990) p 5

14 ibid
15 K Reeve. Beyond "Equality of Opportunity" and " Equality of Result": Does the CEDAW Committee in Karentayag Vertido v

The Philippines embrace "Equality as Transformation? Warwick Student Review , 51 (2) ( 2012)
16 C Albertyn and B Goldblatt “Facing the Challenge of Transformation: Difficulties in the development of an Indigenous

Jurisprudence of Equality” (1998) vol 14 South African Journal on Human Rights 248.
17 ibid
18 A Byrnes, (2012). Article 1. In M. Freeman, C. Chinkin, & B. Rudolf (Eds.), The UN Convention on the Elimination of all forms of

Discrimination Against Women: A Commentary (pp. 51 - 99). Oxford: Oxford University Press. P55
19 C McCrudden “The Concept of Equality” (2003)
20C Koggel (1998). Perspectives on Equality: Constructing a Relational Theory. Lanham: Rowman and Littlefield.

3|P ag e
1.3 DISCRIMINATION AND UNEQUAL TREATMENT
Discrimination, in general terms, refers to the differential treatment of an individual or a group of
individuals, which results in a disadvantage. In the case of Mary Brown v Rentokil Limited21
discrimination was defined as the application of different rules to a comparable situation or the
application of same rule to different situations. Discrimination on the grounds of sex consists of two
premises: an “adverse treatment” and the grounding of that treatment in sex.”22In Zimbabwe a
person is unfairly discriminated if they are subjected directly or indirectly to a condition, restriction
or disability to which other people are not subjected or other people are accorded directly or
indirectly a privilege which they are not accorded.23

Direct discrimination arises where one person is treated in a less favourable way than another is
treated on the basis of any of the prohibited grounds such as sex, gender, marital status pregnancy,
racial or ethnic origin, religion, disability, or age24. Direct discrimination is easily recognizable and
involves obvious differential treatment between two or more people in a similar position. Indirect
discrimination on the other hand occurs where a provision or practice that appears to be neutral in
application places a person it seeks to protect from non-discrimination at a disadvantage compared
with other people25. Indirect discrimination is not easily recognisable. It involves the application of
policies and practices that are apparently neutral and do not explicitly distinguish between men and
women for example but in reality, have a disproportionate and negative effect on certain individuals
or groups26.

In General Recommendation No. 25, the CEDAW Committee calls for state parties to ensure the
absence of direct or indirect discrimination in their laws, to improve the de facto position of women
through concrete and effective policies and programs; and to address prevailing gender relations and
the persistence of gender-based stereotypes that affect women not only through individual acts by
individuals, but also in the law, and legal and societal structures and institutions. 27 The principle of
non-discrimination is provided for in almost all the major International Human Rights Instruments to
which Zimbabwe is signatory to.28 An understanding of this principle provides a test of whether the
2013 constitution has the potential of achieving equal rights for men and women guided by liberal
feminist’s emphasis on equality of opportunity between men and women.

1.4 INTERNATIONAL AND REGIONAL HUMAN RIGHTS INSTRUMENTS

PROVISIONS ON EQUALITY AND NON-DISCRIMINATION

1.4.1 INTERNATIONAL INSTRUMENTS

The 1948 Universal Declaration of Human Rights (UDHR) in confirming the right to equality for all
human beings, in article 1 states that all human beings are born free and equal in dignity and rights.

21Mary Brown v Rentokil Ltd [1998] ECR 4185, Para 30.

22E Ellis “EC Sex Equality Law “p 136.
23Section 56(4) of the 2013 Constitution of Zimbabwe.

24 J Maliszewska-Nienartowicz, Direct and Indirect Discrimination in European Union Law – How to Draw a Dividing Line?

International Journal of Social Sciences, III (1), (2014) p41

25 ibid
26 C, McConnachie, Human Dignity,‘Unfair Discrimination’ and Guidance. Oxford Journal of Legal Studies, Volume 34, Issue 3, 1

September 2014, Pages 609–629.

27T Buergenthal. The Normative and Institutional Evolution of International Human Rights. Human Right Quarterly , 19, (1997)

p707.
28 Some of the Human Rights Conventions that Zimbabwe has signed and ratified: United Nations Charter 25 August 1980;

Convention on all forms of discrimination against women (CEDAW) acceded May 13 1991; International Covenant on Civil
and Political rights (ICCPR) acceded 13 May 1991;African Charter on Human and People’s Rights (ACHPR) signed on 20
February 1986; International Convention on elimination of racial discrimination (ICERD) acceded 13 May 1991; Convention on
the rights of the Child (CRC),signed 8 March 1990
4|P ag e
Article 2, further provides that everyone is entitled to the rights and freedoms without distinction of
any kind. International Covenant on Economic, Social and Cultural Rights (ICESCR) in article 3 also
provides that State parties should undertake to ensure the equal right of men and women to the
enjoyment of all economic, social and cultural rights. Article 2(2) of the (ICESCR) further provides
that states parties are obliged to guarantee that the rights provided for in the Covenant will be
exercised without discrimination of any kind. The 1966 International Covenant on Civil and Political
Rights (ICCPR) in article 3, reiterates that states parties should ensure the equal right of men and
women to the enjoyment of all civil and political rights as set in the Covenant. The covenant provides
for non-discrimination in Article 2(1), which requires states to ensure that rights of all individuals are
respected without distinction of any kind. The 1979 Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW) reaffirms the principle of equality between women and
men throughout its provisions. Article 3 calls upon states parties to take all appropriate measures to
ensure the full development and advancement of women, and guarantee them the exercise and
enjoyment of human rights and fundamental freedoms on a basis of equality with men.

1.4.2 REGIONAL INSTRUMENTS

The Protocol on the Rights of Women in Africa also known as the Maputo Protocol further reaffirms
the principle of the legal equality between women and men. Article 8 of the Protocol states that
women and men are equal before the law and shall have the right to equal protection and benefit of
the law. The 2015 SADC Protocol on Gender and Development is very clear on its quest for gender
equality and non-discrimination. Article 3 (a) provides for the empowerment of women to eliminate
discrimination as one of the objectives of the protocol. It provides further that to achieve gender
equality, there is need to develop and implement gender responsive legislation, policies, programmes
and projects.

1.5 INTERPRETATION OF THE CONSTITUTION AND DOMESTICATION OF

INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

In the interpretation of the provisions in the Declaration of Rights, the State must take into account
international law and treaties and conventions to which Zimbabwe is a party. 29This means in essence
that such instruments as CEDAW, the SADC Protocol on Gender and Development and the AU
Protocol on the Rights of Women in Africa are relevant in the courts of law. With regards to the
constitutional status of human rights guarantees, section 34 of the Constitution is worth noting. The
section provides that the State must ensure that all international conventions, treaties, and agreements
to which Zimbabwe is a party are incorporated into domestic law. However, for international human
rights instruments to become operational in Zimbabwe, they require domestication of the instrument
in addition to mere ratification. Be that as it may, the 2013 Constitution is the most significant legal
milestone in Zimbabwe as far as gender and the rights of women are concerned. As will be explained
below the 2013 Constitution has unequivocally made gender a key tenet and what remains therefore
is the mainstreaming and alignment of laws to take into account gender equality.

2. PART B

2.1 GENDER PROVISIONS IN THE 2013 CONSTITUTION MEANT TO

ELIMINATE GENDER INEQUALITY

This part of the article focuses on specific gender equality provisions in the 2013 Constitution. Focus
will be on provisions that provide for economic rights of women and affirmative action; equality in
marriage and family life; violence against women; socio-economic rights of women; women political

29 Section 46(1)( c)
5|P ag e
participation and decision making; role of parliament in enhancing gender equality; judiciary and
independent commissions that support democracy among other provisions.

2.1.1 VERTICAL AND HORIZONTAL APPLICATION OF THE CONSTITUTION

The Constitution states in section 2(2) that it is the supreme law of Zimbabwe and that the
Constitution is binding on every person, natural or juristic, including the state and the executive,
legislative and judicial institutions and agencies of government at every level. This is also provided
for in section 45 (2). The language of Section 45 recognizes that private parties, or non-state actors, are
bound by constitutional rights indicating both the vertical and horizontal application of the
Constitution. This means rights violations can be enforced by individuals against the state by
individuals against other individuals or private parties.30 The notion of gender equality therefore
binds everyone in Zimbabwe.

The preamble sets the tone for gender equality by exalting and extolling the brave men and women
who sacrificed their lives during the war of liberation and cherishes among other virtues that of
equality. In the founding values and principles, there is specific recognition of the equality of all
human beings, 31and gender equality. 32There is also specific recognition of the rights of women. 33 All
persons, female or male are equal before the law and have the right to equal protection and benefit of
the law. 34No person should be treated unfairly on among other grounds those of custom, culture, sex,
gender, marital status and pregnancy among others. All these grounds affect women and men
differently. The State is even called upon to take reasonable legislative and other measures to promote
the achievement of equality and to protect or advance people or classes of people who have been
disadvantaged by unfair discrimination. The 2013 Constitution uses the word “must” in the national
objectives and this language clearly places an obligation on the state.

2.1.2 ECONOMIC VISIBILITY OF WOMEN AND AFFIRMATIVE ACTION

In national development issues, the constitution places a duty on the state to put in place measures to
protect and enhance the right of the people particularly women to equal opportunities.35 According to
the International Labour Office (ILO) sex discrimination remains the most prevalent form of
inequality in the work arena hindering women from equal participation and consideration in
decision-making at all levels36. Expanding women’s economic opportunities is critical for meeting the
obligations laid out in major human rights conventions discussed above and for enhancing women’s
participation in decision making in all sectors37.The State is also called upon to ensure that
appropriate measures are undertaken to create employment for Zimbabweans in particular for
women and the youth38. Women and men also have a right to equal remuneration for similar work
and there is a call for the implementation of measures such as family care that enable women to enjoy
a real opportunity to work. 39 Further, women employees have a right to fully paid maternity leave
for a period of at least three months. 40This is a particularly important issue since it is only women

30 ZHLR, Briefing Paper. (2014) Analysis of the provisions relevant to the economic Social and cultural rights in Zimbabwe’s 2013
constitution. The international rights clinic at Harvard Law School. Online accessed on 1/01/2017
http://.law.harvard.edu/wp.../ESCR-Briefing-Paper-Final-10-Dec-20141.pd
31 Section 3(1)(f)
32 Section 3(1)(e)

33 Section 3(2)(i)(iii)
34 Section 56(1)
35 Section 13(3).

36Klugman , J. and Twigg, S (2015), Gender at Work in Africa: Legal Constraints and Opportunities for Reform. Working Paper

No. 3 January 2015

37 Munoz-Boudet, Petesch, Turk and Thumala, (2012) On Norms and Agency: Conversations about Gender Equality with

Women and Men in 20 Countries. World Bank.

38 Section 14(2).

39 Section 24(2)(d)
40 Section 65(6) (7).

6|P ag e
who need maternity leave. Other jurisdictions have moved to also include paternity leave in their
laws and policies. 41

In terms of section 72(2), every person (female and male) has the right, in any part of Zimbabwe to
acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either
individually or in association with others. However, the reality is that most immovable property is
registered in the names of men even though a wife may have contributed to its acquisition. 42

Section 17 is of particular importance because it calls on the State to promote full gender balance in
Zimbabwean society, in particular in relation to the full participation of women in all spheres of
Zimbabwean society on the basis of equality with men. The state should take measures including
legislative ones to ensure that both genders are equally represented in all institutions and agencies of
government at every level. Practical measures should also be undertaken by the State and all
institutions and agencies of government at every level to ensure that women have access to resources
including land, on a basis of equality with men. More poignantly, the State must take positive
measures to rectify gender discrimination and imbalances resulting from past practices and policies.

2.1.3 EQUALITY IN MARRIAGE AND FAMILY LIFE

On marriage rights the 2013 Constitution provides that every marriage must be entered into with free
and full consent of the parties; that there is equality of rights and obligations of spouses during
marriage and at its dissolution and that in the event of dissolution of a marriage, whether through
death or divorce, provision is made for the necessary protection of any children and the spouses. 43
Further, Zimbabwean citizenship is not lost through the dissolution of marriage. 44

In relation to children’s matters, i.e. custody, parents and guardians (female and male or mother and
father) are entitled to determine, in accordance with their beliefs, the moral and religious upbringing
of their children, provided that they do not prejudice the rights of such children especially in matters
of education, health and welfare.45Furthermore, women and men have the same rights regarding the
custody and guardianship of children. This is critical as hitherto the Guardianship of Minors
Act46gave guardianship rights to the father and shared custody rights under common law.

The Constitutional Court in 2015 interpreted the marriage rights as set out in section 78(1) that the
phrase, every person who has attained the age of 18 years has the right to found a family, as meaning
that only persons aged 18 and above can marry. This effectively outlaws child marriage.47Despite this
the marriage laws are yet to be officially aligned to the Constitution. This has left a yawning gap as
even the police are not sure what to do with perpetrators. 48 In the same section, it is stated that no
person may be compelled to enter into marriage against their will. 49

2.1.4 VIOLENCE AGAINST WOMEN

41 Benin, Burkina Faso, Cameroon, Chad, Central African Republic, Comoros, Congo, Gabon, Madagascar, Mauritania, Togo all
provide for ten days paternity leave. In Kenya, it is 14 days.
42 In Madzara vs Stanbic and others HH-546-15, the property was registered in the name of the husband who proceeded to take a

loan for his business and pledged the house as security. He failed to service the loan and the house was attached. His wife, the
applicant went to the High Court seeking to set aside the attachment but she failed. The case is now in the Constitutional
Court.
43 Section 26(c) and (d)

44 Section 40
45 Section 60(3).
46 Chapter 5:08
47 In Mudzuru and another vs the Minister of Justice, Legal and Parliamentary Affairs and others CCZ 12-15
48 Though the Domestic Violence Act (Chapter 5:16) section 3(1) (i) (v) makes child marriage an act of domestic violence

attracting both civil remedies and criminal sanctions, it is not being used to arrest perpetrators.
49 Section 78(2)

7|P ag e
Gender based violence is a major challenge that threatens women’s ability to exercise many other
rights provided for in the Constitution for example the right to life, physical integrity, and human
dignity. Section 25 on protection of the family provides that the state must foster the institution of the
family and in particular must endeavour, within the limits of the resources available to adopt
measures for prevention of domestic violence. Section 52 further provides for the right to personal
security. The right to personal security in the 2013 Constitution includes the right to bodily and
psychological integrity which includes the right to freedom from all forms of violence from public or
private sources50 this is an important provision because according to the ZDHS report of 2015, one in
four women has faced domestic violence during their life time which makes it a gender issue51.

2.1.5 LAND AND RIGHT TO FOOD AND WATER

The right to food and water is specifically provided for and research and anecdotal evidence has
shown that it is women who are expected to ensure that the family is fed and to ensure the
availability of water. The State is called upon to ensure progressive realisation of this right. 52Land is a
critical issue in the achievement of gender equality. One of the guiding principles in the 2013
Constitution on natural resources and policies regarding agricultural land relate to the allocation and
distribution being done from a basis of fairness and equity, having regard to gender balance and
diverse community interests. 53. This clearly recognises women as equal members of society and that
they also have a right to land which historically has always been a preserve for men.

2.1.6 RIGHT TO EDUCATION

The Declaration of Rights, in Section 75, guarantees citizens and permanent residents the justiciable
right to basic education, including adult basic education and the right of individuals to establish
private educational institutions. It also provides a right to further education which the state must
make progressively available and accessible. Section 27 establishes free and compulsory basic
education and higher and tertiary education as National Objectives. Sections 19, 81, and 83 address
the educational needs of children, girls, and persons with disabilities.

Any successful career starts with a good education. Education is the platform that one builds
expertise and skills on. The right to education is however arguably the weakest of the Economic
Social and Cultural Rights provided for in the 2013 Constitution54. Although the Constitution contains
a broader treatment of the right to education than its predecessor, it incorporates only the most basic
elements of the right. The relevant sections fail to address the issues of adequate infrastructure or
educational quality.55

2.1.7 RIGHT TO HEALTH

Right to health care is provided for as a right for every citizen and permanent resident. There is
specific inclusion of reproductive health-care services. 56World Health Organization (WHO) defines
reproductive health rights as rights to decide freely the number and spacing of their children; to
attain the highest standard of sexual and reproductive health and the right of all women to make

50 Section 52(a)
51 Zimbabwe Demographic and Health Survey (2015 ZDHS) https://dhsprogram.com/publications/publication-fr322-dhs-
final-reports.cfm
52 See section 77 generally
53 Section 289(c)
54 ZHLR, Briefing Paper. (2014) Analysis of the provisions relevant to the economic Social and cultural rights in Zimbabwe’s 2013

constitution. The international rights clinic at Harvard Law School. Online accessed on 1/01/2017
http://.law.harvard.edu/wp.../ESCR-Briefing-Paper-Final-10-Dec-20141.pd
55 ibid
56 Section 76(1)

8|P ag e
decisions concerning reproduction. The importance of inclusion of reproductive health rights in the
Constitution lies in the fact that both females and males must have an equal say in such matters.

2.1.8 WOMEN POLITICAL PARTICIPATION AND DECISION MAKING

The Constitution contains elaborate provisions on participation in politics and decision making. In the
selection of Senators, party lists must have male and female candidates listed alternatively, with each
list being headed by a female candidate. 57For the first two lives of Parliament, there are sixty reserved
seats for women, which are based on the quota system. This was done with the realisation that the
percentage of women in Parliament was low due to many factors including gender inequalities that
hinder women from effective participation. These provisions are of importance to the overall goal of
gender equality and non-discrimination in that if women’s agency and ability to influence legislation
and policy is increased and utilized effectively, there is a likelihood that more women will participate
in decision making in households and wider society.

2.1.9 THE ROLE OF PARLIAMENT IN ENHANCING GENDER EQUALITY

The role of Parliament in enhancing gender equality is critical because in terms of section 149, every
citizen and permanent resident of Zimbabwe has a right to petition Parliament to consider any matter
within its authority, including the enactment, amendment or repeal of legislation. This means
potentially gender insensitive policies and laws can be brought to the attention of Parliament. In the
face of the slow pace of the alignment process, this is an avenue that can be explored to enhance
gender equality.

The Parliamentary Legal Committee (PLC) was set up to scrutinize every bill except a constitutional
bill and every statutory instrument published in the gazette to ensure that it complies with the
provisions of the Constitution. The PLC should therefore ensure that every bill stands the test of
gender equality. The electoral law must ensure compliance with the proportional representation of
women Senators on equal representation. 58Parliament has a key role to play with regard to gender
equality through mechanisms such as oversight powers on government activities and financial
allocation through gender budgeting. Political will of the Parliamentarians is also a must as it can
play an important role of ensuring gender equality and non-discrimination for all women.

2.1.10 JUDICIARY AND ACCESS TO COURTS

The Judiciary consists of the Chief Justice; Deputy Chief Justice and other Judges of the Constitutional
Court; Judges of the Supreme, High, Labour and Administrative courts together with the Judge
Presidents of those courts; persons presiding over Magistrates Courts, customary law courts and
other courts established through an act of Parliament. 59 The appointment of members of the judiciary
must reflect broadly diversity and gender composition of Zimbabwe. 60What this means is that access
to justice for women must be equal and effective. This is important as securing of equal and effective
access to justice entails making the entire chain of justice gender sensitive in a way that guarantees
not only formal but also substantive equality61.

2.1.11 INDEPENDENT COMMISSIONS SUPPORTING DEMOCRACY

57 Section 120(2)(b)
58 Section 157(2).
59 Section 179(1)

60 Section 163
61 See UN Women, In Pursuit of Justice: Progress of the World’s Women, 2011

9|P ag e
Independent commissions supporting democracy are expected to be impartial and perform their
functions without fear, favour or prejudice. They are constitutionally enabled to monitor, regulate,
advise and assist the legislature in conducting oversight on governance issues of which gender
equality and non-discrimination is one of the critical issues. Among the independent commissions
supporting democracy is the Zimbabwe Gender Commission (ZGC)62. Others are the Zimbabwe
Electoral Commission (ZEC)63; Zimbabwe Human Rights Commission (ZHRC)64; Zimbabwe Media
Commission (ZMC65) and the National Peace and Reconciliation Commission (NPRC66). Where a
commission has a chairperson and deputy chairperson, they must be of different genders. 67This
ensures that at any given time, the chairperson and deputy will either be female/male or
male/female. All these commissions are critical as they deal with issues that affect the day to day
lives of women and men. The ZGC is particularly important as it has a constitutional mandate to
ensure that gender equality is achieved in Zimbabwe. The wide and over-sweeping mandate and
functions of the ZGC are set out in Section 246 of the constitution. The Zimbabwe Gender
Commission Act (Chapter 10:31). Further provides for the power of the ZGC to investigate violations
of gender equality, gender equity and efforts at gender mainstreaming.

2.1.12 ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS

The Constitution has widened the scope of persons who can approach any court with a Constitutional
matter.68 These persons are, any person acting in their own interests; any person acting on behalf of
another person who cannot act for themselves; any person acting as a member, or in the interest of a
group or class of persons; any person acting in the public interest or any association acting in the
interests of its members. 69Such persons are entitled to approach the court, alleging that a
fundamental right or freedom enshrined in the Constitution has been, is being or is likely to be
infringed (past, present and future). This is important for the broader gender equality goal as Section
85 provides for the enforcement of rights not only where the right has been violated but also where
the violation is under way or violation is imminent or likely70. Further section 85 enhances human
rights litigation as it allows class actions/public interest actions. This also enhances access to courts
by ensuring that no individuals are denied standing to litigate on constitutional issues thereby
permitting the participation and involvement of socially and economically disadvantaged individuals
who may be unable to assert their rights through themselves71.

The Court may grant appropriate relief including a declaratory order and an award of compensation.
A person with particular expertise say in gender and legal matters, may appear as a friend of the
court (amicus curiae) to assist the court in coming up with a decision. In the Mudzuru case, the
Constitutional Court made a definitive ruling outlawing child marriage. In the judgement, the court
made reference to the international human rights framework and potentially, the court can be
approached to deal with matters that have a bearing on gender equality.

3. PART C

62 Section 245
63 Section 238
64 Section 242
65 Section 248

66 Section 251
67 Section 320 (4)
68 If the court is not a Constitutional Court, the order so made must be confirmed by the Constitutional Court.
69 Section 85(1) (a-e).
70 L Chiduza and PN Makiwane, Strengthening Locus Standi in Human Rights Litigation in Zimbabwe: An analysis of the

Provisions in the New Zimbabwean Constitution Potchefstroom Electronic Law Journal (Vol 19) [2016
71 ibid

10 | P a g e
3.1 EXAMPLES OF BARRIERS TO ACHIEVING SUBSTANTIVE EQUALITY IN
ZIMBABWE

Although every section of the Constitution is important, the ones discussed above are of particular
importance to women. It can be safely concluded that the supreme law of Zimbabwe does indeed
contain gender equality provisions. The challenge is how to ensure that gender equality is achieved in
Zimbabwe. The discussion above touched on many issues on the legal rights and gender equality.
However, it will not be possible to flag out all the issues where there are barriers to substantive
equality. The discussion below therefore will focus on the following critical issues; women’s access to
justice as it relates to the costs associated with this; property rights during the subsistence of a
marriage; women in unregistered customary law unions; property grabbing and rights of women in
inheritance matters.

3.1.1 COSTS ASSOCIATED WITH ACCESSING JUSTICE

The constitution provides that the state must take all practical measures to provide legal aid in
criminal and civil matters72. In Zimbabwe there is the Legal Aid Act Chapter 7:16 that deal with legal
assistance in criminal and civil matters to indigent persons. There is supposed to be a Legal Aid fund
set up with money expected from amongst other sources, Parliament of Zimbabwe. However, in
reality, indigent persons who use the services of the Legal Aid Directorate (LAD) set up under the act
are still required to pay a ‘small fee’. Although the act requires that an applicant contribute at the
discretion of the Director of LAD, research has shown that costs related to accessing justice are very
high. The Legal Aid fund has not yet been put in place. In the research conducted by Women and
Law in Southern Africa (WLSA) in Zimbabwe, the evidence shows that although the costs are high for
both women and men, the former frequently face a difficult choice when suing for rights in
matrimonial property in terms of using the resources that they have for the family or using the
resources for purposes of accessing justice73. Even though legal aid may be rendered through civil
society organizations, there are some costs that are required for instance revenue stamps, messenger
of court or sheriff of the superior courts fee. One of the most problematic fee is that which relates to
the recovery of property by the sheriff. For instance, a widow whose property is grabbed by relatives,
she goes to court, it is ordered by the court that the property be returned. She is expected to pay a
sum of USD 600 for this purpose74. This has resulted in many widows whose property is grabbed
abandoning their claims.

Costs are also found in the administration of estates starting with USD 30 for an edict meeting to
select an executor, costs of advertising the estate, Master’s fees which is 4% of the value of the estate
and 4% executor’s fees if there is an independent executor. Many widows find it difficult to meet
these costs and in the case of estates, houses can be sold to meet these costs75.

3.1.2 PROPERTY RIGHTS DURING THE SUBSISTENCE OF A MARRIAGE

Section 26(c) of the Constitution clearly obliges the state to put measures that ensures that there is
equality of rights and obligations of spouses during marriage. However, the common law as applied
in marriage situations reveals glaring gender gaps as most of the victims of the common law are
women. This issue is better illustrated through two cases that came before the High Court.

Case one: Muswere vs. Makanza HH-16-05

72 Section 31
73 See generally- J Stewart et al (2000). Shadow of the law: women and justice delivery in Zimbabwe. Women and Law in Southern
Africa Research Trust, Harare.
74 Based on cases that WLSA has handled
75 See Statutory Instrument 50/2017

11 | P a g e
In the Muswere case, Dr and Mrs Makanza were married in terms of the Marriage Act Chapter 5:11 in
1973. A property was acquired in Mutare and registered in the name of the husband. In October 2002,
Dr Makanza sold the property to one Godfrey Muswere and transfer was effected. Dr Makanza
relocated to his rural home in Nyanga and invited his wife to join him there. She was unable to do so
since she was still working in Mutare and it would be inconceivable for her to commute from Nyanga
to Mutare. She also averred that she had not been consulted in relation to the transaction. In her view
yet she was a co-owner of the property and by virtue of the fact that she had made direct and indirect
contributions to the acquisition of the property. She also averred that the property was sold for an
unreasonably low price which was a ploy to defraud her of the property. She therefore refused to
vacate the property to make way for Godfrey Muswere. The latter then sought her eviction. Mrs
Makanza then filed her own application seeking the setting aside of the sale and that she be declared
as co-owner of the property.

Whilst the court sympathised with her position, the court reaffirmed the common law position a wife
has no legal right to stop a sale of an immovable property registered in a husband’s own name during
the subsistence of a marriage despite the fact that she contributed directly or indirectly to its
acquisition. Legally, the husband has real rights over the property. Although the same applies to a
husband where the wife is the registered owner of the property, the reality is that most immovable
property acquired during marriage is registered in the names of husbands. Most African women find
themselves bound by culture and custom and therefore cannot ‘raise their heads’ when it comes to
property ownership. Mrs Makanza therefore lost her case.

The inequality raised by the case relates to the fact that most immovable property is registered in the
names of husbands and yet the common law position ignores this fact and the fact that whatever a
wife will have contributed during the subsistence of the marriage is not taken into account unless
they are divorcing or it is after the death of the husband.

Case two: Madzara vs Stanbic and others HH-546-15

In this case, the applicant’s husband obtained a loan from the bank and pledged the matrimonial
home as security. The immovable property was registered in her husband’s name. She was never
consulted on the obtaining of the loan. In reality, she contributed substantially to the acquisition of
the stand and the constructing of the house. The applicant cited section 26 (c) of the Constitution as
well as sections 56 on equality before the law and equal protection and section 80(3) on laws, customs,
traditions and cultural practices that infringe on the rights of women. Although the court
sympathised with her, again the court dismissed her application and stated that the duty firmly lies
with the law makers to amend the law to provide for the rights of married parties during the
subsistence of a marriage. The court also called for putting in place of a code of ethics by banks to
make obtaining of spousal consent compulsory before a loan is approved. The gendered nature of the
case emanates from the fact that the law allows whoever is registered as owner of a property to
encumber the property without recourse to the other spouse. Again, most immovable property is
registered in the names of husbands so they can take loans and use matrimonial homes as security.

3.1.3 THE LAW AND WOMEN IN UNREGISTERED CUSTOMARY LAW UNIONS 76

Section 3 (1) of the Customary Marriages Act Chapter 5:07 states that a customary law marriage is
invalid unless it has been solemnized and will be recognised only for the purposes of guardianship,
custody and rights of succession of the children. Section 68 (3) of the Administration of Estates Act
also recognize unregistered marriages only for purposes of inheritance. The greatest challenge
women in unregistered marriages face is recognition as the surviving spouse. The “title” is sometimes
heavily contested either by women amongst themselves (relatives often taking sides) or it pits the
relatives of the deceased against the “wife”. In the case of In Re Estate Late Amos John Chirunda HH-
119-2006, a dispute arose as to whether or not one Prisca Chinamora was the surviving spouse. At the
time of the deceased’s death, she was living with the deceased as husband and wife. Despite this fact,

76This is the most popular “ marriage” in Zimbabwe.The prerequisites of this marriage are not prescribed in any Act but the
name seems to suggest that it satisfies all the requirements of a customary marriage other than registration.
12 | P a g e
the deceased’s children and other relatives were of the view that although the two were staying
together, there was no legally binding customary law marriage.
Current practice dictates that the relatives of the deceased man have to “confirm” the existence of the
customary law marriage. The wife who has a marriage certificate simply produces it to get the death
certificate. WLSA and other organizations have handled cases where the “wife” is labelled as a mere
“concubine” or girlfriend. On one hand, there may be irrefutable proof that the deceased and woman
in question were staying together as in the Chirunda case but when matters of property and
inheritance arise, the woman cuts a lone figure as she battles to “prove” the existence of a customary
law marriage. The dispute may start off at the level of obtaining a death certificate but will spill over
to the edict meeting. Even with the law on her side (Section 26 of the Administration of Estates Act
gives the surviving spouse first preference to be executor), she has to first overcome the “status”
issue.

3.1.4 RIGHTS OF WOMEN TO INHERITANCE

Whilst section 26(c) of the Constitution obliges the state to put measures that ensures that there is
equality of rights and obligations of spouses at the dissolution of a marriage, inheritance of
immovable property is governed by the Administration of Estates Act (chapter 6:01) as amended and
the Deceased Estates Succession Act (Chapter 6:02). Section 3A of the Deceased Estates Succession Act
provides that the surviving spouse of a person who dies intestate shall be entitled to receive from the
free residue of the estate, the house or other domestic premises in which the surviving spouse lived
immediately before the person’s death. The phrase lived immediately before the person’s death and
lived in at the time of the deceased person’s death create challenges in implementation and women
may lose their right to inherit the house if they were not living in the house at the time of the death of
the deceased. Due to the changing family dynamics, there are numerous situations that now exist that
mean a woman may not be able to satisfy this criterion but yet is clearly a wife and has been and is in
reality occupying the house.
Due to the nature of Zimbabwe’s society, it is not uncommon to find a woman living the larger part of
her married life in the rural areas especially during the planting and harvesting season. She may go to
the urban home on occasions. Assuming that her husband dies whilst she is in the rural area, a
restrictive interpretation of the law may mean that she was not living at the urban home at the time of
death and therefore that particular home will not be inherited by her. This situation may also affect
women in polygynous unions who may also both be predominantly staying in the rural areas but
going to the urban home occasionally usually in turns. Suppose wife A is at the urban home at the
time of death and wife B is in the rural areas, a restrictive interpretation will mean that wife B was not
living at the urban home immediately before death and thus would stand to lose. And yet another
scenario is where lodgers are put in an urban home whilst a husband and wife stay in the rural area
and survive on the rentals. Should one spouse die, again it would mean that they do not qualify to
inherit the immovable property by virtue of the interpretation of the legal provisions.
Husbands and wives may also find themselves owning a house in the urban area but due to
employment, they may be living separately one in the matrimonial home and the other home at the
work station for example a school or both will be staying away from the matrimonial home. In the
case of Ndoro vs. Ndoro and the Master of the High Court HH-198-12, the surviving spouse and deceased
husband were married under Chapter 5:11. The wife, a teacher by profession was stationed at a
school in Norton as Deputy Head. The matrimonial home is in Kadoma. The dispute was therefore
whether or not the applicant wife was residing at the immovable property at the time of death. There
were other issues of ill health, separation and divorce proceedings that were never finalised. The
court went through a painstaking process to discern how many times the applicant visited Kadoma
and found that the applicant could not recall except one occasion where she “passed” by to collect her
“things”. The immediate question then is, was not the collecting of her “things” a sign that she had
kept them in a home that she considered the matrimonial home?

13 | P a g e
Some women also travel to neighbouring countries to sell wares or even to work for short periods.
Again, the legal question that would arise is, was the wife living at the matrimonial home at the time
of death of her husband. Placing a restrictive interpretation would mean that such women would not
be entitled to the immovable property.
It is also not uncommon to find persons owning more than one house in urban areas but choosing to
live in one over the other, for instance they may put lodgers in the nicer and bigger house so as to
generate income. In the case of Bhila vs the Master of the High Court and others 77the couple had two
houses, one in Houghton Park and the other in Borrowdale. They rented out the Borrowdale property
and went to live in the Houghton Park property. When the husband died, they were staying at the
Houghton Park property. At law, there was no option given to the surviving spouse to select the
house that she wants between the two. The law mandated that she inherits the Houghton Park house.

The gendered nature of the issue comes from the fact that it affects women and men differently. So
far, no case has come before the court challenging the interpretation given by the courts. Culturally a
man should never be asked where he was and in any event, most immovable property is registered in
the name of a man. As a result, there would be no need to apply the law as stated since the property
does not fall into the estate of the deceased wife.

3.1.5 PROPERTY GRABBING

Section 10 of the Deceased Persons Family Maintenance Act protects widows/widowers and
dependants from eviction and property grabbing by giving them the following rights;78 right to
occupy any immovable property that the deceased person was occupying before death; right to use
household goods and effects, implements, tools, vehicles; right to use and employ any animals and
right to any crops growing on the property for sustenance purposes. Anyone who interferes with
these rights commits a criminal offence and is liable to imprisonment, a fine or both. The person who
interferes with these rights may also be ordered to restore the property. A person whose rights have
been infringed may also obtain a spoliation order for the return of the goods.
These rights are subject to rights of a landlord or mortgagor that existed prior to death; terminate
upon completion of the winding up process and also that the dependants must use the property in a
responsible manner fair wear and tear excepted. The major challenge lies in the fact that the
criminalization is provided for within the same law and no other law and it has created an impression
that it is a law that can be ignored Property grabbing affects some widowers too but the majority of
those affected are widows.

4. CONCLUSION

The article examined the right to equality and non-discrimination as important principles that should
be observed in a society that strives for the promotion and protection of human rights. What came out
clearly is that Zimbabwe does not have a shortage of laws but implementation is a major challenge.
The challenge is attributed to the lack of awareness of the laws; lack of resources to enforce laws; lack
of political will and lack of a coordinated approach. For instance, property grabbing requires the
police to arrest after a complaint has been made; the National Prosecuting authority to prosecute; the
court to hear the case and pass sentence and the prisons to put someone in jail if a jail term is passed.
Our courts have also not reached the stage of passing judgments where if a law is declared
unconstitutional, then a time frame is given for Parliament to amend the law failure of which the
section is automatically struck off. We have seen this in the Mudzuru case where despite the
Constitutional Court passing judgement that child marriages are prohibited, the Customary
Marriages Act and the Marriage Act have not been changed to reflect this.

HH-549-15
77

Note also that the law is clear that notwithstanding any law including customary law to the contrary. Some people want to
78

wrongly invoke customary law as the basis of their actions.

14 | P a g e
Lack of alignment of the laws to the Constitution is also one major impediment. Although this should
be viewed from the context of the sixth schedule section 10 of the Constitution which provides that all
existing laws continue in force but must be construed in conformity with the Constitution, there is a
real challenge in the interpretation of certain sections of the law. An alignment of the laws will put
them into proper context and perspective. The Constitution has set the standard. What remains is to
ensure that gender equality becomes a reality.

5. REFERENCES

Albertyn, C. and Goldblatt, B. (1998) Facing the challenge of transformation: Difficulties in the
development of an indigenous Jurisprudence of equality. South African Journal on Human Rights Vol 14
248
Bayefsky, A. F. (1990). The principles of Equality or Non disrimination in International Law. Human
Rights Law Journal Vol11 No 1-2 , 11, 1-34.
Buergenthal, T. (1997). The Normative and Institutional Evolution of International Human Rights.
Human Right Quarterly , 19.
Byrnes, A. (2012). Article 1. In M. Freeman, C. Chinkin, & B. Rudolf (Eds.), The UN Convention on the
Elimination of all forms of Discrimination Against Women: A Commentary (pp. 51 - 99). Oxford: Oxford
University Press.
Cook, R.J. and Cusack, S. (2010) Gender Stereotyping: Transnational legal perspectives. University of
Pennsylvania Press
Chiduza, L and PN Makiwane,P.N. (2016) Strengthening Locus Standi in Human Rights Litigation in
Zimbabwe: An analysis of the Provisions in the New Zimbabwean Constitution Potchefstroom
Electronic Law Journal (Vol 19) PER 30 online accessed 2 February 2017
http://www.saflii.org/za/journals/PER/2016/30.html
Damiso, C., & Stewart, J. E. (2013). Zimbabwe and CEDAW Compliance: Pursuing Women;s Equality
in Fits and Starts. In A. Hellum, & H. S. Aasen (Eds.), Women's Rights CEDAW in International,
Regional and National Law (pp. 454 - 481). Cambridge: Cambridge University Press.
Ellis, E. (1998) EC Sex Equality Law. Claredon Press
Fredman, S. (2016) Substantive equality revisited, International journal of Constitutional law, Volume14,
Issue 3 July 2016 pages 712 – 738 https://doi.org/10.1093/icon/mow043
Gedin, H. (2009) Formal or substantive equality? Gender equality in European Community Law.
Unpublished LLM Thesis. University of Lund.
Grant, E. (2007) Dignity and Equality. Human Rights Law review vol 7 300
Koggel, C. (1998). Perspectives on Equality: Constructing a Relational Theory. Lanham: Rowman and
Littlefield.
Maliszewska-Nienartowicz, J. (2014) Direct and Indirect Discrimination in European Union Law –
How to Draw a Dividing Line? International Journal of Social Sciences, III (1), p41
McConnachie, C. (2014) Human Dignity, ‘Unfair Discrimination’ and Guidance. Oxford Journal of Legal
Studies, Volume 34, Issue 3, 1 September 2014, Pages 609–629.
McCrudden, C. (2003) The concept of equality. ERA – Forum 4, 9-29
Reeve, K. (2012). Beyond "Equality of Opportunity" and " Equality of Result": Does the CEDAW
Committee in Karentayag Vertido v The Philippines embrace "Equality as Transformation? Warwick
Student Review , 51 (2)
Stewart, J. Sithole, E. Ncube, W. Moyo, T. Gwaunza, E. (2000). Shadow of the law: women and justice
delivery in Zimbabwe. Women and Law in Southern Africa Research Trust, Harare.
Western, P. (1982) The empty idea of equality. Harvard Law Review Vol 95. 537

15 | P a g e