9 The Legal Status of Children’s Rights in Zimbabwe

Admark Moyo*

1 Introduction

Child law and children’s rights are relatively new phrases in Zimbabwean legal
terminology. This is partly because children are largely viewed as objects of parental
care and state protection. The characterisation of children as ‘property’ is also
evident in the way the family, society and the state construct childhood as no more
than a period of paternalistic socialisation. Thus children are rarely consulted when
decisions affecting them are made. They are deemed to be incompetent to make
rational decisions that are in their best interests or consistent with adult thoughts.
This thinking is deeply entrenched in social, cultural and educational practices which
underestimate children’s abilities to think and act on their own thoughts in an orderly
and intelligent manner. Historically, the Lancaster House Constitution did not help at
all in efforts made towards dismantling the idea that children are merely objects of
social and parental control. This is because it shielded oppressive customary laws
from constitutional provisions and therefore ensured the ongoing observance of
traditional norms that violate children’s rights.1
The new Constitution – adopted in 2013 – calls for a change of perspective as it
portrays children as being entitled to protection, provision and participation rights. It
also constitutionalises a number of children’s socio-economic rights. More
importantly, it is clear that the constitutionalisation of children’s rights is a direct
response to legal developments at the international level. Whilst the exact scope and
meaning of the rights entrenched in the new Constitution has not been fully, if at all,
explored, it is beyond doubt that these rights have significant implications for the
protection, participation and autonomy of children. Further, it is common cause that
these rights impose obligations, both direct and indirect, on parents, the family and
the state. Third, the fact that the new Constitution has horizontal effect means that
non-state actors should also respect, promote and fulfil children’s rights. Besides,
the supremacy of the Constitution suggests that the obligations imposed by
children’s constitutional rights deserve serious consideration when decisions
affecting children are made.
Against this background, this chapter explores the legal status of children’s rights
under the current Zimbabwean Constitution, the Children’s Act and other relevant
laws. Due to space constraints, sporadic reference is made to equivalent provisions
of international and regional instruments entrenching children’s rights to ensure that
readers have full knowledge of positive developments at the international and
domestic levels.
The chapter is divided into five broad sections of which this introduction is the first.

* Senior Law Lecturer, Great Zimbabwe University. Programme Manager, Children and the Law, African
Child Policy Forum.
1 See section 23 of the Lancaster House Constitution.

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In section 2, the chapter identifies and briefly discusses various categories of
children’s rights in national and international law. These categories include
protection, provision and participation rights.
Section 3 identifies participation and protection as dominant or overarching themes
in children’s rights and demonstrates that the concept of the evolving capacities of
the child can be used to reconcile these seemingly oppositional themes. It is
demonstrated that the degree to which every child is entitled to protection or
autonomy largely rests on the evolving capacities of the child.
Section four describes in great detail the scope and legal content of each of the rights
enumerated in section 81(1)–(3) of the Constitution. All the rights are examined in
the order in which they appear in the Constitution. In terms of the Constitution, every
child has the rights to equal treatment before the law, including the right to be heard;2
to a given name and family name;3 to the prompt provision of a birth certificate;4 to
family or parental care or to appropriate care when removed from the family
environment;5 to be protected from sexual exploitation, from child labour and from
maltreatment, neglect or any form of abuse;6 and to education, health care services,
nutrition and shelter.7 Apart from these largely positive rights, children also have
negative constitutional rights not to be recruited into a militia force or take part in
armed conflict or hostilities;8 not to be compelled to take in any political activity;9 and
not to be detained except as a measure of last resort.10
When a child offender is detained as a measure of last resort, they have a triad of
positive rights to be detained for the shortest period of time; to be kept separately
from detained persons over the age of 18 years; and to be treated in a manner and
kept in conditions that take account of the child’s age.11 In addition to these sets of
rights, the Constitution also codifies two rights of very broad application which have
implications for the manner in and extent to which children enjoy all other rights.
These include the child’s rights to have their best interests taken as a paramount
consideration in every matter concerning the child and to be adequate protection by
the courts, in particular by the High Court as their upper guardian. All these rights
are discussed in section 4 of this chapter, and section 5 concludes the discussion.

2 Categories of Children’s Rights

This section discusses the different categories of rights and briefly investigates how
each category deals with the relationship between the child, the parent and the state.

2 Section 81(1)(a) of the Constitution.

3 Section 81(1)(b) of the Constitution.
4 Section 81(1)(c) of the Constitution.
5 Section 81(1)(d) of the Constitution.
6 Section 81(1)(e) of the Constitution.
7 Section 81(1)(f) of the Constitution.
8 Section 81(1)(g) of the Constitution.
9 Section 81(1)(h) of the Constitution.
10 Section 81(1)(i) of the Constitution.
11 Section 81(1)(i)(i)–(iii) of the Constitution.

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In international human rights law, children’s rights have been divided into three broad
categories. These include provision or socio-economic rights, protection rights and
participation or empowerment rights.12 These categories of rights should be read
holistically as they are indivisible, interrelated and mutually reinforcing. Each set of
rights largely represents specific interests of children, with provision rights
broadening the child’s interest in developing optimally, participation rights promoting
the child’s interest in making decisions once competent to do so and protection rights
emphasising the child’s interest in being protected from harm, neglect, violence,
degradation and all forms of exploitation. Protection in the decision-making context
largely comes in the form of parental duties and the responsibility of the state in
ensuring that parental duties are exercised in the best interests of the child.

2.1 Provision Rights

These are rights to the provision of goods and services. The Constitution recognises
the indivisibility of children’s rights13 and acknowledges that rights are more than
injunctions against the state.14 The provision or socio-economic rights are largely
derived from and broaden the scope of the right to life, survival and development.15
The Zimbabwean Constitution provides for the rights to “education, health care
services, nutrition and shelter”.16 Rights to provision are important in fostering the
child’s physical and intellectual development. Their importance must be seen against
the indivisibility of human rights and the need to adopt a holistic approach to
children’s rights.17 Thus, the inclusion of socio-economic rights in the overall design
of the Constitution emphasises the link between the provision of certain goods,
balanced growth and full citizenship. Apart from their role in enhancing the child’s
physical and intellectual development, provision rights rarely raise tensions between
different players in society.

2.2 Protection Rights

Protection rights are intended to promote the child’s basic right to life, survival and
development. The Constitution contains provisions entrenching the child’s right to be
“protected from economic and sexual exploitation, from child labour, and from
maltreatment, neglect or any form of abuse”.18 These rights require both state and
non-state actors to protect children from all forms of exploitation, maltreatment,
neglect and abuse. More importantly, however, children are protected from potential

12 See, for example, P. Alderson, Young Children’s Rights: Exploring Beliefs, Principles and Practice,
2nd edition (2008) p. 17.
13 On the indivisibility of human rights, see CRC General Comment No. 5, paras. 6 and 25.
14 R. L. Barsh, ‘The Convention on the Rights of the Child: A Re-assessment of the Final Text’, 7 New

York Law School Journal of Human Rights (1989–1990) p.142, at p. 143.

15 See L. J. LeBlanc, The Convention of the Rights of the Child (1995) p. 65.
16 Section 81(1)(f) of the Constitution.
17 On indivisibility and universality of human rights, see generally J. W. Nickel, ‘Rethinking Indivisibility:

Towards a Theory of Supporting Relations between Human Rights’, 30 Human Rights Quarterly (2008)
p. 948.
18 Section 81(1)(e) of the Constitution.

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violations of rights in the criminal justice system, especially when they are alleged to
have committed an offence.
Just like the Child’s Rights Convention (CRC), section 81(1)(i) of the Constitution
provides that a child should not be “detained except as a measure of last resort and
if detained, to be detained for the shortest appropriate period of time; to be kept
separately from detained persons over the age of eighteen years and to be treated
in a manner and kept in conditions, that take into account the child’s age”. Children
are also protected against the harmful effects of armed conflict, and the state is
bound to ensure that those below the age of 15 years do not directly participate in
armed hostilities.19 At the domestic level, the fact that the state has not incorporated
some of the rights protected at international law does necessarily mean that children
may not, for instance through using the best interests principle, be protected from
practices which threaten these rights.
Protection rights represent minimum conditions of treatment to which children are
entitled and with which the state and private persons must comply. Accordingly, the
state may not rely on resource constraints or other excuses to justify its failure to
comply with the minimum levels of protection envisaged in the Constitution.
Protection rights seek to prohibit practices that endanger the child’s right to life,
survival and development. Neglectful and abusive parents or caregivers have the
potential to harm children physically and emotionally, and the state may intervene
by moving children into alternative care to remedy the problem.20 As noted by Wald,
protection rights “encompass claims that the state should more actively protect
children from harm [caused] by adults, especially their parents”.21 Protection rights
require the state not only to refrain from engaging in conduct that infringes these
rights but also to prevent natural and juristic persons from infringing these rights.
When violations of rights have already occurred, the state should take measures to
ensure that they would not happen again.

2.3 Participation and Autonomy-Related Rights

Participation and autonomy-related rights relate to every citizen’s rights to express

their views freely and to influence decision-making in all matters that concern them.
They constitute an acknowledgment that people (including children) are “active,
creative beings in charge of, or at least struggling to shape their lives. People must
not simply be protected against attacks by the state or other citizens, they must be
empowered to act and to lead autonomous lives.”22 In the category of participation

19 Section 81(1)(g) of the Constitution stipulates that “every child has the right not to be recruited into a
militia force or take part in armed conflict or hostilities”. For levels of protection at international and
regional law, see Articles 38(1)–(4) of the CRC and 22(1)–(3) of the African Children’s Charter.
20 For empirical evidence supporting this view, see M. Barry, ‘Minor Rights and Major Wrongs: The

Views of young People in Care’, in B. Franklin (ed.), The New Handbook of Children’s Rights (2001)
pp. 239–254.
21 M .Wald, ‘Children’s Rights: A Framework for Analysis’, 12 University of California, Davies Law

Review (1979) p. 255, at pp. 261–262.

22 J. Donnelly and R. Howard, ‘Assessing National Human Rights Performance: A Theoretical

Framework’, 10 Human Rights Quarterly (1988) p. 214, at pp. 234–235.

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rights falls the right to be heard; freedom of expression; access to information;
freedom of thought, conscience and religion; and freedom of association and
assembly. This set of rights is constitutionally protected as belonging either to
everyone or specifically to children.
One may also add in the category of participation-related rights the rights to privacy
and education. Apart from the right to be heard, which is protected as part of the
rights specifically applicable to children, the other participation-related rights are
protected as rights that are held by everyone, including children. These rights have
direct implications for the triangular relationship between the child, the parent and
the state, particularly in the context of decision-making.

3 Protection and Autonomy as Overarching Themes in Children’s Rights

For over 50 years, child protection and autonomy have stood out as overarching
themes in the children’s rights movement. This is largely because children’s rights to
protection and autonomy have been cast as ‘polar opposites’ and not two sides of
the ‘same coin’. On one side of the ledger are protagonists of children’s rights to
protection who are of the view that children need to be protected from an array of
social, cultural, political and economic problems that bedevil families and
communities within which they live. These are traditionally known as the ‘child
savers’.23 Most of the ‘child savers’ largely consider children as vulnerable, immature
and in need of protection from parents/guardians, society and the state. More
importantly, the majority of protectionists argue that for children to enjoy the greatest
benefits and to develop optimally, it is imperative for society and the state to confer
on parents the autonomy to direct, guide and bring up their children as they see fit.24
Over time, however, the ‘child savers’ also began to emphasise the need to protect
children not only from strangers but also from parents and even children themselves
in some instances.25 Under the protective approach to children’s rights, paternalistic
intervention is justified in the name of advancing the best interests of the child.
On the other side of the ledger are advocates of children’s rights to participation,
autonomy and liberation. This group of theorists consider the right to self-
determination as the most important of all children’s rights.26 From the perspective of
child liberationists – often referred to as ‘kiddie libbers’ – the protective approach to
rights is undesirable because it impairs the dignity and status of the child.27 Under
this approach to children’s rights, the child’s status should never be determined by

23 See generally D. Platt, The Child Savers (1989). See also B. C. Feld, Bad Kids: Race and the

Transformation of the Juvenile Court (1999) p. 51.

24 See H. Foster and D. Freed, ‘A Bill of Rights for Children’ Family Law Quarterly (1972) pp. 343–347

and M. Jones and L. A. Marks, ‘The Dynamic developmental Model of the Rights of Child: A Feminist
Approach to Rights and Sterilisation’, The International Journal of Children’s Rights (1994) p. 265, at p.
270.
25 J. E. Coons and R. H. Mnookin, ‘Towards a Theory of Children’s Rights’, in I. F. G. Baxter and M. A.

Eberts (eds.), The Child and the Courts (1978) p. 391, at pp. 391–392.
26 See generally R. Farson, Birthrights: A Bill of Rights for Children (1974) and J. Holt, Escape from

Childhood: The Needs and Rights of Children (1974).

27 H. Cohen, Equal Rights for Children (1980) p. viii.

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their age, and all rights extended to adults should also be extended to children,
including the very young.28 Theorists who elevate liberation and autonomy over
protection often seek to limit the control exercised by parents, guardians and the
state over children and to vest on children themselves decisional autonomy over
many if not all aspects of life. Any version of paternalistic control of children’s lives
and decisions is viewed as unnecessary, arbitrary, oppressive and unjustifiable.
The contrast often made between autonomy and protection as ‘polar opposites’
patently overlooks the sophisticated nature of the relationship between these two
complimentary themes of children’s rights. In reality, a well-balanced theory of
children’s rights should have elements of both protection and autonomy. As such,
children’s autonomy and protection should be seen as phases in the continuum of a
child’s development and life course. To enjoy better protection from harmful conduct
or practices, children need to be heard and to have their perspectives taken into
account when protective measures are adopted by parents, society and the state.
By the same token, if a child wishes to take an autonomous decision that endangers
his or her life, parents and the state have the authority to veto that decision on the
basis that it violates the child’s protection rights and undermines the child’s best
interests. In addition, child protection creates platforms for children to express their
views freely and without fear of reprisals and victimisation. Therefore, there are
overlaps between different categories of children’s rights, and the enjoyment of all of
them makes optimal development a possibility.
The distinction between children as independent individuals seeking autonomy and
as dependents requiring protection has been characterised as “perhaps the most
difficult and controversial issue in children’s rights”.29 The tension between
participation/autonomy rights and protection rights is most evident in provisions
which cast the child as an autonomous agent and those that describe the parent or
guardian as the person responsible for guiding the child in exercising his or her legal
rights. Naturally, the tension is between the child’s right to autonomy and the parent’s
right to control their child’s upbringing, growth and development.30 The protection of
child participation rights in section 81(1)(a) of the Constitution (an equivalent of
Article 12 of the CRC) and parental rights in section 60(3) of the Constitution (an
equivalent of Article 5 of the CRC) embodies the enduring tension between children’s
personal autonomy claims and parents or the state’s duty to protect children from
themselves. Whereas section 81(1)(a) of the Constitution and Article 12 of the CRC
recognise the child as a potentially autonomous person with the ability to participate
fully in society and as an individual separate from the family,31 section 60(3) of the

28 See generally M. D. A. Freeman, The Rights and Wrongs of Children (1983) pp. 22–23.
29 E. Evatt, ‘Children’s Rights and the Legal Regulation of Families’, Paper presented at the Third AIFS
Australian Family Research Conference, Ballarat, 1989.
30 See Article 9 of the African Children’s Charter stating as follows:

(1) Every child shall have the right to freedom of thought conscience and religion;
(2) Parents, and where applicable, legal guardians shall have a duty to provide guidance and direction
in the exercise of these rights having regard to the evolving capacities, and best interests of the child;
(3) States Parties shall respect the duty of parents and where applicable, legal guardians to provide
guidance and direction in the enjoyment of these rights subject to the national laws and policies.
31 C, Barton and G. Douglas, Law and Parenthood (1995) p. 42.

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Constitution and Article 5 of the CRC cast the child as a member of the family subject
to parental control and guidance in light of the child’s individual capacities.
To bring out the contrast between participation (in the sense of autonomy) and
protection, and to demonstrate how national and international law resolves this
potential conflict, it is imperative to refer to key provisions of the Constitution and the
CRC. To begin with, 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”. This provision allows
parents to take several measures to protect children and to advance children’s rights
according to their own value system, subject of course to the caveat that the
measures adopted by parents may not prejudice any of the rights of the child. It
allows parents to disregard the wishes of the child if those wishes undermine the
child’s rights to health, safety, welfare and other protection rights. Section 60(3) of
the Constitution domesticates Article 5 of the CRC, which is the umbrella provision
codifying parental responsibilities and rights.32
For purposes of balancing protection and autonomy, it important to note that
international law and, to a limited extent, domestic law declare that the exercise of
parental responsibility should be consistent with the child’s evolving capacities.
Article 5 of the CRC provides that:

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable,
the members of the extended family or community as provided for by local custom, legal
guardians or other persons legally responsible for the child, to provide, in a manner consistent
with the evolving capacities of the child, appropriate direction and guidance in the exercise by
the child of the rights recognized in the present Convention.33

This provision requires states parties to respect the parental responsibility and right
to provide appropriate direction and guidance in the exercise by the child of the rights
in the CRC. Parents thus have the right to guide children in the latter’s exercise of
their right to participate in decision-making. It was intended to address the protection
to be accorded to the parental right and duty to provide direction and guidance to the
child, in light of the child’s evolving capacities. The direction and guidance to which
the child is entitled should be provided in a manner consistent with the evolving
capacities of the child. In exercising their rights and responsibilities to guide and
direct children, parents may not ignore the evolving capacities of the child. As the
child grows up, parents must, in Locke’s words, reduce the “rigour of parental
government” or the level of control over the child’s life. It is evident, from the
provisions referred to in this section, that while children are seen as separate

32 See Technical Review of the Text of the Draft Convention on the Rights of the Child, UN Doc.
E/CN.4/1989/WG.1/CRP.1/Add.1, 5 at 7.
33 Emphasis added. Article 14(2) of the UNCRC also states that:

States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians,
to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving
capacities of the child.33

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individuals with rights of their own, the importance of parents, guardians and
members of the extended family to the child’s development is also recognised.34
The concept of the evolving capacities of the child ground both parental control and
the child’s relative autonomy from paternalistic decisions. It plays an important role
in maintaining the balance between child participation and protection through the
exercise of parental responsibility and state intervention.35 It recognises that children
experience rapid growth in their “physical, cognitive, social and emotional
functioning”, pass through zones of rational autonomy before attaining adulthood
and vary in the ages at which they become capable of making particular decisions.36
As an emancipatory concept, the evolving capacities of the child seeks to broaden
youth autonomy and encourage children to assume responsibility for their actions.
With age and maturity, the consequences of children’s decisions increase and
diversify until they reach the age of majority, when they begin to fully exercise the
totality of their rights. As the child’s capacities evolve, the child plays a central role
in defining what is in his or her best interest, authorising courts, in limited instances,
to override parental preferences.37 When a child is sufficiently mature to be rationally
autonomous in making a particular decision, it would be inconsistent with the concept
of the evolving capacities of the child to insist that her views be co-terminus with
parental preferences.38
The concept of the evolving capacities of the child also grounds parental control and
state intervention. The primary responsibility of parents is to protect children from
the immaturity of their youth and to help them make difficult decisions in life. The
CRC, the African Children’s Charter and the Zimbabwean Constitution recognise
children’s vulnerability and immaturity as grounds for entrenching children’s right to
special protection. As observed above, the child’s protection rights provide a solid
reason for limiting the child’s desire to exercise personal autonomy in the decision-
making process.
The protective dimension of the evolving capacities of the child entails, among
others, protection from personal decisions that negatively affect the child’s own life,
survival and development. In many contexts, the child’s un(der)developed capacities
require the parent and the state to shield the child against unsound personal
decisions. In most cases, the child’s long-term interests are not promoted by giving
effect to his or her present desires and preferences. In an adult’s case, present
autonomy takes precedence over future good (the adult has the right to choose).
With children, future good often takes precedence over present autonomy (adults

34 See A. B. B. Munir, ‘Child Protection: Principles and Applications’, 2 Child Abuse Review (1993) p.
119, at p. 122.
35 G. Lansdown, The Evolving Capacities of the Child, UNICEF Innocenti Research Centre, Florence,

2005, p. 15.
36 See CRC General Comment No. 4, paras. 1 and 7, and CRC General Comment No. 7, para. 17.
37 See L. Krappman, ‘The Weight of the Child’s View (Article 12 of the Convention on the Rights of the

Child)’, 18 International Journal of Children’s Rights (2010) p. 501, at pp. 506–509 and CRC General
Comment No. 4, para. 17.
38 R. Hart, ‘The Evolving Capacities for Children to Participate’, in V. Johnson et al. (eds.), Stepping

Forward: Children and Young People’s Participation in the Development Process (1998) pp. 27–31.

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have the right to override the child’s free choice if such choice threatens the child’s
best interests, life and gradual development into responsible adulthood).
There is hardly any consensus about the nature and extent of the protection to which
children are entitled in the context of personal decision-making. For the very young,
most decisions are justifiably taken by adults exercising parental responsibilities and
rights. The rationale for ceding control of young children to parents is that children
generally lack the capacity to make decisions in ways that maximise their stock of
the good. Through the idea of the evolving capacities, international law recognises
that an immature child needs to be protected from their own actions when such
actions threaten the child’s basic right to life, survival and development. The
protective dimension of the evolving capacities of the child does not only ensure that
incompetent children are not given the burden to make complex decisions in their
life course, but also prevents parents from putting children in the middle of adult
conflicts.39 The fact that children’s capacities are ‘evolving’ authorises parents to
invoke the protective dimension of the child’s evolving capacities to evaluate whether
the child’s views promote the present and future good of the child, often referred to
as their best interests.
However, the protective element of the evolving capacities of the child does not
justify the total exclusion of children from the decision-making world as this
undermines the participation rights of children, particularly adolescents.40 In
Freeman’s words, “to take children’s rights more seriously, requires us to take more
seriously both the protection of children and recognition of their autonomy, both
actual and potential”.41 Finally, whether the exercise of parental responsibility is
‘appropriate’ largely depends on whether it is justified by the child’s (in)capacity to
make the decision in question. To be appropriate, parental responsibility should
protect children from exercising autonomy rights during earlier stages of their life
course, enhance their capacities for autonomy as they grow up and allow for relative
autonomy from parental control when the child acquires the capacities to make
particular decisions in their best interests.

4 Children’s Rights under the New Constitution

4.1 The Rights to Equal Treatment before the Law and to Be Heard

In terms of section 81(1)(a) of the Constitution, every child has the right to equal
treatment before the law, including the right to be heard. To fully engage with what
this provision entails, it is necessary to divide the right into two separate but related

39 See I. Thery, ‘The Interest of the Child and the Regulation of the Post-Divorce Family’, in C. Smart
and S. Sevenhuijsen (eds.), Child Custody and the Politics of Gender (1989) p. 78, at p. 92.
40 See generally J. Miller, All Right at home: Protecting Respect for the Human Rights of Children in the

Family (1998).
41 M. Freeman, ‘Whither Children: Protection, Participation, Autonomy?’, 22 Manitoba Law Journal

(1994) p. 307, at p. 324.

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sections: the first dealing with the right to equal treatment before the law and the
second unpacking the legal content of the right to be heard.

4.1.1 The Right to Equal Treatment before the Law

Every child has the right to equal treatment before the law. This right should be read
in light of the broader constitutional framework for equality as provided for in section
56(1)–(6) of the Constitution and the provisions of relevant international and regional
instruments. When it comes to equal treatment before the law, children should enjoy
better protection than adults, especially in light of their vulnerability and limited
capacity for rational decision-making. For example, it can be argued that statutory
provisions authorising the imposition of corporal punishment as a sentence to be
imposed on male juvenile offenders violates the equal protection and benefit of the
law clause. In addition, these laws also violate the non-discrimination clause. This is
because the laws in question directly subject young male offenders to a condition to
which other people are not subjected and indirectly accords to all other categories of
persons a privilege or advantage which young male offenders are not accorded.42
The unfair treatment experienced by male offenders in the penal context appears at
two levels, that is as a manifestation of both age-based and sex-based
discrimination.
The child’s right to equal treatment before and protection of the law came to the
spotlight in Bhila v. The Master of High Court and Others.43 In this case, the applicant
as the surviving spouse was appointed as executrix of her husband’s deceased
estate. Upon processing the estate, the applicant who had advertised the estate got
to know that her late husband had three children born out of wedlock. The three
children or their guardians then sought to inherit from their late father’s estate. The
first respondent (the Master) then appointed a neutral executor who subsequently
prepared a distribution plan in terms of which the matrimonial property was awarded
to the applicant as the surviving spouse. The rest of the property which included a
Borrowdale house was then treated as free residue of the estate. Upset by this
distribution plan the applicant raised an objection with the first respondent. However,
the first respondent directed that the distribution plan as given by the second
respondent be advertised and the surviving spouse made an application for this
distribution plan to be set aside.
Mwayera J, for the Court, held that the common law position of excluding children
born out of wedlock violated the constitutional rights to equal protection of the law
and freedom from discrimination. Drawing inspiration from Smyth v. Ushewokunze
and Anor,44 the learned judge held that the provisions of the Constitution must be
given a purposive interpretation so as not to strangle the right that is being protected.
With regards to the constitutional position on equality and non-discrimination, the
Court held that:

42 See section 56(4) of the Constitution.

43 HH 549-15.
44 1997 (2) ZLR 544.

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To seek to discriminate the third to fifth respondents on the basis of them being
children born out of wedlock would not only be unfair and unjust but undemocratic
for it would amount to punishing innocent children in an inhuman manner for an
iniquity beyond their control. An “iniquity” by those who sired them at no request by
the said children let alone their consultative input, would surely be discrimination
which no civilised democracy would legally sanction.45
The Court was at pains to emphasise that the question whether or not children born
out of wedlock can inherit ab intestato from the estate of their father was sufficiently
answered by the provisions of the Constitution. It then pointed out that section 56(3)
of the Constitution explicitly provides for every person’s right not to be treated in an
unfairly discriminatory manner regardless of whether they were born in or out of
wedlock. To the Court, it was patent that section 56(3) outlawed discrimination on
the basis of being born out of wedlock, and therefore the third to fifth respondents
had a right to equality and non-discrimination.46 Accordingly, excluding children or
descendants of a deceased from inheriting from the estate of their father ab intestato
on the basis that they were born out of wedlock is ultra vires the Constitution.47 In
perhaps some of the most important passages against discrimination based on
prohibited grounds, the Court held that:

The current constitution outlaws any sort of discrimination against children on the basis that they
are born in or out of wedlock … The reasoning where children born out of wedlock were viewed
as “devils, bastard illegitimate” is unacceptable and has been overtaken by dynamics in culture,
society and legal development. Social and legal dictates clearly show that no child should be
punished by virtue of not having been sired in a registered union or marriage. It is not in dispute
the third to fifth respondents are the late’s children thus his descendants and beneficiaries to the
estate. The fifth respondent is a juvenile and again well protected by the law, section 81 of the
constitution clearly spells out the rights of children. The constitution outlaws rules, conduct,
practice and law which is discriminatory. Hence the third-fifth respondents as off
spring/descendants/children/progeny albeit out of wedlock are also entitled to a share of the free
residue just like the children/descendants or off springs born in wedlock.48

The right to equal treatment before the law does not prevent parents, society and
the state from treating children differently from adults or from treating different
children differently.
However, it is necessary to emphasise that when children of different ages or
backgrounds are treated differently by state institutions, there must be a legitimate
government purpose behind the differentiation as otherwise the courts will declare
the conduct of the relevant person or body invalid and unconstitutional. For instance,
the state may adopt laws or policies that extend to children with disabilities or from
poor backgrounds the right to attain basic state-funded education as a measure
designed to bridge the skills gap between children from poor backgrounds and those
from elite backgrounds. Affirmative action measures or policies in favour of
underprivileged individuals or groups are permissible in terms of section 56(6) of the

45 Bhila v. The Master of the High Court, p. 5.

46 Ibid.
47 Ibid., p. 6.
48 Ibid., pp. 6, 7 and 8.

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Constitution, provided that they are meant to address circumstances of genuine
need. The legitimate government purpose would then immunise the affirmative
action measure against the charge that it offends the non-discrimination clause.

4.1.2 The Right to Be Heard

Section 81(1)(a) of the Constitution protects the child’s right to be heard as part of
the right to equal treatment before the law. This section explores the content of
section 81(1)(a) of the Zimbabwean Constitution and explains in some detail the
scope of the child’s right to be heard in all matters affecting them. In this part of the
chapter, particular focus is given to the key aspects of the child’s right to be heard.

4.1.2.1 The Duties to Ensure That the Child Expresses Views Freely and to Give
Due Weight to the Views of the Child

Participation rights recognise that children have perspectives of their own, that they
are at liberty to elect not to express the views they form and that their unique
vulnerability to adult or peer pressure may unduly influence their decision-making.49
The Constitution seeks to ensure that children do not become mouthpieces for
parroting the views of other people. The more grave the problem, the greater the
freedom (to choose whether to be involved) to be granted to the child. When the
child participates through an intermediary, the intermediary must ensure that the
child expresses her own opinion freely, has not been subjected to external pressure
and receives all, not partial or condensed, information to enable the child to make
an informed choice.50 The duty to ensure that the child expresses views freely
requires the decision-maker to inform the child of all available alternatives, the likely
decisions to be made, the possible consequences of each decision and the
conditions under which the child will express their own views.51
Listening to children speak is one thing, taking what they say seriously is another.
Children’s views should be accorded ‘due weight’, and this suggests going beyond
tokenistic ventures towards achieving full participation.52 Giving ‘due weight’ means
analysing the child’s views, giving them feedback on how their views have been
interpreted, informing them the extent to which their views have influenced the final
outcome and providing them with the opportunity to challenge the analysis of the
findings and to participate in follow-up processes, if any.53 Giving ‘due weight’
requires ‘real change’,54 not only to the way we envision children’s views but to the
weight we accord those views. However, it does not mean that the child’s preference

49 See L. Steinberg and E. Cauffman, ‘Maturity of Judgment in Adolescence: Psychological Factors in

Adolescent Decision-Making’, 20:3 Law and Human Behaviour (1996) p. 249.
50 R. A. Washak, ‘Payoffs and Pitfalls of Listening to Children’, 52:4 Family Relations (2003) p. 373, at

p. 375.
51 See CRC General Comment No. 12, para. 25.
52 R. Hart., Children’s Participation: From Tokenism to Citizenship, Innocenti Essays No. 4 (UNICEF

International Child Development Centre, Florence, Italy, 1992) pp. 9–10.

53 See CRC General Comment No. 12, para. 134.
54 See CRC General Comment No. 5, para. 12.

254
should be given systematic pre-eminence, but that their view will be considered in
light of the nature of the problem and the degree to which it represents the child’s
interests and the interests of others – parents and other members of the family for
instance. If the decision to be taken, for example inter-country adoption, has
imminent and heavy consequences on the child, the child’s views deserve
considerable attention.
Lastly, whether a child is competent enough to have their views given determinative
weight depends on the seriousness of the decision to be made and the risks
associated with it. As demonstrated above, respecting children’s evolving capacities
is not synonymous with extending absolute autonomy to children. Competence is
not an all or nothing concept in terms of which the subject either lacks it or possesses
it. It is task-specific, and there is no concrete stage at which the child can be regarded
as categorically capable of making all decisions and therefore free from parental
control. The capacities of the child and the nature of the decision to be made
influence the degree of autonomy to be given to the child in exercising his or her
rights.55

4.1.2.2 The Application of the Right to Be Heard in Domestic Courts

There have also been domestic developments in the area of child participation in
decision-making. In Hale v. Hale,56 the Court emphasised that it was important to
give the children concerned an opportunity to be heard before making a final
determination on whether the best interests of the child required a shift in the court-
sanctioned custody arrangement. Tsanga J, for the Court, made the following
remarks:

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 best for the child. Constitutionally, as of right,
children are no more at the margins and periphery of decisions affecting them. They effectively
have a right to be part of those decisions.57

According to the Court, section 81(1)(a) “effectively gives a ‘voice’ to children on

matters that concern them” and commendably incorporates into our legal system the
spirit of the equivalent provision of the CRC.58 Accordingly, the Constitution

55 As Kleinig once wrote, “a child is likely to be able to decide with the requisite rationality whether and
what games it will play, before it is able to decide whether and who to marry”. See J. Kleinig, ‘Mill,
Children and Rights’, 8:1 Educational Philosophy and Theory (1976) p. 1, at p. 7.
56 HH 271-14.
57 Ibid., pp. 8–9.
58 Ibid., p. 9.

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advances the notion of child participation and inclusion in decision-making
processes affecting children.59
The Court also observed that the best interests principle, which has traditionally been
the traditional criteria used by our courts in matters concerning children, has not only
been constitutionalised but also exists amidst certain rights extended to children by
the Constitution. More importantly, however, the Court emphasises that the best
interests principle cannot be interpreted in a vacuum but derives its meaning from
the rights set forth in the Constitution, including the right to be heard. To quote the
Court:

Thus the principle of the best interests of the child, said to be paramount in every matter
concerning the child under s 81(2) of the Constitution, is now also better placed to take its
specific character and meaning from the rights that are accorded children by our Constitution.
Pertaining to this case, it is their best interests that they be heard, especially for the older children
who are in boarding school and have an appreciation of the issue. Their views are necessary to
obtain an order for the court to make an informed decision that takes into account their
experiences with boarding school. My assumption here is that having already spent time at the
boarding school they are able to comprehend the issue at stake and exercise their right to be
heard on what they think is best for them. Given that participation has to be age appropriate, in
practice courts have often achieved participation through a judge or judicial officer speaking to
the children themselves or where it is not practical through child welfare professionals giving
their report. The youngest child Oscar may not be able to exercise this right due to his age, thus
a welfare report that is done in consultation with those at his nursery would fulfil the purpose.60

There are two vital points from this and other paragraphs in the Court’s judgment.
First, the Court emphasises that gone are the days when adults would decide what
is best for children without giving the very children an opportunity to be heard. At the
heart of this observation is a subtle claim that even if the best interests of the child
are viewed as a protective concept, then children cannot be better protected by
marginalising them when decisions to protect them are made. More likely, however,
the Court’s merging of child participation rights and the best interests principle
appears to be inspired by the indivisibility, independence and interrelatedness of
children’s rights – a move away from an understanding of children’s rights as discrete
silos towards a holistic perception of all the rights extended to children. This
argument about the Court’s approach to children’s rights is buttressed by Tsanga J’s
idea that all the rights entrenched in section 81(1)–(3), including the right to be heard,
provide the context against which the best interests principle ought to be interpreted.
The second vital point relates to the Court’s enunciation of the concept of the
evolving capacities of the child. Its observations that “participation has to be age
appropriate” and that “the youngest child may not be able to exercise this right due
to their age” formally import the concept of the evolving capacities of the child into
the Zimbabwean legal system. The evolving capacities concept justifies near-
autonomous decision-making by the child provided the child has competences to

59 Article 12(1) of the CRC, also cited in the judgment, provides that “a child who is capable of forming

his or her own views has the right to express those views freely in all matters affecting the child, the
views of that child being given due weight in accordance with the age and maturity of the child”.
60 Hale v. Hale, pp. 9–10, emphasis added.

256
make the decision in question. It recognises that children experience rapid growth in
their “physical, cognitive, social and emotional functioning”, pass through zones of
rational autonomy before attaining adulthood and vary in the ages at which they
become capable of making particular decisions.61

4.2 The Right to a Name and a Family Name

The right to a name is one of the most fundamental human rights and is important to
the realisation of children’s rights. The right to a name is primarily enforceable
against parents, and, to a limited extent, the state.62 A name is an important element
of an individual’s identity.63 Theoretically, the right could be enforced against parents
who either fail to name their children or take the necessary steps to facilitate
recognition and registration.64 The obligation to give a child a name and family name
lies with his/her parents or guardians. However, in order to give requisite effect to
the right to a name, the state has an obligation to regulate the attribution of names.
The right to a name is protected in section 81(1)(b) of the Constitution which states
that “[e]very child … has the right to be given a name and a family name”. The two
names play an important role in establishing an individual’s identity and, depending
on the applicable laws, in determining the child’s nationality or citizenship.
For all persons, including children, nationality is a right that is of fundamental
importance to their well-being and ability to lead a dignified life. States determine
which people are their nationals and which ones are not.65 The right to a name and
a family name acts as a gateway to acquiring nationality while nationality acts as an
enabling right without which it is often impossible to exercise many other rights.
Accordingly, denying children a particular name or nationality can have a significant
impact on all other child rights including their access to education, healthcare, free
movement and family life.

4.3 The Right to the Prompt Provision of a Birth Certificate

Section 81(1)(c) provides that every child has the right to the prompt provision of a
birth certificate provided that the child is either born in Zimbabwe or born outside the
country to Zimbabwean citizens by descent. Birth registration is widely regarded as
a gateway to the attainment of other fundamental rights because it facilitates access
to essential services such as education and health care.66 Children with no birth
certificates do not exist before the law, and are in danger of remaining on the margins
of society, or being shut out altogether. Children who legally exist (from an official

61 See CRC General Comment No. 4, paras. 1 and 7, and CRC General Comment No. 7, para. 17.
62 S. Woolman and M. Bishop, Constitutional Law of South Africa, vol. 3, 2nd edition (2014), p. 42–3.
63 I. Ziemele, ‘Article 7: The Right to Birth Registration Name and Nationality and the Right to Know and

Be Cared for by Parents’, in A. Alen et al. (eds.), A Commentary on the United Nations Convention on
the Rights of the Child (2007) para. 20.
64 Woolman and Bishop, supra note 62, p. 42-3.
65 See Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930.
66 J. Todres, ‘Birth Registration: An Essential First Step toward Ensuring the Right of All Children’, 10:3

Human Rights Brief (2003) pp. 32–35.

257
perspective) are less likely to be exploited or trafficked than those who do not.67 Birth
registration therefore diminishes the risk of the abduction or sale of or trafficking in
children.68 Without birth registration, domestic proof of identity may be difficult, if not
impossible, to obtain.69
Birth registration facilitates the early identification of vulnerable children such as
those with disabilities,70 thus allowing them to access state support and assistance
at the earliest possible level.71 Birth registration is also of particular importance in
redressing the inequalities experienced by indigenous children.72 Elsewhere, it has
been observed that birth registration is not only a record of fact, it also unlocks
essential civil and constitutional rights, both for the child and for their parents.73 Harm
to children can result from a deficient system of birth registration.
International law requires that registration takes place ‘immediately after birth’.74 A
state’s obligations in relation to birth registration include the duty to register the birth
of children born abroad to any of its nationals.75 Thus, birth registration is compulsory
in Zimbabwe.76 However, the Birth and Death Registration Act is fraught with a
number of provisions and omissions that make it a less comprehensive piece of
legislation. The Act does not make it a right for a child to be registered at birth. In
addition, the requirements for a guardian, a parent or a witness to register a child
does not take into consideration the socio-economic realities on the ground, such as
the fact that some children are double orphans and that they may not have
guardians. More so, few people who are non-relatives would want to be burdened
with registering such children.

4.4 The Right to Family or Parental Care or to Appropriate Care When

Removed from the Family Environment

4.4.1 The Right to Family or Parental Care

Section 81(1)(d) of the Constitution guarantees the right of every child “to family or
parental care”. It should be noted that parental care has been interpreted in the case
law not only to refer to natural parents, but also to adoptive parents, foster parents
and step-parents.77 In the case of SW v. F, the Court held that the right to parental
care was not a bar to adoption “where the care of the natural parents was lacking or

67 CRC General Comment No. 7, para. 36(h).

68 HRC General Comment No. 17, para. 7.
69 CRC General Comment No. 3, para. 32.
70 CRC General Comment No. 9, para. 56.
71 Todres, supra note 66, p. 35.
72 CRC General Comment No. 11, para. 41.
73 L. Schafer, Child Law in South Africa (2011) p. 118.
74 See Articles 6 of the African Charter and 7 and 8 of the CRC.
75 For example, Committee on the Rights of the Child, Concluding Observations of the Committee on

the Rights of the Child: The Philippines, CRC/C/15/ Add. 259 (2005), at paras. 36–37.
76 Section 10 of the Birth and Death Registration Act [Chapter 5:02].
77 SW v. F, 1997(1) SA 796 (O).

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inadequate”.78 At common law, a parent (or other person) who has the custody of a
minor child is entrusted with the care of the child’s person and the decision-making
power in respect of the child’s day-to-day life, upbringing and education.79 Similarly,
guardianship is widely construed to include custody, and embraces the care and
control of the minor’s person as well as the administration of their property and
business affairs. Where custody and guardianship are separated, the custodian
parent has the care and control of the minor’s person, while the guardian parent
administers the child’s property and business affairs (i.e. ‘guardianship’ in the
narrower sense).80
In the case of Jooste v. Botha,81 the Court considered, amongst other things, what
is included in a child’s right to family or parental or appropriate alternative care. The
Court stipulated that the family means a father, mother and child or it can mean the
extended family, which includes grandparents, aunts and uncles. The Court
interpreted the term ‘parental care’ to mean care supplied by a custodian parent. In
the case at hand, the three kinds of care were defined rigidly:

(a) family care is where the child is part of a family, whether nuclear or extended; (b) parental
care is where there is no family and only a single parent; (c) alternative care is where the child
is removed from the family environment.82 The Court must be incorrect in claiming that a single-
parent household is not a family or that two parents provide family care and not parental care.83

The child’s right to family or parental care is emphasised in other provisions of the
Constitution. At the national level, section 60(3) of the Constitution provides that
“[p]arents 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”. What immediately
emerges from this provision is that parents and families, ahead of all others, are the
default bearers of the responsibility to make decisions concerning the care, religion
and education of the child. There is an element of autonomy from state control which
attaches to this responsibility. Sections 60(3) and 81(1)(d) of the Constitution echo
both the presumption that children enjoy their rights better when supported by adult
members of the family and that states should rarely exercise coercive intervention in
matters concerning the child’s family life and parental care unless the parents act in
a manner that threatens the child’s rights to education, health care services, nutrition
and shelter.
At a deeper level, however, most of the provisions cited above portray the family as
a mini-state in which parents are entitled to exercise wide authority in making
decisions affecting children. This is most evident from provisions which state that

78 Ibid., at 799B-C.
79 H. R. Hahlo, South African Law of Husband and Wife, 5th edition (1985) p. 394.
80 See Uzoingwe and Another v. Immigration Department Principal Director and Another, HH 337-16

HC 499/16 [2016] ZWHHC 337.

81 2000 (2) SA 199 (T), 208D-E 2000 (2) BCLR 187 (T) (‘Jooste’).
82 Ibid., at 208D-G.
83 Woolman and Bishop, supra note 62, pp. 42-6

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states parties should ‘respect’ the rights and responsibilities of parents responsible
for guiding children seeking to exercise the enumerated rights.84 As a negative
concept, the duty ‘to respect’ fits in well with the traditional liberal view of the family
as a private institution. Generally, the duty to ‘respect’ implies that parents have wide
powers to determine what constitutes ‘appropriate child care’ and to provide for the
material needs of their children. Nonetheless, parental autonomy is theoretically
limited on two fronts: first, by the state’s duty to intervene (in the best interest of the
child) to protect abused or exploited children’s basic rights and, second, by the
evolving capacities of the child.

4.4.2 The Right to Appropriate Care When Removed from the Family Environment

Section 81(1)(d) of the Constitution enshrines the child’s right to “appropriate care
when removed from the family environment”. Under normal circumstances, children
should grow up under parental or family care, but they may be removed from the
family environment if the best interests of the child would be compromised by the
child’s continued residence at the family home. Removal from the family home
becomes a solution if it is shown that the child is suffering from neglect,
maltreatment, economic or sexual exploitation or abuse at the hands of the persons
in whose hands the child’s care has been entrusted.
In Mukundu v. Chigumadzi & Others,85 the Court had to decide whether it was
appropriate to grant full custody to the children’s maternal grandmother or whether
custody had to be accorded to the children’s biological father. The facts of the case
were that the maternal grandmother of the two children involved sought an order
granting her their custody and guardianship. The first respondent, the biological
father of the children, opposed the application despite the fact that he had not been
involved in their lives since his separation from their late mother in 2005. He lived in
the United Kingdom with his wife and child from a subsequent marriage. Uchena J
held that the first respondent’s conduct did not show that he had the best interests
of the children at heart and that the applicant had shown deep concern for her
daughter’s children by taking care of them and putting them back in school.86 The
Court narrated the first respondent’s neglect of his children in the following terms:

The disposition of a litigant is judged from his conduct as demonstrated by what he has done or
not done and not by what he promises to do in the future. The first respondent has in the past
neglected his children to the extent of their having to drop out of school until the applicant had
to seek SOS’s intervention. He neglected them and their mother to the extent of denying them
education, health care services, nutrition and shelter. He left them in that condition until the
applicant came to their rescue. He therefore has demonstrated his attitude towards his children.
He has contrary to the provisions of s 81 (1)(f) [of the Constitution] exposed them to lack of
education, shelter and nutrition. When they came back from his homestead in Murehwa they
were not going to school and had been starving, as their mother was sick and could no-longer
fend for them as the first respondent had abandoned them. The first respondent now opposes

84 For a detailed discussion of the state’s duty to respect the rights of parents, see CRC General

Comment No. 4, para 18.

85 (HC 7048/15) [2015] ZWHHC 818 (15 September 2015).
86 Ibid., p. 2.

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 his daughter’s chance to get sound education. He clearly does not have her best interest at
heart. The court as the upper guardian of all minors cannot be swayed by the whims of a parent
who has for years displayed that he does not care about the welfare of his children.87

Uchena J emphasised that in deciding whether to remove children from the care of
parents, the Court had to be guided by the best interests of the child as entrenched
in section 82(2) of the Constitution and regional child rights instruments.88 To this
end, the Court should not be detained by the feelings and protestations of the parties.
As upper guardian of minors, the Court has a duty to adequately protect the rights
of a child and “[i]n appropriate cases the court may have to protect the children from
harmful conduct by the child’s own biological parents”.89 Apart from recognising that
children sometimes need protection from harmful conduct by their biological parents,
the Court reiterated that the case did not arise from a contest between the litigants’
rights over minor children but from which person would better promote the best
interests of the child as a paramount consideration in all decisions concerning
children.

4.5 The Right to Be Protected from Exploitation, Child Labour, Maltreatment,

Neglect or Any Form of Abuse

4.5.1 Protection from Economic Exploitation

There are many obstacles to improving children’s protection from violence,

exploitation, neglect and abuse. The rights of the child appear to be the least
contentious of all human rights in the world, particularly as they pertain to protection
from violence, exploitation and abuse. Under the Constitution, children are protected
from economic and other forms of exploitation. Further, Zimbabwe’s Children’s Act90
contains the same prohibition in sections 10 and 10A and makes it a punishable
offence to use a child in begging or to intentionally absent them from school and
engage them in some income-generating work when the child is reasonably
expected to be in school. All this speaks to children’s rights to be protected from
exploitation, abuse and neglect.
The Children‘s Act prohibits child participation in hazardous economic activities. It
defines hazardous work in relation to a child or young person as any work that is
likely to interfere with their education, make them contact hazardous substances or
working in underground mines, exposure to electronically powered hand tools or
cutting tools, night shift jobs or exposure to extreme heat, cold or whole body
vibration. These multiple forms of economic exploitation are prohibited by the
Constitution and the Children’s Act. Therefore, it would be an offence for the state,
families and non-state actors to engage in activities that tend to suggest that the
child is being required to carry out work for the economic benefit of another.

87 Ibid.,p. 3.
88 Ibid.,p. 5.
89 Ibid. To this end, the Court relied on section 81(3) of the Constitution which provides that “[c]hildren

are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian”.
90 Chapter 5:06 of the Laws of Zimbabwe.

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4.5.2 Protection from Sexual Exploitation

The term sexual exploitation covers a multitude of situations or practices and a

comprehensive range of acts which fall within the broad offence of sexual
exploitation of children.91 Generally, the offence of sexual exploitation of a child is
committed when a person unlawfully and intentionally engages the services of a
child, with or without a child’s consent, for financial or other reward, favour or
compensation to either the child or a third person for purposes of engaging in a
sexual act with the child, irrespective of whether the sexual act is committed or not,92
or by committing a sexual act with the child.93 This definition casts the net as wide
as possible by including not only the actual commission of a particular sexual act
under certain circumstances as punishable conduct but also soliciting the services
of a child merely for purposes of engaging in a sexual act with the child. The
perpetrator or victim may either be male or female. In S v. Ndlovu,94 the Bulawayo
High Court commented on sexual exploitation of children in the following terms:

Sexual abuse of children is viewed in a very serious light. This type of conduct is very common
thus exposing children to untold trauma and incurable diseases. Contrary to the view held by
the learned trial magistrate, the Sexual Offences Act protects children equally be they girls or
boys. The definition of a young person in section 2 clearly states that this means a boy or girl
under the age of sixteen. Some of the old cases give the impression that abusers of boys should
be treated more leniently than abusers of girls. It is clear that in those days the abuse of boys
was not as prevalent as that of girls. In this day and age I do not find any legal basis for the
distinction. Sexual abuse of all children is prevalent and should be viewed in a very serious
light.

By protecting children from all forms of sexual exploitation, the Constitution imports
the country’s international legal obligations into the domestic legal system.
A few cases have applied the constitutional provisions on the sexual exploitation of
children to concrete factual situations. In S v. Peter Chigogo,95 Tsanga J stated that
children should be protected from abuse and offenders should not be given lenient
sentences. Writing in the context of sexual abuse, Tsanga emphasised that “[t]he
continued lenient attitude towards grown men who abuse young girls and then get
off lightly with their offence on the basis of ‘intended marriage’ of the complainant is
not in consonance with the spirit of the Constitution in discouraging the marriage of
girls below the age of 18”.96 Unfortunately, the trend of giving lenient sentences to
paedophiles appears to be a common practice in Zimbabwe. In S v. Banda, S v.
Chakamoga,97 both accused were married mature adults, more than 30 years old,
who had sexual intercourse with young girls aged 15 years, about half the accused
persons’ ages. They both impregnated the young girls. Both accused were charged

91 UNHCR, Abuse and Exploitation (2001) p. 10.

92 Section 17(1)(a) of the South African Sexual Offences Amendment Act.
93 Section 17(1)(b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of

2007.
94 HB-66-03, p. 3.
95 HH 943-15.
96 Ibid., p. 2.
97 HH 47-16.

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with contravening section 70 of the Criminal Law Code, having sexual intercourse
with a young person. Both were tried by the same magistrate, and sentenced to two
years imprisonment of which one year was suspended for five years on the usual
conditions for such cases, each remaining with one year effective imprisonment.
On review, the High Court lamented that the sentences handed down trivialised the
protective measures for young persons prescribed in our law and in the current
international framework for safeguarding young persons.98 The Court noted that
various provisions of the Constitution protected children from “economic and sexual
exploitation ... and from maltreatment, neglect or any form of abuse”.99 Charehwa J,
for the Court, observed that the best interests principle required courts to hand down
appropriate sentences that deter those preying on children to refrain from doing so
in order to give the maximum protection accorded to children by law. In the eyes of
the learned judge, courts should consider the message they are sending to the
general public when sentencing predatory adults who sexually exploit young persons
who are more than twice the age of the child. In the judge’s view, sentencing super
predatory paedophiles to limited periods of imprisonment tended to suggest that
were it not for section 70 of the Criminal Law Code, the sexual exploitation of children
would be perfectly acceptable in our society. 100

4.5.3 Protection from Child Labour

Section 81(1)(e) of the Constitution provides that children have a right to be protected
against economic exploitation and child labour. Section 10A of the Children’s Act
narrowly deals with this matter by prohibiting a parent or guardian from causing or
permitting their children to absent themselves from school in order to engage in
employment for gain, prevents any person from employing for gain a child when the
child might reasonably be expected to attend school and outlaws the employment of
children in hazardous occupations. This provision should be expanded to prohibit
child labour more generally in accordance with the constitutional provision and the
provisions of section 11 of the Labour Act.101
It should be noted that although there is no absolute prohibition on the employment
(broadly understood) of children, it is subject to important restrictions.102 Human
rights bodies and institutions have traditionally found child labour harmful and ‘child
work’ acceptable.103 The United Nations Children’s Fund makes a distinction
between ‘dangerous and exploitative work’ and ‘beneficial work’. Dangerous and
exploitative work is that which is carried out full-time and at too early an age.104 Child

98 Ibid., p. 1.
99 Sections 19(2)(c) and 81(1)(e) of the Constitution.
100 S v. Banda, S v. Chakamoga, p. 3.
101 Chapter 28:01 of the Laws of Zimbabwe.
102 L. Schafer, Child Law in South Africa Domestic and International Perspective (2011) p. 139.
103 See generally S. N. Mishra and S. Mishra, Tiny Hands in Unorganised Sector: Towards Elimination

of Child Labour (2004) p. 15.

104 T. Nhenga-Chakarisa, ‘What Does the Law Seek to Protect and From What? The Application of

International Law on Child Labour in an African Context’, 10 African Human Rights Law Journal (2010)
p. 180.

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labour exists where the working day is very long and working conditions are very
harsh. Child labour is carried out in unsafe working conditions, it is not sufficiently
paid for, it involves excessive responsibility, and it undermines the child’s dignity and
self-esteem.105 Beneficial work, on the other hand, is that which promotes or
stimulates a child’s physical, cognitive and social development without interfering
with scholastic or recreational activity or rest.106
An emphasis on the distinction between work and labour may be useful if one is
looking for a way to ban some forms of child labour.107 The work-labour distinction
also implies that all profit-motivated activities are harmful to child development and
all gratuitous activities are benign.108 It does not consider children in family situations
as exploited.109 This understanding of labour implies that it is paid employment,
whereas a great deal of children’s work is not remunerated for and is not
productive.110 Once something is classified as child labour, it is identified as bad and
therefore has to be abolished.111 It evokes an emotional reaction rather than a careful
consideration of the actual situation of the child.112
The idea of establishing minimum ages for many things reflects the general concern
that children should be specially protected.113 The Zimbabwean Constitution appears
to follow the minimum age approach. This approach implies that “a child who is below
the minimum ages stipulated by the Convention would be engaging in child labour if
they do the work prohibited for their age. These minimum age standards express an
ideal of childhood as a privileged phase of life, properly dedicated only to play and
schooling, and with an extended period of dependence during which economic
activity is discouraged or actually denied.”114 Whilst this is a positive development for
purposes of protecting children, it tends to negate children’s contribution to the
country’s social and economic development.

4.5.4 Protection from Maltreatment, Neglect or Any Form of Abuse

Section 81(1)(e) of the Constitution of Zimbabwe enshrines the child’s right to

protection from “maltreatment, neglect or any form of abuse”. Unfortunately, none of
these terms are defined in the Declaration of Rights nor has much judicial effort been
dedicated to unpacking the tinted lenses of the differences that exist between them.

105 Ibid. See also E. Ochaita et al., ‘Child Work and Labour in Spain: A First Approach’, 8 International
Journal of Children’s Rights (2000) p. 15, at p. 19 and UNICEF, Child Protection from Violence,
Exploitation and Abuse, available at <http://www.unicef.org/protection/index_childlabour.html>
(accessed 18 June 2008).
106 Nhenga-Chakarisa, supra note 104, p. 179.
107 J. C. Andvig, ‘Child Labour in Sub-Saharan Africa: An Exploration’, 2 Forum for Development Studies

(1998) p. 327, at p. 328.

108 Nhenga-Chakarisa, supra note 104, p. 181.
109 Ibid.
110 L. Abernethie, ‘Child Labour in Contemporary Society: Why Do We Care?’, 6 International Journal

of Children’s Rights (1998) p. 81, at p. 91.

111 Nhenga-Chakarisa, supra note 104, p. 181.
112 M. F. C. Bourdillon, Earning a Life: Working Children in Zimbabwe (2000) p. 9.
113 Nhenga-Chakarisa, supra note 104, p. 182.
114 Ibid., 184.

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Although there are many references to section 81(1)(e) in reported judgements, it
has mainly repeatedly been used by courts to elucidate the context in which
legislation was made, instead of as a primary weapon of attack against abusive
tendencies or treatment.115 In Yacoob J’s view, the scope of the obligation to protect
children from maltreatment, abuse, neglect and degradation normally includes
passing laws and creating enforcement mechanisms against degradation and
providing for the prevention of such occurrences.116 No matter how compelling these
observations may be, they do not solve the prevailing definitional challenges arising
from the phrase ‘maltreatment, neglect or any form of abuse’.
Neglect of a child can be defined as “failure in the exercise of parental responsibilities
to provide for the child’s basic physical, intellectual, emotional or social needs”.117
The Children’s Act provides that a parent, guardian or other person caring for a child
is guilty of an offence if that parent or other person assaults, ill-treats, neglects,
abandons or exposes him or allows, causes or procures them to be assaulted, ill-
treated and neglected.118 A person who is legally liable to maintain a child is guilty of
an offence if the person, while able to do so, fails to provide the child with adequate
food, clothing or lodging for them or failed to pay for the maintenance of a child or
person who has been placed in an institution,119 fails to provide or pay for dental,
medical or surgical aid or other effective remedial care necessary for their health or
well-being.120 The offences carry heavy penalties, with a fine not exceeding level ten
or imprisonment not exceeding five years.121 Neglect must be ‘deliberate’, thus
adding a mens rea requirement to the act that constitutes a violation of the child’s
right to freedom from any form of abuse or neglect.122
Child abuse, a generic term for various forms of ill-treatment of children and neglect
of the rights of children, involves any form of harm or ill-treatment deliberately
inflicted on a child. The term is amply defined in the South African Children’s Act to
mean:

• Assaulting a child or inflicting any other form of deliberate or calculated injury to a child;
• Sexual abuse of children or allowing the child to be sexually abused;
• Bullying by another child;
• Labour practices that exploit children; or
• Exposing or subjecting a child to behaviour that may harm the child psychologically or
emotionally.123

These elements cast the net of harmful practices that constitute ‘abuse’ very wide to
ensure that children are adequately protected from all forms of abuse. To ensure the
adequate protection of children from abuse, it may be important for certain

115 L. Schafer, Child Law in South Africa Domestic and International Perspectives (2011) p. 132.
116 Government of South Africa v. Grootboom, para. 78.
117 Woolman and Bishop, supra note 62, 47-25.
118 Section 7(1) of the Children’s Act [Chapter 5:06].
119 Section 7(2)(a) of the Children’s Act.
120 Section 7(2)(b) of the Children’s Act.
121 Section 7(5) of the Children’s Act. See also S v. Nyirenda, HB-86-03 and S v. Fikizolo, HB-131-04.
122 Wolman and Bishop, supra note 62, 47-25.
123 See section 1(1)(a)–(e) of the Children’s Act of South Africa Act 30 of 2005.

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professionals and the government to deliver services to child victims of physical or
mental abuse or neglect, assist children temporarily or permanently separated from
their parents or families, provide special support services to children with disabilities
and ensure the protection of children from economic exploitation, drug abuse and
sexual exploitation.124 This implies that there are overlaps between child abuse,
economic exploitation, sexual exploitation, maltreatment and other practices that are
harmful to children.
A causal link may exist between the use of corporal punishment on children, on the
one hand, and, on the other, physical or emotional abuse and the negative
development of children.125 Section 241 of the Criminal Law Code authorises
‘moderate corporal punishment’ of children by parents, guardians and school
teachers. Section 7 of the Children’s Act also confirms the right of parents and
guardians to ‘administer reasonable punishment’. Nonetheless, there are no bright
lines between ‘moderate corporal punishment’ and child abuse. This creates room
for parents or guardians to cross the line between acceptable corporal punishment
and child abuse. If a parent or guardian unreasonably assaults his or her child, he or
she will be prosecuted under the Criminal Law Code for murder or culpable homicide
if the child dies or assault if the child does not die.

4.6 Children’s Socio-Economic Rights

Socio-economic rights are fundamental rights that protect the human dignity of
individuals by way of securing and protecting the social, economic and cultural
welfare and interests of human beings.126 Accordingly, Zimbabwe is bound to ensure
that its citizens enjoy the full complement of socio-economic rights, thereby further
providing for domestic remedies for violations thereof.127 Socio-economic rights are
therefore at the core of the achievement of the constitutional objective set out under
section 8 of the Constitution which is to establish “a sustainable, just and democratic
society in which people enjoy prosperous, happy and fulfilling lives”. This section
examines the protection of children’s socio-economic rights under the current
Constitution.
The current Constitution responds appropriately to the historical anomaly of
neglecting socio-economic rights.128 Children’s socio-economic rights are protected
at two possibly three levels under the prevailing constitutional framework. First, they

124 See, for example, the social welfare programmes described in the South African Department of
Social Development’s Annual Report for 2007/08, presented to the Portfolio Committee on Social
Development, November 2008, at pp. 12–24.
125 A. Smith et al., The Discipline and Guidance of Children: A Summary of Research, 2004, pp. 15–

17. See also Global Initiative to End All Corporal Punishment of Children, Ending Legalised Violence
Against Children: Global Report 2008, Association for the Protection of All Children, 2008, pp. 7–10.
126 J. Mavedzenge and D. Coltart, A Constitutional Law Guide Towards Understanding Zimbabwe’s

Fundamental Socio-Economic Human Rights (2014) p. 32.

127 N. Ndlovu, Protection of Socio-Economic Rights in Zimbabwe. A Critical Assessment of the

Domestic Framework under the 2013 Constitution of Zimbabwe (2016) p. 7.

128 Ibid. See also Chapter 4 of the 2013 Constitution which contains the Declaration Rights that

entrenches, among others, socio-economic rights as justifiable rights.

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are provided for as part of the socio-economic rights that are conferred on ‘everyone’,
including children. Accordingly, the rights to an environment that is not harmful to
every person’s health or well-being,129 to freedom from eviction,130 to basic state-
funded education,131 to access to health care services,132 to sufficient food and to
safe, clean and potable water133 belong to everyone and can be vindicated on behalf
of children. At this level, the enjoyment of most of the socio-economic rights is
subject to progressive realisation within the state’s available resources.
Secondly, children’s socio-economic are protected as part of the rights that are only
extended to persons under the age of 18 years. Section 81(1)(f) of the Constitution
provides that “[e]very child has the right to education, health care services, nutrition
and shelter”. At this level, the enjoyment by children of socio-economic rights is not,
theoretically at least, subject to progressive realisation within available resources.
Third, children’s socio-economic rights are protected as part of the national
objectives stipulated in section 19(1)–(3) of the Constitution. The legal status of
national objectives remains questionable because they are not part of the justiciable
Declaration of Rights entrenching directly enforceable entitlements. Nonetheless,
the Constitution provides that courts must pay due regard to the national objectives
when interpreting the rights protected in the Declaration of Rights.134
As has been shown above, the Constitution is not short of provisions protecting
children’s socio-economic rights. However, the degree to which children actually
enjoy the socio-economic rights stipulated in the Constitution remains a subject of
contestation. The prevalence of school drop outs and child-headed households, the
number of children dying from treatable diseases, the number of children working or
living in the streets, the plight of orphans, children with disabilities and other
vulnerable groups of children and the huge number of children who end up resorting
to marriage as a means to escape poverty and marginalisation tend to suggest that
large scale violations of children’s rights are still taking place. In addition, thousands
of homes have been demolished in Zimbabwe’s towns without the authorities
investigating the manner and extent to which these demolitions negatively affect
children’s access to education, food and water, health care services and many other
socio-economic rights.
More recently, the courts clarified most of the outstanding constitutional issues
relating to children’s socio-economic rights. In Zimbabwe Homeless People’s
Federation and Others v. Minister of Local Government and National Housing and
Others,135 the Supreme Court of Zimbabwe had the opportunity to interpret and apply
the child’s right to shelter as protected in section 81 of the Constitution. To begin
with, the Court observed that it is immediately apparent that the right to shelter
imposes on the state the obligation to avail access to adequate shelter progressively

129 Section 73(1) of the Constitution.

130 Section 74 of the Constitution.
131 Section 75(1) of the Constitution.
132 Section 76(1) of the Constitution.
133 Section 77 of the Constitution.
134 See sections 8(2) and 46(1)(d) of the Constitution.
135 SC 94/2020.

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within the limits of the resources available to it.136 Drawing inspiration from
Government of the Republic of South Africa v. Grootboom,137 the Court emphasised
that although socio-economic rights should be realised progressively within available
resources, the state remains bound to move as expeditiously and effectively as
possible towards the goal of full realisation of these right, with full use of the
maximum resources available.138
More importantly, however, the Court emphasised that the state’s obligation to
provide shelter to children is not contingent upon the absence of parental care or
other appropriate care under section 81(1)(d) of the Constitution. The obligation of
the state in this respect is not negated or diluted by the primary duty of care ordinarily
imposed upon parents.139 However, the Court did concede that under normal
circumstances, where children are living with their parents, the parental duty of care
proportionately reduces the state’s correlative child care obligations. However,
where the parents themselves are financially or otherwise incapacitated from fulfilling
their parental obligations, it then becomes incumbent upon the state to intervene and
perform its own obligation to ensure that the children’s welfare is adequately
addressed and safeguarded.140 In Patel J’s words, “the primary duty of care reposed
with parents in respect of their own children does not operate to absolutely absolve
the State of its underlying obligation of care towards those children”.141 These
findings are groundbreaking in the sense that they portray ‘parental’ care as a joint
responsibility between parents and the state, thereby ensuring that even children
who live with their parents get additional support in order to have access to the goods
and services needed for a minimally decent life.

4.7 The Rights Not to Be Recruited into a Militia Force or to Take Part in
Armed Conflict or Hostilities

Section 81(1)(g) of the Constitution enshrines every child’s right not to be recruited
into a militia force or to take part in armed conflict. This right has two components:
first, the right not to be recruited into a private or dissident armed group and, second,
the right not to take part in armed conflict or hostilities. The protection of these twin
rights follows gradual legal developments at the international and regional levels,
although it is arguable that our Constitution contains refined versions of these rights.
Unlike international human rights, the Constitution protects all children (that is
persons below the age of 18 years) and does not confine the application of the
relevant rights persons below the age of 15 years. Accordingly, children who are
captured and fall within the hands of the enemy while unlawfully taking part in
hostilities are entitled to special protection from any further attack and victimisation
by the opposing forces.

136 Ibid.,p. 11.

137 2001 (1) SA 46 (CC) para 45.
138 Zimbabwe Homeless People’s Federation and Others v. Minister of Local Government, p. 11.
139 Ibid, p. 23.
140 Ibid.
141 Ibid.

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In the Zimbabwean context, there is need to impose an absolute ban on the
recruitment of children of whatever age into the national armed forces, especially
given the realities of human rights abuse suffered by children in armed forces where
they “risk being killed, injured or permanently disabled”142 and are “sexually
assaulted, raped, forced to become wives of commanders, and … exposed to drugs
and forced labour”.143 All children deserve maximum protection from the negative
effects of participation in armed forces. Therefore, it should not matter whether the
armed forces that have recruited them belong to the state or militia forces. The
Constitution offers better protection in that it requires the state to ensure that children
do not participate in hostilities, and it does not matter whether the participation is
direct or indirect. The law should protect all children under the age of 18 years “from
any involvement in hostilities – direct or indirect – and any recruitment into armed
forces, whether compulsory or involuntary”.144 If interpreted progressively and in line
with the principle of the best interests of the child, the Constitution patently gives a
higher standard of protection to prevent child participation in armed conflict.

4.8 The Right Not to Be Compelled to Take Part in Any Political Activity

The child’s right not to be compelled to take part in any political activity is primarily
couched in negative terms and refers to all political activities, whether campaigning
for or joining or forming a party. This suggests that the general expectation is that no
child should be required to directly or indirectly take part in political activities as they
have a choice on whether or not to do so. The fact that children have to make an
election on whether or not they should participate in politics implies that the relevant
provisions of the Constitution only address the situation of those children with the
capacity for rational action. In other words, only adolescents who are sufficiently
mature to be rationally autonomous have the right to take part in political activities.
The very young or those who lack the capacity to understand the benefits, risks and
social implications of involvement in politics may not be required to take part in
political activities.

4.9 The Right Not to Be Detained Except as a Measure of Last Resort and
Conditions Governing Detention of Child Offenders

This section investigates the scope of children’s rights in the criminal justice context
as provided for in the Constitution. The focus is on the child offender’s right not to be
detained except as a means of last resort. In essence, the general rule is that no
child offender should be lightly caged. However, the law foresees circumstances
when the demands of justice and fairness may call for the imprisonment of the child
offender. When it becomes necessary to cage a child for committing a crime, the
court should ensure that the conditions of detention comply with at least three

142 UNICEF, Machel Study 10 Year Strategic Review: Children and Conflict in a Changing World, 2009,
p. 151.
143 B. D. Mezmur, Children’s Rights in Africa: A Legal Perspective (2008) p. 200.
144 R. Hodgkin and P. Newell, Implementation Handbook for the Convention on the Rights of the Child,

Geneva, UNICEF, 2007, pp. 9 and 660.

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explicitly stipulated constitutional requirements or standards. These requirements
include the idea that the child offender should be detained for the shortest
appropriate period, the child offender should be kept separately from adult offenders
and the child offender should treated in a manner and kept in conditions that take
account of the child’s age. These requirements, or rather rights, are discussed
immediately after an examination of what the phrase ‘detention as a last resort’
means.

4.9.1 The Right Not to Be Detained Except as a Measure of Last Resort

At international law, deprivation of the liberty of youth offenders is permitted as a

disposition of last resort and for the minimum necessary period and should be limited
to exceptional cases.145 In the same measure, section 81(1)(i) of the Constitution
provides for the child’s right not to be detained except as a means of last resort and,
if detained, to be detained for the shortest appropriate period of time. It is vital to
note that the Constitution does not prohibit the imprisonment of young offenders but
requires that the courts consider other alternatives before imposing custodial
sentences. Accordingly, the fact that a sentence of imprisonment should be imposed
as a means of last resort implies that sometimes it is necessary to impose custodial
sentences on youth offenders. The words ‘as a measure of last resort’ mean that
juvenile offenders should be deprived of their liberty only if they have committed
serious crimes or persist to commit serious offences.146 It also implies that
deprivation of liberty can only be imposed in cases where there is ‘no other
appropriate response’ to the child’s delinquent behaviour.147
In S v. C (A Juvenile),148 the Harare High Court correctly observed, in the context of
rape trials, that generally speaking juveniles should not be sent to prison, but in
cases where there are aggravating features – such as multiple counts, transmission
of sexually transmitted diseases to the victim, serious psychological and or physical
trauma, a high degree of violence or force used during the rape and the use of a
weapon during the rape – effective imprisonment might be called for especially if the
juvenile offender is between 16 and 18 years.149 However, the Court was at pains to
emphasise that the periods of imprisonment should vary according to the age and
the moral blameworthiness of the offender.150
Even before the adoption of the current Constitution in 2013, there were indications
that local courts were slowly moving away from imprisonment as a sentence for
youth offenders who committed minor crimes. In S v. CM (A Juvenile) and Another,151
the two cases (dealt with simultaneously) involved two youth offenders who had been
convicted of theft after diverting different sums of money towards their own use

145 See Rule 2 of the United Nations Rules for the Protection of Juveniles Deprived of Liberty 1990.
146 See Rule 17.1(c) of the Beijing Rules.
147 Ibid.
148 HH 718-14.
149 Ibid., p. 9.
150 Ibid.
151 Judgment No. 67/2003, Case No. HC 1546/2003 and Case No. HC 1547/2003.

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without their employers’ consent. In S v. CM, a 16 year old had been sentenced to
18 months imprisonment with ten months suspended on condition of restitution, and
in S v. ZD (referred to above as another), a 17 year old had been sentenced to 24
months imprisonment with 18 months suspended on condition of restitution.
On review, Ndou J, for the Bulawayo High Court, held that in both cases the
sentences were not individualised by carrying out meaningful pre-sentence
investigations.152 Given that the accused persons were both juvenile first offenders,
the trial magistrate should have considered non-custodial sentences.153 In the
circumstances, the trial court appeared to have “paid lip service” to the well-
established “principle that imprisonment is a severe and rigorous form of punishment
which should be imposed only as a last resort and where no other form of
punishment will do”.154 Given that the ultimate effective sentence was below 24
months, the Court should have sentenced both accused persons to community
service.155
More importantly, the Court reiterated that there is no room for instinctive sentencing
in our jurisdiction, and the sentence must fit the crime and the offender, be fair to
both the state and the accused person and be blended with an acceptable measure
of mercy.156 Ultimately, the Court substantially reduced the imposed sentences and
ordered that they be immediately released from prison. In S v. TM (A Juvenile),157 a
16 year old was convicted of house breaking with intent to steal and theft, and
escaping from lawful custody in contravention of the Criminal Procedure and
Evidence Act.158 The accused was convicted of both counts and sentenced to
undergo prison terms of seven months and five months respectively. Of the total 12
months imprisonment, five months were suspended on condition of good behaviour.
Ndou J stressed that he was “perturbed by the imprisonment of the 16 year old
juvenile first offender. It is trite that juveniles should not be sentenced to custodial
sentences unless there is absolutely no alternative.”159 He then reduced the
sentences for both counts to three months imprisonment and ruled that since the
juvenile had served the sentences, the juvenile was entitled to immediate release.160
As such, every sentencing court dealing with youth offenders ought to be given
discretion in sentencing them in order to give effect to the conditions of international
law and the Constitution pertaining to the individualisation of sentences and the need

152 Ibid., p. 2.
153 Ibid.
154 Ibid. In this respect, the Court referred to S v. Kashiri, HH-174-94, S v. Gumbo, 1995(1) ZLR 163

and S v. Sikhunyane, 1994(1) SACR (TL).

155 For this principle, see the cases of S v. Sithole, HH-50-95 and S v. Santana, HH-110-94.
156 S v. CM (A Juvenile) and Another, p. 3. See also S v. Sparks and Another, 1972 (3) SA 396 (A).
157 Judgment No. HB 65/2003, Case No. HC 1472/2003 and CRB ZVI 313/02.
158 Chapter 9:07 of the Laws of Zimbabwe.
159 S v. TM (A Juvenile), p. 3. The Court was following S v. Ncube and Another, HB-9-87, p. 1, where

Blackie J, for the same Court, held that “[o]ur courts have repeatedly said that teenage minors should
not be sentenced to terms of imprisonment unless there is absolutely no alternative”. See also S v.
Mbewe, HH-323-87, p. 2, where Sansole J held that “it is the policy of these courts to do as much as is
reasonably practical to keep juvenile first offenders out of prison”.
160 S v. TM (A Juvenile), p. 4.

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for proportionality to be applied to the youth offender, the offence they would have
committed and the circumstances surrounding the commission of the offence. This
means that the court should start with ‘a clean slate’ when sentencing a child
offender and not be required to impose the prescribed minimum sentence. Minimum
sentences are inconsistent with the constitutional principle of ‘detention as a last
resort’, especially where they are mandatory. This is precisely because the twin
concepts of detention as a last resort and best interests of the child raise serious
questions about the appropriateness of custodial sentences for child offenders.

4.9.2 Where Imprisonment Is Strictly Necessary, It Should Be for the ‘Shortest

Appropriate Period’ of Time

The Constitution does not only regulate the circumstances under which incarceration
as a sentencing option should be pursued but also regulates the nature and duration
of the incarceration. Section 81(1)(i) requires particular focus to be placed on the
youth offender and their needs rather than on the rigid starting point of the statutorily
ordained periods of imprisonment. The appropriateness of a particular custodial
sentence for a particular offender depends not only upon society’s interests as
embodied in the length of the incarceration vis-á-vis the offence, the offender and
the circumstances in which the offence was committed but also on the goals the
sentencing judge wishes to achieve by imposing a particular sentence. The
Constitution prescribes that when dealing with child offenders, the overriding goal
should not be the infliction of pain and punishment on the child but their rehabilitation
and reintegration into society.
Section 81(1)(i) of the Constitution envisages that the sentence imposed on a child
offender should reflect the desirability of promoting the child’s reintegration and
assuming a constructive role in society. That is why the Constitution places
restrictions on the circumstances under and period for which children can be
deprived of their liberty.161 However, these objectives should always be counter-
balanced with public safety concerns and the enduring value of proportionality.
Clearly, there are circumstances in which the juvenile offender must at least be
committed to a custodial institution (jail for instance), and what is left for discussion
is the appropriate duration of custody. In cases of pre-meditated violent murder, for
instance, what usually matters is not whether the child has been jailed ‘as a last
resort’ but whether the duration of incarceration is the ‘shortest appropriate’ one for
the crime. The central word in the relevant constitutional provisions seems to be
‘shortest appropriate’ because it emphasises not only the proportionality but also the
suitability of a particular sentence in the circumstances.162 In the case of juveniles,
‘appropriate’ should mean that the applicable law should preserve judicial discretion

161 Cf. section 81(1)((i)(i) with Article 37(b) of the CRC and Rule 17(b) of the United Nations Standard
Minimum Rules for the Administration of Justice (The Beijing Rules), adopted by General Assembly
Resolution 40/33 of 29 November 1985.
162 Rule 17.1(a) of the Beijing Rules states that the “reaction taken shall always be in proportion not

only to the circumstances and gravity of the offence but also to the circumstances and needs of the
juvenile as well as the needs of society”.

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to justify especially downward departures from statutorily prescribed sentences in
light of children’s psychological immaturity and need for reintegration.163

There are indications that judges are prepared to review harsh sentences imposed
on young offenders and to ensure that a convicted child offender is incarcerated for
the shortest appropriate period of time. In S v. Mtetwa,164 the accused, aged 17
years, was convicted of eight counts of unlawful entry into premises and eight counts
of theft. For purposes of sentencing, the counts for both unlawful entry and those for
theft were paired alongside into eight counts. The accused was sentenced to an
effective nine years in prison. On review, the Harare High Court admitted that the
Court a quo was indeed faced with an unrelenting offender who had the propensity
to commit crimes. Tsanga J, for the Court, observed that while the convictions were
proper, the sentence induced a profound sense of shock for a young offender.165
Drawing inspiration from the Constitution, the Court held as follows:

The sentence appears to be clearly dictated by the need to protect the public from a perceived
delinquent and incorrigible young criminal offender. Yet the risks of incarcerating such a young
offender over a lengthy period of time should not be so easily sacrificed at the altar of expediency
as our courts have always emphasised. Our Constitution adopts the principle that juveniles
should be detained for the shortest possible time and only as a last resort – an obligation that is
found in international law as exemplified by article 37 (b) of the [CRC] to which we are a party.
Section 81(h)(i) of the Constitution … provides that a person under 18 has the right “not to be
detained except as a measure of last resort”. Also, if detained he or she has the right to be
detained for the shortest appropriate period. Giving a 17 year old an effective 9 year sentence
runs contrary to the letter and spirit of this Constitutional imperative when it is considered that
he had not committed any violent offences such as robbery, murder, or rape. From the point of
view of children’s rights custodial punishment is regarded as criminally damaging for children
due to the criminogenic influences of prison. The Constitution also places emphasis on the best
interests of the child being paramount at all times in matters involving children (emphasis
added).166

Tsanga J thought, rightly so, that with a nine year sentence the child offender would
spend a substantial part of his youthful life in prison. Accordingly, the lengthy prison
term meant that the child had been sentenced as an adult offender and lacked
justification, especially in light of the child offender’s home background (there were
indications from the probation officer’s report that family ties and lack of proper
supervision might have predisposed the accused to anti-social behaviour).167 Tsanga
J insisted that “[r]ather than rushing to impose adult punishment in the form of a
lengthy prison sentence that may merely accentuate his path to becoming a
hardened criminal, it seems to me at 17, he could have been given a chance by
being referred to an appropriate juvenile institution for rehabilitation”.168 In addition,

163 A. Moyo, ‘Youth, Competence and Punishment: Reflections on South Africa’s Minimum Sentencing

Regime for Youth Offenders’, 26:1 SA Public Law (2011) p. 229, at pp. 240–241.
164 HH 112-15.
165 Ibid., p. 2.
166 Ibid., pp. 2–3. See section 81(2) of the Constitution. Clearly the magistrate did not fully take into

account theses Constitutional provisions which emphasise the duty to respect and protect children’s
rights in dealing with children under the age of 18
167 Ibid., pp. 3 and 4.
168 Ibid., p. 4.

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the learned judge held that a prison sentence of nine years effectively removes the
accused from society by locking him up and throwing away the keys for a very long
time.
Ultimately, the Court sentenced the accused to three years imprisonment for all
counts, of which one year was suspended for five years on condition that the
accused did not during that time commit any offence involving unlawful entry for
which he is sentenced to a term of imprisonment without the option of a fine.169
Imprisonment for the shortest appropriate time requires sentencing courts to ensure
that the child does not unnecessarily spend a good ‘chunk’ of their time serving
prison terms. Although a strictly punitive approach to youth crime is undoubtedly
outlawed by the Constitution, these instruments do not necessarily bind courts to
sacrifice proportionality and public safety on the altar of reintegration, rehabilitation
and restoration. If the sentences that are ordained by the sentencing statute range
from a very short to a very long period of imprisonment, the Constitution requires the
sentencing judge to impose the shortest custodial period possible on the child
offender.

4.9.3 The Right to Be Kept Separately from Detained Persons over the Age of 18
Years

International instruments provide for the right of every accused juvenile person to be
separated from adults during pre-trial and post-conviction detention.170 In line with
international human rights instruments and standards, section 81(1)(i) of the
Constitution also provides for the child’s right to be kept separately from detained
persons over the age of 18 years. This requirement is the basic floor, and the state
is required to provide for separate custodial institutions for children and adults. More
importantly, however, the separation of adult and youth offenders serves as a
mandatory precondition for ensuring that youth offenders are later afforded treatment
that takes their age and immaturity into account. When carrying out human rights
reporting, states parties have the obligation to pay the necessary attention to this
mandatory standard and to stipulate what measures have been taken to separate
juvenile offenders from adult offenders.171
The principle that young offenders deprived of liberty should be separated from
adults implies that such offenders should not be placed in an adult prison or other
facility for adults. As the Committee on the Rights of the Child would have it, “[t]here
is abundant evidence that the placement of children in adult prisons or jails
compromises their basic safety, well-being, and their future ability to remain free of
crime and to reintegrate … States parties should establish separate facilities for
children deprived of their liberty, which include distinct, child-centred staff, personnel,
policies and practices.”172 Section 63(2)(c) of the Prisons Act also stipulates youth
offenders as a group of prisoners that should be kept separate from other categories

169 Ibid., p. 5.
170 See Articles 37(c) of the CRC and 10(2)(b) of the ICCPR.
171 HRC General Comment No. 21, para. 13.
172 CRC General Comment No. 10, para. 85.

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of offenders. There is sufficient evidence demonstrating that if child offenders are
detained in the same facilities with their adult counterparts, the relevant places of
institutional confinement serve as schools for crime, degrade young offenders’
amenability to treatment and irreversibly psychologically damage innocent children.

4.9.4 The Right to Be Treated in a Manner and Kept in Conditions That Take Account
of the Child’s Age

If a child offender is committed to a custodial institution for any offence, they retain
their right to be treated in a manner and kept in conditions that take into account the
child’s age. From the outset, the Constitution makes it clear that it would be
unacceptable to keep child offenders in prison conditions that are similar to those
under which adult offenders are kept.173 The right to be treated in a manner and kept
in conditions that take into account a child offender’s age is a necessary result of the
principle that children should be kept in separate institutions and not be mixed up
with adult prisoners. The segregation of young offenders from adult offenders would
not serve any purpose if the treatment accorded to them (young offenders) was not
appropriate to their age and legal status with regards to conditions of detention. The
right to be treated in a manner and kept in conditions that take account of the child
has been partly interpreted to mean that youth offenders should have shorter
working hours and have constant contact with the outside world, particularly
relatives, with the aim of furthering their reformation and rehabilitation.174
International and regional instruments do not explicitly state the sort of treatment to
be afforded to juvenile offenders of any particular age, but simply declare that such
treatment should take the child’s age into account.175 This is a necessary flexibility
device that allows states parties to accord very young offenders – especially those
who are just a few years above the minimum age of criminal responsibility –
treatment that resembles the kind of treatment they would be accorded in a normal
family environment. The Zimbabwean Constitution also follows this route and
reiterates the legal content enshrined in international instruments. The sort of
treatment to be afforded to juvenile offenders of different ages “is to be determined
by each State party in the light of relevant social, cultural and other conditions”.176 All
persons under the age of 18 should be treated as juveniles, at least in matters
relating to criminal justice and all forms of deprivation of liberty.
Mere separation of youth offenders from adult offenders does not in itself guarantee
rehabilitation and is not sufficient to ensure that the child is prepared for eventual re-
integration into the community. The treatment to which young offenders are
subjected should be different from the treatment to which adult offenders are
subjected. The conditions of confinement and the manner in which the child is treated
should be age-appropriate, i.e. it should take into account not only the vulnerability
and fragility of young offenders of different ages but also their amenability to

173 See Articles 37(c) of the CRC and 10(3) of the ICCPR.
174 HRC General Comment No. 21, para. 13.
175 See Articles 37(c) of the CRC and 10(3) of the ICCPR.
176 HRC General Comment No. 21, para. 13.

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treatment, rehabilitation and re-integration into the community. Juveniles deprived of
liberty should not be subjected to any hardship or constraint other than that resulting
from the deprivation of liberty and should be kept in conditions that improve their
readiness to reform and amenability to ‘treatment’.

4.10 The Right to Have One’s Best Interests Considered as Paramount in

Every Matter Concerning the Child

The principle of best interests of the child is one of the four pillars of children’s rights
under international law. The Zimbabwean Constitution provides that “[a] child’s best
interests are paramount in every matter concerning the child”.177 What this
exhortation means exactly remains a subject of continuous debate in many
jurisdictions. Our legal system, like many others, elevates the best interests of the
child to the status of a foundational principle of children’s rights. This is demonstrated
by the fact that decision-makers are required to promote not the overall but the ‘best’
interests of the child. At the practical level, the best interests principle applies to a
broad range of judicial, administrative, legislative, policy and other measures that
have a bearing on children’s lives.178 It also applies to family proceedings such as
divorce, care and contact, deportation, education, health care, budgeting and many
more.179
Arguably, the principle is related to the interest theory of rights as it is premised on
the notion that children have interests that are so important that it will be wrong for
the state to deny them access to goods and services which promote the realisation
of these interests.180 Raz observes that “a law creates a right if it is based on and
expresses the view that someone has an interest which is sufficient ground for
holding another to be subject to a duty”, and that for a legal rule to confer a right, it
should be motivated by the fact that “the right holder’s interest should be protected
by the imposition of duties on others”.181 Thus, an individual has a right if his or her
interest is a ground for having rules which require others to behave in specific ways
in relation to these rules.
Both international and domestic law revolve around the philosophy that the best
interests of the child, not those of parents or caregivers, is the leading factor to be
considered when decisions affecting the child are made. According to the Committee
on the Rights of the Child, the phrase ‘primary consideration’ implies “that the child’s

177 Section 81(2) of the Constitution.

178 See Article 3(1) of the CRC, CRC General Comment No. 7, para. 13 and CRC General Comment
No. 5, paras. 12 and 45–47.
179 See, for instance, Committee on the Rights of the Child, Concluding Observations of the Committee

on the Rights of the Child: United Kingdom, CRC/C/15/Add.34 (1995), para. 11 and Concluding
Observations of the Committee on the Rights of the Child: Togo, CRC/C/15/Add.83 (1997), paras. 34
and 50.
180 See N. MacCormick, ‘Children’s Rights: A Test Case for Theories of Right’, 62 Archiv fur Rechts-

und Sozialphilosophie (1976) p. 305, at p. 311; S. Human, ‘The Theory of Children’s Rights’, in T.
Boezaart (ed.), Child Law in South Africa (2009) p. 243, at p. 249; and J. Raz, ‘Legal Rights’, 4:1 Oxford
Journal of Legal Studies (1984) p. 1, at pp. 13–14.
181 Raz, ibid.

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best interests may not be considered on the same level as all other considerations.
This strong position is justified by the special situation of the child: dependency,
maturity, legal status and, often, voicelessness.”182 These characteristics revolve
around the vulnerability of the child and underline the importance of extending
protection to them.
Evaluating what is ‘best’ for the child is a difficult task and involves the consideration
of many competing factors. Some of the relevant factors include the child’s physical,
emotional, social and educational needs, age, sex, relationship with parents and
caregivers; their family and social background; the child’s identity (sex, sexual
orientation, national origin, religion and beliefs, cultural identity and personality);183
the importance of stability in the child’s upbringing; the need to preserve the family
environment and to maintain family relations; the views and attitude of immediate
family members; whether the decision to be made promotes the care, protection and
safety of the child; the gravity of the child’s vulnerability; the impact of a particular
decision on the life, survival and development of the child; and the child’s views,
understanding and sense of direction.184 Further, the interests of other children,
parents and the state also play an important role in determining what is in the best
interests of a particular child. Which factors are to be considered and the weight to
be attached to each of them will depend on the circumstances of each case.185
Nonetheless, the fact that the best interests principle is a ‘primary’ consideration
does not mean that it surpasses all other interests and factors. The adjective
‘primary’ simply means that when making decisions affecting children, persons and
institutions should consider the effect such decisions will have on children. During
the drafting of the CRC, it was emphasised that there are situations in which the
competing interests of, among other things, “justice and society at large, should be
of at least equal, if not greater, importance than the interests of the child”.186 Against
this background, it has been suggested that “the child’s best interests should be the
primary consideration in matters directly affecting children and a primary
consideration in matters in which children are affected only indirectly or in which
others are also affected directly”.187 This approach recognises that the best interests
principle should not be regarded as an overriding factor in every case as other parties
involved may have equal or superior interests in certain contexts. Nonetheless, all
actions affecting children should give high priority and greater weight to the best
interests of the child.188
The best interests principle performs different functions. The first function, discussed
by Parker, is that in all matters not regulated by positive rights in international or

182 See CRC General Comment No. 14, para. 37.

183 See CRC General Comment No. 6, para. 20.
184 CRC General comment No. 15, para. 12 and CRC General Comment No. 14, paras. 52–79.
185 See CRC General Comment No. 14, para. 49.
186 See UNCHR, Technical Review of the Text of the Draft Convention on the Rights of the Child,

E/CN.4/1989/WG.1/CRP.1, 1989, p. 14.

187 D. Chirwa, ‘Children’s Rights’, in D. Chirwa, Human Rights under the Malawian Constitution (2011)

p. 193, at p. 201.
188 See CRC General Comment No. 14, paras. 39–40.

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domestic instruments, the best interest standard “will be the basis for evaluating the
laws and practices of States Parties”.189 Second, the principle may be used to justify,
support or clarify a certain approach to matters arising under provisions protecting
children’s rights. Thus, the best interests principle is not just one of the factors to be
considered when implementing children’s rights but also an aid to meaning
construction and interpretation. In this way, section 81(2) of the Constitution should
not be seen as an attempt to create specific obligations but instead to prescribe a
general principle that should inform decision-making in connection with all actions
concerning children. Third, the best interests principle (as a mediatory concept) can
“assist in resolving conflicts where these arise within the overall framework of the
Convention”.190 In other words, the best interests principle justifies the
(in)correctness of the parent, society or the state in preferring one decision over
another.
The last two functions are very important in the context of any attempt to balance the
competing rights of parents, mature children and the state. The concept of protection
intrinsic in the best interests of the child necessitates great levels of parental intrusion
into the domain of child autonomy, especially when the child is immature and of
tender age. Thus, the level of decisional autonomy to which a child is entitled or the
amount of control which a parent and the state can lawfully exercise depends on
which of the two better promotes the best interests of the child. If, by exercising
relative autonomy rights, the child would endanger their basic interests in life and
survival, such autonomy would not be in the best interests of the child and the state
may limit the child’s autonomy.191 Accordingly, the best interests principle serves to
ensure that children are not abandoned to their autonomy rights as this endangers
their other basic rights.192 More importantly, the principle may also serve to limit
parental rights and to bring the state into the family home to defend the child’s
interests. This is because the state is permitted to intervene if parental care does not
match the standards of care prescribed in international and domestic law.

4.11 The Right to Adequate Protection by the Courts, Particularly the High
Court as Upper Guardian of All Minors

In terms of section 81(3) of the Constitution, children have the right to adequate
protection by the courts, particularly the High Court as their upper guardian. The
child’s right to adequate protection by the courts arises from a number of separate
but interrelated considerations: first, the immaturity or lack of capacity for rational
action and, second, the vulnerability that arises from this immaturity. Besides the

189 S. Parker, ‘The Best Interests of the Child – Principles and Problems’, 8 International Journal of Law

and the Family (1984) p. 26, at p. 27.

190 P. Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’, in

P. Alston (ed.), The Best interests of the Child: Reconciling Culture and Human Rights (1992) p. 1, at
p. 16. See also CRC General Comment No. 14, para. 33.
191 See Z. W. Falk, ‘Rights and Autonomy – Or the Best Interest of the Child?’, in G. Douglas and L.

Sebba (eds.), Children’s Rights and Traditional Values (1998) p. 111, at p. 113.
192 See generally B. C. Hafen, ‘Individualism and Autonomy in Family Law: The Waning of Belonging’

Brigham Young University Law Review (1991) p. 1.

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vulnerability related to the general lack of capacity for rational action, the frailty and
fragility of many children, particularly the very young, means that the majority of them
are not able to physically defend themselves or take steps that are necessary to
defend their legal rights. Even after acquiring the capacity to distinguish between
right and wrong or to sense that their rights might have been unjustifiably infringed,
the complexities of the legal processes to be followed to claim or enforce these rights
often require that an adult enforce these rights on behalf of the affected child or
children. Ultimately, the duty to stand on the side of the child to make a determination
that the child’s rights have been violated vests in the judiciary as the branch of the
state empowered to make decisions that bind both the state and private persons.
Another compelling factor for vesting the protection of children in the courts is that
the persons or institutions often entrusted with parental responsibility over children
sometimes grossly violate children’s rights. The legal framework governing the
parent-child relationship “assigns child care responsibilities to parents, and thereby
avoids public responsibility for children”.193 Since parents are legally presumed to
know what is best for their children and bear the obligation to determine and to do
what is good for them,194 there is no need for the state to enter into the private family
home except in cases of extreme exploitation, abuse or neglect.195 Conferring the
ultimate responsibility for protecting children on the courts, especially the High Court,
is tantamount to making a claim that the state is aware that there are instances when
the child’s immediate caregivers – whether parents or relatives – violate the rights of
the very children they are meant to protect. In such cases, it is important to allow the
state through the courts to intervene in the family to protect the best interests and
enumerated constitutional rights of the child.
The protection of children’s rights, parental responsibility and family values does not
imply that the state should abdicate its role as the protector of all children within its
territorial boarders. Generally, the concept of state intervention through the courts
arises from four strands: first, from the need to prevent the child from exercising
autonomy rights in ways that threaten the very child’s other basic rights and interests.
This strand recognises that children are not the best persons to be entrusted with
their own protection and may exercise autonomy rights in ways that are detrimental
to their best interests, sometimes with the full blessing of their parents. Second, state
intervention arises from the need to protect children against the unreasonable
exercise of the responsibilities and powers that attach to the office of parenthood.
The abuse of these responsibilities and powers may be perpetrated by parents,
guardians, caregivers, family members or anyone holding parental responsibilities
and rights. Thus, state intervention through judicial decision-making is primarily
intended to ensure that the state protects and promotes children’s rights at the family
and other social levels.

193 M. Minnow, ‘Rights for the Next Generation: A Feminist Approach to Children’s Rights’, Harvard
Women’s Law Journal (1986) p. 1, at p. 9.
194 See J. J. Rousseau, His Educational Theories Selected from Emile, Julie and Other Writings (1964)

p. 92.
195 See generally J. Goldstein, ‘Medical Care for the Child at Risk: On State Supervision of Parental

Autonomy’, 86 Yale Law Journal (1977) p. 645.

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The child’s right to adequate protection by the courts has been invoked in a number
of local cases and reference is made to some of these cases. In Mudzuru and
Another v. Minister of Justice and Others,196 the Constitutional Court held that
children are entitled to effective protection by the Court which is the upper guardian
of the rights of children and whose duty it is to enforce the fundamental rights
designed for their protection. It also held that the history of the struggle against child
marriage sadly shows that there has been, for a long time, lack of common social
consciousness on the problems of girls who became victims of early marriages.197
Ultimately, the apex court would abolish child marriages on the basis that it violated
sections 81(1) and 78(1) of the Constitution which, read together, stipulated that
persons below the age of majority cannot found a family. In the process, the Court
declared certain provisions of the Marriage Act, particularly section 22(1) thereof, to
be invalid and unconstitutional.
Apart from declaring child marriage to be a violation of children’s rights, domestic
courts have also invoked their power to adequately protect children from sexual
exploitation. In S v. Banda, S v. Chakamoga,198 both accused were married mature
adults, more than 30 years old, who had sexual intercourse with young girls aged 15
years, about half the accused persons’ ages. They both impregnated the young girls.
Both accused were charged with contravening section 70 of the Criminal Law Code,
having sexual intercourse with a young person. Both were tried by the same
magistrate, and sentenced to two years imprisonment of which one year was
suspended for five years on the usual conditions for such cases, each remaining with
one year effective imprisonment. On review, the High Court took the opportunity to
narrate, in broad terms, the role of judges in protecting children from sexual
exploitation and advancing their best interests. The Court explicitly relied on, among
others, section 81(3) of the Constitution in coming to the conclusion that the decision
of the court aquo trivialised the rights of the child. Charehwa J, for the Court, held as
follows:

More particularly, 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 had 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. The courts must be seen to apply the law in a manner that
achieves the intended aim of the legislature in these cases: that is, to effectively protect children
from predatory older persons and ensure the eradication, or seriously attempt to eradicate the
problem.199

The Court further underlined that sentencing an old man over 30 years of age to an
effective 12 months imprisonment for having sexual intercourse with a young person
of 15 years of age can hardly be aimed at deterring other older men from preying on

196 Judgement No. CCZ 12/2015.

197 Ibid., p.53.
198 HH 47-16.
199 Ibid., p. 3.

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young and immature persons, who are swayed by the offer of one or two dollars in
these harsh economic times.200 In the Court’s view, the very fact that a young person
‘agrees’ to sexual intercourse with a much older men for such a paltry amount is
clear evidence of her immaturity and incapacity to make an informed choice or
decision. The age difference and the unequal power dynamics attendant would be
considered as aggravating factors.201 A promise to marry, or even eventual marriage
of the child would, in the Court’s view, not be mitigatory as it would effectively deny
the child an opportunity for optimal development.202 Charehwa J was at pains to
reiterate that judicial officers should never look with favour on much older men who
‘marry’ or intend to marry these children for purposes of sentencing as this attitude
from the bench would seem to be promoting child marriages, which the Constitution
and international instruments to which Zimbabwe is a party clearly frown on.203
Finally, the Court held that:

It is up to judicial officers to show that the courts will not tolerate predatory older men who prey
on young persons by handing down appropriately severe sentences. The prevalence of these
types of offences, the consequential incalculable damage they cause in preventing young
persons from attaining their full potential, the damage to the social fabric, coupled with its impact
on national development and the need to conform to international standards in the protection of
children ought to be additional grounds for handing down deterrent sentences.204

The cases discussed above revolve around the role of the courts in ensuring
adequate protection of children from child marriages and sexual exploitation.
However, the child’s right to adequate protection by the courts covers all aspects of
life, including protection from violence in the family home (this could require the
abolition of corporal punishment in the family); protection from personal decisions
that threaten the child’s life; survival and development; protection in the child justice
context; protection in the schools and health care facilities; protection from
recruitment into the armed forces of a particular country; protection from harmful
social and cultural practices; protection from maltreatment, neglect or any form of
abuse; and many other contexts. Like the principle of the best interests of the child,
the child’s right to adequate protection by the courts is implicated in all of the issues
pertaining to the enjoyment by children of their rights.

5 COVID-19 and Children’s Rights

Zimbabwe, like many other countries, was forced to take drastic and urgent
measures in order to control the spread of COVID-19. Such measures included
extended lockdowns which meant school and business closures as well as
restrictions on freedom of movement. These measures were necessary as they had
the effect of limiting rights of citizens including children. In a policy brief issued a few

200 Ibid., p. 5.
201 Ibid., p. 5. See also S v. Nare, 1983 (2) ZLR 135 (H) and S v. Ivhurinosara Ncube, HH 335-13, p. 3.
202 Ibid., p. 5. See also S v. Peter Chigogo, HH 943-15, p. 2.
203 S v. Banda, S v. Chakamoga, p. 6. In S v. Onismo Girandi, HB 55/12, the need to send a signal to

society that courts will descend heavily on child sexual abusers was emphasised, with the Court
exhorting that a sentence of not less than two years should be imposed.
204 S v. Banda, S v. Chakamoga, pp. 6–7.

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months after the pandemic had started, UNICEF warned that the effects of COVID-
19 on children’s rights would potentially be “catastrophic”.205 This section briefly
considers the impact that COVID-19, in particular the measures that were taken to
curb its spread, had on the rights of children in Zimbabwe.
One of the rights that were severely affected by the measures taken to minimise the
spread of COVID-19 was the right to education.206 In the shadow of the pandemic, a
silent intellectual or cognitive genocide is being committed against billions of school
children across the globe. Schools have been forced to close so as to ensure the
protection of learners as well as teachers and parents from possible infection. In the
current crisis, 191 countries have compulsory school closures and approximately 1.5
billion children are out of school.207 The pandemic has driven about 297 million
children out of school across Africa and about 75 per cent of learners have limited
or no access to interactive and internet-based learning materials, with the digital
divide exacerbating the exclusion of many children from poor families, especially in
Sub-Saharan Africa.208 This includes more than 120 million girls who have been
affected by school closures across the continent.209 This presents serious challenges
for girls from the poorest households who are likely to be the hardest hit and their
education severely set back, unless immediate and comprehensive measures are
taken to push back the current crisis.
Currently, more than two-thirds of African countries have introduced national
distance learning platforms, although the learning materials placed on these
platforms are only accessible in one or two major languages, thereby excluding the
vast majority of learners.210 Only 15 countries are offering distance instruction in
more than one language.211 Most of these distance learning platforms also use digital
and online media. Increased digitalisation of schooling is likely to widen inequalities
between children as those from poor economic backgrounds are least likely to have
access to smartphones, television and the internet.212 This is particularly
disadvantageous to children, especially given that almost one third of the world’s
young people, most of them in sub-Saharan Africa, are already digitally excluded.

205 UNICEF, Policy Brief: The Impact of COVID-19 on Children’s Rights, <https://www.unicef.org/

zimbabwe/media/2631/file/Policy%20Brief:%20The%20Impact%20of%20COVID19%20
on%20children.pdf>, p. 4.
206 See Zimbabwe Education Cluster Humanitarian Response & COVID-19, accessed at

<https://www.human
itarianresponse.info/sites/www.humanitarianresponse.info/files/documents/files/zimbabwe_education
_cluster_situation_report_8_06.08.2020.pdf>, p.1, where it is stated that 3.5 million learners were
affected by the closure of schools due to COVID-19 during the period ranging from 10 July 2020 to 6
August 2020.
207 A. B. Albrectsen and S. Giannini, ‘COVID-19 School Closures Around the World Will Hit Girls

Hardest’, UNESCO, 31 March, available at <https://en.unesco.org/news/covid-19-school-

closuresaround-world-will-hit-girls-hardest>.
208 J. Sloth-Nielsen, ‘Children’s Rights and Digital Technology: Focus on African perspectives’, 2020,

PowerPoint presentation on file with the author.

209 UNESCO, ‘Education: From Disruption to Recovery’ available at
https://en.unesco.org/covid19/education response>.
210 African Child Policy Forum, Under siege: Impact of COVID-19 on girls in Africa, 2020, 18.
211 UN, The Impact of COVID-19 on Children: Policy Brief, 2020.
212 OECD, Combatting COVID 19’s Effect on Children, 2020.

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The usefulness of current Edtech initiatives to replace face-to-face schooling
depends on open access materials, connectivity and resources to cover data costs.
Zimbabwe has not moved an inch towards broadening access to internet enabled
devices, access to energy especially in the rural context, or distribution of resources
for data costs, thereby further marginalising children from poor families in the
educational context.
In the urban areas, some of the schools have, however, been able to mitigate the
effects of the indefinite closure of schools by continuing teaching through online
platforms. As such, even though they were also deprived of access to the resources
in their schools as well as physical learning, learners from these schools were able
to continue learning. Children with disabilities and those from poor homes and
remote rural areas were disproportionally affected, for them learning has been
completely paused for the entire period during which schools have been closed.213
This affects not only access to education, but slows the intellectual, emotional and
social development of children.
Restrictions on movement also had the effect of limiting the child’s right to
healthcare. The deployment of security forces to enforce the lockdown made it
difficult for people including children to get access to healthcare as it was required
that one should have a document that shows that they are exempted from restrictions
on freedom of movement.214 Even when one makes it to the healthcare facility, health
care practitioners often required that they should submit negative COVID-19 test
results before they could receive medical attention. For most, this was an
insurmountable barrier to healthcare as the COVID-19 tests are too expensive for
the majority of the parents.215
Another aspect of children’s right to health affected by the lockdown relates to
“mental health and social development”.216 Being forced to stay at home for
protracted periods with no access to friends and communal environments negatively
affects the psychological well-being of children. This is made worse by the lack of
dissemination of age-sensitive and gender sensitive medical information explaining
how the virus is spread as well as how to protect oneself. Most of the information is
not packaged in such a manner as to be understood by children of varying ages.
Restrictions are often imposed on children’s rights without there being made

213 See Zimbabwe Education Cluster Humanitarian Response & COVID-19, accessed at

<https://www.humanitari
anresponse.info/sites/www.humanitarianresponse.info/files/documents/files/zimbabwe_education_clu
ster_situation_report_8_06.08.2020.pdf>, p. 1.
214 G. Murewanhema and R. Makurumidze, ‘Essential Health Services Delivery in Zimbabwe during the

COVID-19 Pandemic: Perspectives and Recommendations, Pan African Medical Journal (2020),
available at <https://www. panafrican-med-journal.com/content/series/35/2/143/full/>.
215 C. D Chikwari, ‘Coronavirus in Zimbabwe’, 11 August 2020, available at
<https://www.thinkglobalhealth.org/ article/coronavirus-zimbabwe>, shows how expensive this test was
by comparing it to the salary that was received by a nurse during that period; the COVID-19 test was
approximately USD 60 whereas the salary of a nurse was less than USD 30.
216 UNICEF, Policy Brief: The Impact of COVID-19 on Children’s Rights, accessed at

<https://www.unicef.org/zimbabwe/media/2631/file/Policy%20Brief:%20The%20Impact%20of%20CO
VID19%20on%20children.pdf>, p. 4.

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available “age-appropriate, accurate, regular and accessible information in a
language that they were able to understand”.217 The constant use of terms such as
‘quarantine, social distancing, sanitiser’ and many others create a language barrier
that excludes young children from taking part in curbing the pandemic.
Measures taken to curb the spread of COVID-19 affected various other children’s
rights. The closure of schools had the effect of removing children from the protection
of the school environment and thereby exposed them to abuses such as child labour
as well as physical, emotional and sexual abuse and violence. With parents forced
to stay at home, the child’s rights to adequate food and shelter were also affected.218
This has been particularly worsened by the fact that the country has a very high
unemployment rate and the majority of caregivers rely on the informal sector for
livelihoods. The urban poor – living from hand to mouth and relying on informal sector
activities that require them to be out of their homes – have been hard hit by the
pandemic and stay at home orders.
Lengthy lockdowns and restrictions on freedom of movement have prohibited
commercial activities in the informal sector and made them ‘illegal’. This has led to
loss of livelihoods in a country where around 90 per cent are employed in the informal
sector. These factors drive children from poor families to the margins of society,
especially in a country with no social safety nets or unemployment benefits. Even in
the context of COVID-driven unemployment, the majority of those affected by
lockdown restrictions belong to groups that are already vulnerable – women, PWDs,
the poor and the like. Mention should also be made that PWDs and the urban poor
– many of whom are vendors who sell their wares in the streets – also have had their
livelihoods severely affected. By the same token, children born of or cared for by
families or individuals belonging to these categories of persons confront pronounced
challenges in every aspect of life.

6 Conclusion

By entrenching a mini-Declaration of Rights for children, the Constitution follows

developments at both the international plane and in other foreign jurisdictions. The
insertion into the Constitution of a separate section entrenching children’s rights
echoes the adoption at the international level of separate instruments – such as the
CRC and the African Children’s Charter – protecting children’s rights. At a deeper
level, the constitutional protection of children’s rights embodies a paradigm shift from

217 UNICEF, COVID-19 and the Impact on Children’s Rights: The Imperative for a Human-Rights Based
Approach, accessed at
<https://d3n8a8pro7vhmx.cloudfront.net/childrightsconnect/mailings/851/attachments
/original/UNICEF__COVID-
19_and_Child_Rights_Imperative_for_a_Human_Rights_Approach__Final_April _2020.pdf?
1588854658>, p. 4.
218 See United Nations in Zimbabwe, Immediate Socio-Economic Response to COVID-19 in Zimbabwe:

Framework for Integrated Policy Analysis and Support, 2020, pp. 10 and 13, where it is stated that
about 2.2 million of Zimbabweans are employed in the informal sector, with such a large population
having been most affected by lockdown measures, this had an impact on the food security of quite a
number of Zimbabwean households.

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social perceptions of children as dependent persons with no rights to the legal status
of children as holders of rights. The strength of the CRC and the Zimbabwean
Constitution arises from the fact that these instruments offer special protection to
children qua children, not just as members of the family or the societies in which they
live. They all portray the child as a separate person entitled to rights emanating not
from their relationships with others but from their separate personhood as an
individual. This means that the child is entitled to assert their rights against other
persons, parents and the state.
This chapter discussed different categories of children’s rights. It was demonstrated
that international and national human rights law divide children’s rights into three
broad categories. These include provision or socio-economic rights, protection rights
and participation or empowerment rights. These categories of rights should be read
holistically as they are indivisible, interrelated and mutually reinforcing. Each set of
rights largely represents specific interests of children, with provision rights
broadening the child’s interest in developing optimally, participation rights promoting
the child’s interest in making decisions once competent to do so and protection rights
emphasising the child’s interest in being protected from harm, neglect, violence,
degradation and all forms of exploitation. Protection in the decision-making context
largely comes in the form of parental duties and the responsibility of the state in
ensuring that parental duties are exercised in the best interests of the child.
Apart from discussing children’s rights to provision, participation and protection in
different contexts, this chapter also investigated the scope of children’s rights in the
criminal justice system. These rights include, among others, the child’s right not to
be detained except as a means of last resort. Whilst the general rule is that no child
offender should be caged, the law foresees instances when the demands of justice
and fairness may call for the imprisonment of the child offender. However, when it
becomes necessary to cage a child for committing a serious crime, the Court should
ensure that the conditions of detention comply with at least three explicitly stipulated
constitutional requirements or standards. These requirements include the idea that
the child offender should be detained for the shortest appropriate period, kept
separately from adult offenders and treated in a manner and kept in conditions that
take account of the child’s age. These rights were discussed in some detail, and it
was shown that the courts do refer to the relevant provisions when they make
decisions.
The constitutional protection of children’s rights paves way for the present and future
enforcement of children’s rights in this country. It is patent that the legal regulatory
framework for children’s rights is more than adequate and protects all categories of
children’s rights. Like at the international level, the best interests of the child remains
the paramount consideration under our law and enables the courts to make
decisions in whatever way they consider ‘best’ for children. In addition, the
Constitution emphasises that children are entitled to adequate protection by the
courts, in particular by the High Court as the upper guardian of all minors. However,
it remains to be seen whether the courts will actively perform their duty to protect
children from the harm that is often occasioned by strangers, parents, caregivers
and the state. To perform their functions adequately, parents, courts and the state

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should make joint efforts towards promoting children’s rights in line with international
and domestic law. As has been suggested above, the enforcement of the concept of
the evolving capacities of the child enables decision-makers, including parents,
courts and the state, to promote all sets of children’s rights.

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