constitution

The Right2Know Campaign says that President Jacob Zuma will receive the Protection of State Information Bill (Secrecy Bill) this week.

Civil society groups and opposition parties have opposed the bill as the law could stifle media freedom by preventing the press from reporting on certain issues.

Critics have called on the president to refer the matter to the Constitutional Court.

To read the article titled, “Zuma to receive Info Bill,” click here.

Citizens eagerly await the announcement of the 2013 elections date along with the execution of the new constitution, which gender activists say contains 75 percent of the demands made by women.

Over three million citizens voted in favour of the Draft Constitution last month, closing the curtain on the arduous four-year long negotiations. The Constitution limits presidential terms to two, guarantees freedom of expression, protects citizens from all forms of violence and promises gender equality. Although positive, activists dub these gains ‘potential' given that rights and privileges on paper do not automatically translate into reality on the ground.

Priscilla Misihairabwi-Mushonga the general secretary of the Movement for Democratic Change (MDC) cautioned: "It is important that we celebrate the road that we have walked as women and the gains we have achieved, but we should realise that there is still work to be done to ensure that women enjoy their rights."

Echoing this sentiment, Netsai Mushonga, the national coordinator of the Women's Coalition of Zimbabwe (WCoZ) says, "While we applaud the successful end to the constitution-making, this ushers in the more difficult exercise of constitution-building, ensuring that rights become reality for women."

The Final Draft Constitution recognises gender equality as one of the constitutional founding principles and outlaws discrimination. The former Lancaster House Constitution, which has to date co-existed with common law, saw many women and girls being discriminated against based on customary law and tradition, and in the private sphere this reigned supreme.

This prompted WCoZ to start a spirited campaign entitled ‘Ten Reasons Why Women should Vote Yes’. The campaign stated that the draft contained 75 percent of women's demands, namely; recognition of women as equal citizens, adoption of affirmative action, embraces equal property rights for women including rights to land, protection of women from all forms of violence, equal rights for women within marriage and divorce and increased protection for the girl child.

Article 124 of the new Constitution provides that for the life of the first two parliaments "An additional 60 women, six from each of the (10) provinces of Zimbabwe) shall be elected on a proportional representation (PR) basis to the 270 existing National Assembly seats, that are open to both women and men." This guarantees women 18 percent of the seats in parliament through the PR provision, with the possibility of additional seats through the openly contested elections.

The section of the Executive does not specifically guarantee a representation of women in the Presidium. The PR provision in the national assembly does not extend to local government. However, Article 17 b I - "Both genders are equally represented in all institutions and agencies of government at every level" - gives scope for this to be taken up in legislation.

Minister of Local Government Urban & Rural Development, Dr Ignatius Chombo, said at the SADC [Southern African Development Community] Gender Protocol Awards summit in late last month that the Ministry is amending its existing legislation to ensure compliance with that all aspects of the Constitution. He added that although the new Constitution does not guarantee the 50/50 ratio in terms of representation in local government, women councillors should be in a position to be re-elected.

Permanent secretary in the Ministry of Women Affairs Gender & Community Development, Dr Sylvia Utete Masango, noted that with one election to go before the 2015 deadline for gender parity, women need to strategise as ‘no voice means no choice’.

Rights within marriage and upon dissolution aim to protect women from dispossession during divorce or upon the death of their spouse. However, it will be interesting to see how these rights play out, since there were some disclaimers during the constitutional outreach, even by those in support of the 50/50 principle that these rights should only apply in the public sphere and not at family level.

Equal citizenship for women will also bring equal rights to guardianship of children. Currently, women struggle to get paternal relatives to approve applications for travel and identity documents for their children, especially when women are widowed or when couples are estranged.

However, the move to gradually abolish the death penalty curiously contradicts equal citizenship, since women, along with people under 21 and those over 70 are exempt from the penalty. Although this may appear positive for women and citizens in general, it has potential for social backlash due to its inconsistency with the equality principle.

By recognising sexual and reproductive health rights, the Constitution addresses a key challenge that has seen most women having no power of negotiation to determine the start and frequency of child bearing. This better enables women to assert their rights, reduces their vulnerability to HIV and AIDS, and increases access to employment and economic empowerment.

Equality in the social, economic and political sphere will potentially be realised through the provision on gender balance and the call for government and other institutions to ensure full and equal participation of women alongside men. Dr Olivia Muchena, the Minister of Women Affairs, Gender and Community Development, however, reiterates the need for all stakeholders to unite in a continuous campaign to publicise the constitution and to pool resources to ensure effective implementation.

The new Constitution and an equal representation of women and men in commissions such as the Zimbabwe Electoral Commission, the Human Rights Commission and the judiciary will help achieve a gradual mainstreaming of gender balance. A new Gender Commission will also oversee the implementation of various regional and international instruments adopted by Zimbabwe like the SADC Gender Protocol.

- Virginia Muwanigwa is the director of the Humanitarian Information Facilitation Centre, an award winning journalist and gender and women's rights expert. This article is part of the Gender Links Opinion and Commentary Service that provides fresh views on everyday news.

The Principal Secretary of the Ministry of Information, Communication and Technology, Sikelela Dlamini, has criticised the Times of Swaziland Sunday, a weekly tabloid, for breaching not only its own code of ethics but also the country's Constitution.
 
Dlamini was responding to an article published by the newspaper under the headline 'The Naked Truth?’, which chronicled the fallout between a Swazi diplomat based in London and her former Zimbabwean boyfriend.
 
The Media Institute of Southern Africa (Swaziland chapter) says even though the ICT ministry may not have the finest record on matters of freedom of speech, it acknowledges the position of government on this issue.
 
To read the article titled, “MISA backs govt attack on 'Times',” click here.

The North Gauteng High Court in Pretoria this month declared certain sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act unconstitutional. The Act has been controversial since its inception and has been widely criticised from within the legal and social welfare sector as absurd and unenforceable. The specific sections that were declared unconstitutional made it a criminal offence for children aged between 12 and 16 to engage in consensual sexual activities with each other.

The Act also criminalised other instances of consensual sexual acts or conduct between children of that age - such as kissing and light petting - as ‘sexual violations’ and not only the physical act of penetration.

The effect of the sections was that both consensual parties could face criminal prosecution in terms of the Act. Furthermore, any person, be it parents, teachers or others, who were aware of any such consensual sexual activities between children had an obligation to report it to the police, or face possible criminal prosecution themselves in terms of the Act.

In April 2012, two organisations concerned with children’s rights - the Teddy Bear Clinic for Abused Children and the Centre for Child Law - approached the High Court and challenged the constitutionality of the relevant provisions. The application was opposed by the National Director of Public Prosecutions, as well as the Minister of Justice and Constitutional Development.

The main contention by the organisations was that the relevant provisions infringed upon children’s right to dignity and privacy. The right to dignity and privacy is important and well-entrenched in our Constitution and human dignity is one of the founding provisions of our Constitution. Everyone, including children and teenagers, has inherent dignity and the right to have their dignity respected and protected. In challenging the provisions of the Act, the Teddy Bear Clinic argued that the relevant provisions had the effect of traumatising children by exposing them to the criminal justice system rather than protecting them.

According to reports, the Teddy Bear Clinic welcomed the court’s ruling in that, "It promotes the best interests of children by protecting them from being violated by the criminal justice system, therefore advancing the rights of children."

According to Department of Justice and Constitutional Development spokesperson, Mthunzi Mhaga, the department noted the High Court’s ruling and is currently studying the judgment with a view to whether there are valid grounds upon which to appeal.

Judge Pierre Rabie stated in his judgment that, "Despite many reforms to make the child justice system more child-friendly...exposure to the criminal justice system is still a dramatic and harrowing experience" and that, undoubtedly, this would have negative consequences.

On the one hand, the provisions seemingly have a just aim: to protect children from various forms of sexual abuse by other children and adults, given the prevalence of sexual offences committed against women and children in South Africa. On the other hand - and on a practical note - these specific provisions may not have been drafted after properly considering factors such as the following:

•      South Africa’s overburdened criminal justice system;

•      Overcrowding in prisons;

•      The sphere of constitutional rights involved;

•      The traumatic effect arrests will have on children if prosecuted in terms of the Act;

•      Being questioned about intimate personal details by personnel who might not have the proper training to do so; and

•      Further psychological (and possibly physical) trauma children will suffer from being detained at police stations.

Furthermore, and apart from being exposed to the criminal justice system, how are children’s rights to choose or give consent to sexual activity between themselves being affected/restricted by this kind of legislation, and should children be consulted when legislation of this nature is proposed?

Should conduct such as this be criminalised and if so, why? Should legislation define and dictate the moral values and conduct pertaining to consensual sexual activities between children, especially if it is considered that in some instances, use of alcohol and tobacco product by children are regulated, as well as other matters of a highly personal consensual nature, such as getting an abortion.

As the judgment reflects on the constitutionality of legislation, it must now be confirmed by the Constitutional Court. The latter court will, without a doubt, have to consider the fine balance between what could be seen as the best interests of children - whether defined in terms of the values of society or health considerations - and those constitutional rights allowing children to make certain decisions based on mutual consent. Whether the Constitutional Court will agree with the High Court remains to be seen.

- Adv Jacques du Preez is an operational officer within the Centre for Constitutional Rights at the FW De Klerk Foundation.