HERBERT CHITEPO LAW SCHOOL

CHILDREN AND THE LAW

NAME: MARIAN T

SURNAME: NYARUWANGA

LECTURER: MRS MANYIKA

With reference to the child justice system in Zimbabwe, discuss the progress, if any, that
the country has made in complying with the principles of child justice as enshrined in the
Convention on the rights of the Child and the African Charter on the Rights and Welfare of
the Child. 30marks

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The main thrust of this essay is to focus on how the Zimbabwean courts upholds child justice
system in accordance with the International law Conventions which are Convention on the
rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child
(ACRWC). Juvenile justice is the area of criminal law applicable to persons not old enough
to be held responsible for criminal acts and it is applicable to those under 18 years old.
Juvenile law is mainly governed by the juvenile justice codes of states.1 The main goal of the
juvenile justice system is rehabilitation rather than punishment. The essay will look into the
old Lancaster House Constitution on how the courts conceptualised children’s right in the
absence of child rights provision in the Constitution before the 2013 Constitution was passed,
followed by an analysis of the new 2013 Constitution which specifically entrenches Childrens
rights. The Child Justice Bill that was passed will also be analysed .More of this will be
discussed as the essay unfolds.

The Lancaster House Constitution had no express provision dedicated to children’s right .It
was termed as the ‘invisible child’ Constitution because children were neither seen nor heard
and not accorded any special recognition. However courts were alive to the duty to protect
the rights and interests of children within the broader context of human rights .This is
evidenced in the case of Dzvova v Minister of Education, Sports and Culture, the court ruled
that every child has a constitutional right to freedom of conscience and religion. 2The school
regulations having been enacted without the authority of any law, infringed the child’s
enjoyment of his religion or belief through practice and observance. The court stated that
attempts by the school to exclude the child was discriminatory and contravened constitutional
provisions, as well as the Education Act (Chapter 25:04).3 This ruling by the Supreme Court
affirmed that in the absence of a specific children’s rights provision, general constitutional
rights could be interpreted to protect and promote children’s rights. 4 It is commendable to
note that, under the Lancaster House Constitution, judges were proactive to extend the
protection of children’s rights using general human rights provisions in the Lancaster House
Constitution, although it was a slow process. 5Without legal instruments protecting the rights
of children, Couzens argues that courts determine children’s rights on a discretionary basis,

1
https://definitions.uslegal.com/j/juvenile-justice/
2
Dzvova v Minister of Education Sports and Culture SC 26-07.
3
Section 4 of the Education Act
4
Magaya & Fambasayi ‘Giant leaps or baby steps? A preliminary review of the development of children’s rights
jurisprudence in Zimbabwe’ 2021 De Jure Law Journal
16-34http://dx.doi.org/10.17159/2225-7160/2021/v54a2
5
Couzens “Le Roux v Dey and children’s rights approaches to judging” 2018 Potchefstroom Electronic Law
Journal 3.
dependent on the personal openness of individual judges towards the rights of children. 6One
can note that when matters were brought to courts, judges utilised the constitutional
provisions to promote and protect children’s rights .Under the 2013 Constitution of
Zimbabwe, it contains provisions which protect and promote children’s rights in line with the
Convention on the rights of the Child and ACRWC and one of the distinctive features it has
is the Declaration of Rights specifically section 81 which is the protection awarded to
children.

The country upheld the principles of child justice as enshrined in the Convention on the rights
of the Child and the African Charter on the Rights and Welfare of the Child in terms of the
detention of child offenders as a measure of last resort. In the case of S v FM (A Juvenile) the
judge stated that the sentence appeared to be clearly dictated by the need to protect the public
from a perceived delinquent and incorrigible young criminal offender 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. 7 The Court’s approach, based on the Section 81(h) (i) of
Constitution of Zimbabwe 2013 8and article 37(1) (b) and article 40(1) of the UNCRC 9, was
aimed at ensuring that child justice matters are managed in a rights based manner. The judge
defended the proposition that child justice aims to assist children in conflict with the law to
turn their lives around and become productive members of society. 10
Tsanga J was of the
view that the sentence by the trial court ran contrary to the letter and spirit of the
Constitution, especially given the fact that the offender did not commit a violent crime.
Sentencing the child offender for such a lengthy time was described as “removing the child
offender from the society by locking him up and throwing away the keys”. 11The judge
challenged entrenched sentencing practices in Zimbabwe by holding the view that “from the
point of view of children’s rights custodial punishment is regarded as criminally damaging
for children due to the criminogenic influences in prison”.12The judges’ adoption of a
children’s rights perspective in sentencing must be celebrated .Anchored by the best interests
6
Couzens “Le Roux v Dey and children’s rights approaches to judging” 2018 Potchefstroom Electronic Law
Journal 3.

7
S v FM (A Juvenile) 2015 (1) ZLR 56 (H).
8
Section81 (h) (i) of the Constitution of Zimbabwe 2013.
9
Article 37(1) (b) and article 40(1).
10
Magaya & Fambasayi ‘Giant leaps or baby steps? A preliminary review of the development of children’s
rights jurisprudence in Zimbabwe’ 2021 De Jure Law Journal 16-34http://dx.doi.org/10.17159/2225-
7160/2021/v54a2

11
S v FM (A Juvenile) supra 2.
12
S v FM (A Juvenile) supra 3.
of the child principle, the judge underscored the need to look at a much broader perspective
when dealing with child offenders, emphasizing the need to look at all the circumstances of
the young offender’s life and ensure that a child is detained only as a measure of last resort.
After considering the circumstances of the case and the 16 counts involved, the Court altered
the sentence from nine years to the shortest appropriate of three years imprisonment for all
counts, of which one year was suspended for five years on condition of good behaviour.
Therefore in analysing the case one can note that two important rights were upheld in the
matter, namely, the best interests of the child and the right not to be detained except as a
measure of last resort for the shortest appropriate period. In reaching its decision, the Court
emphasised the State’s responsibility towards children in conflict with the law, highlighting
the need to ensure the child’s rehabilitation instead of a narrow focus on
punishment .Thus ,the judgement uplifted the child justice principles of Convention on the
rights of the Child and the African Charter on the Rights and Welfare of the Child.

The case of S v Chokuramba the court made a giant leap in terms of complying with the
principles of child justice as enshrined in the Convention on the rights of the Child and the
African Charter on the Rights and Welfare of the Child. In S v Chokuramba the
Constitutional Court was tasked to confirm the declaration of unconstitutionality of judicial
corporal punishment from the High Court .The High Court had declared section 353 of the
Criminal Procedure and Evidence Act, which permitted the sentence of whipping of juvenile
male offenders, unconstitutional. In terms of section 175(4) of the Constitution, the High
Court referred the matter to the Constitutional Court for confirmation of the order of
invalidity. 13Three key issues were up for determination which were the constitutionality of
section 353 of the Criminal Procedure and Evidence Act which allowed the use of corporal
punishment as a sentence against male juvenile offenders, the meaning of the phrases
“inhumane punishment” and “degrading punishment” and whether judicial corporal
punishment amounts to ‘inhuman’ or “degrading punishment”. The Constitutional Court
confirmed the order of invalidity and ruled that judicial corporal punishment was by nature,
intent and effect an inhuman and degrading punishment within the meaning of section 53 of
the Constitution. 14
The Court held that the object and purpose of section 53 is to afford
protection to human dignity as well as physical and mental integrity. Human dignity is a
foundational value which consequentially gives rise to all fundamental rights, and the Court
made reference to inherent human dignity as a guiding provision. In terms of section 86(3) of
13
S v Chokuramba (CCZ 10/19 Constitutional Application No. CCZ 29/15) [2019] ZWCC 10 (03 April 2019).
14
Section 53 of the Constitution of Zimbabwe 2013.
the Constitution, the limitations clause, the right to dignity and right not to be subjected to
inhuman and degrading punishment were said to be non-derogable rights meaning to say that
no law may limit these rights and no person may violate them .15According to the court
judicial corporal punishment brutalises the recipient as it violates their physical and mental
integrity. Punishment is degrading if the recipient is, exposed to disrespect and contempt
from fellow human beings. And also the fact that punishment arouses fear, anguish or
inferiority in the person being punished means that it can be considered degrading.

Still on that point, the Court noted that, the abolition of judicial corporal punishment should
give new impetus to the establishment of a well-equipped juvenile justice system that is
specifically responsive to the needs of juvenile offenders and which will also contribute to
their reintegration into society.16In relation to child justice this judgement is important
because it underscores the fact that child offenders are individual rights holders whose right
to human dignity is not created or awarded by the state but rather requires legal protection at
all times and that sentencing child offenders should be a less formal and more inquisitorial
process that is able to provide sentences which are geared towards rehabilitation of children
in line with principles of restorative justice .Henceforth the principles of child justice as
enshrined in the Convention on the rights of the Child and the African Charter on the Rights
and Welfare of the Child by eradicating judicial corporal punishment.

Moving on, another progress that the country has made in complying with the principles of
child justice as enshrined in the Convention on the rights of the Child and the African Charter
on the Rights and Welfare of the Child is the issue of child justice bill .The Child Justice Bill
2020 was approved by the Cabinet Committee on Legislation .The bill seek to establish a
separate juvenile justice system that is centered on principles of restoration and rehabilitation
of child juvenile offenders. 17It aims at increasing the minimum age of criminal responsibility
to twelve and take into account specific vulnerabilities of children in conflict with the law,
including the needs of children with disabilities. 18 The Bill will also provide for separate
15
Magaya & Fambasayi ‘Giant leaps or baby steps? A preliminary review of the development of children’s
rights jurisprudence in Zimbabwe’ 2021 De Jure Law Journal 16-34http://dx.doi.org/10.17159/2225-
7160/2021/v54a2
16
Magaya & Fambasayi ‘Giant leaps or baby steps? A preliminary review of the development of children’s
rights jurisprudence in Zimbabwe’ 2021 De Jure Law Journal 16-34http://dx.doi.org/10.17159/2225-
7160/2021/v54a2

17
16https://kubatana.net/2021/07/29/cabinet-okays-child-justice-bill/

18
Improving the Administration of Child Justice in Zimbabwe
https://www.unicef.org › zimbabwe › stories ›
courts to deal with children in conflict with the law and foster a restorative as opposed to a
punitive justice system for children .It will provide for legal representation for children; and
the sentencing options available for children. The age of criminal responsibility of a child is
being reviewed upwards from 7 to 12 years .The Bill is hinged on the principle of ‘the best
interest of the child’ which finds its basis in Article 3 of the Convention on the Rights of
Children (CRC).Hence this is a good progress as Zimbabwe is complying with international
laws towards child justice system.

Furthermore, the UNICEF organisation through the Child Protection Fund (CPF) supported
by the United Kingdom, Sweden, and Switzerland has been working with the Government of
Zimbabwe and partners to improve the administration of child justice by supporting the Pre-
Trial Diversion (PTD) programme for children in conflict with the law. 19
The programme,
officially launched in 2019, has supported over 3,000 children with minor offences to be
diverted from the formal criminal justice system to a scheme where the children are
counselled and supported to explore alternative options, thereby giving them a second chance
.The program, currently available in 38 districts, ensures that children do not gain a criminal
record, but rather work closely with the Legal Aid Directorate (LAD), the arm of the
Government that provides free legal assistance to those who cannot afford private
counselling. The PTD programme will enjoy legal support through the new Child Justice Bill
after passage into law. Henceforth this is a great leap to improve the administration of child
justice in Zimbabwe.

However the child justice system in Zimbabwe tends to have some loopholes .Both the
UNCRC and ACRWC regard the administration of corporal punishment as torture and
inhuman treatment of children, the Children’s Act however, is silent about this issue. The
Criminal Law Codification and Reform Act regards corporal punishment as one of the
sentencing options for male children in conflict with the law. Article 37 of UNCRC states
that “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or
punishment,” and it calls for its abolishment. 20
In the same spirit, Section 53 of the
Constitution of Zimbabwe prohibits the subjection of people to physical or psychological
torture or to cruel, inhuman or degrading treatment or punishment. 21Therefore, the Children’s

19
Improving the Administration of Child Justice in Zimbabwe
https://www.unicef.org › zimbabwe › stories ›
20
Article 37 of Convention on the rights of the Child and the African Charter on the Rights and Welfare
21
Section 53 of the of the Constitution of Zimbabwe 2013.
Act is misaligned with the provisions of both international and domestic policies in as far as
the treatment of children is concerned .Therefore amendments to children’s law should be
made so as to work hand in hand with the principles of child justice as enshrined in the
Convention on the rights of the Child and the African Charter on the Rights and Welfare of
the Child.

The Children’s Act does not provide for pre-trial diversion although it is being implemented
as a pilot project in the country. The pre-trial diversion is provided for in article 40 of the
UNCRC, which states that, “wherever appropriate and desirable, measures for dealing with
such children without resorting to judicial proceedings, providing that human rights and legal
safeguards are fully respected.” 22Justice for Children notes that pre-trial diversion seeks to
make offenders responsible and accountable for their actions, provide an opportunity for
reparations, identify underlying problems motivating offending behaviour through
personalized services, and prevent offenders from receiving a criminal record and being
labelled as criminals. Pre-trial diversion also seeks to open up the judicial process for
educational and rehabilitative procedures to come into action to the benefit of all the parties
concerned, and reduce caseload on the formal justice system.23 This programme targets
children and young offenders below 21 years old who would have committed none serious
offences which would attract sentence of up to twelve months’ imprisonment. The child or
young person must be a first time offender and willing to take part in the activities identified
by the diversion officer.24 It can be seen therefore, that pre-trial diversion is an important
programme that should be provided for in an Act of parliament rather than using many legal
instruments to address pre-trial diversion as is currently the case. Pre-trial diversion
guidelines can be contained in the children’s Act.25 However, there is need to first harmonize
various legal provisions dealing with children justice. There is therefore, a strong rationale
for amending the Children’s Act so that it can incorporate the provisions for pre-trial
diversion in upholding principles of child justice as enshrined in the Convention on the rights
of the Child and the African Charter on the Rights and Welfare of the Child.

22
Article 40 of Convention on the rights of the Child and the African Charter on the Rights and Welfare
23
Magaya & Fambasayi ‘Giant leaps or baby steps? A preliminary review of the development of children’s rights
jurisprudence in Zimbabwe’ 2021 De Jure Law Journal
16-34http://dx.doi.org/10.17159/2225-7160/2021/v54a2

24
Justice for Children; (2012). Juvenile justice handbook. Harare: Justice for Children
25
Magaya & Fambasayi ‘Giant leaps or baby steps? A preliminary review of the development of children’s
rights jurisprudence in Zimbabwe’ 2021 De Jure Law Journal 16-34http://dx.doi.org/10.17159/2225-
7160/2021/v54a2
Lastly the child justice bill ,according to some critics is far from being perfect .The United
Nations Conventions on the Rights of the Child (UNCRC) notes that arrest, detention or
imprisonment of a child shall be in conformity with the law and shall be used only as a
measure of last resort and for the shortest possible time .The proposed Child justice bill
allows for imprisonment of a child for up to 15 years which is too steep and does not afford
children treatment that takes their age, immaturity and vulnerability into account .Thus one
can say that this is an obstacle to progression in developing the law on child justice system.

In conclusion one can safely say that there has been progress that the country has made in
complying with the principles of child justice as enshrined in the Convention on the rights of
the Child and the African Charter on the Rights and Welfare of the Child .This is evidenced
by the child justice bill and some of the case precedents that were decided .However
loopholes have been identified pertaining to the laws regarding child justice system .More of
this will be further discussed as the essay unfolds.
REFERENCES

CASELAWS

Dzvova v Minister of Education Sports and Culture SC 26-07.

S v FM (A Juvenile)

S v Chokuramba (CCZ 10/19 Constitutional Application No. CCZ 29/15) [2019] ZWCC
10

JOURNALS

 Couzens “Le Roux v Dey and children’s rights approaches to judging” 2018
Potchefstroom Electronic Law Journal 3.

 Justice for Children; (2012). Juvenile justice handbook. Harare: Justice for Children

 Magaya & Fambasayi ‘Giant leaps or baby steps? A preliminary review of the
development of children’s rights jurisprudence in Zimbabwe’ 2021 De Jure Law
Journal 16-

 Kaseke, E.; (1993). Juvenile justice: the need for reform. Journal of social
development in Africa, 8 (1) pp 11-17

 Bhaiseni, B.,’‘ZIMBABWE CHILDREN’S ACT ALIGNMENT WITH

INTERNATIONAL AND DOMESTIC LEGAL INSTRUMENTS: UNRAVELLING
THE GAP’’, African Journal of Social Work, 6(1), June 2016.

LEGISLATION

The Constitution of Zimbabwe Amendment No 20 of 2013

Convention on the rights of the Child and the African Charter on the Rights and Welfare

African Charter on the Rights and Welfare of Children

Chapter 12 of the Constitution provides for 'Independent Commissions Supporting
Democracy' and it establishes the Zimbabwe Human Rights Commission (ZHRC) under part
3.41 The functions of the ZHRC are set out under section 243.42 Citizens whose right to a
healthy environment has been violated can also approach the ZHRC to lodge a complaint
against the perpetrators. However, Madebwe43 argues that Zimbabwe's experience suggests
that the focus of the ZHRC is likely to be on more traditionally defined rights, such as rights
to life, privacy and expression, and maybe minority rights, which have increasingly become a
prominent facet of the country's rights debate, and it is highly unlikely that any attention
would be given to environmental rights. This observation by Madebwe seems to be correct,
because since the establishment of the new Constitution the ZHRC has dealt with only one
inquiry related to environmental rights violations.44 From the 28th to the 30th of June 2017,
the ZHRC undertook an investigation into a complaint lodged by Albert Chiwenga on behalf
of the Mazvihwa community in Zvishavane.45 chapter 12 of the Constitution provides for
'Independent Commissions Supporting Democracy' and it establishes the Zimbabwe Human
Rights Commission (ZHRC) under part 3.41 The functions of the ZHRC are set out under
section 243.42 Citizens whose right to a healthy environment has been violated can also
approach the ZHRC to lodge a complaint against the perpetrators. However, Madebwe43
argues that Zimbabwe's experience suggests that the focus of the ZHRC is likely to be on
more traditionally defined rights, such as rights to life, privacy and expression, and maybe
minority rights, which have increasingly become a prominent facet of the country's rights
debate, and it is highly unlikely that any attention would be given to environmental rights.
This observation by Madebwe seems to be correct, because since the establishment of the
new Constitution the ZHRC has dealt with only one inquiry related to environmental rights
violations.44 From the 28th to the 30th of June 2017, the ZHRC undertook an investigation
into a complaint lodged by Albert Chiwenga on behalf of the Mazvihwa community in
Zvishavane.45 chapter 12 of the Constitution provides for 'Independent Commissions
Supporting Democracy' and it establishes the Zimbabwe Human Rights Commission (ZHRC)
under part 3.41 The functions of the ZHRC are set out under section 243.42 Citizens whose
right to a healthy environment has been violated can also approach the ZHRC to lodge a
complaint against the perpetrators. However, Madebwe43 argues that Zimbabwe's experience
suggests that the focus of the ZHRC is likely to be on more traditionally defined rights, such
as rights to life, privacy and expression, and maybe minority rights, which have increasingly
become a prominent facet of the country's rights debate, and it is highly unlikely that any
attention would be given to environmental rights. This observation by Madebwe seems to be
correct, because since the establishment of the new Constitution the ZHRC has dealt with
only one inquiry related to environmental rights violations.44 From the 28th to the 30th of
June 2017, the ZHRC undertook an investigation into a complaint lodged by Albert
Chiwenga on behalf of the Mazvihwa community in Zvishavane.45

Furthermore, section 85 of the Constitution provides access to the courts for any individual
whose rights have been infringed. This section thus broadens locus standi to include public
interest litigation (PIL), as action against the violation of a fundamental right can be taken by
anyone on his or her own behalf, on behalf of others, or in the public interest. If read with
section 73, these rights ensure that necessary substantive and procedural rights for enjoying
the right to a healthy environment are available to all citizens, with the result that the issue of
locus standi ceases to be a factor in accessing environmental justice.

3 The civil rights-based approach This approach stems from both section 73 of the
Constitution and partly from the EM Act. In the event of a violation of the constitutional right
to a healthy environment, an injured party can approach the courts claiming redress for such a
violation. Also in terms of section 4 (2) (g) of the EM Act, whenever there is damage to the
environment, the cost of remedying such damage is to be borne by the polluter. Thus, an
injured party has an option of initiating civil litigation against the perpetrator of the harm as a
way of enforcing the law. The turn to civil litigation as an enforcement tool is also integrated
throughout the rest of the Act, as demonstrated by various provisions conferring the right to
bring third-party civil proceedings against perpetrators of environmental harm to adversely
affected members of the public.79 For instance, section 57(2) provides that: (2) A person
found guilty under subsection (1) shall, in addition to any sentence or fine imposed on him—
(a) pay the cost of the removal of any poison, toxic, noxious or obstructing matter,
radioactive waste or other pollutants, including the cost of restoration of the damaged
environment, which may be incurred by a government agency; (b) pay third parties
reparation, cost of restoration, restitution or compensation as may be determined by the court
on application by such third parties.80 Furthermore, section 85 of the Constitution provides
guidance on how an injured party may approach the courts claiming the infringement of a
fundamental right or freedom as enshrined in the Constitution. The section thus broadens
locus standi to include PIL too. Hence, anyone acting on his or her own behalf, on behalf of
others or in the public interest can take action against the perpetrators of environmental harm.
Some scholars have also argued that the rights-based approach is incapable of yielding the
sort of environmental protection necessary to protect the environment because it is "chiefly
backward-looking and reactive rather than preventive, which is a preferable approach." 91
This is so because rights-holders will have to wait for violations to occur first before they can
exercise their rights. Madebwe92