CULTURAL PATTERNS HINDER ZIMBABWE'S EFFORTS TO IMPLEMENT COVENANT ON CIVIL, POLITICAL RIGHTS, HUMAN RIGHTS COMMITTEE TOLD

25 March 1998

Press Release
HR/CT/507

CULTURAL PATTERNS HINDER ZIMBABWE'S EFFORTS TO IMPLEMENT COVENANT ON CIVIL, POLITICAL RIGHTS, HUMAN RIGHTS COMMITTEE TOLD

19980325 Education Programme Seeks To Raise Awareness, Break Stranglehold of Outdated Customs

Although it took a long time to change embedded cultural patterns, efforts were being made to bring Zimbabwe's law and practice into conformity with the International Covenant on Civil and Political Rights, an official from the Office of the Attorney General of Zimbabwe said this afternoon. She was addressing the Human Rights Committee as it considered the country's initial report on its compliance with the Covenant.

The traditional cultural belief that women took second place to men in Zimbabwe resulted in men being educated and, therefore, considered more intelligent, Feliciah Chatukuta told the Committee. That cultural influence was also instrumental in the thinking which prevented women from exercising their rights. Non-governmental organizations played an important role in letting women know of their rights and helping to enforce them, she said.

The Government of Zimbabwe was trying hard to implement all the articles of the Covenant, its Permanent Secretary of Home Affairs, Tinaye Chigudu, said. Where it had failed to do so, that did not represent disregard for international principles, but the fact that some issues were bogged down by cultural constraints. An education programme had been established to pass knowledge on to the people so they might understand the importance of breaking the stranglehold of outdated customs, he said.

During the meeting, expert members of the Committee raised questions on a wide range of issues, including institutional mechanisms for investigating human rights violations, differences between the marriageable ages for boys and girls, whether the issue of marital rape could be addressed under law, State compensation in cases of unlawful arrest, and a widow's inheritance rights.

Questions were raised and comments made by the experts from India, Australia, Germany, Egypt, Chile, Israel, Mauritius, Finland and Japan.

The Human Rights Committee will meet again at 10 a.m. tomorrow, 26 March, to continue its consideration of Zimbabwe's report.

Committee Work Programme

The Human Rights Committee met this afternoon to continue its consideration of the initial report of Zimbabwe on its compliance with the International Covenant of Civil and Political Rights (document CCPR/C/74/Add.3). The delegation of Zimbabwe was expected to respond to a list of issues presented to it by the Committee on matters raised in its report. (For background on the report and the list of issues, see Press Release HR/CT/506 of 25 March.)

Response to List of Issues

TINAYE CHIGUDU, Permanent Secretary of Home Affairs of Zimbabwe, said that the Covenant could not be directly invoked in Zimbabwe. It was laid down in the Constitution that any international law must first be approved by Parliament. The report outlined the procedures to be followed in the event of differences between the Covenant and Zimbabwe's Constitution.

FELICIAH CHATUKUTA, of the Attorney General's Office of Zimbabwe, said that several cases relating to instances of social unrest had been dealt with in the courts.

Mr. CHIGUDU, Secretary of Home Affairs, said that economic hardships had caused food riots in the country. Unlawful means of maintaining order had not been used. Those whole series of riots had led to people being injured and millions of dollars being lost. When the disturbances had turned towards anarchy, the Government exercised its right and obligation to maintain order. When it was unable to bring order, it invited the army to help. Together, they used only necessary force. Any allegations that too much force had been used were being investigated.

No state of emergency existed in Zimbabwe and no measures other than the Law and Order Act had ever been in effect, he said. The Law and Order Act had been used simply because it was a matter of the situation getting out of hand. A detailed response would be submitted in due course to the Committee, but it was not something that could be done quickly.

The use of force by the police was governed by the Constitution, he said. Police could use reasonable force as and when a situation demanded. Extrajudicial executions, disappearances, torture or other inhuman or degrading treatment or punishment and arbitrary detention were expressly prohibited in Zimbabwe. All executions were carried out after the due process of law. Disappearances and torture were unknown in Zimbabwe since the report was submitted in 1996. No steps had been taken to repeal the section of the Constitution permitting corporal punishment by anyone in loco parentis or in execution of a court order, because the Government and the people saw no reason to do so.

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The maximum length of police custody without court authorization was 48 hours, he said. If anyone violated that provision, the officer-in-charge would be dealt with by the courts. Pre-trial detention length varied with the nature of the crime. The court decided if the person was to remain in custody until he was ordered to stand before a court. Those procedures were compatible with the provisions of the Covenant. Rules for granting bail were also determined by the seriousness of the crime. Bail was rarely granted in murder cases. The "fast-track system" had been employed for cases which were straightforward and where there was no need to detain the person involved. Cases concerning petty crimes were concluded very quickly.

He said the Government had reviewed its position on women married under customary law. Under a new law, the wife or wives of a man were entitled to inherit a third of his estate. In addition, the Government had established an Office of Women's Affairs, under the administration of a woman minister. In an endeavour to further promote human rights, the Minister of Education was in the process of developing a curriculum on human rights that would be taught throughout the country. There were five women ministers, two women judges and several female members of Parliament.

Regarding customary law and practices, he said the Government had faced practical and economic impediments in its efforts to advance the position of women. A bill now being drafted would prohibit discrimination on the basis of race, gender or religion. There had also been a gradual review of cases in which customary law was not compatible with the Covenant, such as the inheritance and marriage act. In marriage, women were now at the same level as men. Girl-child pledging was illegal. Lobola (bride price) was an integral part of the culture, however, and it was hard to get away from it. In Zimbabwe, early marriage was permissible when it was conducted between parties who were 16 to 18 years of age. Nevertheless, minors required consent of their parents or the courts.

There was no specific legislation on domestic violence against women, he said. However, there was a specific law on the protection of children. The issue of marital rape was not recognized in Zimbabwe. It was understood in the culture that a woman should show a degree of resistance, so it was difficult to discern the difference between consensual sex and rape. He had no details on the progress made by the child labour task force, as no conclusions had been supplied on its work.

FELICIAH CHATUKUTA, of the Office of the Attorney-General of Zimbabwe, said that the general law of human rights applied in Zimbabwe and there had been civil actions against police officers. On the rules for application to bail, she said the lower courts granted bail only for lesser offenses; only the higher courts granted bail for major offenses.

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The traditional cultural belief that women took second place to men extended to such social phenomena as men being educated and therefore being considered more intelligent, she said. That cultural influence was also instrumental in the thinking of women, preventing them from exercising their rights. There had been many changes, but the cultural impediment remained, in the feeling that women had to play a secondary role. Non-governmental organizations (NGOs) played an important role in letting women know of their rights and helping to enforce them.

It took a long time to change embedded cultural patterns and get people to accept new norms, she said. Nevertheless, changes were being made. As an example, she cited the Children's Protection and Adoption Act, which allowed the Government to take a child from a violent situation and make the parents liable for support of the child in protective custody.

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, welcomed Zimbabwe's initial report and said the Committee's questions were not offered in a spirit of criticism. How was the Covenant worked into the law of Zimbabwe? he asked. What exactly were the functions of the Inter-Ministerial Committee? What was the institutional mechanism for investigating violations of human rights? Did the Government expect to set up any institution to investigate such mechanisms? Also, what were the disturbances between 1982 and 1988, and what steps were being taken to bring the perpetrators to justice and provide compensation to the victims?

Zimbabwe had paid much money to persons for wrongful arrest by the police, he said. Apart from the payment of compensation to victims, was any action taken against the police officers? What steps were taken to keep such incidents from recurring?

Were women allowed to get one third of a deceased husband's estate in all cases or just under certain circumstances? he asked. What steps had been taken to help the widow get that inheritance? In view of the cultural reticence, were women able to make use of the law? Why was there a difference between the marriageable age for boys and girls? Were there no early marriages taking place any more?

There was discrimination in Zimbabwe's guardianship laws, he said. The father received custody of a child, even in the case of an infant. Did the Government intend to change that situation? Did the Government intend to change the polygamous nature of the customary marriage? Was lobola still practised? Was genital mutilation still practised, and what was the Government doing about it? Could a rapist pay the girl and avoid prosecution? How many such cases occurred, and what was the Government doing to prevent the practice?

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If a male citizen married a female non-citizen, did she become a citizen of Zimbabwe upon marriage? he asked. Did the reverse hold true? Was it true that if a child was born outside of Zimbabwe, the child would only be considered a citizen if the father was a citizen?

ELIZABETH EVATT, expert from Australia, asked if the constitutional guarantee of Covenant rights could be removed or altered by an act of Parliament? Had that occurred in the protection of particular rights, such as in a court overruling the principle that corporal punishment and delays of execution were cruel? What would be done to ensure that Covenant rights were protected in Zimbabwe under law? Did amendments to the Constitution diminish the protection of those rights, in particular the guarantee that rights should be granted irrespective of the sex of the person concerned? What agency investigated allegations of excessive force by the police? Did that agency have the authority to investigate all of the issues which arose during the civil disturbances of the last few months?

Individual sources suggested that it was possible for a police officer to issue a warrant to extend the period of detention for up to four days, she said. Was that provided for by law or in practice? Regarding the granting of bail, in particular by magistrate courts, independent sources said the power of the Magistrate to grant bail required the consent of the Attorney General. Was that true? How was such consent obtained in practice?

What limitations or exceptions were allowed under the recent constitutional amendment precluding discrimination on the basis of gender? she asked. What gender inequalities existed in the judicial system? Was there, under the law, a provision that applied standards for women's dress? Could a woman who did not meet those standards be arrested and held in custody? Did such standards apply to men? Were women regularly charged with prostitution while men were not held liable? Did women have equal access to ownership and management of land in resettlement programmes? Could the issue of marital rape be considered at the appropriate level and amendments introduced? What measures had been taken to ensure that children were registered and given a name? What measures had been taken to reduce the incidence of AIDS in Zimbabwe, especially in view of its disproportionate effect on young women?

ECKART KLEIN, expert from Germany, said Zimbabwe's report was commendable and gave the Committee valuable information. Was there not good reason to examine Zimbabwe's domestic law against the background of the Covenant -- which was binding in its entirety -- to identify contradictions? Did not such contradictions exist between the provisions of the Covenant and the exceptions granted by domestic law in the interests of defence, public safety, public order, public morality and public health? Did the victims of misconduct by the police receive compensation? Were the police officers held responsible? Could the delegation describe the procedure whereby a person

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could complain about police brutality? To what body did that person address himself? If a statute was enacted, did it not take precedence over customary law?

OMRAN EL-SHAFEI, expert from Egypt, said the report was quite lengthy and comprehensive, but it did not always deal with the factual situation in the country. The report did not mention that the mass media was firmly under the control of the Government, through the Ministry of Information. That ensured that only material acceptable to the Government was published or made available. Had the Covenant been incorporated into the domestic law of Zimbabwe by an act of Parliament? Were the results of the investigation of incidents in which police officers had employed firearms available? What information was available on gender discrimination in immigration matters?

CECILIA MEDINA QUIROGA, expert from Chile, asked about inconsistencies between the Covenant and actions taken by the Government, as well as for elaboration on the fast-track system. The report stated that a person could be arrested for vagrancy. Was vagrancy a criminal offence? If so, what was the definition of vagrancy and what was the penalty for it? What about the unlawful arrests for which so much money had been paid? Was the compensation a State responsibility?

Was there a difference between customary law and customary practice? she asked. Were the customary practices consistent with constitutional law and, if not, what was the Government planning to do about it? Why had customary practices been put so far in the back of the report? If traditional law coexisted with constitutional law, how could such cruel and unusual practices as female circumcision be explained? The Family Act mentioned a ban on pledging of girls below the age of 12 years and of women. What about the girls in between?

DAVID KRETZMER, expert from Israel, said that every time the courts ruled against the Constitution in Zimbabwe, Parliament intervened to rewrite the Constitution to defeat the Covenant. However, having signed the Covenant, Zimbabwe was bound by it. For example, corporal punishment was wholly inconsistent with the Covenant, but the Constitution called for a medical doctor to rule on an individual's fitness to receive such punishment. That was a violation of the basic rules of medical ethics. Had there been any reaction on the part of the medical profession to being pulled into the issue of corporal punishment?

The right to traditional practices could not be used as an excuse not to act on matters that violated human rights, he said. For example, protections to prevent violence against women extended to protecting the rights of married women. He also asked about wording in the report which seemed to say that only the ruling party was allowed to seek public financing for political office.

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RAJSOOMER LALLAH, expert from Mauritius, said Zimbabwe's report was well written, but inadequate in certain respects. It had been drafted in accordance with the guidelines, but did not take into account much of the work done by the Committee so far, both in terms of its general comments and of the rich history of jurisprudence that had evolved during the past 20 years. The report should reflect a knowledge of what the Committee expected and what the Covenant meant. The Zimbabwe Parliament could amend the Constitution, but it was bound to the Covenant and could not amend it. The right to privacy, as understood in the Covenant, was not adequately protected in Zimbabwe. Privacy in the home was protected, but there was nothing in the Constitution that protected private lives of individuals.

The report stated that there was a dual legal system -- legislation and customary law -- but that the Constitution represented the supreme law, he said. If customary law discriminated against women, then it was not constitutional. Had the validity of the dual system ever been decided by a court? There seemed to be no law to guarantee the protection of women against violence in the home. Was family life guaranteed under the Constitution?

MARTIN SCHEININ, expert from Finland, said the report was comprehensive and its approach should be commended. Nevertheless, it did not give a fully factual picture of the situation in the country. The primary responsibility for securing compliance with the Covenant rested with the legislature. Was there a mechanism in place to ensure that the legislature would comply with the country's international legal obligations? Were there measures in place to ensure that procedural constitutional amendments would not amount to a violation of international human rights treaties?

When the Constitution was amended to sanction existing institutions for corporal punishment, had any effort been made to ensure that it did not contradict those instruments? he asked. Were there standards limiting the use of firearms in compliance with the Covenant? Concerning female genital mutilation and marital rape, what measures were being taken by the Government to ensure compliance with the Covenant's articles on the right to life and on freedom from torture or cruel, inhuman or degrading treatment?

NISUKE ANDO, expert from Japan, said the purpose of the country reports and of the Committee's consideration of them was to work together to come up with answers. Through the submission of its report, a country demonstrated its political will. Nevertheless, there was a problem between the legislation and customary law in Zimbabwe. Did the Government differentiating between mere customary practice and customary law? Sometimes legislation left matters to custom; that was true in any system. Was that what was happening in Zimbabwe? A two-thirds majority of Parliament was necessary to amend existing legislation, he said. To what extent were human rights issues considered in enacting such legislative amendments?

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Human rights meant that whether a person was in the majority or minority, by virtue of being human, the person had certain rights, he said. In Zimbabwe, it seemed there was a tyranny of procedural abuse over substantive law when the Parliament changed legislation in a way that did not comply with human rights obligations. As in the issue of gender equality, the law was there, but there was no mechanism to reach it. What was the Government doing about that?

Mr. CHIGUDU, Permanent Secretary of Home Affairs of Zimbabwe, said the actions Zimbabwe had failed to take in complying with the Covenant were not out of choice or disregard for international principles. Some issues were still bogged down because of cultural constraints. The Government was trying hard to implement all the articles of the Covenant. investigations had been carried out to identify failures in implementation. As soon as they were identified, attempts were made to put corrective provisions into place. Allegations of torture were brought to the Ministry of Political Affairs and then referred to the Chief of Police.

Customary laws regarding marriage were receding, and there was a machinery that allowed widows to appeal to the high court to settle inheritance problems, he said. However, many people married under customary law were not aware of their rights. An education programme had been established to pass knowledge on to the people so they could understand the importance of breaking the stranglehold of outdated customs. Lobola was still a matter of cultural law.

Regarding genital mutilation, he said he did not know if it existed in Zimbabwe. According to most cultural beliefs, a man who was married could not be seen as having raped his wife. The Government needed to identify that problem before a solution could be provided. Recently, the immigration laws had been changed so that they applied equally to men and women.

Ms. CHATUKUTA, of the Office of the Attorney-General of Zimbabwe, said the Inter-Ministerial Committee on Human Rights was mandated to identify the human rights instruments that had not yet been ratified, and then make recommendations to the Government for ratification. It also made recommendations to ensure the incorporation of those conventions into domestic legislation and to amend legislation so as to reflect their provisions. The Committee also ensured that the Government complied with its reporting obligations under such international treaties. It monitored the Government's compliance with human rights instruments and recommended changes in legislation to comply with international standards. The Committee was also asked to organize and conduct seminars in order to disseminate information about the international conventions. Financial constraints had prevented many workshops and seminars from being held, but non-governmental organizations had done some valuable work in that area. The Committee was an administrative body and did not have the power to review complaints of human rights violations.

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In instances of civil unrest, it was the Government's responsibility to ensure that there were no violations of human rights, either by the dissidents or government forces, she said. Individuals could bring actions against the Government for human rights violations. On a matter addressed earlier, she said the amount of compensation had been $150,000, and it was not paid by specific officers who violated the human rights, but rather by the concerned Ministry.

Prior to the new law, when a husband died, an heir would be appointed who would inherit the whole of his estate, she said. Now, when a husband died, the heir would inherit the name of the family, and the wife would get one third of the estate and the other dependants would get two thirds. The property would not be disposed of unless the proper inheritance procedures were followed. The difference in marriageable age for men and women was in place before Zimbabwe achieved independence and was one of the areas being discussed by the Inter-Ministerial Committee on Human Rights.

CHARITY NZENZA, Counsellor for Zimbabwe, said lobola was the bride prize given by the bridegroom to the bride's family in appreciation. The consent to marriage was granted between the husband and wife and did not involve the parents. The Government could not legislate against cultural beliefs. If a woman was raped and then dropped charges and married the person, the Government could not legally press charges.

Ms. MEDINA QUIROGA, expert from Chile, asked if such practices as genital mutilation existed. Had the law been changed with regard to guardianship and other gender inequalities? Could lobola be paid in instances of rape?

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