Eliminating harmful practices against women in Zimbabwe: Implementing article 5 of the African Women’s Protocol

1 Introduction

The year 2018 marked a decade after Zimbabwe became a state party to the landmark Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol). The Protocol was adopted on 11 July 2003 in Maputo, the capital of Mozambique, and entered into force on 25 November 2005, after having achieved the required 15 ratifications. Zimbabwe ratified the Protocol on 15 April 2008 and thus committed itself to be bound by its provisions.

Similarly to the African Charter on Human and Peoples’ Rights (African Charter)1 and other human rights instruments2 that preceded the Protocol, it was developed to promote and protect human rights. Distinctively, the Protocol was designed to protect women in a more comprehensive manner than pre-existing instruments.3 Paragraph 11 of the Preamble to the Women’s Protocol states that the Protocol was adopted to address the concern that ‘despite the ratification of the African Charter and other international human rights instruments by the majority of the states ... women in Africa still continue to be victims of discrimination and harmful practices’.4 In light of the provision above, Viljoen states that ‘[t]he Protocol should not be viewed as correcting normative deficiencies in international human rights law dealing with women’s rights, but rather as a response to the lack of implementation of these norms’. 5

The Protocol is hailed as the most inventive and exciting development in women rights protection since the formation of the African Union (AU) as it lays down essential human rights standards for African women.6 The Protocol directs state parties to promote, protect and enforce the rights of women, some of which were never ensured by international instruments, including the right to HIV services7 and to abortion.8 The Protocol further guarantees women’s rights to affordable, adequate, and accessible health services,9 among other socio-economic rights of women. The civil and political rights of African women are also guaranteed by the Protocol.

Fundamental to this study is the ability of the Protocol to articulate the state’s duty to protect women and girls from harmful practices.10 Article 5 of the African Women’s Protocol directs state parties to the Protocol to condemn and prohibit all forms of harmful practices affecting the enjoyment of human rights by women in society through legislative and other measures necessary.11 For these reasons, the Protocol is regarded as the most progressive tool for the realisation of women’s rights.12 As a state party to the Protocol, Zimbabwe is directed to implement the Protocol through taking all necessary legislative measures, creating public awareness, providing support to victims, protecting women and other measures to eliminate harmful practices at all levels of society.13

Attempts by scholars to do research on the domestic effect of the African Women’s Protocol have tended to focus on the entire Protocol.14 These studies in passing hail the Protocol’s declaration on the elimination of harmful practices in society, without an in-depth analysis of the extent of implementation at national level.15 In Zimbabwe studies on harmful practices concentrate on the prevalence and effect of such practices on women and girls,16 but not on the domestic effect of the Women’s Protocol in relation to ending harmful practices. This study evaluates the extent to which Zimbabwe implemented the provisions of article 5 of the African Women’s Protocol, focusing on legal, constitutional and policy reforms implemented to end harmful practices in Zimbabwe after the ratification of the Protocol in 2008. A study of this nature is important in revealing Zimbabwe’s compliance with regional human rights mechanisms.

As good as the vision of article 5 of the Women’s Protocol seems in advancing the rights of African women, its injunctions require actions beyond a mere declaration to include the domestication and effective implementation by state parties. In this article implementation is construed as synonymous to putting into practice commitments made by the Zimbabwean government under the Protocol.17 To be specific, the article concerns itself with the passage of domestic policies and legislations that resemble article 5 of the Protocol, as well as with the creation and resourcing of national institutions that are mandated to end harmful practices. It is only upon implementation that article 5 of the Protocol can be seen to be effective in the lives of African women, in general, and Zimbabwean women, in particular. As Viljoen stated, the effect of an international treaty has to be ‘felt at the national level if it is to meet the basic rationale for its adoption, which is the full realisation of the rights provided for under the Protocol’.18

The article starts with this introductory part, followed by a discussion of the prevalent harmful practices in Zimbabwe, and their impact on the lives of girls and women. In the parts 3 and 4 the article evaluates the implementation of the African Women’s Protocol in terms of legal, policy and institutional reforms for the protection of women against harmful practices in Zimbabwe. The last part of the article contains the conclusion and recommendations. The article is based on literature review of books, articles and legal, policy and institutional reports, and newspaper articles related to issues under investigation.

2 Harmful practices and their impact on women in Zimbabwe

Cultural practices reflect different values and beliefs held by members of a society from generation to generation. Almost every society the world over has specific traditional cultural practices and beliefs, some of which are beneficial to society, while a majority of them are detrimental to the enjoyment of rights by girls and women.19 According to the African Women’s Protocol, harmful practices are defined as ‘all behaviour, attitudes, and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity’.20 The definition of harmful practices is unique to the Women’s Protocol in that it not only includes the

acts that negatively affect the fundamental rights of women and girls but also the attitude which would include mindsets, opinions and way of thinking, among others, which is not only ambitious, but also brings up the question of how much can actually be affected by law and legal mechanisms. It is an uphill task to change people’s minds through law.21

A cohort of these harmful practices includes child and early marriages; virginity testing; child betrothal; the appeasement of avenging spirits; and dowry price payments. These practices often are inherited from ancestors, and continue to be perpetuated by generations.

Child marriage entails any marriage entered into with and by persons below 18 years of age.22 In 2015 the prevalent rate of child marriages in Zimbabwe’s provinces was at 42 per cent in Mashonaland West; 50 per cent in Mashonaland Central; 36 per cent in Mashonaland East; 39 per cent in Masvingo; 31 per cent in Midlands; 27 per cent in Matabeleland North; 18 per cent in Matabeleland South; 10 per cent in Bulawayo; 30 per cent in Manicaland; and 19 per cent in Harare.23 The practice tends to affect girls more than boys. Since 2008 an estimated 8 000 girls in rural Zimbabwe have been forced into early marriages or were held as sex slaves.24 The practice is believed to be increased by religious groups such as the polygamous Apostolic sects which encourage marrying off young girls.

In mainstream society parents often arrange child marriages for young girls so as to receive roora or lobola25 (bride price and benefit material wealth) from better-off families. This sometimes is done through the kuzvarira26 and kuripa ngozi27 cultural practices. While these two practices appear to have almost disappeared from Zimbabwean society, anecdotal and empirical evidence28 suggests their secretive existence among the poor, traditional and religious groups in remote areas. An empirical study by Mapuranga found these practices to be prominent among the Mabee-Rukangare villages further south of Chipinge, near Mozambique.29 Zimbabwean societies practise their kuzvarira and kuripa ngozi ways in secret, without the consent of the child and the knowledge of community members.

Nowadays these practices, especially that of kuzvarira, come in various dimensions, with some girls being sent as helpers and later on being taken as wives. In all these arrangements the parents of the girl child get roora or lobola from the groom. In the majority of cases a young girl who is a virgin often fetches more proceeds for her family in terms of dowry paid by the husband-to-be. As a result, poor families conceive of the bride price paid for underage girls as their saviour in poverty and their pathetic situations. In its purest form, the practice of the roora/lobola payment to in-laws is an acceptable cultural way of formalising marriage relationships in Zimbabwe and many other African societies. Notwithstanding this, the practice often is abused by many poor parents or guardians who use young girls as their ‘gateway’ off their poverty situations. In a way, the need for roora/lobola is equivalent to viewing children as an economic resource, with an exchange value disguised as the bride price.30

In most cases child marriages are arranged by the girl’s parents or guardians whose desires take precedence over the rights and interests of the girl child.31 Child marriage takes away the fundamental rights of the bride, and exposes her to abuse, violence and other forms of human rights violations. The girl child is robbed of her childhood, which is necessary to develop physically, emotionally and psychologically. Child brides fall pregnant at a tender age, and are forced to perform household and adult duties before they are emotionally, mentally and physically fit for these tasks. Early pregnancies result in birth complications. On the same note, child brides often give birth to premature babies, sometimes with a low body weight. Child brides often drop out of school to get married. Without education, a child bride’s life is bleak as she lacks the much-needed enlightenment and information to survive in society and even to seek formal employment. Consequently, child marriage plays a central role in increasing vulnerabilities on the married girl’s human rights. The long-term effects of child marriage include misery and a failure by the child bride and her children to satisfy their critical human needs in life. Thus, a vicious cycle of poverty and misery is created.

Female genital mutilation is another form of harmful traditional practice valued in many African countries. However, this is not practised in Zimbabwe. Related to this is the chinamwari or khomba cultural practice in Zimbabwe. The practice is prevalent and widely respected among the Shangani people in parts of Chiredzi and the Lemba people in parts of Mberengwa. The practice requires that young girls of 13 to 16 years, and even newly-married women, be sent for initiation schooling outside the villages with old women.32 There, young women are taught about married life, especially sexual expertise, so as to please their husbands during the marriage. Researchers have mixed feelings about the practice, with some supporting and others blaming it for a violation of the girl child’s rights.33 The bone of contention often stems from the conditions in which they live during the ceremony. The practice often is conducted in winter (when temperatures are severely low) and initiates spend the duration of the initiation process in the bush half dressed.34 The trainees often are beaten, pinched, forced into icy cold water and are not allowed to warm themselves by the fire.35 These are some of the human rights violations that young girls suffer during the chinamwari or khomba initiation practices.

Related to the chinamwari or khomba practice is the virginity testing practice, which largely violates the rights of the girl child in modern-day Zimbabwe.36 A study by Human Rights Watch quoted Archbishop Johannes Ndanga, president of the Apostolic Churches Council of Zimbabwe, a coalition of over 1 000 indigenous apostolic churches, who confessed that ‘virginity testing’ - which includes the insertion of fingers into the vagina - of girls as young as 12 was widely practised in the apostolic churches.37 Bishop Ndanga once banned an apostolic sect headed by Ishmael Chokurongerwa, accusing the sect leader of abusing women and girls’ rights through forcing them to undergo virginity testing. As police officers went to the shrine to investigate the accused, Chokurongerwa and his congregates teamed up to the law-enforcing agents, resulting in the sect leader and others being arrested and sentenced in the Chokurongerwa case.38

When virginity testing is done in the home, elderly women (the mother, aunt or the neighbour) can check the virginity of a girl child by inserting a finger into the vagina of the girl to see if the hymen still is intact.39 In some communities and cultures elderly women tasked with the job organise a ceremony or session where they conduct the procedure of inserting their fingers into young girls’ vaginas.40 The practice is prevalent in rural Zimbabwe, in some cases with blessings from traditional and religious leaders.41 Those in support of the practice are quick to provide its benefits as combating the spread of HIV, identifying children who are sexually abused by family members, preventing unwanted pregnancies amongst others.42 Conversely, the practice remains detrimental to women’s enjoyment of rights as they are humiliated and undermined of their dignity and bodily integrity.43

All the harmful practices presented under this part infringe on the fundamental rights of women and young girls. Despite their harmful nature, and the efforts put in place to enlighten society about the detrimental effects of such practices, the practices persist as they are not questioned and take on an aura of morality in the eyes of those practising them.44 In the majority of cases the practices occur in secret, and in rural Zimbabwe without the knowledge of law-enforcement agents.45 Scholars have blamed the persistence of these practices on many factors including the limited implementation and awareness of women’s rights and legal instruments that protect the rights of women, and the inadequacy of laws that specifically speak against harmful practices.46 Thus, the call by article 5 of the African Women’s Protocol for innovative legislative and policy reforms, the widespread creation of awareness, the provision of support to victims, the protection of women and other measures to eliminate such practices at all levels of society is found judicious. While article 5 of the Protocol is a critical standard-setting clause for ending harmful practices against women, this acknowledgment by researchers and states is insufficient to ensure the progressive realisation of women’s rights in society. The actual elimination of harmful practices lies in the extent to which the clause is domesticated and effectively implemented. The next part addresses this goal.

3 Constitutional and legal reforms to end harmful practices

4 Policy frameworks

The Zimbabwean government implements article 5 of the African Women’s Protocol through various national policies. Even without clearly mentioning the Women’s Protocol in these policies, the contents of such instruments reflect ideals of the Protocol in relation to harmful practices. Zimbabwe commendably launched the National Action Plan on ending Child Marriages in 2018, with five line ministries and their departments pledging to implement policies and programmes to eradicate child marriage.85 Similarly, the National Health Strategy for Zimbabwe 2016-202086 has three main objectives, the first objective being the strengthening of priority health programmes. Under this goal reproductive health is priority number three. This is commendable as reproductive health mainly is affected by harmful traditional practices such as early child marriage. The Strategy acknowledges:87

Adolescents and young people contribute significantly to maternal deaths. Zimbabwe has a youthful population, with two-thirds of the population below the age of 25 years. The youth is one of the key affected population groups as most of the sexual reproductive health indicators for youth are either deteriorating or remaining high.

This Strategy also is in line with the African Women’s Decade88 theme number three which focuses on ‘women’s health, maternal mortality and HIV and AIDS’. The establishment of such a policy therefore is significant for the protection of women’s rights against harmful practices as it complies with article 5 of the African Women’s Protocol, precisely the obligation to take all necessary legislative and other measures to eliminate such practices.

The National Gender-Based Violence Policy89 was designed for the reduction of violence against women. The Policy acknowledges the importance of international instruments ratified by Zimbabwe, including the African Women’s Protocol. In its key result area number one on prevention, the Policy includes the prevention of harmful traditional practices such as child marriage and wife inheritance. Furthermore, the Policy clearly states as its output number one the

increased capacity of leaders at all levels to address Gender-Based Violence (GBV) including negative cultural and religious practices that fuel violence against women and girls as the major challenge in combating GBV is to change prevailing beliefs, attitudes and norms that contribute to the acceptability and perpetuation of GBV.90

This is language similar to that of the African Women’s Protocol which laments prevalent cultural norms and values that affect women’s enjoyment of rights in society.

The National Adolescent and Youth Sexual and Reproductive Health Strategy91 addresses sexual reproductive health challenges among adolescents and young persons between the ages of 10 and 24 years in Zimbabwe. The strategy identifies the key challenges facing adolescents and young people as the high rates of unplanned pregnancies, early child bearing, adolescent marriages, gender-based violence and maternal mortality. In the same way as the African Women’s Protocol, this policy managed to identify child marriage and early child bearing as the major challenges facing adolescents in Zimbabwe. Suffice to say that the Strategy is a good working document in as far as the elimination of harmful practices is concerned.

The National Gender Policy92 seeks to achieve a gender-just society where men and women enjoy equality and equity and participate as equal partners in national development processes. The goal of the Policy is ‘to eradicate gender discrimination and inequalities in all spheres of life and development’.93 The Policy can be applauded for making reference to the African Women’s Protocol as its guiding document. Therefore, the Policy seeks to give effect to the obligations contained in the Women’s Protocol.94 Such reference to the Protocol as the basis of the Gender Policy brings hope that the obligations contained therein will be complied with.

5 Efforts by national institutions and civil society and non-governmental organisations

Government ministries are also important actors in implementing the provisions of article 5 of the Women’s Protocol in Zimbabwe. This has been done through research and the submission of state party reports, advocacy, awareness raising through commemorations and the celebration of key African and national calendar events such as the 16 Days of Activism against GBV. In July 2015 Zimbabwe launched the African Union Campaign to end child marriages. This platform allowed for various government ministries and departments to raise awareness through road marches and speeches against child marriages. Platforms such as this re-energise stakeholders and have become routine fora through which stakeholders explore avenues for cooperation, and share notes on efforts to end harmful practices.

However, the positive impact of these efforts by government ministries is limited by resource constraints. Due to limited funding most of these commemorations are planned and executed in urban centres with the exclusion of women in rural areas, where cultural norms and values weigh too heavily against women’s enjoyment of rights. In addition, most activities exclude men who comprise an important constituent in fighting harmful practices. Men comprise the majority of economic, political and religious leaders, who wield power over many aspects of women’s lives. For this reason men's attitudes and behaviour should not be ignored in efforts meant to end harmful practices.

National independent institutions including the Zimbabwe Gender Commission (ZGC) and the ZHRC are proving to be indispensable institutions in implementing article 5 of the African Women’s Protocol. Established in 2009 and becoming operational in 2014, the ZHRC has a mandate to promote research on, awareness of and respect for human rights and freedoms, including those of women. In 2015 the ZHRC commissioned a Baseline Survey on the human rights situation in Zimbabwe.95 The Baseline Survey exposed the challenges, perceptions and attitudes that society has towards cultural practices. Importantly, the ZHRC established a Thematic Working Group on Gender and Women’s Rights which is proving to be key in research and awareness raising on harmful practices against women and girls. In 2015 the Commission’s Working Group conducted a televised public dialogue with government institutions, NGOs and CSOs and faith-based organisations on the strategies to end child marriage.96 The dialogue produced a documentary and position paper that were publicised through various media platforms including the press, the electronic media and social media platforms, thus creating awareness on the impact and strategies to end child marriages in accordance with its constitutional mandate and article 5(a) of the African Women’s Protocol.

The ZHRC also works together with other Chapter 12 institutions97 including the ZGC as conduits for implementing article 5 of the Women’s Protocol in Zimbabwe. However, the potential of grant-aided institutions such as the ZHRC and the ZGC, as in the case of government ministries, is limited by financial constraints in Zimbabwe. Even with the budget vote from Treasury and supplementary donor funding, the resources remain inadequate for most grant-aided institutions. Few donors are able to partner with grant-aided institutions considering the involvement and need for permission of the responsible Minister when commissions engage a certain donor for funding.98 As such the ZHRC and the ZGC have had their fair share of financial constraints in advancing human rights. The government has often been criticised for deliberately starving grant-aided institutions of resources and interfering excessively in their work, thus compromising their independence and effectiveness.99 For the year 2019 the ZGC was given a budget of only US $2 million for employment costs, operational costs and maintenance as well as capital expenditure.100 This amount is inadequate to ensure that the ZGC effectively carries out its constitutional mandate, including the protection and enforcement of women’s rights against harmful practices. Without adequate resources, national institutions have largely confined their activities to low-cost activities such as human rights promotion through the issuing of press statements denouncing harmful practices against women.

NGOs and CSOs play crucial roles in efforts meant to implement article 5 of the African Women’s Protocol through research, education, advocacy and lobbying the government to end harmful practices. In 2008 non-state actors were instrumental in lobbying the government to ratify the Protocol. Thereafter, CSOs continued to call upon the government to implement the provisions of African human rights systems, including recommendations by the African Commission on Human and Peoples’ Rights (African Commission). In some instances CSOs with African Union (AU) observer status101 contribute to the protection and promotion of human rights by taking part in AU processes, including doing research and submitting shadow reports to the African Commission to complement state reports. These shadow reports are crucial as they often provide an independent assessment of the human rights situation which might be lacking in government reports.

Some notable examples of CSOs that implement the African Women’s Protocol include the Women’s Coalition of Zimbabwe, which works tirelessly to end child marriage. In 2017 members of the Women’s Coalition of Zimbabwe102 launched a two-year project titled ‘Amplifying community voices against child marriages’ in Norton, Chiweshe and Mbare.103 The aim of the project is to encourage community action against child marriages by transforming societal attitudes and perceptions to form a strong and coherent voice against harmful traditional, cultural and religious practices that support child marriage in Zimbabwe. Projects of this nature raise awareness at grassroots level, from where the problem of harmful practices, and child marriages in particular, emanates. Therefore, raising awareness and involving citizens at grassroots level can go a long way towards eradicating harmful traditional practices against women.

In most cases NGOs and CSOs forge partnerships with government ministries to sensitise and raise society’s level of awareness about harmful practices. Plan Zimbabwe, together with the Ministry of Women’s Affairs, Gender and Community Development is implementing the 18+ Ending Child Marriages project in three programme unit areas. The objectives are to increase support from community members and leaders to discourage child marriage; to empower girls to be better equipped to resist socio-economic pressures that lead to child marriage; and to ensure that community members have increased knowledge of the realities of child marriage.104 This project has also roped in the Zimbabwe National Chiefs’ Council, which is playing a pivotal role in protecting the rights of the girl child by preventing child marriages.

Similarly, Development Aid from People to People (DAPP), a Zimbabwean NGO, launched a four-month campaign to end early and forced child marriages in Mashonaland Province. Conducted between November 2015 and February 2016, the programme mobilised traditional leaders and activists to take action to prevent early and forced child marriages, and raising community awareness on the rights of girls in line with human rights and women’s rights statutes. As the custodians of culture, the inclusion of traditional leaders is crucial for ending child marriages and other harmful practices in their societies.

6 Conclusion

Despite the constitutional, policy and judicial attempts discussed above, some harmful cultural practices remain prevalent in Zimbabwe. This is partly due to the slow pace of legislative reform that specifically deals with the elimination of harmful practices against women. Such delayed legislative reform is in clear violation of article 5 of the African Women’s Protocol. It requires more than legislation and litigation to address this current state of blatant violation of women’s rights. There is a need for a more holistic approach that includes the speedy alignment of laws, advocacy, human rights education, awareness raising on legislation, a change in patriarchal mind-sets and political will. In all these efforts, both men and women have an important role to play. Most harmful cultural practices are perpetuated by and for men and the affected parties almost always are women. Nevertheless, not all men are culprits.

For any mechanism to effectively achieve the goal of article 5 of the African Women’s Protocol, all stakeholder approaches that involve perceived perpetrators and victims should be implemented. It is key to also address the need for political will from the powers that be to eliminate harmful traditional practices. Put differently, the only durable solution is for everyone to be responsible for the elimination of harmful traditional practices: women, men, civil society, the judiciary and, of course, the state. It is a shared responsibility and until and unless it is seen in that light, women will continue to suffer the prejudices caused by harmful traditional practices.