3. State Party Reports
Definition of the child, general principles and civil rights and freedoms
23. A child under the Legal Age of Majority Act and the Children's Protection and Adoption Act is defined as a person under the age of 18 years. This definition falls in line with that of the Convention.
24. While the Constitution, the Children's Protection and Adoption Act and the Guardianship of Minors Act cover the general principles, civil rights and freedoms, the main problem has been in implementation. This has been hampered by cultural and religious practices, societal attitudes and parental discipline and control. The fact that most family issues go unreported has limited the consideration of the general principles, civil rights and freedoms by the legal system. A case in point is the Apostolic Faith sect's refusal of immunization and curative medical health care for their children. In this regard, difficulties have also been encountered in ensuring that abandoned children and refugee children and orphans are assured identity.
25. The enforcement of protection of children from harmful information through the appointment of a Censorship Board has remained problematic, as children still have access to censored material from video clubs and even in their homes.
Special protection measures
36. No specific provisions are made under the Constitution with respect to children in conflict with the law, but under the law they are afforded fair hearing when charged. The Children's Protection and Adoption Act provides for a juvenile court whose procedures are at the discretion of the magistrate, but are not without the regard of the child. Although special provisions for sentencing juveniles are embodied in the Criminal Procedure and Evidence Act, there is no specific protection for juveniles against life imprisonment. Children under 14 years of age cannot be prosecuted without the Attorney-General's authority and in practice this age group is dealt with outside the criminal court.
I. DEFINITION OF THE CHILD, GENERAL PRINCIPLES, CIVIL RIGHTS AND FREEDOMS
44. Under the Children's Protection and Adoption Act [Chap. 33] a child is defined in section 2 as any person (including infants) under the age of 16 years. On the other hand, under the Legal Age of Majority Act, 1982, any Zimbabwean under the age of 18 years is a minor. A person between the age of 16 years and 18 years, though a minor, is defined as a young person under the Children's Protection and Adoption Act. It has been suggested that the Children's Protection and Adoption Act should now be amended to reflect only one age, i.e. 18 years in order to avoid confusion.
45. There are areas of law where minimum ages are established. Whatever minimum age is set, it is noted that children are deemed to have limited capacity to act and therefore can only act with parental consent. Currently, legislation is under consideration to amend the Labour Relations Act and set a minimum age of 16 years for employment.
52. All children can give evidence in court. However, the court must be satisfied that a child can draw the distinction and appreciate what it means to tell the truth. The court may direct proceedings to be held in camera if it is in the interests of the welfare of a child. This is provided for by section 187 of the Criminal Procedure and Evidence Act [Chap. 59].
53. The general principle is that no child under the age of 7 years is capable of committing crimes. Between 7-14 years there is a rebuttable presumption that a child is incapable of committing a crime. Boys under the age of 14 years are deemed incapable of having sexual intercourse and therefore incapable of rape, but may, however, be found guilty of indecent assault. The protection of the identity of juveniles on trial is provided for by section 186 of the Criminal Procedure and Evidence Act which provides for the trial of a juvenile to be held in camera.
54. There is no restriction on the imposition of life imprisonment or custodial sentence in respect of minors. On conviction for a minor offence, a child is usually taken to a probation home if the sentence imposed is custodial. Section 13 of the Constitution provides that a person may only be deprived of his liberty by authorization of the law.
Civil rights and freedoms
68. Section 15 of the Constitution adequately provides against cruel, inhuman or degrading treatment or punishment (art. 37 (a)). Section 15 (3) (b) of the Constitution provides that moderate corporal punishment on those below 18 years of age is not inhuman and degrading. The issue of corporal punishment remains controversial, however, as the principle of "best interests of the child" is in conflict with the administering of corporal punishment.
V. SPECIAL PROTECTION MEASURES
Children in conflict with the law
247. Administration of juvenile justice (art. 40). Zimbabwe's Children's Protection and Adoption Act is very clear in this area. According to existing law, children in Zimbabwe are theoretically protected against any form of abuse. All persons are entitled under the Constitution of Zimbabwe to the protection of the law.
248. According to the Criminal Procedure and Evidence Act, where a minor is accused of an offence, the magistrate or presiding officer may, instead of admitting him to bail, release the accused to the person who has custody of the minor or place the accused in a place of safety in terms of the Children's Protection and Adoption Act. The Act provides for the establishment of a juvenile court to be an impartial authority. Court proceedings are not public and the Criminal Procedure and Evidence Act [Chap. 59] prohibits the publication of the identity of a minor involved in any court proceedings, and sets special provisions relating to punishment. However, due to ignorance and lack of awareness, some children are not enjoying their full rights.
249. As a result of a shortage of staff in the Department of Social Welfare, children tend to stay for too long in remand homes and there are interdepartmental delays in dealing with child welfare cases. Dialogue needs to be enhanced between all departments that deal with child welfare cases. There is need for the State to minimize the institutionalization of children and for community-based rehabilitation to be encouraged.
250. In summary, the law and procedures are quite clear. However, the State is faced with administrative problems and a shortage of facilities and resources.
251. Sentencing of juveniles - prohibition of capital punishment and life imprisonment (art. 37 (a)). The Children's Protection and Adoption Act of Zimbabwe takes care of all issues raised in this article. Capital punishment and life imprisonment are not practised on juveniles in Zimbabwe.
252. As previously noted, there is a shortage of personnel to follow up each and every case. There is need for Government to employ more probation officers to deal specifically with child welfare cases and to encourage use of community sentences as an alternative. It was also recommended that corporal punishment on juveniles be removed completely.
253. The Criminal Procedure and Evidence Act provides for a sentence of whipping, and the Criminal Procedures Act limits this to six strokes. It is important to note that corporal punishment is only practised on boys. The courts have found that whipping is not an appropriate or fair remedy for minors. However, to date no constitutional amendment has been made.
254. Children deprived of their liberty (art. 37 (b), (c) and (d)). The Children's Protection and Adoption Act covers all the issues of this article. In practice, there is no legal aid system accessible to everyone as people have to pay for legal services. One of the main difficulties encountered is that due to limited facilities for juveniles, some of them are remanded in prisons thereby exposing them to adverse adult exploitation. However, it is the Government's policy to segregate juvenile offenders from adult offenders both in the pre-trial and post-trial stages. The Prison Service has been instructed to separate juvenile from adult offenders.
Source: Initial reports of States parties due in 1992: Zimbabwe, UN Doc. CRC/C/3/Add.35, paras. 23-25, 36, 44-45, 52-54, 68, 247-254 (12 September 1995)