Is there political will to translate it into reality?
The promulgation of the new Constitution in Zimbabwe saw women celebrate the inclusion of provisions on gender equality and women’s rights in the supreme law of the land.The new Constitution espouses the values and principles of gender equality. In fact from a gender perspective it stands out as one of the most progressive Constitutions. There has been a significant improvement from the Lancaster House Constitution, which had provisions which were retrogressive with regard to gender equality, allowing discrimination in areas where personal law was applicable.
The State is to be lauded for having taken steps to comply with its obligations under the various international and regional instruments by enshrining provisions on gender equality in the Constitution. The inclusion of provisions on gender equality in the Constitution could not have come at a better time given Zimbabwe’s poor ranking on the Gender Index, where it is 116 out of 148 countries.
One of the values provided for in the Constitution is the supremacy of the Constitution and, to demonstrate that Zimbabwe holds to such values, the powers-that-be should strictly adhere to the provisions of the Constitution, striking down any legislation inconsistent with the Constitution. In the same way, commitment to the value of gender equality will be demonstrated through putting in place policies and legislation to promote gender equality and being guided by the same value in any decisions that have gender equality implications. Failure to do so will reflect a lack of genuine commitment to gender equality.
It should be noted therefore that despite the provisions in the Constitution there is little evidence that much has yet been done to ensure gender equality becomes a reality in Zimbabwe, particularly for women who have been marginalisedfor centuries. If anything appointments that have been made by the executive seem to confirm the stance of critics of the new Constitution, who have pointed out that it is too early for women to celebrate, that time would prove that provisions were mere window dressing. Less than ten months after the promulgation of the Constitution there has been an outcry from women who see no political will on the part of the powers-that-be to ensure gender equality is realised. Edinah Masanga, a gender activist quoted in the News Day of 7th February 2014, pointed out that,
“As a country we have beautiful policy papers on gender, laws and a new constitution which are there as mere window dressers and not implemented…It is high time the government moved from gender theory to action and start walking the talk.”
This article looks at some of the constitutional provisions on gender equality and seeks to establish the extent to which the state has upheld these provisions and shown commitment to gender equality.
Section 3(g) – the value of gender equality
Section 3(g) of the Constitution sets out gender equality as one of the values upon which Zimbabwe is founded; placed on a par with values such as the rule of law, good governance and supremacy of the Constitution, showing that it occupies a significant place in Zimbabwe. The State should endeavor to uphold its values since failure to do so will result in the public becoming sceptical of its sincerity. Zimbabwe’s commitment to the value of gender equality will be reflected in the decisions, policies and laws on gender equality that are put in place, and by addressing the current gender inequality, characterized by few women occupying positions of leadership in all spheres of the society and females being subjected to discriminatory and abusive practices that hamper their development.
Developments succeeding the promulgation of the Constitution seem to suggest that the value of gender equality is just on paper and is not being upheld. Three months after the Constitution was promulgated the President appointed the Cabinet but to most women’s surprise only three women were appointed, to the Ministerial posts of Higher and Tertiary Education, Women Affairs, Gender and Community Development and Small and Medium Enterprise. It dawned upon all who had hailed the new Constitution as being very progressive on issues of gender equality that progressive provisions on paper were not enough. Political will is critical to ensure that the letter and spirit of the provisions are adhered to. One female activist, Netsai Mushonga, as a reaction to the President’s appointment of just three female Cabinet Ministers remarked;
“We are disappointed at the low number of women appointed to Cabinet.The level of women representation is low.Women just have 9% representation and it is really inadequate.It goes against the SADC protocol on gender and Development which calls for 50/50 representation in governance by 2015.”
The action by the President has been described by many as retrogressive and contrary to the new Constitution, exacerbated by the President’s stance that there were very few educated women in Zimbabwe who qualified to be appointed to such posts. It is ironic that despite the Lancaster House Constitution not having specific gender equality provisions, in 2008 women constituted 16% of Cabinet Ministers. Yet under the progressive 2013 Constitution females constitute only 11% of Cabinet, three female Ministers out of the twenty six Cabinet Ministers. It is evident that the value of gender equality provided for in terms of section3(g) of the Constitution was not taken into account in making appointments to Cabinet, underlining the lesson for all that progressive provisions are inadequate unless accompanied by sincerity and political will on the part of leadership.
Section 17 - gender balance, a national objective
Section 17 of the Constitution clearly sets out gender balance as one of the national objectives which must guide the State and all institutions and agencies of government at every level in formulating and implementing laws and policy decisions. It is worded as follows:
a) The state must promote the full participation of women in all spheres of Zimbabwean society on the basis of equality with men
b) The state must take all measures including legislative measures needed to ensure that-
(i) Both genders are equally represented in all institutions and agencies of government at every level and
(ii) Women constitute at least half the membership of all Commissions and other elective and appointed governmental bodies established by or under this constitution or any act of parliament
c) The state and all institutions and agencies of government at every level must take practical measures to ensure that women have access to resources including land on the basis of equality with men
d) The State must take positive measures to rectify gender discrimination and imbalances resulting from past practices and policies
Though the above provision is not justiciable it places an obligation on the State to ensure that issues of gender equality are taken into account in legislation and policies.The importance of the national objectives, of which section 17 is just one, is demonstrated by the fact that section 46(d) calls upon courts, tribunals, forums and bodies to pay due regard to all the provisions of the Constitution, in particular the principles and objectives.
It is critical to note that the wording of section 17 (1) of the Constitution makes it mandatory for the State to promote gender balance, particularly the participation of women in all spheres of Zimbabwean society - economic, political and social. It is incumbent upon the State to promote such participation through positive action and also refrain from conduct which is discriminatory and marginalises women.
The government has been given kudos for having taken steps to promote the participation of women in politics through enacting both section 120(2) (a), which provides for the election of senators under a party system of proportional representation, in which male and female candidates are listed alternately, with females heading the list, and section 124(1) (b) which provides for seats reserved for women. The reservation of seats is aimed at promoting female participation in the political sphere, in line with section 17 of the Constitution.
Though there is argument against use of quotas to achieve gender equality by those who believe that it is tokenism, just increasing the number and not the quality of female leaders, it is submitted that this is a positive step, applicable during the life of the first two Parliaments, to address past imbalances. The provision has the effect of ensuring female representation in Parliament though the representation is not meeting the 50% that is stipulated in both the SADC Protocol on Gender and Development and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women
Though the State complied with section 124(1) (b) it is essential to note that gender balance has not been promoted in the appointment of cabinet Ministers, as already alluded to. As well as the three female Cabinet Minister, only four Deputy Ministers and four Ministers of State for provincial affairs were appointed, making a total of 11 females out of 64 ministers and deputy ministers. It is evident that where the State had the power to ensure that there was equal gender representation, the State did not do so. The sincerity of the State regarding gender equality is thus put under scrutiny and one cannot help but conclude that there is no political will to address the issue of gender equality, validating women’sclaims that the policies and laws are just window dressing whilst women continue to be sidelined from the political arena.
An analysis of the 2014 budget shows that there has been little effort on the part of the State to promote gender equality in Zimbabwe. The Ministry of Genderis the Ministry mandated with promoting gender equality, empowering women economically and ending all forms of discrimination and gender-based violence. However, in the 2014 budget it was allocated a paltry US$10.8 million, less than 1% of the US$4.3 billion national budget and nothing was allocated to the Anti-Domestic Violence Council,so it will not be able to deliver on its mandate.
Section 17(b) makes it mandatory to ensure that both genders are equally represented in all institutions and agencies of government at every level. A cursory look at some of the government institutions will reveal, for example, that currently there are no female mayors in any council in Zimbabwe and there is only one female town clerk. Furthermore parastatal boards are dominated by men. This includes boards such as the ZBC board, reconstituted after the Constitution had come into effect but comprising five females and seven males. Of the 24 permanent secretaries only eight are females. Currently gender imbalance is prevalent in most government institutions and agencies and it is critical going forward that Government complies with section 17b and ensures that appointments are made of persons of the gender not adequately represented, which in most cases would be females.
The recent appointment of members of the Judicial Service Commission (JSC) flies in the face of section 17b(ii) which makes it mandatory for the state to ensure that at least half the membership of all Commissions constitute women. If section 17b(ii) is strictly adhered to the Commission should comprise of six males and six females. However of the eight members recently sworn into the Commission, only two are female. It remains to be seen whether the remaining four appointees will be females, to ensure compliance with section 17b (ii). If that does not occur critics will once again be proven right that gender equality is just for an appearance of political correctness and there is no sincerity on the part of Government to ensure that it is a reality.
Section 80 - the rights of women,
The State is to be commended for having included section 80 in the Constitution, which outlines the rights of women, that women have full and equal dignity of person with men, including equal opportunities in political, economic and social activities. However in reality this does not appear to be the case, particularly in light of what has already been outlined pertaining to the appointment of Ministers to Cabinet and Commissioners to the Judicial Service Commission. If section 80 had been strictly adhered to, then the composition of Cabinet would have reflected this.
The foregoing demonstrates that, in as much as there are progressive provisions on gender equality enshrined in the supreme law of the land, a lot still needs to be done in order for Zimbabwe to attain gender equality as provided for in the various regional and international instruments. Political will is instrumental in translating the constitutional provisions into reality. It is not enough for the State to pay lip service to issues of gender equality. Where it is within the power of the State to ensure the attainment of gender equality then the State should demonstrate its commitment to the value of gender equality by ensuring that all genders are equally represented in all spheres of society. The provisions must be given effect by tangible action on the part of those whose responsibility is to promote gender equality. There is therefore need to push for gender equality through advocating for compliance with constitutional provisions.
Lucia Masuka Zanhi
Legal Programmes Director, LRF