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Religion, law and human rights in Zimbabwe

Tarisai Mutangi

Researcher and LLD candidate, Centre for Human Rights, University of Pretoria, South Africa

SUMMARY

This article is an audit of the interplay between religion, law and human rights in Zimbabwe. It examines key issues such as the legal framework in place for the protection of freedom of conscience, including court jurisprudence, the religious demography of Zimbabwe, and the place of religion in politics, education and the Zimbabwean lifestyle. It also scrutinises the co-existence of ideologically antagonistic practices, such as Pentecostal Christianity versus indigenous beliefs and practices. The article argues that the subject of religion is not a sensitive one in Zimbabwe, hence it does not easily occur in political or general debates. Drawing from his own experiences, the author concludes that, apart from looking after spiritual needs, churches play a significant role in subsidising the state's obligations in the provision of socio-economic rights such as health, education and food. For this reason, churches have an important place in national politics as partners in development. The article concludes by citing problematic areas involving religion and politics, such as child marriages practised in certain religious groupings. The author also notes the harassment of church leaders who express their alarm about the political and economic melt-down of the country. This is another problem bedevilling a somewhat previously tranquil relationship between the state and religion.

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* LLB (Zimbabwe), LLM (Human Rights and Démocratisation in Africa) (Pretoria); mutangit@yahoo.com
1 United States v Ballard 322 US 78 (1944) 86-7 (quoting Justice Douglas).
2 Constitution of Zimbabwe 1980, as amended by 18 Constitutional Amendment Acts of Parliament.
3 F Viljoen International human rights law in Africa (2007) 4-5.         [ Links ]
4 R Horton 'A definition of religion, and its uses' (I960) 90 Journal of the Royal Anthropological Institute of Great Britain and Ireland 201.         [ Links ]
5 As above.
6 Case SC 26/07 (2007) ZNSC. This case will be fully discussed in the coming paragraphs in relation to the relationship between law, religion and human rights.
7 The population make-up has its history in the colonial period when there used to be the Federation of Rhodesia and Nyasaland, also known as the Central Africa Federation (CAF) (1953-1963), which encompassed Northern Rhodesia (Zambia), Southern Rhodesia (Zimbabwe) and Nyasaland (Malawi). With Southern Rhodesia being the economic hub, manpower for mines and farms was drawn from throughout the Federation, hence a substantial portion of people with Malawian and/or Zambian origin. The Federation crumbled in 1963 when Northern Rhodesia and Nyasaland became independent. See R Blake A history of Rhodesia (1977);         [ Links ] P Mason Year of decision: Rhodesia and Nyasaland in 1960 (1961);         [ Links ] R Dorien Venturing to Rhodesia and Nyasaland (1962);         [ Links ] CH Thompson Economic development in Rhodesia and Nyasaland (1954);         [ Links ] LH Gann Central Africa: The former British states (1971);         [ Links ] RA Sowelem Toward financial independence in a developing economy: An analysis of the monetary experience of the Federation of Rhodesia and Nyasaland, 1952-63 (1967).         [ Links ]
8 'So where are Zimbabweans going?' http://news.bbc.co.uk/Vhi/world/africa/4416820.stm (accessed 30 September 2008).         [ Links ] The article puts together and analyses statistics from different organisations and comes to a conclusion that, though exact numbers are not known, the most probable figure is three million.
9 'Freedom in the world 2008: Zimbabwe' http://www.freedomhouse.org/uploads/press_release/Zimbabwe_FIW_08.pdf (accessed 30September 2008).         [ Links ]
10 https://www.cia.gov/library/publications/the-world-factbook/print/zi.html (accessed 3 March 2008).
11 As above.
12 These demographic figures have been confirmed as accurate as at 17 April 2007 by Indexmundi Co http://www.indexmundi.com/zimbabwe/religions.html (accessed 2 March 2008).
13 For the Jewish community in Zimbabwe, see http://www.zjc.org.il/showpage.php (accessed 30 September 2008).
14 US Department of State International Religious Freedom Report, Zimbabwe, 2007, released by the Bureau of Democracy, Human Rights and Labour.         [ Links ]
15 As above.
16 In Masvingo Province, a provincial area believed to produce Zimbabwe's largest and finest academics and leaders, almost all the first-ranked secondary schools are church-run and, therefore, commonly called 'mission schools'. These include Gokomere (Catholic), St Anthons Mission (Catholic), Chibi Mission (Catholic), Berejena Mission (Catholic), Holy Cross (Catholic), Dewure (Catholic), Zimuto Mission (Catholic), Silveira Mission (Catholic), Mukaro Girls High (Catholic), and Gutu Mission (Catholic).
17 Sec 19 of the Constitution of Zimbabwe, 1980.
18 As above.
19 Isaiah 1:18 provides: 'Come let us reason together says your God. Even if your sins are as red as scarlet, I will cleanse them as white as snow' (the King James version). On this basis, Christians maintain that the call of God is one of negotiation rather than sanction of punishment, hence one ought to have effective control over when to join or to leave the faith.
20 See US Department of State (n 14 above).
21 The author personally went through all these stages in the Zimbabwean education system, both as a student and teacher, and studied all the variations of religious instructions. Therefore he has first hand appreciation of the content of the curricula and the effect it has on the personality of the recipient of such instruction. Unfortunately, efforts to secure a source of these modules proved futile.
22 Easter Friday, Sunday and Monday and Christmas Day (25 December) are public holidays, whilst usually no work is done on a Sunday. However, it is not an offence to carry out work on this day. The requirement is that, should workers come to work on a Sunday, employers must pay double the daily rate as they do on public holidays (Labour Act, ch 28; 01 http://www.parlzim.gov.zw).
23 See generally I Linden The Catholic Church and the struggle for Zimbabwe (1980).         [ Links ]
24 See 'Zimbabwe religions' http://www.britannica.com/eb/article-44150/Zimba-bwe (accessed 30 September 2008). It is also on record that the former President of Zimbabwe, Robert Mugabe, received education at Kutama Catholic Mission, a secondary school close to his home area, and so did many other elderly politicians and other leaders in society. Missionary schools simply command a majority in the Zimbabwe education system.
25 The proposal was rejected by the Commission tasked to collect views from the people regarding what they wanted to be included in the new Constitution. Whilst it is unlikely that the Draft Constitution was rejected on this basis only, many believe that it was the concentration of political power that led to its rejection by the electorate, who were largely influenced by those against centralisation of political power.
26 In the case of Christian Education SA v Minister of Education 1998 12 BCLR 951 (CC), the South African Constitutional Court quoted with approval the findings of Gubbay CJ (as then he was) in the Zimbabwean case of In Re Chikweche 1995 4 SA 284 (ZSC), where the Supreme Court of Zimbabwe held in paragraph 538F: 'This Court is not concerned with the validity or attraction of the Rastafarian faith or beliefs; only with their sincerity.'
27 In terms of sec 24(3) of the Constitution, complaints regarding the violation of the Bill of Rights shall be referred to the Supreme Court, which in that case sits as a Constitutional Court made up of five judges.
28Chikweche (n 26 above).
29 Legal Practitioners Act, ch 27:07.
30 Concurring with the judgment of the full court, Justice McNally dissented in part, expressing his reservations about the notion that Rastafarianism was a religion. He, however, agreed with the full bench that, notwithstanding the lack of clarity as to whether it was a religion, it qualified for protection under sec 19 for the reason that the provision is wide enough to protect such philosophical and cultural expressions as are strongly binding on individuals. The same approach of endorsing Rastafarianism as a religion was taken by the Constitutional Court of South Africa in the case of Prince v President of Law Society of the Cape & Others 2000 7 BCLR 823 (CC). In that case the Court quoted with approval the findings of the Supreme Court of Zimbabwe in the Chikweche case to the effect that Rastafarianism was a religion and therefore protected as such under the relevant constitutional provisions. The Court further observed that, despite the fact that possessing and smoking cannabis is illegal; the illegality did not deprive the practice of its status as a central practice in the Rastafarian religion.
31 n 6 above.
32 Ch 9:19. This Act of Parliament was enacted during colonialism. Its effect was to punish any person who accused another of the act of witchcraft, a practice ordinarily regarded by society as evil, given that the belief is that followers of that practice are involved in killing other people through spells and bad omens.
33 In March 2007, the opposition political party Movement for Democratic Change organised a prayer for Zimbabwe, a gathering the government interpreted as an attempt to rally people behind the opposition and influence political opinions in view of the approaching general elections in March 2008. The state violently disrupted these meetings, arresting and assaulting opposition leaders in the process. One might read the event not as a violation of freedom of religion because the credibility of the prayer was questionable, but as one of attempting to hide behind religion whilst pushing a political agenda.
34 Administered through the Marriages Act, ch 5:11.
35 This marriage is regulated by the Customary Marriages Act, ch 5:07.
36 Bigamy is a common law offence that is imposed on a party to a civil marriage who contracts another marriage whilst the first civil marriage is still valid.
37 There is yet a customary practice with similar consequences of marrying off girl children to another family as a way of appeasing the dead from the marrying family. This normally occurs where a member of the marrying-off family killed a member of the marrying family. This practice is called kuripa ngozi (appeasing the dead). In its concluding observations on the Zimbabwe report, the United Committee on the Rights of the Child (Concluding observations of the Committee on the Rights of the Child: Zimbabwe CRC/C/15/Add.55 http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/514a5359399c3a 88c12563610049128c?Opendocument) expressed its disappointment regarding the prevalence of this practice in some sectors of the Zimbabwean society. It accordingly recommended that Zimbabwe should ensure that the practice is terminated forthwith through legal reform as the practice had adverse effects on girls and unduly diminished their choice of the kind of life they would want to lead.
38 In terms of sec 5(1)(a) of the Sexual Offences Act, ch 9:21, a male adult who has sexual intercourse (even consensual) with a girl under the age of 16 years commits the offence of rape.
39 H Arntsen The battle of the mind: International new media elements of the new religious political right in Zimbabwe (1997) 47 145 http://www.scholars.nus.edu.sg/landow/post/zimbabwe/religion/ zreligionov.html (accessed 30 September 2008).         [ Links ]
40 C Hallencreutz & A Moyo Church and state in Zimbabwe (1988) 202.         [ Links ]
41 The media regularly publishes stories of religious leaders who have been excommunicated by their congregations for failing to abide by the dictates of Christian values, such as financial mismanagement, sexual immorality, abuse of office, and so on.
42 This is a cause of concern that might pose a future problem, since some churches, especially the African Apostolic churches, still perpetuate the oppression of women, thereby countering all efforts directed towards equality and emancipation.
43 The Bible records that Jesus Christ gave a prayer outline to his disciples that largely covers the main areas of one's life, such as sufficient provision for the day, deliverance from temptation and evil, as well as forgiveness. This prayer is almost like a national anthem. It is recited in many schools, both private and public, but for the reason that it is not a legal requirement and is not recorded, one might not easily find the origin of this practice.
44 Most government and church-run schools require students to purchase hymn books and/or prayer pamphlets, eg Victoria High School in Masvingo Province, which is a government-run school, requires all students to own and bring a hymn book to the chapel where a minister of religion preaches a short sermon relevant to the age group and expectations of students.
45 The reason why the church is given reverence by political leaders might be ascribed to the role played by the missionary churches and leaders during the liberation struggle. A number of authors have written widely on this subject wherein they attempted to expose the role played by churches and traditional leaders. See generally C Banana The church in the struggle (1996);         [ Links ] AJ Dachs & W Rea The Catholic Church and Zimbabwe (1979);         [ Links ] Hallencreutz & Moyo (n 40 above); D Lan Guns and rain: Guerrillas and spirit mediums in Zimbabwe (1985);         [ Links ] Linden (n 23 above); DJ Maxwell 'The church and democratisation in Africa: The case of Zimbabwe' in P Gifford (ed) The Christian churches and the democratisation of Africa (1995) 108;         [ Links ] RH Randolph Dawn in Zimbabwe: The Catholic Church in the new order: A report on the activities of the Catholic Church in Zimbabwe for the five years (1977-1981) (1985).         [ Links ]
46 nn 10-14 above.
47 In this case we hereby confirm reference to reports by the US Department of State 2007 on Zimbabwe, who have attempted to include the allegations of harassment of church leaders as a violation of religious freedom. There are diverging views regarding this interpretation when inspiration is drawn from international human rights instruments in defining the normative content of the right or freedom of religion.
48 Adopted at Nairobi, Kenya in June 1981 and entered into force in October 1986. A copy is available in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2007).         [ Links ]
49 In fact, the leading case law on the issue of delay in execution of condemned inmates as constituting cruel, inhuman and degrading treatment or punishment were filed by a charity church-run organisation known as the Catholic Commission on Justice and Peace (CCJP). This was in the case of Catholic Commission on Justice and Peace v Attorney-General & Others 1993 1 ZLR 242 (S). Furthermore, with the economic melt-down in Zimbabwe, food security of the majority of the population is ensured by church-run relief organisations such as the Catholic Relief Service, World Vision Christian Care, and so on. As already mentioned above, most schools in Zimbabwe are church-run. The church is also supporting the health system of the whole nation by building and running mission hospitals as well as clinics.
50 See generally Maxwell (n 45 above).
51 Public Order and Security Act, ch 11:17 requires police clearance for anyone who wishes to convene in a meeting of more than 10 people. This law has been applied in respect of church gatherings as well, especially in urban areas.
52 See New Patriotic Front v Inspector-General of Police (2001) AHRLR 138 (GhSC 1993).
53 In 2004, the Parliament of Zimbabwe enacted the Non-Governmental Organisation Act, which sought to confer powers on the government to regulate and control the manner in which civil society manages its business, especially by scrutinising financial books. However, the author could not locate an authoritative copy of same.
54 Ten of the senate seats are reserved for traditional leaders, who are hand-picked by the President to represent traditional leadership and as preservation of traditional values, especially in the laws enacted by parliament.