Zimbabwean Law Research Articles

Zimbabwean law and its impact on HIV programmes for key populations.

Zimbabwean law and its impact on HIV programmes for key populations.

Enmeshment of Zimbabwean law and literature in Petina Gappah’s Rotten Row (2016)

This article assesses the relationship between Zimbabwean literature and Zimbabwean law. This is done by closely reading two short stories from Petina Gappah’s 2016 anthology Rotten Row. A discussion of the ever-burgeoning literature and law movement is conducted in order to situate the article within the broader law and humanities interdisciplinary effort. Images of legal figures and legal institutions are assessed in order to determine the portraits they produce in the fiction. The close relationship of the Zimbabwean court judgement and the judgement as storytelling method in fiction is highlighted and explained. It is concluded that Gappah’s fiction is strongly connected to the law and that this is a deliberate story telling strategy.

THE PLACE OF SIGN LANGUAGE IN THE INCLUSIVE EDUCATION OF DEAF LEARNERS IN ZIMBABWE AMID CRPD (MIS)INTERPRETATION

This paper sets to explore how Zimbabwean law and policy relate to the CRPD in informing educational practice for learners who are deaf. The paper is an analytical discussion of the educational policy and practice issues related to the recent recognition of Zimbabwean Sign Language (ZSL) in a multicultural context where mother-tongue-based teaching is a right for meeting the inclusive education needs of all learners, including those who are deaf. It argues that one-size-fits-all, deficit interpretations of Zimbabwean inclusive education policies and law are in violation of the ‘sensory exception’ enshrined in the Salamanca Statement (UNESCO, 1994). These interpretations occur in the midst of major misinterpretations of the CRPD evident in General Comment 4. Misinterpretations of the CRPD affirm instances of local policy contradictions, inconsistencies and co-articulation as some policies are imbued with perceptions of deafness as a disability at the same time also having aspects that recognise deaf people as a linguistic minority. The deficit interpretations and inconsistencies in local policies occur despite constitutional provisions that recognise deaf learners’ right to a preferred sign language. Based on this case example of deaf learners, a general re-interpretation of the CRPD and a re-conceptualisation of inclusive education are recommended.

Zimbabwe’s Magaya Decision Revisited: Women’s Rights and Land Succession in the International Context

Discrimination against women is not compulsory in African society. (1) [W]hose customary law is this anyway? (2) INTRODUCTION When Shonhiwa Magaya died without legal will, local court in Zimbabwe designated his eldest child, Venia Magaya, heir to his estate. On appeal, Ms. Magaya's younger half-brother claimed heirship on grounds that according to African customary law, a lady ... cannot be appointed [as heir] to (her) father's estate when there is man in family who is entitled to claim it. (3) An appellate magistrate agreed and Ms. Magaya's heirship was reversed. (4) The newly appointed heir took his position as head of household, removed Ms. Magaya from her family home, and placed her in shack in neighbor's backyard. (5) Upon further appeal, Supreme Court of Zimbabwe upheld appellate decision, stating that, despite constitutional protections against discrimination, fact that this case arose under customary law exempted its discriminatory aspects from court scrutiny. (6) The court explained that constitution permits this type of discrimination against women as within the nature of African society. (7) Magaya v. Magaya, (8) now-infamous Zimbabwe customary law and intestate succession case, triggered significant domestic and international opposition. Critics alleged that decision was invalid under both Zimbabwean constitutional law and international law, violating issues of fairness, international norms and rights, and even customary law itself. (9) Questions surrounding outcome of Magaya still linger throughout southern Africa. On one hand, critics argue, legal and social norms require that female children and widows be given equal rights to property inheritance upon death of family member, particularly as economic and health crises have imposed disparate impact on resources of women throughout region. (10) On other hand, legal decisionmaking is delicate balancing process. Courts across southern Africa have upheld cultural rights embodied in national constitutions, (11) as well as in numerous international human rights instruments, (12) as basis for autonomy and development. With strong legal protections for cultural practices and application of customary law in Zimbabwe, one of most troubling critiques of this case is idea that this decision may have been only outcome court could have reached; that, even if court had incorporated human rights considerations, law in Zimbabwe so clearly sanctions gender-based discrimination that case could not have come out any other way. (13) Although this view is rather extreme, it demonstrates scope and importance of fundamental rights and freedoms at issue, and legal obstacles that these rights face under Zimbabwean law. With such critical protections at stake, Magaya has raised important question of whether fundamental tension exists between anti-discrimination rights, particularly on basis of gender, and right to cultural self-determination, including fight to application of customary law. While there has been extensive discussion about domestic legal grounds for Magaya's outcome, there has been little exploration of tension between gender and cultural rights in international context. (14) Magaya provides unique starting point for examination of rights-balancing questions throughout southern Africa because of court's particular focus on the nature of African society and privileging of cultural practices over individual rights. In contrast, Ms. Magaya argued that case struck at heart of her internationally recognized human rights, and that denying her heirship would run contrary to basic principles of gender equality and individual rights. (15) Although there is arguably some support for court's decision in Magaya, legal and policy implications within Zimbabwe, comparative constitutional considerations, and regional and international agreements seem to outweigh those arguments. …

‘Freedom from all forms of violence’: Using Zimbabwe’s new Constitution to encourage rape law reform

The right to ‘freedom from all forms of violence from public or private sources’, enshrined in Zimbabwe’s new Constitution, could have a significant impact on efforts to end violence against women (VAW) in the country. The right is particularly relevant in the Zimbabwean context where VAW occurs in a range of settings, from the most intimate of relationships in the home to the state’s use of rape as a political weapon. One way in which the state can fulfil its duty to address VAW is through the reform of the country’s rape law. With comparative reference to the impact of the right to freedom from violence in South African law, this article discusses three areas of Zimbabwean law that present potential obstacles to achieving justice for rape survivors: the definition of the rime of rape, the abolished but tenacious cautionary rule, and the sentencing of sexual offenders.

A rights-based approach to environmental protection: The Zimbabwean experience

Stemming from the common law, international law and statute, Zimbabwean law has always recognised the prominent role that environmental rights should play in the environmental regulatory framework. In theory, this was based on recognition of the fact that the provision of such rights, and their full enjoyment by citizens, would allow Zimbabweans the opportunity to live in a clean and healthy environment. In addition, through exercising these rights, citizens could directly enforce environmental laws. In practice, however, it appears that deficiencies in the environmental regulatory framework at the institutional level precluded Zimbabweans from fully exercising or enjoying their environmental rights. It was against this backdrop that Zimbabwe in 2013 enacted a new Constitution which entrenched environmental rights in the Declaration of Rights. This was a welcome development which aligned Zimbabwean law with developments across various other jurisdictions which have accorded environmental rights constitutional importance. Importantly, and in light of the seeming deficiencies in the environmental law regulatory framework at the institutional level, which manifested in Zimbabweans not fully exercising, or enjoying, their environmental rights prior to the inception of the Constitution, this article explores whether the inclusion of environmental rights in Zimbabwe's Constitution has been accompanied by sufficient efforts to put in place institutional measures to ensure that citizens exercise and enjoy their rights. Key words: environmental rights; education; litigation; institutional measures

‘Freedom from all forms of violence’:Using Zimbabwe’s new Constitution to encourage rape law reform

The right to ‘freedom from all forms of violence from public or private sources’, enshrined in Zimbabwe’s new Constitution, could have a significant impact on efforts to end violence against women (VAW) in the country. Theright is particularly relevant in the Zimbabwean context where VAW occurs in a range of settings, from the most intimate of relationships in the home to the state’s use of rape as a political weapon. One way in which the state can fulfil its duty to address VAW is through the reform of the country’s rape law. With comparative reference to the impact of the right to freedom from violence in South African law, this article discusses three areas of Zimbabwean law that present potential obstacles to achieving justice for rape survivors: the definition of the crime of rape, the abolished but tenacious cautionary rule, and the sentencing of sexual offenders.

‘Freedom from all forms of violence’:Using Zimbabwe’s new Constitution to encourage rape law reform

The right to ‘freedom from all forms of violence from public or private sources’, enshrined in Zimbabwe’s new Constitution, could have a significant impact on efforts to end violence against women (VAW) in the country. The right is particularly relevant in the Zimbabwean context where VAW occurs in a range of settings, from the most intimate of relationships in the home to the state’s use of rape as a political weapon. One way in which the state can fulfil its duty to address VAW is through the reform of the country’s rape law. With comparative reference to the impact of the right to freedom from violence in South African law, this article discusses three areas of Zimbabwean law that present potential obstacles to achieving justice for rape survivors: the definition of the rime of rape, the abolished but tenacious cautionary rule, and the sentencing of sexual offenders.

‘Freedom from all forms of violence’: Using Zimbabwe’s new Constitution to encourage rape law reform

The right to ‘freedom from all forms of violence from public or private sources’, enshrined in Zimbabwe’s new Constitution, could have a significant impact on efforts to end violence against women (VAW) in the country. The right is particularly relevant in the Zimbabwean context where VAW occurs in a range of settings, from the most intimate of relationships in the home to the state’s use of rape as a political weapon. One way in which the state can fulfil its duty to address VAW is through the reform of the country’s rape law. With comparative reference to the impact of the right to freedom from violence in South African law, this article discusses three areas of Zimbabwean law that present potential obstacles to achieving justice for rape survivors: the definition of the rime of rape, the abolished but tenacious cautionary rule, and the sentencing of sexual offenders.

Zimbabwean hospitality students’ experiences of sexual harassment in the hotel industry

This study investigates the experiences of Zimbabwean hospitality management students in relation to sexual harassment. The students were asked to draw their responses from their industrial attachment year which is part of their four-year degree program. Guided interviews were conducted with 77 final year hospitality management students who had undertaken their industrial attachment in the hotel industry. Findings reveal that sexual harassment is not uncommon in Zimbabwean hotel workplaces. Coworkers, managers and customers were identified as perpetrators. The lack of sexual harassment training in the Zimbabwean hospitality, as well as the non-response of managers to some sexual harassment cases are possible indicators of the inadequacy, or complete lack of sexual harassment policies in Zimbabwe's hotel industry. The researcher suggests that human resource managers in the hotels should formulate, in consultation with Zimbabwean law and labour relations experts, sound sexual harassment policies. Continuous educational training for all employees and managers is also necessary to encourage more employees to report cases and to deter offenders.

Zimbabwean Law and the Production of a White Man's Disease

... to support the presence of these people (gays and lesbians) in this country is to be an accomplice in promoting lechery.... It means, if we support them, we want our nation to be vile. We want our nation to be unchaste. We want our people to be animal-like and immoral in behaviour. In cultural terms, what it amounts to is that the homosexuals are like a witch weed in Zimbabwe, which in Shona we call 'bise'. It is therefore supposed to be eradicated. The moment you see it you eradicate it....

Oliver Phillips, Zimbabwean Law and the Production of a White Man's Disease

Oliver Phillips, Zimbabwean Law and the Production of a White Man's Disease

Protection of the surety under Zimbabwean law

The availability of credit facilities to both companies and individuals wishing to do business is probably one of the most important facets of the modern world. It is needless to emphasize that the need to create an enabling environment conducive to investment and hence employment creation remains an important goal of the modern state. Credit is at the centre of this mission and as the U.K. Review Committee on Insolvency Law and Practice aptly observed, “credit is the lifeblood of the modern industrialised economy” and “… the provision of credit for trade and industry stimulates production and encourages enterprise as well as helping individuals and businesses over difficult economic times”.

Vicarious Liability of an Employer for the Delictual Acts of his Servant under Zimbabwean Law

The doctrine of vicarious liability is easy to define but difficult to apply. In the recent Zimbabwean case of Fawcett Security Operations (Pot) Lid. v. Omar Enterprises (Pvt) Ltd., the Supreme Court held that a security company (the employer) who provided a security guard (the servant) to detect and prevent theft from the respondent's supermarket was not vicariously liable for the servant's subsequent theft of the very goods he was meant to guard. It is difficult to support this decision and its indirect effect is to call for a re-examination of this part of the law. Accordingly this article seeks to revisit the doctrine of vicarious liability under the Zimbabwean law of delict and to argue that (i) the decision in Fawcett Security was based on a wrong reading of the authorities; (ii) that the decision is inconsistent with the classical Roman-Dutch Law (as distinct from South African authorities); and (iii) that the decision fails to give effect to the real basis of vicarious liability under Zimbabwean law.