Apr 28, 2011

Constitutional Protections: Women & Children

As I’ve been researching on the rights of women and children, and in particular those behind bars I looked up the constitution. Sadly, our current constitution from 1996 has no such provisions. So, I turned to both the 2005 Mung’omba Draft Constitution and the 2010 NCC Draft Constitution – neither of which have been adopted but have had a significant amount of work put in.

Lo and behold there is applicable language but there are stark differences between the two that I find disturbing. This is in Part VI, the Bill of Rights section. The highlighted are the areas I consider applicable to this unique situation but please notice other omissions.


2005 Draft
2010 Draft

Further rights
for women (Article 42)

Clause (3) Without limiting any right or freedom guaranteed under this Bill of Rights, women shall have and be accorded the
right -
(a) to reproductive health, including family
planning and access to related information and education;
(b) to acquire, change or retain their nationality including the nationality of their children; (c) to choose residence and domicile;
(d) to guardianship and adoption of children;
(e) to choose a family name; and
(f) to non-custodial sentences if pregnant or are nursing mothers, except as a measure of last resort for serious offences and for those
Women who pose a danger to the community.


Further rights
for women

  
This entire section was eliminated

Children (Article 44)
Clause (5) 

Every child has a right -

(a) to a name and a nationality from birth and to have the birth registered;
(b) to parental care or to appropriate alternative care where the child is separated from its parents;
(c) to free basic education;
(d) to be protected from discrimination, neglect, abuse and harmful cultural rites and practices, including female circumcision, tattooing and early marriage before attaining the age of eighteen years;
(e) to be protected from all forms of exploitation and any work that is likely to be hazardous or adverse to the child’s welfare;
(f) to adequate nutrition, shelter, basic health care services, social security and social services;
(g) not to be subjected to corporal punishment or any other form of violence or cruel and inhumane treatment in schools and other institutions responsible for the care of children;
(h) to be protected in times of armed conflict and not to be recruited and used in armed conflict;
(i) not to take part in hostilities;
(j) not to be incarcerated on account of the mother’s incarceration;
(k) to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development;
(l) to development and an individual
development plan, where appropriate;
(m) to protection from all forms of sexual
exploitation or abuse;
(n) not to be arrested or detained, except as a measure of last resort, in which case that child has the right to be -

(i) detained only for the shortest
appropriate period of time;
(ii) kept separate from adults in custody;
(iii) accorded legal assistance by the State;
(iv) treated in a manner and be kept in
conditions that take account of the
child’s gender and age; and
(v) tried in a juveniles court;

(o) to know of decisions affecting the child, to express an opinion and have that opinion taken into account, having regard to the age and maturity of the child and the nature of the decision;
(p) to protection of the child’s identity and not be exposed by the media during criminal proceedings; and
(q) generally to survival and development.

Clause (6)
Children with special needs, especially girls, orphans, a child whose parent is in prison, children with disability, refugee children and homeless children, are entitled to the special protection of the State and society.



Children (Article 50)
Clause (3) 

Every child has a right -

(a) to a name and a nationality from birth and to have the birth registered;
(b) to parental care or to appropriate alternative care where the child is separated from its parents;
(c) to be protected from all forms of exploitation and any work that is likely to be hazardous or to interfere with the child’s education or to be harmful to the child’s health, or physical, mental, spiritual, moral or social development.
Provided an Act of Parliament may provide for the employment of children for a wage under certain conditions.
(d) to adequate nutrition, shelter, basic health care services, social security and social services;
(e) to protection from all forms of sexual exploitation or abuse.


Summary
2005 Draft

  • Article 42, Clause 3, advocates for “non-custodial sentences” to be considered first for pregnant women or nursing mothers unless they pose a serious threat to the community.
  • Article 43, Clause 5 (part J) clearly states that every child has a right not to be incarcerated on account of the mother’s incarceration.
  • Article 43, Clause 6 calls upon the State and society to take responsibility of taking care of children of inmates (and other vulnerable children
The authors of this language obviously had in mind the need to protect innocent children from getting caught in the crossfire between their parents and the justice system.

Whatever reasoning the National Constitution Conference (NCC) had for watering down these rights and protections in the 2010 Draft is beyond me. But given what we now know of the narrow focus directed by the ruling MMD party this is not entirely unsurprising. They have constantly pushed their own agenda at the expense of the wishes expressed by the Zambian people in previous constitution reviews, and it just further illustrates how we continue to lose out.

The Way Forward

So, knowing all this, what is the way forward? The 2010 Draft was soundly defeated in Parliament and yours truly was not among those crying at the loss. It was a futile effort that duplicated and defiled earlier work that had been done well and was accepted by Zambians; and it cost billions of Kwacha that will never be recouped.

We need to unite in our opposition to the government’s dilly-dallying on this issue. We need a strong constitution enacted, and we have no shortage of good language already available such as that shown above from the 2005 Draft. We need to have an expanded Bill of Rights that reflect the things that matter most to Zambians, and repeal the bad laws we currently have on the books.

We cannot continue like this. It is high time the government and the people of Zambia took up their responsibility to protect and respect the rights of all women and children, including the rights of those in prison.

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