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SENATE HANSARD 28 MARCH 2023 VOL 32 NO 22
PARLIAMENT OF ZIMBABWE
Tuesday, 28th March, 2023
The Senate met at Half-past Two o’clock p.m.
PRAYERS
(THE HON. DEPUTY PRESIDENT OF SENATE in the Chair)
ANNOUNCEMENT BY THE HON. DEPUTY PRESIDENT OF SENATE
SWITCHING OFF OF CELLPHONES
THE HON. DEPUTY PRESIDENT OF SENATE: Hon. Senators are reminded to put their phones on silent or switch them off.
MOTION
RATIFICATION OF THE LOAN AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF ZIMBABWE AND THE OPEC FUND
THE DEPUTY MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (HON. CHIDUWA): I move the motion standing in my name,
THAT WHEREAS subsection (3) of Section 327 of the Constitution of Zimbabwe provides that an Agreement which is not an international treaty but which has been concluded or executed by the President or under the President’s authority with one or more foreign organisations or entities and imposes fiscal obligations on Zimbabwe does not bind Zimbabwe until it has been approved by Parliament;
AND WHEREAS a loan Agreement between Government of the Republic of Zimbabwe and OPEC Fund of US$15 million for part financing of the Smallholder Agriculture Cluster Project to be implemented in Mashonaland Central, Mashonaland East, Mashonaland West, Midlands and Matabeleland North:
NOW, THEREFORE, in terms of Section 327 (3) of the Constitution of Zimbabwe, this House resolves that the aforesaid Agreement be and is hereby approved. I so move, Mr. President.
*HON. SEN. TONGOGARA: Thank you Mr. President. I think the Minister should explain to this House on what is included or added to agriculture, what is it?
THE DEPUTY MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (HON. CHIDUWA): Thank you Mr. President. I would want to submit that the aim of the project is to increase household incomes. We are also looking at dealing with the priority area under the NSD 1 which is the priority area on food nutrition security but we are also looking at the implementation of markets and also coming up with climate smart agriculture. The rationale of the whole project is that we are looking at transforming agriculture, looking at how best we can enhance production processing and also transforming value chains. All these, including the rationale of the project are contained in the loan agreement which I think the Hon. Senators have gone through. Thank you.
Motion put and agreed.
COMMITTEE STAGE
JUDICIAL LAWS AMENDMENT BILL [H. B. 3A, 2022]
Second Order read: Resumption of Committee: Judicial Laws Amendment Bill [H. B. 3A, 2022]
House in Committee.
Clauses 5 to 20 put and agreed to.
Schedule, Section 6, put and agreed to.
House resumed.
Bill reported without amendments.
Third Reading: With leave, forthwith.
THIRD READING
JUDICIAL LAWS AMENDMENT BILL [H. B. 3A, 2022]
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that the Bill be read the third time.
Motion put and agreed to.
Bill read the third time.
SECOND READING
CHILD JUSTICE BILL [H. B. 11, 2021]
Third Order read: Second Reading: Child Justice Bill [H. B. 11, 2021].
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. President Sir. I rise to give my second reading speech on the Child Justice Bill. The Bill intends to establish a criminal justice system for children in conflict with the law. During the review of the Children’s Act, in order to align it to the Constitution, recommendations to establish a child justice system were made. The rationale for this is to ensure that the welfare and child protection issues are separated from the Child Criminal Justice issues.
In instance, the Bill proposes to give effect to relevant foundational principles, values and fundamental rights underpinning the 2013 Constitution of Zimbabwe, together with relevant international laws, norms and standards relating to child justice. As I have already mentioned, the Bill seeks to establish a child justice system for children in conflict with the law, not condoning criminal activities by our children, it is important to understand the root causes that bring children into conflict with the law. It is often that children who come into conflict with the law are those who face multiple and intersecting challenges in their lives.
Most young people who come into conflict with the law are struggling with multiple social and economic issues in their homes and communities. These issues range from being on the streets as a result of poverty or family disfunction to coping with peer pressure, in relation to risk taking such as minor theft, violence and substance abuse. Mr. President, lack of child justice system means that children who come into conflict with the law are treated as adult criminals in a justice system that deny any children their basic human rights which include the right to education, development, appropriate care and to have their best interests treated as paramount.
This deficiency places young people at risk and create problems when they re-enter society as young adults. Taking into cognisance all that I have mentioned, measures are needed to protect children who are already in conflict with the law in order to deter them from re-offending and promote their rehabilitation and smoothen their reintegration back into society. Zimbabwe is a State to UN Convention on the Rights of the Child. The UNCRC requires States to promote the establishment of laws, procedures, authorities and institutions, specifically applicable to children alleged as accused of or recognised as having infringed the penal law. This provision imposes a progressive requirement upon States to establish a juvenile justice system which takes into account the child’s age and provide human rights and legal safeguard as well as establishing alternatives to judicial proceedings. The CRC requires States to establish a juvenile justice system with due process for guarantees to be applied to all children under the age of 18 who are in conflict with the law.
In addition, Article 14:1 sets out the purposes of a juvenile justice system which should be reintegrative and should help the child assume a constructive role in society. The purpose of the juvenile justice system should not be retributive or punitive but should be able to foster the well-being of children and address offending behaviours in a manner appropriate to children’s development. I shall not labour to go through all the provisions of this Bill. However, I shall discuss some of its provisions here.
In essence, the Bill seeks to respond to the deficiencies that are in our justice system when it comes to children in conflict with the law and also it gives effect to the provision of the Convention on Rights of a Child and our Constitution. In accordance with the UNCRC, which requires State parties to establish alternative judicial procedures, the Bill shall provide for the diversion. Diversion keeps children away from the formal justice system, which is a way of considering the best interest of the child while also keeping in mind their mental capacity to have criminal intent.
However, when these interventions are inadequate or unsuccessful for child offenders, the child justice system implemented through the Child Justice Bill will allow for them to be tried and sentenced in a Child Justice Court. The Bill also seeks to raise the minimum age of criminal responsibility from 7 years to 12 years and set out the manner in which these children who are suspected of having committed an offence are treated. They should not be treated in the same manner as those who are above 12 years. This is in line with 2007 Committee on the Rights of the Child guidance regarding the minimum age of criminal responsibility.
The guidance was that a minimum age of criminal responsibility below the age of 12 years is not internationally acceptable. Third parties were encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher level. Section 51 of the Constitution of Zimbabwe, read together with Section 3 (e) and Section 53, provide for the protection of human dignity and freedom from torture, cruel, inhumane or degrading treatment or punishment. This Bill speaks to the protection of human dignity of any alleged child offender and highlight how they are to be treated in a manner that is dignified from the first contact with the police during free trial, detention and at any stage of justice process.
The purpose of a child justice system in as much as punitive measures should be taken for child offender for their offences, their human dignity has to be protected, does not make punitive measure or repuditive measures a primary goal. They should be punished but in a manner that is strictly consistent with the objective of rehabilitative and restorative justice. Due to the fact that a child’s best interests are paramount in every matter concerning the child and that children are entitled to adequate protection by the courts as provided for in Section 81:2 and 3 of our Constitution, our judicial system plays an integral part in the protection of children’s best interest. This Bill also provides for the monitoring of the child justice system through establishment of child justice committees at national, provincial and district level to ensure that those interests are protected and no abuses occur. Child Justice Courts established in terms of the Child Justice Bill are a must and an added sign of progression within our justice system and they would be solely dedicated to trying children accused of committing crimes.
I therefore urge Hon. Senators to support and pass this Bill. I submit and move that the Bill be now read a second time. I thank you.
*HON. SEN. MUZENDA: Thank you Hon. President. I am not in agreement but the Bill is very good. There is somewhere I have seen where it says minor children, that is children in conflict with the law, are not supposed to be handcuffed. When are they going to be handcuffed and what will have happened? Are we ready as a country for our courts to be ready for these children so that they can be corrected and realise that they were wrong? Do we share with the protection officers or social workers who help these children because sometimes we may have very good laws and then find out that we have challenges on implementation? Thank you.
*HON. SEN. TONGOGARA: I just wanted to start by thanking the Minister of Justice for bringing this Bill. Our children as a country are very important. Therefore, the way they are treated is very important. I want to ask the Minister since you have brought your Bill, there are some matters which were raised on corporal punishment on children. My question to the Minister is that there used to be a law that outlawed corporal punishment. What now has been prepared for these children who are not in this Bill? We grew up very well and where we would have gone wrong, we would be reprimanded. I would like to know about this matter. What is going to be done to the children? I thank you.
*HON. SEN. CHIEF CHARUMBIRA: Thank you Mr. President. I was late in seeing today’s business that there is this issue on Child Justice Bill. We are supposed to be given enough time to debate this Bill. I think we should place this on website. If we really want to do justice to the Child Justice Bill, it was not supposed to pass today. We were supposed to be given time to prepare. There are a lot of interventions in Zimbabwe.
I can say I was in one of the countries for the past two weeks where I met someone from Australia who is Ghanaian. His 12-year-old child arrived home late after seven. So this Ghanaian called the child and spoke strongly to the child and the child went to the police. He spent two weeks in prison because he had scolded the child that he had come home late. These laws are for whites, they are not ours.
You find when people attend workshops, they think that we are backward when we are following our culture. There are issues on some of the laws on some of the sections but to let a child do whatever they want will give us problems. We are aware of what happens like here at Convent when children were involved in drugs. It is now out of hand. Some of these laws are just protecting children so that they continue taking drugs. If you reprimand a child, you are on the wrong side.
My issue Mr. President is that when we are saying protection and the right to education and the right to everything; it is like these people who put laws in place it is like when a child is born, they are the ones who look after the upkeep of the child, but it was the responsibility of the parent to look after the child from conception. It appears as if they are the ones who looked after the mother so that they would go into hospital for labour. The school that we are talking about, it is the parents who are taking these children to school, and the parent are the ones who are responsible for the education of their children. All these developments you are talking about are done by the parents because it is in the best interest of their children. We all have the welfare of our children at heart. The reason why we are here is because our parents brought us where we are right now; they gave birth to us, nurtured and sent us to school.
I hated going to school and my parents woke me up at six o’ clock a.m. I resisted but when I went to university, I was mature enough to know that education was meant to make me a better person and I had no problem even waking up at 4 a.m. The strictness of my parents at early childhood helped to mold me to what I am right now. We cannot say that when parents are strict on their children, they are very bad. I think we must really debate on this issue because if we pass this law in this state, it will give us problems in future.
When many people commit crimes, that is when we use due process. For us to be what we are, it is because we were brought up properly by our parents. Now we want our children to walk the road that we do not walk. For us to be in this Senate saying what we are saying right now, it is because of our parents. Now, we want to let our children walk the wrong path. This due process that has been talked about here by Hon. Sen. Tongogara that if a child is wrong, is there anything that we can do because as parents, we are afraid that if we punish that child we are against the law?
We have chiefs who sit in Parliament and as chiefs, we do not allow children to go unpunished if they are wrong; it is our culture. Failure to do that, our culture will be eroded. I do not think we must pass this Bill in a rushed way. We need time to read and understand it so that we can have meaningful debates. It is unfortunate that I have debated today and I cannot debate tomorrow. I think those who are going to debate after me will put their facts in order so that we come up with a law that is good for the children of Zimbabwe.
On the Marriages Bill, there is information circulating in communities that we passed a Bill that does not support our culture and that does not support the payment of lobola. It is because facts were misrepresented. We do not want to pass a law that parents will complain why we passed that law. We want to pass a law that is good for everyone. The laws that are passed by the National Assembly, I do not know what happens there; like the Marriages Bill, we had to correct it here in Senate because they had passed something that we did not approve of and we do not support that as mature people.
As mature people, I think we must do something with this Bill also. They think that being modern is being western thereby forgetting our culture. Mr. President, I thank you, I have spoken, and I think this Bill must be given enough time like two days because now we were caught unaware.
*HON. SEN. KOMICHI: I thank you Mr. President for giving me this opportunity to debate on this motion and I would like to thank the Hon. Minister for bringing this Bill. The laws that we make as a nation must be in line with our culture as Zimbabweans and as Black Africans. We must make laws that give us pride and ubuntu as Zimbabweans. This Bill must give powers to parents to see that their children are well behaved in the community as well as the country at large. The children must be a pride to the parents and to the country. This law is creating a distance between the parents and the children. It is promoting children to be stubborn and not obey their parents. A child must not challenge his or her parents or talk back to elders. If you look at chickens, I stopped on my way home and saw a chicken with its chicks feeding and this reminded me of how a mother is important and the importance of a mother’s love. It shows accountability and love. It actually happens with all animals; cattle, goats, donkeys, the mothers do everything to protect their young ones, they would rather die defending their young ones.
What is the difference between ourselves and the rest of the animals, for us to be removed from our children? If I slap my child, it does not mean that I hate her or him. If I reprimand my child, it does not mean I hate the child but I will be only trying to make the child behave. In fact, this act shows that I care that is why I want to make them better people. This is so because we see a lot of bad things that children will be doing in the streets and elsewhere. We value our children so much, even if they die, we will cry uncontrollably because we love those children. These are our children, even if a person is told that your child has died, that person will cry until the tears dry up because we love these children. If a child has done something wrong, we need to think first about the action we are going to undertake as a way of disciplining that child. I was very happy last week when the President said we should discipline these children. These were the words of the President. Hon. Minister, do you go against the President’s words? The President said we should discipline these children. Those people who are advocating for our children to be wild are actually wrong. These people are targeting to achieve something Mr. President.
Mr. President, few years to come we would have lost control of our children in society. We would have disconnected our relationship with these children that is between the young generation and the older generation. Those people are creating a war between us and the children. You find that the children who have sent their parents to prison for two weeks the community is already dead. We support what the Chief has said. Mothers in this House will be given an opportunity to say something because they raise these children as well.
Mr. President, when we wrote the Constitution, we were too excited and we forgot our values as black people. We should value this aspect of us being Africans. We should understand that whenever we do anything with regard to the Constitution, we should consider our values as Africans. Thank you very much Mr. President.
*HON. SEN. MOEKETSI: Thank you Mr. President for giving me an opportunity to make a contribution with regard to this motion that has been brought by the Minister. With regard to the experience that people are having in different communities in this country, firstly I would like to say when I grew up myself, whenever a child was born, those who would come would say congratulations, those who respond would say it is so for us all. That meant that whenever they go, if they are reprimanded, they should respect it and say, ‘elders have reprimanded me because they are just like my parents back home.’
I grew up herding cattle as a child, then one day cattle strayed into another farmer’s field. It was a terrible experience for me but I had to kneel down and plead for forgiveness. I had been taught good manners and that I should ask for forgiveness if I had done something which is not proper. Two women were tenants at a certain house. These two women had children, the other one had two girls, five years and two years and the other woman had a 12-year old girl. The other woman came from a flea market. She had actually US$20 from that particular day sales. The 12-year girl was in the house; the moment she left US$ 20 on the pushing tray, going inside her room and coming back, the US20 was gone. When she asked about that US$20, the 12-year old girl indicated that she had not seen it. The girl went to school and started buying food at school. A boy from a next room actually made a report to say the young girl had US$20, she actually bought him a cool drink at school.
Mr. President, that information angered the mother and the little girl was beaten up by the mother and as I speak, the woman was imprisoned. Mr. President, the Bill that has been brought by the Minister is a very painful Bill to us as parents and I want to thank Hon. Sen. Chief Charumbira. As I speak in this House, my last born is 24 years of age; he stole my car and went to Kadoma to Makhadzi Show when he came to Zimbabwe. When he got to the roadblock he passed because police actually thought that it was an Hon. Member who was inside. On his way back I think he was now afraid of police, so he took a different route in trying to evade them. He used a dust road but instead he hit an electrical pole and unfortunately electricity went off at the nearby compound. There was a car passing by that actually saw the car and they made a report to Kadoma Police thinking that they were thieves trying to steal electrical cables. I told the police that I could not deny the allegations against the child because even at home, he opens my purse and takes money. The following day I went to the courts and I had to pay money for them to be released.
After three weeks, I had to attend a church service in Kuwadzana. When I returned home, I found the car was not where I had left it. Upon inquiring on Victor’s whereabouts, I was told that he was not at home and that he had gone out. I hide the car keys among neatly packed clothes and he comes and searches and places the clothes back neatly such that you do not notice that the keys have been taken.
He took the car on Saturday, the following morning I was called by the owner of a Honda Fit that had been hit by my car. My grandson and his friends had spent the night drinking. The police had been clearing the road for the President’s motorcade to pass through and so there were no cars on the road and as a result they sped through the road and hit a Honda Fit but did not stop and instead sped away trying to run away from the police. The car only stopped when one of its tires became flat. My Ranger was towed to the police station. It was a terrible scene. I was told if I wanted my car then I would have to go to the police station.
I came to work and when I went back home, I could not eat. I found him lying on his bed having a bottle of water. I broke the mop and beat him up using the stick from the mop. I knew that he could either fight me or report me to the police. He ran out of the room and locked himself in the chicken run. When it was raining, he came back into the house. I followed him into his room and I continued beating him using the mop. I was afraid that he was going to report me to the police as he is turning 25 years.
Mr. President Sir, the laws that we are passing in this Senate are making parents and guardians afraid to punish their children because they can be reported to the police and arrested. These laws are making it difficult for parents to even reprimand their children because they will tell us that the law does not allow us to punish them. Mr. President, we really need to think of the consequences of some of the laws that we pass in this august Senate. We can no longer reprimand our children, even our neighbours cannot reprimand our children. These children are now talking back to us as we try to reprimand them, which I think is something that is not good for us as a country.
So, thank you Hon. Minister for your Bill, but I think we need to revisit this Bill and consult parents. If we allow such Bills to go through, they may be detrimental to our children. As we know, these children are the future leaders of tomorrow.
HON. SEN. MWONZORA: On a point of order Mr. President Sir. Mr. President, this is no doubt an important motion. Sen. Chief Charumbira had made a suggestion that the Hon. Senators ruminate over this Bill and proceed with debate. It appears to have found favour by the comments from Senator Komichi. I am of the suggestion that it may be wise for us, given that we are the last bus stop, to ruminate over it and debate at some other time convenient to the Minister of course.
*THE HON. MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. President. I would like to thank the Senators who have been debating. I would like to thank Hon. Chief Charumbira and I promise to look at the request that he made in this House. This Bill is not looking at how we are going to be reprimanding these children. The issue on the Bill is not what are we going to do with these children. The law did not remove the issue of reprimanding children. In the criminal court, when we discipline children, it talks about moderate corporal punishment to be allowed; even to whip them as a way of reprimanding them. The Bill is not focusing on how we reprimand or whip these children. We are looking at criminal offences of youngsters. If they were adults, they would go to court. Should we send them to criminal courts as if they are adults? We should be allowed to look at how the child has been living so that we are allowed an opportunity of how we can reprimand and rehabilitate them. This is what the Bill is insisting on.
As far as I remember, beating up children as a way of reprimanding them is something that I support. In schools, they are no longer allowed to do that as corporal punishment. At home, it has to be moderate corporal punishment. I do not know what Senators would prefer. Maybe they want to go and look at it once more. We had actually sent it to you a few weeks ago, more than five weeks ago when we last came to this House. Hon. President, with all due respect, if they ask for grace period to look at the Bill, we will not consider that we have send it before. We will accept and give them leeway to go and look at the Bill again. I therefore, move that the debate do now adjourn.
Motion put and agreed to.
Debate to resume: Wednesday, 29th March, 2023.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the Senate adjourned at a Quarter to Four o’clock p.m.