Analysing the rights of women in the new Constitution of Zimbabwe with reference to International Law

Abstract

This study is an analysis on the rights of women in the new Zimbabwean Constitution with reference to International Law. It seeks to answer the question does the new Constitution address the limitations of the old with regard to the rights of women in international law. The new Constitution is analysed, against international and regional human rights instruments, finding positive development in Constitutional entrenchment of women’s rights in education, health and marriage, the principles of equality and non-discrimination; concluding that the new Constitution sets the platform for protecting and fulfilling women’s rights, while also recognising there is room for improvement in the Constitutional text to fully protect women’s rights. The study goes further to analyse the relationship between the domestic law international law from a constitutional perspective. Women benefit from the monist position of customary international law which ensures individuals may institute claims based on international customary law. Treaties, however, require domestication into municipal law, a position which disadvantages women where the rights are not constitutionally entrenched and the relevant treaties have not been domesticated. This position need not necessarily prejudice women; the legislature is seen to have an important role in assessing existing legislation and fulfilling its mandate of enacting new legislation (complete with remedies for violations) compliant with the Constitution and international human rights standards to protect the rights of women. Areas of focus in strengthening women’s rights are highlighted as part of the legislature’s role. Legislation should have implementation mechanisms for the realisation of women’s rights. The position of international law can be strengthened by the judiciary when it takes an active role in ensuring compliance with international human rights standards on women’s rights, responding positively to the social dynamics in adjudicating on the rights of women.