Zimbabwe Human Rights NGO Forum Special Report Gender and Constitutional Issues This provision was successfully used to change the policy and regulations of tertiary educational institutions. In 1995, a teacher training college expelled a married female student when she fell pregnant and had a child during her three-year course of study. She used section 11 of the Constitution to appeal against the college’s decision not to allow her to write her final examinations and qualify as a teacher. The Supreme Court held that section 11 was ‘not merely a preamble without any legal effect’ and found the college’s regulation prohibiting pregnancy to be ‘discriminatory against females’ on the basis of their child-bearing capability – that is, their sex.6 But by the time this judgement had been made in 1997, section 11 of the Constitution had already been changed by the 14th Amendment which came into force on 6 December 1996. Section 11 now omits any reference to specific rights and freedoms, reading as follows: Whereas persons in Zimbabwe are entitled, subject to the provisions of this Constitution, to the fundamental rights and freedoms of the individual specified in this Chapter, and whereas it is the duty of every person to respect and abide by the Constitution and the laws of Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations on that protection as are contained herein, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the public interest or the rights and freedoms of other persons. The 14th Amendment removed ‘sex’ as a ground for unlawful discrimination, but it also added ‘gender’ to the list of prohibited grounds specified in section 23, sub-sections (2) and (3), and inserted a new subsection (5) into this section. From the confusion between ‘sex’ and ‘gender’ in this new sub-section, it is clear that discrimination on the basis of sex is now constitutionally permissible. Section 23(5) notes that: Nothing contained in or done under the authority of any law that discriminates between persons on the ground of their gender shall be held to be in contravention of sub-section (1)(a) or (b) to the extent that the law in question – …(b) takes due account of physiological differences between persons of different gender … except in so far as that law or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society. Moreover, section 23 sub-sections (3)(a) and (b) were not amended, and continue to give blanket exemptions to gender discrimination: Nothing contained in any law shall be held to be in contravention of sub-section (1)(a) to the extent that the law in question relates to any of the following matters – (a) adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law; (b) the application of African customary law in any case involving Africans or an African and one or more persons who are not Africans, where such persons have consented to the application of African customary law in that case. At the heart of the problem of operationalising women’s human rights in Zimbabwe, then, is the conflict between ‘customary law’ and personal ‘traditions’ on the one hand, and the Constitution and statutes on the other. The male-dominated Zimbabwean State has made what it thinks are appropriate symbolic concessions to women’s rights, while maintaining intact patriarchal power. It upholds gender equality in the public domain while repeatedly affirming that in the domestic realm of family and home men are the bosses. It is in the domestic sphere that girls are socialised and educated into accepting their inequality. The problem is simple. Zimbabwe’s Constitution ostensibly protects women against gender (but not sex) discrimination, but exempts from constitutional regulation those areas of law in which this gender discrimination is most deeply entrenched. It is, from our women’s perspective, a constitution of smoke and mirrors, which hardly encourages women to trust our ‘supreme law’ as a neutral arbiter. 6 Wazara v Principal, Belvedere Technical Teachers’ College & Anor, 1997 (2) ZLR 508. 8