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GENDER AND THE NEW CONSTITUTION: A VINDICATED WOMAN MARRIES A HUMILIATED HUSBAND byVusi M.

I Bhebhe This constitution is not the best of documents considering that we have spent more than three years constructing it. A constitution must be a document written by the people and a true reflection of how they want to be governed. This is why a preamble is commenced by the phrase we the people to signify that it is a document that the people have as a collective decided, written and promulgated to guide their path. The new charter is gender sensitive and a form of gender main streaming in that it has made the relations between men and women its guiding principle as reflected by most of its clauses. However it must be noted that it shoots itself in the back by empowering the woman and disempowering the man meaning it seems to be feministic rather than gender centric. Death penalty: A woman who partners with her husband to commit murder will be spared but will lose the husband who will be hanged. The justification for qualifying the right to life for men whilst the womans right to life is not is therefore unjustifiable considering the equality clause in section 56 (1) of the Constitution which stipulates that: All persons are equal before the law and have the right to equal protection and benefit of the law. This then shows that the Constitution is contradicting itself and one begins to wonder whether the three lawyers spent more than three years trying to come up with the worst of documents that contradicts itself. There is no justification for such a clause considering the fact that the people had voted for the returning of the death penalty. I am of the view that the death penalty is inhuman and should not be part of our law for us to meet international standards. To strengthen my case against the death penalty I am enjoined to quote Gubbay CJ as he then was who held that: Because retribution has no place in the scheme of civilised jurisprudence, one cannot turn a deaf ear to the plea made for the enforcement of constitutional rights. Humaneness and dignity of the individual are the hallmarks of civilised laws. Justice must be done dispassionately and in accordance with constitutional mandates. The question is not whether this court condones the evils committed by the four condemned prisoners, for certainly it does not. It is whether the acute mental suffering and brooding horror of being hanged which has haunted them in their condemned cells over the long lapse of time since the passing of sentence of death, is consistent with the guarantee against inhuman or degrading punishment or treatment1 If the Constitution is gender sensitive then it must be amended to remove the unfair advantage of women in order to achieve gender equality. The provision sec 48 (2) (c):
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CCJPZ v A-G & Ors 1993 (1) ZLR 242 (SC) at 282.

A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and the penalty must not be imposed or carried out on a woman must therefore be repealed and the right to life must not be qualified at all. Gender Affirmative Action: Chauraya and Mugodzwa define gender affirmative action as: a corrective or compensatory measure for past injustices or gaps and an accelerator for the process of equitable development. It is an intended justice measure through deliberately according the previously excluded or disadvantaged sex group preferential treatment to increase the groups representation in areas of education, employment, business and politics among others. It entails gender discrimination because it gives unfair, though justifiable, advantage to the once discriminated sex group. It is therefore positive or reverse discrimination. Gender affirmative action is meant to redress the effects of past discriminations rather than discriminate2 In light of this definition I would term the subsequent provision an affirmative action clause: Sec 124 (1)(b) stipulates The National Assembly consists of for the life of the first two Parliaments after the effective date,anadditional sixty women members, six from each of the provinces into which Zimbabwe is divided, elected through a system of proportional representation based on the votes cast for candidates representing political parties in a general election for constituency members in the provinces.

The provision understands that women have been lagging behind in terms of political participation. To prove this, there is no female candidate in the coming elections. The sixty women are therefore afforded the opportunity to come up with a female candidate in 2018 provided they empower themselves.

Termination of pregnancy: Every woman should find it insulting to read sec 48 (3) of the Constitution which reads: An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law.

E Chauraya and TT Mugodzwa Understanding Gender at P 5.

There are so many issues that one has to ask him or herself after reading this. There is an Act that is already there to protect the life of a foetus to call it by its scientific term, a foetus has rights which cannot be infringed by the woman carrying it which leads to absurdity. When does legal personality start is the first question, does it mean that the foetus has more rights than a recognized person carrying it, are women still objects that do not have control over their reproduction that is to say they do not have bodily integrity. Lets then try to answer the foregoing to come up with a credible conclusion. The Termination of Pregnancy Act (Chapter 15:10) is the one that regulates as well as protect the life of the unborn child. It sets out in limine a peremptory order in the form of sec 3 (1) infra: No person may terminate a pregnancy otherwise than in accordance with this Act. Whose pregnancy is it? Does it then require a statute to govern how a woman must manage her body? Those are some of the questions that if you try to answer you will know how ridiculous all the provisions are. The circumstances where a woman may be allowed to abort the foetus are provided in Chapter 15:10 sec 4 Subject to this Act, a pregnancy may be terminated (a) where the continuation of the pregnancy so endangers the life of the woman concerned or so constitutes a serious threat of permanent impairment of her physical health that the termination of the pregnancy is necessary to ensure her life or physical health, as the case may be; or (b) where there is a serious risk that the child to be born will suffer from a physical or mental defect of such a nature that he will permanently be seriously handicapped; or (c) where there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse. The main reason why the provisions above good as they may seem, they imply that a woman cannot get rid of the foetus except under the circumstances provided above. The woman is not then given control over her body to get rid of unwanted pregnancy even though it might be a product of consensual and lawful intercourse. The legislature must then also inform us if legal personality has even extended to the sperms of the men and the ovaries of the women lest we will find ourselves in prison because the foetus (a product of the sperms and the ovaries) is protected more than us recognized legal persons. In the case of Christian Lawyers Association of SA & Ors v Minister of Health & Ors The plaintiffs sought an order declaring the Choice on Termination of Pregnancy Act 92 0f 1996 unconstitutional. They contended that sec 11 of South Africas Constitution protected the rights of unborn children from the moment of conception which stipulates that: Everyone has the right to life the court held that the foetus was not a legal persona under the Constitution and that everyone under sec 12 (2) has the right to make decisions concerning
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reproduction and to security in and control over their bodies.3 Zimbabwe should also then follow the same approach of South Africa and protect the right of women to have absolute control over their reproduction and their bodies. I submit therefore that the Constitution be amended to repeal sec 48 (3) and include the following clause: Everyone has the right to bodily integrity, which includes the right to (a) make decisions concerning reproduction (b) to security in and control over their body THESE ARE THE VIEWS OF VUSI BHEBHE, THEY ARE NEITHER CONCLUSIVE NOR COMPREHENSIVE.

1998 (4) SA 1113 (T).

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