“The Court cannot be swayed by the whims of an errant parent who has no respect whatsoever for the Best interests of the Child principle “, these where the weighty sentiments by Uchena J (as he then was) in the case of Mukundu vs Chigumadzi.
Contray to this well-established principle which seeks to protect child exploitation , the advent of covid-19 pandemic worsened the abrogation of children’s best interests. In a real personal encounter, in the chilly winter morning of today, I was awakened by the innocent holler of a minor who often passes by our house selling bread. The clock read 05.30AM . This is not the first time I have observed this juvenile boy plying his daily duties in order to fend for his family. Barefoot and clad in porous , skimpy wares, the little boy manifested signs of immense cold , a recipe for flu and pneumonia. Out of sympathy, my mother sought to hand him a pair of second-hand shoes to cover his feet, but the young boy declined the offer, citing that his elder sister, the supposed caregiver or guardian would suspect him of stealing . Rather, it was best if she hands the shoes to his sister personally, before she ultimately hands him, if ever she does. Pain and grief engulfed my spine at the instance of such deep revelation, a case of child abuse still reigning supreme in our society.
What is child abuse? Child abuse relates to any actions by a parent, caregiver, guardian ,individual or responsible individual whose effect is the physical , sexual, mental, emotional and psychological harm on the child. These include, amongst others, exposing a child to hazardous labour , denying a child shelter, food, water ,clothing, education and sanitation. Section 2 of the Children’s Act defines hazardous labour partly as any work which is likely to jeopardise or interfere with the education of that child or young person; that exposes a child or young person to extreme heat, cold, noise or whole-body vibration. While covid-19 wreaked havoc and curtailed business opportunities and families’ income, this is neither a push, defence nor a pull factor for exposing children to adverse labour . Whenever this happens, a child is subjected to erosion of personal dignity ,humanity and lack of proper child development as envisaged on Article 3 of the UN Convention of the Rights of the Child.
The role of the community. The community should play a watchdog role over care of children. The neglect comes at the instance of regressive modernity in which society has resorted to minding its ‘own business ’. The cultural moral obligation for parentage did not rest only on the biological parents or guardians. It had a spillover effect such that, every adult assumed the roles of a caregiver. Equally, community would play the inspector in child care issues through checking and assessing whether or not a child is being given proper care at infancy up to adulthood. This can be made possible by way of police reports ,court process or reports to the Child Welfare Council.
What does the law provide? It is a criminal and statutory offence to abuse a child or violating his or her right. If successfully prosecuted, the offender may serve up to two years imprisonment. Furthermore, section 81 of the Constitution as read with section 7 of the Children’s Act provide for a battery of fundamental rights of children including the right not be exposed to child labour or maltreatment. Pursuant to that, the High Court assumed the Upper guardianship of children. This means that the High Court has power to assign curator ad litem or a probation officer in terms of the Chilren’s Act with a view to investigate any report on the abuse of children’s rights and the capability of the incumbent custodian to continue enjoying such custody while applying the best interest of the child principle.
Munashe O’brian Gutu is a Social & Economic Justice Ambassador and a law student at the University of Zimbabwe. He blogs in his personal capacity. Follow on twitter @barrister_gutu for more legal articles