Affirmative Action and Gender Equality in Zimbabwe Draft Constitution
By Tino Chinyoka
When I was growing up, I was told that honey was the sweetest thing you could ever taste, so much so that if you wanted to taste some, you had to go to a hive and get it yourself, because no-one would ever give you honey.
In Mberengwa, there aren’t that many beehives, so if you aren’t from Mberengwa, you might think this is hyperbole. Anyway, the one time I put my hand in a hive happened to also be my last: and I still have the mental scars from the stings I got to prove it.
However, I find myself forced to dip my hand into a hive, not for honey this time, but to argue a point over a matter that I feel strongly about: women equality. I do not, as a person, believe that our country has done a more shameful thing than in the way it perpetuates institutional discrimination against women.
This is especially sad given that men women (including my sister) left home to go and fight for the liberation of this country. Having come back, we treat them, through a perpetuation of certain ‘customary law’ and ‘cultural’ practices, treat them like second class citizens.
Section 17 of the Draft Constitution, if passed, would oblige the State to ensure that all national institutions have an equal representation of men and women. As a country, we will no longer use ability and merit to appoint our ministers, ambassadors, heads of government bodies, committees and commissions.
17 Gender balance
(1) The State must promote full gender balance in Zimbabwean society, and in particular—
(a) the State must promote the full participation of women in all spheres of Zimbabwean
society on the basis of equality with men;
(b) the State must take all measures, including legislative measures, needed to ensure that —
(i) both genders are equally represented in all institutions and agencies of
government at every level; and
(ii) women constitute at least half the membership of all Commissions and other
elective and appointed governmental bodies established by or under this
Constitution or any Act of Parliament;
(c) the State and all institutions and agencies of government at every level must take
practical measures to ensure that women have access to resources, including land, on
the basis of equality with men.
(2) The State must take positive measures to rectify gender discrimination and imbalances
resulting from past practices and policies.
If ever something was ever drafted right of NGO-central, this is one such provision. The problem having been identified, a solution is proposed that does not address the institutional basis of the problem, but merely the symptoms. Sort of like putting a bandage on someone that has a sore throat, I would argue.
First, the absurd. To fully comply with this provision, committees will have to have an even number of members. Because otherwise, how do you have ‘both genders equally represented in all institutions and agencies of government‘ if the number is 15, 17 or 37.
So, if a committee of experts (made up of the required 50-50 ration of men and women, let’s not forget) determined that Zimbabwe needed only 23 Cabinet Ministers, will a 24th need to be created simply so that we might have 12 men and 12 women as Ministers?
Heaven forbid if we had diplomatic relations with an odd number of countries, for we would have to quickly establish relations with an extra one so that we have an equal number of male and female ambassadors. And how does a committee of 16 reach a decision if 8 are for and 8 against?
And does ‘equally represented …at every level’ mean, when appointing a head for the ZBC or other government institution, we must have two, a man and women? Surely that can be the only meaning of ‘at every level’?
Will we have a 50-50 split in the members of Parliament as well? There is talk of having 60/70 women added to the current body of 210 to bring about gender equality for about 10 years, then let the system take care of itself after that, though that last bit seems unlikely to satisfy Section 17, which has no sunset clause.
It is an undeniable fact that women in Zimbabwe are marginalised. Institutionally, our society does not give the same access to opportunities to women as it does to men. But, there is the clue right there: the reasons why we have the unfair society we have are institutional.
These affirmative action policies do not address the institutional problems. Rather, as stated above, they are like placing a bandage on someone with a congenital heart defect: you succeed in highlighting that there is something wrong while at the same doing nothing to solve the problem.
Personally, I also find this affirmative action insulting. Before my 14 year old daughter made them three, I used to think that the most intelligent people in Zimbabwe were Petinah Gappah and Sithembile Mtombeni.
One went to UZ and studied law, and went on to work for the World Trade Organization. One went to UZ and studied Medicine and is now a renowned doctor in Namibia. Both went to UZ before affirmative action was introduced to allow women with lower grades than men to get into some programmes.
But I have always wondered whether people had any idea that these two were in fact brighter than all of us, professors and all, or thought that they somehow had been given a leg up by this insulting policy.
United States Supreme Court Justice, Clarence Thomas is known to take no pride in his Yale education because of the fact that people always assumed that he got into that institution because of affirmative action.
He believes, and rightly so, that such policies do not build institutional respect for the beneficiaries, but rather allows the perpetuation of a belief that they need help, that by their own industry, they cannot achieve. That is insulting.
In my view, Section 17 is a sign of laziness on the part of the drafting committee.
Yes, people might have asked for equality of representation, but the job of those drafting our basic law is not to just regurgitate what was said verbatum: otherwise we would have filled COPAC with people qualified in shorthand and kids carrying tape recorders.
A constitution is not and should not be just a collection of laws subject to easy impeachment, but must be the embodiment of the moral, cultural, economic and social aspirations of our country. COPAC’s job was to shun easy solutions and come up with profound and lasting solutions.
In this case, solutions that address the institutional reasons why women are lagging behind in some spheres of life when they are as capable (and, on the example of my 14 year old, more capable) than their male counterparts. Come to think of it, did COPAC canvass Ms Gappah or Mrs Mtombeni?
I was raised by a single mother. While my father was alive, he and my mum failed to send any of their then school age children to A’ level, let alone university. After he died, my mum managed it, alone. I suspect that this is not a unique story.
Many of my friends when I was growing up had fathers that lived in town and came home once every 2-3 months, and their mothers raised them, alone. My sisters have sent their sons to university, while my brothers have not. Very anecdotal, yes, but again, by no means unique.
Why is there no law that criminalises as child abandonment the sending of male children to school while female children are kept at home?
Why not introduce gender sensitive policies in primary and secondary schools, which take into account that once they leave school to go home, girls will more likely have no time to do their homework because they have to do housework?
Why not, taking into account our culture and the demands placed on the girl child, make it cheaper to send girls to boarding schools than it is boys, thus encourage more families to give their daughters a quality education?
Why not force political parties to have all women candidate lists in 50 % of the constituencies, so that instead of being appointed, women actually win their way to Parliament on merit?
Now, these may or may not be viable solutions, but I only had 5 minutes to think them up.
The point is, if it takes 5 minutes to think up interesting questions, surely with all the resources given to them, COPAC could have established a committee of experts to come up with well thought out ways to address and bring about gender equality in a way that is not temporary, superficial and insulting to the intelligent women in our country who, in fact, account for more than 52% of all the intelligent people in Zimbabwe put together.
Because in less than a minute, I can name to this collage of intelligence my 14 year old daughter, Petinah Gappah and Sithembile Mtombeni, before I can think of one man. Highly anecdotal, yes, but by no means unique.
The real tragedy however, is that it can all be avoided. It is unfortunate that Zimbabweans will soon be offered a referendum on so imperfect a document.
Replacing an imperfect Constitution with one that just uses more words, sections and subsections to achieve an equally unsatisfactory result is okay for a burial society. It is however not okay for a country. Zimbabweans, and women in Zimbabwe in particular, deserve better.
Tinomudaishe Chinyoka is a respected lawyer and regular columnist for Nehanda Radio.com
