The constitutional protection of child witnesses in Zimbabwe’s criminal justice system

• Jurisdiction: South Africa
• Author: Rongedzayi Fambasayi
• Date: 04 July 2019
• Citation: (2019) 32 SACJ 52
• Published date: 04 July 2019
• Pages: 52-75

The constitutional protection of

child witnesses in Zimbabwe’s

criminal justice system

RONGEDZAYI FAMBASAYI*

ABSTRACT

To evaluate the legal landscape and the readine ss of courts in Zimbabwe, in

the protection of child ren who are witnesses to cri me, this article prov ides

a descriptive historic al review of legal developments and reforms toward s

the promotion and protection of the r ights of child wit nesses. This is base d

on a constitutional fr amework, which has a strong recognit ion of human

rights, partic ularly a fairly extensive clause ent renching children’s rights. It

is contended that the entrench ment of children’s rights in the Con stitution

of Zimbabwe Amendment (No 20) Act, 2013 – in par ticular the right to

equality before the law, the right to be heard , the right to protection by the

courts and the bes t interests of the chi ld – is a remarkable step that opened

a door to an undeniable claim of access to j ustice for children. Reference

is made to internationa l law on the human rights of the ch ild and foreign

law, in particular South A frica, to highl ight notable comparative legal

developments that inform recom mendations and lessons that Z imbabwe

can learn.

1 Introduction

‘Court rooms are frightening places for anyone testifying. Even adults are

fearful about giving evidence in front of magistrates and judges, and about

being questioned by prosecutors and defence lawyers. Imagine how much

more scary that must be for a child.’1

Children testif ying in crimi nal proceedings, often called as the only

source of evidence2 or to complement evidence for the state or defence

case, require the protection of the law. It is recognised that due to their

vulnerabilities, as compared to adults, children who are witnesses to

crime (may) suffer depression, stigmatisation, anxiety, post-traumatic

* LLB (Hons) (Zimbabwe), PGDip (Child Sensitive Socia l Policies) (Zimbabwe), LLM

(North West University), Lect urer in Law, Great Zimbabwe University.

1 A Skelton in Centre for Child L aw, Ma king room: Facilitating the testi mony of child

witnesses and vic tims (2015) v.

2 In this inst ance the child may be the complaina nt or the accused testifying i n his or

her case.

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(2019) 32 SACJ 52

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stress disorder, fear, mistrust and poor self-e steem.3 At the international

and national frontiers, every child, i ncluding witnesses to crime, has

the right: to equality before the law; to equal protection of the law and

benet of the law; to be heard; and to have their best interests given

primary consideration.

The Constitution of Zimbabwe Amendment (No 20) Act, 2013

(Constitution) has a strong recognition of human rights, including a

fairly extensive clause entrenching children’s rights.4 On the backdrop

of the 2013 constitutional framework, this contr ibution is an analysis of

the current legal landscape and the readiness of Zimbabwean courts to

protect child witnesses to cri me. It is limited in scope, with a focus on

reviewing legal texts conferring enforceable legal rights and interests.5

The term ‘child witness’ is used to refer to an eyewitness and/or

complainant to crime, to the exclusion of a child offender testif ying as

a witness in his or her own case. No reference to child witness is found

in the Constitution or even other statutor y instruments. On the strength

that the Constitution imposes a peremptory duty, when interpreting

the Declaration of Rights, to take into account international law that

Zimbabwe is a party to,6 reference is made to international children’s

rights law.

The contribution consists of several par ts of which this introduction

is the rst. The second part delves into the international obligations

of state parties to promote, respect and protect the rights of child

witnesses. This is followed by a descriptive survey of the legal

developments (legislative and judicial) and the constitutional protection

of child witnesses. The fourt h section is an exploration of best practices

from South African law.7 Subsequently, some recommendations and

reections are made, followed by the conclusion.

3 UWC Schoeman ‘A training program for inter mediaries for the child w itness in

South African courts’ (20 06) unpublished PhD the sis, University of Preto ria 146.

See also C Churr ‘Ch ild witnesses: T he battle to testif y’ (2010) 73, 3 Journal for

Contemporar y Roman-Dutch Law 384 -385 and DL Thomas ‘Child witnesse s and the

oath: empirical e vidence’ (2000) Southern California La w Review 1017 at 1018-102 1.

4 See section 81 of the Con stitution.

5 The protection of ch ild complainant s and witnesses to cr ime is interdisc iplinary,

in-cooperat ing various discipl ines like cri minology, victimolog y, social work and

psychology.

6 Section 46(1)(c) of the Constitution.

7 Section 46(1)(e) of the Constitution st ates that, when inter preting provisions of t he

Declaration of R ights, courts may con sider relevant foreign law.

The constitutional protection of child witnesses

in Zimbabwe’s criminal justice system 53

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