Tsitsi M Masengure - Child Rights Lawyer
Legal insights on the custody and guardianship of minors in Zimbabwe
In Zimbabwe, where parents of a child separate, divorce, are not married, the mother of the child/children is regarded by law as the custodian, unless challenged in the courts. Fathers remain guardians of the children and exercise their rights in consultation with the mothers. However, issues of custody and guardianship have proved to be problematic. During The Besana Mail Community Round Table Discussion, Weekly Guest Host Onita Sibanda (OS) interviews Tsitsi Masengure (TM) a Child Rights Lawyer.
OS: Welcome to The Besana Mail Round Table Discussion where we discuss children’s issues. Today’s topic is Legal insights on the custody and guardianship of minors in Zimbabwe. I am joined by Tsitsi Masengure.
TM: Good evening everyone, thanks for the invitation to be your guest today.
OS: We welcome you Tsitsi Masengure! Kindly introduce yourself.
TM: Tsitsi M Masengure is my name and I am a child right’s lawyer currently working at Justice for Children. I also do consultancy work for various stakeholders when my services are required. I have vast experience in child protection issues so would rather say I am a Child rights enthusiast always geared up to learn, impact and champion child rights issues.
OS: As a lawyer, you have worked in the children’s justice space for many years. What inspired you and what keeps motivating you everyday?
TM: The inspiration came from the realisation of lack of access to justice for the marginalised and vulnerable groups in our societies especially children. For me, motivation comes from my passion for the protection and advancement of children’s rights as often times in the course of my work l encounter cases that calls for protection of individuals in as far as their rights are concerned, at times even when I assist 1 in 10 children I believe I change and impact lives, and at times my work and others has potential of shaping the desired child justice system.
OS: Our topic today is on the custody and guardianship of minors in Zimbabwe. As a child rights advocate, what is your experience in this area?
TM: Custody and guardianship of minors in Zimbabwe issues are somehow becoming a problematic area in our country. This is so because over the past years we have seen a rise in these issues thereby prompting a lot of challenges in how to deal with these issues. Long back families were unified, that you would rarely notice abandoned children as there was the Ubuntu concept. A child belongs to the whole community therefore families and societies would take good care of children without even looking at whose child is it. Nowadays things have changed, families are breaking up due to separation, divorce, death, relocating to the diaspora, leaving most of our children vulnerable as to who takes care of them in our absence. Normally children suffer as they are used to settle personal scores between their parents or even family members thereby fuelling up custody and guardianship battles. Due to the continuous changes being encountered our laws are also thriving to be in close contact to the changes and we would greatly applaud the justice discourse for that but we still have a long way to go as times continue to change.
OS: What is the law of custody of a child in Zimbabwe?
TM: In Zimbabwe, custody is governed by various statutes, the Constitution of Zimbabwe, the Guardianship of Minors Act and all other relevant statutes. Custody refers to the legal right a person (usually a parent) has over a child including the right to have the child with him/ her, right to regulate their daily life, right to determine all questions relating to the their educational, social and religious upbringing etcetera. The issue of custody usually becomes relevant when parents start living apart, separate or get divorced, die, or when children get abandoned.
OS: What is the difference between custody and guardianship in Zimbabwe?
TM: In determining the issue of custody, the Act enjoins the court to consider the best interests of the child. This is also in line with section 81(2) of the Constitution of Zimbabwe which provides as follows; ‘A child’s best interests are paramount in every matter concerning the child’.
In granting an order for divorce or judicial separation, the High Court or judge may grant sole custody to either parent if it is in the best interests of the minor child to do so. The best interests of the minor child are not what is best for the contending parties. The court as the upper guardian of all minor children will have to consider on the evidence given which of the parents would best care for the child. That a parent cannot financially look after the child is not in itself a factor to deny a party custody as the non- custodian parent can be ordered to pay maintenance. Care and affection is considered more than luxury and comfort. It would for example not be in the best interests of the child that his/her custody be awarded to a parent who has a known history of child abuse.
The court is also empowered by the Matrimonial Causes Act to award custody to someone other than the parents. This deprivation of custody to the natural parent can only be under special circumstances. The test is whether the parents should be deprived of custody for any reason involving harm or danger to the child’s welfare.
It is rare for the court to grant joint custody as it is difficult to practice but joint custody may be awarded where it is in the best interests of the minor child to do so. An order for custody goes hand in hand with an order for access in relation to the non-custodian parent.
Custody refers to the physical control and primary responsibility of the well being and day to day care that an individual has over a minor child whilst with Guardianship it encompasses legal authority with full rights over the affairs of a minor child including dealing with their health, educational needs, financial security or any welfare needs.
Major difference is with custody one can do so without any legal sanction but with guardianship one is required to have such authority granted to him or her.
OS: How do people get legal guardianship of children in Zimbabwe?
TM: People do get legal guardianship either naturally by virtue of being biological parents to your children or through an order granted by the court after making a requisite application. I will go on to explain these two.
Natural Guardianship rights
By merely giving birth to your child you are automatically their guardian which affords a duty to care for the child’s personal interest and property. For example, education, healthcare etcetera.
Legal guardianship rights
This usually refers to an individual awarded the legal authority and corresponding duty to care for a child’s personal interest and property by a court of law, who might not be the biological parent to the child. It can either be granted by the Magistrates’ court or by the High Court of Zimbabwe. This i will explain again.
Magistrates court guardianship application
This can only be done when both parents are late and a third party seeks guardianship or when the mother is late but the child was registered in her maiden surname.
High court guardianship application
This can be done by either parent when there is a sole guardianship dispute, a third party seeking guardianship from both parents who are willing to cede their parental guardianship rights, or when a third party is seeking guardianship from either the mother or the father of the child.
OS: What are the common challenges on custody issues in Zimbabwe?
TM: I will explain.
1. Lack of knowledge on how to deal with these issues.
2. The continuous rise in breaking up of families fuelled up by disputes, financial challenges, infidelity issues, death, so many relocations to the diaspora.
3. Confused decisions with regards to the child’s upbringing.
4. The relationship between the child and their parents often breaks down.
5. Mental and physical wellbeing of children is affected due to changes.
6. Lack of cooperation between parents
7. The interpretation of the best interests of the child which is not a one blanket fits all scenario
8. Lack of specialised independent courts and personnel to deal with these issues separately thereby dragging these matters in courts
9.Lack of resources as the case require the Department of social development.
OS: What are new things which were added on the Guardianship of Minors Amendment Act of 2022?
TM: The Guardianship of Minors Amendment Act 2022 which was gazetted on the 20th of May 2022 was long overdue since there was a need to align the Act with the Constitution which is the supreme law of the land. The Guardianship of Minors Amendment Act 2 of 2022, amends sections 2, 3, 4 and 5 of the Act.
Section 2 of the Act is amended by the insertion of definitions of “custody” and “guardianship”. Custody is defined as either legal custody, which arises by virtue of the parents being married to each other or by virtue of an order of separation or divorce, or actual custody, where the parents are not married to each other. The section defines “guardianship” to mean a legal right sanctioning either parent to manage a minor’s affairs including health, educational needs, financial security or any welfare needs. These definitions are a welcome development, as they were not previously included, yet they are crucial to the discourse surrounding the rights of children.
The Amendment Act repeals section 3 and substitutes it with new provisions on the exercise of joint guardianship and custody by parents. It gives both parents equal rights of guardianship and custody over their children, in consultation with one another, whether the parents are married or otherwise. Further, the court may expressly give direction as to the manner in which the joint guardianship is to be shared or exercised in instances where there is an order of maintenance. Before the Amendment, the position was that the rights of guardianship of the father were to be exercised in consultation with the mother, and if a decision of the father on any matter relating to guardianship was contrary to the mother’s wishes, she could approach the High Court to settle the matter.
Another remarkable feature to the Act is the prohibition of consenting to child marriages. The provision to the Act was in conflict with the current Constitution as it allowed guardians to consent to minors’ marriages. Section 4 is amended to delete the power of parents to consent to the marriage of their minor children. This is a welcome development that upholds section 81(2) of the Constitution which provides that, “a child’s best interests are paramount in every matter concerning the child”. It also protects children from child marriages that are sanctioned by their parents, be it founded in religious or cultural practices.
Section 5 is amended to state that if parents separate “either of the parents” shall have sole custody of the children, pending a court order. Previously, upon separation, custody of minor children was given to the mother, pending the court order. The Amendment also empowers the custodial parent, and not just the mother, to apply to the children’s court for an order for sole custody, if the non-custodial parent removes the children from the custody of the custodial parent. Lastly I believe this even cements the best interests of the child principle as it seeks to look at what is ideal for a particular case as circumstances differ.
OS: As a seasoned lawyer, has the children’s court been helpful on the cases of custody and guardianship?
TM: Yes, it has been helpful as far as the determination of children’s issues are concerned. However, although our law provides that every Magistrates’ court is a children’s court we need distinct separate courts to deal with children’s cases separately rather than using the same applications court to deal with children’s issues. For example, when I go to court I have to wait for the Magistrate to deal with some other issues then lastly attend to children’s issues applications at last, this therefore defies the appropriate attention required to be given to these cases as they would have been exhausted with dealing with some issues.
Children’s cases also require specialised personnel to deal with these issues as some Magistrates are not experienced to deal with such.
OS: How can a media house like The Besana Mail be involved in such issues and help children and communities?
TM: I believe the pioneers of Besana Mail should be applauded for thriving to give children a voice. Our societies lack information thereby the continued fight in realising that information gets to the marginalised is a great initiative, continue giving out information to our communities, communicating to us and others of what will be happening in other communities, reach out to more when resources permit because the Zimbabwean child still needs us to be heard and to be seen.
OS: Your last words?
TM: Children’s rights are everyone’s responsibility, continue to impart knowledge in our various communities, what we have learnt today can be shared with many people for us to fill up knowledge gaps. Let us all protect our children, our communities and give our children hope for the future. Thank you so much for inviting me here today Onita and crew and all participants, enjoy the rest of your evening and have a blessed weekend.
OS: Thank you Tsitsi for such an insightful session, it is an honour to have you
TM: It is my pleasure.
Community Round Table Discussion with Weekly Guest is The Besana Mail flagship programme hosted by Onita Sibanda.
For more stories like this see below: https://thebesanamail.com/2023/06/25/giving-children-a-voice-and-platform-in-under-served-communities/
