Court/Judicial body: High Court of Zimbabwe, Harare
Date: November 11, 2008 CRC
Provisions: Article 16: Protection of privacy
Other international provisions:International Covenant on Civil and Political Rights, Article 9 (Right to liberty and security of person)
Domestic provisions: Constitution of the Republic of Zimbabwe, Section 13 (guarantees protection of the right to personal liberty) Criminal Procedure and Evidence Act, Section 32.2 (provides that a person arrested without warrant may only be detained for forty-eight hours, unless a warrant is obtained for further detention), Section 135(1) (sets guidelines for release without bail applicable to children accused of certain criminal offences) Prisons Act, Section 58 (any unweaned infant of a female prisoner may be received into prison with his/her mother) Children’s Act, Section 84 (a child charged with an offence shall not be detained before conviction unless such detention is necessary and no suitable remand home is conveniently available)
Background: Twelve detainees sought an order declaring their arrest and continued detention unlawful. They had been arrested at the end of October/beginning of November on suspicion of training insurgents, bandits, saboteurs and terrorists. Following their arrest, the police held the detainees incommunicado and beyond the 48-hour statutory time limit. One of the detainees was a mother with a two-year-old child, who was also detained in police custody.
Issue and resolution: Detention; incarceration of parents. The judge found that the child’s rights had been violated and granted an order declaring that the treatment and continued detention of the detainees was unlawful.
Court reasoning: The Court ruled that the conduct of the police in this case did not in any way uphold Zimbabwe’s international obligation to protect and promote children’s rights to protection and privacy. The protection afforded to children should be over and above that set out in Zimbabwe’s Constitution and other statutes. To subject a two-year-old to the rigours of detention on the grounds that his or her mother may have committed a criminal offence is totally unconscionable and immoral. The police may only act within the law, and in this case they acted as if they were above the law. The prohibition against detention of minors is implicit in the Children’s Act; however, there is a need for legislation to expressly state this in clear terms, as a gap exists in domestic law.
Excerpt citing CRC and other relevant human rights “The Children’s Act does not expressly address the plight of a baby taken by police who have arrested its mother but in my view the prohibition against detention of minors is implied in this section, Article 16 of the Convention on the Rights of the Child provides thus: ‘ Article 16- protection and privacy 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference orattacks.’ In any event I hold that the protection afforded to children is over and above that set out in the Constitution and other statutes. There is need however for the appropriate Act to expressly state this prohibition in clearer terms as it appears a lacuna exists in our law as presently constituted.”
Follow up: According to the Los Angeles Times, the child spent a total of 76 days in jail before being released to relatives, and his mother was released on bail in March 2009 (http://articles.latimes.com/2009/mar/29/world/fg-zimbabwe-justice29).
CRIN comments: CRIN believes this decision is consistent with the CRC. While it may in some instances be appropriate for very young children to be cared for by an incarcerated mother, this in no way justifies the continued and arbitrary detention of a mother and child. As further recognised by the court, Zimbabwe should take steps to clarify laws around the detention of mothers and their young children.
Citation:  ZWHHC 82
Link to full judgement: http://www.zimlii.org/zw/judgment/harare-high-court/2008/29-0