By Takunda Mandura
Zimbabwe's archaic Frederick Clayton Trust Act (Chapter 17:02), a colonial-era legislation riddled with clauses that discriminate against the majority of the country's citizens, is on the chopping block after the cabinet recently approved the principles for its proposed repeal.
The tipping point was the cabinet’s acknowledgement that the law blatantly differentiates between European and non-European children even in the celebration of a state event such as the now-discontinued annual "Pioneers Day" or "Commonwealth Day".
Dr. Jenfan Muswere, the country's Minister for Information, Publicity, and Broadcasting Services, points out that the Act contradicts what the Zimbabwean Constitution’s Section 56 mandates regarding equality.
"Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock," reads sub-section (3) of the Constitution.
Rooted in racism
The Frederick Clayton Trust Act had been enacted to give effect to a will drawn in 1918 by the man after whom the legislation was named.
Clayton was then part of the Pioneer Column, a force raised by Cecil Rhodes and his British South Africa Company in 1890 as part of his efforts to annex the territory of Mashonaland, which later became a part of the erstwhile Southern Rhodesia.
"The trustees shall, once every year, and preferably either on the day known as 'Pioneers Day' or 'Commonwealth Day', place at the disposal of the Mayor of Salisbury a sum of money not exceeding £100 either for the purposes of a picnic for the European children and their parents who happen to be in Salisbury on the said day, or to provide some means of enjoyment to European children and their friends. The said sum shall be a first charge on the income of the Hatcliffe Estate."
The Act also established a trust fund for the assistance of members of the 1890 and 1893 Pioneer Columns and their descendants, particularly anyone who might have been wounded or invalided during the war of 1914-18.
Painful reminder
Zimbabwean politician and constitutional law expert, Prof Lovemore Madhuku, believes the government needs to be more alert and look at colonial-era laws that remain in the statute book without serving any purpose other than to reopen old wounds.
"The government does not seem to be alert to the fact that under our statute, a law ceases to be in force only after it has been repealed," he tells TRT Afrika.
Douglas Mwonzora, a lawyer, politician, and co-chairman of the Constitution Parliamentary Select Committee that represented the opposition parties in drafting the Zimbabwean Constitution in 2013, says the cabinet's decision to repeal the Frederick Clayton Trust Act hasn't come a day too soon.
"It's a welcome development. Frederick Clayton wanted to reserve land for the recreation of European children. By European Children, he meant white, which does not apply to Indian, Asian and black children. The Act is, therefore, inherently discriminatory," he says.
He urges the government to remove all colonial laws that survive within the statute, saying these have no place in today’s Zimbabwe.
"We have the Rhodes Act and other pieces of legislation named after some of the leading colonialists. These have to be amended to remove the discriminatory clauses. There is no reason to retain any colonial legislation. We need to modernise; gone are the days of discrimination based on race," he says.
Christopher Mhike, a human rights lawyer and expert in constitutional law, urges the government to review laws to identify those that have long outlived their utility. "Statutes are either perpetual or temporary.
The problem is that revision of laws is being done piecemeal without clear guidelines as to how the government is selecting the laws to be repealed in each phase of the clean-up exercise," he tells TRT Afrika.
Mhike urges the government to review all "toxic" laws that hinder the rights and freedom guaranteed to citizens by the Constitution.
"It would have been a more progressive development had the government targeted toxic legislation such as the Official Secrets Act, or the censorship laws that inhibit the freedom and rights enshrined in the Constitution.
The Official Secrets Act, for instance, inhibits access to information and flies in the face of the modern concept of open and transparent governance."
Long way to go
In pursuance of its agenda for legislative reform, the government is also being encouraged to focus on administrative processes geared to bring about meaningful and progressive changes to people's lives.
"The laws lined up for repeal should be those that stall national progress, and violate the fundamental rights of citizens of Zimbabwe.
In the same vein, the government should make every effort to promulgate and activate the new laws envisaged under the 2013 Constitution. The Zimbabwe Independent Complaints Commission Act is a prime example," Mhike tells TRT Afrika.
Section 2(1) of the Constitution, which Zimbabwe adopted in 2023, states that any law, practice, custom or conduct inconsistent with it "is invalid to the extent of the inconsistency".
