Mercedes Sayagues
Women activists in Harare are on the warpath after the Zimbabwe Supreme Court recently used customary law to disinherit a woman.
Angry women marched through downtown Harare last week to the court, where they delivered a written complaint about rulings that diminish women’s rights.
The marchers bore colourful placards, some of which read: “We will not accept customary legalised tyranny”; “Discrimination against women is not compulsory in African society”; and “Are we going backwards into the year 2000?”
Venia Magaya (52), the eldest child of her father’s senior wife, was made heir to his estate by a community court. Her younger half-brother, son of their father’s second wife, appealed to a magistrate’s court and won.
In July 1997 he kicked Venia out of the house in Mabvuku where she had lived with her parents until their death. She now lives in a shack in a neighbour’s backyard.
Rita Makarau, a lawyer and MP, appealed on behalf of Magaya to the Supreme Court and lost.
The court ruled that, under customary law, only men can inherit and all family members are subordinate to the male head of the family; that the Legal Age of Majority Act, drafted in 1982 to ensure equality, does not apply to customary law; and that Section 23 of the Zimbabwe Constitution allows discrimination against women as “the nature of African society”.
The ruling applies only to the estates of people who died before November 1 1997, when a law guaranteeing equality between male and female heirs was passed. It will, however, apply to a number of cases yet to be heard.
More alarmingly, it has opened the door for customary law to erode legal gains made by Zimbabwean women over the years.
Lawyers unhappy with the ruling argue that the concept of customary law is vague since every ethnic group has its own; that the court is reinstating discrimination against women that the Legal Age of Majority Act was meant to erase; and that Zimbabwe has signed international conventions on equality between men and women.
However, Pearson Nherere, a respected lawyer with a solid human rights record, says: “The decision is not palatable or desirable according to human rights, but it is correct according to jurisprudence.”
He adds that the Act was ill-conceived and ill-defined. “We are in a confused situation,” says Nherere. He suggests lobbying Parliament to change the laws, not the Supreme Court.
This feeds into a debate on the role of the judiciary in promoting human rights: should it be an activist Bench that promotes human rights or one that upholds the law and leaves law-making to the legislature?
Conversely, ask women activists, should the Supreme Court become the custodian of customary law at the expense of being the custodian of women’s rights? And whose customary law is this anyway?
Yet this ruling was hardly a bolt from the blue. In recent judgments, the Supreme Court has narrowed the application of equality among men and women under customary law.
Most troubling in one recent ruling is that, instead of confining itself to that case, the court reversed previous judgments that upheld the Legal Age of Majority Act, stating they were wrong.
This alters jurisprudence. Lawyers cannot refer any longer to progressive judgments regarding women’s rights issued by courts in the mid-1980s.
“With all due respect to the court, its thinking is unclear, muddled and confusing,” says law lecturer Welshman Ncube. He believes that eventually the Supreme Court will have to reverse its decision and declare this judgment wrong.
Women activists, lulled into a false sense of security after the Act was passed, are now on the warpath.
“This is a clarion call to action, to make sure that in the new Constitution there are no ambiguities and no exceptions on equality,” says Thoko Matshe, of Zimbabwe’s Women Resource Network.