As a country that recognises both civil and customary marriages, Zimbabwean legislation has to ensure that there are no gaps in the law that leave women vulnerable. (Reuters/Rogan Ward)
As a country that recognises both civil and customary marriages, Zimbabwean legislation has to ensure that there are no gaps in the law that leave women vulnerable. But numerous opportunities to advance the protection of women through legal mechanisms are often missed because of marked disagreements between women’s rights groups, law-making bodies and other organisations. This is the case with the Marriages Bill, which sought to replace the Customary Marriages Act and the Marriage Act.
This Bill presents an opportunity to reconcile the ambiguity and gaps that the two laws have. But Parliament failed to debate and pass this Bill before the requisite time.
Criticisms levelled against the Bill included its “warped” view of protecting the rights of married women; its failure to recognise queer marriages and the inequality of marriages. As a signatory to the Convention on the Elimination of Discrimination Against Women (Cedaw), Zimbabwe has a legally binding obligation to domesticate its Cedaw obligations in its municipal law and take steps to “pursue by all appropriate means and without delay a policy of eliminating discrimination against women”.
The Bill provides a positive step towards domesticating these international standards. It shows progress in the recognition of gender equality, protection of the best interests of the child, recognition of consent in marriage as paramount and the recognition of the right to culture to the extent that these provisions are aligned to the Constitution. On the other hand, the Bill contains inconsistencies that may deter the realisation of some core women’s rights. These include the failure to recognise same-sex marriages and unregistered customary marriages and polygynous unions before the law.
According to Zimbabwe’s deputy registrar general, in 2013 about 84% of marriages were unregistered. Some women’s rights groups estimate that in 2019, about 70% of marriages are unregistered. Civil partnerships are common because when there is an exchange of roora (bride price) between families, this is considered as marriage. Most couples do not take a step further to solemnise this marriage for it to be recognised under customary law or civil law.
The reasons behind marriages not being registered include polygamous unions, lack of knowledge of marriage laws and skewed relationships of power between spouses on choosing the type of marriage they should have. One of the most important provisions in this Bill is the recognition of civil partnerships under clause 40, which defines civil partnerships as a long term relationship whereby the spouses have lived together without being legally married.
Civil partnerships without legal recognition put women in a disadvantaged position in the case of separation or death of the spouse. The courts are unable to ensure that women get a fair share of accumulated assets.
For most women in rural areas, their marriages are under customary law and remain unregistered. The dual legal system allows for some protection of women to use customary law to seek recourse for inheritance matters. But this system has its disadvantages. For example, it requires verification of the marriage from relatives. In some cases, where in-laws do not have a good relationship with the widow or they do not want her to benefit from her husband’s estate, they may refuse to verify this. The courts can use the standards set in the Bill to determine whether the civil partnership is recognisable. But there is no standard for determining the validity of a civil partnership, leaving the law subject to interpretation and women vulnerable.
An important provision establishing gender equality in marriage is clause 4, which expands on the primacy of free and full consent of both parties for a marriage to occur. Early and forced marriages are a feature of Zimbabwean society through practices such as kuripa ngozi (virgin pledging) and kugara nhaka (wife inheritance). These unions are not entered into by consent of the women or girls. They are culturally prescribed and take place in the private sphere of the family. Kuripa ngozi is defined as “the customary practice of compensatory payment in inter-family disputes as well as in the appeasement of avenging deceased spirits”. Usually compensation is done by the family giving their virgin girl child to marry someone in the bereaved family. In most cases these women do not consent to the marriage but their families do it out of convenience or obligation. This practice is outlawed.
Kugara nhaka is a practice where the widow is made to choose one of her husband’s male relatives as a husband (also known as sarapavana). This is understood to be the one who takes care of the deceased’s family and inherits the wife as well. This practice disadvantages women because there is usually no legal solemnisation of the marriage, which poses a threat to the woman’s right to claim in the deceased sarapavana’s estate.
As one of the countries with the highest prevalence of child marriages, reported at 32% , the introduction of the need for consent in the solemnisation of marriages presents an opportunity to cement equality in marriage by enforcing the basis of marriages to be consent ed to by both parties equally. Article 16 (2) of Cedaw states that the marriage of a child won’t be legally recognised, and states must take steps to specify a legal age for marriage. This is an important harmonisation of Zimbabwe’s international obligation to ensure children are not coerced into marriage. The Bill goes further to provide that a marriage officer shall not solemnise or register a marriage without proof of age of the parties involved. Both parties to the marriage must be 18 years or older. The Bill also recognises its misalignment with the Children’s Act of 2001, which defines a child as any person under the age of 16. Clause 48 amends the Children’s Act to define a child as any person who is under the age of 18. Clause 42 (1) (a) voids any marriage of a minor who is under the age of 18.
The Bill takes a step further to impose criminal liability on any person involved in the marriage of a child under the age of 18. The law thus recognises the role parents and the community play in promoting child marriage. This enables children to finish school and to live a full life without the injustice of being married off as a child.
Although the Bill presents opportunities for women and marriage in Zimbabwe, the Bill also has apparent gaps and inconsistencies that perpetuate inequality, violence, and discrimination against women. The inconsistencies and gaps must be rectified before the Bill is re-tabled before Parliament.
Pretty Mubaiwa is a University of Cape Town PhD candidate in public law and a Canon Collins Scholar