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Monday, February 26, 2024
HARARE, Jun 12 1999 (IPS) - The recent, widely publicised Magaya vs. Magaya ruling of the Supreme Court of Zimbabwe that denied women the right to inherit under customary law has fueled a review of the interface between customary and general law as regards women.
When women activists delivered a protest to the Supreme Court in the capital Harare in mid-May, they were met by the deputy speaker of Parliament, Edna Madzongwe, and two male and two female members of parliament (MPs).
“These MPs have daughters and they don’t like the ruling either,” says Madzongwe, to ululation, songs and dancing.
As Zimbabwe debates a new Constitution, supportive MPs, lawyers and women activists strategise on how to enshrine watertight provisions for gender equality. “This ruling is a clear indictment of the need for constitutional reform and for a strong Bill of Rights,” says human rights lawyer Tendai Biti.
Zimbabwe’s constitution is, in the words of law lecturer Welshman Ncube, “decidedly undecided on gender equality.” Section 23 allows customary law to sneak in by affirming “the nature of African society” even when it discriminates against women or goes against international conventions signed by Zimbabwe.
“We have been alerted that we can’t muck around and allow in the new constitution any clauses or particles that may bring discrimination,” says Thoko Matshe, of Zimbabwe Women’s Resource Centre.
Since it was Rhodesia, Zimbabwe has had a dual systems of laws: general (or western or modern, originally for settlers) and customary law (for Africans).
Independence, in 1980, did not solve this dichotomy. Both systems coexist, uncomfortably. Customary law expresses the values of a patriarchal, agrarian society. General law has gradually incorporated principles of gender equality as the notion evolved.
Critics of the dual system argue it perpetuates the colonial system of differentiation among people and that it is vague, since there are as many practices as ethnic groups in Zimbabwe.
Moreover, customary law is not frozen as colonial lawyers wrote it. The courts base their knowledge on the writings of South African authors in the 1950/60s, often describing earlier times.
One regional study found out that courts in Lesotho were applying inheritance rules laid down in the laws of Lerotholi in 1903, while current practices differ. In Zimbabwe, courts apply rules laid down by courts before 1930. Things have changed since.
Conversely, some customary practices cannot claim an ancient history. In Swaziland, widows are supposed to behave respectfully and not shout at or run after a bus but the ancestors had no buses.
Six years ago, researchers doing a survey on inheritance practices interviewed 739 people from all walks of life across Zimbabwe. They did not hear that it was mandatory for the eldest son to inherit. People said it depended on the best interests of the family and that all children should share the father’s estate, however differently.
“We were shattered by our findings,” says researcher and law lecturer, Julie Stewart.
She argues that customary law is more flexible than the courts portray it — and reserves harsh criticism for Judge Simba Muchechetere. He has been key in three recent rulings, including Magaya vs. Magaya, that narrow women’s rights.
“In setting himself as the determinator of the content of customary law, Justice Muchechetere has robbed it of its dynamic capacity and has denied Zimbabwe the possibility to explore real jurisprudence in customary law,” says Stewart.
Some lawyers suggest a survey and write up of customary practices as carried out these days. Yet the experience of Botswana and Lesotho, where customary law was researched and codified, says otherwise.
When the white male colonial lawyers wrote down customary law, they consulted African male chiefs. Yet women are also depositories of customary law. Their views are not reflected.
Customary law must be examined in the context of whether or to what extent it was constructed to benefit men and their political agendas at the time.
Sociologist Rudo Gaidzanwa points out that when colonial lawyers realised the degree of independence of Ndebele women to leave their husbands, they raised the price of lobola (bride price) to make divorce more difficult.
The Ndebele, who make up 20 percent of Zimbabwe’s 12 million population, inhabit the south of the country, on the border with Botswana and South Africa.
Although convenient for authorities, the reduction of customary law into written form “ossifies a system which is essentially evolutionary and does not allow it to evolve to meet modern socio-economic circumstances,” concludes a study on inheritance practices in six southern African countries by Women and Law in Southern Africa.
A feminist analysis reads customary law as a patriarchal convention to control women’s productive and reproductive capacity. Radical feminists take the debate one step further: chuck it out.
“Customary law must go because it excludes women. Africa trades with the world using modern laws. Why can’t these apply to African women ? Africa cannot go into the next millennium carrying this archaic baggage,” asks Patricia McFadden, who is involved in a campaign to redress gender inequality.
It will not be easy. The MP and lawyer who appealed Magaya’s case to the Supreme Court says she sounded fellow MPs on this subject and was told it would be hard for men to let go of polygamy.
For the Supreme Court of Zimbabwe, internationally respected for its many progressive judgements, the Magaya ruling was a blob on their reputation.
But it may end enshrining gender equality in the new constitution and thus, effectively undermining the hold of customary law over women.
HARARE, Jun 8 1999 (IPS) - The recent, widely publicised Magaya vs. Magaya ruling of the Supreme Court of Zimbabwe that denied women the right to inherit under customary law has fueled a review of the interface between customary and general law as regards women.
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