Zimbabwe: Need for Customary Law Reform

This is a very serious issue in Zimbabwe - women have very few rights under customary law and can be bought and sold at will...
Diana Muringisi
27 March 2009Harare — WHILE academics have different views as to what exactly justice is and what its characteristics are, they generally agree with David Miller's assertion in his book, "Social Justice", that it is to do with "giving each man his due".Historically, women have retained a subordinate status to men who make the laws, for whom the laws are made and whose views are reflected in the laws of the state machinery.Thus women have not always received their fair share of justice.Research by the Women and Law in Southern Africa Research Trust (Zimbabwe) has highlighted that when it comes to issues of family law, inheritance and child support maintenance, among others, "women are marginalised from direct access to and control of material resources such as land and enabling resources such as education".Although the reasons for this marginalisation vary, the general thinking is that the effective use of the law would go a long way in alleviating the problems that women have in accessing resources that are due to them by virtue of being human and equal before the law.The relevance and applicability of human rights has historically been controversial in the developing world with developing countries arguing that international human rights instruments portray Western notions deemed to be alien to the rest of the developing world.Today the general feeling the world over is not "whether human rights have a place in the exercise of state power, but on what limits may properly be imposed on such norms".Theoretically speaking, the law has made substantial progress in creating equal opportunities between the sexes and it has also been used to create structures for the equitable redistribution of resources.While these legal interventions theoretically lay down the parameters for giving social and legal justice to women, the stark reality is that the law has not always improved the status of women.It has not resulted in every woman automatically having access to the justice delivery system and, subsequently, to justice.The fact is these laws are not self-implementing, women have to actively pursue their legal rights to gain the benefits of the advances made in trying to empower them.They themselves need to know what their legal entitlements are and how to access them.Access to justice and the delivery system is affected by both external and internal factors.A classic example of a case when a woman had to actively pursue her legal rights was critically explored in the hit Zimbabwean movie "Neria".This movie was a clear depiction of the plight that women face at the mercy of tradition.In this case, it was a struggle between a woman and her late husband's relatives before justice finally prevailed.The Parliament of Zimbabwe has approved the optional Protocol to the African Character on Human and People's Rights on the Rights of Women in Africa.Article 8 of the Protocol provides for "access to justice and equal protection of the law".However, in order to come up with an effective analysis of the justice delivery system, according to Goldfin and Gelfand, "it is essential to understand African society's customs, traditions, religions and spiritual beliefs. This invariably explains the existence of rules of an unwritten legal system".In May 1999, international human rights organisations focused their outrage on the Supreme Court of Zimbabwe's decision in Magaya v Magaya; a case dealing with women's rights and inheritance law.These organisations decried the court's decision that was based on customary law as equating the status of women within Zimbabwean society to that of teenage boys.Magaya became a rallying point for women in Zimbabwe and beyond who attacked the decision as a violation of both Zimbabwe's Constitution and international human rights norms.Responses ranged from ad hominem accusations (replying to an argument by attacking or appealing to a characteristic or belief of the source making the claim rather than by addressing the substance of the argument or producing evidence against the claim) against the Supreme Court to letter writing campaigns and rallies in the streets of Harare and Bulawayo.Yet such protests ignored the most troubling aspect of the Magaya decision, though contrary to international human rights norms, it was perhaps the only decision that the Supreme Court could have reached.When Shonhiwa Lennon Magaya, an indigenous Zimbabwean, died, he left behind two wives and four children, a house in Harare and some cattle at a communal home outside the city.He did not, however, leave a will.Shortly thereafter, Ms Magaya -- who was his eldest daughter from his first wife -- sought control of the estate in the local community court.The eldest son, Frank, from the second wife, declined to seek the inheritance, claiming he would not be able to look after the family as is required under traditional law.With the support of her mother and three other relatives, Ms Magaya received the appointment and title to the house and cattle.Soon thereafter the second son, Nakayi Magaya, applied to cancel this designation.Nakayi filed claiming that the failure to involve him and "other persons interested in the deceased's estate contradicted section 68 (2) of the Administration of Estates Act".Ms Magaya's appointment was cancelled forthwith and all interested parties then attended a new hearing on October 14, 1992.Nakayi Magaya was proclaimed the rightful heir under customary law and he proceeded to evict his sister from the Harare property.In justifying its decision, the court relied on the Administration of Estates Act, which at that time stated: "If any African who has contracted a marriage according to African law or custom or who, being unmarried, is the offspring of parents married according to African law or custom, dies, his estate shall be administered and distributed according to the customs and usages of the tribe or people to which he belonged."The African custom defined by the community court is not articulated within the decision, yet its intent is clear: such and such a person is a lady and, therefore, cannot be appointed to her father's estate when there is a man.Ms Magaya appealed to the Supreme Court, but her efforts were in vain.Even though the Supreme Court has broad discretion in deciding matters involving customary law, it declined to use its discretion in deference to customary law and the court's interpretation of African culture."Whilst I am in total agreement with the submission that there is a need to advance gender equality in all spheres of society," wrote Justice Muchechetere, "I am of the view that great care must be taken when African customary law is under consideration."Such deference to customary law is a fundamental characteristic of the Zimbabwean construction of justice, a reflection of one nation's response to internationally recognised, though seldom codified, rights.While Magaya reflects one choice of rights prioritisation, a choice created by Zimbabwe's legislature and administered through courts, it also highlights the difficulties of maintaining dual legal systems.It is, thus, an excellent example of the flaws inherent in the separate customary and civil legal systems by which a civil court judge must determine customary law through a variety of non-legal tools and must, in the end, use his or her own judgment to determine the outcome of a case.The resolution of rights in this instance in favour of one interpretation of customary law over arguments for women's rights, left Ms Magaya with no further legal recourse.Today she lives in a shack in a neighbour's backyard.The Supreme Court's decision clearly demonstrates the need to improve those aspects of national law that deal with women's rights.