Numerous opportunities to advance the protection of women through legal mechanisms are oft missed because of marked disagreements amongst various women’s rights groups, law-making bodies, and other interested stakeholders. In Zimbabwe, this is the case with the Marriages Bill of 2019 which sought to replace the Customary Marriages Act [Chapter 5:07] and the Marriage Act [Chapter 5:11]. This Bill presented an opportunity to reconcile the normative ambiguity and gaps that the two laws relating to marriages in Zimbabwe had. Unfortunately, the parliament failed to debate and pass this bill before the requisite time. As a country that recognizes both civil and customary marriages, Zimbabwean legislation has to be sophisticated enough to ensure that there are no gaps in the law that leave women vulnerable in both types of marriages, including those culturally prescribed marriages that are polygynous in nature.
Several analyses have been carried out by academics, lawyers and the public in general since the Marriage Bill was tabled before Parliament in Zimbabwe. Criticisms leveled against this bill included its warped view of protecting the rights of married women, its failure to recognize LGBTQ+ marriages and the inequality of marriages. Most critically interrogated was Clause 40 which defines civil partnerships and the rights of spouses that come with this type of union. As a signatory[1] to the Convention on the Elimination of Discrimination Against Women (CEDAW), Zimbabwe has a legally binding obligation to take steps to ‘pursue by all appropriate means and without delay a policy of eliminating discrimination against women.’[2] Zimbabwe is not a signatory to the Optional Protocol to CEDAW which strengthens the enforcement mechanisms of the instrument. However, even without signing or ratifying the Optional Protocol to CEDAW, the Zimbabwean government has an obligation to domesticate its CEDAW obligations in its municipal law.
The Marriage Bill provided a positive step towards domesticating international standards to protect women from all forms of discrimination (including violence) as provisioned by CEDAW. This Bill 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 and its preservation to the extent that these provisions are aligned to the Constitution.[3] On the other hand, this Bill contains some inconsistencies that may serve to deter the realisation of some core rights by women in Zimbabwe. These inconsistencies include the failure to recognize same-sex marriages, which aggravates discrimination against women of different sexual orientations and the failure to recognize civil partnerships as marriage. This leaves several women vulnerable to abuse and discrimination as this is a common union in Zimbabwe.
This short analysis seeks to critically interrogate the extent to which the 2019 Marriage Bill provided an opportunity for aligning international standards that seek to protect women from discrimination and violence as provisioned by CEDAW into municipal law.
Gender Equality
This is a central theme of the Bill. Clause 6 states that all parties in a marriage are equal and that both parties are entitled to the same equality upon dissolution of the marriage. The recognition of equality as a central feature of marriage is important as it protects women from abuse during the marriage and upon dissolution of the marriage. This clause also goes a long way to awarding women legal status to not be seen as perpetual minors as they have the right to consent to marriage and weild equal status as that of their spouse in all aspects of the union. Article 5 (a) of CEDAW states that, the state should take all measures to ‘modify social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’.[4] Marriage is a socio-cultural phenomenon, and therefore it is a positive sign that this Bill recognizes that it is important to reiterate the equality of spouses in a marriage. Article 16 (1) of CEDAW also mandates state parties to ‘take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women’. Establishing equality in marriage is key to addressing matters of inequality and discrimination that women face. This is because women experience most violence and discrimination in the private and/or familial sphere.[5] For most women, the private sphere is core to their conditioning as it also impacts their participation in economic, political and social life.[6] If women’s rights are fully protected in this sphere, they are able to experience their other fundamental rights and freedoms. This is a positive step that the Bill has taken towards ensuring the fundamental equality of men and women.
Another important provision establishing gender equality in marriage is Clause 4. This provision expands on the primacy of free and full consent of both parties for the solemnization of a marriage to occur. Consent is an important enabler for gender equality in marriage. This is because it is a step towards the elimination of forced marriages. Article 16 (b) of CEDAW states that state parties shall ensure the right of men and women to choose their spouse with free and full consent. The provisioning of free and full consent in marriage recognizes the existence of inequalities in a marriage that may be perpetuated by social and cultural influences that render women as passive agents in matters of marriage. Early and forced marriages are a feature of Zimbabwean society, this is because of the existence of practices such as kuripa ngozi (virgin pledging) and kugara nhaka (wife inheritance). These unions are not entered by consent by the women and/or girls involved, they are culturally prescribed and they take place in the private sphere of the family. In the case of kuripa ngozi, it is defined by Chivasa as “the customary practice of compensatory payment in inter-family disputes as well as in the appeasement of avenging deceased spirits.[7]” Usually compensation is done by the family giving their virgin girl child to marry someone in the bereaved family. This practice influences forced marriages, as in most cases these women do not consent to the marriage but their families do it out of convenience or obligation. It should be noted however, that this practice is outlawed. Whilst on the other hand kugara nhaka is a practice whereby upon her husband's death, 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 inherently inherits the wife as well. As shown in the case of Macheka v Chasara, this practice disadvantages women as there is usually no legally recognized solemnisation of the marriage and poses a threat to the woman’s right to claim in the deceased sarapavana’s estate. The practices of marriage disproportionately affect women and their realization of their core rights.
Non-Discrimination in marriage
One of the most important provisions in this Bill is the recognition of civil partnerships under Clause 40. The Bill defines civil partnerships as a long term relationship whereby the spouses have lived together on a genuine basis without being legally married.[8] According to the Deputy Registrar General in Zimbabwe, in 2013 about 84% of marriages were unregistered in the country.[9] Some women’s rights groups currently estimate that in 2019, about 70% of marriages are unregistered.[10] Civil partnerships are a common type of marriage in Zimbabwe because usually 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 solemnize this marriage for it to be recognized under customary law or civil law. There are many reasons behind this lack of registration of marriages in Zimbabwe and this includes polygamous unions, lack of knowledge of marriage laws by women, and skewed relationships of power between spouses on choosing the type of marriage they should have.
Civil partnerships without legal recognition place women in a disadvantaged position in the case of separation or death of the spouse. Without some form of legal recognition by the law, the courts are unable to ensure that women get a ‘fair’ share of accumulated assets and/or finances upon separation or the death of a spouse. Women lose out on the material accumulations that they acquired during the marriage without any form of legal recourse. As in the case example given above in Macheka v Chasara, The Bill in this regard recognizes this reality of marriage for most women in the country and seeks to offer some protection for women. This Bill also sets the standards for recognition of a civil partnership by the courts.[11] These can help the court to determine the validity of the partnership and whether the spouse has a right to claim any material accumulation or compensation. Again, this addition of recognizing civil partnerships is a step towards eliminating discrimination and violence against women.
Currently, the dual legal system in Zimbabwe allows for some protection of women to use customary law to seek recourse for inheritance matters upon the death of a spouse. The Constitution of Zimbabwe 2013 allows for the recognition of customary law.[12] For most women in rural areas in Zimbabwe, their marriages are under customary law and remain unregistered.[13] This means that at the death of a spouse, they can seek justice through this system, however, this system has its own disadvantages that place women in a precarious position with regards to inheritance. For example, this system would require verification of the marriage from relatives and/or inlaws. In some cases, because inlaws do not have a good relationship with the widow or they do not want her to benefit from her deceased husband’s estate, they may refuse to verify this.[14] In this regard, the subjective nature of this system of law does not assure justice for women in these circumstances. The addition of Clause 40 is a positive step towards ensuring women who find themselves in an unregistered civil partnership may seek reprieve upon the death of the spouse under civil law. The courts can use the standards set in 40 (1) (a-d) to determine whether the civil partnership is recognizable. It should be noted that this too is a subjective process by the presiding magistrate or judge as there is no prescribed timeline or what a ‘genuine basis’ is. The law in this regard is subject to interpretation and thus does not fully protect women as there is no standard for determining the validity of a civil partnership that women can use to prove their status.
Best interests of the child
As one of the countries with the highest prevalence of child marriages, reported at 32%[15], the introduction of the need for consent in the solemnization of marriages presents a unique opportunity to cement equality in marriage by enforcing the basis of marriages to be consent by both parties equally. Article 16 (2) of CEDAW states that the betrothal or marriage of a child shall not be legally recognized, and states must take necessary steps to specify a legal age for marriage. This is a very important harmonization of Zimbabwe’s international obligation to ensure children are not coerced into marriage. This Marriage Bill goes further to provision in Clause 26, that a marriage officer shall not solemnize/register a marriage without proof of age of the parties involved. This goes a long way in ensuring children are protected as both parties to the marriage must be 18 years or above. The Marriage Bill also recognizes its misalignment with the Children’s Act of 2001 which defines a child as any person under the age of 16.[16] Clause 48 amends the Children’s Act to define a child as any person who is under the age of 18.[17] Clause 42 (1) (a) voids any marriage of a minor who is under the age of 18. This is also an affirmative move towards consolidating the best interests of the child.
Clause 3 (3) of 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. This imposition of criminal liability for aiding child marriage serves as a deterrent. The law thus recognizes the role parents and the community play in aggravating child marriage and this provision ensures sanctions are placed on perpetrators. Considering the prevalence of child marriage in the country, imposing penalties will deter parents from marrying off their children. This enables children to finish school and to live a full life without the injustice of being married off as a child. The state is taking action as required by CEDAW to impose legislation to ensure marriage of children is outlawed.
Registration of Marriages
Article 16 (2) of CEDAW obligates the state to ensure all marriages are registered in an official registry. The Bill also takes this stance on registration of marriages. The Bill provisions for both customary and civil marriages to be solemnized and registered with the prescribed authorities.[18] Registration of marriages ensures the protection of women on multiple levels, firstly it protects girls from being married underage because in order to register a marriage, the identification documents of the persons involved should be produced.[19] Secondly, the mandatory requirement to solemnize and/or register marriages ensures that there is always a record of marriage in the system that women can use upon the death of a spouse to make any claims on the estate. This would prevent women from having to rely on other standards or word of mouth confirmations by relatives to prove marriage. Therefore, this standard set by the Bill ensures women and children are protected if all marriages are registered under the law.
Inconsistencies and gaps of the Bill
Although the Bill presented unique opportunities for women and marriage in Zimbabwe, the Bill also has apparent gaps and inconsistencies that perpetuate inequality, violence, and discrimination against women. These inconsistencies need to be acknowledged and rectified before the Bill is re-tabled and/or signed into law. Some of the inconsistencies include inequality of marriages, failure to recognize same-sex marriage, and some inconsistencies in registration and recognition of marriage.
As the world moves towards an equal society that is fundamentally rooted in respect for diversity, this Bill leaves a lot to be desired when it comes to recognizing same-sex marriages. Zimbabwe is a relatively conservative country and this position is shown in this Bill. Firstly, the Bill interprets marriage to be, ‘ “marriage” means a marriage solemnised,registered or recognised as such in terms of this Act, being a union between persons of the opposite sex’.[20] This already disqualifies recognition of any form of union between two people of the same sex as marriage. In Article 1 of CEDAW, the instrument prohibits discrimination based on sex.[21] Not only is this discrimination based on sex, the bill also fails to recognise same-sex marriage which inhibits women’s recognition of their core rights to freedom of expression and participation in social and cultural life. According to Article 2 (b) of CEDAW, the state has a responsibility to ‘adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women’. This legislation goes against this responsibility because the state is actively encouraging discrimination against women based on their sexual orientation and preference. In order to align with CEDAW principles, this Bill should be amended to recognize same-sex relationships and marriage as this would be a step towards eliminating discrimination and violence against women.
Clause 5 (5) states that all marriages are equal-this is in reference to civil and customary marriages. However, just above this provision in 5 (4) the same Bill states that persons married under customary law ‘…may convert their marriage to civil marriage and the appropriate marriage officer shall, upon being satisfied that there is no impediment to the conversion, solemnize the marriage in accordance with the general law and the civil marriage shall supersede the previous customary law marriage in the marriage register’. This is a contradiction in the Bill itself because it puts civil marriage on top of the customary one as it would be the marriage that supersedes customary marriage if the couple chooses to convert their customary marriage. By giving this option, the Bill removes any intended equal footing of recognized marriages as it places the civil marriage above the customary one. This inconsistency may leave women vulnerable to discrimination as it leaves the validity of marriage open to different interpretations. Furthermore, the Bill fails to recognize polygynous marriages. These marriages are culturally and religiously promoted, many women find themselves in these types of marriage in Zimbabwe. This oversight by the Bill shows how far Zimbabwe’s marriage laws still have to go to ensure no woman is left behind.
In conclusion, this Marriages Bill presented unique opportunities for protecting women in Zimbabwe from discrimination and violence during and after marriage. However, as argued above, there are inconsistencies and gaps that would still perpetuate women’s vulnerability to violence and discrimination in marriage. These need to be addressed in order to ensure Zimbabwe’s new Marriage Act of 2019 is consistent with the standards set by CEDAW to protect women from discrimination. The opportunity to influence advancing women’s rights through the Bill should not be lost and advocacy is critical to ensure that these inconsistencies and gaps are rectified before the Bill is re-tabled before parliament again.
[1] Zimbabwe ascented to CEDAW on the 13th May 1990. [2] Article 2 of the Convention on the Elimination of Discrimination against Women (1979) [3] Chapter 1 Section 2 of the constitution of Zimbabwe of 2013 states that the Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct that is inconsistent with this law is invalid. [4] See also Article 15 (1) of CEDAW which grants women and men equal status before the law. [5] Ursula O’Hare Realizing Human Rights for Women Human Rights Quarterly 21, no. 2 (1999): 364-402. [6] Gayle Binion ‘Human Rights: A Feminist Perspective’ (1995) Human Rights Quarterly Vol. 17 pp. 509-526 at 512. [7] Norman Chivasa Kuripa Ngozi as a conflict resolution model in Shona communities of Zimbabwe: a conceptual analysis (2018) Taylor and Francis Online Vol [8] Clause 40 (1) (a-d) of the Draft Marriage Bill of 2019. [9] The Herald Zimbabwe ‘84pc of Zim marriages unregistered’ available at https://www.herald.co.zw/84pc-of-zim-marriages-unregistered/ accessed on 1 August 2019. [10] Nicola Ansell ‘Because it is our Culture! Renegotiating the meaning of lobola in Southern African Secondary Schools’ (2001) Journal of Southern African Studies Volume 27 (4) at 697. [11] Section 40 (1) (d) of the Draft Marriage Bill of 2019 [12] Constitution of Zimbabwe of 2013, cap. 18, part 3, para. 332 [13] Food and Agriculture Organization of the United Nations ‘Gender and Land Rights Database: Zimbabwe, Women’s property and use rights in personal laws’ accessed at http://www.fao.org/gender-landrights-database/country-profiles/countrieslist/national-legal-framework/womens-property-and-use-rights-in-personal-laws/en/?country_iso3=ZWE [14] Human Rights Watch ‘You Will Get Nothing: Violations of Property and Inheritance Rights of Widows in Zimbabwe’ (2017) at 20. Available at https://www.hrw.org/sites/default/files/report_pdf/zimbabwe0117_web.pdf accessed on 10 August 2019 [15] Zimbabwe Demographic and Health Survey 2015 conducted by the Zimbabwe National Statistics Agency Harare, Zimbabwe available at https://www.dhsprogram.com/pubs/pdf/FR322/FR322.pdf accessed on 23rd July 2019. [16] Children’s Act [Chapter 5:06]. [Amended by Section 2 of Act 23 of 2001, with effect from 18th January 2002.] [17] Section 48 (a) and (b) of the Children’s Act. [18] See Clauses 15, Section 5 on Registration of marriages of the Marriage Bill of 2019 [19] Clause 28 states that, ‘A marriage officer shall not solemnize a marriage and a Registrar shall not register a marriage unless he or she has satisfied himself or herself as to the age and identity of the parties and for that purpose, each party shall furnish to the marriage officer or the Registrar, as the case may be, an appropriate identity document as proof of his or her age and identity’. [20] Clause 2 of the Mariiage Bill of 2019. [21] ‘…the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
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