Understanding current legal position on lobola

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DANAI DAISY CHIRAWU

THE recent announcement of a new law on bride price has shifted the flow of conversation in many Zimbabwean homes.

This has opened up dialogue amongst members of the society on different perspectives about the customs and culture surrounding payment of a bride price during traditional marriages.

An unfortunate consequence of this publication is the amount of misleading and wrongful information being circulated in communities, both within the country and in the diaspora.

This moment has opened an opportunity to be more actively involved in the marriage law reform process currently underway in Zimbabwe as it is the background against which many assumptions are being made.

In 1982, the Legal Age of Majority Act was passed into law, which gave women majority status, meaning that once a woman attained the age of 18, she would be considered an adult capable of independence to exercise her rights, including rights to marriage, acquiring property, among others.

Prior to this, all Zimbabwean women were considered both legally and culturally, as perpetual minors who needed the assistance of a guardian, most often their father or husband to access any rights and to make decisions.

Two years later, in 1984, the Supreme Court interpreted this law in the landmark case of Katekwe vs. Muchabaiwa, where the court explained that women were completely emancipated which means they no longer legally require the assistance of a guardian as citizens and in the exercise of their human rights.

In practice, this meant that fathers lost the right to sue for seduction damages once their daughter had reached the age of 18 as she had the power to do so herself. This additionally stripped the father’s rights to demand payment of the bride price as well as approval of their daughter’s marriage.

This position, which may come as a shock to many is yet to cascade into the functions of society where women are still expected to have the approval of their guardian before they can enter into any form of marriage.

These same legal changes made in 1982 have yet to be included in the laws surrounding customary marriage in Zimbabwe.

In 2019, Parliament announced that the country would be embarking on a journey to change the marriage laws framework so that it fully aligns with the Constitution and embodies the non-discrimination clauses to promote equality between men and women.

Before any law can be passed; it begins as a Bill, which is a draft law introduced to Parliament by different ministries particularly the ministry of Justice, Legal and Parliamentary Affairs.

This draft law has to pass through a number of stages within Parliament, public consultations from Parliamentary Portfolio Committees have to be conducted to generate citizens’ opinions on the proposed law then after Parliament has made amendments it will be sent to the president, who has the final decision on whether the proposed Bill can become a law.

In Zimbabwe, the marriage reform process is not yet completed and the Marriages Bill is still being amended and debated in Parliament.

The aim of the Marriages Bill, in addition to promoting gender equality, is to harmonise all marriage laws in Zimbabwe, which are currently guided by different laws depending on whether the marriage is in terms of customary or general law.

According to the Marriage Act, which is the present law relating to monogamous marriages, there is no need to pay a bride price before consenting parties can register their marriage.

All the couple needs is a marriage licence which they pay for at their local Magistrates’ Court, the publishing of bans, witnesses and a wedding date.

Once those elements are established the couple can marry each other whether or not a bride price was paid according to traditional customs and without the need to consult with the woman’s guardian.

Unfortunately, this is not the same position is terms of Zimbabwe’s customary law on marriages. While changes to women’s autonomy can be officially traced back to 1982, there is no reflection of the same in terms of customary marriages which are found in the Customary Marriages Act.

This law, which was made in 1963, firstly states that only customary marriages that are registered are recognised as marriages in Zimbabwe.

This means that in addition to payment of a bride price, couples have to register their traditional marriages for such unions to be recognised.

Customary marriages, unlike civil marriages, are polygamous in nature which means that a man can have more than one wife.

If a couple only has a traditional wedding, without registration with the Marriage Registry, they are legally known as being in an unregistered customary law union which is not a marriage in Zimbabwe and is only recognised as one to deal with disputes involving status, guardianship, custody and inheritance.

It also means that all the legal protections available to couples in registered marriages are not available to people in unregistered customary law unions, especially women who stand to lose the most if the couple separates. Presently, if a person wants to register a customary marriage these are the legal requirements:

The marriage has to be registered in the district where the woman resides;

The guardian or deputy appointed by the guardian should be present to consent to the marriage;

The guardian should have agreed to the form and amount of bride price;

The bride price must have been paid (‘rusambo’ not ‘tsvakirai kuno’ — which does not always need to be paid in full at the time of registration);

The husband must pay the fee to register the marriage;

It also provides for the appeal procedure to register a customary marriage in the event that the guardian has refused to consent to the marriage and this process involves appealing to a magistrate who will make an inquiry in consultation with the guardian before reaching a decision.

These unnecessary barriers are in direct conflict with the Constitution along with the 1982 Legal Age of Majority Act, as it upholds the harmful practice of adult women requiring the consent of a guardian in the exercise of their human rights.

The Marriages Bill was, therefore, created to confront this systematic discrimination targeted at controlling a woman’s enjoyment of rights.

Even with the procedure for appeal, many people will continue to face societal discrimination based on their guardian’s disapproval of the union, let alone having to consider getting a lawyer to appeal against their guardian’s refusal to consent to registration.

The Marriages Bill has attempted to cure this injustice by stating that all marriages shall be equal before the law and shall have equal rights and protections, which was previously reserved only for registered marriages.

According to this Bill, all marriages will need to be registered within three months of the traditional marriage and failure to register within this time will not invalidate the marriage.

Instead of prioritising registration of marriages on guardians, it focuses on the couple who intend to marry, firstly by verification of age so as to avoid child marriages and secondly on whether both parties are fully consenting to the marriage.

The recently made amendment to the Marriages Bill, which was published on the 12th of May 2020 which relates to a couple’s property rights at the time of dissolution/divorce says that these rights will be considered even if the bride price has been made in full.

The Bill also removes the requirement for payment of a bride price when a couple registers their marriage.
This enables consenting adults to make their decisions of whom they want to marry and type of marriage they want to contract.

Lobola has not been outlawed. Since 1984 women have had the right to choose when to marry and which type of marriage to contract.

The need for payment of a bride price before a couple can register should no longer be a requirement for people to fully enjoy the same rights and benefits of the law.

Chirawu is a Harare-based lawyer

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