ZAMBIA: Landmark judgment for women in customary marriages
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The subordination of women is a feature of customary law |
LUSAKA, 21 Dec 2005 (IRIN) - A precedent setting ruling earlier
this month by a local court in Zambia has given women married under customary
law the right to a share of marital property in the event of a divorce or death
of the husband.
Previously, a woman married under customary law would not
be entitled to a share of property, irrespective of whether she had contributed
to its acquisition.
Zambia has a dual legal system, and although
statutory law takes precedence over customary law, the fact that many people
live in rural and traditional settings has given customary law primacy in large
parts of the country.
The subordination of women and the indulgence of
men has been a feature of marriage under customary law, which stipulates that
marriage is a union of a man who may or may not already be married and a woman
who must be unmarried at the time of entering into matrimony.
In the
event of a divorce, most tribes do not recognise a woman's right to a share of
marital property - she gets whatever her ex-husband or his family decides she
can have.
Local courts have to be guided by the traditions and customs of
Zambia's seven main tribes, but because the practices and procedures remain
unwritten and subjective, magistrates often use their own judgment when deciding
such cases.
The situation was exacerbated in towns, where magistrates
have had to deal with several customs or tribes simultaneously.
"The
magistrates find it difficult to make decisions because of the societal
influences, which are mixed with some tribal customs. It is only in the villages
and rural areas where one tribe dominates that local courts are able to
adjudicate properly using local customs," observed Matrine Chuulu, coordinator
of the NGO, Women and Law in Southern Africa (WILSA).
In the divorce case
between Martha Kembo Mwanamwalye and Collins Mwanamwalye on 9 December,
Magistrate Mwamba Chanda ruled that "notwithstanding that the parties in this
matter were married under customary law, justice demands that when a marriage
has broken down, the parties should be put in equal position to avoid any one of
them falling into destitution".
The magistrate's ruling was welcomed by
Chuulu. "This is an interesting and progressive judgment: interesting because
this ruling came from a local court, the custodian of tradition and lore, and it
bases its judgment on tribal customs; progressive because for a long time women
have suffered destitution when there is a divorce," she commented.
"It is
difficult for women to get their share of matrimonial property even when they
are married under the statutes, but for customary unions it is worse because
custom does not give a woman any right to demand anything - in some customs even
the children are taken away," she added.
In customary or traditional
marriages families agree on a bride price (lobola), and a verbal agreement
witnessed by relatives from both families is made. The couple do not sign any
legal document to prove that they are married.
It is precisely for this
reason that men prefer customary unions, said lawyer Manfred Chibanda. "All my
friends and even my family and mother are married by tradition, because [the
mindset is] 'I do not want my wife to get anything of mine, if she leaves my
house then she goes the way she came' - it's a way of protecting ourselves," he
explained.
On the other hand, lawyer Margret Chinyama said, the recent
judgment "fixes" men with views like Chibanda.
"There is now no excuse
for men not to marry under the statutes because, whether they like or not, their
wives can get a share of marital property. It is poetic justice, actually, that
this should be caused by a judgment from the local court, which is the custodian
of such discriminatory laws," she added.
Marian Chembe, who married under
traditional rites, said she was using the Mwanamwalye case to make her claim for
a share of marital property. She divorced her husband after 30 years of marriage
but was awarded nothing in the settlement.
"I will use this ruling to
stake my claim. I think I have a good chance of getting at least one house from
my husband - we had three which we had rented out," she said.
The Law
Development Commission in Zambia is in the process of compiling a handbook on
customs for local courts to take note of when determining cases of a traditional
nature.
Referring to the Mwanamwalye matter, Chuulu concluded, "But in
the meantime, we welcome decisions like this, as it shows that society is
changing for the better."
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