Zimbabwe’s New Marriage Bill : A Cutthroat Approach
On the 9th of May 2019, the President’s cabinet approved the Marriages Amendment Bill. The Bill will repeal and replace the Customary Marriages Act 5:07 and The Marriage Act 5:11, effectively governing all marriages with one piece of legislation. A lot of murmurs have suggested that the Bill is about relationships before marriage and the empowerment of extra marital affairs, and the misinformation has taken away from the real issue. The most significant purpose of the Marriage Bill is to align with section 26 of the Constitution and (as it reads):
• with respect to the requirement of free and full consent to marriage by the intending spouses; the ban on the pledging of children in marriage; the equality of rights and obligations of spouses during marriage and at dissolution
•the paramountcy of the best interests of the child (section 19 (1) and 81 (2) of the Constitution), a child being a person under the age of 18 years (section 81 (1) of the Constitution);
•the right of any person who has attained the age of eighteen to found a family, not to be compelled to enter into marriage against their will
the reality of child brides
The Marriage Bill sets the minimum age of marriage as 18 for both sexes in civil and customary marriage. Currently Section 21 & 22 of the Marriages Act (Chapter 5:11) allow the marriage of girls under sixteen with the special consent of their legal guardians. Deductive reasoning dictates these provisions were aimed at keeping a respectful distance from certain indigenous cultures and religions. What that looks like now, 9 years after the Act’s last amendments is that children’s rights were sidelined to cater for the needs of the counterparts of our then law makers. And the results of such have been aggravated perpetration of sexual violence on young girls. Between 2010-2011 The Zimbabwe Demographic Health Survey recorded that of the women in the 20 – 49 years’ category, at least one in every three (33%), first engaged in a form of marriage union before their 18th birthday. In 2018, the prevalence of child marriage was found to be at its peak with
Mashonaland Central ranking highest at 50% (of children) being married off followed by Mashonaland West at 42%, Masvingo 39%, Mashonaland East 36%, Midlands 31%, Manicaland 30%, Matabeleland North 27%, Harare 19%, Matabeleland South 18%, Bulawayo 10%. The numbers are truly alarming. Young girls found to be engaging in pre-marital sex are sent off to marry, those subjected to virginity testing and found ‘not innocent’ are sent to the same and economic desperation has led families to sell off their children for bride price. The reality on the ground is that multiple scandals continue to erupt around well connected and protected ‘men of god’ who lead churches, namely the indigenous apostolic church. They marry girls three or four times their juniors (12 and 14 year olds) in the name of ‘passing wisdom’. The Marriage Bill has not only been long overdue but is also still far too lenient (prescribing a prison sentence of 5 years to anyone in contravention of the provision) on mentally able men, leaders and self-proclaimed men of God who girls who have not even begun to understand their own bodies. The discussion around this bill ought to focus on the paramount rights of young girls in Zimbabwe.
Prioritizing of the issue aside, the law must operate to protect all. Section 40 has been the most talked about provision of the Bill. It reads:
(1) A relationship between a man and a woman who—
(a) are both over the age of eighteen years; and
(b) have lived together without legally being married to each other; and
(c) are not within the degrees of affinity or consanguinity as provided in section seven; and
(d) having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis;
shall be regarded as being in a civil partnership for the purposes of determining the rights and obligations of the parties on dissolution of the relationship and, for this purpose, sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] shall mutatis mutandis apply on the dissolution of any such relationship.
The general response to this section has been that it poses a threat to civil marriages (commonly known as Chapter 5:11 Marriages, where a man and a woman are married in court) and encourages men to establish extra circular homes. One of the other bold objections have been that it goes against the Christian values of the nation. Away from academic arguments one might wince at the irony of such a ‘Christian nation’ needing to implement further legislation to tackle child rape. Firstly, it must be noted that under the current legislation Chapter 5:11 marriages have long been protected from the emergence of infidelity. Only customary marriages are taken to be potentially polygamous and one can take a second wife. That is prohibited under the Marriage Act and faces a possible conviction on Bigamy which carries a sentence of a year. Put simply, infidelity has never been, and is still not supported by the law. The law has never needed to give citizens permission to step out on their unions, neither does it have a say in the personal dynamics and intricacies between two people in their personal relationship. But protection has been extended to unsuspecting victims subjected to years of false commitment and emotional labor by men who have long been married to other women. Not only that it has, been extended to people whose aspirations simply do not involve marriage. The current Marriage Act is a perfect example of one less protective measure being provided for the women that refuse to fit in a box of what the orthodox Zimbabwean woman ought to desire. And contrary to popular belief the interpretation of this provision, in countries these laws have operated successfully for decades now, is relatively strict. The section sets out requirements that ought to be proved before a relationship can constitute a civil partnership:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
South African case law for example has established not only does there need to be a fair contribution to the household in question, but both partners ought to be fully committed for an indefinite period of time through an express or tacit contract. It is very unlikely that the act of abandoning one’s marital home for a short time would activate the protection of this legislation. Realistically speaking (from the perspective of married women) it might turn out to be extremely unpleasant distributing property among people who might not have known of each other’s existence but if the law does not make the personal political then there will be more areas of life it cannot cater to compared to those it can. The Act also extensively covers incest laws in Zimbabwe, the discretion of marriage officers to refuse to marry couples where they feel their values have been tested and lastly, the prohibition of same sex partnerships. It is unfortunate the lobbying of activists has only led to further backlash from cabinet, a discussion that is ripe for another day.
Jeke v Zembe (HH 237-18, HC 11663/17) https://zimlii.org/node/8949