Zimbabwe-The last hurdle in the passing of the new Marriages Act is being sorted out between the Government and traditional leaders in a way that still ensures an unmarried adult man and adult woman can enter a legal and valid marriage without requiring anyone’s consent or being subject to a veto.
There had been differences between the Government and traditional leaders on a clause related to lobola payment in customary unions and the powers of chiefs as marriage officers.
Debate on the Bill was adjourned in Senate eight months ago after differences emerged on Clause 16, which provides that payment or non-payment of a bride price could not be regarded as a barrier in solemnising marriage between two consenting adults if they satisfy other requirements of the law.
But traditional leaders, led by Chiefs Council president Fortune Charumbira, argued that payment of bride price was a hallmark of marriage in customary unions.
Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi has now come up with new amendments that allowed marriage officers, who include traditional leaders solemnising customary unions in their own areas and to ask parties to a marriage whether or not lobola has been paid.
The amendments also provide that a marriage officer in a customary union cannot solemnise unions where couples had stayed together for less than five years.
Under unregistered customary law unions, the proposed amendments make it clear that a marriage officer to a proposed customary union can include questions about lobola among those required for establishing the identity and ages of the couple.
In these solemnisations of unregistered customary unions, the couples have to present an affidavit jointly sworn to by them to the effect that they have been living together as husband and wife for at least five years or more, and that they are not related to each other within any prohibited degree of kinship that is recognised by their community as an impediment to marriage between them;
There also have to be affidavits by two witnesses (of whom one witness must be a relative of the bridegroom and the other a relative of the bride) corroborating the fact that the proposed marriage partners have been living together as man and wife for five years or more and that they are not related to each other within the prescribed degree of kinship.
The period of five years referred to in this section shall not include any period during which either of the parties was below the age of eighteen years at the time that they purportedly began to live together as man and wife.”
In an interview, Minister Ziyambi said the Government had tried to attend concerns raised by traditional leaders in a manner that did not violate constitutional provision giving rights to a person entering into a union.
Chief Charumbira said as traditional leaders they concurred with some of the amendments particularly allowing them to inquire whether payment of lobola was done.
He said they also concurred that there must be a period within which parties in a customary union should have stayed together before their union is solemnised but felt that five years was too short.
“From the reading of the proposed amendments, there seem to have been progress in addressing our issues. We will however push during debate that we have at least 10 years and not five years because to allow parties to mature before marriage can be solemnised,” said Chief Charumbira.
He however, said the amendments did not address another concern in the Bill where traditional leaders have to apply to the responsible minister to
become a marriage officer.
Traditional leaders had argued that giving the Minister the power to decide whether a chief is fit to be a marriage officer is not only demeaning to the institution of traditional leaders but is also unconstitutional given that chiefs are equal and once a function is conferred by an Act of Parliament, it can only be conferred on every chief without any discrimination whatsoever.
In his argument, Minister Ziyambi said the law does not seek to abolish lobola since culturally it solidified bonds between families but said bride price could not be used as a precondition to solemnise marriage.
He said it is the woman who should assert her right to have bride price paid and not guardians or third parties if she is 18 years old and above.
Minister Ziyambi said there was a settled case (Katekwe v Mubaiwa 1984) where the Supreme Court ruled that a father had no legal standing to sue for damages for the seduction of his daughter, who is a major, since that right had been passed to her.