There has been much controversy about the unofficial Marriages Bill which is being circulated via different social media platforms and is yet to be gazetted. In last week’s article, we offered some perspective on the current marriage regime with a particular focus on the imbalances that exist within the unregistered customary law union framework.
To continue on this trajectory we shall explore the regional and international instruments that should guide this process of harmonising Zimbabwe’s marriage laws. These instruments are regional and international laws formulated to provide a standard upon which each signatory country must aspire to.
They are there to promote the full realisation of human rights based on research and the input and resolution of many different countries. Zimbabwe, as a signatory to some of these laws will benefit immensely from upholding the human rights standards provided therein.
The term harmonisation in this context means that the laws should be united together and couched under one Act of Parliament as opposed to having different Acts being the Marriage Act (Chapter 5:11) and the Customary Marriages Act (Chapter 5:07).
It also means that the differences between these laws, especially in Zimbabwe where one is monogamous and the other is potentially polygamous are recognised within the same law and given an equal opportunity to exist in harmony with each other.
These parallel laws as they stand provide for discrimination as marriages do not have equal status before the law with the general law marriages being given a superior status while the unregistered customary law unions are given limited recognition.
The aim of harmonising is to promote equality and non-discrimination before the law so that inequalities prevalent in the status of marriage are resolved. It also stands to mainstream African customary law and the protection of property and inheritance rights of spouses.
Harmonisation will address the issue of age of consent to marriage so that it will echo the eighteen years bench mark which has been stipulated by the Constitution and it will also prioritise free and full consent of both parties in the solemnisation of all marriages and unions.
The first international instrument is the Universal Declaration of Human Rights (UDHR) whose purpose is to establish standards for human rights as they apply to all persons because they are full human beings.
The term ‘‘all persons’’ therefore includes women and children who have been previously discriminated against by the current marriage and other laws.
The Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) which speaks directly against gender based violence includes provisions that all member states must adhere to in promoting and protecting women’s rights.
It is stated therein that all member states must put eighteen as the minimum age of consent to marriage; non discrimination based on race, nationality, religion among others; the right to choose a spouse using free and full consent; equality of rights during the subsistence of the marriage and at dissolution and property distribution; the illegality of child marriages; pledging and betrothal and the need for registration of all marriages.
It must be emphasised that the issue of registration of all marriages should be prioritised so that all information pertaining to a person’s marital status is collated. It is a modern way to ensure accountability of all person and will provide simple and easily accessible proof should any marital issues arise.
Finally there is the African Charter on Human and People’s Rights (ACHPR) which brings these different provisions into context for Africans. Interestingly this instrument recognises polygamy although stating that monogamy is the preferred type of marriage.
It is clear, that if there is to be proper and adequate harmonisation of marriage laws, the law maker must take in cognisance the importance of regional and international instruments. The Constitution of Zimbabwe makes allusions to the same so that justice may be administered more effectively and since Zimbabwe has ratified these laws, it matters that they form part of our own law.