OPINIONBy Godwills Masimirembwa
In my article titled “Traditional leaders should be designated marriage officers” published in The Herald of March 27, 2017, I submitted that the provisions of the law make it difficult for indigenous marriages to be solemnised.
Concurrent with making it difficult to register indigenous marriages, the law does not recognise unregistered indigenous marriages.
The judiciary, under Chief Justice Enock Dumbutshena (as he then was), almost sounded the death knell for both registered and unregistered indigenous marriages.
In the case of Katekwe v Muchabaiwa 1984(2) ZLR 112 at page 127D, he said the following:
“As I see it, what the Legal Age of Majority Act has done with regard to roora is this: the major daughter will say to her father, ‘Father I want to get married. You have no right to stop me. I do not require your consent because I have majority status. But if you want roora, you are free to negotiate with my prospective husband. If he agrees to pay roora that is a contract, an agreement between you and my prospective husband. If he refuses to pay roora I shall go ahead with my marriage.'”
Both registered and unregistered indigenous marriages require the payment of roora/lobola and the consent of the father of the prospective wife.
With respect, Dumbutshena’s words represent a scene from hell.
It cannot represent a normal conversation between father and daughter simply because the daughter has attained 18 years of age or above, and now wants to get married.
In any event, in a normal situation, a daughter, out of respect, is not the one who directly tells her father that she wants to get married. Her aunties or other relatives do that on her behalf.
It is my contention that Dumbutshena CJ (as he then was), sought to interfere with indigenous Zimbabwean marriage rites and disciplines.
He sought to abolish the payment of roora/lobola as a requirement for a valid “customary” marriage.
In short, he sought to abolish “customary” marriages, leaving only general law marriages. Fortunately, his words, and his reasoning in respect of roora/lobola were only orbiter.
In other words, what he said was not in respect of the issue before him, and consequently was only said in passing and was not meant to bind any court. This much is clear from what the judge said at page 127 A-C, which is worth quoting in full. The judge said:
“In this appeal, we are not concerned with roora, but counsel have made submissions on it. I intend in passing to suggest guidelines which may be useful in future when the question of lobola arises before a daughter with majority status decides to contract a marriage without the consent of her guardian or payment of lobola — that is the effect of subsection 3 of Act 15 of 1982.
“Mr Robison’s contention was, and I agree with him, that ‘if a daughter causes her prospective husband to settle the matter of lobola with her father before she marries her prospective husband, the father’s right to lobola is based on contract freely entered into between him and his prospective son-in-law . . . the father’s entitlement to lobola now hinges upon his major daughter’s discretion . . .'”
Fortunately, the Executive and the Legislature did not take Dumbutshena CJ’s remarks on board as the Customary Marriages Act, which provides for the payment of lobola/roora and consent of the father of the woman, was not repealed and remains in force.
Then in 1999, the full bench of the Supreme Court in the case of Magaya v Magaya 1999 (1) ZLR 100 ruled that Katekwe v Muchabaiwa was wrongly decided as the three judges who decided the case based their reasons for judgment on the concepts of minority and majority status of women, whereas no such concepts were known under “customary” law, but were Roman-Dutch-law concepts.
The rites and disciplines obtaining in African marriages arose from the patrilineal nature of African societies, with the family being at the heart of the African socio-political order.
While accepting that there is need to advance gender equality, the Supreme Court noted that an African woman who subscribes to Western values has a choice to get married under the Marriage Act Chapter 5:11, where the payment of roora/lobola and the consent of the father are not a requirement.
An African woman who chooses to get married under indigenous African law is equally protected by the Constitution, which prohibits discrimination on the grounds of custom and culture.
In fact, the Constitution enjoins traditional leaders to promote sound family values in their communities.
It cannot be the sort of family values Justice Dumbutshena was advocating. Justice Dumbutshena’s conception of a new social order in indigenous marriages was, and remains at complete variance with the Constitutional order then, and now.
But even as Justices Dumbutshena, Gubbay and Waddington sought to “liberate” African women, they turned a blind eye to foreign rites and disciplines, which, though patrilineal in nature, our law allows to determine whether a marriage is solemnised or not.
Section 27 of the Marriage Act Chapter 5:11 provides as follows:
“Certain marriage officers may refuse to solemnise certain marriages. Nothing contained in this Act shall be construed as compelling a marriage officer who is:
(a) A minister of religion, to solemnise a marriage which would not conform to the rites or discipline of his religious denomination or organisation.”
Section 4(1) of the Act permits the Minister to designate ministers of Christian, Jewish, Islamic or Hindu or any other religion, as marriage officers, with authority to solemnise marriages in accordance with their respective religious rites and disciplines.
And, as is provided under Section 27(a), a minister of religion may refuse to solemnise a marriage if the intending spouses, or one of them refuses to comply with the rites or discipline of that religion.
For clarity, rites mean a ceremony with a set of fixed words and actions, whilst disciplines refers to a system of rules.
In authorising ministers of religion to be marriage officers and giving them power to refuse to solemnise a marriage if it does not accord with that particular religion’s rite or discipline, the legislature realised the minimal role it should play in matters of personal law.
It respects the customs and traditions of various societies and communities, and recognises the futility of going overboard trying to “civilise” different societies.
The Christian religion has its fair share of patriarchal practices.
The giving away of the bride by the father is a tradition carried on from the times when the payment of a marriage consideration (roora/lobola) was still a requirement within the Christian religion as practiced by Caucasians.
Traditional Christian churches still require that if a woman is being married, she must be given to her husband by her father. A minister of religion is entitled to refuse to solemnise a marriage if the bride insists that because she is 18 years or over, she is a major, and therefore does not want to be given away by her father.
Caucasian Christians believe that the woman must assume her husband’s surname upon marriage. Will the woman refuse this Christian rite or discipline on the grounds that she is a major, and still insist that the minister of religion solemnise her marriage?
She can try, but minister of religion will refuse, and legally so.
However, she can exercise her constitutional right to found a family by having her marriage solemnised by a magistrate who is not bound by religious rites or disciplines.
In Hindu, Islamic, Jewish and other religions, the consent of the father to the marriage is required. Further, in some religions, the bridegroom pays dowry to the bride. In all religions, marriage is a family and religious affair.
This is why the State keeps its distance, unless the rites or disciplines are outrageous and militate against the conscience of the generality of humanity.
However, as already stated, the State provides a platform for those couples who do not subscribe to religious rites or disciplines to get married before a magistrate in terms of the Marriage Act.
For indigenous marriages, it is a family affair which includes the father, the mother, brothers, sisters, uncles and the aunties of the bride. They all participate in the joy of marriage.
The ceremony is meant to build relationships.
Take the example of Morgan Tsvangirai’s marriage to Locadia Karimatsenga as reported in the High Court case of Tsvangirai and Anor v Mutevedzi NO and Anor, 2012 (2) Zimbabwe Law Reports 24 (H) at page 227 where the marriage ceremony is recorded as follows:
“21 November 2011 Kuroorwa kwaLocadia Karimatsenga naMorgan Tsvangirai.” (The marriage of Locadia Karimatsenga by Morgan Tsvangirai.)
1. Ndiro ($100) Plate
2. Mbonano ($150) Familiarisation
3. Musikana kunhonga ($1 500)Girl’s share
4. Atete ($11 000) Aunt’s share
5. MuyaMusha ($1 500) Damages
6. Gusvi ($200) Clapping
7. Kupinda mumusha ($300) Home entry
8. Makandinzwaani ($150) Who told you
9. Kusunungura homwe ($150)To open the purse
10.Mbariro ($400) Brandering
11.Mushonga ($400) Medicine
12.Mapfukudzadumbu ($2 500)Trampling on the stomach
13.Rambi ($400) Light
14.Tsigiraguyo ($400) Balance grinding the stone
15.Bikiro ($400) Cooking place
16.Chituru ($150) Stool
17.Matekenyandebvu ($200) Caressing the beard
18.Rusambo ($9 000) paid $600 Dowry
19.Mombe dzinotsika 9,3 dzinotsikadzemari $250 each (cattle 9, 3 live for cash)
21.Muchato Wedding ($150)
The aunt of the bride (Atete) got $11 000. She shares this amount with the other aunties. The mother of the bride got $2 500 for mapfukudzadumbu. She also got mombe yehumai, $400 for each of the following: bikiro, rambi, mbariro and mushonga.
The bride herself got $1 500. It was not just the father involved in this ceremony.
Simply put, the indigenous marriage ceremony is a joyous family affair, far beyond the simplistic and misleading notion that it is the father of the bride who is the sole participant and beneficiary.
As stated in Magaya v Magaya by Justice Muchechetere, the issue of lobola/roora, seduction damages, and inheritance under indigenous Zimbabwean law has nothing to do with the minority or majority status of women.
It is based on the patrilineal nature of the society. But the patrilineal nature of society has echoes in every religion and in every society. Granted, it is disappearing gradually.
But as is happening in other societies, indigenous marriages in Zimbabwe should be left to be conducted according to the rites or disciplines of indigenous communities.
Why should our laws protect Christian, Jewish, Hindu, Islamic and other religious rites or disciplines in marriages, but discriminate against indigenous Zimbabwean rites or disciplines?
As new marriage laws are being crafted, and will eventually be interpreted by the judiciary, it is worth reminding the three pillars of the State (Legislature, Executive and the Judiciary) that charity begins at home.
The very least they should do is to protect indigenous customs and traditions in as much as they are protecting foreign customs and traditions in our marriage laws.
Mr Masimirembwa is a lecturer at the Zimbabwe Institute of Legal Studies.