• Reply to: Law vs Culture: Judgment on Age of Marriage in Zimbabwe

    By Kuda Chitsike

    Last month, Zimbabwe ramped up legal measures to end child marriage, a hopeful sign for a dire problem.

    Child marriage is widely recognized as a violation of children's rights, and it is generally described as the marrying of (primarily) girls under the age of 18. According to UNICEF, in Southern Africa 33 percent of women between the ages of 20 and 24 were married in childhood. It is direct discrimination of the girl child, who, as a result, is often deprived of her basic rights to health, education, development, and equality.  It also exposes girls to intimate partner violence and isolation from economic activities which have long lasting psychological consequences. Tradition, religion, patriarchy and poverty continue to fuel the practice of child marriage, despite its strong association with adverse consequences for girls.

    For more than a decade there has been a sustained and dedicated effort by policymakers, government ministries, U.N. bodies, international and local non-governmental organisations, community-based organisations and individual activists to end child marriage in Zimbabwe. All these efforts culminated in a case being brought before Zimbabwe’s Constitutional Court in January 2015, with the judgement coming a year later that finally outlawed marriage before 18 for both girls and boys.

    The case was brought by Loveness Mudzure and Ruvimbo Tsopodzi, (two former child brides), who, through their lawyer, Tendai Biti, took the courageous step of challenging the Marriages Act, which had allowed girls to marry before the age of 18. This case was brought with the support of non-governmental organisations, Roots, Veritas and Zimbabwe Lawyers for Human Rights (ZLHR). 

    The judgment is very welcome as the Marriages Act set the legal age for marriage at 16 for girls and 18 for boys, which contradicts the Constitution that promotes gender equality. Zimbabwe followed in the footsteps of other Southern African countries that have set 18, and, in some instances 21, as the legal age of marriage. Most recently Malawi did this, but many of these countries have exceptions where girls are allowed to marry as early as 15, if they have parental consent.  As we celebrate this judgment, there is a need to look at the issues of child marriage and consent to sex holistically and educate society because the issue is interpreted in a confusing manner in our conservative and religious society.

    The Criminal Codification and Reform Act states that girls under 12 cannot consent to sex and sexual relations at that age are always regarded as rape.  This changes however, for girls who are above 12, but under 14, at which point the perpetrator, shall still be charged with rape. However, the law further states that, if the male can prove that the girl was capable of giving consent, and that she gave her consent, then the perpetrator cannot be charged with rape but with “sexual intercourse with a young person.”  The law goes on to states that if a girl above 14 but less than 16 has sex with her consent, it is not rape but “sexual intercourse with a young person.” Girls over 16 can consent to sex but cannot marry until they are 18 according to the judgment.

    The law is effectively saying it is permissible for girls to have sex at 16, and, if she is in love and/or becomes pregnant, and wants to get married, she cannot.  This gets more confusing in reality.  Culturally in Zimbabwe, having sex and becoming pregnant is an acceptable path towards marriage, but having unmarried sex and is highly disapproved of. The judgment now creates a clash between the law and age-old culture, but also removes discretion. Are we denying those over 16 who can consent to sex but are under 18, have parental consent, and want to get married, the right to do so?   This lack of discretion is not the case in other Southern African countries, and the judgment seems a case of overkill for the problem of child marriage.

    Although poverty is primarily blamed for driving the practice, there are other factors driving child marriage in Zimbabwe. These range from religious practices, lack of discipline at home, abuse, and family disruptions to over sexualization of the girl child. However, the main driver of child marriage is deeply rooted in the dignity of the family. In order to protect the family honor, as long as the girl is married the circumstances that preceded or led to the marriage are forgotten.  According to research in one district in Zimbabwe, one woman stated that her standing in society is much better as a mother to a married child, whether over or under 18, rather than a single mother, regardless of the circumstances. The other women agreed, they talked about their dignity, (emphasis intended).

    Another said ‘if she is sexually active at 13 how do I stop her from having sex and getting pregnant repeatedly? It is better for her to get pregnant when she has a husband even though she is young. I do not want the responsibility of looking after her and her child while the father is free to do as he wishes. As she has started doing grown up things, she must take responsibility for her actions and stay with the man who made her pregnant.’

    The views of these women are not uncommon, and highlight a problem with the law as it is now to be applied. Whilst it is commendable that there is a legal power to prevent child marriage, the law must also take cognizance of reality and the fact that there are exceptions. The judgment is part of an effort to stop families from marrying off their daughters at an inappropriate age, but should not also penalize the girl child unnecessarily.

    Clearly there remains much to do, and little to do with the law. There is need to look at the legal system as a whole and propose a set of holistic legal and policy reforms that review the landscape of laws impacting on women and children. A broader range of policy alternatives and more sophisticated understanding of multiple strands of law and innovative legal strategies can converge to prevent child marriages.   

    This first appeared in the HuffPost Impact as a blog.

    RAU welcomes the opportunity for their research and articles to be utilised by the public with the proviso that any information that is used, quoted or referenced is credited to the Research and Advocacy Unit, Zimbabwe. RAU would also appreciate being informed of where and how the information has been used. Please email us on info@rau.co.zw

     

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  • Reply to: Zimbabwe- Political Violence and Elections

    In the context of the momentous changes to the Zimbabwean polity, the predilection for violent political problem solving is examined. By reference to public data on political violence for the period 1998 to 2018, Zimbabwe is compared with four of its neighbours in SADC that share a common history of armed struggle; Angola, Mozambique, Namibia, South Africa, and Zimbabwe. The analysis shows Zimbabwe to the most violent of the five countries, with most violence aimed at civilians by political militia, and a very significant amount of the violence (46%) occurs during elections. Furthermore, the kind of political violence during elections is considerably more serious than that which occurs outside of elections. The findings provide a cautionary background to the forthcoming elections in 2018.

    Dedicated to delivering clarity, direction and guidance leading to successful results in your legal challenge, our focus is on YOU.Lawyer canning vale

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  • Reply to: Second Hand Clothes To The Rescue

    By Fortune Madhuku

    Walking along several streets of Harare, one is greeted by a deafening noise from competing vendors who sell second hands clothes, commonly known as ‘bhero.’

    “Bhero, bhero, munhu wese. Ne$1 chete wapinda machena!” meaning “Second hand clothes on sale here. Just a dollar and you get a good deal!” scream out the vendors in their efforts to outdo each other.

    I amble along Rezende Street, curiously picking the variety of products on display. Every type of clothing you can imagine can be found on the pavements of this street There are shirts, trousers, stockings, shoes, jerseys, dresses, skirts and most surprisingly women’s underwear.

    Thanks to poor government policies and deregulation of street vending, the second hand clothes market, which for many years was located at Mupedzanhamo flea market in Mbare, is now virtually everywhere, including the streets of the once glamorous city of Harare. Scores of people can be seen bending over to pick a few clothes from the many vending points located in the city.

    A tangible definition of what globalization translates into in realistic terms.

    Although some opinion leaders have castigated the sale of secondhand clothes, pointing out that it’s not healthy to wear clothes previously worn by a person with an unknown health, religious and behavior record, it looks like the majority of Zimbabweans have embraced bhero with both hands as it offers a cheaper alternative to the expensive clothes sold in the established shops of the city. With just ten dollars in the hand, one can buy a full set of office attire, ranging from shirt, trousers and shoes, good enough to put onwhen going for a job interview.

    Some fashion conscious people, but with small financial muscles, actually prefer the second hand clothes and claim that the advantage of bhero is that you rarely find another person with the same cut and style of clothes. They argue strongly that the problem with the mainline shops is that you can have everyone in town donning the same style of clothes, which can be quite embarrassing particularly to those who want to be exceptional. W

    ith bhero you never go wrong as rarely do you find exactly the same cut and style on a friend or colleague. Die hard followers of second hand clothing argue strongly that bhero is the best thing that has ever happened since Adam and Eve put on leaves to cover themselves in the garden of Eden.

    For a country where the majority of people earn salaries far below the Poverty Datum Line and struggle to make ends meet, cheap secondhand clothing has helped in maintaining the dignity of people as they can afford at least something decent to put on. The meagre income that people earn from their work is already stretched to the maximum by rentals, food, transport, utilities and school fees, among other pressing demands. But with secondhand clothing selling for very low prices, many people can afford to smile all the way to the wardrobe.

    Still on the good that bhero has brought to our beloved country, many jobs have been created as thousands of vendors now have a source of income to feed their families and send children to school. With unemployment hovering above 80% and the once colourful economy now on the brink of collapse, anything that creates jobs for the people is welcome. The profit that one can earn from the sale of second hand clothing is unbelievable. For instance, a bale of t-shirts can be bought at an average of two hundred dollars, but will carry about three hundred tightly packed items. If one t-shirt can be sold for just two dollars, the mathematics makes a lot of sense. Considering that with street vending there are no shop rental costs and taxes to the government, it’s safe to say that vendors of secondhand clothing are making super profits.

    However, not everything about second hand clothes is good. While I see no harm in wearing a previously worn shirt, provided it’s washed clean and ironed before putting it on for the first time, I find it very wrong to wear second hand underwear.I have seen lots of bras and panties sold at the second hand market, which I think is not proper.

    We may be poor as Africans but our culture and beliefs make it taboo to put on previously owned underwear. Even in our mainline shops, you can exchange anything if it fails to fit well, but with underwear it’s strictly “no returns, no refunds.” I remember Tendai Biti, then Minister of Finance, presenting his budget statement for 2012, putting an embargo on secondhand underwear, but surprisingly the items still find their way into the market. It is also astonishing there are sometimes stampedes as people scramble to buy these items from the vendors. Yes, the low price and the feeling one gets when putting on an international label may be tempting, but I think it is definitely not worth it.

    Smuggling and underhand dealings are rife in the bhero business. This is because dealers always want to evade paying import duty for the clothes, which has been set at prohibitive levels to prevent local clothing manufacturing companies from collapse. Many traders who bring the clothes from outside the country end up getting arrested and losing their wares to border patrol officers who are always trying to thwart the illegal importation of second hand bales into the country. The dealers have not had their spirits dampened though, as they are intensely encouraged by the huge demand back home and the prospect of making super normal profits.

    Away from the down side of second hand clothing, bhero offers relief to many people of Zimbabwe who want nice things but cannot afford to pay much. It’s now rare to find a person walking along the streets with tattered clothes, unless they are mentally challenged. This is because there is always on offer “bhero, bhero, munhu wese” from as little as one dollar. Now, that is a good deal!

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  • Reply to: Tsvangirai and Locadia: Foes or Victims?

    For the past week, local news has been buzzing with the ‘bizarre’ things that Prime Minister Morgan Tsvangirai has been doing in his personal life. It is alleged that in November 2011, Tsvangirai paid 000 lobola/roora/bride price for one Locadia Karimatsenga and dumped her barely a week after. Tsvangirai denies marrying the woman and claims he only paid damages as he believed he had made her pregnant.

    In Zimbabwean culture, when a man impregnates a woman he has three choices. First, he can marry the woman by paying the lobola, entering  into what is known as an unregistered customary law union which he can then ‘upgrade’ into a registered customary marriage [Chapter 5:07], or a registered civil marriage [Chapter 5:11],  popularly known as the Chapter 37 marriage. Secondly, a man can refuse to marry the woman, but acknowledge the wrong done and pay a token of shame and apology known as dhemeji (damages). However, in paying these damages,the elements that are observed in paying lobola are not observed. Hence, damages are not the equivalent of paying lobola. The third option is one that many men have chosen to the detriment of many women’s lives, that of refuting responsibility and running at the speed of a bullet away from the woman and the baby.

    It is not clear which option Prime Minister Tsvangirai chose in his relationship with Locadia and now the High Court has been tasked to decide. The hullabaloo in the press has been precipitated by Tsvangirai’s marriage to his new belle, Elizabeth Macheka whom he married customarily, and now wants to tie the knot with in a civil marriage. Locadia, with whom Tsvangirai is either in an unregistered customary law union, or just paid damages for, has taken him to Court. She argues that he married her, that their unregistered customary law union is valid, and that they have not gone through the requisite customary rites of divorce, ordinarily observed through the payment of money/livestock known as gupuro.

    Morgan Tsvangirai and Locadia Karimatsenga

    Although the majority of comments have focused on either castigating Tsvangirai for being a double headed snake – tsukukuviri - in marrying one woman, divorcing her, and immediately marrying another, or on ridiculing  Locadia for being desperate and refusing to accept that Tsvangirai does not want her for a wife, the importance of this saga lies in its exposure of the chaos that is Zimbabwe’s marriage regime.

    A few months ago, prospective brides and grooms had their plans to begin enjoying marital bliss thwarted when the Registrar-General (R-G) suspended all marriages in order to implement a new marriage system. The R-G’s actions were inspired by his realisation that there were many men committing bigamy, the crime of being illegally married to two people.

    The R-G’s efforts clearly did not change much. Zimbabwe still has 3 recognised marriages: the unregistered customary law union (where a man pays lobola to a woman’s family and from then on the two are considered married), the registered customary marriage (where a man and a woman do the lobola but are then married in court and the man is still legally permitted to have more than one wife), and the civil marriage (the one man-one woman type). As the Tsvangirai case proves, the fact that these different marriages are allowed remains a problem. That problem is worsened by the fact that these marriages do not have equal weight before the law; they do not give the partners equal rights within and outside the marriage. For instance, under the unregistered customary law union, a man can divorce his wife willy nilly by simply paying gupuro, and chasing her out of his house, while under the civil marriage, if he wants to divorce her, then he has to convince the court that their marriage has irretrievably broken down. In the two customary marriages, the man can have more than one wife leading to multiple partners, a dangerous factor in today’s HIV/AIDS ridden Zimbabwe.

    This is the reality of Zimbabwe’s marriage laws and the impact they have. Locadia is laying a claim believing she is in a valid marriage with Tsvangirai. Tsvangirai married Elizabeth believing his arrangement with Locadia does not constitute a valid marriage. If we had one marriage regime these uncertainties would not exist. In the end should the two be enemies or are they both just victims of a chaotic system? The marriage system is a mess and needs cleaning up sooner rather than later.

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