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Transcript: Zimbabwe's Controversial Marriage Laws

In a year when Zimbabwe’s leaders had many major national issues to tackle, including the new constitution, food shortages, and a lackluster economy, Prime Minister Morgan Tsvangirai’s personal life often dominated headlines. The nation heard and read about Mr. Tsvangirai’s former lovers going to court to stop his bid to marry Elizabeth Macheka, following his wife’s death in a car accident in 2009.

While the marriage controversy raised questions about the PM’s personal life, it also raised questions about Zimbabwe’s marriage laws.

Legal analysts say the country’s Marriage Act is seriously flawed, as it seems to recognize only monogamous civil marriages despite anecdotal evidence showing that many women are in unregistered customary unions.

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Gonda: Sylvia Chirawu, the national coordinator of Women and Law in Southern Africa says there are three kinds of marriages in Zimbabwe.

Chirawu: Basically there are two recognised registered marriages, the first one being the Chapter 5:11 marriage, which some people still refer to as Chapter 37. This type of marriage means that if a man enters into it or a woman, they are supposed to have one spouse. They are not supposed to get married to anyone else unless they divorce - so it’s one man one wife.

The second type of registered marriage is the Customary Marriages Act: Chapter 5:07 which used to be called Chapter 2:38, which some people still use. Under this type of marriage, a man can marry as many wives as he wants. So each wife will have their own marriage certificate, so in other words this marriage allows polygamy.

There is also a third type of customary marriage and it’s not registered and actually in terms of the law it’s called an Unregistered Customary Law Union - and this union comes into being when a man pays lobola for a woman and he can pay lobola for as many women as he wants. So we have this type of marital regime where we have customary law marriage existing side by side with general law marriage.

Gonda: Chirawu says the prime minister’s marital woes expose the confusion regarding Zimbabwe’s marriage laws.

Chirawu: Basically, Locardia’s case is that she was married by the prime minister under customary law and the prime minister has now terminated that customary law union, and he went onto marry another woman, Elizabeth, under customary law and then sought to elevate the customary law union to a Chapter 5:11 marriage. So there is a lot of confusion really regarding our marriage laws.

If we look at the Criminal Law (Codification and Reform) Act, it actually says such a situation would constitute bigamy which is a criminal offense - in other words what the law is saying is that if you are a man and you marry under customary law you can actually, in terms of the law, elevate that 5:11 marriage with the same woman but what you can’t do is to get another woman and then marry her under 5:11 without terminating the existing customary law union.

Gonda: The prime minister’s planned civil wedding to Elizabeth Macheka turned into a traditional bride handover ceremony, without an exchange of marriage vows, after the couple’s marriage license was cancelled and a court decision recognizing Locardia Karimatsenga Tembo as his customary wife. The marital squabbles spilled over to the courts where Mr. Tsvangirai is appealing against the cancellation of the marriage license. At the same time Karimatsenga was seeking maintenance from the prime minister in the courts. The two later reached an out of court maintenance settlement that reportedly reached a six figure sum. Karimatsenga’s lawyer Jonathan Samukange says his client did not start by going to court but says she tried everything in terms of Shona custom to have the matter resolved amicably.

Samkange: Before we went to court, Locardia went to Chitungwiza where Tsvangirai’s’ elders are, in terms of our culture. She told them she went into the house that her husband had found for her in Chisipite… found the place deserted; all the household goods had been removed. But four days and four nights, Tsvangirai said he was coming but he never came until she left.

If Tsvangirai had gone that time, I’m sure she would not have gone to court. The opportunity was there but he was just being stubborn, and personally I think also the people who are advising him are not giving him proper advice.

Gonda: The PM’s lawyer Innocent Chagonda argues that Mr. Tsvangirai should have been allowed to marry Elizabeth under civil law, denying the prime minister paid a bride price or lobola for Karimatsenga, insisting that he only paid damages for getting her pregnant.

Chagonda: His position was that he did not marry Locardia contrary to what she was saying. The prime ministers’ position was always to say he did not instruct anybody to go and conduct a ceremony in the form of paying the lobola. He has been vindicated anyway in court by the people who he had sent, the delegations that he had sent told the court in the affidavits that they have deposed. That they had gone only in good faith to pay this lobola notwithstanding the fact that the prime minister had not agreed with that. Their intention was to allow a situation where, they thought, maybe the prime minister would change his mind or something. But it was very clear that they did it without his consent and knowledge.

Gonda: Mr. Tsvangirai then raised eyebrows when he instructed his lawyers to pay a divorce token called gupuro via the courts. Chagonda says gupuro can be paid anywhere and as far as Mr. Tsvangirai is concerned that gesture was tendered.

Chagonda: Under customary law, gupuro is paid to the woman. It will then be encumbered upon her to go and tell her parents that she has been divorced and that she has refused a gupuro. There is absolutely no procedure which has to be taken in terms of doing anything other than giving it to her or her representative. In fact one could even throw that token at her.

So what you need to do is to clearly show your intention by giving her that token because this is a union which is unregistered, you do not go to court to get a divorce certificate. What you simply need to do is to give that token, there is absolutely no strict formalities that have got to be taken, what needs to be shown is that somebody no longer wants the relationship so this is what the prime minister has said. It is very clear, it is in black and white that even if there was a relationship in the first place, it takes two to tango and he has publicly said he no longer likes it and he wants to move on with his life.

Gonda: But Karimatsenga’s lawyer says there is no way that gupuro can be made through the courts. Samkange says the prime minister had to follow tradition and just like when he first proposed face to face to Locardia he now had to come face to face with his estranged partner.

Samkange: You know we must be proud of our culture, we must be proud of our custom. Our custom is that Tsvangirai is married to Locardia, those are two people who met in the absence of us. Tsvangirai must go to Locardia personally and say to Locardia: ‘listen Locardia my dear, I was in love with you but I’m no longer in love with you, and because you’ve done x-y-z I want a divorce. And to show that I want a divorce, here is my one dollar - I no longer love you’.

Locardia can do two things: She can either accept the gupuro or she can refuse it. Then Tsvangirai must go to Locardia’s’ aunties and say: ‘Look I have got a problem with your niece and I’m having a problem with your niece but i no longer love her and I gave her a gupuro and she doesn’t want to accept it - this is the one dollar that i have brought, I no longer want her’.

The aunties are bound to deal with the issue, but you can’t send a lawyer to say go and pay this gupuro and go and give it to Samkange, how can I accept Locardia’s’ gupuro? Was I married to Tsvangirai myself?

Gonda: Sylvia Chirawu says even in terms of customary law there is still confusion as to how a man can go about giving gupuro or the divorce token.

Chirawu: One of the major bones of contention revolves around the issue of gupuro which is a rejection token in English. There is a lot of confusion because different tribes follow different paths in terms of gupuro.

What I know from my culture is that if a man wants to divorce a wife, under customary law, then the gupuro used to be ten cents but people have just come up with two Rand – I don’t know where it came from, but basically the woman is given the money personally.
Then other tribes say that the money has to go through an aunt or munyai who is the go-between. So even in terms of customary law, there is still confusion as to how a man can go about giving the rejection token.

Gonda: Jonah Gokova chairman of Padare, a men’s forum that advocates for gender justice, says the prime minister’s marital saga exposes the serious challenges relating to how men behave, and is also a clear reflection of the increased vulnerability of women in the country. However, Gokova says while it is clear that Mr. Tsvangirai has made some blunders, the tone of the women’s engagement is also – in his words – “vindictive’.

Gokova: And it’s either I have you or I destroy you. It is accepted that the prime minister has made his blunders and so on and so forth and I’m sure he is aware of it and he knows it and he needs to correct that. But also I think he needs to look at the situation in terms of representing situations, the role of partisan media and the politicization of the whole situation – which makes the whole situation very, very ugly.

Gonda: Mr. Tsvangirai has also come under attack politically for courting women with strong ties to Zanu PF. Karimatsenga’s lawyer agrees.

Samkange: Shamwari, this is even more ridiculous, do you know Elizabeth Macheka? Who is Macheka’s father? Who is he in Zanu PF? He is the one chasing after Zanu PF and afterwards he complains. Didn’t he know that Macheka’s father is one of the top Zanu PF officials both in Harare Central and in the party? Didn’t he know? And when he went out with Locardia, didn’t he know that her father was in the liberation struggle as a Zanu PF? As a prime minister, do you just go out with a woman because she is a woman?

He should do background checks, ask for guidance from his security to check who this woman is? Is that not normal? Do you just go out without checking? The one that he is claiming he wants to marry now and the one that he had, they are all Zanu Pf women, and why is he after Zanu PF women for?

Gonda: Sylvia Chirawu says politics aside the fundamental point in all this is the limited recognition that is given to customary or unregistered unions.

Chirawu: So really the basic issue about the prime minister, politics aside, has raised fundamental issues in relation to our marriage laws which are seriously flawed in that they seem to give credence to the 5:11 Marriage - monogamous marriage - yet evidence suggests that a lot of women are in unregistered customary law unions. So it’s really high time that something is done from a legal perspective to protect the rights of women in these unregistered marriages.

Gonda: Furthermore the legal expert says under customary law, married women can assume their husband’s surnames but if their marriage is not registered they cannot use their spouse’s name.

Chirawu: If you are married under the customary marriages act, you can use your husband’s surname because you get a marriage certificate, but if lobola is paid only, and the marriage is then not registered, you cannot use the husbands’ surname as your own surname because in the eyes of the law that’s not a marriage - it’s a union.
So you don’t really acquire many rights except. The registered customary law marriage is really okay because you do have your marriage certificate, no-one will ask you for proof and say you were not married because what you simply need to do is to produce the marriage certificate. But if you don’t have that marriage certificate now, the other problem that arises is also even proving that the customary union exists so if you note in the prime ministers’ case, Locardia had to go all out to show proof that the prime minister had paid lobola for her (video of the ceremony).

So you do get a lot of these situations where women now actually have to prove that lobola was paid for them and in some instances women are unable to prove it, especially relating to inheritance. And if they are unable to prove that they were customarily married, then that is the end of the road for them, they will not be entitled to inheritance.

Gonda: Lobby groups like Padare are calling for the harmonization of the customary and civil marriage laws to ensure the interests of women are protected. But others say that would assume that women live under one system. The reality is that some women live under polygamous marriages while others are in monogamous unions. Legal experts believe the ideal would be to have a specific law that recognizes unregistered customary unions as marriages to ensure that the rights of all women are protected.

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