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Sharon Hofisi Legal Letters
Marriage is a molten word in Zimbabwe and the world over. Realistically for Zimbabwe, the old and new world novel is usually shot through with an atmosphere of the extant union between the dead and the living. The dead commune with the living and vice versa. In all this, families describe different spirits which can affect the marriage set-up such as vengeance (mweya yengozi); spooks/ghost (zvipoko/zvindofa/zvidhoma); familial or generational (mweya yedzinza); or alien spirits (mashavi). Fetishism, snuff, and so on form part of the paraphernalia for communication.

A man who kills his relative or stranger could manifest a ghost spirit yet women’s lived realities show that they would suffer for the sins of a male relative. The family would be forced to commune with the dead, not just because of their belief in the afterlife, but because of the overwhelming influence of the vengeance spirit in terms of how it wreaks havoc in the family.

The rights of women quickly come to the fore because women were and can be still used as the ransom for the family; mainly through some “forced” marriage. Illustratively, this article deals with ghost or homicide marriages. These marriages are “forced” because the woman or girl is not involved in the decision-making process. She is the object and never the subject of her rights. Her tripartite being of soul, spirit and body is sent into anguish all in the name of patrilineal and patriarchal dominance – both from her family and that of the deceased.

Women’s rights matter because they are part of the fundamental human rights that are protected in the Constitution. They are part of the elaborated rights that are found in Part 3 of Chapter 4 of the Constitution. They are considered part of specific group rights in this article. The application part on such rights is Section 79 of the Constitution which shows that these rights are elaborated for the purposes of ensuring greater certainty since they relate to particular classes of people: women, children, elderly, persons living with disabilities and veterans of the struggle.

The rights are not meant to limit the bulk of rights that are found in Part 2: which include the three generations of civil and political rights such as the right to life in Section 48; economic, cultural and social rights such as education in Section 76; as well as group or collective rights such as environmental rights in Section 73. Most importantly, they are framed in a manner which shows that they are enjoyed by every woman. Such a woman has full and equal dignity (chiremerera in Shona) of the person with men and this includes equal opportunities in political, economic and social activities.

Using homicide marriages to explain this pillar, women cannot and must not be used as a carrot to appease vengeance spirits (mweya wengozi). This is because homicide marriages are usually associated with ritual killings or murders that are committed by a male member of the family and a woman’s dignity cannot be used to soothe a spirit. Retribution demands that the perpetrator should be made to pay for his sins. Other forms of punishment such as retribution, restitution through a woman, and rehabilitation are usually inapplicable since the perpetrator could be dead.

From an international level, thematic treaties on women such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) quickly become relevant to the present discussion. In essence, their goal is to show the universality of fundamental human rights. For instance, CEDAW talks about marriage and family relations. It, however, does not define marriage. Such a definition would have gone a long way in benchmarking oppressive marriages the world over. CEDAW is the international Bill of Rights for women and national laws and practices can be audited using the provisions that are related to marriage.

Human rights instruments give states some margin of appreciation on such rights. As such, some nations can frame women’s rights using arguments from cultural relativism or particularism. While relativism is usually used as a response to forms of democracy as they relate to large set-ups such as Asian or African cultures; particularism is usually used on specific issues such as religious laws like Sharia.

At our national level, the Constitution of Zimbabwe, 2013 (Constitution), does not also define marriage in its definitions section, Section 332. The marriage rights provision, that is, Section 78 of the Constitution, does not also define marriage.

Without throwing away the baby with the bath water, Section 78 of the Constitution is important because it does the following: sets the age of marriage to be 18 years; clearly states that no person may be compelled to enter into marriage against their will; and shows that marriages in Zimbabwe are heterosexual in nature in that persons of the same sex are prohibited from marrying each other. In setting the tone of this article, the following must be borne in mind on women’s rights: they are justiciable and this is shown in Section 80 of the Constitution; and there are various laws that can be used to explain the marriage rights of women. Further, the Preamble of the Constitution, which is the epitome of individual sovereignty in Zimbabwe, places strong emphasis on the need to entrench good governance.

This is important because the principles of good governance which bind the State and all institutions and agencies of Government at every level include the recognition of the rights of women. This is enshrined in Section 3 (2) (i) (iii) of the Constitution. For starters, Section 3 of the Constitution is important because it states the founding values and principles of the constitutional form of democracy that Zimbabwe subscribes to. Further, women’s rights are protected by the supremacy clause – Section 2 of the Constitution. The Constitutional Court of Zimbabwe has had occasion to show the importance of this clause in the case of Loveness Mudzuru and Another v Minister of Justice.

Section 9 of the Constitution shows that good governance is part of Zimbabwe’s national objectives. In terms of Section 8 of the Constitution, the national objectives are used to interpret the obligations of the State. As such, they can be used together with the interpretation criteria that is found in Section 46 of the Constitution which includes international law From an international law perspective, Zimbabwe is a State party to CEDAW and it becomes the primary duty-holder on women’s rights. In terms of Section 34 of the Constitution, the State must ensure that the provisions of conventions such as CEDAW are incorporated into domestic law.

Recently, the Constitutional Court outlawed provisions of laws which violated the marriage rights of women. There is need for a complete and urgent overhaul on all laws on marriage so that they protect, promote, respect and fulfil the rights and freedoms of women. In dealing with oppressive forms of marriages once and for all, the State must urgently uphold the spirit of Section 80 (3) of the Constitution which states that “all laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement”.

Various other ways can be used. The State can fulfil its obligations on women’s rights by promoting the gender balance provision that is found in Section 17 of the Constitution. Most importantly, Section 26 of the Constitution is important when interpreting women’s rights. It states the following: no marriage is entered into without the free and full consent of the intended spouses; children are not pledged into marriage; there is equality of rights and obligations of spouses during marriage and at its dissolution; and in the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses.

From the perspective of women rights or feminism, the following points can be made: Firstly, homicide marriages take away the freedom and consent of the woman who is married off. She is used as a ransom and nothing else. The marriage is not based on love, or feelings of love, but a messiah fever which simply runs high in the family’s veins and brains.

Secondly, the appeased spirit can choose someone who is below the marriageable age in Zimbabwe. Under criminal law, the family members can be arrested and prosecuted for pledging a minor. Under the Constitution, the family commits a constitutional breach by violating children or a young woman’s rights. Thirdly, the woman to be married off does not have equal rights with the vengeance spirit or the deceased’s male relative. She is psychologically abused from before and during the marriage. Fourthly, she is considered to be the wife of a dead man and it is certain that she cannot claim the proprietary rights that proceed from the estate of the dead man’s relative.

Because of the lacuna in both the Constitution and CEDAW on the definition of marriage, the following working definition that is used in most contemporary societies is used to mean: a voluntary relationship between a man and a woman or women, intended to last for their joint lives (Armstrong et al 1993: 3). This definition includes both monogamous and polygynous but does not include other forms of marriage which are recognised by some African societies under customary laws and which may have important implications for the protection of women’s rights under Article 16 and other related articles of the Convention (CEDAW) (ibid).

Frequently, people use the term polygamy for marriages in Zimbabwe. This term is, however, misused because it refers to a situation where a spouse has a right to marry several spouses during the subsistence of his or her marriage. This is not the situation that obtains in Zimbabwe. Men are allowed to marry several women, usually under customary law. Women who stay with several men under a marriage set-up are usually accused of using love potions or mufuhwira in some indigenous societies.

Polygyn is the best word to use in marriages in Zimbabwe since it points to a situation where a man has several wives. The Zimbabwean society is largely polygynous in nature, except in situations where people marry monogamously under the Marriages Act (Cap 5:11). A man’s signs of social virility were expressly shown in traditional Zimbabwe by the number of wives that he married. Some still hold on to this belief.

Using arguments from existential feminism, the concept of otherness is clearly seen in the ordering of priorities for men as “the person” and women as the “other”. This is so if regard is had to the fact that polyandry or a situation where a woman has several husbands was and is still very rare in Zimbabwe. This is notwithstanding that scanty media reports show that women in some parts of Zimbabwe do marry more than one husband and those husbands enjoy the comfort of their woman who they consider to be the head of the family.

The corollary to the above is that involuntary marriages under customary law such as ghost or homicide marriages must be situated in the need to treat the rights of women as part of the fundamental human rights. Quick notes on customary marriages would reveal the existence of the following marriages: levirate marriages where a deceased husband’s male relative gets into his shoes and performs his duties. In the Shona society, he is frequently referred to as “Musarapavana”.

Armstrong et al (ibid) used levirate in a broader sense which also gave the relative the right to enjoy conjugal rights with the deceased’s widow on condition that the children arising from such a union would belong to the deceased. The children would also inherit from the deceased’s estate. Very complex relationship indeed!

Some customary marriages include widow inheritance; sororate marriages where a sister replaces a dead sister or is used to overcome problems usually related to child bearing, and ghost marriages where a woman may be married to dead husband in order to raise and continue his family line.

Broadly speaking, homicide marriages are part of ghost marriages. A male relative can kill a stranger or another deceased relative. Years or generations can come and go before the deceased avenges his death. When he decides to do so, a lot of unusual things would happen: various illnesses, hallucinations, deaths, unintelligible utterances and so on.

The family elders in the extended family concept, usually men and the elderly sister (tete), would collectively decide on the best way to save the family from a catastrophic breakdown. This concept is still dominant in most societies. Family tragedies are solved at that level. Most families believe that the deliberate or negligent killing of a human being creates a calamitous situation for the whole family.

In that event, they collectively consult traditional healers. A performance of some rituals may expose an age-old heinous crime, usually of a stranger or distant relative. The whole family is usually advised to appease the vengeance spirit. The stranger’s spirit is usually more dangerous than that of a distant relative. This was expressed in the Shona through proverbs such as ‘ngozi yerombe igandanzara’, loosely translated to mean a beggar’s avenging spirit routs a whole family. Strangers were the bulk of beggars.

The spirit of the deceased would manifest itself in a young girl and would sometimes be preceded by a whole lot of family misfortunes. It would claim a large number of beasts of burden. If the deceased was not married, his spirit would demand an offspring from the killer’s family. The affected would equate the spirit to buffalo beans (guruzuzu or hurukuru). The spirit would relive the commission of the crime; point to the crime scene; identify the perpetrator; proffer the raison d’etre for the killing and would prescribe the punishment for the family. A girl or young woman is usually preferred for reasons of procreation. The woman becomes the vengeance spirit’s wife.

If the deceased was a relative, the girl who is used as the family ransom would be married off to another man who is not necessarily a relative, but on condition that the bride price is given to the relative’s family. If the deceased was a stranger to the family, she would be married off to the stranger’s surviving relative. In all this, the woman is not consulted. Her marriage rights; sexual reproductive rights; right to personal security; and right to human dignity are violated because she is simply told that she is the family messiah. Her mother is usually treated as the “other” woman because the husband usually has the final say in the negotiations.

Ultimately, the zenith of patriarchal, or rather patrilineal arrangements, manifests itself. Men become “the” measure of family affairs. The woman becomes the object and not the subject of her rights. Sharon Hofisi is a lawyer and writes in his personal capacity. He can be contacted on [email protected]