There had been differences between the Government and
traditional leaders on a clause related to lobola payment in customary unions
and the powers of chiefs as marriage officers.
Debate on the Bill was adjourned in Senate eight months ago
after differences emerged on Clause 16, which provides that payment or
non-payment of a bride price could not be regarded as a barrier in solemnising
marriage between two consenting adults if they satisfy other requirements of
the law.
But traditional leaders, led by Chiefs Council president Fortune
Charumbira, argued that payment of bride price was a hallmark of marriage in
customary unions.
Justice, Legal and Parliamentary Affairs Minister Ziyambi
Ziyambi has now come up with new amendments that allowed marriage officers, who
include traditional leaders solemnising customary unions in their own areas and
to ask parties to a marriage whether or not lobola has been paid.
The amendments also provide that a marriage officer in a
customary union cannot solemnise unions where couples had stayed together for
less than five years.
Under unregistered customary law unions, the proposed
amendments make it clear that a marriage officer to a proposed customary union
can include questions about lobola among those required for establishing the
identity and ages of the couple.
In these solemnisations of unregistered customary unions,
the couples have to present an affidavit jointly sworn to by them to the effect
that they have been living together as husband and wife for at least five years
or more, and that they are not related to each other within any prohibited
degree of kinship that is recognised by their community as an impediment to
marriage between them; and
There also have to be affidavits by two witnesses (of whom
one witness must be a relative of the bridegroom and the other a relative of
the bride) corroborating the fact that the proposed marriage partners have been
living together as man and wife for five years or more and that they are not
related to each other within the prescribed degree of kinship.
The period of five years referred to in this section shall
not include any period during which either of the parties was below the age of
eighteen years at the time that they purportedly began to live together as man
and wife.”
In an interview, Minister Ziyambi said the Government had
tried to attend concerns raised by traditional leaders in a manner that did not
violate constitutional provision giving rights to a person entering into a
union.
Chief Charumbira said as traditional leaders they concurred
with some of the amendments particularly allowing them to inquire whether
payment of lobola was done.
He said they also concurred that there must be a period
within which parties in a customary union should have stayed together before
their union is solemnised but felt that five years was too short.
“From the reading of the proposed amendments, there seem to
have been progress in addressing our issues. We will however push during debate
that we have at least 10 years and not five years because to allow parties to
mature before marriage can be solemnised,” said Chief Charumbira.
He however, said the amendments did not address another
concern in the Bill where traditional leaders have to apply to the responsible
minister to become a marriage officer.
Traditional leaders had argued that giving the Minister the
power to decide whether a chief is fit to be a marriage officer is not only
demeaning to the institution of traditional leaders but is also
unconstitutional given that chiefs are equal and once a function is conferred
by an Act of Parliament, it can only be conferred on every chief without any
discrimination whatsoever.
In his argument, Minister Ziyambi said the law does not
seek to abolish lobola since culturally it solidified bonds between families
but said bride price could not be used as a precondition to solemnise marriage.
He said it is the woman who should assert her right to have bride price paid
and not guardians or third parties if she is 18 years old and above.
Minister Ziyambi said there was a settled case (Katekwe v
Mubaiwa 1984) where the Supreme Court ruled that a father had no legal standing
to sue for damages for the seduction of his daughter, who is a major, since
that right had been passed to her. Herald
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