Further amendments to two clauses in the Marriages Amendment Bill are now likely following debate between chiefs and Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi in the Senate last week.
The senator chiefs still want lobola to be a condition in solemnising a customary union, seeing it as a central component of a marriage, and are not satisfied with the present proposal that a marriage officer may ask questions about where lobola has been paid, without making it clear what follow-up action can then be taken.
Government believes that since the Constitution makes it clear that any valid marriage under any law must require the consent of the adult man and adult woman, without anyone else able to grant or withhold consent, lobola cannot be made compulsory.
The senator chiefs were also unhappy with the clause that makes chiefs marriage officers for the solemnisation of customary marriages within their areas, but does not make such appointment automatic.
They want to see the appointments being automatic, but are agreeable to training being provided to chiefs to ensure they are familiar with legal requirements.
The new Marriages Act proposes a single law governing marriage in Zimbabwe, but with two strands for solemnisation, civil and customary marriage.
The proposals for civil marriage are basically identical to the present Marriages Act that governs marriages solemnised before magistrates or honorary marriage officers, all who are ministers of religion or the equivalent.
The customary strand introduces solemnisation of such unions, a new concept, which is done before a magistrate or other marriage officer, who will include chiefs. It also provides for those in unregistered customary unions to move to the solemnisation stage.
The proposed law also formalises the present near universal practice in Zimbabwe, where an unregistered customary union is a first stage followed by a civil marriage, by now allowing a solemnised customary union that is monogamous to be converted to a civil union, something that is not possible at the moment and which has meant very few customary unions are ever registered since many couples want to retain that option.
The procedure of solemnising a customary union, but introducing the option of later conversion, is seen as restoring the equality of the two kinds of marriage and encouraging couples in a customary union, but not a civil union to have that customary union solemnised.
There was serious debate in Senate on Wednesday between and traditional leaders led by Chiefs Council president Fortune Charumbira on the Bill, with tempers flaring in some instances between the parties.
Intense debate ensued on Clauses 9 and 16, which traditional leaders dislike but Minister Ziyambi averred that everything was done in good faith.
Clause 9 designates Chiefs as marriage officers, but confers the responsible Minister powers to prescribe certain conditions they might feel suitable. Clause 16 provides that a marriage officer in a customary union may put questions to parties to a union on whether bride price was paid.
Traditional leaders felt Clause 9 had the effect of demeaning them by setting conditions given that the same did not apply to head of missions who are also conferred with the same responsibility of becoming marriage officers.
They also argued that Clause 16, in their view, sought to make lobola optional yet, it formed the hallmark of any union.
Minister Ziyambi argued that Clause 9 did not in any way demean traditional leaders, but it was included for administrative purposes.
Because of changing times and the need to secure rights of parties to marriage where both of them were no longer minors, Government had to secure their rights.
“It is just an administrative aspect that there must be somebody to administer the Act to ensure the rights of the parties are protected. What we need to appreciate is that they do not become automatic marriage officers,” said Minister Ziyambi.
He said the clause was necessary given that chiefs and other marriage officers, such as pastors, were not employees of the State, hence it was important to formalise their working relationship with the State so that expected minimum standards were adhered to.
In response, Chief Charumbira argued that all traditional leaders should be marriage officers by virtue of their offices with no conditions attached.
“We were appointed by the President. We have training programmes as chiefs. Even the magistrates and the judges, those who did law, we see them going to workshops and annual trainings. As chiefs we do not have that. You should fund us so that we do capacity building.
“Diplomats are trained so why do you not train us. That is the question. Train the chief so that we are the same. We work within the State. That is why we are given monthly allowances and cars,” said Chief Charumbira.
After a protracted debate, Minister Ziyambi acceded to the proposal by traditional leaders to have the clause reflect what they were proposing.
On lobola, Minister Ziyambi had argued that 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 condition to solemnise a customary 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, since doing so might have the effect of violating her rights.
But traditional leaders argued a person who opts to have his or her marriage solemnised under customary union should be prepared to be bound by the ethos of a customary union as “each game had its own rules”.
Mashonaland East traditional leader Chief Langton Nechombo said the proposed Clause by Minister Ziyambi allowing them to ask questions whether bride price was paid was not clear in terms of what it intended to achieve.
“This leaves the proposed law not speaking with clarity, precision and predictability to what it intends to solve,” said Chief Nechombo.
“By outlawing lobola, or not emphasising it or even making it optional as traditional leaders, the State would have reneged on our duty to uphold and preserve culture as contemplated by Section 16 (1) of the Constitution.”
He said payment of bride price formed the basis upon which a women’s integrity was derived.
Matabeleland North traditional leader, Chief Siatabwa Nkatazo Siansali said in the Tonga custom in Binga where he comes from, one could not talk of marriage if lobola was not paid.
In response, Minister Ziyambi said: “I agree with the chief. These are very good amendments, but we need to couch them in a manner that will translate appropriately into legislation.
“Can we report progress then perhaps we can meet and either we extract from the current customary marriage and see how we can couch it or they can get somebody to do it and then we discuss it before we proceed with the Committee Stage?”