Disagreements between the Government and traditional leaders on a Clause related to payment of lobola and powers of chiefs as marriage officers, have stalled the Marriages Amendment Bill in Senate with the two parties still pursuing common ground.
Debate on the Bill was adjourned in Senate four months ago after differences emerged on Clause 16, which provides that payment of bride price could not be regarded as a barrier in solemnising marriage between two consenting adults if they satisfy other requirements of the law.
This did not go down well with traditional leaders led by President of Chiefs Council Fortune Charumbira who argued that payment of bride price was a hallmark of marriage in customary unions.
Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi admitted that there was a standoff on the issue of lobola but said they were in discussions with traditional leaders to find common ground.
He 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 solemnize marriage.
The woman, he said is the one 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 right (locus standi) to sue for damages for the seduction of his daughter, who is a major, since that right had been passed to her.
“The moment we, as guardians or third parties accept that lobola should be a pre-condition we are going back to the old era where women were said to be minors,” said Minister Ziyambi.
“It is the woman who should assert that right otherwise we would be violating her rights as a major as contemplated by the Constitution under the Bill of Rights
“We have received proposals from the Chiefs on the issue of lobola that we are studying and we hope that we will dispose the Bill early next year.”
He said cultural considerations through critical should not take precedence over one’s Constitutional right.
In an interview last week, Chief Charumbira said they had come up with a position paper on what they felt the law ought to be like.
“It is not just about a Clause on lobola alone that we have reservations on but other issues. We have had meetings with the minister and we still remain hopeful that we will reach an understanding,” said Chief Charumbira.
In their position paper, traditional leaders argued that there could be no valid customary law marriage without payment of lobola
“As long as marriage is entered into with the free and full consent of the intending spouses, lobola/roora is a matter of culture that does not per se infringe the rights of women,” read the position paper.
“This is because section 63 of the Constitution makes it a fundamental right for every person “to participate in the cultural life of their choice” and in section 16, the State “must promote and preserve cultural values and practices.
“The traditional leaders proposed the Clause to read as follows: “A marriage officer in a customary law marriage may put to either of the parties to a proposed marriage or to the witnesses any questions relevant to the identity or conjugal status of the parties to the proposed marriage, to the agreement relating to lobola/roora, if any, and to the existence of impediments to the marriage.”
Another borne of contention was a Clause which confers discretionary powers on Minister of Justice, Legal and Parliamentary Affairs on whether or not to designate a Chief as marriage officer.
Other marriage officers are a magistrate and head of an embassy.
“On careful reflection, it appears 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,” read the position paper.
“It is unconstitutional because chiefs are equal. Once a function is conferred by an Act of Parliament, it can only be conferred on every chief without any discrimination whatsoever.
“Further, the recognition given by section 280(1) of the Constitution is supreme: it is not qualified on the basis of such factors as age and literacy skills. It is contrary to the spirit of the aforesaid section 280(1) of the Constitution to allow a Minister to devise some criteria for determining the fitness of a chief for the role of being a marriage officer.”