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NATIONAL ASSEMBLY HANSARD 13 FEBRUARY 2019 46-22
PARLIAMENT OF ZIMBABWE
Thursday, 13th February, 2020.
The National Assembly met at a Quarter-past Two O’clock p.m.
PRAYERS
(THE HON. SPEAKER in the Chair)
THE HON. SPEAKER: I want to address myself to Hon
Molekela, just in case you have not read the Hansard, the issues of hiked fees for tertiary institutions was raised yesterday and it was agreed that if you could take the lead in ensuring that through your Committee, you do some investigation and come up with some recommendations.
HON. MOLEKELA - TSIYE: Thank you Mr. Speaker Sir. I just want to bring to the attention of the House that three or four weeks ago the same Committee initiated a process through our clerk to respond to the situation. We were told that we would need to wait until after we open on 10th February, 2020. As such our Committee was actively trying to get involved and resolve that issue. We will continue to actively follow-up on this urgent matter.
THE HON. SPEAKER: I have requests for points of privilege
and I want to insist that they must relate to your privileges and rights, otherwise I stand you down.
HON. T. MOYO: Thank you Mr. Speaker Sir. I rise on a point of privilege. My point of privilege arises from the challenges that we experience in our constituencies. There is an issue that we deliberated on in Victoria Falls last year concerning constituency based allowances. We were hoping to get a response but up to now the situation has not been addressed. We kindly request your office to address this issue expeditiously. We are experiencing challenges as we run around doing activities in our constituencies particularly when the Parliament is on recess. For example, December to February we did not have any fuel and we have challenges to access all parts of our constituencies. We kindly request your office to address this challenge. I thank you. -
[HON. MEMBERS: Hear, hear.] -
THE HON. SPEAKER: Just some point of clarification. Hon. T. Moyo, are you suggesting that the CDF has been delayed in terms of being issued?
HON. T. MOYO: Thank you Mr. Speaker Sir. It is an issue that we agreed last year in Victoria Falls that Hon. Members would get constituency based allowances.
THE HON. SPEAKER: Thank you for the clarification, I will look into the matter.
*HON. NYABANI: Thank you Mr. Speaker Sir. I want to talk about the issue of pricing countrywide. People are using different forms of payment, ecocash, swipe and cash but I wanted to enlighten this House that people buying using ecocash and swipe for payment are being charged 50 – 60%. I think it is an issue that we need to address because in rural areas, they do not accept ecocash and swipe anymore. I was thinking that if possible, Ministries such as Industry and Commerce, Home Affairs or Justice should come in to ensure that we address this matter especially for those living in rural areas. I thank you.
THE HON. SPEAKER: It affects your rights and privileges as a citizen who is an Hon. Member but the matter should have been raised yesterday during Question Time. I suggest you put that for next week under Written Questions expeditiously.
HON T. MLISWA: I rise to just notify Hon. Members of the Sport Clubs that you were given some track suits to train and we have resumed training. From next week we will be training at Girls High School from 6 to 7 am. If it is raining we have also organised indoor facilities for us to do that. It is important that when a company does sponsor us we are seen to be doing what we are supposed to do. Any Members that do not have any tracksuits will be given along the way. I implore you to come because this is your life, this is about your health more than anybody else. We will have a personal trainer that we have engaged who will be working with you according to your levels of fitness and so forth. All Members are invited to attend at Girls High
School on Monday from 6am to 7am. I thank you.
THE HON. SPEAKER: Can you make good your deficit because
my oversize tracksuit has not been delivered. I want to do something about it as well.
MOTION
BUSINESS OF THE HOUSE
HON. TOGAREPI: I move that Order of the day Number 1 on today’s Order Paper be stood over until Order Number 2 has been disposed of.
HON. PORUSINGAZI: I second.
Motion put and agreed to.
SECOND READING
MARRIAGES BILL [H. B. 7, 2019]
Second Order read: Adjourned debate on motion on the second reading of the Marriages Bill [H. B. 7, 2019] Question again proposed.
*HON. MAMOMBE: Thank you Mr. Speaker Sir. I also want to
add my voice to the Marriages Bill debate. Firstly, I want to talk about the issue of harmonisation of the Marriages Bill. This consolidation has assisted us women and the Zimbabwean population because it has been aligned to the new Constitution. So, that is the first thing I want to say. Let me advise this House that as a Member of Parliament for Harare
West Constituency, we were also able to hold consultations in Harare West informing them what the Bill talks about and they also gave their opinions to their Member of Parliament. So, I will also talk about some of the issues that were expressed by the people in Harare West Constituency.
Firstly, there was an issue about child marriages which was welcomed by Harare West Constituency because when we look at the issue of child marriages, we hear no one has the right to marry a child who is under the age of 18. It is something that was welcomed by the Harare West Constituency and other people in Zimbabwe because this had become a menace and was violating the rights of the girl child, especially those who wanted to go to university. The other issue was on consent to sexual activity. The Bill does not address the issue of age of consent to sexual activity. My request is that if this Bill comes back to Parliament, the issue of sexual consent should also be clearly stated.
Thirdly, was the issue of chiefs that chiefs- are now marriage officers. This was welcomed before it was the magistrates and pastors but there were also questions that if the traditional leaders…
THE HON. SPEAKER: Parliamentary procedures say that you are supposed to use one language when debating. If you want to debate in vernacular, stick to vernacular until you finish your debate. You can proceed Hon Member.
*HON. MAMOMBE: Thank you for correcting me Mr. Speaker
Sir. The issue that I was talking about is on traditional leaders as marriage officers which was a welcome development but there were questions on the distance for people to go and register their marriage and also the issue of funding that mostly people do not have money to go to the urban centres to see the magistrate or the pastors. The issue was that once the traditional leaders are accorded this privilege of being marriage officers, is there a payment that will need to be done because if a traditional chief normally charges a goat or a sheep before your case is brought before the court. So that is the question that was raised that if one wants to register a marriage are you not required to produce a goat.
The other issue was of distance. So that issue of distance, will it be addressed since traditional leaders have vast areas to take care of? Furthermore there was the issue of whether the chiefs will be trained in order to be marriage officers. That was one of the issues.
Mr. Speaker Sir, the other issue I want to talk about is that of civil partnerships. Taking from those who debated on Tuesday on this civil partnership issue, my view is that all of us are in agreement that Zimbabweans are against the issue of civil partnerships. We know that this Bill is bringing in the issue of gender balance between men and women but there is also an element of discrimination or denigrating women especially when we look at those who are married under Chapter 5:11.
The residents of Harare West say that if possible, the Minister should remove Clause 40 because it violates the rights of those who are in a civil marriage, Chapter 5:11. For those who want to be in polygamous marriages, they should proceed with their choice but without infringing on the rights and benefits of those in a monogamous marriage.
Lastly Mr. Speaker Sir, it was the issue of HIV and Aids. As this Bill is coming into place, it proposes to decriminalise willful transmission of HIV and AIDS. This issue was welcomed because it affects women the most, especially the young women. They are the ones who are affected by this matter. This Bill is being welcomed by the people because it will reduce the number of women at Chikurubi Prison since they are the ones arrested for having willfully transmitted the disease to their partners. Because of our biological make up, we are ones who give birth and mostly the disease is discovered in women, hence they are affected and end up imprisoned. It is an issue that was welcomed by the women. There are women at Chikurubi Female
Section that are there because of this issue.
There are also issues that were raised by the residents that this Bill is harmonising marriages in Zimbabwe but there are certain things that are not in the Bill. Amongst other things that were mentioned by the residents was that in the event of death, who then takes inheritance? The inheritance issue was not addressed by the Bill. The issue of inheritance was of importance and concern to the residence because it is not clear. If we say a Bill is coming in to harmonise our marriage laws, it should then bring all Acts that address the issue of marriage so that whoever wants to know about our marriage laws can use one Act than to have different Acts.
There was also the issue of the rights of men and women bordering on who has the right to custody of children in the event that they divorce. The issue of guardianship is not addressed in the Bill. Our request Mr. Speaker is that the issue of guardianship should be addressed in the Marriage Bill. It should be in the Bill so that you do not need to refer to other Acts.
Lastly Mr. Speaker, is the issue that the Bill does not clearly explain the issue of child marriages. The issue should be clear. The clause is there but it is not clear when we say child marriage, what exactly we are referring to. I am saying this in cognisance of the SADC Model Law on Child Marriages and protecting those in marriage as mentioned by Hon. Kwaramba on Tuesday. So we want this to be clear in the Bill and also on what happens if a parent marries off a child below the age of 18. We do not want just one clause but we want it to be comprehensive and show that we have the political will to address the issue of child marriages. With these words Mr. Speaker, this is my view in terms of the Marriages Bill. I thank you.
*HON. P. ZHOU: Thank you Mr. Speaker. The Marriages Bill that is before us in this House, we had public consultations and people said a lot. I want to mention some of the things that were said including my opinion. What I want to dwell on is on Section 79 which criminalises HIV and AIDS. This is an Act that is there; instead of protecting people it ended up being a challenge to a number of people.
As we went around, we heard a lot of things. I was born and named Perseverance Mlambo but now I am called Perseverance Zhou. My brother Mlambo Kaiboni was hurt by this Bill. As I speak, I am in pain. Yes, he was HIV positive but he agreed with his girlfriend that they would use protection. The woman was not found to be HIV negative but this Act was used against my brother and he got arrested. Instead of dying of HIV and AIDS, he died from stress because of this Act. The Act should be put in place to protect people but it was negatively used by those who are clever. Madam Speaker Maam, it is painful. As we went round, it was clearly reflected that people are in pain. My brother died because of this Criminal Codification Act, especially in the courts, people use it in a negative manner, yet there was mutual consent for them to engage in sexual activity. He died in prison. As we held our consultations, we realised that it affects many people. There are women who were affected because when they go to clinic when they are pregnant, they are tested and they come and inform their husbands. They are accused of transmitting the disease and the men rushes to go and report.
The HIV that is being talked about here which they say the wife has transmitted to them; is it red, green or purple? I am happy that people have said it should be decriminalised. It should not even be considered. It should be removed from the Marriage Bill. You can put it in other Acts where it fits because in the Marriage Bill, we are looking at the issue of marriage that people should engage in sex freely. So it should be removed. Even when the Act is in place, it does not stop the spread of HIV and AIDS. People are now scared that once they mention that they are HIV positive. They will be prosecuted. They do not say out their results and they will never disclose their status. It was also realised that Zimbabwe is the one that criminalises sexual activity when one is HIV positive yet our Constitution says that we should not discriminate but we are discriminating against people with HIV/AIDS.
My request Madam Speaker is that this clause be removed.
The other thing that I want to talk about is on this Marriage Bill, some people were requesting that it should be more like a Bible. A
Bible has so many chapters, New Testament and Old Testament, it is all in the Bible. Once you open it, all is well but now the Acts pertaining to marriage are all over. You will find another Act that side, another one there, so we need to pool all the Acts relating to marriage to come under the Marriages Bills and be harmonised. With these few words, my request is that the Marriage Bill should proceed and be adopted. I thank you.
*HON. CHIBAGU: Thank you Madam Speaker. I also want to add a few words concerning the Marriage Bill. I feel free to be debating this in this House because all the challenges that we were facing were because we could not speak freely. I want to say congratulations to the children of Zimbabwe. Let us learn that once we pass the Marriages
Bill, we should adhere to it in this House. My request is that Madam Speaker, once we have agreed in this House, we need to call doctors and we need to undergo testing so that we prove to be straight forward people. We want to be honest because we may want to talk and voice our opinions. We need to know the status of one another. There is nothing wrong in being HIV positive. If I say can we all raise our hands, we are all able bodied and we need to ensure that we do not spread HIV and AIDS. HIV and AIDS is spread because people want money. Let us speak as one in Zimbabwe. It is something that should be addressed. We should all undergo testing so that we know the reason why we came to this House. We came here for development. If we are given money, it should be used in a proper way. We should not be involved in extramarital affairs, not looking after our wives and husbands at home. As children of Zimbabwe, I know you are clever. Once you learn something, you are able to execute. Even those who do it, be it ministries or whoever, we should act like citizens of Zimbabwe and know that we are here for development. It might be in the Defence Forces, Police or other departments, we should be united and know why we are serving those ministries without the fear that I am under a lot of problems. I thank you.
*HON. ZENGEYA: Thank you Madam Speaker. I also want to air my views in support of what other women have said concerning the Marriages Bill. The issue that I want to talk about is for example, a man can have a civil marriage [Cap 5:11 with his wife and there are marital problems and the man decides to move away and marries a young woman outside. He pays lobola for that woman and stays with her as his wife. He can live with that woman for maybe 10 or 20 years. He is married because he paid pride prize. At one time, the man goes to the rural area and when he dies, the second woman cannot inherit anything because the court recognises chapter 5:11 even though the children are beneficiaries. Because this woman looked after the husband, she should also be able to inherit. I hope the Minister can consider that and see how these women can be protected to ensure that they also inherit. I want to thank you Madam Speaker.
+HON. N. NDLOVU: Thank you Madam Speaker. I would like to add my voice to the Marriages Bill debate. We had consultations and the people were not happy with the issue of child marriages. People are saying, people who cause under aged children to marry should be arrested and prosecuted. The people want to know when a child should engage in sex. The Constitution says a person can marry at 18. People are saying there should be a law of consent on sex. Let us consolidate
this.
On civil partnerships, our mothers used to stay with our fathers without any lobola having been paid. Now people are requesting that we should look at how long a person should stay in a marriage without any lobola having been paid. In these civil partnerships, if a person dies in such a marriage, there is no inheritance, the relatives will take all the property because there will be a civil marriage. The Constitution is silent on that. That matter should be examined. There should be a stipulated period for such a marriage so that it becomes a solemnised marriage.
On the inheritance law, it should be consolidated to the Marriages Bill so that it becomes one so that if you are married, you should know that you inherit the property. There are two laws, these laws should be aligned or consolidated. There are also children born out of wedlock; when a husband dies first, those children cannot access or get anything but they should inherit from their father’s estate. I thank you.
*HON. SHAVA: Thank you Madam Speaker Ma’am. I also want
to add a few words concerning the Bill that is before us. Madam
Speaker Ma’am, I want to talk about two issues that I considered as we travelled during consultations. Firstly, I would like to talk on the issue of the willful transmission of HIV/AIDS. Madam Speaker, in areas where we went for consultations, most people did not agree on the law that criminalises the spread of HIV/AIDS. The challenge here that is faced by most women, especially those in rural areas is that they are oppressed by their husbands. Even if HIV/AIDS is transmitted by their husbands, they have no choice but to accept.
Madam Speaker, my request is that the Bill should consider women because when women are pregnant, they are forced to undergo HIV/AIDS testing. If a woman is HIV/AIDS positive and informs her husband, the husband rushes off to the police and makes sure that the wife is arrested. I think this law must be addressed in order to protect women. When the case is presented in court, the women cannot defend themselves as they have no legal representation. Madam Speaker, still on the issue of HIV/AIDS, I request that there are concerns that should be addressed such as; if a woman is HIV positive, a man should be arrested because a woman cannot get HIV/AIDS unless she consents to sex with a man. So, the man should be arrested and not the woman.
Madam Speaker Ma’am, the second issue is on child marriages. In
the Bill, there is a section that says children under 16 years can consent to sex but cannot be married and they can only get married at 18 years of age. Most people were not happy with this Section and they said that once we accept this, we will have a lot of unwanted pregnancies and children, even if they become HIV positive, you cannot ask them anything since the law allows them to consent to sex at that age. So, people were saying that the section must be removed and that the age of consent to sex should be aligned to the age of marriage which is 18.
With these few words, I want to thank you Madam Speaker Ma’am.
*HON. NYERE: Thank you Madam Speaker Ma’am. I also want
to add a few words about what we gathered from the consultations. A lot has already been said. When we went on consultations on the Marriages Bill, we did not make enough consultations. There were areas which were not consulted. We have traditional chiefs whom we did not meet and were not aware. My request is that, as we go on public hearings, areas with traditional leaders and leadership who do not know about the Marriages Bill, if they are not aware, you cannot go and tell them that they are now marriage officers. You cannot approach a chief to register a marriage because they are not in the picture of what is happening. My request is that the chiefs in the whole nation must be trained and made aware that they now have powers to register marriages as marriage officers within their jurisdiction. That is my opinion. I think there is a lot of awareness that needs to be done since most areas were not accessible. I thank you
HON. MUCHNJE: I want to add to the debate on Marriages Bill, it is a Bill that affects everyone, men, women and children. Firstly, I want to talk about the child marriages. Once you say a child can consent to sex at 16 but is only allowed to marry at 18, then there is a challenge. Why then should they engage in sexual activities at 16 years of age? If they are not yet of marriageable age, then they should desist from sexual activity because what we know is that when a man and a woman engage in sexual activity, the end result would be a child. So if we say a youth can engage in sexual activity whilst not yet ready for marriage, it will lead to teenage pregnancies and abortions. However, by the time they finally get married they would have lost their moral values. So the age of 16 for consent to sexual activity must be removed.
On civil partnerships; these already exist, some of them have come of age. Many people are in civil partnership because they were chased away from home by parents once they became pregnant. If a woman is chased away, the man would agree to stay with the woman without paying any bride price. In our African culture, if a child has children from different men, she will not be recognised as a person with moral values.
However, if men can now have other relationships outside marriage, it becomes a challenge. This clause will make marriage of
Chapter 5; 11 of no value, hence this clause has to be looked at closely.
Most men nowadays do not have money, they are not working and then they meet an Hon. Member who is working and has a lot of businesses, a man will elope to these rich women who sometimes have their own children already. So, the two can have chapter 5: 11 and in the event that the woman dies, the children of this woman are disadvantaged because they cannot get anything since the man is the spouse who at the same time is eligible for inheritance. So, sometimes women are also taken advantage of by men who are poor.
The Marriages Bill should bring all legislation pertaining to marriages under one umbrella, it should not just talk about marriage without looking at the issue of inheritance and also access to what is attained in a marriage. Our request is that the Minister should look into this Bill; he should consider all those issues that if a woman has farms or companies and all those things, her children should benefit in the event of the dissolution of the marriage through death. I get pained because people think that women are the ones who cheat but there are also men who do the same thing. I thank you.
*HON. MANGORA: Thank you Madam Speaker. I also want to
add my voice and contribute on what came out of the consultations as we went round with the Gender Committee on the Marriage Bill. A lot of people raised concerns over Section 40 of the Marriages Bill. They suggested that people should have a choice as to what marriage they want, whether a monogamous or a polygamous marriage. Some were saying the proposed law was contradicting itself in that chapter 5: 11 marriage allows one man and one woman yet this new Bill talks of civil partnerships.
The age of consent to sex and age of marriage was also a point of debate. The public said that this two year gap between age of consent and marriageable age leads to a lot of things. A child can get sexually transmitted diseases and moral values are eroded. Therefore, the public suggested alignment of the two.
Women were also concerned about the criminalization of HIV/AIDS infection. This affects women most because as women we give birth at the clinics where our health is constantly checked.
Therefore, that is where most women discover their HIV/AIDS status and once they disclose to their husbands they would be fights in the homes. Some of these men keep their HIV/AIDS status a secret and take their medication at work places. So the women were saying HIV/AIDS transmission must be decriminalized.
Most women raised concerns on the issue of inheritance; they were saying a man can marry under Chapter 5: 11 and later on move to another wife. So in the event of the death of the man, you will see children from the other wives coming through. So the Marriages Bill should also include issues to do with inheritance that affect marriages. In the event of divorce, it is the parents who would have challenges and not the children, hence the children should not suffer.
There are a lot of cases of elderly women who were married probably during the liberation struggle. Probably, they eloped and started staying together and up to date, their marriages are not registered. So today if my father dies, my mother would not be considered as the surviving spouse. Therefore, the request was that the Bill should also look into that issue. So, there is need to come up with a marriage that recognises and protects such people.
HON. BITI: Madam Speaker Ma’am, I thank you very much for
recognising me in this important debate in respect of the Marriage Bill [H. B. 7, 2019]. This is an area of the law that I have worked with for many years in my life as a lawyer. The two cases that are in the report by the Portfolio Committee on Justice, Legal and Parliamentary Affairs on this particular case, the case of Mudzuri and the case of Anne Mutsa
Madzara versus Stanbic Bank, I actually happened to have argued them.
Madam Speaker Ma’am, the Constitution was passed in 2013 so this is the first attempt to harmonise our marriage laws to the
Constitution of Zimbabwe. There are many provisions in the
Constitution that speak to marriage, women and children. These include Section 81, Section 84 of the Constitution of Zimbabwe. My respectful submission is that we need to harmonise all these laws. We need to consolidate all these laws in one Bill. The present situation Madam
Speaker Ma’am is that only lawyers or NGOs will be able to have the capacity of knowing what to look for and where to look for and that is not good. We need one consolidated marriage and children’s law that will deal with the following issues;
- The issue of marriage.
- The property regime of marriage and it is something that I am going to speak about.
- The rights of children.
- Succession issues, what happens when a partner dies, what happens when a spouse dies, what happens when a husband dies and when the wife dies.
So I would submit Madam Speaker Ma’am that we need a complete and total harmonisation of the marriage. A lot of members have spoken about the protection of children to prevent child marriages. That is very commendable. My only regret is that the judgement and decision in the matter or Loveness Mudzuru and Ruvimbo Tsopodzi which outlawed child marriages was handed down by the Constitutional Court, the current Chief Justice when he was Deputy Chief Justice on the 16th January, 2016. We are now in 2020, that means we have wasted four years in respect of which sugar daddies and other men have been marrying children for four years.
Madam Speaker, my submission and plea is that once the Constitutional Court has made a judgement that outlaws a certain piece of legislation, then the Executive and Parliament must act quickly to remedy what the Constitutional Court will have spoken of. Section 81 of the Constitution defines a child as anyone up to the age of 18 and below. Section 81 then gives a lot of protection to children. They have an obligation and rights to go to school, shelter and clean water. They also have an obligation and a right to be protected of their social being and their dignity. If we have declared that a child cannot be married before the age of 18, surely we must also protect that child and raise the age of sexual consent to 18 – [HON. MEMBERS: Hear, hear.] – So we have a contradiction in the law. The Criminal Procedure and Evidence
Act says the age of consent is 16, in fact it is worse than that. There is a rebuttable presumption that a child at 14 can have sex. So if a girl child is big, a man can actually go before a criminal court and say I thought she was 22 years old- that is criminal. Even if she is big, she is still a child and we have to protect her – [HON. MEMBERS: Hear, hear.] –
So my submission Madam Speaker Ma’am is that we need to raise the age of sexual consent to 18. If a child who is 17 says I want to have sex we have to tell her to wait until she is 18 because we have to protect children – [HON. WADYAJENA: How do you do that?] – The law can
provide that.
In South Africa Madam Speaker Ma’am and in many jurisdictions, they have got a law that says the age of sexual consent is 18, but they then have a category now where the law recognises what is called Romeo and Juliet love. So, you are 17 and you fall in love. The mischief that we are trying to deal with is a man who is 60, 70, 24 or 28 years going after this young child who is 16. So in South Africa and in other jurisdictions, they have provided for a Romeo and Juliet love, 17, 18 and 19 years. So there you will not have the same penalties. If a 19 year old sleeps with the 17 year old, the law treats that differently from when an 84 year old sugar daddy and a 40 year Member of Parliament sleeps with a 16 year old. Our law can provide for that but the bottom line Madam Speaker Ma’am is that we need to raise the age of sexual consent to the age of 18.
Madam Speaker Ma’am I have a problem with Section 5 of the Bill. We need to grab the bull by the horns. So, the Bill still creates the regime of unregistered customary law unions in Section 16. So the Bill still maintains a dual system of marriage unregistered customary law unions and civil marriages. Madam Speaker, we are still maintaining the colonial mindset of superiorising a marriage in terms of Chapter 5:11 or what is called a civil marriage.
My submission is that we should have created two marriages in Section 5 that is a monogamous marriage which is the equivalent of the old Section 5.11 and a polygamous marriage which is equivalent of a marriage in terms of the African Marriages Act. There are all marriages, the only difference will be on the consequences on proprietary rights, because in the polygamous situation, if a man has got ten wives then those ten wives have got a right to one’s property but it terms of the status of the marriage, each one those women, whether there are ten married by Mr. Dotito under the African Marriages Act they must have the same right as Ms Silvia Chirau married under Chapter 5.11. So I think the continued demarcation between Section 16 and Section 5 is unhappy one.
Let me now come to Section 40. Madam Speaker, we should not pretend that our people are engaged in non marriage associations which the Bill describes as civil partnerships. We live in a patriarchal society, a society which gives advantages to men. We live in a country where there are economic challenges. So, whether we like it or not, no matter how much we preach and from where we preach people are going to be engaged in civil partnerships. Many of these civil partnerships do not come from what you would call a basis tainted with turpitude - hakusi kuhuraba. So two children can meet at university Madam Speaker and start staying together, do not marry but staying together and actually have children and acquire property. That is a civil partnership. We need to recognise it. In the present law, as it stands without this Bill, there is something in our law called the doctrine of tacit universal partnership. Under the doctrine of tacit universal partnership, a woman or man is entitled to go to court and say even though we were not married we stayed together as husband and wife and we acquired property, therefore we are entitled to equal distribution of this property.
In England in the 1960s, there was a baby boom and it was an age of liberalism. People stayed together and entered into these civil partnerships. The problem with civil partnership was that after staying together for 20 years the man would walk out now and often times he has got more money. In 1968, in a famous case called Petit vs Petit, Lord Denin came up with the concept of a constructive trust – here we have got a tacit universal partnership. In England, they came up with a doctrine of constructive trust where a man and a woman not in a marriage stayed together; they are deemed to be in a trust. When that trust collapses they must divide equally the proceeds from that trust, children, property and so forth.
What Section 40 does is to recognise that whether we like it or not munhu wenyama munhu wenyama. Achatogara neumwe munhu whether pane rudo kana kuti pane chipfambi. If we do not recognise that people are going to stay together, there are going to be serious consequences particularly against the woman because the woman will get into a relationship, give it all to the husband or man. Madam Speaker, you will know as a woman that women are more faithful than men. By their very nature, women are more monogamous than men. By their very nature, men are polygamous vanenge zvikutu zvinoenda pese pese. For that reason, we need to protect women. Therefore, foolishly or with love, if you go and stay with someone’s else daughter and you build a life with her, there must be matrimonial consequences even though you do not have the legal heading or label of a marriage. There has to be matrimonial consequences.
I disagree Madam Speaker with the recommendation of the report that we should scrap Section 40 in its entirety. With great respect we should not. What we should scrap is Section 40 (5). It reads as follows: -
“a civil partnership exists notwithstanding that one or both of the persons are legally married to someone else or are in another civil partnership”. This is what we should scrap because we should still protect the sacrosanctity of the marriage. The Constitution protects that.
The Constitution protects the sacrosanctity of the marriage. If I am John Chibadura, I decide to meet Mary in Dotito and we decide to have a marriage in terms of Chapter 5:11, the law should protect that institution. That institution notwithstanding that ticharasika apa, is an undertaking that I will never associate with another man or union. For the good of this country and society we should protect that union.
What we need to say is that there shall be a civil partnership but a civil partnership does not apply where you have got a monogamous relationship. However, that does not mean that a woman who has been a victim of an errand husband who could not feed what his wife was feeding him and he decided to eat by the next door, the law should still say that woman can go to court and make an application to say ndipeiwo mapoto angu nemotokari nemba yekuBudiriro. In other words, there should still be proprietary consequences but that should not affect the integrity of the monogamous civil union or civil marriages.
I want to come to the issue of property. Women are suffering from four situations. The first one; as you know only 26% of women in Zimbabwe own immovable property. It does not matter whether you stay in Borrowdale or Umwinsidale, the property invariably is registered in the name of the husband. In the case of Anne Mutsa Madzara vs Stanbic Bank and others, Mrs. Madzara actually bought that house in Belvedere but the house was registered in the name of her husband. Then the bank went and sold the house in execution.
HON. MAMOMBE: I move that the Hon. Member’s time be
extended by 10 minutes.
HON. TARUSENGA: I second.
HON. BITI: That is the first situation. Husbands tend to own property because they work and they have a salary. Mortgages are registered in their name. When it comes to divorce the woman is actually better off because a divorce, it does not matter whether your name is on the title deed or not. Most of our people do not suffer a divorce, they are now suffering during the duration of the marriage because husbands are selling houses behind their wives back.
Husbands are getting into debt as in the Madzara case. The law should be that all marriages in Zimbabwe are in community of property. We should therefore repeal the 1929 Matrimonial Properties Act and it is unconstitutional. The Matrimonial Properties Act is unconstitutional because it says what the husband owns belongs to the husband. What the wife owns belongs to the husband but we have a Constitution including this Bill which says everything that happens in a marriage, the man and the woman are equal. We need to make all marriages to be in community of property. It does not matter if I am a husband, I have money or a business and my wife is a domestic engineer, she stays at home. We own that property together without discrimination.
The second area where women are suffering are women in the rural areas. Women in the rural areas are married in terms of unregistered customary law union. Munhu anongobvisa pfuma yake. Mazuva ano havachambobvisa kana mbudzi chaiyo. I have got an aunt who stayed together with my uncle for 25 years. Then my uncle found another young woman from the same village in Mazana Village, Murehwa West. My aunt was chased away from that house with four pots and four cattle but she built that home and it is a very nice home.
We need a property regime that says even for a rural home let us value it and you give me my value. If you cannot give me money, iwewe chibva pamusha pacho. This is happening in Malawi Madam Speaker. The Malawian Supreme Court has accepted a judgment that says it does not matter that the woman has gone into the husband’s village. When it comes to distribution of matrimonial property that rural home can be shared. Kana uri mhofu unobva pamba pamhofu, mai mhofu vosara ipapo nekuti mai mhofu vakakubarira vana. Madam Speaker, we need to revisit that. The third area Madam Speaker, is the area of land reform. We have two judgements that have confirmed that land given in respect of the Land Reform Programme does not belong to the husband or wife; it belongs to the State. Therefore, it cannot be subject to matrimonial distribution.
Madam Speaker, we have had the land reform for over 20 years. So what happens is a wife is married and often times the husband works in Harare or Bulawayo, so it is the wife who builds that farm, works so hard to buy centre pivots and build barns for the tobacco farm. However, when it comes to divorce, she is told this property cannot be distributed and she is chased away like a dog. Two judgements Madam Speaker, have confirmed this wrong position; the case of Chombo vs
Chombo and the case of Chiwenga vs Chiwenga. That is wrong Madam Speaker Maam. You can distribute lease rights. You know that all these township houses belong to the city council but when there is a divorce, you can distribute the rights in that lease agreement. We need to distribute the offer rights in an offer letter so that we protect women.
Madam Speaker, this must be contained in the Marriages Act.
In summary Madam Speaker, my submission is that let us not do a piece-meal harmonisation; let us do a consolidated harmonisation. I just want to talk about children. Section 3 of the Guardianship of Minors Act still says 40 years after independence that guardianship resides in a man. Madam Speaker, yourself as a woman and all the women here cannot get a birth certificate or passport for your child unless the husband is there. The problem is that the majority of children that are actually being born in Zimbabwe are not being born inside marriage; they are born outside marriage. So, the sperm donor or the one who gave you the child would have run away anyway. Where do you find him because he has run away from his responsibility? Because we now have a Constitution that says men and women are equal guardianship should actually remain with the mother. Even if the mother has 40 children, she loves them all but if a husband goes to “mainini John, vana wamainini John ndivo wakosha and she goes to mainini Sylvia wamainini Sylvia ndevake.” That is not fair Madam Speaker. Let guardianship resides with the mother.
In short Madam Speaker, these are issues that are filling the courts right now as I am talking to you. The busiest court in Zimbabwe is actually the divorce court. We have to make the lives of women easier and better and a starting point is to have a comprehensive marriage law that covers succession, property rights and the rights of children. I thank you very much Madam Speaker.
HON. NDUNA: I move that the debate do now adjourn Madam
Speaker.
HON. D. SIBANDA: I second.
Motion put and agreed to.
Debate to resume: Tuesday, 18th February, 2020.
MOTION
BUSINESS OF THE HOUSE
HON. MUTAMBISI: Thank you Madam Speaker. I move that
Orders of the Day, Numbers 3 to 9 on today’s Order Paper be stood
over until Order of the Day, Number 10 has been disposed of.
HON. D. SIBANDA: I second.
Motion put and agreed to.
MOTION
RESTORATION OF THE MOTION ON ABOLITION OF DEATH
PENALTY ON THE ORDER PAPER
HON. D. SIBANDA: Madam Speaker, I move that the motion on death penalty which was superseded by the end of the First Session on the Ninth Parliament be restored on the Order Paper in terms of Standing Order Number 73.
HON. NDUNA: I second.
Motion put and agreed to.
On the motion of THE MINISTER OF STATE FOR
MASHONALAND WEST PROVINCE (HON. M. MLISWA), the
House adjourned at Eighteen Minutes to Four o’clock p.m. until Tuesday 18th February, 2020.