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NATIONAL ASSEMBLY HANSARD 26 MAY 2020 46 39
PARLIAMENT OF ZIMBABWE
Tuesday, 26th May, 2020
The National Assembly met at a Quarter-past Two O’clock p.m.
(THE HON. SPEAKER in the Chair)
ANNOUNCEMENT BY THE HON. SPEAKER
SITTING ARRANGEMENTS IN THE CHAMBER
THE HON. SPEAKER: Order. I have one announcement. In pursuance of the resolution of the Committee on Standing Rules and
Orders allowing Parliament to conduct its business during the COVID 19 lockdown period, only a limited number of Hon. Members will be allowed to sit in the Chamber. The rest of the Hon. Members will follow proceedings from the Government Caucus, Senate Chamber, courtyard and the dining room on their tablets through a link that has been sent to their emails by the ICT department. This has been necessitated by the requirement to maintain social distancing by the
Hon. Members. Hon. Members wishing to contribute to the debates should submit their names to their respective Whips so that they may take turns to come into the chamber.
+HON. MATHE: Thank you Mr. Speaker Sir. I rise on a point of privilege Mr. Speaker Sir. On my behalf and Nkayi South
Constituency, I would want to thank the President of Zimbabwe, His
Excellency, Hon. E.D. Mnangagwa for leading the painful war against COVID 19. In the lockdowns that we have gone through especially the first one which lasted for the past three weeks, we have noticed that in Zimbabwe, we have managed not to spread the pandemic. The second phase which lasted for two weeks this and we are in the third phase as we speak, we have noticed that the number of people who have been infected are few and those who have been infected are recovering. I would like to thank the President of Zimbabwe for taking a stance in ensuring that the people of Zimbabwe protect themselves by strictly adhering to lockdown regulations. I thank you.
HON. T. MLISWA: Hon. Speaker, you will appreciate that we as Parliamentarians are here on tax payers’ money, and to show that we maintain our mandate of representation and oversight and also legislative in that way.
Hon. Mutseyami was recalled by the MDC T as the Chief Whip, I do not know if they have yet appointed one, but it is also important that for Parliament to be effective and to be a Parliament. If you could implore them to have a Chief Whip and to also get their Members to come to Parliament, because we certainly expect them to attend to Parliament without fail. They have resources from tax payers’ money which and cars which allows them to discharge their duties, and I do not know why they are here. A continuation like this will render this House useless. As much as I am independent and I am strong, I do not think I will be able to deal with all the Ministers.
Tomorrow we have got question time and you know that
Members of the ruling party, government party are whipped. It is probably even better not to even have it because they will never ask any questions. They are constantly whipped, no wonder why they have somebody called a chief whip to just whip them. You know that for a long time they are not capable of asking questions to their Ministers. So I do not know what sort of question time we are going to have tomorrow. I am saying this because tomorrow is very important because a lot of events have happened while we have been away and we expect Ministers to be here to be asked questions.
I see probably four Members here who ask questions, I do not know whether we will then be given the go ahead to ask as many questions as we want, breaking the rules and so forth. I would want to understand that because I seem to be the only opposition which is here. The ruling party is not opposition and they have never been the opposition. So it is also important for the ruling party not to celebrate the demise of the opposition, but to focus on their Manifesto that they promised the people to deliver at the end of the day. That is my point of order, Mr. Speaker Sir.
THE HON. SPEAKER: Your cause of concern as far tax payers’ money is concerned is correct and the missing Members of Parliament need not to be reminded that they took an oath of office here in the National Assembly, which obligates them to respect the Constitution and the laws of Zimbabwe. If they so decide not to because of certain happenings in the history of their parties, it is not the responsibility of the Chair to persuade any Member of Parliament to come into the House. We have Standing Rules and when these are violated; at some point, the Standing Rules and Orders shall be invoked accordingly, and without fear or favour.
As to your observation that you may be the lone opposition Member of Parliament and therefore the Hon. Members from the ruling party may not ask substantial questions, why not wait until this happens tomorrow. To that extent, if your prediction becomes reality, you shall be vindicated but I doubt, because they have the responsibility to have the Executive to account in terms of Section 107 (2) of the Constitution. If they do not ask relevant questions, they will be guilty of violating that section which I doubt they will fail to follow.
On the question of chief whip, again, it is not the responsibility of the Chair to ask a party or parties to appoint their chief whips. It is their responsibility. Again, the Standing Orders are very clear in terms of Standing Order Number 13 states to have a chief whip from the main opposition party. They are absent, unduly, therefore, the Standing Orders, again, will apply according. Parliament processes will continue nonetheless.
ADOPTION OF 2020 EDITION OF STANDING ORDERS OF
THE NATIONAL ASSEMBLY
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move the
motion standing in my name that:
WHEREAS section 139 of the Constitution of Zimbabwe Amendment Act (No.20) provides that the proceedings of the Senate and National Assembly are regulated by rules known as Standing Orders, which are made by the Houses individually or jointly on the recommendation of the Committee on Standing Rules and Orders.
NOW THEREFORE, in terms of the Constitution, this House
resolves that the 2020 edition of the Standing Orders of the National Assembly be adopted.
Motion put and agreed to.
MARRIAGES BILL [H. B. 7, 2019]
Second Order read: Committee Stage: Marriages Bill [H. B. 7,
House in Committee.
Short Title put and agreed to.
Clauses 1 to 8 put and agreed to.
On Clause 9;
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move the
amendment standing in my name that we delete Clause 9 on page 6 of the Bill and substitute the following clauses (and renumber all subsequent clauses accordingly)-
“9 Chiefs as marriage officers for district
- Any Chief, by virtue of his or her office and so long as he or she holds such office, may be designated as a marriage officer in customary law marriages for the district in which he or she holds office by the Minister at the request of
such Chief and in accordance with such conditions as the
Minister may prescribe.
- The Registrar shall keep a register in the prescribed manner of all Chiefs designated by the Minister as marriage officers in terms of this section”.
HON. MISIHAIRABWI-MUSHONGA: It is just an issue of
clarification because on my Bill, I do not have the original 8. In your amendment, are you proposing that chiefs will not be marriage officers with regards to civil marriages and will be limited to be marriage officers around customary marriage? I have a problem with that because it defeats your earlier provision that seeks to equalise both customary and civil marriages. I thank you.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): In the Bill,
we had various categories of marriage officers and chiefs, even in the original format. We had not included them specifically in the manner that we have done as marriage officers for customary marriages. We are saying by the nature of the marriage, chiefs are best suited to solemnise the customary marriages. We have indicated that if they satisfy the requirements, then they become marriage officers. We took into account the nature of the marriage that they are going to solemnise and say it has its specific requirements according to our customs and dictates.
HON. MISIHAIRABWI-MUSHONGA: Then I really have an
issue because if we do that, we have not dealt with the issue around equalisation. If a woman is in a rural community and the two want a chief to solemnise their marriage as a civil marriage, I do not see why that is a problem because a church Minister in the same area is allowed or is given the right to be a marriage officer. They have always been marriage officers. By the mere fact that you are now saying you as chiefs are only good enough for the traditional or customary marriage; you are in fact beginning to create a difference between the marriages. If you were going to say there are certain things or requirements around the civil marriage that you think chiefs have no capacity to do, then indicate what it is that we need to capacitate them. For some of us, we want to make it easier for women to access marriage officers and all of a sudden you are now saying if you are in a rural community, the only marriage that you are able to get is a customary marriage – you are now forcing me to enter into that marriage yet I want a civil marriage. I do not see why that is particularly right in your amendment.
If we are making the marriage officers, let them be equal marriage officers – chief or no chief.
HON. ZIYAMBI: Hon. Chair, not every Pastor is a marriage officer. You have to satisfy certain requirements for you to end up being a marriage officer in terms of the civil marriages but we are saying broadly speaking, there is nothing that can bar a chief to become a marriage officer in terms of customary law because they are the custodians of the very customs and marriages that we want to solemnise. Elsewhere in the Bill, there is nothing that stops me to appoint anyone a marriage officer if they satisfy certain requirements.
You must also be aware that our marriages are recognised everywhere else. There are certain conditions that have to be satisfied before you can be a marriage officer for all marriages. What we are saying is – as a general rule, every chief is a marriage officer in terms of customary marriages but not every priest or pastor is a marriage officer in terms of civil except magistrates because of the nature of their training. We cannot because there are certain things that we have to look into and if they are satisfied, then they can be marriage officers.
HON. T. MLISWA: I think this gives us an opportunity to come back home and do what is good for our people. We cannot continuously be swamped with cultures and traditions which are not ours. The chiefs are recognised in the Constitution and by virtue of being recognised in the Constitution, you have got to give them the power that goes with that. You cannot recognise them in the Constitution and then say they cannot do that.
I implore the Minister to tell us what qualifies or disqualifies one to become a marriage officer or not to become a marriage officer and so forth because if we do not have that, it is prone to corruption. This Parliament must sit down and go through every point because at the end of the day, it is prone to corruption. Members of Parliament who are elected by people can also do the same task because we are trusted by the people more than anybody else but we are looked down upon for a very long time. My colleague members, we have the trust of the people hence we must also be given the power that goes with it.
You are not creating a situation where there is the elite. There is now unnecessary discrimination at the end of the day. We must be able to ensure that people go where they want to go at the end of the day. It is the same thing as somebody having a car and wanting fuel; blended or unblended. In this country, we are being forced to do what we do not want to. Even the fuel that we buy, we are forced; do not force us on this issue of marriage because it is the matters of the heart, driven by the heart and by feelings.
We trust the chiefs and work with them in whatever we do. During the liberation struggle, they were instrumental together with spirit mediums in leading to where we are today. Why are we now choosing that they must not be involved in this? Our ancestors will be angry with us. We do not want that because the ancestors are already angry with a lot of things. We do not want this. The Minister should just clear this.
HON. TOGAREPI: There are people who are not church members but subscribe to traditional religions. For me to be forced to go to a church so that I get a civil marriage, it will be unfair. I think it is important that the Minister finds a way of improving whatever needs to be improved on our chiefs so that they can allow us to marry through our chiefs than to be forced to do it in the church. Otherwise most of these churches have also presided over so many failed marriages and may close one day. It is very important for our traditions and very important for our communities even if there was to come a time when there are challenges in marriages, chiefs should be there to try to protect those marriages but pastors may have gone. So, I think it is important that we allow our chiefs the same powers that we can give to our pastors. Thank you.
*HON. CHINOTIMBA: As Africans we have a problem because we look down on ourselves as a people. When we talk of marriage officers, we are of the opinion that one must be educated and can speak English. If you look at the history of Parliament, only those who we very educated became Parliamentarians and it was only through a long struggle that even us were able to come into this House.
The main issue here is that because our chiefs are not educated, they therefore do not qualify to be presiding officers over marriages. We should look into this issue to see what qualifications are necessary for one to become a marriage officer, what degree one must possess to qualify to be a presiding officer. If we look at our MPs who are here; some are not educated and some are educated but we are all Commissioners of Oath because we were elected to be Members of Parliament by the people and we are now Commissioners of Oath.
The Minister here knows that we are all Commissioners of Oath here. So the main issue is that our traditional chiefs, whether they cannot write and use their thumb print instead of a signature should be allowed to be marriage officers. We should move away from the mindset that only those who are well educated should be marriage officers.
If you look at the Chinese, they use their own language and do not rely on English as a means of communication. This is what we should do. Our traditional chiefs should be allowed to be marriage officers. We should value our own tradition and not that of the white people.
*HON. MAKONYA: I support that chiefs should be given powers to be marriage officers. When we went around as a
Committee holding public hearings on this Bill, people said that they were in support of chiefs being marriage officers because they did not have the money to travel to towns to access marriage officers.
I believe that chiefs know all the people in their respective areas. The advantage of this is that if someone wants to marry an underage girl, the chief is quick to notice and he will refuse to solemnise such a marriage. Therefore, chiefs should be given those powers of being marriage officers. This will also help those women who have not registered their marriages because they do not have the money to go to the courts.
*HON. T. ZHOU: I stand up to add my voice to this debate that chiefs should play the role of marriage officers. It is surprising that we want to remove such a role from our chiefs when they have more important powers such as holding traditional courts that are recognised by law. It therefore is not right to deny them the powers of standing in as marriage officers. I do not think that it is right for Parliament to do such a thing. I thank you.
HON. MATARANYIKA: I want to support the position that our chiefs should be given equal footing with all the other marriage officers because the purpose of this Bill in the first place is to consolidate the marriage laws of Zimbabwe. So what we are basically saying is all the marriages are going to be the same henceforth and what it means is the marriage officers themselves should also be equal otherwise the position being proposed by the Hon. Minister might result in segregation of other marriage officers and I do not think that is what the Constitution says. It might fall foul of Section 56 of the Constitution.
From the new Bill, it is very clear that the intention is to avoid discrimination in terms of the type of marriage, so I would then suggest that there is no type of marriage that should appear more superior than the other marriage. Whilst I understand the argument by the Minister that some chiefs might not be adequately prepared to handle some of the marriages, I think the solution lies with training. There is need to train the chiefs so that they all attain a certain level and that is where we can then avoid the pitfalls that the Minister is trying to avoid. I thank you very much Hon. Chair.
*HON. MADIWA: Thank you Mr. Speaker Sir. I rise to support the point of view that our traditional leaders should be able to solemnise marriages. I was looking at a document done by Women in Law in Southern Africa and they were conducting a research on how women perceived traditional leaders’ courts. Women are quite free to go to the chief and litigate against those who would have offended them and they understand each other. So women were being encouraged to go to such courts.
I support that traditional leaders should solemnise marriages or should be given that power. This helps a lot of marginalised women to be able to understand the procedures and proceedings, because the chief will also be taught what the procedure is regarding solemnisation of marriages. Speaking on behalf of the majority of women who are victims of domestic violence, this will be mitigated because the chiefs who are familiar to them will be dealing with such cases and the subjects will be deterred from doing that because they will be respecting the chief. I thank you.
*HON. P. ZHOU: Thank you very much. I support that chiefs should be given powers that are the same as the ones given to any other marriage officers. They should not be confined to just traditional or customary law because the majority of the chief’s clients are those in the rural areas and a lot of people might be looking down upon them. So it would mean that they would choose to go to church and have their marriages solemnised. If they go to the chief, they may tend to look down upon your marriage certificate. There should be adequate training for traditional leaders, they should be properly trained in terms of how the forms are filled and how they go about solemnising the marriages. Marriage officers should have the same power. I thank you.
*HON. KASHIRI: Thank you Hon. Chair. Let us go deeper and the Minister explains to us. The issue that we have is that the chiefs should be allowed to conduct civil marriages because they already conduct customary marriages. What is the law that we intend to make? What is special about the civil marriage that we do not find in the customary marriage? These are the questions we need to answer. When we have answers then we know how we can come up with the law because at the moment, it is neither here nor there.
+HON. R. MPOFU: Thank you Mr. Speaker Sir. I will speak in Ndebele. Our chiefs are the people who are staying with members of the community and most of the times, there are women who are from rural areas who face problems, especially in their marriages. I also want to say this Mr. Speaker Sir, that there are disabled women who dream of getting married at a certain point in life but in rural areas especially, when one mentions that the bride is disabled, most people will laugh and criticise you.
Mr. Speaker Sir, so many people who are disabled look down on themselves and think that disability takes away their right to get married. If we give powers to our chiefs to be marriage officers for all types of marriages, it will be for a noble cause for these are the people who know the challenges that members of the community face. We also need to take note that we are voted for by the people and chiefs elect themselves in the Chiefs’ Council. I am not sure, maybe because I am blind – but if only our tradition we can have disabled chiefs, it will give even the other disabled persons confidence if they see one of their fellow colleagues being given such a position. Thank you Mr. Speaker Sir.
HON. S. SITHOLE: I support other Hon. Members that our chiefs must be given powers in the Marriage Bill. However, what I am saying to the Minister is that this Marriage Bill to the chief, needs education or a degree. Why can the Minister not arrange to employ secretaries for those chiefs? I thank you.
HON. NGULUVHE: Thank you Mr. Speaker. I think Hon. Members, we seem to be losing track because we seem like we are arguing which is more important in terms of marriages. I think what is important is for us to be very clear, which marriage is recognised and which one is not. At the moment I think people tend to think that if you go traditional, the other one is better than the other. So, what is important for the Minister is to say, all the marriages, which I think it is, are equal. There is no need to quarrel, if one decided to go traditional and the other takes the other one. As it is, it seems like we are saying the chiefs are being denied or whatever is being given by the chiefs is more important than the other one. That is where I think Hon. Members are missing the point. Thank you.
HON. T. MLISWA: On a point of order. We are not missing any point, we are just debating. I thought I could just come in.
HON. MISIHAIRABWI – MUSHONGA: Perhaps a follow
up from Hon. Nguluvhe; I do not think that is the point. The point is that the women should be given the choice or the couples should be given the choice on what marriage they want. If you then limit the chiefs to only do customary, it means you are basically forcing those women or that man to go for the customary marriage because that is the easiest way they are able to access a chief. We are basically saying, allow a chief to be a marriage officer, whether for civil or customary marriages. Do not necessarily say for chiefs in particular you are going to go customary. If you insist, we are going to call for the division of the House.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you
Hon. Chair. I want to put it on record that marriage officers - all of them, apply to the Minister to be designated marriage officers. They undergo certain training before they become marriage officers. This Clause that we are inserting, we are mindful of the different cultural diversities that we have. It simply says that the only impediment that is there is to say a Chief does not become a marriage officer automatically, they then have to apply to the Minister if they want to solemnise the customary marriages within the communities that they stay. Hon Chair, the Minister will then have to designate them but for civil marriages anyone who wants to become a civil marriage officer can apply to the Minister and the requisite qualifications that are needed then apply. So what we cannot do is to say we are going to have unification of civil and customary marriages, that we cannot because our customs are diverse and we will leave it like that.
What this Clause is simply saying is a Chief does not become a marriage officer automatically by virtue of being a Chief, but they make the relevant applications and they are designated. Also, this is to ring fence this institution of marriage because it is important for other issues that may arise out of that marriage and we would not want questions arising as to the legitimacy or otherwise of how it was done. Generally there is nothing that stops a Chief from becoming a marriage officer in terms of civil marriages if they satisfy the requirements that are wanted just like any other person.
Hon. Chair, I indicated that not all pastors are marriage officers.
Hon. Members were worried that we are segregating Chiefs, not all Pastors, the majority of Pastors in fact are not marriage officers. So what we are saying is those that qualify can still apply and this particular Clause that we have inserted is to make it very clear, so as to ensure that we protect the institution of marriage and we do not have somebody waking up and going to the Registrar of Marriages and say I want marriage booklets I am a marriage officer by virtue of me being a Chief. They will have to present a certificate that they have been given by the Minister and they use that to go to the
Registrar of Marriages and there are acquittals that they have to do.
There is need for some controls. Likewise, if you want to be a civil marriage officer, you undergo the requisite trainings so the question of looking down upon Chiefs and culture does not apply. The mischief that we are trying to say is somebody just waking up without any regulations – if you are a marriage officer you are not supposed to demand payment. Those are some of the issues that you have to take into consideration. This Clause is a straightforward Clause that had this impediment to say that the Chiefs before they become marriage officers have to apply to the Minister. It is not mandatory that if you are a Chief you must be a marriage officer. You must read this ‘it says a Chief may be designated if he makes the relevant application’. I will give you a good example. Our Chiefs are allowed to preside over customary laws but the day that they are installed by the Minister of Local Government and Public Works, they do not attend to cases in their communities without applying to the Minister of Justice and Parliamentary Affairs for a certificate to authorise them to preside over those cases. This is exactly what we are trying to say. That requirement does not mean that we have demeaned the Chief to say that you cannot preside over cases before you make the relevant applications so that you are designated officer of the Court by the Minister of Justice, Legal and Parliamentary Affairs.
I think this Clause as it is, it is okay. The other sections they say, if you want to be a marriage officer, you make the relevant applications and if you satisfy those requirements you can become a marriage officer. Unless if Hon. Members are saying because you are a Chief you are exempted from all those issues and then just because you have been installed a Chief you can demand the marriage register, books and you start doing whatever you want. I submit Hon. Chair.
HON. MISIHAIRABWI-MUSHONGA: No, no, Hon.
Minister. Look at your amendment on Clause 9, if what you are telling us is what you want to do, then just take out the customary and say maybe she be the designated as marriage officer in marriages for the district in which he or she holds. When you go beyond, yes, it actually says that you as the Minister will be able to respond to the effect. Why are you particularly saying customary? If what you are saying is true, we will then understand that for customary. If you are a Chief, it is automatic, but in terms of how you are explaining you are saying even if you are a Chief the customary law marriage is not automatic, it has to come by application. So just let them apply to become marriage officers.
To emphasise that point, if we go on to Clause 10, where you are designating heads of embassies as marriage officers. Why is it okay that for heads of embassies you are not necessarily prescribing? So there is a problem around how you are dealing with Chiefs. For this one if you insist, we will divide the House.
THE MINISTER OF JUSTICE LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): This Clause
pertains to customary marriage so I do not know why the Hon. Member wants us to remove reference to customary marriages when it is speaking about that. Clause 10, it is more or less the same. If you look at it, it gives certain conditions that will allow the head of that mission to become a marriage officer. They do not become automatic marriage officers by virtue of being heads, but it is subject to satisfying certain conditions. If you read the Clause it says, ‘every head of an embassy of Zimbabwe in a foreign state, territory, diplomatic or consular mission in a foreign state or territory shall; by virtue for his or her office, and so long as she holds such officer, be a marriage officer whilst on duty at that embassy of mission, and shall exercise the duties of a marriage officer subject to such condition (including the conditions that one of the parties to a proposed marriage must be a Zimbabwean citizen as the Minister shall prescribe).
The Hon. Member is not familiar with drafting. You do not discuss conditions and regulations when you are passing the primary legislation. If you look at the way it is crafted, I am simply saying that a chief because of the diversity of our customs and because of the need to control the proper solemnisation of marriages - the chief then applies to the Minister...
HON. T. MLISWA: On a point of order Hon. Chair. I think the
Minister is misguided when he talks about Members of Parliament not being familiar. Yes, I am not but I am here to learn. So, you who are learned, tell us the qualification. That is why we are defending it. I am stupid and I have not read. That is why I ask in my small brain. You cannot answer because I do not know. You must be able to answer and educate us so that we pass a law understanding very well and that is why we exercise oversight. If we may remind you, ours is to ask every question no matter how silly and it must be answered because we are not all intelligent. Some of us are dull. Let him educate us as a seasoned lawyer to these things which are there - no short-cuts in this game anymore.
HON. ZIYAMBI: That was not a point of order. In terms of drafting all the legislation when we are doing them where regulations or others come...
HON. T. MLISWA: Sorry Hon. Chair, he must rule. He must not tell us things which were not done. Can you tell us what we understand so that we know.
THE TEMPORARY CHAIRPERSON (HON. M.
KHUMALO): Hon. Minister, can you explain? You have not ruled on the procedure of making laws and that is what he wants.
HON. ZIYAMBI: That is what I was trying to explain that it is not necessarily a point of order and he requests you to rule. I am saying when you have legislation and you do not draft legislation and you bring the legislation; the regulations at the same time - when we are saying that subject to conditions that will be prescribed, those conditions will be published to say that this is what is going to happen, but for the Hon. Member to say I should have brought those regulations now, it is not possible.
I am saying there is a condition because of the need to control. I gave an example that marriage officers are given the marriage registers and they are supposed to acquit what they would have done and there are certain conditions. I mentioned one that they are not supposed to charge. All those conditions have to be made familiar with. When they apply, they are made familiar with all these issues and they cannot be in the legislation.
That is why when you look at the legislation, it says subject to conditions that may be prescribed and those conditions can be prescribed. What I cannot do at the moment is to go through all that but Parliament has sight of all the regulations that are published and all the regulations that are gazetted. Our Parliamentary Legal Committee is the one that represents all of us in looking at the statutory instruments, the regulations and if they see anything, they highlight to Parliament and we debate.
I am saying the way it is, it is not fatally defective but it allows for controls and it is not demeaning anyone. For us to suggest that by saying a chief must apply to be a marriage officer we will have demeaned them – even those that are not chiefs, they still apply. In another clause which designates other marriage officers, they still have to apply.
HON. MUNETSI: Mine is just a simple question. Are there some types of marriages that the chiefs cannot execute – because from this statement it looks like they are given just one type of marriage to execute and that is our argument? All we are saying is, let them execute all types of marriages, simple. If you prescribe that they should do customary marriages, then you have limited them. That is our argument.
*HON. CHINOTIMBA: Hon Chairman, we have a very minor
issue. We are not arguing with the Minister as to who should be solemnising these types of marriages. That is all that is at stake. We are simply saying if the chief can solemnise a customary marriage that will involve us members of the Apostolic Faith where we have ten marriages, why should he not do the same with all the other types of marriages where one is going to choose monogamous marriage? Who should solemnise some of these common law marriages and these customary laws?
If you are saying that all marriages can be solemnised by any marriage officer and that all these marriage officers should all come through the Minister, there should not be any discrimination as to who is going to conduct civil marriages and who is going to conduct customary marriages. There should simply be one word saying that if one wants to be a marriage officer, they should go to the Minister and get these guidelines without discriminating or stating whether it is customary marriage officer or a civil marriage officer. It is that wording that we would want removed so that it also enables our chiefs to go through the same procedure, that they can become marriage officers - that is what we are all talking about.
We cannot have such a scenario where we have magistrates or judges becoming marriage officers but I would want this to be inclusive, that once you are a chief and you apply – you can become a marriage office or as long as you meet the set requirements or you meet the criteria of one being a marriage officer, whether I am a headman or a chief, it should simply state whether it is the headman or the village head or the kraal head or it is the chief who solemnises marriages. It should be clearly stated in this Act. We are not arguing with the Minister but we are saying that the Minister should clarify to us so that we are on the same level with him. That is all. If the marriages are the same then solemnisation should be done by anyone.
*HON. CHIKWAMA: Thank you Hon. Chair. I rise Mr.
Chairman to say that when we enact these laws, we enact them laws for the benefit of the people. Once we go to the people and they give us their feedback that they want chiefs to solemnise marriages, we should be able to do just that. They even pointed out that these chiefs need to be trained. So that should be part and parcel of your regulations. Everyone should apply because some of the chiefs may not even know how to apply. If we have such a law that we like and support, we should have a law in place where chiefs solemnise marriages and you then stipulate in the regulations the criteria to be met by the marriage officers. We should not change such matters in this House because during public hearings, all the people were in agreement that chiefs should be trained and that they should become marriage officers. So, put regulations in place to regulate this. We should not be changing these issues.
*HON. MATANGIRA: Thank you very much Hon. Chair. I
want to say that everything said by Members of the august House is in order. In English, if we were to talk about the issue of certification as a result of modernisation, there are some marriages of convenience. What does our law say about it? If you want me to become a citizen of Zimbabwe, I should marry a woman who is Zimbabwean. The
same applies to women who should also be married to a Zimbabwean men.
There are some men and women who want to have marriages of convenience focusing on the issue of inheritance. If you are in America and Australia, it should be clearly spelt out. In Western countries, there is a law that talks about prenuptial agreement. Do we have such a law in this country because we do not want to leave any loopholes? We would want a situation where the prophets and the chiefs solemnise marriages. It depends with the parties to the marriage and it is none of our business. However, our marriages should maintain the moral sovereignty and the dignity of the Zimbabwean people.
The Constitution does not allow people of the same sex to be married but it does not bar people of the same sex to fall in love on the streets. That is a loophole and the law should close all these lacunas that a person wherever they are coming from, if they come to Zimbabwe, marry a Zimbabwean woman and gets citizenship, we need the prenuptial arrangement where people get married in community of property or out of community of property. Are we taking these things into consideration when we deal with the marriage law? I thank you.
*HON. NYABANI: During the pre-colonial era, there were no divorces. If a marriage was solemnised by a chief, should they have any difficulties, they would go back to the chief or the traditional leaders. The traditional leaders would then counsel them. How many people are divorcing because of these educated people who are solemnising the marriages at the courts? In America, how many marriages last since this is modern?
I see that chiefs are not only marriage officers; they are the custodians of our culture. So, if you give authority to the chiefs or traditional leadership, we would have respected our own traditions. We are losing our way by not following our own culture. Even if the marriage certificate is not signed, once the chief has pronounced the two as man and wife; that is it.
HON. T. MLISWA: Thank you Hon. Chair. Section 280 of the Constitution, Chapter 15, clearly talks about the traditional leadership. It talks about institutions and roles of traditional leaders. If you go to the functions of traditional leaders, Section 282 (1) (a), it reads as follows; “to promote and uphold cultural values of the communities and in particular, to promote sound family values.” So, how can we equally go against the Constitution when the Constitution clearly talks about sound family values? When you make them marriage officers across the board, you are promoting sound family values.
The problem that we have Mr. Chair and colleague Members, is that we give too much power to the Ministers. One must write to the Minister. Hon. Ziyambi today could do the right thing. What about the next Minister who moves in? Will he do the right thing? We will always have this issue sitting here, giving powers to the Minister and as Parliament we do not give power to ourselves. I have warned this
Parliament many times. We create monsters. “Mangwana wanouya wachiba and tisu tinenge tavapa mvumo yekuti wabe.” If we have oversight, why can we not also be part of this?
In other nations, board members are appointed by Parliament. There must be a board which must be put in place if we want this to be quite transparent Mr. Chair, which involves everyone in there and not apply to the Minister. I have a problem with everything Minister, and it is this Parliament that passes that. The royal family in England - there is no politician who does anything without observing the Queen. Why are we not doing that on our own? Why are our chiefs always belittled? We cannot have a situation where our chiefs are belittled when the President actually honours the chiefs. As a village head, I am also respected. We are too much modernised. We should come with a system that values our chiefs and places them in their proper place. We should not only try and show them respect when it is election time. A chief should remain a chief and should be respected.
No Member of Parliament became a member before coming through the chiefs. We do not want people who belittle our chiefs. We want people that are honest; we do not want snakes. They should know that a chief is a respectable person. For this country to move forward, we should respect our own cultural values. We are failing to have rains because of failure to observe our traditional institutions. Minister, you should help this country to ensure that this country reverts to where it was. Thieves are stealing minerals and chiefs are unhappy. The community trusts that used to give something to the chiefs were removed. We want to have a one-stop shop so that when you go to the border at Chirundu, the Zambians and Zimbabwean customary people deal with you once and for all and we should have the same thing for marriages. Let us give the chiefs their rights. The
Constitution, Hon. Ziyambi you were not here, equally Section 282
(1) (a) gives chiefs the right that to promote sound family values.
Why do we doubt our own chiefs today? –
Hon. Chinotimba has asked what exactly is needed for our chiefs to qualify to be marriage officers. You are going back and forth, you are not giving us straight forward answers, and you are just telling us they are not allowed to charge money. Tell us everything, do not give us piecemeal responses. Can you tell us the exact qualifications which are need for one to be a marriage officer; is it a degree, masters or PHD so that we know? It is not fair for us to pass laws without knowing the conditions.
Any person, before signing a marriage contract is told the implications first, even Hon. Samukange here, a lawyer knows that one needs to be explained to before being operated on by a medical doctor. It is explained to a person the chances of living or dying before going into the theatre. Now, for someone to just say accept and then will explain later, no we cannot say that, we are educated people. People out there will laugh at us that we are just rubber stamping laws that we do not understand.
Today, we have just passed the Standing Rules and Orders yet nobody has seen it. So, should we continue like that. Now we are faced with this one thing only, let us do the proper thing. The laws that we pass incriminate us and we have no clue about them. So, good people wake up.
HON. ZIYAMBI: Thank you Hon. Chair. I think the input of what is there does not require me to be very restrictive and pick the title ‘chiefs as marriage officers in customary law marriages for district’. So, I propose that I will change the title to ‘chiefs as marriage officers for district’ – [HON. MEMBERS: Hear, hear.]- If I do that, we can then leave it as it is and then if they satisfy the prescribed conditions, whether it is civil or customary, they become marriage officers.
Amendment to clause 9 put and agreed to.
Clause 9, as amended, put and agreed to.
HON. ZIYAMBI: Consistent with what I have agreed to, so
that the legislation does not seem to favour ministers of religion. I am proposing that on Clause 10, I include the following amendments so that it will read as follows. The Minister may, at the request of the authority governing any religious denominations or organisations designate in accordance with such conditions as the Minister prescribe any person…”, then it continues. So that it becomes the same with that for the chiefs.
On New Clause 10;
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I am
proposing a new clause 10 which reads as, “every head of an embassy of Zimbabwe in a foreign state or territory or of a diplomatic or consular mission in a foreign state or territory shall, by virtue of his or her office and so long as he or she holds such office, be a marriage officer while on duty at that embassy or mission, and shall exercise the duties of a marriage officer subject to such conditions (including the condition that one of the parties to a proposed marriage must be a Zimbabwean citizen or permanent resident), as the Minister shall prescribe”.
This is consistent with the argument that the Hon. Members were putting as the Minister will prescribe. I know Hon. Mliswa is not happy with the Minister prescribing but we are putting as “The Minister may prescribe” in there so that others may be considered.
So, that is the new Clause 10.
HON. T. MLISWA: I would like to know why Members of
Parliament cannot be marriage officers. Is there any good reason for that?
HON. ZIYAMBI: Yes, because they are Members of
Parliament therefore, they cannot be marriage officers.
HON. T. MLISWA: I am quite serious. Chiefs are chiefs, head of embassies are there, we represent people, we are Commissioners of Oaths and therefore we are trusted by the people, noone else. So why can we not be marriage officers? We have constituency offices and so forth. We represent the people. We are Commissioners of Oaths and we come from the people because we were chosen by the people.
Why cannot we be marriage officers? We have constituency offices.
Ndiri serious nenyaya iyi.
*HON. CHINOTIMBA: Every law that is passed in the
country is passed in the National Assembly and taken to the Senate and if the Senate is not happy about it, it will return to the National Assembly so that it is passed properly. Members of Parliament are
Commissioners of Oaths because they take their oath in this august House that they will uphold and abide by the laws of Zimbabwe. It is not being power hungry or being the beaver but if it is me who is passing a law that a chief should be a presiding officer or a marriage officer and others should be given these powers to solemnise marriages, why should we not be allowed to solemnise marriages because we were voted into these offices by the people. We are known at law that we exist as Members of Parliament.
Zimbabwe is the first country to have a female Minister of
Defence and all the other countries followed suit especially in Africa.
There were no female defence ministers. Zimbabwe was the first one. If precedent is to be set by Zimbabwe, then other countries will follow best practice. Why should we not have a scenario where Members of Parliament as Commissioners of Oaths are also marriage officers? We have people that are in London, an Ambassador who is a
Commissioner of Oaths. We have Hon. Chinotimba in Buhera South – why should he not be a Commissioner of Oaths. This is what we are asking the Minister of Justice to look into. We can also be marriage officers. That is the position.
Once I am called upon to go solemnise a marriage in my constituency, I will take my Bible and suit and solemnise the marriage.
HON. MISIHAIRABWI-MUSHONGA: I have no problem
with that suggestion except that perhaps the Hon. Members
themselves ngavambotange vachata and then they can become marriage officers.
HON. ZIYAMBI: One good thing that I like about Hon.
Mliswa is that he knows the roles of a parliamentarian and he can articulate it very well. My plea is that let us stick to that role. It does not extend to being marriage officers. We are politicians, we are legislators. We have oversight and now we want to get into issues that will cloud our roles. I think he accepts my position. He just wanted that lighter moment.
*HON CHINOTIMBA: On a point of order. I have been in this Parliament for long enough. I once said all Members of Parliament must have diplomatic passports and everyone laughed at me but later on they now have diplomatic passports. I want to remind the Leader of the House whether he still recalls that everyone laughed at me and during that time, it was the reign of the late President Mugabe. The former President then said Chinotimba, why do you require these red passports. The new dispensation realised that Members of Parliament should have diplomatic passports. I do not know if there is anyone without a diplomatic passport.
Most people were taken aback as to why we needed red passports when we travel. I just wanted to remind the Hon Minister if he remembers that. If Hon Mliswa has made suggestion in this august House then he should answer to that. Once a Member of Parliament makes a point, he is making it on behalf of all Members of Parliament just as I am saying. May you just respond to that question? I thank you.
HON. T. MLISWA: We exercise three things on oversight.
Oversight over what? Oversight is specific. Firstly, we have oversight over Government departments and agencies at every level. It is pretty clear. The issue of being a marriage officer becomes convenient for a person. They have a choice. We are not saying huya kwandiri. The chief is there. The councillor is there. I can even extend to say the Chairman of Rural Council. The more we have the better so that people have a choice.
In the Constitution we have freedom of association. We cannot infringe on people’s rights. When you talk about oversight, I do not know when Parliament ever sat down to have oversight over a divorce. I do not know when. Maybe somebody can remind me because what are the repercussions of that oversight. We now go deeper into analysing. As far as I am concerned, you are just doing your job the same way you represent the people. They come to your office, the same way you are a Commissioner of Oaths. You might as well not be that. I am just trying to address that this is something that brings variety which is convenient.
On the aspect of Parliament having an oversight, I do not see anything, in fact we have even gone further by saying Members of Parliament too and I was speaking to one of the law enforcement agents who said in other countries, a Member of Parliament can stop illegal things happening in your constituency and police can come. So there must be that provision because we are the ones who come across these problems. If you abuse that power, it can be revoked. There is also a provision for the Minister to say no, you cannot once it is signed. While it gives, it can also take. He exercises oversight as a Minister that is why we are giving it to him. His role is to see whether marriage officers are doing the right things or not.
This is my contribution that the aspect of oversight does not stick in this aspect at all. The Minister has oversight. If Hon Mliswa has done something wrong which goes against the marriage officer’s compliance, it is revoked. People get more from the MP than anybody else. The problem with this country is that everything that Ministers do, they want to leave Members of Parliament even in their constituencies. We have that bad habit which we must stop.
Hon Ziyambi, you are an MP yourself but you go to peoples constituencies without them knowing. Would you like the same to happen to you? That is why in Norton they know if you come ndinoronga vapfanha vangu nemadzimai anoita zvakaoma. Ndosaka vachinditaura kuti uku hakupindike. I represent the people and I want to know what is happening in my constituency not because we make money but it is even expensive to gather people. When you want to address a rally, you look for us. Let us speak the truth in this second republic. This is my contribution that the aspect of oversight does not stick in this aspect at all. The Minister has oversight. If Hon. Mliswa has done something wrong which goes against the marriage officer’s compliance, it is revoked. The point is it is convenient for people; people get more through the Member of Parliament than anybody
The problem in this country is that everything that Ministers do they want to leave Members of Parliament even in their own constituencies. We have that bad habit which we must stop. Hon. Ziyambi you were a Member of Parliament but you go into people’s constituencies without them knowing. Would you like the same to happen to you? I have men and women in my Constituency who alert me when such a thing happens. I want to know what is happening in my Constituency because I represent the people and it is not because I make money from it. It is actually expensive. When you need to address people you, you ask us to mobilise them. Why do you not do it on your own?
*THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon.
Chinotimba is right that when I respond I should not personalise that it is Hon. Mliswa who knows. I accept that I should not personalise issues. The issue of red passports and solemnisation of marriages are two different ball games altogether. I do not know why some of you were laughing that Members of Parliament (MPs) should not be given diplomatic passports, especially when MPs are conducting their representative roles outside the country, they need to be respected just like the others that would have visited, that is slightly different.
The solemnisation of marriages, I am in disagreement with the advocacy that MPs should be marriage officers. What we deem fit are those specified in this Bill – once they have been given the necessary education to be able to solemnise marriages. MPs are not defined as public or civil servants. The laws that we have do not bring you into that scenario. You only come into that as parliamentarians. You are associated with politics. Whilst we open this solemnisation of marriages to all MPs, we would have misdirected ourselves. The laid down regulations that should be followed – MPs that are here are the one that should approve the requirements and have oversight and ensure that it is properly done. We would have become the judge,
jury and the executor. This becomes difficult for oversight to be exercised. The Minister supervises Government workers or civil/public servants and there are regulations that guide their operations.
Those that are led by church organisations can go to the chiefs because of their circumstances, they should be assisted but those that are responsible for carrying oversight should not be players. We will have seriously misdirected ourselves. I urge this august House that we leave the issue of MPs becoming marriage officers in abeyance. We have a lot of work and duties to do and it takes a lot of money to be able to perform our duties. We should not further burden ourselves by bringing on board this role or function of being marriage officers. Let us use the persons we have stipulated. Once we see that they are failing to discharge, then we review the situation and maybe call MPs on board. Currently, MPs have a lot of work to do and they have a dignified duty to perform. They should not be involved as marriage officers. I thank you.
*HON. T. MLISWA: I have heard what you have said Hon. Minister but the thing is that laws have been passed and broken. At the end of the day, we are responsible for it. We were talking about it being convenient for the people – even boards in other countries cannot be appointed by the Minister. It is Parliament that appoints those boards, because ultimately we have oversight but there is something sticking in this aspect – that is the reason why when you talk about MPs not being the right people, my argument is why should the Minister also appoint when he must have oversight.
That is why we talk about a board – when the board is wrong, the Minister fires the board but if the Minister is wrong, what happens? We have a situation which must stop in this country where Ministers do more than enough. They appoint boards in and out. Whoever Minister brings in a board – why is that so? It is because they want to control boards yet they do not want others to control. The same vein as Hon. Ziyambi talked about MPs recusing themselves. May you also start by recusing yourself from the person they apply to and apply to board?
Then we have proper governance – governance cannot be one sided. At the end of the day, the majority will have their share but those who have ears have heard what I am saying. Even the Minister should not be there – what if he wakes up and he is not in good books with his wife. What will happen to his mood and yet he has applied? We do not want this to be controlled by emotions because a Minister is also a human being and anything can happen. We must not be seen to be appointing.
If I am a pastor and an MP, will you not accept me to be a marriage officer? Which law would bar me from becoming a marriage officer?
*HON. ZIYAMBI: Hon. Mliswa is saying the truth that cannot be easily accepted as the truth. All the laws that we pass should, there should be a responsible minister to administer the Act to enable enforcement of that Act. If there is a law that deals that deals with the Zimbabwe Broadcasting Corporation – whether we say that the board should be appointed by Parliament we would have lost the foundation to enable the country to develop properly if we say that Ministers should not administer Acts – we become lawlessness because there will no accountability.
The Minister does not have oversight over the board but has supervisory role since he is the one who administers that particular Act so that there is smooth flow of operations. Parliament will then come in and observe and see if the Minister is doing the proper thing through oversight of the executive. We should not have such an attitude that because we have removed the Member of Parliament, we should also remove the accountability from the Minister. No, that should not be the case. If I am from a particular board I should not go there and execute. There are regulations that are there that need to be followed as one administers the Act, I would then take the board to task as to why they did not follow the three laid down procedures.
There should also be a provision that we set this board aside and then we appoint those that will ensure that the board functions properly. That he has mentioned that he is a Member of Parliament who also happens to be a pastor, this is a good issue, but then he says that we should not belittle the chiefs and we are in agreement with him. We should not talk of prescribed conditions that will be looked into when you apply. So if you are a pastor and you now want to become a Member of Parliament, even if you are no longer able to perform certain functions at your church, there are certain things in the country that you cannot do. You cannot become a marriage officer because you are now a Member of Parliament and in terms of the regulations, although you did indicate that you are a Member of Parliament - then you should not become greedy and become one in all. I thank you Mr. Chair.
*HON. CHINOTIMBA: Sorry Hon. Chair lest it be misconstrued that we are fighting against Hon. Ziyambi, we are not, we are merely opening him up to these views. We are not saying that he is wrong, we are opening his mind. There were certain Ministers who would appoint a board made up from the people from their province and you would find 10 people coming from the same province.
We are not saying that the Minister should not appoint but we are pointing out that there are certain appointments that are not proper. Just talk about the previous Local Government Ministry, you will see that there were appointments to the ZUPCO Board being one sided. It was only Mashonaland West throughout. You are now saying so and so was corrupt but the last time we were not talking about it.
It does not work that once I leave this august House as a Member of Parliament you then will follow me up and say I was corrupt during my term as a Member of Parliament. He was not saying we should not appoint boards, but he says these are some of the things that are being overlooked – my nephew, my friend, we were together at the university and we do such things. You then chased away Zhanda after the new dispensation because you had seen that this had become too much. This is what Hon. Mliswa is saying. Hon. Mliswa did not say that you should do that, he said you must also take into consideration because some of these things, you are the ones who sit with the President in Cabinet. When you sit in Cabinet we will not be there.
We are saying the truth here and not as the opposition. We do not day in day out want to hear things about corruption. We want to go there to our constituencies that everyone votes for us and our
President once and for all. All those that are writing are saying ZANU PF is now saying the truth, it is the new dispensation and it is furthering the endeavors of the new dispensation. We do not want these boards that are appointed on nepotism and all the other isms. We want boards that are transparently appointed. Thank you Hon. Chair. I thought that I should hammer that point so that you would understand very well that we are not worried about the manner in which people appointed to boards but is should be done in a transparent and professional manner. We wanted him to understand what exactly it is that we wanted. We are passing a Bill but it will get there.
HON. T. MLISWA: Minister, with due respect on the aspect of Government you cannot appoint and administer, it has never worked like that ever. There are rules which are always set which allow administration to happen whether you are there or not and we must be backed by rules and laws, not individuals. That is all I wanted to say.
*HON. MASENDA: Mr. Speaker, I am saying this is akin to a football match. The players because they know much about football, should abide by the rules. If one is shown a red card, the rule says that they should go out of the field of play. Members of Parliament should confine themselves to their duties of law making and should leave the rest to the implementers, thereafter we then see whether oversight is properly taken.
HON. T. MLISWA: I think we have made our points clear. You are coming late. It is a debate which we can have all day. Isu vamwe takatotemerwa nyora dzenharo kusvika mangwana handizvo here, but the Minister spoke and we came to an agreement together with the Chair so I do not know why you are bringing it up again. You now want to bootlick and give the impression that Chinotimba was wrong.
I am going to remonstrate with you because I was once ZANU
- We said this is wrong and that Hon. Chinotimba said the correct thing. We have already talked about it. Why would he want to stand up here so that he comes here and buttress the provincial chairpersons form Mashonaland West to be bootlicking. You are an elderly person, you should not be bootlicking. We are through with this debate so what is he trying to come up with.
THE TEMPORARY SPEAKER: Order, Hon. Mliswa.
*HON. MASENDA: I need your protection Mr. Speaker Sir. I also have a right to be heard as an Hon. Member. I need the Chairpersons protection; I have the right to be heard. All I am saying is that once we have passed a law in this august House, we should not go and be the implementers of that law because once there are problems with that particular law, it becomes difficult for us to then become referees in our own match – [HON. T. MLISWA: I withdraw my remarks Mr. Chair, that Members should become commissioners of oath and marriage officers after I had been enlightened by Hon.
Ziyambi, so there is no point for debate.] – I am talking about – [HON. T. MLISWA: Ndawithdrawer] – [HON. MEMBERS:
Inaudible interjections.] – Mr. Speaker Sir – [HON. T. MLISWA:
Inaudible interjection.] –
*THE TEMPORARY CHAIRPERSON: He has withdrawn,
so there is no more debate – [HON. T. MLISWA: That is the law.
Endai munodzidz,a ndazvidira jecha endai kuchikoro.] –
*HON. MASENDA: I thank you, the withdrawal came after I had started debating. Thank you Hon. Chair.
Amendment to Clause 10 put and agreed to.
Clause 10, as amended, put and agreed to.
On Clause 11:
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you
Hon. Chair. I just wanted to indicate as I earlier said. Before we reverted, I had made an error that I would need the insertion on this clause to say, ‘as prescribed by the Minister,’ so that it becomes consistent with every other marriage officer.
Amendment to Clause 11 put and agreed to.
Clause 11, as amended, put and agreed to.
Clauses 12 to 15 put and agreed to.
On Clause 16;
HON. MISIHAIRABWI-MUSHONGA: Clause 16 (1) speaks
to the issue of solemnisation of a marriage where a man takes to wife, the widow or widows of deceased relatives. We have been fighting for a long time about this particular cultural practice of wife inheritance. Why are we now dignifying it and putting it in our legislation? If they do meet and decide that they want to get married, then they meet like any other couple but for us in this century to actually take that provision and legitimise it and put it in an Act is really problematic. If we look at our African protocols around women, it actually talks a lot around issues of wife inheritance and the problems that it has caused in communities. This is because we have generally said we should not dignify the issue of wife inheritance.
Surely, can we sit here and begin to make a provision for people to inherit wives? I cannot believe it genuinely. If these people meet elsewhere like any other couple and decide to get married, whether it is a brother of the deceased man or otherwise, let it just happen naturally. Why on earth are we now putting it in our legislation? I am shocked to say the least.
HON. DR. MATARANYIKA: Thank you very much Mr.
Chairman. I am not sure if the Hon. Member is implying that the practice has been stopped altogether. If it has not been stopped, what this clause is saying is that it is about customary marriages including where such practice has taken place. As long as we have not completely repealed or come up with a law that abolishes the old practice, then it should be included in this case. That is my view. Thank you very much Mr. Chair.
HON. MISIHAIRABWI-MUSHONGA: This is why I am
saying I am actually shocked. One of the issues that we have had and the studies that were carried out in this country have been issues that inheritance has always been associated with seeking sexual rights to the widow. To even say it is a custom is wrong in its own sense because we know that the custom and the tradition that we have always had of inheritance was not associated with inheriting my body.
The culture of wife inheritance was meant to ensure that a woman would have a man looking after the children and not to have sexual favours from me. If I refuse to bed that particular individual, I then suffer the consequences of inheritance. It is the beginning of most of the problems that we have. For us in this century to seriously sit down and say – I am not saying kugara nhaka kune problem…
*Hon. Chair, inheritance simply means that you will be the custodian of the family and not that you are going to give him sexual favours. Wife inheritance - you will then have a situation whereby if you do not give him sexual favours you are chased away from the matrimonial home and can no longer stay in the homestead. Should the two meet and become interested in one another then they should behave naturally and take their affair to the next level and I have no problem with that.
HON. MATANGAIDZE: I want us to read the clause very closely. The clause says, “every marriage contracted according to customary law including the case where…” – so my question was very simple - is the practice still going on or have we abolished the practice? We are not talking about what happens behind doors in the bedroom, whether she has been inherited for whatever reason but it is included in this clause and we are saying that customary marriage should be solemnised before the appropriate marriage officer. That is all we are saying. Whatever is going to happen behind the walls is not our business. Thank you.
*HON. CHINOTIMBA: Hon. Misihairabwi-Mushonga is
saying that in terms of wife inheritance, once someone has been inherited as a wife she then becomes someone’s wife. Once that man dies the wife should inherit such property because she is now someone’s wife. There is no way you can have wife inheritance and have a child with that particular woman. When the man dies; you then say no, you were inherited as a wife, you can no longer have part of the property - I thought this is what she is asking for.
Hon. Chair, forced marriage is a different game all together. If there has been wife inheritance and the parties are in agreement, it is okay. Once the wife or the husband dies, the property should be shared equally. Once the husband dies and was married to a wife that has been inherited, the wife then becomes a beneficiary regardless of the fact that the woman was inherited. The deceased’s wife must share the property with the inherited wife. You should have conjugal rights also granted. How one can conceive without conjugal rights being exercised? If one is inherited as a wife, it means that you are accepting that particular woman, you are not forced. You are given some water in a dish and then you give it to someone. Once the man accepts, it is alright. Most of the women are given to their late husband’s brother and it is acceptable. If there is any wealth that is there, it should be shared properly and that is what wife inheritance is all about. I thought that is what she was passionate about.
HON. MISIHAIRABWI-MUSHONGA: Can we read it
properly so that we do not start telling stories. Every marriage contracted according to customary law including the case where a man takes to wife the widow of a deceased relative shall be solemnised before the appropriate marriage officer of the district. Let us assume that is what we want to do, which is bad. Why are you talking about a widow? You should also talk about a widower. Why is it that inheritance is only related to the woman in the relationship?
So women are properties to be inherited and you men are not properties? This is wrong in every essence. Marriage is about a man and a woman and if in a provision you are going to say it is about a wife, it means you are limiting that marriage in the context of a particular wife. Please remove it, it is a bad provision and horrible.
*HON. P. ZHOU: Thank you very much. Let me say that wife inheritance has always been in practice but the manner in which we were doing it was wrong. We should have Bills that give women fair footage. Did you question people about this clause? How can we pass this clause? Did the public make submissions on this particular one?
If this man is interested in the widow, where is this man’s wife? The woman has been in monogamous marriage. Now, why do you want to allow this widow to then come and become a second wife? Where did this clause come from? We never raised it with the people, so why should this clause be favouring men? My perception is that this clause was not taken to the people, so it must be removed from the Bill. Women are saying the clause should not be included. Our husbands are going to be taken. When the man does not have another wife, it is okay but for as long as you will be a second wife, no! I thank you – [HON. MEMBERS: Hatiide, hatiide!] -
THE MINISTER OF JUSTICE LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you
Hon. Chair. This Bill is the Bill that was gazetted. The amendments are on the Order Paper that we are proposing, so this is the Bill that was taken to the people. There is nothing that was smuggled in. It was gazetted and if you go and download it, you will find that it is exactly in this format. However, let me explain something. The heading of this clause is ‘Solemnisation of Customary Law
*Now Hon. Chair, if a man or if a woman has lost his or her spouse, the woman should not come and say I have now come here to inherit this husband, this is our custom. We are talking about our customary marriages and how they used to be conducted. This is now what we are advocating for, that the chiefs as they administer the issue of inheritance, no woman will go to a man who has lost a wife that she now wants to become the wife to this man so that she can have five husbands. No, but this is very specific. If I have lost my brother and I have a marriage that allows me to have several wives, my brother Temba knows this, that if my young brother dies and Hon. Mliswa is my young brother, they can come and discuss with my wife. In terms of our tradition, he is given a dish full of water so that he can symbolically wash his hands. It is not done vice-versa where men are subjected to the same. This is a custom, a practice that we are talking about. These are people that are already in polygamous marriages that we are making reference to and you go further and say what the Chairperson of the Justice Portfolio Committee has said, we are saying those that practice wife inheritance, we want to protect the woman who has now been inherited and that particular union or where the wife has been inherited, she must be registered so that this woman becomes married to the new husband.
If there are property distribution issues, she is also included and she has now become part of the Ziyambi family. That is what we are trying to ring-fence that she should not be excluded as a wife that has been inherited like what Hon. Chinotimba was saying. Hon. Chair, I would want to address the issue that they have mentioned in terms of civil marriages that it is not illegal for a single man; if my brother dies and I go and propose love to my brother’s wife – it is acceptable.
In terms of our culture, what we should be discussing at this point in time is whether we still want wife inheritance and we should go to our traditional leaders and tell them that people are no longer interested in wife inheritance. If there are still customary marriages in this Bill, we should continue practicing wife inheritance. I am done thank you.
*HON. T. MLISWA: I want to say that I have powers to ensure that Parliament adjourns. I am appealing to you the Chief Whip to call back your Members so that we have sufficient numbers. I thank you.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIR (HON. ZIYAMBI): Some Hon.
Members are in the Senate because of social distancing.
HON. MISIHAIRAMBWI-MUSHONGA: Thank you very
much Hon. Chair. I am glad that the Minister has brought it to our attention that we really need to talk about this tradition. This tradition is not speaking about our custom – can we get it clear? There is no custom that speaks to wife of anything. Our custom speaks to you taking responsibility as musarapavana which has been bastardised by men who take advantage of that situation knowing that a woman is in a position where she cannot negotiate because she knows if she does not agree to be a wife, she would lose whatever is there.
So, let us not lie to each other about these things. We know that we have made a decision in the same Marriages Bill to say anyone who marries somebody who is less than 18 years, that marriage is null and void. We know that there are circumstances in which somebody has already been married and she is 16 years. We have not legitimised that in this particular Bill. We have not discussed that which is a real issue, that this child could have been 16 years and she could be living with this person and she now has two or three kids in that relationship.
We have not dealt with that issue. It remains a problematic area but we have not come back to this Bill and say we solemnised a marriage for somebody who was married when she was under age.
We have not said that because in principle, we want to make sure that that particular tradition is not acceptable. If the men in this House want to convince us that wife inheritance is a good custom, they should stand up and say so and they should say it is a good custom because that is not our tradition.
I do not know a tradition that says you need to take a wife of your deceased relative – it does not exist in our custom. It is men who have started playing around with it to do whatever they want to do. Do not lie to us and if you just want it just because you are men and you want to run around and inherit wives left, right and centre, say so but do not give us this nonsense about saying it is a tradition.
*HON. ZIYAMBI: Hon. Chair, allow me to respond to Hon.
Misihairabwi’s contribution in our mother tongue. Clause 16 talks about our customary marriages. What we are trying to say is that we know that in our tradition, there is wife inheritance. She sits on a reed mat and she is invited to give a dish of water to whoever they love and they will do that. Once that position has been taken, we now want that woman to go and appear before a marriage officer, whether it is a magistrate or anyone else – you are asked as to whether you love this particular man.
The problem that we have is should we remove this clause as it is. Women are going to be forced into wife inheritance but because of this Bill that we are coming up with, we are saying all marriages should be registered. If it is customary law, I should go and register the wife that I have inherited in terms of the Marriages Act so that it becomes law and that one becomes legal and the marriage is solemnised and valid.
All I am saying is that we are not changing our culture as regards that wife inheritance issue but we are saying as of now, we want to ensure that wives that are going to be inherited will have solemnised marriages that are registered so that all the women in a polygamous marriage are recognised legally that they belong to the family of Ziyambi. This is a progression in our legislation. We are also trying to safeguard the rights of the wife that has been inherited.
*HON. KWARAMBA: We are talking about wife inheritance
that a wife has lost the husband and in our culture, there is the issue of wife inheritance and the processes are taken where she sits on the reed mat and she is asked who she is interested in. If she wants to have the late husband’s brother and they have fallen in love and are agreeable, the woman is not forced into marriage or to be inherited by anyone. I can either give my late husband’s brother or I could give to my aunt. What it simply means is that I have accepted that I will remain with the family and that this young brother of my husband will then become the father figure.
*HON. KWARAMBA … will then become a father figure.
Mtukudzi sang that inheritance does not mean that there are conjugal rights inherent in it. If my husband dies and I do not love his young brother, I cannot be forced to fall in love with him. If I fall in love with his young brother and we are in agreement saying that we should exercise conjugal rights, fair and fine.
*HON. MADHUKU: Thank you Hon. Chair. My view as
regards the debate, the most difficult issue is the issue of inheritance. In the case of a woman who would have lost her husband, what we should be looking at is a law that says once a wife has lost a husband, she should not be forced into being inherited or into the inheritance that is due to her. It means that I am advocating that if a wife has lost her husband, there should be proper distribution of the estate. If she wants to be inherited as a wife, distribution of the estate should be properly done. Thereafter, if she falls in love and gets married to another person, the marriage could be solemnised. That would be the second stage. The woman should be protected throughout the stages of inheritance issue. Firstly, inheritance of the property from the deceased estate and secondly that once she has gone into a new marriage, she should be protected legally.
I would want to support the point that once there has been a death in the family in terms of our culture, the woman is free to choose whoever she wants. In most cases, we even see old women; they pick up the dish and they give it to their son as the person who is going to be the father figure. It means that he is going to be the custodian of the family. No one is forced to go into a marriage. The woman should be protected that she should choose whoever she wants. She must be protected because I will go behind the scenes and have illegitimate children with her. I support that she should be protected and that there should be a marriage that is solemnised so as to protect her. I thank you.
*HON. NYATHI: Hon. Chair, I wanted clarity on one issue because there is some disparity. There is wife inheritance and the caretaker. The one that we call “sarapavana” is the caretaker. If I die, my wife has a right to say she wants to remarry or not. When there is going to be a distribution of the estate, she can sit on the reed mat and she is invited to choose a husband of her choice. If she wants the practice of wife inheritance, it is her choice to make as to whether she would want to remarry or not. If she does not want to remarry, she will pick up the dish full of water and give it to her late husband’s sister or her own child. This means that she wants to stay in the family but she does not want to have a relationship where conjugal rights are going to be exercised. That is the understanding. It means that the Bill that is before us, if we go deeper with it, it is not disadvantaging my wife. In fact, it is giving my wife an advantage that in the event that she so decides that she wants to have another marriage and she wants to marry in the same family, she should now get married in that same family. She is now going to be protected by having a marriage certificate so that in the event that the husband that would have inherited her has died, she will have other rights to the distribution of that new husband’s estate. What it means is that we are now protecting the widow. She has a choice to even marry within the family or outside the family. It is in terms of the family law but we are looking at it with a bias towards the family umbrella. I thank you.
Hon. Misihairabwi-Mushonga having stood up to debate.
HON. ZIYAMBI: Hon. Chair, according to our Standing
Orders, they prohibit tedious and repetitive arguments. I think Hon. Nyathi has summed it up according to our customary laws and we cannot deviate from that. If we want to debate on the appropriateness of the custom, it is not the appropriate forum. We then have to have another forum where we debate on whether the custom is still relevant. For our purposes, when we are talking about customary marriages and how wife inheritance is done, I think Hon. Nyathi has done justice to it. Otherwise we are going to go in circles, showcasing our debating skills without going anywhere. So, I move that we move forward and adopt this clause. I thank you.
Clause 16 put and agreed to.
Clauses 17 to 19 put and agreed to.
On Clause 20;
HON. T. MLISWA: May the Chief Whip whip Members to come back.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, I
seek leave that we report progress and seek permission to sit again.
Motion put and agreed to.
Committee to resume: Wednesday, 27th May, 2020.
On the motion of THE MINISTER OF JUSTICE, LEGAL
AND PARLIAMENTARY AFFAIRS, (HON. ZIYAMBI), the
House adjourned at Seven Minutes past Five o’clock p.m.