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SENATE HANSARD 21 APRIL 2021 VOL 30 NO 34
PARLIAMENT OF ZIMBABWE
Wednesday 21st April, 2021
The Senate met at Half-past Two o’clock p.m.
(THE HON. PRESIDENT OF SENATE in the Chair)
THE HON. PRESIDENT OF SENATE: Before we go any further, may I remind Hon. Senators that we still maintain social distance, so those who are close to each other please maintain social distance.
ANNOUNCEMENT BY THE HON. PRESIDENT OF SENATE
BILL RECEIVED FROM THE NATIONAL ASSEMBLY
THE HON. PRESIDENT OF SENATE: I have to inform the Senate that I have received the Constitution of Zimbabwe Amendment (No. 2) Bill [H. B. 23A, 2019] from the National Assembly.
BUSINESS OF THE HOUSE
THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE (HON. DR. SHAVA): Madam President, I move that Orders of the Day, Numbers 1 to 4 on today’s Order Paper be stood over until the rest of the Orders of the Day have been disposed of.
Motion put and agreed to.
REPORT OF THE 2021 VIRTUAL HEARINGS AT THE UNITED NATIONS ON FIGHTING CORRUPTION TO RESTORE TRUST IN GOVERNMENT AND IMPROVE DEVELOPMENT PROSPECTS
Fifth Order read: Adjourned debate on motion on the Report of the 2021 Virtual Parliamentary Hearing at the United Nations.
Question again proposed.
HON. SEN. MUZENDA: I move that the debate do now adjourn.
HON. SEN. MATHUTHU: I second.
Motion put and agreed to.
Debate to resume: Thursday, 22nd April, 2021.
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam President, I move that we revert to Order of the Day Number 3 on the Order Paper.
Motion put and agreed to.
MARRIAGES BILL [H. B. 7A, 2019]
Third Order read: Committee Stage: Marriages Bill [H. B. 7A, 2019].
House in Committee.
Clause 1 to 2 put and agreed to.
On Clause 3:
HON. KOMICHI: On a point of Order Hon. Chair. I do not think Hon. Senators have got documentation around this. I have been trying to check on my gadget.
THE CHAIRPERSON: I am told the second reading was done on 7th April, so it was circulated on your gadgets.
HON. KOMICHI: I have been checking on my gadget and it is not there.
THE CHAIRPERSON: The staff is telling me it was circulated.
HON. KOMICHI: Do they have hard copies because there are some issues that we want to debate, so without something to guide us it will be difficult.
THE CHAIRPERSON (HON. NYAMBUYA): Can you please go through your gadgets and check through your email for 23rd March, 2021. Have you seen it?
HON. SEN. KOMICHI: Yes, it is there.
THE CHAIRPERSON: Hon. Sen. Komichi has seen it and it implies that it indeed it was sent to your emails on the 23rd of March.
Clauses 4 to 8 put and agreed to.
On Clause 9;
HON. SEN. CHIEF MTSHANE: Madam Chair, the appointment of chiefs as designated marriage officers is no different from the appointment of the embassies and the ministers of religion. They are both appointed by virtue of their offices. If you read Clause 9 (2) (1), it says “Any Chief by virtue of his or her office as long as he or she holds such an office, may be designated a marriage officer for the district in which he or she holds office by the Minister, at the request of that chief and in accordance with such conditions as the Minister may prescribe” – Why should there be a condition for the chief to sort of apply to the Minister who will put conditions for his appointment when this does not apply to other marriage officers?
HON. SEN. CHIEF NGUNGUMBANE: Still on Clause 9, I would want the Minister to clarify – “...any chief by virtue of his or her office and as long as he or she holds office, may be designated as marriage officer...” – that is discretionary. Why that word “may” because it is up to the Minister. The Minister can approve or disapprove. In a way, it creates discrimination. I think by virtue of me being a chief, I automatically become a marriage officer. Secondly, should a chief request to become a marriage officer – I think those are the issues the Minister should address that once I hold office, it is automatic. I should not request but the virtue of the office that I occupy, it should be automatic.
HON. SEN. CHIEF SIANSALE: As alluded by my fellow chiefs, chiefs are the custodians of customs and culture. As such, it defies logic to find them being compelled to apply to become marriage officers on customary marriages. I wish that statement could have read ....
Hon. Mutodi having entered the House and speaking to Hon. Sen. Parirenyatwa.
THE TEMPORARY CHAIRPERSON (HON. SEN. MOHADI): Order, order. There is a stranger in the House.
Hon. Mutodi walked out.
HON. SEN. CHIEF SIANSALE: Thank you Madam Chair. I was about to read my plea, that the statement should read - “every chief shall by virtue of his or her office and so long as he or she holds such office be a marriage officer for a customary law marriage in the district in which he or she holds office”. I think it is clear and straight forward.
HON. CHIEF MAKUMBE: I am quite astonished to say the last part of that sentence which reads - “with such conditions as the Minister may prescribe”, what conditions are we talking about and who gives the Minister the discretion to put conditions to a marriage officer when other marriage officers do not have any conditions set before them.
HON. SEN. KHUPE: I think I am more or less of the same opinion with our chiefs but I would want to say the statement should read, ‘by the operation of the law, as soon as His Excellency signs the Bill into an Act, every Chief becomes a marriage officer’ because I do not think we need to discriminate against chiefs. In as far as I am concerned; I regard all chiefs as of the same status. I thank you.
*HON. SEN KOMICHI: Thank you Hon. Chair. I agree with the people who have debated before me that chiefs should be marriage officers without any conditions because they are the people’s leaders. Most people in the rural areas cannot go to the district offices or to the provincial cities because it is very difficult to travel. So, people in the rural areas are closer to their chiefs who should be given the opportunity and right to officiate in marriage ceremonies without any conditions. Chiefs are well known by most rural people. Many times, we see that people who get married before the chiefs are very free because they respect them. Marriages that take place before the chiefs are very difficult to destroy or to divorce because they know how people live. This will help us to uplift the offices of the chiefs so that they are respected by the people they lead. Chiefs join families together in marriage and it is very pertinent for the office of the chiefs to be uplifted. What the chiefs have said should be taken as it is that they should be automatic marriage officers without any conditions. I thank you.
*HON. SEN CHIEF CHARUMBIRA: Thank you Chair. I want to support what has been said so that it is seen as a collective thing not an individual thing. The import of a clause which says chiefs shall have to apply to the Minister and the fact that it does not exist in respect to heads of diplomatic missions, our civil servants. Someone from the University of Zimbabwe with just A levels works in the Ministry of Foreign Affairs and International Trade, 27 years down the line he or she goes to a particular mission and becomes head is taken to be more respected, trusted and we have more confidence in that civil servant than a chief. This is demeaning to the institution of the chiefs. Kuitarisira pasi zvikuru and we would not accept this. If this clause existed alone without other clauses which say other people are not subject to certain applications, maybe we would take a different view. But the fact that the next one says these others are automatic, we feel very much demeaned as an institution. In fact, if you go to Section 282 of the Constitution, this is discrimination of an institution. When one is appointed a chief – all chiefs are equal. So, you cannot by operation of this Bill, start grading them and say uyu anoita uyu haaite. It is very contradictory coming from the Minister of Justice because the Customary Law and Local Courts Act does not have such a provision where a minister has the discretion to say this chief can preside over a local court which is a primary or customary court and this one does not qualify. By virtue of that office, every chief anotonga mhosva which is a greater challenge than sitting as a marriage officer because in a judicial function, the processes are more complex. The judgements are more complex and enforcing the orders is more complex. So if the reason is havana kufunda, then we should as well withdraw from them, the judicial functions which are even more complicated compared to people coming in front of you with your proper papers in place and asking them whether they are married or not and then papers are signed. I think Minister, in my view, we should not even belabour this point. This would not go well and I want to support the proposed amendment which again, for emphasis, reads as follows: ‘every chief shall, by virtue of his or her office and as long as he or she holds such office be a marriage officer for a customary law marriage in the district in which she/he holds office.’ I submit that this is a very serious amendment. I thank you.
*HON. SEN. SIPANI-HUNGWE: Thank you Chair. I agree with what the chiefs have said that we are people and the chiefs’ jurisdiction is in the rural areas where there is violence. We find that our chiefs are champions when it comes to conflict resolutions. So why do we not just take them as they are. If we think that our chiefs are not educated, there should be no segregation or any conditions attached. We have pastors who are officiating in marriages. If it is difficult we should take them and educate them and train them in officiating marriages. I do not think we have dull chiefs here because as it is – it is like we are putting them at a certain level. I think the Minister should take time, even three months or one year training them on how to officiate marriages. I am supporting the others that chiefs should be marriage officers.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENARY AFFAIRS (HON. ZIYAMBI): It is more or less the same issue that is being repeated and there is nothing new that is being said. With your leave, I think the rules allow that if debate becomes repetitive, we can proceed. What I can see is that people just want to contribute as if contribution is voting. I think the point has been made. The rule allows that if debate becomes a repetition of what others have said, we can proceed. So, Hon. Chair if you can rule on that?
THE HON. TEMKPORARY CHAIRPERSON: Thank you Hon. Minister. I will ask you to respond and if anything has been left then we can continue.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. This clause does not in any way demean the institution of traditional leaders, that is the first thing that I want traditional leaders to appreciate. In no way does the clause demean the institution of traditional leadership. There are two aspects that we need to address. There is an aspect whereby if one goes to marry, in our traditional culture two families get married and that is enough - that is what used to happen. Now, because of changing times and the need to secure certain rights of the parties, we came up with a marriage law – what the marriage law is doing is to secure the rights of the parties.
In the past, it was that if there is an issue, people would go to the traditional court for the solution to that problem. Having said that, what it means is that the Marriage Act is administered by Government and the person being referred to as the Minister may prescribe is the person who administers the Marriages Act. So, it is not that the Minister is more important than chiefs. Let us remove that notion. It is just an administrative aspect that there must be somebody to administer the Act to ensure the rights of the parties are protected. What we need to appreciate is that they do not become automatic marriage officers.
So, reference to say that a pastor also solemnizes marriages is not automatic - this Bill does not say it is automatic. This is because he is not in the employ of the State. Those that are in the employ of the State are trained by the State. The Bill is silent because you are answerable to an employer. The chief and religious leaders are not answerable directly to the employer, hence they need to formalise that relationship with the State so that they can be given the licence to go and solemnise marriages. What we are simply saying is that if a chief so desires, we are giving them an option.
If a chief desires to be a marriage officer on behalf of Government – because once you become a marriage officer, those that have been to weddings, they always say ‘by the power vested in me by the State’ or ‘by the Government of Zimbabwe.’ We are saying that person who has vested you with the authority has certain minimum standards that they want to be adhered to. If you are an Ambassador, you will be trained when you are posted and this is what we expect of you in respect of 1, 2, 3 or 4 areas.
If we just say that if traditional procedures are followed you are now a chief, people will just go there with no training whatsoever. It is not a restrictive condition but to ensure that there is a certain level of control and regularisation so that the rights of the people that are wedding are protected. Otherwise, there will not be any need for a marriage certificate. The marriage certificate carries with it certain rights and obligations that accrue to the parties that should there be a dispute and you put it forward, the dissolution of that marriage will follow certain rules that are prescribed by the law.
So, there is no disregard of traditional leadership whatsoever. There is no need for traditional leaders to say they have been looked down upon, there is nothing like that. In fact, it will edify your work because once you do the formalities, there will be certain things that will be highlighted to you and that knowledge is very important to the function of traditional leaders. I heard the chief saying all chiefs are equal.
We agree because we are not demeaning any chief. What we are simply saying is we want chiefs to be made alive to what they would be doing in terms of solemnising the marriages of their people. I plead with the chiefs that this is a very progressive clause that we cannot remove because if we remove it, it means that Government will now accept marriages that may be void without any control or without any training of the very people that they would have allowed to be marriage officers. I submit Hon. Chair and plead that we proceed with the Bill.
HON. SEN. DR. MAVETERA: Thank you Madam Chair. I know I have heard the Minister has put up a spirited defence to his position but that position to me and to all progressive Africans or Zimbabweans does not stand for the following reasons. Hon. Chair, all chiefs are officers of the court and the Minister can testify that. If they can all be officers and preside over cases within the community - if anything, according to our judicial system, the chiefs handle more cases than our courts at Rotten Row. So what is so special about marriage? In fact it goes to the root of our culture and should be within the custodian of the chiefs.
Whether or not the Hon. Minister says that he is not demeaning but he is definitely demeaning. We cannot and there is no defence for that. If he wants to separate chiefs then he should not put the name chiefs and just go and nominate people for training. The office of the chief is not a person but an office, so it cannot be separated because Mavetera is there. You will need to train. We cannot forgo the need to upgrade that aspect of the law to the chiefs and try to just say, ‘You are’, I think it is actually demeaning. You cannot get any other description than that. It is demeaning, discriminatory and as an august House, we cannot pass a law that is ultra vires to the Constitution. Section 56 of the Constitution states that there should not be discrimination and what is the definition of discrimination is aptly described in the Constitution. When something is done to someone when you are equal but something is done on this one, it is not done with that discrimination. You do not need to describe it any better than that. So I humbly submit Madam Chair, that I do not think we should waste time discussing this. All chiefs must be marriage officers. I submit.
THE DEPUTY CHAIRPERSON OF COMMITTEES: I kindly request that if we are on the same subject, let us not repeat things that are said by others. – [HON. SENATORS: Inaudible interjections.] - I am not closing you down, you can debate.
*HON. SEN. CHIRONGOMA: Thank you very much Madam Chair for giving me this opportunity. The chiefs here have explained the law so that they become marriage officers. As we were growing up, laws were instigated by the whites who did not even know our surnames. In 1971, I went to wed in Chivi and on our marriage certificate was written ‘Joseph to Muchayemura, you are now married’ and that law was meaningless.
With the sitting chiefs that we have, things must change and chiefs must be more empowered. Our chiefs are very much liked and respected in the rural areas, so let us empower them. When they become older, they are assisted by their aides in those courts. Chiefs must be given unconditional power to be marriage officers that is what we used to request for. If chiefs were found to be unjust in their rulings during marriages, the whites would revoke the certificates. Now, we are saying that chiefs should have unconditional authority to become marriage officers. Like the clause that was put forward by the President of the Chiefs’ Council that clearly explained how the chief’s authority must be retained. The clause should not say, ‘may’, it should not be optional, Chiefs should be given enough authority since we have been independent for some time. I support the fact that chiefs should be allotted unconditional authority.
HON. SEN. CHIEF NECHOMBO: Thank you very much Madam President. If our Constitution could come to my aid. Section 16 of the Constitution states that “(3) The State and all institutions and agencies of Government at every level must take measures to ensure due respect for the dignity of traditional institutions.”
As traditional leaders, we are institutions and when we are saying ‘may’, surely we are going contrary to Section 16. Again, Section 16 (1) states that – “The State and all institutions and agencies of Government at every level must” - it is not optional “promote and preserve cultural values and practices which enhance the dignity, well-being and equality of Zimbabweans.” Thank you.
HON. CHIEF SIANSALI: Thank you Madam Chair. Listening to the Hon. Minister’s argument, he said that there is some enlightenment that is required in order for one to be a marriage officer - fair and fine. If there is some enlightenment that he as the Minister ,feels that whosoever becomes a marriage officer should undertake, then let him teach us; we are open to any lesson. As I am debating, I am debating in English but the marriage that I am going to oversee will be conducted in chiTonga but I have been overseeing marriages for my own people … - [HON. SENATORS: Hear, hear.] – And no English is required. So what can be so difficult for me to administer if I can debate in English? What can prevent me from administering marriages to my people in our mother language? I do not see anything difficult there.
Furthermore, the Hon. Minister is the Minister of Justice, Legal and Parliamentary Affairs where all chiefs are judicial officers. The Hon. Minister and the House can confirm with me that all chiefs are appointed as chiefs and by the operation of the law, they start presiding over cases without any coaching. So, is the marriage aspect so technical such that one cannot partake? Whereas we think that judicial functions are highly technical but the Minister has never said that he wants to train the Chiefs so that they can be judicial officers. What is so special about marriage that is not present in handling of cases? Honestly, speaking, yes, like I debated last time, we should desist from flavouring our laws in an afrocentric manner. We understand our schooling is made by Europeans and as such, we have been paneled to think European ways only. It could be very proper that these laws that we are formulating now we formulate them in an afrocentric flavour because we are Africans. We have gone through times and we have seen the effects of these laws that were enacted by the whites. This is the opportunity now, a law is not changed every day, let us make a correct thing once and for all and we do good for generations to come. Imagine in this time and era, we still make a law as if there is any European in the Senate. As, black, can we still think that way?
Customary marriages are to do with the customs of the concerned people. As such, I do not see any difficulties in administering such. Madam Chair, for progress and for this Bill to be sound and make sense in the communities, I submit that the changes mooted be taken into consideration. I thank you.
*HON. SEN. CHIFAMBA: Thank you Madam Chair. I proffer that we give our Chiefs the powers that they deserve. In the past, a husband would be asked to pay five cattle and if he pays three, the Chief would write down the remainder. Those marriages were lasting as compared to today’s marriages which do not last. I am saying these ceremonies should take place under the traditional Chiefs. These days it is now expensive to divorce. So, let us allow Chiefs to administer marriages. These days marriages are being taken for granted. They are being regarded as modern because we are using foreign culture in our marriages. These young people no longer take marriages seriously because you can go to the magistrate, you wed and after three months you divorce. Let us allow Chiefs to be marriage officers because they can control these issues. A Chief can ask you why you want to divorce just after three months of marriage. We want to see whether these marriages will continue breaking down or not. Thank you.
HON. SEN. CHIEF NGUNGUMBANE: I want to thank the Minister for his explanation. We are not against the right of the parties to the marriages, no, we are in full agreement with you Hon. Minister. That is point number one. Point number two Hon. Minister, if you read that sentence, to me it is discriminatory in two ways. The first one is when I become a Chief, I have to apply to you as the Minister administering this Act. The word may, means that you can use your discretion to approve or disapprove that application of a Chief. To me Hon. Minister, that creates discrimination amongst the institution.
It also gives the Minister certain powers to deny a Chief those powers to become a marriage officer. Because if you say ‘may’ it should be put explicitly clear to say if you disagree, the Minister has to put the reasons in writing. That clause does not talk to that. So, this Statement is discriminatory amongst Chiefs themselves.
Also, you have correctly alluded to the fact that we are Government marriage officers; your magistrate, Chief and heads of Embassies but if you look at Clause 8, it says ‘every’ and for a Chief it says ‘any’, can you see disparity? Every magistrate by virtue of his or her office, as long as he or she holds such office can be a marriage officer for the district in which he or she holds office. If you come to the same Government marriage officer who is a Chief, you see the discrimination, ‘any Chief’, that is discriminatory ‘by virtue of his or her office as long as he or she holds such office may’. At the beginning, magistrates are not subjected to that clause, ‘may be designated as a marriage officer for the district in which he holds office by the Minister at the request…’ Why should I request to be a marriage officer when the magistrate and the head of embassy does not request? Why discriminate between and among Government marriage officers?
Clause 10 states that every head of Embassy of Zimbabwe in a foreign state territory, diplomatic or consular mission in a foreign state ‘shall’, the word ‘shall’ is a command, you must without failure by virtue of your office. We would expect Hon. Minister, in our different categories as marriage officers, to be accorded the same respect and the same obligations that are expected of a marriage officer. I thank you.
*HON. SEN. CHIEF NGEZI: Thank you for giving me the opportunity to debate on this Bill. My request Hon. Minister is, can you rectify this problem. As custodians of culture, we think we have the custody of the people including yourself. You are now reducing the dignity of the Chief compared to foreigners who come here, trained and become marriage officers. You are a black Minister, we do not have whites here, we are always crying that may be the whites are coming back through the blacks just to denigrate or to reduce the gravity of our culture. As we celebrate Independence, I realised that we have disguised whites amongst us who are fighting against the Chiefs as well.
The other thing is this land which was once colonised by the whites belongs to the chiefs. We as the chiefs are the ones who suffered and we realised that we are the ones who lost a lot, but I see that it looks like our own son is now fighting us. So may you please go and think again to really tell us whether we are together or you are against us.
*HON. SEN. CHIEF CHARUMBIRA: Thank you Chair. I want to talk on the word demean. I want clarification on the word demean. It is about perception. You may be the only one who thinks there is no demeaning and yet everyone else can see that the chief has been demeaned. We have been demeaned. That is how we see it because we are seeing it differently.
On the second issue - you were very fast, but you said long back marriages did not have rights. The African marriages had rights. If you take someone’s daughter there are certain things that you were supposed to do. There are so many rights which you have reduced. Why are people saying we do not bury our daughter because you did not pay lobola? Those are rights, so you cannot say our customary marriages did not have rights. I think that is leading to divorces because the rights that were there are no longer there, because they are being diminished.
Then on the point that civil servants were trained by the State; first of all, for a chief to be a chief, they are appointed by the President. We were appointed by the President. If a chief does not perform well, we take it to the President. You cannot liken us to the pastors. We are within the law, unlike pastors. We are within the law because we have been appointed by the President and if a chief misbehaves, we have mechanisms to deal with errant chiefs. We have training programmes as chiefs. If you feel some are not educated, what do you need to learn in your vernacular? Even the magistrates and the judges, those who did law, we see them going to workshops and annual training. As chiefs we do not have that. You should fund us so that we do capacity building. If you train others why do you not train us? Diplomats are trained so why do you not train us. That is the question. Train the chief so that we are the same.
We work within the State. That is why we are given monthly allowances and cars. We do not belong to the Churches because they do not have allowances. The Minister said that if we do not do this, we want to protect the people’s rights as if chiefs are there to infringe on people’s rights. If there are people who are custodians of the country, they are the chiefs. Those are trustworthy.
This is a long debate. What you are saying that the chiefs should not be displaced, they are the owners, the custodians of this work. Like Sen. Chirongoma said, the chiefs would officiate even during the colonial era, but there were no conditions or strings attached. Our parents were married by the chiefs because they knew that chiefs help people and they should marry the people. The whites gave us those rights to marry people. You can spend the whole day but this issue is clear, they should go and amend. Forty one years after independence and then we accept to be treated like that? We refuse that. Thank you.
*HON. SEN. CHIEF MAKUMBE: Thank you Madam Chair. I would like to urge the Minister to think deeply because like in some districts, there will be one chief. If that chief for example may not be a marriage officer because the clause says ‘may’, how will the people look at each other if Makumbe people cannot get a marriage office because their chief is not a marriage officer and they have to go to another chief? What will then happen? What have we sown as a Government?
I am glad that this Bill comes two days after celebrating independence. We should make laws for Zimbabweans in Zimbabwe. For a chief to be installed we got through a rigorous vetting process. Our documentation goes through to all offices and the chief is finally appended by the office. Why then do you want to reduce the chief’s power of just signing using a pen? Those who have all those powers, the marriages that they presided over still fell away through divorces, but as a chief when I preside over marriages I do it openly and there will be well known witnesses according to our culture. So this really means we are being demeaned by that clause that says ‘may’. Such a description is to say my father may become my father if he has money. Is that a description that you can give of a father?
So he should also consider that we pass a lot of Bills here, even those that we may have reservations on because we do it for the sake of progress. It should be known that all the chiefs should have equal powers to preside over marriages. That actually brings hatred amongst people. We are saying as a country we must be united. If Makumbe people have to go to Chief Nyashanu for a wedding, that creates enmity. I thank you.
*HON. SEN. CHIEF NTABENI: Thank you very much Hon. Chair for the opportunity that you have given me. We have said a lot of things. The Minister may be quiet but I am sure he is aware that this Clause has been rejected. Even in the Bible, it is written the chief is a chief of all people including the educated and uneducated. Chiefs preside over all these people. If the Minister’s cattle graze in someone’s field, I can summon you to my court. If I summon you to the court, you will be satisfied that indeed you are the subject to the chief but here you subject us to this and it makes us feel inferior.
If you ask anyone you meet, they will tell you that they met a chief by merely observing at the chief’s badge. People are not able to tell who you are if they come across a doctor or a lawyer. If you meet a chief or a uniformed force, you will rejoice and feel relaxed that you are in Zimbabwe. I am surprised that our own children who are Zimbabweans want to treat us that way. Even if the chief is not educated academically, their role is to manage their people. Even if the chief did not go to an academic school, that is not an issue at all. A chief presides over everyone else. People take pride in their chief. It is pathetic if I were to hear that a chief has to be subject to certain conditions. I thank you.
*HON. SEN CHIEF NHEMA: I would like to say a few words in contributing to this debate. The Minister is saying that because he represents people but we are also saying what we are saying as representatives of the people as well.
Why does the Minister not ask each and every chief to bring the people they represent because I do not think the people the Minister purports to be representing are our people as well? We are merely expressing what our people .....
The Minister of Justice, Legal and Parliamentary Affairs having gone to consult with Ministry officials.
- [AN HON. SEN.: He is not even listening to what we are
saying, that is demeaning.]
HON. ZIYAMBI: Zvino tikasvika ikoko ndipo patinonetsa muParliament. I cannot even answer back. I have been consulting and you are saying it is demeaning, I will end up being unable to answer because ndinenge ndakuti ndiri kushora vanaMambo.
THE TEMPORARY CHAIRPERSON: Can we have order in the House please. Let us have order and let us respect this House. It is not a House whereby you can exchange words.
*HON. SEN CHIEF NHEMA: Thank you Hon. Chair. I wanted to say a few words. The Minister is saying that he represents certain people and is protecting their rights, but we are also saying that we represent people who want us. May the Minister ask the chief to bring his people to express whether they want to have their marriage solemnised by the chief? That is all. I thank you.
*HON. SEN. MOEKETSI: Firstly, I would like to appreciate that this august House is for mature people, which means that there is a reason. Let us not overburden the Minister. As he consults, maybe there are some people who are saying no, we cannot leave this House if this Bill is not passed. Let us not pass this Bill if we do not support our chiefs. Let us not overburden the Minister because perhaps someone is saying that this Bill must pass at all cost but as Senate, we are saying this Bill should not pass if we do not restore the dignity of our chiefs. I thank you.
*HON. FEMAI: Thank you Madam Chair. I will not dwell much on this. Let us not give enemies to oppose the chiefs’ marriage power in order for them to snatch other people’s wives.
*HON. CHIEF CHIKWAKA: I have observed that this Bill might raise people’s emotions but the intention is to come up with a good law that is going to live forever, even beyond our lifetimes. Truth be said, this law as was said by others does not treat the chief well because it now requires the Minister to decide whether it is appropriate or not for the chief to officiate or to be a marriage officer. What are the demerits or merits that the Minister will will look into in determining whether the chief is fit to be a marriage officer? Our Members of the community, once given a particular chief accept the chief as he/she is, regardless of educational qualifications.
I am a Grade 7 person but there are professors in this august House who even applaud when I speak. We should not belabour the point by taking two steps forward and 10 steps backwards in as far as our culture is concerned. If the truth be told, the Hon. Minister in his heart has the chiefs at heart. Some of the things he does not like but these are some of the issues that were brought before the august House so that we can share. In debating these issues, we have divergent views. So, I urge that Hon. Members remain calm and come up with a good thing. Chiefs should not be treated as one size fits all. Chiefs are different and it should be different strokes for different folks. We know that the customs prevailing in Chikwaka are not the same that apply in Chief Siansali’s area. We conduct these marriages in accordance with our culture and the area of jurisdiction.
Yesterday we had a workshop on capacity building with the gender community. We were looking at gender equality and as chiefs, we used to think in the past that gender simply means something to do with women but after the workshop, we were trained and we went and also enlightened our people. If there are certain issues that need to be solved such as our being asked to attend school where we are taught about how to officiate as marriage officers, we can be inducted but bear in mind that among the chiefs, there are some with degrees, some are lawyers, professors and others are in various fields.
This is why you find us being able to disseminate. We interpret the law because we have made it and we observe that some of these things are against our tradition. So, if we do not allow some of our customs, it would mean that we are now disrespecting our culture. Maybe the Minister has to look back into this issue and put this in abeyance and revisit the issue so that tomorrow we can come up with different views. Some of our advisors may not appreciate our customs, so they should see the beauty of what the chiefs are saying because the chiefs are the custodians of our culture and repository of our knowledge system and how marriages are conducted even from time immemorial. Before the whites’ advent, our mothers would get married and wed. If you were not wedded, you were referred to as live in lovers and you were asked to formalise the marriage contract. This is what we know in terms of our culture. You are now creating hatred between chiefs and even our people when one chief is allowed to be a marriage officer while the other one is not. Let us respect the Constitution which also gives the mandate to the chiefs. We need an amendment to this particular clause so that the country, as it develops, still upholds the chieftaincy. I thank you.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam Chair. It is very difficult to respond because I may be accused of demeaning the chiefs. I plead that when I am responding, it is not personal. I am simply putting a position that is there and it is nothing personal for anyone to allege that I am demeaning anyone, neither am I disrespecting the chiefs. I try to explain issues as they are so that we can all understand. I am not even able to stop you from voting in any manner that you want. You can amend it and vote for it and the Bill will proceed to the next step. It is not personal. My apologies if you were offended. I would be enquiring because there are certain things that I also need to appreciate and when I said I was listening, they were also taking notes. I thank the Hon. Chief who said let us not be emotional. I support chiefs but sometimes I fail to answer because I do not know whether I would be offending someone or not.
Madam Chair, this clause as it is couched, my humble submission is that it offers a lot of respect to chiefs. The moment I say ‘chiefs shall be’, I cannot train them. The law says ‘you must be’ – once you are a chief, you are a marriage officer and then you cannot do anything because by virtue of you being a chief I am supposed to give you papers and you proceed to solemnilise marriages with no questions asked. That is what the word ‘shall’ means. But ‘may’ is not a demeaning word. It says you have an option and when you have an option, I do not believe we are a retrogressive State to the extent that when a chief says I want to be a marriage officer and we say there are these things we want to highlight to you, if you can have training on these then you become an officer, to me that is not demeaning. However, what I am hearing is everything that is in the Marriages Bill, once you are a chief you already know.
The difference with a diplomat, an ambassador and our magistrates is that there are certain courses that we give them that we cannot prescribe in a marriage law. It is given that they will be trained on certain aspects of the law on how they conduct their work. It is not demeaning in any way but what we may create by putting ‘shall’ because where the word ‘shall’ does not allow anyone to turn right or left. You proceed and you must do it. Once I am appointed today, I am now a marriage officer. They go to the registrar of marriages and say I am now a chief, give me the books and there is no leeway to say anything.
I hear Hon. Charumbira said it is demeaning that my perception – let us not create a perception that there is a perception of chiefs and my perception. Let us try to look at it and say how do we realise what we want to realise. What we are worried about is the word ‘may’ and we then twisted it to mean chiefs are not being accorded the status that befits them. I humbly submit that is incorrect.
It has been mentioned even about Judicial Officers. To me, it is debatable. I sign the certificate for them to preside over customary courts but what do they preside over, how are we recognising it? I have said to Hon. Sen. Chief Charumbira, we need to have a discussion on this thing rather than glorifying something that at law currently needs to be relooked at and see whether we are affording chiefs the opportunity to deal with cases in the rural areas. What quickly comes into mind is the issue of why chiefs are not allowed to preside over a case of someone who will have stolen chickens and that person goes to the magistrate. Does justice come so early by so doing?
There are many things; even if you say you have the powers, what are we supposed to be looking at, going forward? On the legal language, if you see where it is written ‘shall’, if there is a chief who does believe in that, he comes to the Registrar and say let me have the papers so that I preside over marriages. If he goes to the court, the court will declare that you are the ones who put that law to say ‘shall’, and so what are you talking about?
The way it is written is that when the chief is said to be a marriage officer, the marriages that are done in this country are recognised out of the country and so we want you to be trained on that, but there is no examination that will be written. When you are through with the training you get a certificate. If we say ‘shall’, if I go back and they say you said ‘shall’, I do not know what I can say about this and this is why I said it is not demeaning.
We sat down with the chiefs and we agreed on a lot of issues. Madam Chair, we can accept the amendments and we go forward – but that is what I wanted to explain in terms of the word ‘shall’ as to what it means. ‘May’ does not mean demeaning the chief. It only means that the chief cannot be automatically made a marriage officer by simply just going to the Registrar and says he now wants to be a marriage officer in the area that he comes from. He is then told what to do when he is solemnising marriages, which makes our marriages respectable. If you say it does not matter, we accept the amendments and we proceed. Thank you.
THE CHAIRPERSON (HON. SEN. MOHADI): Hon. Minister, are you proposing that there shall be an amendment here on this Clause 9?
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Yes, Madam Chair.
HON. SEN. CHIEF CHARUMBIRA: Thank you Chair. I just wanted to say that the Hon. Minister is our colleague and lawyers know the issue of ‘may’ and ‘shall’. There are some that might have read this and the ‘may’ and ‘shall’, people that wrote examinations in this august House and they passed by the use of the words ‘may’ and ‘shall’, including myself. It is not us that learnt from there. We know even the decided cases of ‘may’ and ‘shall’. Let us be a bit humble and going forward with these amendments, the head of Embassies ‘shall’ and the chiefs ‘may’. That is the crux of the matter. When you say ‘shall’ for the chief because they are training to be an Ambassador and training to be an Ambassador does only deal with ambassadorial issues. It may need to train them further in the issue of marriages, so do we as chiefs also want to learn about marriages? Once the word ‘shall’ has been used, we will run away with the entire thing beyond the mountain, but the children that had been given ‘shall’ will not run away with this Act. If the word was not there and two people were compared, we will not allow the use of ‘shall’ and ‘may’. We may spend the whole week differing on the use of ‘shall’ and ‘may’. Why would there be such a difference? That is the crux of the matter. The amendment has been read. I do not know Hon. Chair if you would want me to read the amendment. I now read that “Every chief shall, by virtue of his/’her office, so long as he/she holds such office, be a marriage officer for a customary law marriage in the district in which he/she holds office” This is the proposed amendments. Thank you.
HON. SEN. MATHUTHU: I second.
Clause 9, put and agreed to.
Clause 9, as amended, put and agreed to.
Clauses 10 to 13 put and agreed to.
On Clause 14;
HON. SEN. DR. MAVETERA: Thank you Madam Chair, I just want to know if we have a definition of some of those misconducts because it is too wide. I am not sure if I missed it in the Bill where the misconducts are outlined.
THE TEMPORARY CHAIRPERSON: Are you on Clause 14?
HON. SEN. DR. MAVETERA: Yes, on the revocation for misconduct. What are those misconducts? Is there a schedule where they are defined?
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. Hon. Chair, as to this class, they undergo training and they are given the dos and donts in a schedule. So they undergo training like there are issues to do with charging and several issues that they must not do. The Marriages Bill also speaks about certain individuals who cannot marry and even marrying people when you know fully well that the other one is already married – all those issues can be misconduct issues. So when they trained on all these things before, they are given the marriage certificate and once you violate any of those or leave your denomination, that certificate that authorises you to marry people will be revoked. I thank you.
Clause 14 put and agreed to.
Clause 15 put and agreed to.
On Clause 16;
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair, I propose the amendments standing in my name; that on page 8 of the Bill, delete sub-clause (5) on lines 30 and 31 and substitute the following subclasses:
“(5) A marriage officer in a customary law marriage may put to either of the parties to a proposed marriage or to the witnesses, any questions relevant to the identity of the parties to the proposed marriage, to the agreements relating to marriage consideration (lobola or roora), if any, and to the existence of impediments to the marriage.”
Basically the amendment is to take care of objections by our esteemed chiefs regarding the issue of lobola. So we tried a median ground to say that in this amendment, we say that a marriage officer in a customary law marriage may put to either of the parties to a proposed marriage or to the witnesses, any questions relevant to the identity of the parties to the proposed marriage, to the agreements relating to marriage consideration (lobola or roora), if any, and to the existence of impediments to the marriage. We thought that if we couch it this way, it will take care of the objections that were raised in terms of the lobola issue. I thank you.
HON. SEN. CHIEF NGUNGUMBANE: Thank you Madam Chair. First and foremost, I would want to congratulate the Hon. Minister for acceding to these amendments – there is common ground Hon. Minister, we appreciate.
I would want to make the following observations to the proposed amendments. Firstly, I would revert to the word ‘may’ for it is resurfacing. Perhaps if we could substitute and say, ‘shall’ and the word, ‘either’, I think a marriage is made out of two people. You have two people agreeing to marry each other and Hon. Minister, I am of the opinion that the question should be booked to both parties – that of the proposed marriages.
Then the second part where it says, ‘or to the witnesses’, Hon. Minister, we are Africans and we are saying that this Bill should capture the essence of our culture. I am pleading with you that, can we not cut, copy and paste Section 4 of the current Customary Marriages Act which provides for the following; “who must be present at a solemnisation of a marriage. A marriage to be solemnised in terms of this Act shall be solemnised by the customary law marriage officer of the district in which the woman or guardian resides. In addition, the customary marriage officer and the parties to the marriage shall be present for the solemnisation of the marriage.”
Then I am mainly interested in the role of vana tete, uauntie – they testify that these people-yes, we are here before you chief as a marriage officer. We have done all the rituals regarding marriage and they testify that the lobola component...
The Hon. Minister of Justice, Legal and Parliamentary Affairs having left his seat to confer with his officials sitting at the back.
HON. SEN. CHIEF NGUNGUMBANE: May I proceed Madam Chair?
THE TEMPORARY CHAIRPERSON: Yes, you may.
HON. SEN. CHIEF NGUNGUMBANE: Thank you. I am saying that this captures the essence of a cultural marriage and we want to see that appearing in addition to the proposed amendments by the Hon. Minister.
I am saying this because when you read Section 282 of the Constitution, one of our fundamental roles as traditional leaders is to uphold cultural and family values. In this regard, when we do this we are upholding and strengthening sound family values. In support to that amendment Hon. Minister, I propose that we add Clause 4 of the current Marriages Bills to the proposed amendments. I thank you.
*HON. SEN. CHIEF CHARUMBIRA: Thank you Madam Chair. There is freedom of choice in Zimbabwe. You can choose what you want to apply to your marriage. If you want to leave the customary law, you go to the general law. If you want to leave the general law, you can go to customary law. If someone appears before me for a customary law, it is their choice. So, if you have given customary law, then please satisfy the requirements of a customary marriage. One of the key requirements is lobola which the Minister said yes and we want to thank him for that. Then it should not be optional for the marriage officer to say he or she can ignore to ask if any lobola has been paid, no, because that is the core of the customary law marriage anywhere. The marriage officer ‘shall’ ask not ‘may’ ask and I think to me that is an obvious amendment. When you say ‘shall’ you are giving the pillars of a customary law to the whole process. Thank you.
HON. SEN. CHIEF NECHOMBO: Thank you very much Madam President. On Clause 16, the way our Hon. Minister would want to address it - they have said that the parties would be asked if there is any consideration of roora and they go on to say if any. So, we are saying the question has been asked to both parties if there was any roora.
Madam Chair, Clause 16 which deals with this solemnisation of marriages is silent with respect to the specific requirements for contracting a customary law marriage. This leaves the proposed law not speaking with clarity, precision and predictability to what it intends to solve. The question has been asked, yes, yes we are saying we will ask if there was any marriage consideration. That is where our challenge is after asking that question. As traditional leadership, we are mindful and awake to Section 80 which outlaws customs, traditions, cultural practices that infringe on the rights of women. I submit that any argument that seeks to view the payment of lobola, marriage consideration under this spectrum or any other dimension, must be viewed holistically.
Section 26 (a) guiding objectives on marriages, Section 78 marriage rights and Section 80 which deals with women’s rights must be read together with Section 3 (d), our founding values of the Constitution which are guided by our diverse, cultural, religious and traditional values. Section 63 (b) our rights to participate in the cultural life of our choice, Section 60, the right of freedom, consent, religion, by no means do Sections 26 (A) 78 and 80 outlaw the payment of lobola.
Madam Chair, this is so because the right of consenting to marriage is guaranteed by Section 78 of the Constitution. At the same time, by choosing to contract a customary law marriage, a party would have exercised his or her right in terms of Section 63, right to participate in the cultural life of their choice. How then does this come to infringe on the rights if ever we have got such thinking? Both rights are guaranteed by the Constitution in this instance.
By choosing to contract a marriage under customary law, the obvious consequence is that you have admitted to be bound by its strictures and norms. For example, the Constitution does not make explicit reference to the issue of conjugal rights. Never the less, these come as a direct consequence of marriage. The same applies to the issue of duties and responsibilities in a marriage. All these come as a consequence of a marriage. Against this background, the payment of lobola is a direct consequence of choosing to contract a customary marriage which marriage is part of our culture as recognised by the Constitution.
Hon. Chair, by outlawing lobola, or not emphasising it or even making it optional as traditional leaders, the State would have reneged on our duty to uphold and preserve culture as contemplated by Section 16 (1). As Senate, it will be remiss of us to overlook the view of Section 16 (1) of the Constitution. Any attempt to outlaw lobola or even to make it optional as has been suggested by the wording of clause 16 it would be a bit unfortunate and may also amount to retrogression to the founding values of our nation.
In 20, 30 days or so from now we will be commemorating World Culture Day. What culture will be there for us to revere and observe if we are to pass a Bill that eliminates our rich cultural heritage? As traditional leaders, by virtue of sections 280 as custodians of culture, what would be left for us in our custom? Nothing. Whether we like it or not, acknowledged or denied lobola has been used as an African and cultural symbol of acknowledging and appreciating the dignity of women. Its absence contradicts our founding values enshrined in Section 31(a) as read with Section 16 of the Constitution.
As long as a marriage is entered with free and full consent of the intending spouses, lobola or roora is a consequencial matter of culture and does not per se infringe the rights to women. This is because Section 63 (b) of the Constitution makes it a fundamental right for every person to participate in the cultural life of their choice and in Section 16 the State has a duty to promote and preserve our cultural values and practices.
In conclusion, Madam President, I say prevention is better than cure. Section 86 speaks to limitations of rights and freedoms. As such, when parties exercise their right to enter into a marriage under customary law, they should observe the rules of the game by observing the customary law formalities. In complying with the customary law formalities, it would avoid future grievances emanating from failure to respect the dignity of our women which is expressed in the form of marriage consideration. If we look at women, we expect them to be married through paying lobola. We do not expect to just enter into a marriage without paying lobola.
To that end I propose that Section 16 must have a clause which reads,
(a) The marriage officer is satisfied that the intended husband and wife freely and fully consent to the marriage and that
(b) From the two families witnesses, it is apparent that customary law formalities have been met, given that the formalities differ from one area to the other, but the marriage officer has to ensure that customary law formalities have been met.
(c) That no lawful impediment exists to the proposed marriage. Thank you.
HON. SEN. CHIEF SIANSALI: Thank you Madam Chair…
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Madam Chair, is there anything different or we should continue with proceedings. Madam Chair, I think the point is made…
HON. SEN. CHIEF SIANSALI: Thank you Madam Chair if you allow me to proceed.
THE TEMPORARY CHAIRPERSON (HON. SEN. MOHADI): Proceed.
HON. SEN. CHIEF SIANSALI: Thank you for protecting me and allowing me to highlight my own thinking. Madam Chair, the discourse that I am bringing in the discourse that has been debated already is that I as Chief Siansali coming from Binga district and Tonga in tribe will cease to be a chief if I allow parties to marry without lobola being paid. It is my duty as a chief to make sure that lobola is paid and if this law being mooted will allow people in my area, which I may say my people, to marry under the customary law, which means the Tonga custom; you cannot talk about it without roora, unless if we give it another name, not to say customary marriage. As long as it is a customary marriage which when applied in my chiefdom we will be talking about the Tonga customs, then it cannot be a marriage without roora.
So we have to think on either to amend as mooted or to change the name of the marriage at all because if it is customary marriage then it has to be within the customs or those parties marrying which according to the Tonga customs lobola is key standing on number one and that is the only thing that gives it a taste of it being a marriage under the Tonga customs. Like I said before, our thinking should dwell much in the African thinking. Our thinking should dwell much in the Zimbabwean thinking as diverse as we are in tribes, but one unique thing that I am happy about Zimbabwe lobola is across uncontested.
Another thing I would highlight, Madam Chair, is that we have got choices in these marriages. If there are any people that do not want to pay lobola, they can choose other marriages that do not demand that. Moreso, I will rest assure you that everyone that marries under civil marriage will still pay lobola even though it does not compel them to do so. Why? I thank you.
HON. ZIYAMBI: Thank you Hon. Chair. I think the contribution was more or less the same. Hon. Chair, he just wanted to assert the chief but the contribution, even what Hon. Chief Charumbira said that you have a choice he repeated, what Hon. Chief Nechombo said, it is more or less the same. For progress sake I think Hon. Chief Nechombo, if you can repeat what you said. I do not think you mentioned the guardian because remember, whatever we are going to do, we must also satisfy the requirements of the Constitution. So if you can put forward the amendment that you are proposing and we move forward.
I agree with the chief. Perhaps if we had that thinking we were supposed to just leave customary law marriage and civil marriage just like that but the thinking that was there was let us have one amalgamated marriage law. Maybe the thinking here is not the same but for progress - and then we will see going forward whether that would be acceptable.
Like I said, it is not personal about me. I like what the other chief said. I also know that I was reminded that there are a lot that know about ‘shall’ and ‘may’. I was simply trying to explain, not saying that I am the only one here. No, it is not like that, but for progress let us accept and proceed. Maybe the thinking was perhaps we should not have tampered with the Customary Marriages Act in the first place. We should have left it like that, save to ensure that we align. So if he can tell us the way he wants it couched and we proceed and amend clause 16 to give effect to that.
HON. SEN. CHIEF CHARUMBIRA: Thank you Minister. We are relatives. We are united and when we debate, we debate as relatives. We propose the amendment and we are also proposing a new clause 16 (5). The current Clause 16 (5) must become Clause 16 (6) in terms of what we are proposing. Without repeating, Clause 16 (2) is meant to remove the option or aspect of lobola and it reads as follows: “A marriage officer in a customary law marriage ‘shall’ or ‘must’, whichever word you want to use; remove the ‘may’ put to either of the parties. I do not know if both was removed. It should be to the parties to a proposed marriage or to the witnesses, any questions relevant to the identity and conjugal status of the parties to the proposed marriage and to the agreement relating to the roora. We are saying ‘if any’ should be removed and the existence of impediments to the marriage.
HON. ZIYAMBI: In the original....
THE TEMPORARY CHAIRPERSON: Order, can you approach the Chair.
HON. ZIYAMBI: Hon. Chair, these are very good amendments but we need to couch them in a manner that will translate appropriately into legislation. Can we report progress then perhaps we can meet and either we extract from the current customary marriage and see how we can couch it or they can get somebody to do it and then we discuss it before we proceed with the Committee Stage. Otherwise, we will run the risk of rushing it and it will not come up the way that you would have wanted. I thank you.
HON. SEN. CHIEF NGUNGUMBANE: On a point of order. I would like to find out from the Minister whether when we meet again and looking at these proposals, do we leave out the other clauses that we have not looked at?
HON. ZIYAMBI: We will look at everything that we have not covered. If we sit and agree, it is better.
HON. SEN. CHIEF CHARUMBIRA: With your permission Hon. Chair, the approach should be to have an opportunity with the Minister to look at the whole Bill even the other clauses that we have not debated because we still have two or three proposed amendments that we have not discussed. It is better that we look at the whole Bill.
Committee to resume: Tuesday, 27th April, 2021.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS, the Senate adjourned at Five o’clock p.m.