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SENATE HANSARD 30 June 2020 29 40
PARLIAMENT OF ZIMBABWE
Tuesday 30th June, 2020
The Senate met at Half -past Two o’clock p.m.
(THE HON. PRESIDENT OF SENATE in the Chair)
ANNOUNCEMENT BY THE HON. PRESIDENT OF SENATE
BILLS RECEIVED FROM THE NATIONAL ASSEMBLY
THE HON. PRESIDENT OF SENATE: I have to inform the
House that I have received the following Bills from the National Assembly: Census and Statistics Amendment Bill [H. B. 3. 2020], and the Veterans of the Liberation Struggle Bill [H. B. 16, 2019].
MARRIAGES BILL [H. B. 7A, 2019] First Order read: Second Reading: Marriages Bill [H. B. 7A, 2019].
Question again proposed
*HON. SEN. CHIFAMBA: Thank you Madam President. We
are very grateful for the Marriages Bill that was brought to this House for debate amongst Senators. We understand that this Bill is saying a child should not be married before attaining the age of 18 years. Furthermore, says the same child can be sexually active at the age of 16 years. That is very disturbing that a 16 year old is allowed to be sexually active yet can be married at the age of 18 years. All problems start with the girl child sleeping with men and getting pregnant. So why do we not align the age of marriage to that of being sexually active to 18 years so that we do not have the problem of a girl child being sexually active at 16 years and getting pregnant yet legally she is not supposed to be married. It gives us problems as parents and it will also disturb that child more because once the child becomes pregnant whilst at school, she will become a school dropout while the boy child will continue going to school. The one that bears the brand in that regard is the girl child. If the girl has been impregnated by a married man, he will continue looking after his own family but the girl child will suffer. She will become a dropout and maybe even the parents will chase her away from the home. A lot of things do happen once a girl child becomes pregnant. The health of the child is also compromised. At 16 years, she has become pregnant and because she is young, she has birth complications either through a caesarean section or the child will have difficulties in that she is young and the uterus will be disturbed and she cannot carry a child. Why not simply say that a child who has become 18 years is the one that should become sexually active and can get married. There are some families that are wayward that are in the rural areas. You will find in urban settings there are also families that are poor and once they encounter such a problem, it will cause the parents to panic resulting in them causing that child to abort and may even result in death. In other circumstances, she may go to hospital to seek medical attention but a lot of problems are faced when a child becomes pregnant at the age of 16 years. It is my plea that this august House should also amend the same section so that it speaks to the age of majority as 18 years which should apply for the girl child to become sexually active. One said why should we desire things that are unripe. Give them a chance so that they can become mature. Do not take advantage of these innocent children that are sexually inexperienced. Once this happens, you cannot take her to your home and once she becomes pregnant the boy child cannot take her to his own family. If the sexual aspect has happened between people that are mature and above the age of majority, nothing will happen to them. There is a danger that those that will allow those that are under age to be involved in sexual activities run the risk of being arrested once the child is married and they accept payment of lobola.
*HON. SEN. CHIEF. MAKUMBE: Thank you Madam
President. As chiefs, we are happy that this Bill enables us to conduct marriage ceremonies. It is good to be recognised that as traditional leaders, we will be solemnizing marriages but we have issues that we would want to point out. First and foremost, the Marriages Bill is described just as the Marriages Bill but the solemnization of the marriage that we are doing is customary marriage. So we want to understand what exactly customary marriage is. From our own customary perspective, are we looking down upon our own traditional or cultural marriage? Can we have a clear definition of what exactly customary marriage is. Previously, there was talk in the media as if there is no more payment of lobola. In our culture, we have always maintained our own way of life. Even our colonisers knew that we have our own ways. For one to marry someone’s daughter they must pay lobola. Once you marry and pay lobola, you must be referred to as being married. A token of appreciation has to be paid in line with our African culture and Zimbabwean culture. When laws are being made, they must be made for the people of Zimbabwe and what pertains to the Zimbabwean scenario. We are not saying that lobola that has to be paid should be a price like they are paying for bread. Lobola is one of the tenets in our culture that must be respected in our Constitution.
We should not be in the habit of copying and pasting, thereby importing certain values or cultures that are alien to our own
Zimbabwean culture; hence, I want the definition of customary marriage from the Minister concerned. What is it all about? What does it entail? We will have problems as marriage officers. We want to ask - have you paid lobola because that is in line with our African tradition? Thank you very much.
HON. SEN. S. NCUBE: Thank you Madam President. I also
want to thank the Minister for bringing the Marriages Bill. I have a few issues that I want the Minister to take note of, especially on Section 41 of the Bill where it says the Matrimonial Causes Act will be used for property sharing in civil partnership. However, Section 41 (vi) then introduces a new structure to be used for property sharing. We need clarity on the formula to be used in civil partnership as it is confusing. We recommend that the matrimonial causes be used because it caters for everyone.
Section 41 also speaks on the distribution of property that is jointly acquired to be shared between civil partners. Does this imply to joint registration or joint contribution on the purchasing of the said property? We recommend that the Matrimonial Causes Act be applied to distribution of property as is proposed in the beginning of Section 41. I thank you.
HON. SEN. MOHADI: Thank you Madam President. First and
foremost, I would like to thank the Minister for bringing this Bill to this august Senate. I think after all the amendments that were made, we still feel that something should be added on what has been left out. Madam President, first and foremost, I would like the Minister to give us a clear definition of the Marriages Bill because at the moment it is very silent. According to our own thinking, it is a union between a man and a woman who have attained 18 years but it remains open. It does not tally with the Constitution of the country because there is room for homosexuals to get married. It is not mentioned anywhere.
If you go to Section 78 of the Constitution, it clearly states what is supposed to be. If ever we are drafting a Bill, I thought maybe we go in line with the Constitution. Madam President, I do not know whether I can read Section 8 from the Constitution so that everybody is aware of what I am talking about.
THE HON. PRESIDENT OF SENATE: You may proceed.
HON. SEN. MOHADI: Section 78, marriage rights, “every
person who has attained the age of 18 years has the right to a sound family. (2) No person may be compelled to enter into a marriage against their will. (3) Persons of the same sex are prohibited from marrying each other.” That is where I am concerned about most. As it stands, subsection (3) was not taken care of in the Bill.
Madam President, I have been reading the press and I have been following what was going on. Meanwhile, we appreciate so much that the chiefs have been given their powers. They can exert their powers now but as the Hon. Chief has already alluded to, their powers are now being exaggerated in the sense that the Minister in his press statement was talking about lobola. He was saying that lobola is no longer compulsory but we are not saying that it must not be there. Madam President, it is verbal. In the Bill itself it is silent. We would very much appreciate if ever the chiefs are given their powers. To carry out marriages, they should be given their traditional powers in black and white, written that lobola should be there. Maybe there can be a clause – [HON. SENATORS: Hear, hear.] – I am just saying maybe there can be a clause which states that it must not exceed so much. It is up to them but it should be written in black and white.
Madam President, I also have a question on Clause 26 of the
Constitution as well. Clause 26 of the Constitution states that the State must take appropriate measures to ensure that no marriage is entered into without free and full consent of the intended spouses. Children are not pledged in the marriage, there is equality of rights of obligation of spouses during marriage and in dissolution. In the event of dissolution of the marriage, whether through death or divorce, provision is made for the necessary protection of any other children and spouses.
Why am I quoting on this one, you will find that this Clause talks about equality, if it is the equality of both spouses, it talks about community ofproperty whereby it should be shared equally to both spouses. If it is shared equally to both spouses, it is silent on what happens after the dissolution of that marriage or after the death of one spouse. I thought may be the Minister should look into those issues.
Meanwhile we support his Bill and the amendments, but we thought maybe a few things may be added or some of the things should be clarified so that we agree to something that we believe. With these few words Madam President, I would like to thank you.
HON. SEN. DR. MAVETERA: Thank you Madam President for
giving me this opportunity to contribute to this very, very important debate. Firstly, I would want to thank the Hon. Minister for bringing in this Bill to the Senate and I would like to say that it was long overdue as it touches on very important aspects of our life which is the marriage which is the basis of the family.
Madam President, there are few things which I want to highlight on this important Bill which needs probably clarification. One of the first things which I want say is: our Constitution recognizes and actually mandates us to respect those aspects of our culture which are not harmful and which actually promote our unity as a family. One of this is marriage, and in our culture, lobola is something which very important.
Actually by definition, according to our culture, lobola defines marriage.
Madam President, I do not know where others went but where we went as a Committee during the hearings, it was unanimous that everyone wanted lobola to be there. I do not know if there was any place where people said they do not want lobola. Now the problem I have Madam President is when we came here to Parliament and drafted this; this has not been highlighted. I do not know whose interest we are serving. We are probably being manipulated by people - they may be civil society trying to impose a certain culture which is alien to us and which does not even work.
I think when we make laws, we make laws for our people, let us not cheat the people. We go for outreach, they say what they want and unanimously say there was no ambiguity such that I would have expected that they should be a Clause to say lobola should be paid, because that is what was resonating from wherever most of the teams went. To say it is mandatory, to be silent when it is actually the basis of what we define as culture. I do not know what is harmful about it, I think people actually stretch it too much to say there is any harmful effect on lobola.
I do not think there is any harm. As a nation I think we are getting into a dangerous territory when we do not respect our culture. If we think anything foreign is good – [HON. SENATORS : Hear, hear.] – in fact, I am sorry to say tave kunge vana vasina mutupo. I would urge the Hon. Minister definitely to respect the will of the people if we are going to take this exercise seriously. On lobola, I will speak from an emotional position, because that is what the people said. I would want to see if we had the opportunity to actually bring back the preliminary to prove my point Madam President? Our reports from the different teams which went - lobola was unanimous. So where is that clause Madam President. I think we are taking ourselves for granted and in fact we are not respecting the people who sent us here to represent them, and more so when it impeaches on our reality, the basis and values that make us
Those who want to be like foreigners, who do not want to manage marriages and think it has got some negatives, let them stay there, not here in Zimbabwe. It will be an injustice for this Bill to sail through and become law without taking that into consideration- that will be one of the saddest moments in the history of this august Senate because we will have proved to the world that we actually are not representing the people, but we are actually taking what we think for people to rubber stamp. When they go against it, we come again and try to present it and taking advantage of us being the finally arbiter in this discourse. I think that will be injustice.
I think I have done justice to that because I am emotional. Just two days ago, I have got a daughter, she is 20 years old and I was telling her that inini ndinotoda roora mwanangu, kana pasina roora handiuye, it is mandatory, it is not debatable. This is our culture and there is nothing harmful about us having that, it actually puts us together. Madam President, if we are going to say there will be no lobola, people should not forget the importance of lobola, and it binds the family. When you go through that process, it is not about paying money it is actually about inini as mukuwasha relating to the relatives of my in-laws and for me to make a decision to say handichada mukadzi wangu, it will be very difficult and all those people will stand to be advisors. When we just stay where we are and say we are married, I think this is against the ethos and values of who we are as indigenous Zimbabweans. I think it is high time we promulgate laws which are useful to us as a people, not to for certain sectorial interests which do not even have nothing to do with us.
The next issue Madam President which I want to raise, our Bill does not address issues of those children who will have some marriages being annulled. I think as a State when we take a deliberate position and make it law to annul a marriage which was existing but without actually putting contingency measures to address the interest of those very products of that marriage, we will have done injustice to that. It must be clear as to what will happen because it is the State which is breaking a marriage which existed then.
So, we should make sure that the offspring of that marriage should be looked after by the State. The State cannot say we annulled because it was consummated and it was a child marriage, probably you penalize atezvara for accepting lobola and things like that and it ends there – that is nothing. What is going to happen to the children? We ought to have a deliberate clause which really safeguards the interest of those children who are already there.
Suffice to say banning of child marriages is a progressive law. I do not want to labour on what other Hon. Members have said about the effects of child marriages which we already know. I would like to urge the House to let this Marriage Bill sail through though there are other issues.
The other issue is that we say the age of marriage is 18 years and that is very perfect. However, we are addressing an issue which is unique to society. When we look at the sexual habits or behaviour of our community, children are starting to have sex at a very tender age and some of them will end up having kids. Legally, we still appear to be operating with a law where age of consent for sexual activities is 16, honestly can we legislate 16 and then leave the gap where all these things are happening. Are we also going to harmonise with the termination of pregnancy because if at 16 you cannot marry but can become pregnant since they are indulging into sexual activities? So, the State must offer a service to terminate that pregnancy because we know the effects of a child being a mother.
Are we saying we are failing to change the termination of Pregnancy Act to say any pregnancy for a girl child who is less than 18 years should be terminated lawfully? We are not comprehensive enough. When we put these laws -we have to make sure that it inter-digitates with so many other factors and that is a gap which I think we cannot consider Marriage Bill and fail to put clearly what will happen in terms of age of consent to sex . I do not think we will leave it to have another Bill to address that. I hope the Hon Minister will look into that and ensure that we try to harmonise our laws.
When people are in a marriage which has been prohibited and they had accumulated property, how is the dissolution of that property going to be effected with the current laws because it appears it is silent in the Bill. So, probably the Minister will clarify to us what will happen to those laws which are void yet they were already living a life.
Clause 28 of the Bill requires any marriage officers to confirm the age of the people who want to be engaged in the marriage. At the moment we have adults who do not have birth certificates. Is the State going to ensure that when we pass this law, every Zimbabwean who needs birth certificates will easily obtain them. If someone does not have a birth certificate and they want to get married, they will fail to do so because of that administrative requirement. I hope by the time we pass this into law it will be a thing of the past where we have adults dying without the requisite identifications. So, I am sure we will be able to come up with a much more polished law which will be harmonised with the other laws so that we do not inconvenience our people. With these few words, I would once again want to thank the Hon. Minister for bringing this Bill to the august House and hopefully he will consider the interests of the people about lobola. I thank you
HON. SEN. CHIEF SIANSALI: Thank you Madam President
for an opportunity to add my voice to this Bill. First and foremost, I would like to congratulate the Minister for the effort in bringing together these pieces of legislation that all speak to marriages in the country. Again, I would like to congratulate him adding my excitement on the fact that as a chief when this passes into law I will become a marriage officer.
However, I have got reservations on that because in as much as the Minister had confidence in us that we should be marriage officers but the terms that were used give doubts. When we come to consulate it says
‘shall be marriage officers’ but when it comes to us traditional leaders it is left to the preserve of the Minister, it says ‘may’. Why should it be
‘may’ when we are all chiefs. If there are reservations on some chiefs, that might be incapacitated then is an issue of the requisite training that will follow after which will drop out those that might not meet the requirements. The spelling should come out clear to be ‘shall’.
Again, having lived in a law that to me sounded more Eurocentric, I felt this was going to be an opportunity for us as an independent Zimbabwe led by Africans to give it an African flavour so that it sounds more African than anything imported from somewhere else. When we go through all the sections, it is sounds as if it is an importation of other marriage laws that do not resonate with us as Zimbabweans. Yes, I am aware that issues to do with marriages have some uniformity in a global village but there should be distinct aspect or wordings that then define as to who these are. So, we should have ours as Zimbabweans.
This is the only opportunity noting that laws are not changed every week and every day. So, if you leave out or spell it in the wrong way now, we will reel in the pain for many years to come. We should not shoot our culture, instead, we should revive it to promote ubuntu, hunhu
(humanity). This is the chance Madam President.
We listened to the Minister the previous day and we read in the press about the issue of lobola. Madam President, lobola is not negotiable in the Zimbabwean perspective. Lobola is very well intended, it is the unifier of families, it is what we term marriage in the customary perspective. Without lobola, it is mapoto (cohabiting.).
Madam President, as such, we would like to bring to the attention of the Minister that, we should have a special clause that points out to the effect that we need lobola to be paid. After all, what is the fuss about lobola? Lobola is not something that we pay like cash and carry goods, you pay in installments, a mngeable figure. Madam President, I bet that even most of us here in this august House have not finished paying lobola – [HON. SENATORS: Hear, hear.] – However, they are married. Some have not finished paying lobola but they are married, so what is the fuss about it? Yes, we might have other clichés in society that purport to say, women are being commodified, that is not true. It goes with wrong interpretation.
Madam President, if we scrap off the prerequisite of lobola, it means we are detaching our children soon after marriage from their families and parents. No mother or father would want to associate again with a child whose lobola was not paid. This means we are saying,
‘boys and girls, you are above 18, you marry, go away and find your own home but do not even look back to us.’ What are we promoting? I think as a country, we value family unity and extended families in our traditional way.
Madam President, if us as chiefs are going to be marriage officers, how do we picture a Chief standing in front of couples who want to marry, not even talking about lobola, am I still a Chief. If I am to take my definition from the Constitution that, ‘I am the custodian of the customs and culture,’ then am I doing my duties or I am relenting? – [HON. MEMBERS: Hear, hear.] – We bring this to the attention of the Minister that, yes, we have got those who are attacking our culture, let the Minister not listen to them. They are attacking our culture by trying to scrap off those nitty gritties that define us but we should not give them an ear. We know they are there because those are the sayings that point out that, ‘this is Tonga culture, this is Shona culture.
In shone, I hear they always say mombe yehumai yakakosha. – (token of a cow for the mother-in-law) Unozoita musha wakaita sei vana vasina kubhadhara mombe yehumai (What kind of a home will it be if one fails to pay the cow for the mother-in-law?) – [HON. SENATORS:
Hear, hear.] – Every culture has got its aspect that it values in marriage. As Africans in Zimbabwe, we value that there is lobola payment. After all, we are not even punishing or infringing on the rights of the woman, not at all. The person who is made to pay is a man and not the woman, so where is the infringement? We are actually valuing the woman by making sure that, for me to stay with you, I should appreciate – [HON.
SENATORS: Hear, hear.] –
Madam President, I was not aware that the age of consent was not looked into. I got a bit disturbed when I got it in the House that the age of consent is still at 16. Then, what are we amending? I thought that was the issue that we were fighting against all these years. We have a law or we still have a law that provides that the age of consent is at 16 whereas the age of maturity is at 18 yet the two were not marrying. It has a two way leeway where children could be mischievous and fall pregnant but are not allowed to marry. We are promoting child mothers and out there we have got vultures and cankers and predators that keep haunting these girls. If the age of consent says 16 and the girl consents and is impregnated, the family fumes to say, ‘no, our girl was raped,’ but the courts will throw it out to say, ‘that is not rape,’ because the child is allowed to consent at 16 – [HON. SENATORS: Hear, hear.] – then we look like fools, we who enforce as traditional leaders to say, children are not supposed to marry before the age of 18. They will say, ‘but my child was impregnated by Mr. Sibanda’s child, so are you saying I should stay with my child, the pregnancy and then the newly born grandchild for me to look after again?’ You say, that is the law, that is not palatable but we are reeling in pain. So, should we now miss this opportunity to correct it, obviously not?
Madam President, we plead with the Minister to make sure that that is incorporated; it should be brought in tandem. The age of consent should be 18 for as long as the age of marriage is 18. There is no reason why my child should consent, fall pregnant and fail to marry. If we leave the age of consent at 16, that is how we are witnessing a lot of school drop outs on the girl child. Why, because in as much as the law might allow them to go to school when they are pregnant, they do not want to do so because they feel ashamed. This means that one way or the other, we are attacking the girl child and the woman. The graph remains such that more boys will be in school than girls. I do not think that is what we want as a country. We are clamouring for 50:50, it starts from there. We are also clamouring to bring it at equilibrium but it starts from there because if the girl child does not finish school it means all opportunities that come thereafter, she will not be able to grab them because she will have dropped out of school and all confidence is thrown away.
Lastly Madam President, the definition of customary marriage should be in sync with definitions of other pieces of legislation that speaks to the same. For instance, the customary courts and local courts, it defines the customary aspect of it, backdating it to anything that could have been from 1891. As such, it brings in lobola at full throttle. So, whatever definition would be put on this one should be in sync with the already existing pieces of legislation so that they do not keep fighting. I thank you.
HON. SEN. CHIEF CHIKWAKA: Thank you Madam President.
Thank you for giving me this opportunity to add my voice on this debate. I would like to thank the Hon. Minister of Justice, Legal and Parliamentary Affairs who crafts laws for law and order. Madam President, I have a problem as has been said earlier on. We want to get a clear definition on the term, ‘customary marriage’. It frustrates us as chiefs, that if we were to go back to 1891 and before the advent of the whites or even after the arrival of the white people, if we look at our fathers and elders of the people who are here, what were the circumstances that surrounded the issue of lobola? Why are we using the wrong words when we talk about culture and our customs? They treat them as evil things – they see nothing good coming out of it.
Where are we getting this mentality from? If the terms matekenya ndebvu and tsvakirai kuno were used and payment was done for such issues that would be used as a way in which a prospective son-in-law would not just get someone’s daughter for free; you would even pay seduction damages if you were to indulge in a sexual relationship with someone’s daughter and impregnant them without the consent of the father or parents – that was meant to be punitive. In our culture, you cannot simply be intimate with our daughter because you had to first approach and we ask you, ‘How did you come to be in such a relationship?’
Ladies, we hear you pride yourselves and bringing some measure of importance to the issue of lobola by indicating that so many herds of cattle were paid as bride price. It is not a chance for other parents that are not placing the proper value of the lobola custom and are charging exorbitant prices as lobola. Some of you who are here, your fathers have not fully paid lobola for your mother and as children you are asked to pay the outstanding balance and it is happening. It is mad that this was not a question of getting rich by a family but a way of uniting families.
Those who are here, let me ask how many times are you being assaulted at your home? If I would juxtapose this with the promotion of this habit of live-in lovers – where are you getting this culture people? Girls who are collecting their own lobola – it is anathema in the African culture. In our African culture, lobola is paid to just cement the relationship. As a chief, if I am about to solemnise a marriage and I do not ask about the lobola issue – are we still Africans? We still have two dishonest children who just come and present themselves before a Marriage Officer and say the chief should just solemnise the marriage because they want to marry each other. Where are those crooked people going to end up?
I can cheat Grace and solemnise a marriage with her and in our own culture I will have two wives. I cannot marry a second wife without the consent of my first wife and my father-in-law having lobola in fulfillment. I have to pay a beast to give to the senior wife or the first wife and say that I want to have more children since I am still young. The wife has to consent to that and not this habit whereby you are now belittling or looking down upon our culture. I am saying that the Hon. Minister should look into this issue because as chiefs, we cannot solemnise marriages where lobola is not asked forbecause lobola is meant to cement our relationships as families.
We would be much happy Madam President if the Hon. Minister
was to put this one clearly. It should come out in all the various vernacular languages so that when such clauses are made in English – we may not be very happy with them because we see that these laws are no longer being made for Africans. We are now bringing in foreign cultures and saying that this is good. A country that does not stand by its own values or culture is dead. We have our culture, our way of doing things and in fact in terms of our culture, we follow certain procedures. There is a go - between and children cannot just come – the two of them, and have a marriage or a bon appétit.
Why should we be asking for the sex of a child who is being bathed when you see that the girl is maturing? We will have our own girls being denigrated or looked down upon because of doing bad things. We still praise Nehanda because she stated that her bones shall rise up and order the children to rise against the white settlers. We will be a deserted village and there will be more cases of domestic violence. As parents you are going to be insulted because you talk of girl children who join families without lobola having been paid and they do away with traditional culture.
The future is part of the past and we should always be looking at our culture and maintain it. We were happy when Section 40 was removed from the Marriages Bill, that today the woman is with Chief
Chikwaka and tomorrow she becomes Chief Nhema’s wife. We all had to do away with it and agreed to come up with a good law but you now want to bring in certain issues that were meant to cement our children’s’ relationships to long lasting marriages and make it so easy so much that the two of them would just go and have their marriage solemnised.
The Hon. Minister should correct these anomalies and clearly define what customary law is all about because we have heard of such sections and that Section 5 (11) and other such sections were now at par in terms of the Marriage Act. What is customary law if you say that it is no longer a law? We should not colonise everything. What we do in our culture is the law. Why should you not go to the chiefs court instead of going to the Magistrates Court? The chief’s court upholds our culture and tradition until Jesus comes back.
The marriage institution was created by God himself and he said that he is a God who uses a constant today, tomorrow and forever more.
He gave us an example of Isaac when he was about to marry Rebecca.
A child who was brought from Damascus had to swear an oath on
Abraham’s thighs and lobola was paid. She came aboard a camel and was brought into the family. She knelt down when she got off the camel and she was covered in a veil. What culture do you want to promote? It is contrary to what God says. I thank you.
*HON. SEN. SHOKO: Thank you Madam President for allowing
me to debate this motion. This is a hot issue and I have heard of hot blood. I would want to believe that the Minister should define the Customary Marriage Act properly.
On the issue of lobola, when the whites came even if they brought customary marriage, I looked at my mother’s certificate when she got married to my father, they would indicate ‘take consideration of the type of lobola that would have been paid. My mother was a chief’s daughter and you could not marry in the chief’s family when you had no intentions to solemnise the marriage. They would indicate how much you would have paid and what the balance was.
So if we were to allow these marriages where lobola is not paid, are we not being worse than the whites? The whites came and colonised us but they allowed us to live with our own culture and sowe should keep our own culture. We have a Minister and a black Government. We should be putting it clearly so that our customary marriages are solemnised in line with our culture. We should not just follow suit for the sake of doing it. We are black people who have their own cultures and customs. Who is it that is forcing us to run away from our culture and do other things?
THE HON. DEPUTY PRESIDENT OF SENATE: Hon.
Members, as mature people, I do not think we have got to keep on reminding each other about the cell phones. We have to respect this House because if someone is getting into this House forgetting about their phone, whether it is on, on vibration or loud, I think we have got to respect ourselves because the more you look down upon this House seeks exactly what we are doing to ourselves.
*HON. SEN. SHOKO: As we had already said that chiefs are now going to solemnise customary marriages, we should not leave out the issue of lobola. Once we do that we have disrespected our chiefs and the traditional institution, which is not good. If we are to follow that this law can be very progressive we will go a long way. We will have problems in this august House because we are the elders and that is why we should not allow this law to pass without these amendments. It should take on board what the chiefs require. We need to refine this law and the Hon. Minister should do that. If lobola has to be paid and marriages solemnised by the chiefs, it should be done and that should be part and parcel of the law.
There is also the issue that was raised that one should be allowed to be sexually active from age of sixteen and can only consent to marriage at the age of eighteen. While they indulge in sex, they will become pregnant and you cannot then say you have to wait for two years before you get married to her. You can only get married to her after two years; I do not believe this is proper. The two should be in line with each other. If the age of consent is eighteen the same should apply for the majority age and that will be agreeable.
In terms of lobola and if we are going to go to other cultures or countries, there are certain aspects or values that hold dear. In the Marriage Act, I think when you are getting married or having the marriage solemnised, you produce the rings. Maybe I am doing it wrongly but when I got married we were asked to produce rings and the rings were exchanged. Thereafter, you were asked to kiss the bride in line with the Marriage Act. This is a foreign aspect.
In terms of our Customary Marriage, the chief does not say you may kiss the bride. It is unheard of. So, if we are in agreement that there are two types of marriages, we should accord the two types of marriages equal opportunities and we should have the set of procedures that were always there in maintaining our culture, values and morals. We should not be influenced by the colonisers. If we are to do the customary way of getting married, the chiefs should be at liberty to ask questions to ensure that certain requirements have been fulfilled. Once we lose certain aspects of our culture, if we are to come back to this House and then say we made a mistake then let us amend that law.
I was part and parcel of those Committees that went around the country. I went to Binga. The people in Binga said that if had we not gone to an urban settlement and gone to the rural, they were going to shoot us with arrows because we wanted to scrap off lobola. Lobola should be part and parcel of that law, it is very important. If you have paid lobola and want to have your marriage solemnised by the chief, the chief should not solemnise that. You should only have your marriage solemnised because you have paid lobola.
This issue is at the core of our values as Africans. We should not just be copy-cats. If you see Shoko wearing a suit today, do not crave for it. It is different stocks for different folks, we are never the same. Those that want to go the English way should do that and those that want to maintain the traditional way of doing things should also be at liberty to do so and that should be maintained.
With those words Madam President, I believe that you have understood. If we were outside I would say, ‘tell me if you have understood’. I reiterate once again that lobola should be paid. The Act should define clearly what it is all about. The chiefs should solemnise these marriages because a lot of people do not have marriage certificates.
On the issue of property, marriage should be in community of property. Property is acquired by a man and a woman, and we should understand that. It is the husband and wife who amass property. What they have amassed belongs to the wife and husband jointly. Once there is some disagreement, that aspect should also be looked into so as to ensure that an amicable distribution is reached. Minister, once again, look into this issue. I am going to lobby all these Hon. Members to ensure that this Bill is not passed until it incorporates exactly what it is that we require. Thank you Madam President for affording me this opportunity.
*HON. SEN. SIPANI-HUNGWE: Thank you Madam President
for affording me this opportunity to add my voice to this debate. I also thank the Minister for bringing in such a Bill because it was long overdue as others have said.
I will debate on the issue of lobola – Hon. Minister, when you
came here two weeks ago, we observed that you were being insulted on social media. We were also equally insulted. People were asking if we were spending the whole day in this august House discussing scraping of lobola. They were saying if our fathers had paid lobola for our mothers, now when you pass this Bill, we would not get lobola for our children.
That is unacceptable. That is not acceptable.
I am talking about our African culture – once payment of lobola has been scrapped, then the mother’s beast (mombe yeumai) can no longer be paid. This is what it means from where I come from. Once there is one beast for the father for the kraal (mombe yedanga) it means that if all this is scrapped, mombe yeumai will no longer be there. This cow symbolizes the unity of the marriage between the two. The children that are going to be born out of that union will be prosperous and healthy if only that cow is provided. That is what our forefathers did. We are not coming up with these measures.
A long time ago, it was just a hoe that was paid as lobola but mombe yeumai is important. When the girl child expects her first child, she has to go to the parents (masungiro). Goats will be brought to her parents’ house and some other rituals would be performed. If lobola is scrapped, this will be difficult for us. It means that our morals will be eroded. There will be moral decadence. This is not possible and we will not allow our children to enter into marriages that are solemnized without lobola having been paid. My own daughter Farai cannot be taken away without lobola being paid.
As we speak right now, some of us or the majority here, not all of the lobola has been paid, but it is known that so and so’s son paid lobola for so and so’s daughter and they were given blessings. As mothers, we bless these marriages because we were given our cattle, our winter jackets and suits. We will be proud that our son in law so and so has paid these things as part of the bride price. We should not lose that aspect of our African culture as Africans.
You hear that people are murdering each other – it is because they have lost that aspect of hunhu. Zimbabwe is loved by God. We still uphold our culture and ubuntu. There is Covid-19 but because of our morals and cultures, our numbers are less. It is because of our way of life and our values that we have fewer cases. The Minister should look into this issue seriously. I stand with the Chiefs and say that we want our lobola, mother’s clothes such as customes. Mombe yeumai should
be paid so that our children can enjoy their marriage. I thank you.
*HON. SEN. KOMICHI: Thank you Madam President. I also
want to thank the Minister who has brought in this Bill. I have two girls, Kundai and Tsungai. When the Minister brought in this Bill, I went back home and my girls approached me immediately and asked me if I wanted them to go without lobola being paid. I then asked myself a question – who is going to benefit from this. I thought it was my girls who were aware that lobola is important. I went out and made a survey and no one was in agreement with the scraping of lobola. I observed that women value that lobola should be paid. It is ingrained in our culture and DNA as black people. Even I, I do not want to take a woman without paying lobola. I do not want to take someone’s daughter without thanking the woman who gave birth to that child and took care
of her until she is mature that I admired her and proposed love to her.
In our African culture, we are renowned for thanking and clapping our hands – it is not the monitory value that matters. It is very negligible but it is the gesture of payment of lobola and realising that the girl child leaves her own family for an alien family for her entire life. That is a big occasion that as blacks we must respect. Minister, if there is any law that we need to protect or ring fence in Zimbabwe and export such values even to the whites it is the issue of the payment of lobola.
I will talk about the Marriage Act and the Customary Law. You should ensure that you come up with such a good law that we will be able export to America, China etcetera such that they will emulate our example and be envious. The marriages that are going to be solemnised by chiefs should be held in high esteem and we should be used to doing it so as to change other people’s culture in as much as the colonisers were able to do this to us. The payment of lobola is important. The women pride themselves in the payment of lobola for their hand in marriage. It is part and parcel of our culture. Yes, there are others that will bring the argument that they will be commodified and that they will be traded just like commodities. That school of thought is in the minority, the majority of people believe that there is a value in the payment of lobola and that it must be done. Those men who tell women that their wives are their property because they paid lobola, such men should be arrested. You should record such abusive men who use such abusive language. There is modern technology and you have phones. Just record them and go and report to the police so that they can be arrested to ensure we do away with this abusive language.
A woman is a friend, a life partner and you are your wife’s child. She will look after you. If we scrap off the issue of lobola – men are hard hearted at times, do you know that. Women are going to be scolded and they will even start questioning if they are still human beings once you scrap off this payment of lobola. If this marriage becomes free for all where no lobola is paid, our daughters are going to be made to suffer by men. It is very painful and it hurts me because I have daughters. When our daughters are abused and their property is thrown out through the window because there is nothing to unite the two once lobola is not paid, we actually defer or bar the issue of abuse because of payment of lobola.
The issue of early child marriages should be quickly looked into. We could stop the other issues and we should make sure that we align our laws. If you see a mango that is half ripe, should you eat that mango? If your daughter is into puberty it does not mean they are sexually ripe. Exercise the same patience as in the issue of a mango and allow it to grow up. Medical research has shown that there are a lot of problems when the child gives birth whilst still young. Mentally she is not mature and she is not marriage material. Men are cruel, abusive and she will be so young to absorb such pressure. When she is left at home and the husband goes beer drinking, he comes back and assaults her to the point of stress because she is immature and may end up having serious mental problems. So she requires being mature to cope with all the matrix of family management. She will not be able to even look after her mothers-in-law and the family as well as provide food. In Rwanda they observed that 7% is the number of people involved in child marriages while Zimbabwe is sitting on 31%. We need to improve and come up with such a law so that we discourage early child marriages. We have observed that in 24 countries in Africa such laws have been brought up. This includes Mozambique, Malawi and Chad. It shows that as Africans we have observed that it is bad to be involved in early child marriages.
In Zimbabwe we have problems with certain churches of the apostolic faith sect where early child marriages are encouraged through allegations that God has shown them and the holy spirit has said this and that. That is not proper. I am a member of such a church but we need to be enlightened on the problems that will befall the child who has been involved in early child marriage. Men should be told that they should not be greedy and get into such affairs with under age children. They should give them sufficient time to mature and thereafter they will get married to them. They are not going anywhere.
There is also the problem of the child having to stop going to school and they sit idly in communities after grade 7. Thereafter she is proposed to and gets married. We should also encourage the girl child to attain higher levels of education so as to reduce early child marriages. Hon Minister, we should also work to improve our economy so that we have a functional industry and there is work on the farms and our economy becomes better so our children get employment and thereby mature before they get married, hence we will be able to reduce early child marriages.
There is also another issue that others have already mentioned. It is the issue of sexual consent at the age of 16 and that for one to get married it is 18 years. There is a misnomer because the two should read the same with 18 years being the age of sexual consent and marriage. All the old men here go back to your youthful years and tell us what used to happen when you wanted to have a girl at such an age of 16. You would know that there would be a certain bad spirit that will come into you and a lot of pregnancies were observed. You are aware of that.
Even in schools, it is the grade 7 children who drop out of school because of pregnancies. We run the risk of having children becoming single mothers. We know that when a law has come into effect the numbers reduce but the naughty ones are always there. There are those that have avenging spirits in their families. We may not completely bar them but there will be a reduction in the number of cases. Let us put the age of consent to sex at18 years and the marriageable age again at 18 years. Once a child who is below the age of consent is impregnated the culprit should be arrested. The two should be aligned. With those few words I would like to believe that the Hon. Minister has understood what the House or Council of Elders has said. I thank you.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you
Madam President. I just want to respond on the issue of lobola because I have asked that the debate on the Marriage Bill be adjourned until tomorrow. We want to understand one another. We had a law that used to talk about the lobola that is now being scrapped off. Madam President we used to have two laws that dealt with the issue of marriages. There is the issue of payment of lobola and the solemnisation of a marriage. These are two different issues. In our culture you hear a woman saying I had lobola paid for me and the marriage was solemnised. These are two different things, the payment of lobola and the solemnisation of the marriage. We had a law dealing with Customary Marriages and Civil Marriages Chapter 5.11. At the moment Chapter 5.11 if you were to go before a magistrate or a priest, there is no law that says the magistrate or the priest should ask the whereabouts of your father and aunt and that they should write down the amount that was paid as lobola as a requirement for the solemnisation of the marriage.
As we debate, we should be alive to the fact that such issues are not being asked. If we lost our culture, we lost it in 1982 when we came up with the Legal Age of Majority Act. When that law was enacted, there is one Katekwere who went to court and sued for seduction damages, that their child has been seduced and they wanted damages. In the past, what it meant was as a father, once you have impregnated my daughter, you have reduced the value of the lobola that I was going to get. The judge looked into it and said this tended to let women be looked down upon. He said the person who should sue for damages should be the daughter. At that time, the father would treat her daughter as a minor and said he owned her. Once she gets married, the rights would be transferred to her husband. Chief Justice Dumbuchena removed the issue of damages and said it was no longer a requirement in terms of Chapter 5.11 on solemnisation of marriages. However, he did not remove the issue of the payment of lobola. The person who should consent to the marriage should be the wife. The marriage officer, whether it was a magistrate or a priest would not ask for the payment of lobola.
We asked for an explanation on the customary marriage so that we would encourage women in the communal areas so that their property rights are safeguarded. We then said that they can go and be married without the issue or the asking of lobola. Let us go to the Constitution that we make up with that gives the rights to women. It says the men and the women have equal rights. The issue of the lobola and the issue of the marriage certificate, when the late former President Mugabe was the Prime Minister, he did not answer clearly. He said once my sister gets married, I would want my lobola. Hon. Zvobgo and Hon. Mujuru said they were going to look into the issue. Thirty – eight (38) years down the line, if we were to write in our laws that a woman cannot have a marriage solemnised, the man and the woman are no longer equal. Equality means that each and every person must come up with a decision. If you talk of equal rights, it means that if my daughter wants to get married and I say she cannot get married, it means that she no longer has the same rights as her brother who when he says he wants to go and get married, he could simply go and do that.
I was saying that the issue of culture and I was going to talk about it with the chiefs. Our customary law is not codified. What happens under the chieftainship of Chief Charumbira is different from what happens under the chieftainship of Chief Zvimba. We defined customary marriage as a marriage that is in line with the traditions of the traditional leaders in that jurisdiction. We cannot give a single definition because what happens in Marange, Zimunya, Binga and Zvimba are not the same. Some are saying it is the same but it is not the same. The manner in which lobola is paid is different. When you get married, they say where did you get married because Masvingo is very expensive. We may say it is the same but in reality it is not the same.
What the law is saying is that lobola issues in line with our tradition can be done but when the marriage needs to be solemnized, the two can go and solemnise their marriage. What it means is that since 1982, it is the wife who now tells the husband that he should go and pay lobola. If they did not have, they are going to have the marriage solemnised. We may deny this but a lot of our children are going to get married in terms of Section 5.11. Thereafter, they would inform us that they got married and they solemnized their marriage. They will inform you when they come to pay lobola that they already have a marriage certificate. Personally, I know a lot of people who have done that.
As we debate this issue, we should not say that this law has scrapped off the issue of lobola. This has been in practice since 1982 but what it means is we want the customary law marriage to remain as what it was. We will then state that civil marriage remains what it was.
That is what we need to debate.
With customary marriage, we have to record that so much money has been paid as bride price. The other types of marriages have no such requirements. Let me respond and say we will proceed tomorrow but the age of consent and the majority age are two different issues. The age of consent deals with the issue of the capacity to appreciate whether what one is doing is right or wrong. If a girl child is below the age of seven and is sexually molested, it is rape. From seven to twelve years, there is a rebuttable presumption that such child cannot consent to sex and it is also defined as rape. One who is between 12 and 16, they say she has capacity, what it means is that there is classification of the offences that one commits. Our children get driver’s licences, at the age of 16. They are allowed to drive motor vehicles at the age of 16. There are two issues that we should be looking at, we have our culture and our customs that our children should not do. They must not indulge in certain things before the age of 18.
We should not unnecessarily criminalize society by coming up with such laws, so there are competing interests that we need to balance when we talk of the age of majority as 18 years or those who are in productive age would be afraid to then indulge. We are saying that our children should be taught what exactly they must do and that they must refrain from sex in terms of our culture. For someone who is 16 years we will say it is a criminal issue because in other countries they say the age of consent is 14, but they teach their children to refrain from sex until they are at the age of 18. I also urge this august Senate to teach our children to refrain from sexual intercourse before they become 18 years of age. It is difficult for us to change the law of consent from 16 to 18 years, it is a difficult issue and we may fail to actually pass it. I would want to thank the Hon. Senators, and we are going to debate on how we should reach consensus. In our Constitution it does not say that if one wants to have a marriage solemnized we must put the issue of payment of lobola. I thank you.
Madam President, I move that the debate do now adjourn. I will meet with Chiefs at the request of the President of the Chiefs’ Council to discuss about the Marriages Bill tomorrow and then we will proceed.
Motion put and agreed to.
Debate to resume: Wednesday, 31st June, 2020.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the Senate
adjourned at Twenty Minutes past Four o’ clock p.m.