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SENATE VOTES 17 FEBRUARY 2022 NO 21

ADVANCE COPY‑UNCORRECTED

No. 21

PARLIAMENT

ZIMBABWE

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VOTES AND PROCEEDINGS OF THE SENATE

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FOURTH SESSION – NINTH PARLIAMENT

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THURSDAY, 17TH february, 2022

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Half past Two o’clock p.m.

The Acting President of the Senate in the Chair.

Prayers.

Members Present

Baipai E

Charumbira Chief F

Chifamba J

Chikwaka Chief

Chimbudzi A

Chimutengwende C.C. C

Chinake V

Chirngoma J.M.

Chisorochengwe T

Chundu -Mbasera Chief

Denga P

Dube A

Dube M R

Gweshe K

Hungwe S.O.

Kambizi E.

Khumalo M.N.

Khuphe W.

Komichi M.

Mabika D

Makumbe Chief

Malinga J. T.

Maluleke O M

Mapungwana Chief

Masendu Chief

Mathupula Chief

Mathuthu T

Matiirira A

Matsiwo Chief

Mavetera T

Mavhunga M

Mbohwa M

Mkhwebu A

Moeketsi V

Mohadi T.B.

Moyo G

Moyo T

Mpofu B

Mpofu S

Mudzuri E

Munzverengwi A.

Mupfumira P

Muronzi M

Muzenda V T

Mtshane L K Chief

Ndlovu C

Ndlovu D M

Nechombo Chief

Nembire Chief

Ngungumbane Chief

Nhema Chief

Ntabeni Chief

Nyangazonke Chief

Nyathi R

Parirenyatwa D P

Phugeni K

Rwambiwa E

Sekeramayi S.T

Shumba C

Siansali Chief

Tongogara A K

Tsomondo B

In attendance in terms of section 138(2) and (3) and section 104(3) of the Constitution

Hon M Ncube; Hon. Z. Ziyambi

Printed by Order of the Senate

Absent with leave

Questions without notice

Hon. Sen. Komichi, seconded by Hon. Sen. Chisorochengwe, moved: That time for Questions without notice be extended by 15 minutes.

Motion put and agreed to.

The Minister of Justice, Legal and Parliamentary Affairs moved: That Orders of the

Day, Nos. 1 to 5 for today, stand over until Order of the Day No.6 has been disposed

of.

Motion put and agreed to.

Committee: To resume on the Marriages Bill (H. B.7A, 2019) –The Minister of Justice, Legal and Parliamentary Affairs (Progress reported 15th September 2021- The Minister of Justice Legal and Parliamentary Affairs).

(House in Committee)

On clause 9,

The Minister of Justice, Legal and Parliamentary Affairs moved: That clause 9 be recommitted

Motion put agreed to.

The Minister of Justice, Legal and Parliamentary Affairs moved:

That Clause 9 on page 9 of the Bill be deleted and substituted with the following-

9 Chiefs as marriage officers for district

(1) 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.

(2) No later than four months from the date of commencement of this Act, or from the date of investiture of any chief, as the case may be, the Minister shall ensure that every chief is

certified as competent to carry out the duties of a marriage office for the purposes of

solemnising marriages according to customary rites.”

Amendment put and agreed to.

New Clause 9 put and agreed to.

On Clause 16, The Minister of Justice, Legal and Parliamentary Affairs moved:

On page 8 of the Bill, delete sub-clause (2) on lines 42 to 45 and substitute the following sub- clauses (the existing sub-clauses (3) and (4) being renumbered sub-clauses (4) and (5) respectively)

“(2) A marriage officer in a customary law marriage shall put to either of the parties to a proposed marriage or to the witnesses any questions relevant to the identity or marital status of the parties to the proposed marriage, to the agreement relating to marriage consideration (lobola or roora), if any, and to the existence of impediments to the marriage.”.

(3) At the solemnisations of every customary law marriage there must be present, in addition to the marriage officer and the parties to the marriage, two witnesses, one for each party to the marriage, being a relative who, under the customary law of the community concerned, is recognised as the primary family witness for the marriage.”

On page 8 of the Bill, delete sub-clause (5) (now sub-clause (6) and substitute the following sub- clause:

“(6) If the marriage officer is satisfied ¾

(a) that the intended husband and wife freely and fully consent to the marriage; and

(b) that from the two family witnesses it is apparent that customary law formalities have been met; and

he or she shall proceed in terms of section 30 and such marriage shall be a valid marriage contracted according to customary law.”

Amendment put and agreed to.

Clause 16, as amended, put and agreed to.

Clauses 17 to 40, put and agreed to.

On Clause 41, The Minister of Justice, Legal and Parliamentary Affairs moved:

On pages 17 to 18 of the Bill, delete sub-clauses (5) and (6) and substitute the following sub- clauses:

“(5) Where one of the persons in a civil partnership is legally married to someone else (hereinafter called the “spouse of the civil partner”), a court applying sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] to the division, apportionment or distribution of the assets of the civil partnership shall pay due regard to the rights and interests of the spouse of the civil partner and ensure that its order shall not extend to any assets which are proved, to the satisfaction of the court, to be assets properly belonging to the spouse of the civil partner.

(6) It is here provided that, by virtue of the partners dissolving their civil partnership, neither of them shall be deemed to be guilty of bigamy contrary to section 104 of the Criminal Law Code if either of them is legally married to someone else.”

Amendment put and agreed to.

Clause 41, as amended, put and agreed to.

Clause 42, put and agreed to.

On Clause 43, The Minister of Justice, Legal and Parliamentary Affairs moved:

To delete Clause 43 on page 6 of the Bill and substitute the following clauses (and renumber all subsequent clauses accordingly):¾

43 Recognition of marriages of foreigners or former foreigners

(1) A foreign marriage is recognised as valid if, at the time the marriage was contracted in any country—

(a) none of the spouses was already married as a party to a civil marriage, or already married under the law of a third country that forbids marriage while either party is a party to a marriage that still subsists in that third country; or

(b) the spouses were not related to one another within a degree of relationship prohibited for the purposes of section 75 (“Sexual intercourse within a prohibited degree of relationship”) of the Criminal Law Code; or

(d) none of the spouses suffered a mental incapacity to consent; or

(e) each spouse freely and fully consented to the marriage.

(2) For the avoidance of doubt—

(a) no party to a polygamous marriage contracted in a foreign country where such marriage was contracted lawfully and without contravening subsection (1) shall be guilty of bigamy under section 104 of the Criminal Law Code if at the time of the marriage the husband was domiciled in that country;

(b) in accordance with the common law, the law of the husband’s domicile at the time of the marriage governs the matrimonial property regime of the spouses even if the husband subsequently redomicles in Zimbabwe;

(c) proceedings for the dissolution of a marriage referred to in paragraph (a) and the consequent disposition of the assets of the spouses and the award of the custody of any children may be conducted in Zimbabwe on the basis of the applicable foreign law in accordance with section 25 of the Civil Evidence Act [Chapter 8:01]

Amendment put and agreed to.

New Clause 43, put and agreed to.

Clause 43, now Clause 44, put and agreed to.

Clause 45, The Minister of Justice, Legal and Parliamentary Affairs moved:

(1) In this section—

“qualified civil marriage” means a union between a man and a woman, not being a union registrable as a civil or customary law marriage under this Act, which is registered in terms of this section;

“marriage officer “, for the purposes of this section, means a person designated in terms of section 11 for the purpose of solemnizing marriages according to Islamic rites.

(2) Subject to this section, a minister of religion who is a marriage officer may, after ascertaining the wishes of the parties as embodied in a marriage contract and otherwise, solemnize a qualified civil marriage between a man and a woman in accordance with the procedures recognized by the faith of which the marriage officer is a minister, if, at the date of such solemnization—

(a) the religion of which the marriage officer is a minister permits a man to be married to more than one woman; and

(b) both parties are members of the faith of which the marriage officer is a minister, and have been such members for a period of at least twelve months before the date of the proposed solemnisation of the qualified civil marriage; and

(c) the man and the woman are not parties to an existing civil marriage with each other, or the man is not a party to an existing civil marriage with another woman.

(3) Before solemnising a qualified civil marriage the marriage officer concerned must satisfy himself or herself that both parties —

(a) are opting for a qualified civil marriage in preference to a civil marriage; and

(b) understand that that the principal difference between a civil marriage and a qualified civil marriage is that the latter is a polygamous or potentially polygamous marriage.

(4) Part s VI (“Provisions applicable to all marriages”) and VII (“Registration of Marriages”) apply to the registration by the marriage officer referred to in subsection (2) of a qualified civil marriage, for which purpose the marriage officer shall keep two marriage register books, one for civil marriages only and one for qualified civil marriages only:

Provided that until such time as the form of the qualified civil marriage register book and the form of an entry therein are prescribed, the marriage officer concerned shall clearly distinguish in his or her marriage register book between those entries relating to civil marriages and those relating to qualified civil marriages, by inscribing the words “qualified civil marriage” in the entries in his or her book relating to such marriages.

(5) If the parties to a union qualify in terms of subsection (2) to contract a qualified civil marriage, there must be no other impediment to the union that, under this Act, would be an impediment to the registration of a civil or customary marriage, that is to say (without derogating from the applicable provisions of Part VI) the parties to the proposed non-civil marriage must—

(a) both be aged eighteen years or more at the date of the solemnization of the non-civil marriage and be capable of understanding, and understand, the nature and effect of the marriage ceremony; and

(b) not be within a degree of relationship prohibited for the purposes of section 75 (“Sexual intercourse within a prohibited degree of relationship”) of the Criminal Law Code; and

(c) both give real consent to the qualified civil marriage, that is to say, their consent must be informed and freely given and not be tainted by duress or fraud, or the mistaken identity of either party.

(6) Additionally—

(a) there must be no impediment to the union that, in accordance with the tenets of the faith concerned, would be an impediment to the recognition of that marriage in the eyes of that faith, such as the fact that the man is already married to more women than allowed by the faith concerned, or that the woman is still married to another man at the time of the marriage ceremony.

(b) the woman who is a party to the union may, in any marriage contract evidencing her consent to the marriage that is produced to the marriage officer at the time of solemnisation, stipulate that that her husband may not, without her express consent, become a party any other qualified civil marriage during the subsistence of their marriage, the breach of which stipulation shall be sufficient cause for the institution of divorce proceedings by the woman.

(7) If after a qualified civil marriage is registered it is found that any requisite for such marriage mentioned in subsections (2), (5) or (6) was not complied with or did not exist at the time of registration, or that the purported marriage was registered in contravention of subsection (13) (b) or (c) or (14), then the marriage shall be void.

(8) Subject to subsection (9), the general law shall apply to the status, guardianship, custody and rights of succession of the surviving spouse or spouses and children of a qualified civil marriage,

(9) In the absence of a will or of a distribution agreement referred to in subsection (10), property in an intestate estate of a party to a qualified civil marriage shall devolve in accordance with the general law on intestate succession as if every surviving spouse of a qualified civil marriage was entitled to a joint and undivided share of the estate on the same basis as every child of the intestate.

(10) The Master of the High Court shall accept for the purpose of subsection (9) a distribution agreement lodged by the executor to which all parties interested in the succession to the estate who are capable of giving assent thereto have subscribed their assent, and in respect of which there is exhibited to the Master an affidavit sworn a licensed marriage officer who is a minister of religion competent to solemnise qualified civil marriages, to the effect that the distribution agreement conforms to the tenets of the faith by virtue of which the intestate contracted the qualified civil marriage.

(11) Section 45 (“Dissolution of marriage”) applies to the dissolution of a qualified civil marriage, and if there is any question as to the subsistence of such a marriage by reason of its voidness as mentioned in subsection (7) or for any other reason, then section 40 (“Civil partnerships”) will apply if the relationship between putative spouses is a civil partnership falling within the scope of that section.

(12) In proceedings for the dissolution of a qualified civil marriage under the Matrimonial Causes Act [Chapter 5:13] the court shall take into consideration any agreement between the parties as to the division of assets, custody of the children, and maintenance of the wife and children of the marriage, that is in accordance with the tenets of the faith by virtue of which the spouses contracted the qualified civil marriage, for which purpose the court may request and receive in evidence the testimony by affidavit of a licensed marriage officer who is a minister of religion competent to solemnise qualified civil marriages to the effect that the agreement is in accordance with such tenets.

(13) For the avoidance of doubt it is declared that—

(a) parties to a registered qualified civil marriage that is actually polygamous are not in contravention of section 104 (“Bigamy”) of the Criminal Law Code, unless either party purports to contract the qualified civil marriage while he or she is still a party to a subsisting civil marriage;

(b) if any of the parties to a qualified civil marriage subsequently changes his or her faith, the qualified civil marriage continues to subsist until its dissolution;

(c) if either of the parties to a civil marriage subsequently changes his or her faith to a faith permitting of marriage in the form of a qualified civil marriage, he or she may not contract a qualified civil marriage until after the dissolution of civil marriage;

(d) an extract from a marriage register referred to in section 35(6), being an extract from the qualified civil marriage register book or an extract clearly indicating thereon that the marriage concerned is a qualified civil marriage, can be produced in resolution of any question that arises in connection with—

(i) the registration or certification of any birth or death of a child or spouse of a qualified civil marriage, or

(ii) the issuance of any other official documentation directly or indirectly required to secure any of the rights conferred by this section on such spouses and their children.

(14) This section does not apply to men and women—

(a) married under the repealed Marriage Act before the date of this Act; or

(b) who contract a civil marriage under this Act at a time when either or both of them were not members of the faith under which a qualified civil marriage can be contracted in accordance with this section;

unless, at the time of the solemnisation of the qualified civil marriage, the civil marriage has earlier been dissolved.

Clause 45, put and agreed to.

Clauses 46 to 55, put and agreed to.

Bill to be reported with amendments

(House resumed)

Bill reported with amendments. Referred to the Parliamentary Legal Committee.

On the motion of the Minister of Justice, Legal and Parliamentary Affairs: The Senate

adjourned at twenty-two minutes past five o`clock pm until Tuesday, 1^st March, 2021 at

half past two o’clock pm in the afternoon.

HON. SEN. CHIEF F CHARUMBIRA

Acting President of the Senate.

TUESDAY, 1ST MARCH, 2022

ORDERS OF THE DAY

Second Reading: Pension and Provident Funds Bill (H. B. 17A, 2019) - The Minister of Finance and Economic Development.

Adjourned debate on motion in reply to the Presidential Speech (Adjourned 16th February, 2022- Hon. Sen. Muzenda)

[Days elapsed: 22]

Question proposed: That a respectful address be presented to the President of

Zimbabwe as follows: –

May it please you, your Excellency the President:

We, the Members of Parliament of Zimbabwe desire to express our loyalty to Zimbabwe and beg leave to offer our respectful thanks for the speech, which you have

been pleased to address to Parliament – Hon. Sen Kambizi

Adjourned debate on motion on the increase of gender-based violence since the outbreak of Covid 19 – (Adjourned 16th February 2022- Hon. Sen. Chimbudzi)

[Days elapsed: 7]

Question proposed: That this House-

NOTING with concern that since the outbreak of COVID 19 there has been a sharp increase of gender-based violence (GBV) especially domestic violence in the country;

AWARE that Zimbabwe is a signatory of UN international and regional treaties and protocols against GBV, amongst them CEADW, SADC Protocol on Gender and Development;

ACKNOWLEDGING the United Nations Secretary-General’s UNiTE by 2030 to End Violence against Women campaign (UNiTE campaign) that calls for global actions to increase awareness, galvanize advocacy efforts, to end GBV;

Aware that this year’s theme for 16 Days of Activism against Gender-Based Violence, which will run from 25 November to 10 December 2021, is “Orange the world: End violence against women now!”

RECOGNIZING the efforts that the government has been taking to curb the scourge of GBV through policies and activities in provinces and districts;

WORRIED that if urgent measures are not taken to reduce the prevalence of GBV, there is real risk that GBV will be a real pandemic within the COVID 19 crisis;

NOW, THEREFORE, CALLS upon the Executive to do more to curb GBV among communities by, among others deploying more GBV mobile services in districts and provinces; and building more safe houses – Hon. Sen. Chimbudzi

Adjourned debate on motion on the Report of the 49^th Plenary Assembly Session of the SADC - Parliamentary Forum held virtually from 25 to 27 June 2021 – (Adjourned 16th February 2022- Hon. Sen. Muzenda)

[Days elapsed: 14]

Question proposed: That this House takes note of the Report of the 49^th Plenary Assembly Session of the SADC - Parliamentary Forum held virtually from 25 to 27 June 2021 – Hon. Sen. Mohadi

Adjourned debate on motion on the importance of a sound road network - (Adjourned

16th February 2022 - Hon. Sen. Mabika)

[Days elapsed: 15]

Question proposed: That this House-

COGNIZANT that a sound road network is the nerve centre of economic development;

NOTING with concern that the Chipinge Mt Selinda road right up to Espungabeira Border Post has not been attended to, resulting in its current state of disrepair;

ANTICIPATING the huge benefits that can be accrued to the country if this road and other similar roads country wide could be given a facelift;

ALSO NOTING that the Border post at Mt Selinda has the potential of being developed as an investment centre and the shortest route to the port of Beira from Zimbabwe thereby enhancing the ease of doing business in the country;

Now, therefore this HOUSE,

Calls upon the Ministry of Finance and Economic Development to avail through the Ministry of Transport and Infrastructural Development adequate funding for the construction, upgrading and rehabilitation of the road network in the country

Applauds the Second Republic for the commendable efforts taken to fulfil the

aspirations of the people by embarking on tangible developmental programmes that

have become the order of the day country wide – Hon Sen. Mabika.

Adjourned debate on motion on grave and rapid environmental damage - (Adjourned 16th February 2022- Hon. Sen. Chirongoma)

[Days elapsed: 16]

Question proposed: That this House-

CONCERNED with the grave and rapid environmental damage arising from high levels of pollution, wanton destruction of forests due to uncontrolled veld fires, desertification, siltation of water bodies including the mighty Zambezi River, its tributaries and Lake Kariba;

ALSO CONCERNED that the unabated damage to the environment has far reaching consequences and ramifications to the economic development of the country, particularly as it affects livestock, game, flora and fauna and crops in general;

MINDFUL that the country`s waterbodies are the backbone of our economic development and need to be jealously guarded and preserved at all times in order to create a legacy for generations to come;

NOW, THEREFORE, in view of the foregoing, resolves that Parliament;

Enacts laws that culminate in deterrent sentences being meted out to all culprits found committing crimes that damage the environment;
Calls upon the Executive to liaise with neighbouring countries on issues that relate to the preservation of water bodies such as the Zambezi and Limpopo Rivers so that practical measures are put in place to avert environmental disasters arising from pollution and siltation which in most cases are caused by human beings;
Urges the parent Ministry to embark on a massive educational campaign countrywide, on the need to preserve the country`s gift of nature, the environment and its natural resources – Sen. Chirongoma.

Adjourned debate on motion on Challenges faced by Children with incarcerated mothers – (Adjourned 16th February 2022- Hon. Sen. Chirongoma)

[Days elapsed: 16]

Question proposed: That this House;

COGNIZANT that Chapter 4 of the Constitution of Zimbabwe Amendment (No. 20) provides for inalienable fundamental human rights and freedom;

EMPHATICALLY NOTING that the state and every person, including juristic persons and every institution and agency of its government at every level have an obligation to respect, protect, promote and fulfil the rights and freedom as provided in the constitution;

DISTURBED by the challenges faced by the forgotten Victims in prisons, namely children accompanying their incarcerated mothers who unavoidably find themselves serving time alongside their parents in violation of their rights and freedom;

NOTING with disdain that the criminal conviction of a mother should not in any way diminish the rights and undermine the freedom of children;

FURTHER NOTING that the children accompanying their incarcerated mothers in Zimbabwe, end up suffering more than the offenders as they are exposed to poor, unhealthy and overcrowded prison conditions which are detrimental to the development of the children.

Now, therefore;

Calls upon the State to enact legislation that upholds the rights and welfare of children accompanying their incarcerated mothers in various prisons throughout the country
Implores the Government to adopt child focused programming in budgeting and policy planning and to come up with alternative sentences to female offenders who may be having infants at the time of their incarceration
Urges the Executive to come up with policies that are in the best interest of the children that accompany their incarcerated mothers and these should not infringe upon their fundamental rights and freedom as provided in the constitution
Calls upon the Ministry of Justice to align the Prisons Act with the Constitution and international best practices on incarceration of female prisons – Sen. Chirongoma

THURSDAY, 3RD MARCH, 2022

QUESTIONS FOR ORAL ANSWERS

QUESTIONS WITHOUT NOTICE

* QUESTIONS WITH NOTICE

*1. Hon. Sen. Chimbudzi: To ask the Minister of State for Presidential Affairs in charge of

Implementation and Monitoring to give an update on plans that have been put in place by

Government to resuscitate the District Development Fund Tillage Unit Programme in the

country.