adminFreedom Mutanda
A HIGH Court judge, Mrs Justice Hlekani Mwayera recently delivered a landmark interpretation of the law that found a lot of takers among the people of Zimbabwe. She intimated that children born out of wedlock are entitled to partake in the execution of their father’s estate. That brought joy to many families who appeared as if they were a pariah largely because their side of the family did not belong to the senior house.
The writer is not a legal expert, but has been eager to learn more about the legal field for years, however, today, we look at the issue of illegitimate children vis-a-vis the African experience among other things.
Call me a radical or an anarchist if you like but there is something wrong with our legal system. Lawyers talk about the Roman –Dutch law and so on and so forth. What is that (the Roman-Dutch law) to the lay man who has never gone to Law School?
His Excellency President Robert Mugabe famously said. ‘’The law is an ass.’’
I couldn’t agree with him more.
Professor Lovemore Madhuku and his peers may take my words with a pinch of salt. Without much ado, our laws have to take into consideration our cultural sensibilities without ignoring the fact that we live in a global village.
Culture, refers to the mores, traditions and the history of a people. Thus, in the crafting of laws, it is incumbent upon the legislators to embrace the cultural milieu of our country bearing in mind the diverse culture we are blessed with.
Take the issue which the learned judge, Justice Mwayera, rightly declared that the so-called illegitimate children had a right to their father’s property; then you can see how culture is important in the crafting of bills in parliament and even the interpretation of the laws must be culture based.
Let’s go back to the early Iron Age states such as Great Zimbabwe, Mutapa, Rozvi and the Ndebele state. It is common knowledge that polygamy was entrenched in the psyche of males and females in those societies. Now, as the descendants of those people, why must we frown upon children that are born out of wedlock?
Most of the kings had more than one wife. Their children from other wives or concubines were never ostracised by the society because a child remains an integral part of a family despite the fact that her mother is not the first wife.
My maternal grandfather had five wives; I am at home when I visit any of my uncles notwithstanding the fact that their mothers were not my grandmother in terms of blood relations. They treat me like the muzukuru I am.
The Roman–Dutch Law is averse to the African value system and will never understand the intricacies of hukama from our perspective.
Tshaka of the Zulu could have been Senzangakona’s love- child but he made a name for himself in Southern Africa just like Alexander the Great, Napoleon Bornaparte and others did in enhancing their nation’s pedigree.
His being a love-child did not in any way lower the military genius imbued in him.
One of the enduring aspects of the Rozvi political organization was that of using the house system in terms of succession after the death of a king. It is historically true that Changamire Dombo had more than one wife; therefore, one may hazard to say that the so-called illegitimate children had a chance to be rulers of the state, at least according to the succession matrix that the founder had cast in stone.
That was really in stark contrast to the ‘’Yafa yabara’’ mode used by other Bantu states in this region at that time. The latter concept invariably meant that the heir from the ‘’big’’ house has an advantage in succeeding the departed king.
Today, people solemnise their love for each other in a court of law or the Church, through its pastors or marriage officers and end up with a water tight marriage certificate that allows the women to denigrate each other by calling the unmarried mother dirty names such as ‘whore’ or ‘smell or small house’ much to the chagrin of the other woman.
I am not advocating a proliferation of children born out of wedlock. I believe in the chastity of marriage.
A child never asked to be born; a man and a woman took their time to engage in an act that resulted in the birth of a child. I remember my Integrated Science teacher, Mr DC Chapfiwa, who taught us that ‘fertilisation is the joining of a male and female gamete cells to form a zygote.’ It’s crystal clear that a child is a gift from God who needs love from his two parents. He should invariably get something from his father’s riches if they are there.
Now, what is wrong with our policy makers? A child is a child and must never be subjected to the mistakes (if ever it is a mistake) of his father and mother. If our forefathers did not see that as a mistake, we should not jump to conclusions and say children must fail to go to school because their father, who used to support them when he was still alive, is now dead. It is outrageous indeed.
Yes, we have to respect the westerners for bringing their brand of culture to this part of the world. Nevertheless, our elders told us ‘Zano pangwa uine rako.’
Loosely translated, that proverb means when someone advises you, it is important for you to have your own philosophy. This idea of saying the first wife’s progeny is the only bona fide recipient of her father’s estate is downright laughable if we take our culture seriously.
‘’Nzou hairemerwi nemushinga wayo’’ is a popular Shona saying that cautions men to soldier on notwithstanding the huge numbers of children that fall under their family.
All these proverbs show that our culture does not like to see children suffer. And then this ogre called colonialism came and said all these wives who come after the senior one has signed a deal with the man, are not as important as the first wife.
That is hogwash!
It must be re-aligned. Fortunately, we see that realignment coming through.
Let’s not be bystanders in the realignment of laws as Zimbabweans. Witchcraft is not the creation of the Shona, Ndebele or any other African culture. It is universal.
Somehow, over the years, Christianity has made witchcraft an African problem and all worshippers are unaware that witchcraft is a reality everywhere in the world. Then, the colonial authorities enacted The Witchcraft Suppression in Act of 1899.
The word ‘spook’ isn’t from any African language by any stretch of the imagination. Today, the Shona talk about ‘chipoko’ which is a corruption of ‘spook.’
A white man can’t accuse Africans of being savages and barbaric if they have ‘spooks’ in their own cupboards as well.
Ostensibly, the law targeted Africans and criminalised witchcraft. Yes, Joan of Arc was burned on the stake in France centuries ago under the mistaken belief that she was a witch but later she was canonised. What that means is that even the Europeans themselves are not authorities in determining the sentence given to a witch.
Our traditional healers may not be open enough with regards to the number of high profile people in the society who frequent their small huts in the wee hours of the morning in apparent dire need to get spiritual guidance and help.
If they-traditional healers- are given the respect they deserve, they should be consulted for them to give their input in the realignment of the law with specific reference to the witchcraft element in our society. Burying our heads in the sand will lead us nowhere.
Traditional leaders can lead us in that long but important journey to a cultural and legal renaissance.
Every day in the media, we read about some bizarre and macabre incidents that have their genesis from the dark world but still, our legal experts remain mum on how to deal with the witchcraft menace. If we wish to suppress something we know exist by jailing anyone who points a finger at a perpetrator, we won’t succeed in demystifying the notion of witchcraft in our society.
Our culture experts will help us a lot along the lines of aligning laws related to the aspect of witchcraft. The Roman-Dutch law has its loopholes in as far as witchcraft is concerned. We can’t ignore something that has been with us for ages but we have to manage it in such a manner that the society benefits at the end of the day.
Medical science has problems dealing with ailments that originate from the spiritual world. We have heard whispers from nurses,’’ Please go and try chivanhu,’’ after someone has failed to respond to medicines dispensed by a medical doctor.
A lot has been said or written about the spanking of pupils in the class room as a way of disciplining children. Aping the West in everything it compels us to do was never the writer’s favourite cup of tea from the onset.
At college, teachers are taught Theory of Education that a Mutare Teachers’ College lecturer, Mr Gore, referred to as the big TOE. In that course, there are three mini subjects namely, Psychology of Education, Sociology of Education and Philosophy of Education. Trainee teachers are taught that corporal punishment does not always bring results that teachers want.
Instead teachers have to use motivational methods to achieve set objectives. The Pavlov experiment of a salivating dog is used to show the efficacy of motivational theory.
That is fair and fine. It is noteworthy that our African experience does not condone violence against children. With that in mind, corporal punishment was never meant to be an everyday form of punishment. I am sure most parents don’t beat up their children on any transgression time and again. Infliction of pain cannot be done regularly on anyone child lest it-corporal punishment- loses its lustre.
Our children are not ready to completely dispense with the rod. Surprisingly, in the good book, the inspired Holy Bible, it is stated that once a parent spares the rod, then s/he would have surely spoiled the child.
Perhaps, the realignment of the law with regards to removing corporal punishment from the schools must have taken into consideration the culture aspect. My view is: teachers have to be re-trained on new methodologies to instil discipline in schools without making use of corporal punishment as a last resort.
Our new constitution is very lenient on women murderers and those men who are under 25. Does it mean those women who are charged with murder are not equal to their male counterparts?
It makes no sense to preach equality and then shy away from implementation when the crunch comes.
Online Reporter