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In my opinion the challenges faced by the generality of vulnerable people is a result of the friction between the two legal systems. Zimbabwe follows a dual legal system, that is general law (Roman- Dutch law) and customary law.
The interface of these two laws creates problems. It was going to be better if people were allowed to choose one legal system and abide by its dictates religiously. This is not possible in our environment. In theory people may choose to either live according to general law or customary law principles but technically it is not possible.
Some people can choose to be customary in their conduct, but technically these people are forced to follow the general law in the sense that they need national registration cards or any form of documentation or formal education.
Also those indigenous people who have chosen the western kind of lifestyle Christians included, are at times forced to follow the customary kind of life, a good example will be two people getting married.
To be acceptable the man has to pay lobola. The lobola process involves not any two people but the whole clan, meaning that if some members of the clan are traditional healers or are purely traditional in their conduct they will preside over the affairs of Christians. By the way pastors only take over after the family has done its part!
The circumstances of the Prime Minister’s marriage largely bordered on the interface of African customary laws and general law. The unfortunate situation is that our own culture and laws that derive there from have been long viewed as inferior to general law. Some have viewed it as informal to the extent that everywhere you go what is now important is documentary proof at the expense of our traditional ways of identifying each other.
If the first judgment of the court in the Prime Minister’s case declaring that the supposed marriage between him and Ms Lorcadia Karimatsenga is not recognised because it is not registered is to be taken within our African customs, it basically means the generality of our parents and relatives are living illegally informally. As far as general law is concerned they will need to formalise their marriages which some lawyers prefer to call unions. As Africans, we have lived for a long time sustained by our own laws though they are not written down like general law.
From my opinion the oral African legal systems is as good as the general law system. However this does not mean that it does not have its flaws just like the general law. The unfortunate thing is that the moment one hears of the word “legal” what comes to his mind is the general law. As a result our own African legal system is relegated to custom but if one comparatively looks at the two legal systems they share some common features. A good example is in the way cases are determined. The High Court has judges assisted by assessors and the chiefs who are our very own judicial officers in the African legal system also have people assisting him to determine cases.
Basically we have our own ways to determine cases which is largely compensatory in nature. When one does a wrong thing to another he/she is expected to compensate the complainant and also foot the legal costs of the chief and those who assist him. Some may wonder what I mean by legal fees. What I mean is that the man found on the wrong side of the law will be ordered to pay the complainant and also bring in another cow/goat that will be consumed by idale.
On the other hand the general law states that when one commits a crime he commits it not necessarily against the complainant but against the State. I have seen cases where complainants lose assets but they do not recover them `while the accused is sent to prison.
This lack of balance between the two laws is possibly the source of problems leading to people feeling like general law is imposed on them. In cases where there is an alternative way of dealing with a case people usually prefer to deal with it following customarily-approved ways which largely centre on dialogue. This explains why most cases involving domestic violence end up being withdrawn from courts.
For general law to be fully accepted by people to an extent that it becomes a priority in finding solutions to any community problem, I think it has to adopt a group approach and victim-compensation approach. Justice needs to be done not only for the State but for the victim as well. The current situation is that, for example if someone rapes your child or wife, he will be sentenced to some years in prison and the victim receives nothing. The chances are that he will come out of prison and return to the same community where he committed thecrimes. Just imagine the trauma of seeing that person walking freely in the community.
If people were given a chance to follow their customs in settling such problems, the rapist would have paid dearly for his transgressions and worse still be driven away from his community.
Going back to the case involving the Prime Minister, given that Ms Karimatsenga’s marriage was upheld on the basis of a video recording of proceedings on the day when lobola was paid, it could mean that those poor women can have their customary marriages for purposes of birth and death registration and inheritance purposes upheld by merely using documentary proof that was generated during lobola negotiations to record the sivulamlomo and kangaziwe charges.
Should this be the case, it will not only be a success for women and children but for men as well. I have seen many women seeking to prove marriage or parentage of an unregistered child using the man’s identity document. I have seen many women failing or struggling to register birth and death or deceased estates because of lack of documentary proof unregistered marriages.
Maybe if our government also accepts these documents as primary proof of marriage not to insist on the poor woman to either bring a marriage certificate or relative of the deceased. This will solve huge amounts of problems of birth, death and estate registrations that are facing defenceless vulnerable children and widows who can’t even afford R5 to approach any office of help.
The demand of proof beyond what is generally accepted in our culture is not a problem itself but it also brings about transport, food and accommodation costs to sustain witnesses. It is high time that government departments realise that these women are victims of the friction between customary and general law.
Asking them to bring relatives who, at times refuse to assist the widow or widower will be motivated by greed, jealous and umona is just like asking a raped woman to arrest the rapist.
l The writer is the programmes manager at Trinity Project Trust; he also writes for Umthunywa and can be contacted via [email protected], 0773195055
derick.khumalo