Online Reporter
Fidelis Munyoro
Chief Court Reporter
The High Court has been thrust into the centre of a legal debate that strikes at the heart of marriage and inheritance laws, as a Harare lawyer challenges what he describes as deep-seated inequality in the country’s legal framework.
The case, brought by Advocate Caleb Mucheche, is shining a spotlight on the controversial intersection of customary and civil marriage laws, an issue that has long simmered beneath the surface of Zimbabwean society.
Advocate Mucheche, acting in his personal capacity as a public interest litigator, has filed an application seeking a landmark declaratory order to reform provisions of the Administration of Estates Act, which he argues violate constitutional principles of gender equality and non-discrimination.
Specifically, he is targeting section 68(4) of the Act, which he claims unfairly empowers men to exploit both customary and civil marriage systems, while denying women the same rights.
“The law, as it currently stands, unfairly discriminates against women by creating inequality between customary and civil marriages, and violates constitutional principles of equality and non-discrimination,” argues Adv Mucheche in court filings.
The Dual Marriage Conundrum
At the heart of the matter is a legal loophole that permits men to contract a civil marriage while already in a customary marriage, often without the knowledge or consent of their first wives.
This practice, Adv Mucheche contends, leaves women vulnerable to property disputes and inheritance battles, particularly when the man dies or the marriage dissolves.
“A woman is not given a similar right to enjoy both customary and civil marriage worlds.
“This creates an unjust system that negates gender equality,” Adv Mucheche said, describing the current law as an affront to women’s rights and a violation of Zimbabwe’s Constitution.
Adv Mucheche’s application cites several sections of the Constitution, including provisions on equality, non-discrimination, and the recognition of customary law as an integral part of Zimbabwe’s dual legal system.
He argues that the Administration of Estates Act improperly elevates Western-style civil marriages above indigenous customary unions, a practice he describes as a relic of the colonial era.
“The Administration of Estates Act is an archaic relic that is out of sync with the Constitution and the Marriages Act, which harmonised all marriage laws in 2022,” Adv Mucheche stated.
Battle of Laws: Constitution vs Statute
The case raises critical questions about the coherence of Zimbabwe’s legal framework. Under section 5(3) of the Marriages Act of 2022, individuals are expressly prohibited from being married under both customary and civil law at the same time. Furthermore, section 5(5) of the same Act guarantees that all marriages registered under Zimbabwean law are equal.
However, Adv Mucheche argues that section 68(4) of the Administration of Estates Act directly contradicts these provisions, undermining the equality of customary marriages and perpetuating a system of male privilege.
“Customary law is indigenous law bequeathed to us by our forefathers. It deserves to be respected as an equal and integral part of Zimbabwe’s dual legal system, not treated as inferior to Roman-Dutch common law introduced during the colonial era,” he said.
Adv Mucheche’s application names the Attorney-General and the Master of the High Court as respondents, calling on them to take immediate steps to amend section 68(4) of the Act.
He is also seeking judicial oversight to ensure the proposed amendments are implemented within three months.
A Litmus Test for Equality
The case has sparked spirited debate among legal scholars, gender activists, and cultural commentators. Many see it as a litmus test for Zimbabwe’s commitment to gender equality and the protection of women’s rights in a society where traditional norms often clash with modern constitutional principles.
Critics of the current law argue that it perpetuates a patriarchal system that prioritises male dominance in both marriage and inheritance.
Proponents of reform see this case as an opportunity to modernise Zimbabwe’s legal framework while preserving the dignity and equality of customary unions.
The Attorney-General and Master of the High Court have yet to file responses to Adv Mucheche’s application, but the case has already ignited a broader conversation about the future of inheritance and marriage laws in Zimbabwe.
As the High Court prepares to deliberate on this contentious issue, the nation watches, aware that the ruling could set a precedent not only for marriage and inheritance laws but also for the broader struggle for equality in Zimbabwe’s post-colonial legal system.
Will the court rise to the occasion and deliver justice that honours both tradition and progress? The outcome could reshape Zimbabwe’s legal landscape for generations to come.
