adminTraditionally the Bantu people believe that abantu came out of a river reed (umhlanga). It was a man together with his wife who had a child on her back. This was a complete family.
However, this reference to the biblical and Bantu background is not exhaustive as there are many other theories that seek to explain the emergence of a family. The most common factor in all heterogeneous marriages is the existence of children.
In the Ndebele background a homestead/marital relationship without a child is deemed dark, hence elders used to initiate a traditional adoption of a child belonging to another relative or they will bring in the woman’s relative to bear children for her.
When it was thought that the man was the one with a fertility problem, his younger brother would be made to secretly sleep (have sexual relations with his wife) and all the children born thereafter be presented as belonging to the infertile man. No wonder people say the true identity/father of a child is known by its mother. All this was meant to come up with a complete family.
Even modern infertile families seek to have children via adoption, foster parenting, surrogacy or in vitro fertilisation. All this demonstrates the importance of a child.
Sadly after getting the all-important child not all parents lay foundations for their future protection, instead they lay very fertile grounds for their abuse and discrimination. Parents do this through delayed marriage registration, birth registration, parental/ spousal death registration, and deceased estates registration, non-writing of wills and non-appointment of testamentary guardians.
Zimbabwe employs a dual system of law — that is the traditional and the Roman Dutch law. This means that both the general law and customary law are recognised as valid in this country. I believe this dual recognition is the source of our problems as a community.
The friction generated has caused untold suffering for those who happen to be victims at some point in time.
The victims are usually children, daughters-in-law and sons-in-law and the perpetrators are usually the parents-in-law, brothers-in-law and sisters-in-law.
As if this confusion brought about by the friction between the general law and customary law is not enough, the courts and other Government departments add salt to this injury.
What I mean is that at times the evidence these courts and Government departments demand from children and women seeking to gain access to inheritance and identity documents is beyond their reach.
The traditional law is mainly applied by the traditional chiefs, village heads; kraal heads, customary courts while general law is administered by the courts.
The general/conventional law is the Roman Dutch Law. However, both laws are accepted and the decision arrived at based on each of these systems is legally binding.
Having said all this, allow me to define marriage as a legal union sanctioning the constitution and sexual intercourse of a man and woman.
The most important aspect of a marriage is that the people of opposite sexes have to live together but in a legal way. Something that is legal is that which is permitted by the laws governing that particular society.
In terms of the African customary laws, what is legal is that which conforms to the customary laws as upheld by the chiefs and village heads. In urban areas customary laws are practised, hence we have customary law courts.
In terms of the civil and general law, what is legal is what conforms to the written laws. These laws are upheld by the courts of law.
Generally in Zimbabwe almost all marriages accepted by society start by being customary and then become civil. There are very few relatives who will endorse and accept a civil marriage that has not passed through the customary route.
If marriages are contracted to the exclusion of customary obligation, there is a serious risk of rejection that will raise its ugly head when the other spouse or both spouses die.
Children will be left with no social support system though the parents were married legally. Most marriages in Zimbabwe are out of community of property. Both persons in it are free agents, with the rights to acquire and dispose of any asset.
What they own they own it individually. No one can be held liable for the other. Therefore as long there is no will or there are minor children, it is crucial that marriages at least abide by the customary dictates or obligations.
This is all because no one lives in court or church, after court or church sessions everyone returns to the community that has its own values and culture. Even those who work at such institutions are products of the society and after work they return to the society.
What I am simply advocating is that since customary law and general law cannot exist to the exclusion of another, a common ground that protects and upholds children and women’s rights should be found.
The marriage institution is a pivotal centre in the protection of women and children’s rights. Birth, marriage and death are the standard trio of key events in people’s lives. But only one — marriage — is a matter of choice but it has huge influence on the other two.
Almost all our subject areas cannot be effectively dealt with, without first talking about the marital status of parents or the deceased spouse/parent.
For a birth certificate to be issued registry officials require the marital status of the parent(s), when death and deceased estates are registered the marital status of the deceased is key.
Marriage, to some societies represents completeness. It brings together two unrelated families (though not applicable to all societies) through love. It is more than a sexual relationship. It performs many functions some of which are detailed below. In some types of marriages it is difficult to protect women and children’s rights.
The way children access rights such as birth registration, parental death certificates, inheritance, passport and ID depends on the nature of the marriage of his or her parents.
If parents are or were customarily married, child rights are difficult to attain or protect because none of the parents can act in the absence of the other, for example for the mother to register birth of a child the father has to be there to sign paternity forms and if he is not there the child will not be registered.
The wife cannot register death of her husband in the absence of his relatives. In such situations it is very easy for women and children to fall victim to property grabbing and abuse.
In fact, property grabbing begins soon after burial and it does not have to be taking large assets, even the illegal taking of a jacket constitutes asset grabbing.
There are many births that are not registered because the parents are customarily married and because one or both of them are in South Africa and as such those staying with the child are not able to register them.
There are also many births and deceased estates that are not registered because the death certificate of one of the spouses cannot be obtained.
All this is caused by the fact that when collecting the burial order the informant would have said the deceased person was married and on collecting the death certificate the surviving spouse or her/his death certificate will be required.
This is despite the fact that they were merely co-habitants. In such cases the relatives of the deceased would have refused to participate in the death registration because the son-in-law would not have paid lobola.
The payment of lobola then becomes the condition for their participation in death and birth registration. Others fail to collect death certificates because they cannot locate relatives of the deceased person.
This usually affects the innocent orphans who because of the disputes that come with death of their parent(s); lose contact of either the paternal or maternal relatives. As a result many widow(er)s and orphans suffer because of societal injustices or mistakes of their parents.
However, this is avoidable if parents are married in terms of the civil Marriage Act Chapter 5:11. In this marriage it is easy for children to be registered even in the absence of the other spouse. Also spousal and parental death registration is made easier as well as the marriage certificate is enough witness.
However, even armed with the marriage certificate the widow(er) or children cannot register and administer the deceased estate without having to consult relatives who have at times turned to be property grabbers and abusers.
Zimbabwean law is based on evidence, if you allege you have to prove. If you say someone was married or that you are a relative of the deceased person you have to prove either by producing documentary evidence or be supported by the relatives of the person before you are issued with either a birth certificate or death certificate.
In respect of HIV and Aids, marriage itself does not protect couples, either or both of the partners may be living with HIV because they were infected at birth or had sex before or outside marriage.
In marriage they are likely to have frequent unprotected sex with each other which puts them at risk of infecting each other. It is best if both partners have an HIV test and if either is positive, they practise low-risk sex.
If parents know their HIV status they can do all in their power to live positively so as to see their children grow.
Knowing their status and living positively are important steps in child rights protection as parents will have more time to plan for the future of their children — a future without abuse.
They can register birth in time, register their marriages to make it easier to register their deaths and estates, appoint testamentary guardians for minor children and write wills well before their death. One pastor once said HIV and Aids-related deaths are preventable and postponable, if only those who are HIV positive can live positively.
God bless you all.
• Pumulani Mpofu is the programmes manager at Trinity Project Trust and can be contacted via Email: [email protected], 0773 195 055 or 09-883102.
Online Reporter
Bongani Ndlovu