Creating and celebrating "African-ness"- juggling with men and women’s interests in family life: the status of customary law as a measure political commitment to gender equality in Zimbabwe
Rekopantswe Mate (Ms)
Sociology Department
University of Zimbabwe
PO Box MP 167
Harare
ZIMBABWEPaper Prepared for CODESRIA’s 10TH General Assembly on "Africa in the New Millennium", Kampala, Uganda, 8-12 December 2002.
Introduction
This paper analyzes the historical development of customary law in colonial Zimbabwe, its implications for male-female relations and the paradoxes of its continued existence and celebration in post independence Zimbabwe. Politically Zimbabwe is well known for doggedly pursuing the undoing of colonial legacies as seen in land redistribution and the indigenization (or Africanization) of the professions and the economy. While the success of these reforms is debatable, many have hailed them as progressive and important for solving Zimbabwe’s developmental problems and crises. A closer look though shows that the focus has been more on racial imbalances and not gender imbalances. This maybe connected to a liberation struggle which was gender neutral and which equated the realization of human rights with the end per se of colonial rule and its legacies. There was no room to seriously deal with the question of gender and how it is constructed in traditional and colonial patriarchies and the effects of the encounters of the two patriarchies. Still, there is political rhetoric which purports commitment to gender equality and equity even when the cultural basis of inequality and inequity is not well articulated. Thus customary law is embraced as a signifier of Africanness and celebrated as "our culture" without problematizing its genesis. This raises questions about what exactly is meant by ‘our culture’ especially variants which romanticize "the past" per se. It is widely acknowledged in literature that customary law is an invented law based on ethnocentric, male biased and misogynist understanding of local culture (see Schmidt 1991, 1992, Barnes 1992, Bennett 1995, Ncube 1989, 1990, 1995). Its continued existence is at the heart of what Chabal (1996) calls the soul-searching exercise or a "back to basics" approach that many African societies find themselves in especially as they seek "African" solutions to a wide range of socio-economic and political crises. I submit that overhauling customary law as practiced/understood today is the litmus test of a commitment to comprehensive and progressive reform and necessary for development. Critiquing customary law should be part of critiquing colonial legacies.
Creating customary law: creating Africanness?
Customary law emerged out of the excesses of colonial administration and is based on the combination of a jaundiced understanding of African family life especially relations between spouses and children and parents (see Bennett 1995, Schmidt 1992, Amadiume 1992) and a manipulation of these relations to suit objectives of colonial masters. Men were sometimes thought to be in-charge, yet female roles in agriculture, in healing and divination made colonialists think that African women were wayward. African women had to trained to ladies and while men were trained to be heads of households. Colonial interventions changed people’s mindsets and made this the accepted ideals even though lived realities show otherwise. Precisely; few African men neither had the wherewithal to treat their wives as dainty, leisured ladies nor could the women afford to sit back when they had families to look after (see Brycesson 1985).
The institutionalization of male labour migration and the resulting long periods of separation between spouses and families (split family survival strategies) were untenable for family integrity. These practices were commonplace as a result of coercion, at first, as colonized men were forced to pay taxes for dogs, houses, wives, huts etc in cash. These taxes were paid by men on behalf of their ‘dependents’ defined as wives and children. Wife tax was a sign that colonial administrators recognized women’s roles in economic production. It was thought that the benefits of women’s labour accrued to men and not to women and hence men paid taxes for income earned. Later labour migration became a rite de passage for African men (see Murray 1977). Men migrated to earn cash to pay bridewealth, to buy a few modern trinkets such as bicycles, radios etc and to show manliness.
African women on the other hands were confined to rural areas because of limited employment opportunities on account of discriminatory education policies and restricted access to vocational training schools (see Schmidt 1992, Zvobgo 1994). The feminization of rural areas and poverty was thus institutionalized (see O’Laughlin, 1998). In addition there were racist considerations too. Whites feared what they termed the ‘black peril’, which was a fear of race pollution if there was a lot of mixing of sexes across the racial divide (see Pape 1990). Thus they feared that if black women came to urban areas they would seduce white men and bear children of mixed race thereby demeaning whiteness. In addition since black women were seen as an epitome of the bad aspects of the black race, namely ‘indolence’, ‘frivolity’, ‘lustfulness’, ‘rebelliousness and disobedience’, ‘primitiveness’, ‘savageness’, ‘superstition’ and the use of charms, ‘immorality’ etc., it was feared that the presence of black women in urban areas would disrupt productivity by luring black men away from the workplace (see Schmidt 1992, Barnes 1992). The reality is that colonial capitalists did not want black women and children in urban areas for fear that this would increase costs of colonialism as they would be forced to provide family accommodation and commensurate social amenities as opposed to providing minimal services for men without families. Keeping black women in rural areas where they worked as peasants ensured that they subsidized black men whose wages were meager. Essentially female labour subsidized the whole colonial enterprise. Women maintained men’s stakes in the rural economy, an economy which was also a depository for spent labour from the urban areas, farms and the mines. It provided non-contributory social security for blacks which relied on the economy of affection.
It is precisely because of the critical nature of women’s labour in peasant agriculture and the rural economy as a whole that black men also expressed interest in keeping women in rural areas when women protested against separation from their partners and chose to migrate to urban areas leading women to run away from rural areas. Women also wanted to explore new economic opportunities (see Barnes and Win 1992). Black male urban immigrants claimed that urban areas were a bad influence on women especially single, unaccompanied women. They voluntarily acted as policing agents monitoring women from their parts of the country and reporting those deemed to be illegals to the authorities so they could be deported (see Stitcher 1995; Schmidt 1992). Elders in rural areas complained that while in urban areas women were divorcing and marrying alien men who earned more money as permanent workers. This created a crisis of returning bridewealth receipts or providing another daughter to the in-laws.
The increase in extramarital affairs in rural areas as far back as the 1910s was also worrisome to both black men and colonial administrators. Barnes (1992) notes that almost all family disputes brought to the courts had female complainants. In any case family disputes were the bulk of cases heard by the courts. Adultery was blamed on married women leading to a biased definition of adultery. Adultery was defined as a married woman having sex with another man. This was punishable with a hefty 100 pounds fine under the Native Adultery Punishment Ordinance of 1916 which black elders had lobbied for. Colonialists saw adultery as an infringement of black men’s rights over wives who were seen as chattels by virtue of bridewealth payments (Schmidt 1992: 105). This resonated with English understandings of contract law and private property. Colonialists neither saw male labour migration as an infringement of women’s rights over husbands nor understood that the mutuality of sexual satisfaction was acknowledged in traditional society. Women could complain against unsatisfactory sex to family elders making it possible for men to be taught how to satisfy their wives. Failure to satisfy a woman sexually or infringement on her sexual rights was grounds for divorce.
Colonialists did not acknowledge that women had legitimate personal need for sex and affection from husbands. For instance Byrcesson (1985) notes that colonial anthropologists had advised colonial administrators that African spouses could be separated for long periods because unlike whites, they had no need for constant contact and affection. This stance was buttressed by Christian ethos which emphasized the asexual ‘virtuous wife’, ‘selfless mother’ and ‘industrious housekeeper’ as new ideals for women (Schmidt 1992). Colonialists reasoned that because black women did not pay bridewealth for husbands and because of the prevalence of polygyny women could not complain about men’s extra marital affairs. Married men could have sex with single women with impunity. In this vein they turned a blind eye to those single black women who ignored deportation orders and stayed in urban areas, farm and mine compounds. They saw this as a way of retaining male labour by contracting temporary marriages and accessing homely comforts while away from home (von Onselen 1977). Effectively this legitimized extramarital affairs and cohabitation which hitherto was not commonplace and frowned down at. It also became a self-fulfilling myth that black men cannot live without sex. The criminalization of adultery did not include white on black sex. White men could have sex with single or married black women with impunity since such relationships were not recognized and not permissible in the racist rhetoric of the day so the law did not cover them.
Black women who were accused of causing marital disintegration and were forcibly returned to husbands they no longer loved or were abusive after matters were heard by colonial officials in the Native Affairs department. African women were perceived to be frivolous and that they complained at the slightest provocation. The forced returns to women to abusive and estranged husbands not only usurped lineage prerogatives to protect the interests of lineage daughters by protecting them from abuse. Hitherto, women were not returned to abusive husbands, they were allowed to live with their families while the matter was being discussed or while they healed and reconsidered their options. Women could marry other men and there was no stigma for being a divorcée. Forcing women to return to estranged husbands introduced the ideal that women should persevere in marriage. It made life easier for elders in that they no longer had to worry about returning some of the bridewealth they had received.
As land alienation intensified in the 1920s and 1930s coupled with the economic decline of the Depression, black male elders needed women in rural areas because through women and children they accessed labour for agriculture as well as wealth in the form of bridewealth when women married. They could also pledge their daughters in marriage in order offset social adversity andn the effects of poverty (see White 1990). In addition elders accessed male wages sent as remittances to wives and children. Thus as economic difficulties forced women to explore alternative livelihoods in urban areas; elders saw this as a threat to their own livelihoods and used the need for cultural preservation as a basis for keeping women in rural areas. Thus there was a coalescence of interests to restrict female mobility. Colonial administrators were quite happy to allow black men more leeway to control women through laws which made obedience to traditional authorities mandatory in exchange for limited dissent to colonial rule which traditional elders had to ensure. This limited autonomy was applicable to matters to do with interpersonal relations, inter- and intra-familial relations.
Customary law therefore emerged as an instrument of quelling widespread rural restlessness as the disruptive effects of colonial policies became pervasive (see Barnes 1992, Schmidt 1992). More specifically it emerged to suppress female dissent against unfavourable conditions in rural areas and against traditional patriarchy per se. Male elders took advantage of the fact that colonial academics saw them as spokespersons of their lineages and families and used the opportunity to resolve problems they had at the time. This evolved to mean they also dictated to hapless women who did their bidding. Female contributions and perspectives on local customs were seen as falsehoods thereby setting a precedent for the invisibility of women and their inaudible voices in public discourse. This struck a chord with Victorian patriarchy. Although overseas the latter has since been transformed, it left an indelible mark in Zimbabwe.
Changing the role of ‘traditional leaders’
White colonial administrators believed that in pre-colonial society chiefs had absolute control over their people, they were not accountable to their subjects and that once in power there were no mechanisms of removing them. Colonialists therefore set about harnessing these perceived powers for their ends, namely ensuring the stability and governability of rural areas and of blacks. They destroyed some chieftaincies and created others since they formally appointed chiefs through the office of the Native Commissioner a white administrator. They effectively usurped local people’s powers to also have a say in the selection of the chief. This also interfered with the role of spirit mediums in the selection of chiefs and the administration of regions. The chiefs in turn nominated headmen who were later appointed formally by the Native Commissioner. Despite this interventionist stance, the colonial stance claimed that the chiefs were free to use ‘local customs’ to run areas under their jurisdiction. These customs were admissible only when they did not offend the colonial establishment’s moral senses. This free hand was on colonial terms and could be overruled where European sensibilities were pricked.
The chiefs and headmen were always male as it was assumed that men were the heads of families, lineages and clans yet this not necessarily so for all societies in Zimbabwe. Women too could be chiefs such as among Sotho speaking people in the South West of the country. In any case given the importance of kinship, historically when there were no male candidates in the ruling families, women could become chiefs in which case they became honorary men.
Colonial administrators demanded that chiefs ensure the good behaviour of people in their jurisdiction. Chiefs monitored suspicious movements, new arrivals, suspected thieves and reported ‘deviance’ to the Native Commissioner. Hitherto people behaved according to locally understood customs and could be disciplined by local spirits and/or the chief and local elders. Usually crimes were dealt with through retribution. In the colonial era violence (whipping) could also be used. In order to control mobility chiefs worked together with male family elders in authorizing departures to urban areas, farms and mines (see Ncube 1990, Barnes 1992). Men could leave to look for work or when they had proof of employment but for women only when they had husbands in urban areas. Otherwise single women could not leave although many escaped. Chiefs used the Native Registration Laws of the 1930s (the pass laws) which applied to men only at first and later extended to women when female mobility became rampant.
In addition Chiefs collected taxes on behalf of the colonial government. Chiefs also ensured that they filled their quotas for labour whenever called upon to do so. Essentially they coerced their subjects to work for the colonial government. For their troubles chiefs were in the state’s payroll and therefore accountable to the state which appointed them and could dethrone them if they flouted laid down rules and laws. To refer to them as ‘traditional leadership’ is therefore an anomaly as they were part of state bureaucracy.
Customary law therefore retooled waning traditional patriarchies and coopted traditional leaders wittingly or otherwise into the colonial project. It rendered women perpetual minors at law, as they needed male (fathers, husbands, brothers or their proxies) representation or prior approval in all public interaction. In other words customary law upheld the concept of female contractual and proprietary incapacity (see Bennett 1995). It was a tool for disciplining women. Its hallmark was selective application and manipulation of local customs to suit prevailing political crises. It was also a tool for dealing with family accumulation crises by drawing on a distilled understanding of patriliny, thereby excluding women from competing for family estates. During the war of liberation chiefs were seen as collaborators with the colonial regime and their legitimacy was questioned and challenged by the politically conscious youth who joined the liberation struggle. The liberation struggle made it possible for people to question gerontocracy and patriarchy as seen in young armed combatants who wielded a lot of power by virtue of being armed and being politically conscious. They challenged prevailing power structures. Thus at Independence the revolutionary fervor which prevailed had no room for people who collaborated with the colonial regime and chiefs as adjuncts of the system.
At independence therefore Zimbabwe had a cultural legacy of female subordination, institutionalized male control of female mobility at household and village levels condoned by the state and institutionalized female contractual and proprietary incapacity which were all products of customary law. Traditional leaders were seen as custodians of these beliefs and practices despite the traditional practices being adulterated.
Post independence reform: juggling with men and women’s interests and international standards
Like elsewhere in Africa, independence was a time of undoing colonial legacies through legal reforms, polices and practices. The government passed a myriad of laws which underscored the importance of equality between men and women in the workplace and at home. Amongst these laws was the Legal Age of Majority Act (LAMA) (1982) according to which all men and women become legal majors upon reaching 18 years.(details of which are discussed below). Zimbabwe’s independence in 1980 was in the middle of the UN Decade for Women and this saw the government set up a Women In Development (WID) unit, the Ministry of Women’s Affairs amidst much fanfare and proceeded to provide it with very little material and human resource support. The WID unit was seen as show of commitment to gender equality and the government often flaunted it as such. Beyond international image making at home change remained cosmetic as women continued to be prejudiced because of prevailing neo-patrilineal ideologies which pervaded bureaucratic and legal practices connected to colonial understandings of custom. Below are some issues which show that women’s rights were largely moderated and qualified by customary law.
1) The status of customary law at law
The passage of LAMA in 1982 removed black women’s proprietary and contractual incapacity which essentially made women perpetual minors at law (see Bennett 1995) Women needed male (brothers, fathers husbands or their proxies) representation in public such as in court, could not own property or run businesses on their own account and needed male permission to open bank accounts etc. (see also Barnes 1993). With post-independence changes women could, in principle, inherit from their fathers and husbands since their minority status had fallen away thereby making them competent to manage estates. The state also sought to elevate African culture as a way of undoing its denigration, as had been the case in colonial times. Thus learning vernacular languages was compulsory in all schools including former whites-only schools. Shona and Ndebele became national languages side-by-side with English.
At law customary law was elevated to be at par with received law as a way of ‘democratizing’ the judicial process and ensuring ‘justice for all’ Zimbabweans (see Cutshall 1991, Ncube 1989). This ideally enabled Zimbabweans a choice of laws. Customary law was no longer for Africans but a law for any Zimbabwean who chose it in the regulation of family matters. Its courts were no longer separate from the received law used in the Magistrate’s Courts, High and Supreme Courts. (however chiefs’ courts were abolished). Courts using customary law were now referred to as ‘primary’ courts and the upper courts could overturn their decisions. Essentially these courts were still inferior. They hear(d) cases which do not involve immovable property, the interpretation of wills and disputes of a limited monetary value and interpersonal relations such as marriage, inheritance etc. Community courts which replaced chiefs’ courts were presided by officers with limited legal training. They were trained in customary law, the law of contract and a few others. In other words even as the government questioned the manufactured power of chiefs and undid female legal minority, government officials were trained on how to use this manufactured culture because there was no effort to revisit or to seek an African understanding of local customs. In any case despite the fact that customs by their definition are about lived realities officials were trained to use laws based on colonial realities as discussed above.
In the constitution despite a bill of rights, which applies to all Zimbabweans, there is still section 23 according to which all rights could be abrogated on ‘cultural grounds’. The cultural grounds being referred to are considerations under (received) customary law! This affects women and children. Thus the post independence era is characterized by legal duality, a juxtaposition general/received law and customary laws; a situation which renders women’s rights at law and in practice rather precarious. Some have argued that access to one’s "culture" is a human right like any other human right and hence customary law needs a place in the sun side-by-side with general law. However the customary law they are referring to is somehow not amenable to change as it is strangely part of a past which is steadfastly held on to. Customary law has also become the law of the poor majority and women dominate the ranks of the poor. Below are some issues which show the precarious nature of women’s rights at law because of customary law ethos.
i) Daughters and sons’ rights to inherit from fathers
The contradictions of legal duality have allowed officials and individuals to manipulate situations to meet their ends but often with women being the losers. The Supreme Court as the highest court in the land and charged with the responsibility of interpreting laws has not been able to ensure the realization of women’s rights at law citing African culture, patriliny and customary laws and practices but shying away from reinterpreting the latter by calling is experts on matters to do with custom. In inheritance matters the debate about tradition, culture and custom has been most intense.
Ncube (1995) notes that in post independence Zimbabwe despite the fact that blacks dominated the judiciary they too continued to ‘manufacture’ African culture ignoring lived realities, research evidence and even contradicting precedence set after post-independence legal reform. This variation depended on the composition of the bench. For instance citing the case of the Chihowa vs Chihowa case, in which a man died without a will in 1982 and was survived by a wife and two daughters with the eldest being appointed heiress by the community courts. The deceased’s father challenged this decision through the judiciary hierarchy to the Supreme Court arguing that in customary law daughters do not inherit their father’s property especially when there are male kin such as the father and male siblings of the deceased. The Supreme Court upheld the decision of the community and allowed the daughter to inherit arguing that LAMA modifies customary law and by implication that the eldest daughter had the right to inherit because of assumed primogeniture (Ncube 1995: 103). This was well received by women who could see that their rights at law were claimable. A few years later, another inheritance case (Vareta vs Vareta) came to the Supreme Court involving a man married under civil law (meaning monogamously) who died without a will and was survived by a wife and children with the eldest being a daughter. Although the daughter had initially been granted heirship, a son from her deceased father’s previous relationship emerged and the Supreme Court allowed him to inherit on grounds that daughters cannot inherit where there are sons. So women’s inheritance rights were now qualified…only if there were no sons. In another case, (Mwazozo vs Mwazozo), a man who died intestate in Nov 1991 and survived by 2 wives and 3 children from the second wife. The eldest was a daughter. She applied and was given heirship at the community courts but was challenged by her brother on grounds of male inheritance prerogatives in customary practice. The Supreme Court ruled in favour of the male applicant saying that in patrilineal culture wealth stays in the lineage only when given to men. Women’s inheritance was described as dispersal of family wealth because they get married and in the process would enrich their husbands’ families. These case raise a number of issues which point to the adulteration of customary practice causing a number of problems in families namely i) primogeniture in inheritance and one-person inheritance ii) the fact that daughters do not inherit from fathers iii) a misunderstanding of patrilineal ethos.
i) The question of primogeniture and one-person inheritance and ii) that daughters do not inherit from fathers
The idea that only the eldest child inherits is a corruption of tradition which claims universality when in reality this is not so in Zimbabwe. Generally all close kin (male or female) inherited from the deceased as a way of preserving their memory of the late. Kin relations determined what people inherited and the size of the estate they inherited. Often the bulk of the estate had to be preserved for looking after dependents of the deceased. It is also importance to highlight that because in the past people did not have many alienable possessions they could, there was not much to fight over.
Among the Ndebele for instance, all children regardless of gender were entitled to their deceased father’s cattle, what they call(inyembezi zikayise) literally this means ‘tears for their father’. In other words children were given something for the loss they experienced. If there were not enough beasts to go round then the children would share but they were all entitled to something. In addition the eldest son became the ceremonial head of the family and became the liaison officer between his siblings’ families and lineage elders. The youngest son inherited the family home and was expected to look after his widowed mother although other children could still chip in when the need arose. The rationale for this was that often, sons moved out of their parents’ home in their birth order. So chances are that older sons were the first to have their own families and therefore households and hence the youngest stayed in the family home. Consequently it was unheard of that one child controlled all his/her father’s estate as an individual. This would have alienated other children. Consequently one-person inheritance is western in origin.
Other than daughters receiving gifts for mourning their fathers, they were given a cow, called inkomo yokugana at marriage (while their fathers were alive). They took it with them to their in-laws. This cow was a form of protection from alienation which comes with marriage and enabled women to be independent (see also Ngubane 1987). Where the cow generated a herd, the woman’s in-laws could not dispose of the herd without her tacit permission. Thus women essentially owned property and were entitled to their father’s property like their brothers. Fathers too took it upon themselves to ensure their daughters’ well being in an alien lineage by giving them seed capital to generate later wealth. Unfortunately these practices are now rare.
Children of lineage daughters could also receive wealth from their maternal relatives. Through what social anthropologists describe as ‘complimentary filiation’, (Cheater 1987) maternal kin came through for lineage daughters’ children if for some reason their patrikin were nasty to them regardless of the fact that their fathers had paid bridewealth for them. Sometimes this gift giving was simply on grounds of affection because lineage daughters’ children were generally spoiled. In any case given the prevalence of the ‘house property complex’ (Oboler 1984) a situation where women and their children define the primary production and consumption unit, it was important for a woman to have wealth of her own for her children’s welfare since she could not always count on a husband to deliver resources especially in polygynous unions.
ii) Misunderstanding patrilineal ethos
In the past there was an understanding that women neither ceased to be members of a patrilineage nor lost their roles and rights as lineage daughters because of marriage. It was understood that marriage per se did not make women bona fide members of their husbands’ lineage. Their statuses as lineage wives depended of women’s fecundity and whether they gave birth to boys. With changes in life cycles women’s status as lineage wives changed too. Thus although people practiced lineages inheritance, women remained bona fide members of their lineages of birth. Current narrow definitions of lineage membership are based on the need to narrow the number of contenders for estates.
The disqualification of women from inheriting their fathers’ estates in the Vareta vs Vareta and Mwazozo vs Mwazozo cases needs to be challenged for consolidating alien precedents. Unfortunately it was only when the Magaya vs Magaya case was decided in 1999 that international attention was drawn to legal contradictions in Zimbabwe’s family laws leading to women sending petitions to the President to no avail. In this case Mr. Magaya died without a will and was survived by two wives and several children. The first wife’s eldest child was a daughter who sought heirhsip of her father’s estate. She was granted it by lower court but a brother born to the second wife challenged it. When the matter went to the Supreme Court, it ruled in favour of the son claiming that women do not inherit from their fathers in African culture. This attracted international outrage.
As a result of the foregoing we can see that proprietary incapacity was alien and was not part of local culture. Patriliny did not mean the denigration of women and their lack of status in the lineage. However in the post independence era, people have internalized colonial ideals of female subordination and dependence on men as African. The judiciary and state officials seem to hold onto these beliefs even when there is a lot of evidence to the contrary. It is clear that the Judiciary has gender biases and does not understand the rationale of customs they claim to be protecting. The African culture they refer to is African only in as far as it is practiced in Africa but is not indigenous to Africa. Inheritance by men is not guarantee that other members of the patrilineage ‘s interests are taken care of (see Mate 2001 for details of estate plundering that goes with son heirhship).
ii) Women as wives: partners or lineage outsiders?
Generally people still see wives as ‘lineage outsiders’ using the rationale of marriage rules which emphasize lineage exogamy. That is, people are expected to marry outside their lineages. Because of patriliny post marital residence tends to be virilocal or patrilocal. That is, women leave their families to join their husbands’ families. This movement is facilitated by marriage payments in the form of bridewealth. Payments are made so that men can legitimately claim paternal rights over children born in the union, to have exclusive sexual rights over women and to access women’s reproductive labour broadly defined. As noted by Cunningham (1996) the movement of women from their natal families is disempowering especially when it comes to mobilizing material and non-material resources for survival. As lineage aliens women are victims of scapegoating when there are social adversities in their husbands’ lineages. Women’s status as lineage outsiders defines their property relations and rights in marriage despite changes in means by which people accumulate property.
Widows based in urban areas have to contend with a lot of social pressure from men’s relatives especially where there is immovable property such a house in the city. In a study of female widowhood I undertook in 1997-8 in Harare, women lamented that often inheritance matters arise during the illness of a man unbeknown to his wife. Since women are generally seen as lineage outsiders, when a man falls sick although wives do the bulk of care giving, they do not actually make key decisions about treatment of the sick; that is whether or not to consult traditional and/or faith healers. ‘Closer’ kin make these decisions and wives are expected to cooperate. In the process some men wittingly or otherwise give away access to their accounts on ground that the people who make these decisions need money to implement them. These days with Automated Teller Card (ATM), people simply access liquid assets via the ATM. Some widows also said that a widow has to closely guard her husband’s identity card which might be used later to process his death certificate and with the latter people may under false pretences strip the deceased’s terminal benefits. In some cases these in-laws have been successful in others they fail when alert company employees realize the ploy. Unfortunately the bureaucratic process which follows death (getting burial orders, police clearance, autopsies where this is necessary) require that relatives have access to national identity card as widows are expected to sit at home and be the centre of attention when mourners come. Estate stripping is a result of greed rationalized on the basis of kinship. Although it is illegal and prevalent there have been no arrests because such matters are seen as family matters which do not attract police attention.
In some cases relatives bring in children born out of wedlock especially where the widows has no sons or because the other woman is liked by the deceased’s family. For instance in a study of widows in Chipiwa, a commercial farming resettlement schemes established after independence, one widow whose children were all daughters had to contend with her brothers-in-law bringing her deceased husband’s son by another woman. After demanding proof, she neutralized the brothers by telling the courts that she would pay for the child’s fees and see to his welfare but preferred her daughter to be heiress (see Mate 2001).
Widows with sons invariably prefer them to inherit however there are many cases of widows being abused by their own sons. Some sons have sold houses without consulting their mothers instantly plunging them into destitution. Others have simply asked their mothers to go to rural areas where old women should be, saying that urban residence is not good for older women. Below is a case study of a widow who has to contend with a verbally abusive son.
The case of Emily
Emily was 47 years old when I interviewed her. She has 4 children born between 1966 and 1972. The eldest is a boy. Her son is married with 2 children and is a private in the army. He lives in Harare although he sometimes works away from Harare. One daughter is married and the other two are single mothers and lived with her. One of them is a cross-border trader. Her husband died in 1996 after a short battle with cancer.
She and her husband had a registered customary marriage which enabled them to access company housing in the colonial era. Her husband had primary education only and but rose through the ranks at the National Railways. At the time of his death he was a ‘train inspector’. He ran a tuckshop for extra income. Emily herself did 3 years of primary school. She worked as a pre-school/play centre teacher in a Harare City Council school. She tried cross-border trade but found it too strenuous and not as profitable as she had anticipated. She had stopped the tuckshop business because there was no one to supervise.
Emily’s was a battered wife. Her husband beat and abused her verbally. He left a verbal will saying that he preferred that his son inherit the bulk of his estate (insurance policies, money and the house in Harare) and Emily would get a small amount of cash from one of the insurance policies. Emily’s son was a rowdy drunk and generally irresponsible. His father worried about it but still wanted him to inherit his estate.
After her husband’s death, she used to go to insurance companies to process her husband’s terminal benefits with her son. Her daughters protested saying she was colluding with her son to dispossess them. When her son got hold of money from the insurance polices he refused to give some to his mother saying in the money saying;
"Munoda kudya mari nenvhana dzenyu....". ("You want to spend this money on your unmarried daughters".) The word "nvhana" is somewhat derogatory and refers to daughters or sisters who give birth outside wedlock. Emily’s daughters and son quarreled endlessly over the estate and she was hospitalized as a result of hypertension.
Her son wanted to have the house, registered in his name and Emily feared that he would have evicted her and her daughters. She moved quickly and had the house registered in her name because she says all her children have to benefit from the house until they can find their own feet through proper work etc. She says she has as much a right to the house as her son and so do all her other children.
Emily explained that the idea of sons as heirs is an adulteration of custom. She says the real issue is that they are ceremonial heads of the family after their fathers die not that they literally become heads of families. She says that traditionally sons did not control their mothers. It was taboo for sons to bully their mothers. They did not inherit because they are sons but because they were responsible. Her son is irresponsible which disqualifies him. His own wife goes without food because he drinks all is wages. She found herself fending for his wife and her two grandchildren from because otherwise her daughter-in-law might decide to move in with her. She did not savor the prospects of such a situation. She kept her son’s family at arm’s length by helping them from afar. The quarrels over her husband’s estate had not stopped in 1998 when this interview took place although she had learnt to ignore them. However she said her husband’s relatives did not help to discipline her son. They encouraged him to claim ‘his father’s property’. She relied on people within the community who talked to her rowdy son.
In the study of Chipiwa referred to earlier, Mate (2001) found that women could not inherit the 01 ha plots under sugar because of ‘culture’. Male dominated farmers’ groups on the scheme and relatives of the deceased preferred son inheritance. In addition because the vast majority of men die intestate, their estates are distributed on the basis of customary law. Women do not inherit because land is assumed to belong to the patrilineage of husbands even though in this case this is purchased land. This in fact led to faster dispersal of the family estate than generally acknowledged. Most male heirs were sons no experience in managing anything let alone their own lives. Many took to drinking, spending money in luxurious holiday resorts and spending on women while neglecting obligations to other family members such as buying school uniforms, paying school fees, buying food, paying and supervising farm workers, servicing their deceased fathers’ cars leading to the cars being irreparable (see Mate 2001). As a result the argument that female inheritance leads to the dispersal of family estates is a far cry from what happens in reality. Male inheritance in the case of Chipiwa invariably led to impoverishment of other family members dependent of the estate. Some daughters and widows were beginning to question this male biased inheritance.
With changes in laws governing inheritance and estate administration in 1997, children born out of wedlock can also claim maintenance from the estates of fathers who died after the changes were effected. The children have to provide proof of paternity and that they were maintained by him before his death. Wives are entitled to ‘wife’ shares and children to ‘child shares’ which are equal regardless of whether the children were born in or out of wedlock. This essentially whittles the value of the estate. This law was made to protect the "interests" of children. Because "family assets" are registered in husbands’ names, what is referred to as a man’s estate also includes his official wife’s material and nonmaterial investments because of resource pooling especially in middle class families. This means married women pay for their husbands’ children born in extramarital relations. In low-income families this law is of no use as there is generally very little to inherit so the interests of children (born in or our of wedlock) are not protected by this law in any way.
We can see from the foregoing that rather than legal duality being a resource which enables all Zimbabwe access to justice it leads to discrimination against women. Where a men dies without a will, regardless of the type of marriage he contracted chances are that "invented" customary law will be used in the distribution of the estate. Men do not leave wills for a variety of reasons. It is believed that if a man lives a will in favour of his wife he is likely to be killed by the wife who is keen to inherit. Male kin might contest the will on grounds that perhaps the man was cuckolded by his wife. Besides wills can be contested by relatives who believe themselves to have rights to the estate. This is because kinship relations are ultimately about entitlements. Even where these entitlements were not activated when the man was alive, they are invariably claimed after his death. If they are not claimed through the court system people resort to estate stripping during the funeral. Funerary rites often prevent a widow and her children from playing active roles during the funeral making possible for greedy relatives to help themselves. Although estate stripping is illegal, it is not all women who can get into protracted litigation immediately after the burial of their husbands while they are still in mourning. Where the court system is used, the patrikin often come to and are privy to the winding of the estate. I am not sure whether there is a legal basis for this but it is accepted practice that an estate is not wound up by the deceased’s next of kin (the wife) alone. Usually the deceased’s brothers and father are part of the team. Their presence usually serves to protect "lineage interests" and they are averse to female inheritance whether it is a daughter or a widow. Under such circumstances they choose minor males to inherit ahead of adult women. These minor males are then manipulated so that patrikin also access the estate.
It is also clear from the foregoing that rather than punishing men for extramarital affairs, laws make concessions. Ironically these laws essentially penalize married women but under customary it is understood that after bridewealth is paid husbands can appropriate returns to women’s production. Perhaps it is important to change this law even further by giving women fifty percent of the estate as their initial investment and later giving them a wife share in their husband’s share which is also shared to the children.
2) Women’s status in a neo-patrilineal state
Patrilineal ideology pervades debates about ‘our culture’ and state bureaucracy leading Cheater and Gaidzanwa (1996) to describe Zimbabwe as a neo-patrilineal state. The majority of people in Zimbabwe trace their descent through fathers except for the Tonga of the Lower Zambezi Valley and some people of foreign stock such as ethnic groups from Malawi. People seem to think that patriliny is synonymous with father and/or male dominance. This is not necessarily so.
In patrilineal societies such as one finds in Zimbabwe and in Southern Africa, children can only claim patrilineage membership when bridewealth has been paid. Historically the payment of bridewealth was a drawn out process leading to a lot of ambiguities at any time especially when there was a dispute between the parents (see Currie 1994). This effectively means that children’s status in their father’s lineages was not automatic or based on biological connections per se. Patrilineal membership was the product of flexible socio-cultural processes but was not mandatory. In other words until such time that a man had gone through rituals of claiming paternal rights, the children belonged to their mother’s lineage and used her surname.
In post-independence Zimbabwe women who have children out of wedlock have to contend with the neo-patrilineal posturing of officials at the Registrar General’s Offices where children’ births and citizenship rights are processed. The moment a woman declares the name of the father of the child in antenatal care documents, it is assumed that the father’s surname becomes that of the child. This rule of thump is used even when dealing with the matrilineal Tonga. For single women such a situation leads to more problems when the child is older and has to have a national identity card which enables one to vote, to get an adults’ passport, to open bank accounts, to get a job etc. or to put is simple in order to claim citizenship rights. Officials at the Registrar General office demand fathers’ identity cards or letters from them with details of their identity cards in order to obtain information about area of origin (in the form of a number at the end of the identity number). This imposes relations between children and fathers who may not be interested in them. It also allows men to control women and children even when the relationship long ended. This makes it difficult for women to exercise rights confer to them by the Legal Age of Majority Act (LAMA) 1982. According to LAMA, black women make binding decisions upon reaching 18 years of age which was not the case in the colonial era. Effectively it means that officials make it impossible for women to confer identities on their children. State officials also override customary practice that bridewealth payment precedes children’s use of fathers’ surnames. The only way around this for some of my colleagues who are single mothers has been to declare in official documents that "father unknown" or leave the relevant sections blank. This has other social connotations which say that the woman is a prostitute and does not know the name of the father of her child. It stigmatizes female single parenting.
On the other hand married women who prefer not to use their husbands’ surnames find it hard to process children’s documents (identity cars, passports etc) if the children use their father’s surnames. The Registrar General’s office asks the women for proof of marriage and often demands that the women have to change their surnames too if their children are to carry their husbands’ surnames and if they are married. Otherwise the fathers have to process the papers. Complaints about these practices led to Zimbabwe Women Lawyers Association (ZWLA) issuing a press statement saying that there is "no legal basis" for such a stance (The Sunday Mail 25 August 2002). No one is compelled to change surnames or to publicly show that they are married by being called "Mrs." so and so. They could have added that there is no traditional basis for doing so either because women were never expected to lose their natal identities, they retained their family names even though they were called by their children’s names (e.g. mother of Tendai or mother of Thandi etc).
Zimbabwean female cross border traders also have to contend with regional consular offices which ask female traders to produce proof of marriage before they are issued with visas into these countries. South Africa is a case in point here. Married women have to show that their husbands approve of their travels. This negates the tenets of LAMA. However staff at the South African High Commission defend this by saying that they are following rules made in South African and not Zimbabwean ones. Ironically South Africa is supposed to be one of the most democratic countries in the region yet it restrict female autonomy is neighbouring countries.
That neo patrilineal mindset pervades the state is seen in debates during the 14th constitutional amendment. This amendment was sparked by Zimbabwean women married to non Zimbabwean men who according to the law at the time could not by virtue of marriage automatically confer citizenship status to their spouses as Zimbabwean men could to non Zimbabwean wives. The Supreme Court had ruled that it was in fact discriminatory to deny citizenship to these women’s spouses when men could confer citizenship. In debates preceding the 14th amendment some government ministers maintained that in ‘our [patrilineal] culture’ women do not ‘bring’ husbands but ‘are taken’ by husbands to their villages or homes. In this case women should go to their husbands’ countries. Implied here is virilocality generally associated with patriliny. In fact virilocality is not compulsory and depends on a man’s wealth. Historically among the Shona, poor men who could not pay bridewealth which qualified them to "take" wives, married after performing labour service (kutema ugariri) for their parents-in-law to be for years or periods considered satisfactory. This labour service enabled the in-laws to assess whether the son-in-law to be was a hard working man who could look after their daughter despite his poverty. After performing satisfactorily, many men stayed and were given land by their in-laws. Effectively this means that even in the past virilocality was neither compulsory nor a signifier of patriliny. It simply meant that children traced their descent through the father once acknowledged rituals of claiming paternity had been performed. In the case of the women who took their cases to the Supreme Court they were duly married so the uxorilocal choice of residence needed not be seen as a negation of patrilineal norms if indeed patrilineal ethos were the rationale for decisions made.
The ministers also expressed distrust of women by saying that if women were allowed to automatically confer full citizenship rights through marriage, Zimbabwe would become a haven for undesirable elements as this would make marriages of convenience more prevalent and easy. Undesirable elements would use marriage as a way of running away from justice in their countries of origin. In the end the 14th constitutional amendment led to men losing their rights to automatically confer citizenship rights to alien wives. In other words women gained nothing. Now all foreigners married to Zimbabweans can apply for citizenship based on laws governing immigration and their cases are considered on individual merit. Children of such unions can choose Zimbabwean citizenship once they reach 18 years.
3) Regulating women’s mobility
Immediately after Independence despite Zimbabwe being hailed as a progressive country on account of having a WID (Women In Development) Unit, and passing LAMA, female mobility was still seen as a problem by the state. When Zimbabwe hosted an international conference, the Non Aligned Movement (NAM) in 1987, the government was keen to show the best of itself. Harare had to be cleaned up and the burgeoning squatter camps removed from view. The cleaning up process saw unaccompanied women who were "out" after dark (meaning in the evening) being rounded up as prostitutes set on discrediting the country in front of international dignitaries. The women who were rounded up were working women (single and married) on their way home or to work. They were picked up as Harare’s eyesores and deposited far away near a national game park (Mushumbi Pools) where new resettlement schemes had been initiated. It was thought at the time that prostitution could be ‘cured’ through hard agricultural work which prostitutes supposedly loathed. Even if this was the case, the truth is that a lot of unmarried women were unable to access land in their own right (see Jacobs 1989, 1998). Effectively post independence policies discriminated against women in terms of access to production resources and yet when the women exercise other options they were criminalized.
The pre-NAM rounding up of women was embarrassing for the government and sit showed the paradoxes of the much-vaunted revolutionary spirit of post –independence Zimbabwe. The WID unit, the Ministry of Women’s Affairs had of course supported government’s stance saying that prostitutes are a nuisance. Years after the NAM conference and until spot-checking for national identity cards was challenged in the Supreme Court as an infringement of the freedom of movement, women were routinely harassed by the police under the pretext of checking for identity cards. Failure to produce one led to a night in police cells or a spot fine. The Ministry did not challenge these issues in the courts or in the street through demonstrations etc. This was particularly prevalent in the Avenues where a lot of single women reside. The author of this paper has been a victim of this harassment and accused of prostitution by the police for being out and about after dark or failing to produce identity cards when asked to do so. Sometimes wearing jeans is grounds for suspicion. Although it is no longer mandatory to have an identity card on oneself, the police have not stopped harassing women at night. Often women are accused of soliciting (for prostitution). Prostitutes do pay fines (that is if they cannot prove that they were not soliciting) or exchange sexual favours with the police in order not to be harassed in future. In other words female mobility is seen as problematic.
The foregoing shows that the state and its employees have appropriated the role of traditional elders or pushes their interests by controlling women. Male interests still take precedence. Women who are not accountable to men are shamed by the state thereby discouraging and limiting women’s choices. This posturing is akin to colonial deportations of women found in urban areas and could not prove that they were married or had ‘legitimate’ business in urban areas. Single women are seen as a particular nuisance and have the least legitimacy to be in the city. It is assumed that the presence of single women in the city has to do with sexual pleasure. Visible and provable attachment to a man defines female respectability. In other words those prostitutes who are with male clients when the police come about are exempt from harassment. In other words women should be accountable to males at all times in public if they are to be exempt from state bureaucratic harassment.
4) The role of traditional leaders
Although the role of traditional leaders was reduced in the post independence era, over the years their status has increased again as they lobby for more power and align themselves with the government. Immediately after independence, the government introduced structures which rely on elected officials in rural areas namely the Village Development Committees (VIDCOs). These structures were responsible for local development planning and worked with local government structures. Traditional leaders were sidelined. Ten years after independence there were legal changes which "restored" chiefs and headmen’s powers especially to hold court on family disputes using customary law (Ncube 1990). The traditional chiefs had lobbied the government and calling for restoration of their powers so they can be respected by their people and so they can participate in development. In the wake of these developments the government give chiefs land and inputs on which their people farm to produce communal grain to cater for the poor in their locale (zunde ramambo/ isiphla senkosi) in Shona and Ndebele respectively. Some chiefs have also come up with other innovations such as chiefs in Makoni District who are (in)famous for virginity testing of young girls. This is their contribution to HIV/AIDS prevention. Chiefs are clamouring to be allowed to have more say in land redistribution all in a bid to ensure that local culture is respected. This would prevent a lot of socio-economic and environmental ills including HIV/AIDS and counter the El Nino effect and floods which have ravaged the country. Chiefs attribute these to the anger of ancestors. They are now on government payrolls, they are expected to ensure the governability of rural areas and are now routinely used by government is political campaigns. By appealing to their role in cultural preservation chiefs have ensconced themselves in mainstream political discourse in Zimbabwe. They are seen as part of doing things the Zimbabwean way which in current discourse is frowned down at in some quarters internationally. Since chiefs administer rural populations it is politically expedient for the government to give in to their demands. In fact no one who wishes to work in rural areas can do so without seeking permission from the chiefs. However what this is doing to gender equality is not being debated. Chiefs’ roles in land redistribution have not improved women’s access to land, chiefs still see the Legal Age of majority as a problem and want it raised to 21, they see gender equality as a problem and that women should be subservient to men.
Discussion
Legal duality in Zimbabwe has created a lot of problems for women especially. It emerged as a result of the need to create choice but has stifled women’s choices. Customary law’s persistence is still based on the partial understanding and manipulation of custom so as to preserve some interests especially those of men. This posturing pervades state bureaucracies. Although the government is keen to undo colonial legacies in all sectors there seems to be very little commitment to revisit customary practices and redirect them towards an afrocentric and nuanced understanding of custom in the past. This should ideally include women’s voices. To the unwary international observer Zimbabwe has many laws which are women friendly but often section 23 is hardly debated as much as it should. Consequently women’s right can be denied constitutionally if it can be proven that it is acceptable to deny these rights under customary law. With the government also now resorting to chiefs to deliver rural governability (as its colonial predecessors had done), it seems that women have to wage more intense struggles to gain their rights. However there is a risk that to question current understandings of culture (which would mean challenging chiefs and government support for them) will lead to women’s causes being discredited as western and alien, an accusation which is more threatening now than in previous years as nationalism and patriotism are demanded of all citizens as a way of dealing with current developmental crises. Like in the liberation struggle, the gender question is sidelined as national interests ride high. It is seen as separate from the national defense. These issues have immobilized women’s organizations in Zimbabwe. Women are the losers
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