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vulnerability to HIV/Aids for women in unregistered customary law
marriages as it relates to property and inheritance rights in Zimbabwe
and Law in Southern Africa (WLSA)
May 30, 2012
In 2001, the
prevalence rate of HIV infection in Zimbabwe stood at 23.7%. In
2010, it declined to 14.3% a commendable achievement. However, some
factors remain unaffected by this drop, chief among them the disproportionate
effect of HIV/Aids on women. As at 2009, the life expectance for
women stood at 47 years and 60% of Zimbabwean adults living with
HIV were females. The gap for women aged between 15-24 years was
even wider standing at 77%. The reasons still remain rooted in gender
Formed in 1987
and formally registered in 1989, Women and Law In Southern Africa
Research and Education Trust (WLSA -Zimbabwe) is part of a regional
organization located in the seven Southern African countries of
Botswana, Zambia, Lesotho, Mozambique, Malawi, Swaziland and Zimbabwe.
WLSA uses evidence-based interventions to advocate law and policy
reform for the betterment of women and girl's lives. Since 1987,
WLSA has conducted research on laws and policies affecting women.
WLSA has used the research to successfully advocate law and policy
reform, for instance in 1997 the law relating to inheritance was
amended substantially to favor the surviving spouse and children
in the distribution of a deceased estate. WLSA provides legal aid
to indigent women. Specifically, research has been conducted on
gender, HIV/Aids and the law from a rights based approach.
a country that subscribes to the rights of women. This is evidenced
by Zimbabwe signing and ratifying instruments such as CEDAW, SADC
Protocol on Gender and Development and the Optional Protocol to
the African Charter on the rights of Women in Africa. S23 of the
of Zimbabwe recognizes non-discrimination on the basis of race,
color, creed, marital status, gender, sex, tribe, political opinion,
physical disability and place of origin. Zimbabwe has in place a
fully-fledged Ministry of Women Affairs, Gender and Community Development.
In 1982, Parliament
passed the legal Age of Majority Act (Now part of the General
Law Amendment Act) that made all Zimbabweans regardless of sex,
majors upon turning 18 years. Prior to that, all African women were
perpetual minors who were not legally competent to enter into contracts
unassisted by their fathers or male guardians.
Constitution guaranteeing rights in the Declaration of Rights, the
same Constitution in Section 23 (3) (a) and (b) allows discrimination
in matters of personal law regarding the application of customary
law. Customary law is more visible in matters of personal laws and
this entails the law of husband and wife, law of persons, children
and succession. This is an area where most women are located and
that also plays a part in the increased vulnerability of women to
HIV infection. In the infamous Magaya vs. Magaya case of 1999 the
Supreme Court ruled that it was not discriminatory for the court
to rule that an African woman had no right to inherit property from
her late father since the Constitution permitted this discrimination.
The same Constitution also allows the operation of customary law
side by side with general law.
marriage law system in Zimbabwe and the link with inheritance laws
the legal pluralism played out than in the marriage laws in Zimbabwe.
There are only two legally recognized and registered marriages in
Zimbabwe. These are the monogamous marriage under Chapter 5:11 and
the potentially polygamous customary law marriage under Chapter
5:07. The third type is the unregistered customary law "marriage"
( the legally correct term being union )that is at law not valid
except for purposes of guardianship, custody, access, maintenance
and inheritance under customary law. This "marriage" comes
into being when a man pays bride price for his wife. He may also
pay bride price for more than one wife. According to research by
WLSA, more than 50% of all marriages in Zimbabwe are not registered.
This is due to a variety of factors such as the myth that registering
a marriage is signing one's "death warrant" by the husband.
In 1997 the
Parliament of Zimbabwe passed the Administration of Estates Amendment
Act of 1997. This Act entails that at the death of wife or husband,
the surviving spouse and the children inherit the property. This
Act specifically recognizes a woman married in an unregistered customary
law marriage as a wife for purposes of inheritance. The spouse inherits
the house that they were living in prior to death, the household
goods and contents and share the remainder with the children. These
rights are reinforced by such international instruments as the Optional
Protocol to the African Charter on the rights of women in Africa
that Zimbabwe ratified in 2009. This means that despite her not
having a marriage certificate, she is entitled to inherit from her
late husband's estate. If a man has more than one wife, they will
all inherit with the senior or first wife getting more. Therefore
at least on paper, the inheritance law protects the rights of all
women regardless of whether their marriage is registered or not.
concern lies in the lack of security in relation to inheriting property
by women in unregistered marriages at the death of a spouse. While
on paper, they are entitled to inherit, in practice, the situation
is different. According to research conducted by WLSA and cases
handled through the legal aid programme, these women face a multiplicity
of problems by virtue of the fact that they do not have a marriage
certificate. To be able to access the property, they need to register
the estate with the Master of the High Court or Assistant Master
at the Magistrate Court. To do this, they require the death certificate.
To obtain the certificate, they need proof from the late husband's
relatives that indeed they were married to the deceased under customary
law. In comparison, a wife who has a registered marriage simply
produces her certificate to the Registrar of Births and Deaths.
The wife has to rely on the cooperation of her late husband's relatives
to obtain the death certificate. Some of these relatives out rightly
"disown" the wife or in a situation where there is more
than one wife, they may favor one over the other. The handling of
such disputes at the courts have not inspired confidence either
in women because they have ruled against women in unregistered marriages
even to the extent of calling them concubines. Therefore in the
absence of the death certificate some women have been labelled mere
girlfriends and have been chased from the marital home and walking
away empty handed. Most of these women do not have means to pursue
the legal process to the full. The relatives of the late husband
literally pounce on the estate and help themselves to property that
was acquired jointly by the wife and her deceased husband. In the
research on gender, HIV/Aids and the law from a rights based approach,
WLSA Zimbabwe worked with Gweru Women Aids Prevention Association
(GWAPA) and its affiliates of Zvishavane Women Aids Prevention Association
(ZWAPA) and Shurugwi Women Aids Prevention Association (SWAPA).
These are organizations founded and run by sex workers. Most of
the women stated that they turned to sex work after losing all they
had worked for when their husband died and they were disowned by
the husband's family. They resort to unprotected sex since it "pays"
more. Put simply, the economic hardships that they endure makes
them engage in transactional sex. Although some have tried to engage
in incoming generating projects (others even successfully), others
are lured back into sex work. The situation has been worsened by
the economic down turn in Zimbabwe beginning in 1998. By engaging
in unprotected sex, they increase the risk of infection or re-infection
It is therefore
WLSA Zimbabwe conclusion that the non- recognition of unregistered
customary law marriages places the greatest impediment to women
in such situations from accessing property and the death of their
customary law husbands.
of recognition of unregistered marriages
Access to property
and inheritance is an issue of economic survival. Equal and unfettered
access to property and inheritance rights will ensure that women
have access to resources. It will lead to more economic opportunities,
higher security and less dependence on male relatives or transactional
sex. Zimbabwe already protects legally the inheritance rights of
women in unregistered marriages. Recognizing such marriages will
remove barriers in obtaining death certificates, registering the
estates and inheriting the property. Ultimately, it will result
in economic security and thus a reduction in poverty and economic
dependence. This will allow widows to be in a better position to
negotiate safe sex therefore reducing the risk to HIV infection
or re -infection.
recommends the enactment of legislation recognizing unregistered
customary law marriages as full marriages in fulfillment of the
protective role of the law. This will enable such women to secure
death certificates, register and administer their late husband's
estate and inherit property as outlined in the Administration of
Estates Amendment Act of 1997.
and Law in Southern Africa fact
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