HONOURABLE. MISHECK MATARANYIKA: Thank you very much Madam Speaker for giving me the opportunity to present the Portfolio Committee on Justice, Legal and Parliamentary Affairs Report on the Marriages Bill. I will not labour you with the introduction that the Minister has already presented, save to say that I am going to present the Report as referred to the Committee by this House. Therefore, I will disregard any parts that the Minister might have discarded along the way.
My report will be covering every part of the Bill as presented to the Committee. The Bill addresses issues that affect the rights of individuals in different facets of society. In that regard, section 141 of the Constitution of Zimbabwe, mandates Parliament to engage the general public in its legislative and other processes of its committees and to ensure that the interested parties are consulted about Bills being considered by Parliament.
In fulfilment of this constitutional requirement, the Portfolio Committee on Justice, Legal and Parliamentary Affairs in conjunction with the Committees on Women Affairs, SMEs and Community Development; Health and Child Care; Gender and Development; and HIV and AIDS undertook public hearings for the Marriages Bill.
The public hearings were conducted in all the country’s 10 provinces covering 61 Districts from 25 – 31 August 2019.
Clause 1: Short title
Clause 1 is merely the title which no one had issues with and therefore accepted as in the Bill
Clause 2: Interpretation
2.2.1 Clause 2 talks about fundamental definitions used in the Bill. Members of the public were particularly happy with the emphasis on the definition of a ‘marriage’ as a union between a man and a woman and nothing else. The definition of a child as anyone below the age of 18 was also applauded.
Clause 3: Child marriages
The Bill in Clause 3 outlaws child marriages, which was commended by the general public given that Zimbabwe has been experiencing a significantly high rate of child marriages. This provision aligns the Bill to section 78 of the Constitution which stipulates the age of marriage as 18. It also gives effect to the judgment in the Mudzuru Case of 20161 which outlawed child marriages. The Bill does not discuss the issue of the age of consent to sexual activity. As the regulation of age of consent to sexual activity forms part of the sexual offences regime, this is provided for in the Criminal Law Codification and Reform Act [Chapter 9:23]. Whilst the Clause is commendable in outlawing child marriages, members of the public submitted that there are still shortcomings and there is scope to improve the Bill by strengthening mechanisms for prevention, detection, investigation and prosecution of child marriages, and also through provision of sufficient support to survivors of child marriage and measures to mitigate the impact of the same on their lives.
Clause 4: Consent to marriage
The Bill was commended for providing full and free consent by each part to marriage as this would reduce or do away with cases of forced marriages. Members of the public, however, felt that the Bill should make provisions for consultation of parents of guardians before any marriage is solemnised.
Clause 5: Nature of marriages
The public applauded the Bill for standardising all marriages in Zimbabwe and for affording them equal recognition, which signals a departure from the current regime where the marriages conducted in terms of the Marriages Act [Chapter 5:11] is considered to be more superior to the customary marriages conducted under Customary Marriages Act [Chapter 5:07]. Some members of the public however submitted that inequality will continue as parties to a customary law marriage will still be able to convert their marriage into a civil one, but not the other way round (clause 5 (4)) “Upgrading” of marriages will remain a one-way process.
Clause 6: Legal status of spouses
The Bill was applauded for the provision of equal rights and obligations to parties during the subsistence and dissolution of marriage. However, the Bill does not expand on the issues of equal rights and obligations during the subsistence of the marriage particularly how it relates to property rights. The case of Madzara v Stanbic Bank2 was cited as a typical example of how women who are not registered owners of most immoveable property in Zimbabwe lose out when the spouse sells the property arbitrarily on the basis of property law rights – as the registered owner. The protection in the Bill is only limited to instances of dissolution.
Clause 9: Designation of Chiefs as marriage officers
The Bill is commended for seeking to decentralise the registration of marriages by designating Chiefs as marriage officers who are empowered to register customary marriages. Whilst the provision was largely welcomed, it was submitted that the Government must ensure that necessary safeguards are put in place to address challenges that may arise from this new provision. Safeguards may include that, in the exercise of judicial functions, traditional leaders and the decisions of their courts should be subject to review by magistrates to ensure compliance with the law. Members of the public submitted that responsibility placed on chiefs to implement the Bill may be challenging for some chiefs due to their age or education level. It was further submitted that, following the Land Reform Programme, there are areas where no formal traditional structures exist and Citizens in these areas might remain prejudiced in accessing registration of marriages unless the Minister intervenes.
Clause 11: Certain persons may in certain circumstances be deemed to have been marriage officers
The Ministry of Foreign Affairs and International Trade made submissions for amendment of Clause 11 to include every Ambassador/Consul General by virtue of their offices to be authorised to solemnise marriages in the country to which they are accredited to. Such provision should extend to a case where one party to the marriage is a Zimbabwean.
Clause 16: Unregistered customary law unions
It was submitted that under the current law, there are only two marriages that have full validity. These are (i) civil marriage under the Marriage Act (chap 5:11) and (ii) customary marriage under the Customary Marriage Act (chap 5:07). The Bill continues with the characterization of an unregistered customary union as a “limping marriage”. It is still an invalid marriage except in the limited sense relating to “status, guardianship, custody and rights of succession of the children of such marriage” under customary law. It was noted that, it is a fact that the majority of marriages in Zimbabwe are “unregistered customary law marriages”. All these marriages, both under current law and the Marriages Bill, remain “limping marriages”. Yet their only difference is the absence of a marriage certificate.
Clauses 34 – 37: Registration of marriages
It was noted that one of the challenges emanating from the current marriage system, is its failure to detect cases of bigamy. Although the act of bigamy is a criminal offence in terms of section 104 of the Criminal Law (Codification and Reform) Act, there is need to ensure that safeguards are in place to detect the practice at an early stage. It was further submitted that, the Bill, in seeking to ensure registration of marriages, has made huge strides in attempting to curb the practice. The current safeguards in the law include the publication of banns and the notices. However, both have limited reach, hence limited impact in curbing the practice. Participants stated that the Bill must provide for digitization of the marriage registry, with the database accessible to all marriage officers for verification of status of persons intending to marry.
Clause 40: Civil Partnerships
Clause 40 on civil partnerships was by far the most controversial and most referred to part of the Bill. Submissions received by the Committee were in two completely different categories. Those against and those in support of provisions on civil partnerships. Those against section 40 called for total repeal, as the practice is objectionable to the majority Zimbabweans who are Christians whose beliefs are based on one-man-one wife as was demonstrated by God when he created mankind. It was submitted that culturally the provision is unacceptable to Zimbabweans whose ubuntu, customs and tradition, identity, moral conduct and ethics are anchored on the sanctity and sacredness of a family, which is born out of marriage. There were fears that the provision may be used as a vehicle through which foreign abhorrent practices will be transmitted to youths and future generations, leading to the destruction of a family as an indispensable social institution. It was further submitted that civil partnership is a form of social deviant behaviour, whose effect legalizes immorality, promiscuity, and promotes spread of HIV and other sexually transmitted infections (STIs) and contributes to incidences of domestic violence. The second category of submissions were of the conviction that section 40 was progressive as it is intended not to promote cohabitation but to ‘determine the rights and obligations of the parties on dissolution of the relationship,’ in which sections 7 to 11 of the Matrimonial Causes Act (Chapter 5:13) were pertinent, with regards to, among other things, duration of relationship; extent of common residence; existence of sexual relationship; financial interdependence between them; acquisition and ownership of their property; and support of children.
Clause 42: Void and voidable marriages
Clause 42 provides for the possibility of annulling child marriages entered on or before the 20th of January 2016. This was a welcome development that meant to protect the child. Further, the public noted that in the event that the child annuls the marriage, the Government should set up proper support structures and safety nets for children in need of care.
Clause 53: Amendment of Cap. 9.23
Submissions and opinions were divided on the issue of decriminalisation of the wilful transmission of HIV as provided for by section 79 of the Criminal Law (Codification and Reform) Act. Those against criminalization of HIV were of the view that section 79 should be repealed as it does not only apply to people who deliberately and with evil intention transmit HIV to other people, its vague language means that any conduct can be a crime, including breast feeding. Therefore, members of the public viewed this law as making people living with HIV vulnerable to unfair prosecution, especially considering that the direction of transmission between spouses cannot be determined. To date, the section has been used to target women who cannot afford lawyers, as a result most of those convicted so far were said to be women, because women usually are first to know of their HIV status and are being falsely accused of bringing HIV into relationship. Submissions were also made to the effect that those who, knowing that they are HIV positive, and do not disclose their status to their spouses, and wilfully transmit HIV should be prosecuted. Some were of the view that that decriminalizing wilful transmission would be retrogressive in the fight against HIV and AIDS and submitted that wilful transmission of HIV, should remain criminalised and a stiffer penalty should be extended.
OBSERVATIONS AND RECOMMENDATIONS
The Bill in Clause 3 outlaws child marriages, which is commendable given that Zimbabwe has been experiencing a significantly high rate of child marriages. However, there are still shortcomings and there is scope to improve the Bill.
Recommendation 1 Lessons should be taken from the ‘SADC Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage’ which creates a comprehensive mechanism for the state to offer financial and psycho-social support for children who would have been emancipated from child marriages and the protection of children against child marriages. Age of consent to sexual intercourse should be addressed by the Bill. It should be raised from 16 to 18 years
Unregistered customary law unions remain the most common marital regime with about 70% of women living in rural areas in Zimbabwe being married in terms of this marriage. The Bill refers to their existence, but the shortcoming raised by members of the public need to be addressed.
Recommendation 2 The application of the principles in the Matrimonial Causes Act relating to distribution of property on divorce should be explicitly provided to apply to unregistered customary law unions. There is need to do away with the tag of “limping marriage” and recognizing them as valid, thereby putting them at the same level as registered marriages. The only difference will be that a marriage certificate is prima facie proof of the marriage while a party to an unregistered customary marriage would have to prove the existence of the marriage.
The Bill is commended for seeking to decentralise the registration of marriages by designating Chiefs as marriage officers who are empowered to register customary marriages in terms of clause 9. While the above rationale is noble, there are some problematic aspects arising from the proposal as it currently stands. Not every chief may have the capacity to perform the onerous responsibilities of a marriage officer. Lack of capacity may arise from advanced age or illiteracy.
Recommendation 3 The Bill must not make all chiefs marriage officers by default. Instead, the Minister may designate certain persons to become marriage officers, including the Chiefs, the headmen or some other qualified persons upon meeting certain criteria. This may be operationalised through promulgation of regulations that will give effect to the criteria upon which designation of other officers may be premised for purposes of this Bill. The criteria may include level of understanding, expertise and experience in administering customary marriage related issues or any other consideration that will serve the best interest of this Bill. The powers of the magistrate should be extended to include the chiefs’ or any other designated persons’ functions as marriage officers under the Bill to ensure compliance with the law. This is necessary to ensure that the Bill does not create a legal vacuum
The Committee takes note of the submissions by the Ministry of Foreign Affairs and International Trade for amendment of clause 11 to include every Ambassador/Consul General by virtue of their offices to be authorised to solemnise marriages in the country to which they are accredited. It is the Committee’s view that such a provision should be extended to a case where one party to the marriage is a Zimbabwean.
Recommendation 4 Clause 11 must be amended for inclusion of every Ambassador/Consul General to be authorised to solemnise marriages in the countries they are accredited. A procedure of transmission should be as follows: Ambassadors/ Consul General shall apply the laws and regulations of the Republic of Zimbabwe for the Registration of Marriages, the Solemnisation and the issue of Certificates of Marital Status. The Ambassadors/ Consul General should forward without delay, the copy of the marriage entry to the Marriages Department at Makombe Building in Harare. Upon receipt of the marriages entry, the same Civil Registrar shall be deemed to have solemnised the marriage.
The Bill, in seeking to ensure registration of marriages, has made huge strides in attempting to curb increasing cases of bigamy. The current safeguards in the law include the publication of banns and the notices. However, both have limited reach, hence limited impact in curbing the practice.
Recommendation 5 The Bill must provide for digitization of the marriage registry. The database must be accessible to all marriage officers registering civil marriages to verify status of persons intending to marry. However, processing of this information must be for purposes of this Bill and must be guided by the provisions of section 57 of the Constitution which safeguards the right to privacy. Data may only be processed by authorised agents in the registry office through authorised documentation by the marriage officer or a court order. A window period of twelve (12) months effective from date of the promulgation of the law should be given for registration of all marriages but at the same time open unconditional registration and issuance of birth certificates and identity cards.
The Committee commends the Bill for the provision to parties of equal rights and obligations during the subsistence and dissolution of marriage. It is observed that there is a current legal lacuna which pitches rights of real registered owner vs. the personal rights that accrue in marriage in relation to matrimonial property.
Recommendation 6 It should be established whether marriages should be ‘in community’ or ‘out of community of property which is the current position according to the Married Persons Property Act. We can follow the South African position which is in community of property or be guided by other jurisdictions which have placed protective measures that require spousal consent before dispossession, sale or hypothecation of property. Regarding dispossession of the matrimonial home, the written consent of the spouse should be requirement and a remedy must be made available at law for those who are in contravention.
Clause 40 which makes provision for civil partnerships has been challenged from a moral and religious basis. It is the Committee’s view that the provision undermines the monogamous nature of the civil marriage outlined in clause 5 (1) of the Bill.3 From a practical viewpoint, an additional challenge posed by the provision is in relation to the sharing of property at the dissolution of the civil partnership. The complexity is in determining the rights of the parties to the union at dissolution where one of them is married in terms of another marriage regime.
Recommendation 7 The entire Clause 40 of the Bill must be removed since it has sparked controversy based on among other things, unresolved property regimes.
The Committee noted that apart from stigmatizing persons with HIV, the criminalization of HIV transmission has detrimental gender dimensions. The Committee commends the Bill for abolishing the offence in its entirety, mainly to protect innocent spouses falsely accused of deliberate HIV transmission. It should be noted that the Bill does not abolish the mandatory minimum sentence of ten (10) years imprisonment for persons who are HIV positive and are convicted of rape or aggravated indecent assault or sexual intercourse with a young person.
Recommendation 8 Section 79 of the Criminal Law (Codification and Reform) Act [Chapter: 9:23] should be repealed. However, considerations of criminalisation when the wilful transmission can be proven beyond reasonable doubt should be effected
Despite the Bill setting out critical commitments that Zimbabwe must adhere to under international human rights law, it does not provide a framework for monitoring its implementation. Some of the critical commitments where the State must demonstrate the extent to which they have upheld the commitments include inter alia, the commitments to end child marriages, to promote equality in marriage and to ensure registration of marriages.
Recommendation 9 The Minister of Justice, Legal and Parliamentary Affairs must compile a report annually for presentation to Parliament on the progress made in implementing the provisions of the Act.
The Bill is commended for consolidating the country’s marriage laws and for providing for other outstanding matters related to marriage such as outlawing child marriages. However, there remain other issues related to marriages that must be expeditiously addressed to ensure full alignment of all marriage related matters to the constitution. The Bill is silent on issues of marriage and inheritance, marriage and property rights; guardianship and citizenship. The relevant pieces of legislation must be urgently reviewed. It would be most desirable to have a consolidated Act of Parliament covering all the key components of marriage law. I thank you.