Harare East legislator Tendai Biti says Parliament should not remove the infamous Section 40 (civil partnership clause) on the Marriages Bill, arguing that it will be a tragedy to remove it.
The Civil Partnership Clause was widely condemned by most Zimbabweans especially, women and religious organisations who were of the view that it was meant to counter marriages and empower “small houses”.
The outcry by Zimbabweans over the alleged effects of Section 40 to society forced the government to announce that it will be scrapped during the committee stage of the Bill in the National Assembly.
However, while debating on the Bill in the National Assembly, Biti who is a seasoned lawyer argued that the Section should not be scrapped in its entirety.
“I disagree Madam Speaker with the recommendation of the report that we should scrap Section 40 in its entirety. With great respect, we should not. What we should scrap is Section 40 (5).
“It reads as follows: – “a civil partnership exists notwithstanding that one or both of the persons are legally married to someone else or are in another civil partnership”. This is what we should scrap because we should still protect the sacrosanctity of the marriage.
“The Constitution protects that. The Constitution protects the sacrosanctity of the marriage. If I am John Chibadura, I decide to meet Mary in Dotito and we decide to have a marriage in terms of Chapter 5:11, the law should protect that institution. That institution notwithstanding that ticharasika apa, is an undertaking that I will never associate with another man or union. For the good of this country and society we should protect that union,” he said.
According to Biti, Section 40 of the Marriages Bill only recognises that a human being will one way or another stay with another being whether out of love or extramarital affair adding that it will be a amiss not to recognise that.
“What Section 40 does is to recognise that whether we like it or not munhu wenyama munhu wenyama. Achatogara neumwe munhu whether pane rudo kana kuti pane chipfambi. If we do not recognise that people are going to stay together, there are going to be serious consequences particularly against the woman because the woman will get into a relationship, give it all to the husband or man.
“Madam Speaker, you will know as a woman that women are more faithful than men. By their very nature, women are more monogamous than men. By their very nature, men are polygamous vanenge zvikutu zvinoenda pese pese. For that reason, we need to protect women.
“Therefore, foolishly or with love, if you go and stay with someone’s else daughter and you build a life with her, there must be matrimonial consequences even though you do not have the legal heading or label of a marriage. There has to be matrimonial consequences,” he said.
Below is the Full text of what Honourable Tendai Biti said in Parliament on the Marriages Bill.
HONOURABLE BITI: Madam Speaker Ma’am, I thank you very much for recognising me in this important debate in respect of the Marriage Bill [H. B. 7, 2019]. This is an area of the law that I have worked with for many years in my life as a lawyer. The two cases that are in the report by the Portfolio Committee on Justice, Legal and Parliamentary Affairs on this particular case, the case of Mudzuru and the case of Anne Mutsa Madzara versus Stanbic Bank, I actually happened to have argued them.
Madam Speaker Ma’am, the Constitution was passed in 2013 so this is the first attempt to harmonise our marriage laws to the Constitution of Zimbabwe. There are many provisions in the Constitution that speak to marriage, women and children. These include Section 81, Section 84 of the Constitution of Zimbabwe. My respectful submission is that we need to harmonise all these laws. We need to consolidate all these laws in one Bill. The present situation Madam Speaker Ma’am is that only lawyers or NGOs will be able to have the capacity of knowing what to look for and where to look for and that is not good. We need one consolidated marriage and children’s law that will deal with the following issues;
1)The issue of marriage.
2)The property regime of marriage and it is something that I am going to speak about.
3)The rights of children.
4) Succession issues, what happens when a partner dies, what happens when a spouse dies, what happens when a husband dies and when the wife dies.
So I would submit Madam Speaker Ma’am that we need a complete and total harmonisation of the marriage. A lot of members have spoken about the protection of children to prevent child marriages. That is very commendable. My only regret is that the judgement and decision in the matter or Loveness Mudzuru and Ruvimbo Tsopodzi which outlawed child marriages was handed down by the Constitutional Court, the current Chief Justice when he was Deputy Chief Justice on the 16th January, 2016. We are now in 2020, that means we have wasted four years in respect of which sugar daddies and other men have been marrying children for four years.
Madam Speaker, my submission and plea is that once the Constitutional Court has made a judgement that outlaws a certain piece of legislation, then the Executive and Parliament must act quickly to remedy what the Constitutional Court will have spoken of. Section 81 of the Constitution defines a child as anyone up to the age of 18 and below. Section 81 then gives a lot of protection to children. They have an obligation and rights to go to school, shelter and clean water. They also have an obligation and a right to be protected of their social being and their dignity. If we have declared that a child cannot be married before the age of 18, surely we must also protect that child and raise the age of sexual consent to 18 – [HON. MEMBERS: Hear, hear.] – So we have a contradiction in the law. The Criminal Procedure and Evidence Act says the age of consent is 16, in fact it is worse than that. There is a rebuttable presumption that a child at 14 can have sex. So if a girl child is big, a man can actually go before a criminal court and say I thought she was 22 years old- that is criminal. Even if she is big, she is still a child and we have to protect her – [HON. MEMBERS: Hear, hear.] – So my submission Madam Speaker Ma’am is that we need to raise the age of sexual consent to 18. If a child who is 17 says I want to have sex we have to tell her to wait until she is 18 because we have to protect children – [HON. WADYAJENA: How do you do that?] – The law can provide that.
In South Africa Madam Speaker Ma’am and in many jurisdictions, they have got a law that says the age of sexual consent is 18, but they then have a category now where the law recognises what is called Romeo and Juliet love. So, you are 17 and you fall in love. The mischief that we are trying to deal with is a man who is 60, 70, 24 or 28 years going after this young child who is 16. So in South Africa and in other jurisdictions, they have provided for a Romeo and Juliet love, 17, 18 and 19 years. So there you will not have the same penalties. If a 19 year old sleeps with the 17 year old, the law treats that differently from when an 84 year old sugar daddy and a 40 year Member of Parliament sleeps with a 16 year old. Our law can provide for that but the bottom line Madam Speaker Ma’am is that we need to raise the age of sexual consent to the age of 18.
Madam Speaker Ma’am I have a problem with Section 5 of the Bill. We need to grab the bull by the horns. So, the Bill still creates the regime of unregistered customary law unions in Section 16. So the Bill still maintains a dual system of marriage unregistered customary law unions and civil marriages. Madam Speaker, we are still maintaining the colonial mindset of superiorising a marriage in terms of Chapter 5:11 or what is called a civil marriage.
My submission is that we should have created two marriages in Section 5 that is a monogamous marriage which is the equivalent of the old Section 5.11 and a polygamous marriage which is equivalent of a marriage in terms of the African Marriages Act. There are all marriages, the only difference will be on the consequences on proprietary rights, because in the polygamous situation, if a man has got ten wives then those ten wives have got a right to one’s property but it terms of the status of the marriage, each one those women, whether there are ten married by Mr. Dotito under the African Marriages Act they must have the same right as Ms Silvia Chirau married under Chapter 5.11. So I think the continued demarcation between Section 16 and Section 5 is unhappy one.
Let me now come to Section 40. Madam Speaker, we should not pretend that our people are engaged in non marriage associations which the Bill describes as civil partnerships. We live in a patriarchal society, a society which gives advantages to men. We live in a country where there are economic challenges. So, whether we like it or not, no matter how much we preach and from where we preach people are going to be engaged in civil partnerships. Many of these civil partnerships do not come from what you would call a basis tainted with turpitude -hakusi kuhuraba. So two children can meet at university Madam Speaker and start staying together, do not marry but staying together and actually have children and acquire property. That is a civil partnership. We need to recognise it. In the present law, as it stands without this Bill, there is something in our law called the doctrine of tacit universal partnership. Under the doctrine of tacit universal partnership, a woman or man is entitled to go to court and say even though we were not married we stayed together as husband and wife and we acquired property, therefore we are entitled to equal distribution of this property.
In England in the 1960s, there was a baby boom and it was an age of liberalism. People stayed together and entered into these civil partnerships. The problem with civil partnership was that after staying together for 20 years the man would walk out now and often times he has got more money. In 1968, in a famous case called Petit vs Petit, Lord Denin came up with the concept of a constructive trust – here we have got a tacit universal partnership. In England, they came up with a doctrine of constructive trust where a man and a woman not in a marriage stayed together; they are deemed to be in a trust. When that trust collapses they must divide equally the proceeds from that trust, children, property and so forth.
What Section 40 does is to recognise that whether we like it or not munhu wenyama munhu wenyama. Achatogara neumwe munhu whether pane rudo kana kuti pane chipfambi. If we do not recognise that people are going to stay together, there are going to be serious consequences particularly against the woman because the woman will get into a relationship, give it all to the husband or man. Madam Speaker, you will know as a woman that women are more faithful than men. By their very nature, women are more monogamous than men. By their very nature, men are polygamous vanenge zvikutu zvinoenda pese pese. For that reason, we need to protect women. Therefore, foolishly or with love, if you go and stay with someone’s else daughter and you build a life with her, there must be matrimonial consequences even though you do not have the legal heading or label of a marriage. There has to be matrimonial consequences.
I disagree Madam Speaker with the recommendation of the report that we should scrap Section 40 in its entirety. With great respect we should not. What we should scrap is Section 40 (5). It reads as follows: – “a civil partnership exists notwithstanding that one or both of the persons are legally married to someone else or are in another civil partnership”. This is what we should scrap because we should still protect the sacrosanctity of the marriage. The Constitution protects that. The Constitution protects the sacrosanctity of the marriage. If I am John Chibadura, I decide to meet Mary in Dotito and we decide to have a marriage in terms of Chapter 5:11, the law should protect that institution. That institution notwithstanding that ticharasika apa, is an undertaking that I will never associate with another man or union. For the good of this country and society we should protect that union.
What we need to say is that there shall be a civil partnership but a civil partnership does not apply where you have got a monogamous relationship. However, that does not mean that a woman who has been a victim of an errand husband who could not feed what his wife was feeding him and he decided to eat by the next door, the law should still say that woman can go to court and make an application to say ndipeiwo mapoto angu nemotokari nemba yekuBudiriro. In other words, there should still be proprietary consequences but that should not affect the integrity of the monogamous civil union or civil marriages.
I want to come to the issue of property. Women are suffering from four situations. The first one; as you know only 26% of women in Zimbabwe own immovable property. It does not matter whether you stay in Borrowdale or Umwinsidale, the property invariably is registered in the name of the husband. In the case of Anne Mutsa Madzara vs Stanbic Bank and others, Mrs. Madzara actually bought that house in Belvedere but the house was registered in the name of her husband. Then the bank went and sold the house in execution.
That is the first situation. Husbands tend to own property because they work and they have a salary. Mortgages are registered in their name. When it comes to divorce the woman is actually better off because a divorce, it does not matter whether your name is on the title deed or not. Most of our people do not suffer a divorce, they are now suffering during the duration of the marriage because husbands are selling houses behind their wives back.
Husbands are getting into debt as in the Madzara case. The law should be that all marriages in Zimbabwe are in community of property. We should therefore repeal the 1929 Matrimonial Properties Act and it is unconstitutional. The Matrimonial Properties Act is unconstitutional because it says what the husband owns belongs to the husband. What the wife owns belongs to the husband but we have a Constitution including this Bill which says everything that happens in a marriage, the man and the woman are equal. We need to make all marriages to be in community of property. It does not matter if I am a husband, I have money or a business and my wife is a domestic engineer, she stays at home. We own that property together without discrimination.
The second area where women are suffering are women in the rural areas. Women in the rural areas are married in terms of unregistered customary law union. Munhu anongobvisa pfuma yake. Mazuva ano havachambobvisa kana mbudzi chaiyo. I have got an aunt who stayed together with my uncle for 25 years. Then my uncle found another young woman from the same village in Mazana Village, Murehwa West. My aunt was chased away from that house with four pots and four cattle but she built that home and it is a very nice home.
We need a property regime that says even for a rural home let us value it and you give me my value. If you cannot give me money, iwewe chibva pamusha pacho. This is happening in Malawi Madam Speaker. The Malawian Supreme Court has accepted a judgment that says it does not matter that the woman has gone into the husband’s village. When it comes to distribution of matrimonial property that rural home can be shared. Kana uri mhofu unobva pamba pamhofu, mai mhofu vosara ipapo nekuti mai mhofu vakakubarira vana. Madam Speaker, we need to revisit that. The third area Madam Speaker, is the area of land reform. We have two judgements that have confirmed that land given in respect of the Land Reform Program does not belong to the husband or wife; it belongs to the State. Therefore, it cannot be subject to matrimonial distribution.
Madam Speaker, we have had the land reform for over 20 years. So what happens is a wife is married and often times the husband works in Harare or Bulawayo, so it is the wife who builds that farm, works so hard to buy centre pivots and build barns for the tobacco farm. However, when it comes to divorce, she is told this property cannot be distributed and she is chased away like a dog. Two judgements Madam Speaker, have confirmed this wrong position; the case of Chombo vs Chombo and the case of Chiwenga vs Chiwenga. That is wrong Madam Speaker Maam. You can distribute lease rights. You know that all these township houses belong to the city council but when there is a divorce, you can distribute the rights in that lease agreement. We need to distribute the offer rights in an offer letter so that we protect women. Madam Speaker, this must be contained in the Marriages Act.
In summary Madam Speaker, my submission is that let us not do a piece-meal harmonisation; let us do a consolidated harmonisation. I just want to talk about children. Section 3 of the Guardianship of Minors Act still says 40 years after independence that guardianship resides in a man. Madam Speaker, yourself as a woman and all the women here cannot get a birth certificate or passport for your child unless the husband is there. The problem is that the majority of children that are actually being born in Zimbabwe are not being born inside marriage; they are born outside marriage. So, the sperm donor or the one who gave you the child would have run away anyway. Where do you find him because he has run away from his responsibility? Because we now have a Constitution that says men and women are equal guardianship should actually remain with the mother. Even if the mother has 40 children, she loves them all but if a husband goes to “mainini John, vana wamainini John ndivo wakosha and she goes to mainini Sylvia wamainini Sylvia ndevake.” That is not fair Madam Speaker. Let guardianship resides with the mother.
In short Madam Speaker, these are issues that are filling the courts right now as I am talking to you. The busiest court in Zimbabwe is actually the divorce court. We have to make the lives of women easier and better and a starting point is to have a comprehensive marriage law that covers succession, property rights and the rights of children. I thank you very much Madam Speaker.