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MPs with “small houses” condemned Clause 40 (5) the most, says Gonese

Mutare Central legislator Innocent Gonese says he was shocked that some legislators, businessmen and church leaders who have small houses and concubines were some of the people at the forefront castigating Clause 40 (5) of the Marriages Bill.

DOWNLOAD: MARRIAGES BILL

The infamous clause talks about civil partnerships and it was felt by some section of the church community, members of society and politicians that it was anti-marriage and also promoting extra-marital practices which forced Cabinet to reconsider it.

However, some legal practitioners in the country such as Tendai Biti, Minister Ziyambi Ziyambi have actually revealed that there was nothing sinister about the clause.

READ: DO NOT REMOVE SMALL HOUSE CLAUSE

Their sentiments have been supported by Honourable Gonese who is of the view that the issue was not handled well and that the promiscuous legislators are some of those who condemned the clause leading to its deletion.

Speaking in the National Assembly, Honourable Gonese said those Members (legislators) who castigated the clause are actually leading double lives.

“I would like to say that the main problem which we have to correct as a nation is for us men, in particular, to cease behaving in a hypocritical manner. There were Honourable Members who were on the forefront of attacking Clause 40 yet they lead double lives which I alluded to earlier. Those are some of the very same people who have got concubines, who have got small houses yet they were at the forefront and going on the top of the mountain to condemn this particular clause.

“As legislators, I do appreciate that it has now become extremely difficult to see how that particular provision can be accommodated.

“Cabinet, in its wisdom or lack of it, considering the fact that the majority of people in this country are Christians, the majority of the people in this country believe in the sanctity of marriage and for them to come up with such a sub-clause like sub-clause 5 which then says that in terms of its application it would even apply to situations where people were in civil partnerships even if one of the parties were married, was then the height of carelessness on the part of Cabinet,” he said.

Below is the full text of what Honourable Gonese said concerning the Small House Clause in Parliament

Honourable Gonese: Thank you very much, Mr Speaker Sir, for allowing me to add my voice to this very important debate. I would like to begin by saying that as all Hon. Members are aware, there was a lot of pandemonium and mayhem in this country upon the introduction of this Bill. Most of the hullabaloo was centred on the provision of Clause 40 (5) of that particular Bill. In fact, the Bill became colloquially known as the “small houses bill” that is how bad it became.

However, I want to say that in my view, the main problem is that this matter was not handled properly. If the House will recall, the issue regarding the harmonisation of our marriage rules did not begin in 2019 when the Bill was gazetted but it has been on the table for a number of years. There was some impetus which was given to it after the landmark ruling in the Constitutional Court in the case of Mudzuru and another vs the Minister of Justice, Legal and Parliamentary and others, which then made it categorically clear that people under the age of 18 could not contract valid marriages in line with the provisions of the constitutions which were adopted in 2013.

Further to that, in 2016 we had the SADC Model Law of Child Marriage which I had the privilege to move when I was still at the SADC Parliamentary Forum in Swaziland. One would have hoped that with that impetus we were going to have the bringing in of this Marriage Bill at the very latest in 2017. That did not happen.

READ: SADC MODEL LAW ON CHILD MARRIAGE

There was a lot of procrastination, hedging and fudging. One could tell clearly that the Executive was not fully committed to the issue and as a result, it took so long. However, when the time that the Bill was gazetted came to pass, one started wondering what the delay was all about. One would have hoped that with the time that they took they would have been more careful in terms of looking at all the fundamental issues. But alas, that was not the case and we all started wondering what they had been thinking about if they were thinking at all because eventually when the Bill was gazetted, it was very evident that not sufficient thought had been given not just to that clause as I am going to illustrate, but to the whole Bill itself. It left a lot of fundamental issues unanswered. However, I will deal with that later.

I will just start with the hullabaloo about Clause 40, the civil partnership. The issue was about cohabiting and small houses. The reason why there was that hullabaloo is partly that our leaders do not lead by example. A lot of perceptions arose because it was felt that Members of the Executive, in particular, wanted to protect their small houses. That was the perception out there. This was not just confined to political leaders but even when you look at our judges, some of them have been living in polygamous marriages.

Some of them have been living in polygamous marriages which only came out clearly at the death of some of the senior judges whom I shall not mention by name but is the problem. It is not just about judges and political leaders, even ministers of religion – a lot of people live double lives. They have got public lives which we all know about but some of them have private lives which we may or may not know about.

In some of the situations, some people’s private lives are conducted in a blaze of publicity as a result of which some of those people end up with a third life, a secret life which we will only know about after those people die when some children start surfacing who were not known and illustrate the point that people will have been living double lives.

So I would like to say because of this particular background, the Bill was not understood clearly but the end result is a situation where we are going to throw away the child and the bathwater.

I was privileged to be part of the subcommittee which travelled the length and breadth of this land trying to solicit the views of the public regarding what they felt about this particular Bill. It was very clear although the majority sentiment was that people were not supportive of that particular clause.

However, we had some very critical views which came out in particular from the Zimbabwe Women Lawyers Association regarding some genuine cases where some people were being disadvantaged. If you look at the dynamics in our society, there is a clear imbalance between men and women and it is very evident that it is the women who are disadvantaged. As a result, some of these disadvantages will then be perpetuated and in particular, the Cabinet then overreacted by withdrawing Clause 40 when they have no such powers to do that.

So, it is clear that there was panic in Government. They had not clearly thought about this particular clause and had not done enough consultations but then overreacted. The end result was that there may be some issues that could have been accommodated but as it stands, because of the sentiments which are in the country it becomes very difficult to attend to those issues.

I would like to say that the main problem which we have to correct as a nation is for us men, in particular, to cease behaving in a hypocritical manner. There were Honourable Members who were on the forefront of attacking Clause 40 yet they lead double lives which I alluded to earlier. Those are some of the very same people who have got concubines, who have got small houses yet they were at the forefront and going on the top of the mountain to condemn this particular clause.

As legislators, I do appreciate that it has now become extremely difficult to see how that particular provision can be accommodated. Cabinet, in its wisdom or lack of it, considering the fact that the majority of people in this country are Christians, the majority of the people in this country believe in the sanctity of marriage and for them to come up with such a sub-clause like sub-clause 5 which then says that in terms of its application it would even apply to situations where people were in civil partnerships even if one of the parties were married, was then the height of carelessness on the part of Cabinet.

I lay the blame entirely on the Executive on some of these issues, particularly taking into account the length of time that they took before bringing this Bill into Parliament. It would have enabled them to do wider consultations to give more thought to some of the issues.

However, the problem with this marriage Bill does not end with the now notorious or infamous Clause 40. There are a lot of other weaknesses in the Bill. I am happy that the Hon. Minister of Justice, Legal and Parliamentary Affairs has walked in while I am in the process of debating this Bill.

Let us start with issues of gender equality. You find that the Bill is totally silent about the issue of domicile in the matrimonial regime. Those who are lawyers in this House will appreciate that when we go to court the applicable law when parties are getting divorced or which regulates a marriage is the domicile of the husband irrespective of whether the wife is domiciled within the jurisdiction. When you go to court and you are seeking a divorce you have to establish the jurisdiction of the court by pointing out that the husband is a citizen of Zimbabwe, he was born in Zimbabwe, has always lived in Zimbabwe and he regards this country as his natural and permanent home.

However, I would have expected that in this era where we are advocating for gender equality we would have dealt with the issue of domicile so that we have equality between the genders, equality between men and women. This is a lacuna; this is a gap that I hope the Honourable Minister will apply his mind to.

There is also the other issue which came out clearly in the public hearings, the issue of property during the subsistence of marriage. At the present moment Madam Speaker, women are disadvantaged. A man can sell a house without the knowledge of the woman. All those are issues which come under the issue of the matrimonial regime. A woman can only get an apportionment of property in terms of section 7 of the Matrimonial Causes Act upon divorce, but during the subsistence of the marriage, the courts have been very innovative. We wanted a situation where considering the time that the Executive took in trying to consult, that they would have addressed their mind to the issue of property rights during the subsistence of the marriage and also issues that arise after the death of one of the parties, in particular the laws on inheritance and so on.

I know that it is not really strictly speaking part of the marriage laws but because this is a far-reaching Bill which is supposed to touch on critical aspects, I am disappointed that the Executive did not see it fit to really try to ventilate some of the issues particularly in regard to inheritance which caused a lot of problems; particularly when some of the hypocrites are the deceased, that is when we discover that not only did they have a second wife under customary law marriage in courts, they had also another small house, had another girlfriend somewhere, have numerous children who were not known, thus at the end of the day, it causes a lot of problems in the winding up of the estates of those people. So those are some of the gaps which I believe should actually have been addressed by the Bill.

When we look at the definition of customary law Madam Speaker, it is too wide. It is in the definition section. It means the customary law of any section or community of Zimbabwe’s people. Now we have got many people. We have got Hindus in this country, we have got Muslims. We do not know when it says Zimbabwe’s people, I believe that they are Zimbabwe’s people and the way that it is couched, it is not clear to me whether Islamic law which applies to those people who believe in Islam is now part of the customary law because that definition, I think for the purposes of this Bill is too wide and there is need for some clarity as to exactly what we mean by that.

Again Madam Speaker, we have got a very critical issue which was talked about. I know that it can be addressed at the Committee Stage but I would have expected the Minister of Justice, Legal and Parliamentary Affairs and his fellow members of the Executive, it is their collective responsibility to have anticipated this issue, to have applied their mind to it and that is the issue of the age of consent. There is now a mismatch between the age of consent to marriage which is 18 and the age of consent to sexual intercourse which remains at 16. I do not know whether at that Committee stage, the Hon. Minister has any intention to bring in an amendment to that effect.

So in my respectful submission Madam Speaker, that is another issue which should have been addressed. Look at Clause 43 Madam Speaker. It talks about the recognition of marriages of foreigners. There is a lack of clarity because you look at the heading; it talks of the marriage of foreigners. You look at the content; it talks of a foreign marriage. Now, I do not understand. Are we talking about a marriage contracted outside Zimbabwe between people who are resident outside Zimbabwe, whatever their nationality or are we strictly speaking of a marriage between foreigners?

The confusion goes further Madam Speaker. You look at sub-clause (b), it says that the spouses were not related to each other on grounds of consanguinity. A lot of people may not know what this means. This refers to people who have got a common ancestor. In terms of our law, the general law, second cousins can actually marry but when we look at the doctrine of consanguinity which is referred to, it talks of a common ancestor and it does not explain how far back you can go. It can be seven or eight generations. Does it mean therefore that those people who would have contracted a marriage outside Zimbabwe, where those degrees of relationship in terms of consanguinity are not similar to our law, mean that marriage would be invalid in their countries of origin but valid in Zimbabwe or vice versa? So, that is something that we need clarity on so that you just do not refer to foreign marriages but you have clarity on what it actually entails.

Madam Speaker, you then have a situation that the provisions of this particular Bill actually claim that there is going to be a scenario where you cannot contract both a civil and a customary law marriage, but does not tell us what the consequences of such an event occurring are when we look at the nature of marriages. No person may be married under the general law and customary law at the same time. Does it mean Madam Speaker, that if you do that both marriages are invalid? That is a question which remains unanswered, or does it mean that one of the marriages is invalid and if so which one? So there is a need for that clarity so that when this Bill comes into law people have an understanding of what it actually entails.

At the end of the day Madam Speaker, it is clear to me that this particular Bill has actually ignored some of the complex issues which affect members of our society, particularly the issue of property rights which I have already alluded to, particularly the issues relating to inheritance. It was important for the Hon. Minister and his colleagues not to try to sweep all these things under the carpet and try to avoid them by ignoring them. Those are the issues Madam Speaker. If the Hon. Minister can pay attention to it and then work closely with members of Zimbabwean society so that we can fine-tune the Bill to ensure that it addresses all the concerns of the Zimbabwean society.

Before I sit down Madam Speaker, I want to say that a lot of girls, a lot of women are disadvantaged and perhaps it is important after all has been said and done, for us to try to find a way to make sure that no one suffers exploitation at the hands of their other party and I know that is not going to be easily…

I want to say that if we had not rushed to bring this Bill, it would have been prudent to deal firstly with straight forward issues like child marriages and then leave the other issues for thorough debate to ensure that we do not have a Bill which is as limping as this one. I rest my case Madam Speaker

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Daniel Chigundu

Daniel Chigundu is the news editor for OpenParlyZW an online platform that covers Parliament of Zimbabwe activities using social media (Twitter and Facebook). He is currently the secretary-general of the Zimbabwe Parliamentary Journalists Forum and a board member of Digital Communication Network.

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