The single objection raised by the senator chiefs to the Matrimonial Amendment Bill might seem a minor issue, but unfortunately goes to the heart of the whole concept of marriage as defined and continually stressed in the proposed law.
The chiefs want to entrench lobola as part of the process of a customary marriage. For a number of reasons it was deliberately left out. Should the Bill become law, lobola will not be banned, but neither can it be enforced. We would expect all, or almost all, customary marriages to include lobola, as they do today, but it will remain a voluntary agreement not a legal condition.
This is important. At the heart of the Bill is a clear concept of marriage. It is a union of two adult people, with both having to be 18 or over and who have to be of opposite sexes under the Constitution, who have both freely consented without coercion, pressure or inducement to enter marriage. There are bits and pieces that prohibit marriage between people too closely related and deal with existing marriages, but these do not affect that basic concept.
The critical point to note in the Bill is that the only people who can consent, and they must consent, are the couple. Legally no one else need consent nor can withhold consent and the opinions of family, community or friends have no legal standing. They might think the couple are off their rockers to get married, but they cannot stop the wedding.
Lobola, and for that matter dowries which involve financial transactions in the other direction and which are still important in many marriage customs, cannot be enforced because this would involve others in a family or families possessing a veto on a marriage. Enforcing such provisions means someone else, besides the couple, can legally grant or withhold consent. And this is something the Bill wants to eliminate. It is this essential point that sinks the argument put forward by the chiefs, and when there is a disagreement between a fundamental right and a custom, then the custom must change.
There is also the problem that legal enforcement of lobola or dowries or any other condition can allow coercion and pressure to be applied, such is human nature. Financial arrangements can be twisted, and there have been enough criminal court cases in Zimbabwe for us all to know that there are families, hopefully very few, who have pledged under-age girls into marriage for financial gain.
But there are a greater number of families who see an adult daughter’s marriage as a road to financial gain, just as in countries with a dowry custom there are those who see the marriage of an adult son as a way to gain wealth. So pressure is applied. There is not a lot the law can do to stop such family pressure. But the law can make it possible, that if push comes to shove, a person can resist the pressure to marry someone they do not want to share their life with, and on the other side a couple can walk off together into the sunset without any possibility of a veto.
Admittedly this coercion problem does not sink the argument advanced by the chiefs. It would be possible, if this was the only objection to including a lobola requirement in customary marriages, to have a double clause that retains compulsory lobola, but forces a marriage officer to exercise their rights of questioning to be sure in their own mind that there was no coercion or pressure applied. But that still leaves the more important fundamental right for an adult couple to get married without the possibility of anyone else’s consent or veto and such an addition would not overcome that.
It is also important to recognise that custom is not something entrenched for all time. Customs change, sometimes quite dramatically. To take an example from what the Bill describes as a civil marriage, the type of marriage now regulated by the present Marriages Act and the type of marriage enforced by churches. Until comparatively recently, the husband in such a marriage had near total control of the wife, and most importantly had total control of all the finances and assets. So an heiress marrying a poor man saw her fortune come under his total control, and if he wanted to spend the money on alcohol, gambling and mistresses then bad luck.
Under the Roman Dutch law in Southern Africa, Zimbabwe changed this between the world wars by an Act of Parliament, but it was still the law in South Africa until majority rule, unless there was a prenuptial contract. Some churches still stress the right of a husband to head a family, but that cannot be legally enforced and private voluntary arrangements, that can be changed in a second, are not subject to legislation in any case.
The senator chiefs also need to look at what happens on the ground in Zimbabwe. While the law has two Acts regulating marriage, one for civil marriages and one for customary marriages, hardly any, if any, customary marriages are now registered. The standard marriage process for most indigenous Zimbabweans is to enter an unregistered customary union, with all the family negotiations and lobola, and then to move into a registered civil marriage, usually in church. There are many reasons for this. The present system forces a lifetime decision and there is a legal wall between customary and civil marriages; if you have a registered customary union you can never convert this to a monogamous civil marriage. So a couple wanting to have their marriage recognised as valid by their customary community and by their church had to be creative and forgo registration of the first. But the fact remains that most couples do want both.
Secondly, since the Legal Age of Majority Act there is no legal bar on an adult black woman entering a lobola-free civil marriage against the wishes of her family; the consent of her male protector is no longer required. Few follow this route, but it exists so the Bill does not open new doors. The door is already there for a lobola-free marriage involving a black woman. So it is unlikely that a registered lobola-free customary marriage as allowed in the Bill is going to have a lot of takers. The chiefs are arguing about a concept, not what is highly unlikely to become a widespread practice and, most importantly, what is already open to those who want to follow such a route.
A major change in the Bill effectively upgrades customary marriage and ends the present situation where customary and civil marriages exist in two separate non-communicating worlds. All registered marriages are to be counted as equal, with just a column to say what sort it is when the data is stored. That ends all sorts of legal disputes and unfairness and the rows over bigamy. Secondly a monogamous registered customary marriage can be converted to a registered civil marriage, ending that lifetime choice when you are young and allows a couple to legally follow the route most already follow unofficially.
Thirdly, while the present sort of customary union can be registered, and is supposed to registered within three months, there is now a new route, of formal solemnisation before the local chief or magistrate. That enhances customary unions and, for that matter, the status of a chief.