UNIVERSITY OF PENNSYLVANIA - AFRICAN STUDIES CENTER
Zimbabwe: Women's Rights
Date distributed (ymd): 990714
Document reposted by APIC
Region: Southern Africa
Issue Areas: +political/rights+ +gender/women+
This posting contains an alert from the Sisterhood Is Global Institute, concerning the recent case in Zimbabwe denying inheritance rights to women, as well as the letter from the Supreme Court in Zimbabwe to Zimbabwean women's groups that wrote to protest the April 1999 decision.
Another posting also sent out today contains an announcement of the West African Day of Action for Women's Inheritance Rights, scheduled for July 29, 1999.
Note: The text of the letter from Zimbabwean women's groups mentioned below is not yet available on-line.However, news coverage concerning the decision and the protest can be found on-line, including:
IGC Women's Net Headlines
All Africa News Agency
http://www.samara.co.zw/zimin (use the search)
Daily Mail & Guardian
http://www.mg.co.za/mg (use the search)
Sisterhood Is Global Institute
4343 Montgomery Ave., Suite 201
Bethesda, MD 20814
Tel: 301-657-4355; Fax: 301-657-4381
In Zimbabwe contact:
64 Selous Ave.
URGENT ACTION ALERT
Zimbabwe's Supreme Court Decision
Denying Women's Inheritance Rights
Violates International Human Rights Treaties
June 30, 1999
In a case involving inheritance rights, the Supreme Court of Zimbabwe made a landmark 5-0 decision in April that gave precedence to customary law over the Constitution. The ruling that women cannot be considered equal to men before the law because of African cultural norms and "the nature of African society," violates several international human rights treaties to which Zimbabwe is a party. On May 13, 1991, Zimbabwe acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), without reservations, thereby agreeing to provisions which specify that women and men shall be considered equal before the law and that discrimination against women should be eliminated.
In the facts of the case, Venia Magaya, a 58 year old seamstress, sued her half brother for ownership of her deceased father's land after her brother evicted her from the home. Under the Zimbabwean Constitution and international human rights treaties, Magaya had a right to the land. However, the court ruled unanimously that women should not be able to inherit land "because of the consideration in the African society which, amongst other factors, was to the effect that women were not able to look after their original family (of birth) because of their commitment to the new family (through marriage)." This astounding statement by a judge on the conjunction of the institutions of marriage, patrilineality, and family property was the single most dominant factor in the Court's conclusion that denied Magaya her inheritance rights.
The judiciary backed up its decision by referring to Section 23 of the Constitution of Zimbabwe. The Constitution prohibits discrimination in Article 23(1) but in Article 23(3) recognizes exceptions to this general prohibition against discrimination in issues relating to among others: (a) adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law; (b) the application of African customary law. Essentially, by making this judgement, the Supreme Court elevated customary law beyond constitutional scrutiny.
The Magaya decision of the Supreme Court violates women's human rights including the right to be free from discrimination, the right to equal protection under the law, the right to adequate housing and, as some have argued, the right to an adequate standard of living. For many women housing, land, and/or property is the place or source of their livelihood. If a woman is denied the right to inherit housing, land, and/or property, she is denied the means to ensure her and, in many cases, her family's livelihood.
Since the Supreme Court decision, the government of Zimbabwe has instituted a Constitutional Commission which is mandated to rewrite the Constitution in general to promote good governance and the rule of law. The mandate includes examining the human rights provisions. The Commission is to submit its report to the President of Zimbabwe on November 30, 1999.
The Musasa Project, SIGI's collaborating organization in Zimbabwe, along with several other women's human rights organizations presented a petition protesting the Magaya decision to the Supreme Court and the Parliament, with the full support of the female members of Parliament. The Court's response, printed below, is unsatisfactory.
Your urgent action is needed to prevent this case from being used as a precedent for further degradation of women's rights. Please write to the authorities below to demand that laws mandating equality in Zimbabwe are upheld.
* Zimbabwe's Constitutional Commission: Please write to members of the Commission urging them to make a Constitutional provision that prohibits discrimination against women both in customary and general law. Urge them to redraft Article 23 (3) of the Constitution, which currently permits the elevation of customary law over constitutional rights, to be in compliance with the provisions of the international human rights treaties to which Zimbabwe has acceded. You may wish to refer to CEDAW Articles 2(a), 2(c), 2(f), 3, and 5(a), which declare that state parties to the Convention agree to take all appropriate measures to eliminate practices that discriminate against women, and to enable women to effectively exercise and enjoy their human rights and fundamental freedoms on a basis of equality with men.
The Minister of Justice, The Hon. E. Munangagwa, Fax:
The Minister in The President's Office Responsible for Gender
The Hon. O. Muchinguri
The Chief Justice of Zimbabwe
c/o The Registrar of the Supreme Court
The Deputy Minister of National Affairs
The Hon. T. Lesabe
Fax: 263-4-774-185; 263-4-781-803
* Committee on Economic, Social and Cultural Rights (CESCR): Please write to Virginia Dandan, Chair of the CESCR, asking her to request from the Zimbabwean government an emergency report on the Magaya case and the issues it raises with respect to the right to housing. In the CESCR's review of Zimbabwe's May 1997 report, the Committee had urged the government to give priority to promoting the role of women in society, and ending all de facto discrimination against women.
Ms. Virginia Bonoan-Dandan
Chair, Committee on Economic, Social and Cultural Rights
1211 Geneva 10, Switzerland
* Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW): Please urge the CEDAW Committee to ask Zimbabwe to submit a special report on the decision of the Supreme Court and its implications for Zimbabwe's implementation of its obligations under the Convention. Under Article 18 (1) of the CEDAW Convention, state parties must submit to the Committee reports on measures that have been adopted, whenever the Committee so requests.
Ms. Aida Gonzalez-Martinez
Chair, Committee on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
President Carranza, #99
Col. Coyoacan, C.P. 04000
Mexico, D.F. Mexico
* Human Rights Committee (HRC): Urge the HRC to write a general comment concerning the protection of human rights in situations of legal plurality, that is, where customary, statutory, and religious norms are concurrently sources of law. Also, request them to set standards that connect women's right to inherit land and property with the right to housing.
Ms. Cecilia Medina-Quiroga
Human Rights Committee
1211 Geneva 10, Switzerland
Letter from the Supreme Court of Zimbabwe
26 May 1999
The Chairperson of the Women's Action Group, P.O. Box 135, Harare
The Chairperson of the Musasa Project, 64 Selous Avenue, Harare
The Chairperson of the Zimbabwe Women Lawyers Association, 20 Cork Road, Avondale, Harare
The Chairperson of the Zimbabwe Women's Resource Centre and Network, P.O.Box 2192, Harare
The Chairperson of the Women in Law in Southern Africa, P.O. Box UA 171 Union Avenue, Harare
The Chairperson of the Women in Law and Development in Africa, Second Floor, Zambia House, 48 Union Avenue, Harare
The Chairperson of the Young Women Christian Association, 122 Baines Avenue, Harare
I refer to your letter of 13 May 1999, addressed to Mr Justice Muchechetere and copied to other judges of the Supreme Court inter alia.
I am instructed by the Chief Justice and other judges of this court to reply your letter as follows:
1. "A retrogressive precedent" The judgment was careful to explain that it was interpreting the law as it existed before the passing of the Administration of Estates Amendment Act on 1 November 1997. Section 68 (F)(2)(e) thereof makes it clear that while males are to remain ceremonial heirs the deceased's estate is now to be distributed one third to the surviving widow/s and two thirds to the children, whether they be male or female. So to say that it sets a precedent (meaning a guideline for the future) is incorrect, misleading and gratuitously insulting.
2. "Greatly undermining women's rights" The judgment seeks to state what the rights of women married under customary Law were, before the amendment to the law in the administration of Estates Amendment Act, 1997. The judges considered that those rights had previously been overstated, for reasons which were carefully argued in the judgment. If there is any carefully reasoned submission to the contrary, the judges would be glad to receive it. But emotional and insulting generalisations do not fall into that category. Attention is drawn to the last paragraph on p 17 of the judgment.
3. Challenging the authority of Parliament This is a very serious allegation indeed. It suggests that the court is undermining the very constitutional foundation upon which the balance of powers is based . Moreover , if you study page 16 of the judgment you will see that the court has been at pains to explain why it does not consider that it is going against the intention of Parliament. What the writer of the letter has done is to assume that the Parliament thinks as she does, and then to accuse the court of disagreeing with her. In the court's view this is a serious contempt of court.
4. Alleged misinterpretation of the Legal Age of Majority Act. Now part IV of the General Law Amendment Act. Chapter 8:07 This Act, in what is now section 15, does two things. First it recognised the majority status of all persons who attained a certain age. Second it reduced the age of majority, for men and women, from 21 to 18. At pages 16-17 of the judgement, the court set out its reasons for concluding that the Act had previously been wrongly interpreted. The court is entitled to expect that if anyone has has a different view, that view will be expressed thoughtfully and courteously. The question in this case was not whether Mrs Magaya was a minor, but whether she was entitled to be appointed as the heir under customary law. The court accepts that she is not a minor. The criticism of the judgement therefore seems to the judges to be misconceived.
5. The criticism of the judgement's definition of "customary law" The judgement did not state that the country has a single customary law in all respects. It is not fair or right to set up an allegation which your opponent is supposed to have made, and then knock it down triumphantly, when your opponent did not say that. See the quotation at the bottom of page 3 of the judgment, and the conclusion at page 4 that:
"What is common and clear from the above is that under the customary law of succession of the above tribes males are preferred to females as heirs."
No point was made by counsel on either side that the general Shona customary law of succession did not apply in this case. Note again that the question is not whether women over 18 are majors or minors. The question is whether in Shona Customary Law unamended by statute women could be heirs.
6. It is true that this judgment changed the law as previously enunciated. The court is slow to do this, but is empowered to do so where necessary, by the provisions of section 26 (2) of the Supreme Court Act, Chapter 7; 13, which reads:
"The Supreme Court shall not be bound by any of its own judgments, rulings or opinions, nor by those of any of its predecessors"
Practice Direction No.2 of 1981 has been shamelessly misquoted by the writer of the letter.
7. The court's carefully thought out conclusion was that the general Shona Customary Law of succession was that men rather than women qualified as heirs. To alter this, in the face of an express provision in the Constitution to the contrary was considered to be well beyond the powers of the court. See the reasoning on pages 4, 5 and 6 of the judgement.
8. To conclude from this that the court is unprogressive, ignorant of the people's needs, not people-oriented, ignorant of realities, and adjudicating in a vacuum, is gratuitously insulting to the judges of the Supreme Court.
No action will be taken on this occasion, but a formal warning must be issued that registered legal practitioners especially, but others as well, who indulge in gratutious and unfounded insults to the Judiciary, and in public demonstrations against the Judiciary, will be dealt with under the laws of contempt of court.
It is noted that the letter was not signed, but it is assumed that in the case of each organisation cited the Chairperson accepts final responsibility for what is contained in the letter.
This letter is being sent to each of the organisations apparently concerned with preparing the letter of 13 May. Copies are being sent to those, other than judges, to whom the original letter was sent.
Acting Assistant Registrar
cc: The Hon. Minister of Justice Legal Parliamentary Affairs, Corner House, Samora Machael Avenue, Harare
The Hon. Minister in the President's Office responsible For Gender (Ms Muchinguri), Munhumutapa Building, Samora Machael Avenue, Harare
The Attorney - General, Corner House, Samora Machael Avenue, Harare
The Secretary for Justice Legal and Parliamentary Affairs, Corner House, Samora Machael Avenue, Harare
Message-Id: <199907141312.JAA26242@server.africapolicy.org> From: firstname.lastname@example.org Date: Wed, 14 Jul 1999 08:29:33 -0500 Subject: Zimbabwe: Women's Rights
Editor: Ali B. Ali-Dinar
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