By Elias Munshya, BA, MA, MA, LLM, MBA, M.DIV.
It is a little more complex than I explain in this article. But let me try to be as clear as I can. The current laws in Zambia regarding marriage and divorce are deeply steeped in colonialism and need urgent reform. Basically, during colonialism, Britain created roughly two categories of marriage –under statutory law (and the church) and marriages contracted under customary law (regarded as inferior, for the natives). Statutory marriages include those contracted in churches and at places like civic centres. Customary marriages are contracted using Zambian customary law that lacks statutory protection. For statutory marriages, the High Court has jurisdiction when it comes to dissolution (or divorce). Customary marriages fall under the Local Court Act, and can be dissolved by the Local Courts. Bizarrely, payment of dowry is an integral part of customary marriages.
The distinction between these two types of marriages has outlived its usefulness. In the modern legal regime, it would be a good idea to collapse the distinctions and give statutory recognition to customary marriages. This is not really to suggest that we should not have customary marriages, but rather that all marriages, including customary ones should be given equal statutory recognition. Zambia’s marriage and customary Acts should be reformed so as to bring customary marriages within their ambit. The model in this regard that I would suggest is the Kenyan model. There was a huge uproar when Kenya consolidated its patchwork of marriage laws into a more responsive integrated legal regime. The uproar particularly came from some circles who chose to completely misunderstand what was obtaining in Kenya. Giving customary marriages statutory recognition (like Kenyans did) does not mean that marriages contracted in the church will now be open to polygamy. Far from it. Kenyan laws did not make Christian marriages less Christian, it only made customary marriages more legal (as in, be in the statutory books). Simply put: a man was no more likely to marry more wives after the new marriage law than before. All the law did was to bring all marriages including customarily polygamous ones under the cover of statute! This is what we need to do Zambia.
How would this work practically? First, the judiciary and particularly the ministry of justice should work to enhance the capacity of local courts. Over 90% of civil and family disputes in Zambia are resolved by the Zambian local courts and yet the Zambian local courts are the least funded of all courts in Zambia. By enhancing capacity of local courts systems and the local court justices, they can be well equipped to deal with customary marriages, even if customary marriages were to be given statutory recognition.
Second, the High Court should be given jurisdiction to hear customary marriage divorce application if a marriage meets certain conditions: duration of over 20 years and the property contemplating division is over K500,000. The numbers and figures I have suggested here could be raised even higher so that the High Courts are not swamped. But reasonably, there is no reason why the High Court should be precluded from hearing matters that concern nearly 90% of Zambians. We should abandon the colonial legacy that condemned customary law as somewhat unworthy and inferior for the best jurists.
We are likely to face the question of subject matter jurisdiction. If all marriages fall under statutory regimes, will the Local Court still have jurisdiction over dissolution of customary marriages? I do not think that there is any reason why the Local Court should not continue to have jurisdiction over dissolution of customary marriages. Imposing statutory protection upon customary marriages will not make dissolution of such marriages any more complicated than they currently are. The Local Court justices and some chiefs will continue to have the power to hear and determine questions about such marriages.
Third, under the current practice, dissolution of customary marriages unfairly disadvantages women because of an outdated colonial analysis that is foreign to a modern Zambia. It is apparent that at dissolution of marriages, the High Court applies a much fairer equitable standard than do local courts. Local Courts probably want to do what is fair, reasonable and equitable but they cannot achieve this result because they are limited by customary practices in the way they can analyse spousal property and its division after dissolution. It is unacceptable that in this day and age, a woman should be denied her share of the matrimonial property simply because local courts cannot grant her a fairer share due to customary practices.
Fourth, Zambia must reform its attitude towards cohabitation. While as a Christian nation, we do have very strong views about the big F (– fornication), the current attitudes towards cohabitation unfairly disadvantage women. Mostly, it is women that get the raw deal out of the current cohabitation attitudes. There is an imbalance in power. Local courts are reluctant to award any kind of support to women upon dissolution of a cohabitation. Under statutory law, it is equally worse, no recognition whatsoever for cohabitation. My proposal is that we develop the concept of legal recognition where a cohabiting couple is deemed married for the purposes of property division after the end of that cohabitation. If people have lived together for five years, for example, I would suggest that such a couple be given some form of equitable recognition if their relationship ends. Doing this would make it much fairer for women who get the blunt of our current unreasonable attitudes.
There are several ways we could think of changing marriage laws in Zambia. I am just hoping that this article can get us talking about how colonialism and its laws continue to disadvantage the weakest among us.
Munshya, E. (2017). Statutory Recognition of Customary Marriages In Zambia: Reforming colonial marriage laws. Elias Munshya Blog. http://www.eliasmunshya.org (March 18, 2017)