Redeeming Zambian Customary Laws: What we can do about making marriage and divorce laws fairer
By Elias Munshya
Last week, Zambia’s Justice Minister offered quite staggering statistics of divorces in Zambia. He said that in the four years between 2016 and 2019, Zambian courts recorded 61,000 divorces. Sixty thousand marriages were dissolved in Zambia’s local courts, while 1,000 marriages dissolved in the High Court of Zambia. For those unfamiliar with our system – local courts primarily preside marriages contracted under customary law; whereas the High Court has jurisdiction over marriages contracted under the statute – that is the Marriage Act, CAP 50 of Zambia’s Laws. These statistics do not show us how many marriages were contracted actually in that time because most marriages in Zambia are unrecorded, particularly those contracted under custom. This disparity in statistics covers statute marriages because most of the delegated marriage solemnisers in Zambia do not make consistent returns of their figures. And so, we cannot tell whether this 61,000 is low, high, or medium.
In any case, my goal today is to explain how the colonial relic is responsible for creating a duality in our legal system that has created a disparity in access to legal services and legal redress. Customary law is not an inferior law. It is a relic of English colonialism that has continued to this day, where customary law is regarded as an inferior part of Zambian law.
First, we need to revamp customary law institutions and bring them as much as possible within statutory protection. For example, we need to bring some customary marriage practices within a statute. In that case, we have to either amend CAP 50 – the Marriage Act or abolish CAP 50 and replace it with a new act that recognises both customary and civil marriages under one umbrella. Bringing all marriages under statute helps to protect against early marriages, and it removes the ambiguity.
Second, if we did, the first point above, we will have to revamp the local courts and the Local Court Act. The local courts were really developed to take care of customary matters which the whites felt were better left to customary judges. If we reformed the local court, we could give them some enhanced jurisdiction over divorces, including statutory divorces. While civil marriages are available to most of our people, the termination of those marriages is not as available. In other words, divorces in civil marriages are tough at the moment. Imagine a person in Kabompo has no immediate recourse to the High Court, except they travel to Solwezi, and even then the Solwezi High Court is an itinerary court. Contrasted with customary marriages and termination of those marriages – customary termination is more straightforward and relatively accessible. This double standard must be cured.
Third, in terms of estate law – the same can be done. Local courts currently have a role to play in estate matters such as administrators’ appointment for intestate estates. They can continue to play this role. We can grant them jurisdiction to deal with testate estates and disputes arising out of the testated estates. This will not only ensure fairness but also deal with access.
Fourth, I see the importance of having a specialised customary court. The local courts can still maintain their role as our customary courts. However, we can still grant them additional jurisdiction to ensure fairness in our administration of justice.
Fifth, a unified family court, could also be another solution. But that would be too expensive to establish a new unified system altogether. It is easier to amend the law and grant local courts some legal jurisdiction. If we can’t grant this jurisdiction to all local courts, we can create perhaps one local court in every district and grant them such powers. Kitwe has several local courts, as an example. So to resolve this issue, you could create one local court in Kitwe that gets additional jurisdiction. That is if we carried out proposal 1 and proposal 2.
Lastly, the issue of training of local court justices is a thorny issue. Basically, some argue that local court justices should continue to be legal laypeople. The term legal layperson here is used in the sense that these judges are not trained as lawyers. They do not have an LLB degree, and their approach is not the “legal approach”. I think we can combine both. We can still have highly trained local court magistrates who can handle both the customary part and the “legal part”. In any case, why cannot customary law be part of the conventional law? We are currently hiring younger local court justices, who have ambitions of being lawyers one day. Some of these are already doing LLBs. It is unfair to give them this understanding that somehow, they have become overqualified because of their LLB to preside over customary issues at the local court.
Zambia needs to reform its approach regarding the dual legal system we have. These suggestions I have proposed above could be the beginning.
Elias Munshya can be reached at Elias@munshyalaw.com.