By Elias Munshya
Customary marriages in Zambia are by their nature “tentative”. While the civil marriages give the impression of some permanence until they are dissolved by a positive order of a high court, this concept does not apply in customary marriages. Further, in civil marriages, dissolution of marriages must be on well established legal grounds such as adultery, living separate and apart for a specific period, mostly a year in many jurisdictions. The recent trend in civil marriage is to claim mental, physical or psychological torture that makes the marriage untenable. Under customary marriages, however, divorce can be granted on any ground. This flexible approach reinforces the tentativity of marriages under customary law. A comparison between civil and customary marriage and divorce approaches does not mean that civil marriage is superior. In fact, the idea that civil marriages are superior to the customary ones has long been discarded. However, even in the face of this abandonment, Zambian law continues to treat civil marriages as superior to customary ones. Somewhere else, I have argued that this double standard must be abandoned for a much more balanced approach that integrates all marriages under one statute.
The methodology I am using in this article is taken from how marriage Tentativity is treated in Zambian folk music. Zambian folk music is the depository of not only common culture but traditional culture as well. The folk music in this article is taken from various traditions across Zambia’s diverse tribes.
In the Mulemena Boys’ umuti wa bufyashi song (1984; song in CiBemba language), Mulemena Boys (this music group was named after their founder Emmanuel Mulemena who died in the 1970s), narrates the story of a Chiwempala couple that was struggling to conceive. To solve this problem, the couple first sought a traditional healer in Chiwempala whose solution was to mix some traditional herbs and use a white person’s teeth as a cishimba (catalyst) for the herbs to work. This solution was impossible. There was nowhere this couple would be able to get this cishimba. Off they went to the second traditional healer whose solution was similar to the first one – herbs with the heart of an ant as the icishimba. This too was an unfeasible solution. The couple continued to have problems until they resorted to checking with a conventional doctor at a hospital. The doctors did their tests and confirmed that the woman was alright – she was fertile. The only problem was with the husband, the doctors maintained. The problem was that the husband was a drunk, and as such, he could not perform the bedroom duties well. In Umuti wa bufyashi – the Mulemena Boy’s solution to this couple was divorce. Muleke umukashi aleya, mula kolwa (let the woman go, you are a drunk). If the marriage does not give you a child, it is justifiable to have it terminated. Let the woman go. This song empowers the woman to make the call and leave this marriage.
The Green Eagles Band is a band run by one of Zambia’s military wings – the Zambia National Service (ZNS). As part of the former President Kenneth Kaunda’s passion for traditional and folk music, he encouraged the formation of folk musical groups and ready institutions such as the military would provide easy opportunity to create groups. In the amba atase song done in the KiKaonde language, Green Eagles narrate the story of a man who decides to send back his wife to her family because she has insulted his father. Namuletela mwanenu muka songweshe, mambo atuka ba tata amba atase, … ba kabwa ba nyama (I am bringing back your daughter so that you can marry her to someone else because she has insulted my father using the slur of atase, and has called him a “dog”, and an “animal”. Again, marriage, in this case, is tentative – and divorce is as easy as sending the woman back to her parents. And that is it. Curiously though, the man in this folk song is going further than just returning the woman. He is asking the woman’s parents to marry her off to someone else.
In icupo ca perm (in CiBemba language), the music group Shalawambe narrates a young woman’s words in a childless marriage. She has all the luxuries of life and can do expensive hair, but she is complaining that she cannot continue on with it without children. It appears like despite all the luxuries the woman is experiencing she is unable to conceive due to Mr Bwalya, the husband’s fault. In the Mulemena Boys’ umuti wa bufyashi, it is much more direct why that Chiwempala woman could not conceive – the man was a drunk (besa na ba kolwa). Still, in this case, it is not clear what was the problem with the husband. But it appears like this wealthy husband could not make this woman pregnant for some reason. And so childlessness is the reason why she should leave and get married to someone else. She is even suggesting that Bwalya should find someone else to marry once she gets married to someone else.
Among the Ushi people (found in Zambia’s Luapula Province and Congo DR’s Katanga Province), for example, a married woman never leaves her parent’s homestead. The husband is the one who is expected to move to his wife’s homestead and begin a new family under the watchful eye of the woman’s parents. It is only after the man has proved himself as a farmer and of course, as a father, that he can then be released to start a homestead of his own. During the time that he is trying to “prove” himself, he had better not make a mistake as the woman’s parents can chase him at any time. And so can he if for example, she fails to conceive. In all this, the marriage remains tentative for many years.
The folk songs explained above do not stand alone in explaining the tentativity of marriage. Across the short history of Zambian customary practices – marriage is a tentative subject to dissolution for any reason. Ukubwesha kuli noko (returning you to your mother), is a common theme.
Elias Munshya can be reached at elias@munshyalaw.com
Suggested Citation: Munshya, E. (2021). MARRIAGE TENTATIVITY UNDER ZAMBIAN CUSTOMARY PRACTICES: A FOLK-MUSIC METHODOLOGY. Elias Munshya Blog (www.eliasmunshya.org). February 15, 2021.
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