by Abby Taka Mgugu and Grace Kwinjeh
A dual legal system operates in southern Africa where general and customary law exist side by side and the lives of women, especially the domestic sphere, are governed by the two systems.
Under customary law, a woman is a minor and her rights are usually superceded by those of her male counterpart. General law on the other hand is considered to be gender neutral, yet in practice it affects men and women differently.
The differential application of the law has resulted in some women challenging their country’s constitution. The action of challenging a constitution is referred to as a Test Case. A Test Case is defined as a dispute which questions certain fundamental rights within a constitution.
This dispute is taken to court with the aim of establishing that particular rights have been infringed; that a different interpretation of the existing law has been used; and to set a precedence which becomes binding on the lower courts.
Although some cases have resulted in positive gains on the part of individual women, very few gains were realised by the majority.
Examples are drawn from Botswana, Zambia and Zimbabwe and it is the hoped that in future the positive judgements made on various test cases will have a trickle down effect on other women and be of benefit to them.
In 1992, Unity Dow challenged the Botswana citizenship (amendment) Act of 1984 which was discriminating against her children from her marriage to Peter Dow, a foreigner.
The children were being denied citizenship on the grounds that their father was not a Motswana. The denial by the Botswana government to grant Unity’s children citizenship was discriminatory because a Motswana man married to a foreigner can confer citizenship on both his wife and children.
On the other hand, a Motswana woman can only confer citizenship to her children if they are born out of wedlock.
Unity’s case forced the Botswana government to hold a referendum to seek the views of the people on the issue to establish whether the people of Botswana would support an amendment to the constitution.
The action by Unity Dow, which she won, resulted in the government considering to amend some sections of the Citizenship Act which had been declared null and void by the High Court because of their discriminatory nature.
Some of the proposed amendments to the citizenship act will allow a person born in Botswana to be a citizen if one of the parents is a citizen at the time of birth. A bill is currently going through Parliament to effect these amendments to the citizenship act.
According to the Daily News, a Botswana daily, the government attributes the delay in introducing amendments to the fact that it (the government) needed time to study other legislation which may face the same fate if challenged in a court of law.
In Zimbabwe two test cases have recently been heard in the Supreme Court. In the Rattigan Case, the Immigration Act was challenged by three Zimbabwean women married to foreigners.
Their grounds were that the Chief Immigration Officer was denying their spouses permanent residence in the country and by that was infringing on their constitutional rights.
Foreign men married to Zimbabweans can only be granted citizenship if they possess skills not available in the country. On the other hand a foreign woman married to a Zimbabwean will automatically become a citizen by virtue of her marriage.
The three women’s argument was based on the premise that as citizens of the country they were that women in southern Africa can use the courts as a means of enforcing their rights under the law.
therefore entitled to protection under section 11 of the Constitution which guarantees very person in Zimbabwe a right to “…security of the person and the protection of the law and protection for the privacy of his home …”
Although the Supreme Court ruled in favour of the women, the Chief Immigration Officer did not comply with the judgement and the matter is still pending.
The Rattigan case decided that a Zimbabwean woman married to a foreigner has the constitutional protection which allows her freedom of movement within Zimbabwe.
Currently, a bill is going through Parliament which aims to tighten the citizenship act especially for women married to foreigners.
The introduction of the above bill, according to Professor Welshman Ncube of the University of Zimbabwe e, will mean that a Zimbabwean woman married to a foreigner will be compelled to choose between staying in Zimbabwe or losing her husband.
Professor cube feels the bill is unconstitutional and violates the woman’s rights. The enactment of this bill has the danger of reversing all progress made towards the realization of women’s rights under the law. Since independence, there have been considerable gains in the empowerment of women.
In Zimbabwe, intestate deceased estates are dealt with under the customary law, in terms of section 13 of the African Marriages Act. Notwithstanding the type of marriage the spouses had, under this law, the eldest son of the deceased will be appointed heir to the estate in the absence of a will.
The heir does not necessarily have to be the eldest son of the widow but can be from previous associations. This means, therefore, that a widow mast be stripped of her possessions by unscrupulous relatives.
In 1992, in a case involving Mujawo vs Chogugudza, section 13 was challenged on the premise that the civil marriage contracted by the deceased superseded the customary union which the latter had previously contracted.
The widow (Mrs Mujawo) challenged that the estate of her late husband should be devolved under general law since at the time of his death he was married in terms of the Marriages Act.
This case set a precedent allowing African women married under the Marriages Act to inherit a share of their husband’s estate instead of only being entitled to maintenance under the Deceased Person’s Family Maintenance Act (Amendment) 1985.
Despite the favourable decision of the court, section 13 of the African Marriages Act has not been repealed although the High Court is now using this test case in all inheritance cases of those persons who had been married under the Marriages Act.
Sara Longwe, a Zambian development consultant, fought against societal discrimination after she had been refused entrance into a hotel on the grounds that she was unaccompanied by a man. This refusal happened on two occasions in) 984 and 1992 with a negative response to her appeal, not only from the police but from the Investigator General (Ombudsman).Longwe then lodged a petition with the High Court of Zambia demanding her rights as provided for under Articles 11 and 23 of the 1991 constitution.
These sections guarantee freedom of assembly and movement which the hotel in question contravened. Longwe’s lawyer also cited the 1979 United Nations Convention Against All Forms of Discrimination Against Women, which Zambia has ratified. The Court ruled in favour of Longwe.
The four cases cited are important in that they raised constitutional issues of whether government legislation and administrative practices conform to the guiding principles of the law. As a result of the cases, a large number of women have had their rights extended especially in Zimbabwe and Botswana.
However in the Zimbabwe case, the refusal by the Chief Immigration Officer” to comply with the Court’s ruling raises questions on the existence of a culture of and respect for human rights. The same could be assumed of the referendum instituted by the Botswana government after the Court ruling on the Unity Dew’s case.
There is therefore, need for increased mobilisation if women are to exercise their rights provided for in national constitutions, otherwise constitutional guarantees of women’s rights will remain only in theory. (SARDC)
