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Date: Wed, 14 Jul 1999 08:29:33 -0500
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Subject: Zimbabwe: Women's Rights
Zimbabwe: Women's Rights
Date distributed (ymd): 990714
Document reposted by APIC
+++++++++++++++++++++Document Profile+++++++++++++++++++++
Region: Southern Africa
Issue Areas: +political/rights+ +gender/women+
Summary Contents:
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.
+++++++++++++++++end profile++++++++++++++++++++++++++++++
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
http://www.igc.org/igc/wn/hl/99061420964/hl12.html
All Africa News Agency
http://www.africanews.org/women/stories/19990618_feat5.html
Zimbabwe Independent
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
mailto:[log in to unmask]
http://www.sigi.org/
In Zimbabwe contact:
Musasa Project
64 Selous Ave.
Harare, Zimbabwe
Phone: 263-4-794983
Fax: 163-4-734-381
E-mail: [log in to unmask]
URGENT ACTION ALERT
Zimbabwe's Supreme Court Decision
Denying Women's Inheritance Rights
Violates International Human Rights Treaties
June 30, 1999
http://www.sigi.org/Alert
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.
ACTION:
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:
263-4-772-999
The Minister in The President's Office Responsible for Gender
The Hon. O. Muchinguri
Fax: 263-4-790-3160
The Chief Justice of Zimbabwe
c/o The Registrar of the Supreme Court
Fax: 263-4-731-867
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
(CESCR)
c/o OHCHR-UNOG
1211 Geneva 10, Switzerland
Fax: 41-22-917-9022
* 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
Delgacion Cuauhtemoc
Mexico, D.F. Mexico
Fax: 52-5-117-4258
* 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
OHCHR-UNOG
1211 Geneva 10, Switzerland
Fax: 41-22-917-9022
*************************************************************
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
Dear Madam,
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.
Yours faithfully,
P. Nyeperayi
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
************************************************************
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