DISSERTATION

A COMPARATIVE ANALYSIS ON WOMEN’S PROPERTY RIGHTS AFTER DIVORCE: STATUTORY AND CUSTOMARY LAW IN ZAMBIA

BY

CHILUFYA MUBANGA

001-298

A Dissertation submitted in Fulfilment of the Requirement for the Award of Bachelor of

Law Degree (LLB) from Cavendish University Zambia

CUZ 2020

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COPYRIGHT DECLARATION

I, CHILUFYA MUBANGA, student number 001-298 do hereby declare that this dissertation presents my own work and that to the best of my knowledge, no similar piece of work has been previously submitted for the award at this University or another University. Where work of another scholar has been used, it has been duly acknowledged.

All rights reserved. No part of this paper shall be reproduced or reprinted without the author’s prior authorization.

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FACULTY OF LAW

I recommend that the obligatory essay under my supervision

By

CHILUFYA MUBANGA

Entitled: A COMPARATIVE ANALYSIS ON WOMEN’S PROPERTY RIGHTS AFTER DIVORCE: STATUTORY AND CUSTOMARY LAW IN ZAMBIA

Be accepted for examination. I have checked it carefully and I am satisfied that it fulfils the requirement pertaining to the format as laid down in the regulations governing obligatory essays.

SUPERVISOR: ……………………… DATE: ……………………

MS. KAFWILU CHINAMBU

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ACKNOWLEDGEMENT

Firstly, I would like to give thanks to the almighty God for the opportunity to be in school and the gift of life, without his love, mercy and blessing, this paper would not have been in existence.

Without the support, patience and guidance of the following people, this study would not have been completed. It is to them that I owe my deepest gratitude.

My deepest gratitude goes to my supervisor, Ms. Kafwilu Chinambu without who this work would have been extremely difficult.

I would like to thank my mother, Mary Mubanga for being there for me at all times and in every way from day one. You’re the source of my inspiration. Thank you mum.

I would like to thank my father Rapheal Muhanga for being the phenomenal father that he is. You have been there for me every step of the way dad; to you I am forever indebted. Thank you daddie.

But lastly, I would like to thank my friends throughout this study, Maria, and Chewe. Thank you guys and I wish you guys all the best in your careers.

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ABSTRACT

Married women have had a discriminatory history where their rights to own property are concerned. For instance, until the nineteenth century, English common law did not recognise any rights of a married woman to exclusively own property. This position was justified by the doctrine of the unity of personality. It will be the contention in this paper, that certainty and lack of definition of women's property rights after divorce, together with the practice of the indigenous customary laws are of graver effects on the woman married under customary law when compared to her counterpart married under statutory law.

The primary aim and objective of the research will therefore be to illuminate the fundamental and distinguishing features of statutory and customary law pertaining to women's property rights after divorce in an attempt to discover how best a unification of the two Zambian systems may be achieved, so as to ameliorate any inequalities, injustice and hardships likely to ensue.

This paper will begin with an introduction which will focus on tracing the historical development of Zambian laws appertaining to women's property rights after divorce. This will include the major developments introduced by various legislation. Further, focus will be placed on tracing the influence of traditional society in women's property rights after divorce and its development to modern society.

After discovering the relevant historical developments of both statutory and customary laws, chapter two will analyse specific provisions of statutory law and varying customary law relating to the procedure of property disputes. The analysis will be made with a view of pointing out the common factors in the customs which will in turn highlight the contrast with the statutory provisions.

Consequently, chapter three will emphasise the influences, inequality and hardships which are likely to ensue from the varying laws. Further, this chapter will address the contemporary inconsistencies in the application of customary law to an unauthorised and whimsical deviation towards statutory methods. Subsequently, this will lead us to the concluding chapter.

The final chapter will wind up the comparative study by making conclusion remarks, observations and recommendations on how best to achieve the desired results vis vis the unification and codification of the law on women's property rights on divorce.

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TABLE OF STATUTES

Royal Charter of 29 October 1889

Northern Rhodesia Legislation

1. Barotse Native Court Ordinance 1939 2. Marriage (Amendment) Ordinance, 1963 Native Courts Ordinance No. 10, 1936

Zambia: Acts of Parliament

1. English Law (Extent of Application) Act, Cap 4 2. Local Courts Act, Cap 29 of the Laws of Zambia 3. Local Courts Act No. 20 of 1966 4. Local Courts (Amendment) Act No. 21, 1976 5. Marriage Act Cap 50 of the Laws of Zambia 6. Subordinate Courts Act, Cap 28 of the Laws of Zambia 7. The Matrimonial Causes Act No 20 od 2007

United Kingdom Legislation

1. The Matrimonial Cause Act 1973 2. The Married Women's Property Act 1870

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TABLE OF CASES

1. Alfa v. Arepo LC 737/94 (unreported) 2. Boothe v. Amos LC 24 1782/94 (unreported) 3. Christina Ndhlovu v. J. Nyirongo

4. Earing Nkhata v. Suzyo LC 24 1398/94 (unreported) 5. Edina Chizuka v. Paul Chizuka 6. Joyce Phiri v. Chipeta LC 1023/94 (unreported) 7. Kaniki v Jairos (1967), ZR 71 8. Lee v. Lee (1974) 5 Fam Law 48 9. Martha Chikulu v. Lwiindi LC 24 1395/94 (unreported) 10. Martha Muyombo v. Jack 11. Mutenda v. Phiri LC 24 434/95 (unreported) 12. Martha Mwiya v. Alex Mwiya (1977) ZR, 113. 3. 13. Pettit v. Pettit (1970) AC 777 14. Precious Zimba v. E. Nyirongo LC 24 1395/94 (unreported) 15. River Banda Case # 204/1/92 (unreported) 16. Wachtell v. Wachtell(1973) 1 ALL ER 82

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TABLE OF CONTENTS

Contents

Declaration………………………………………………………………………………ii Acknowledgement……………………………………………………………………... iv Abstract………………………………………………………………………………….v Table of Statutes………………………………………………………………………..vi Table of Cases…………………………………………………………………………vii CHAPTER ONE GENERAL INTRODUCTION 1.1 Introduction to the Background.……………………………………………...... 1 1.2 Statement of the Problem…………………………………………………………..3 1.3 Research Objectives …………………………………….…………………………4 1.4 Research Questions ………………………………………………………………..4 1.5 Justification and Significance of the Study ……….………………………………4 1.6 Scope of the Study ……………………….…….……….…………………………6 1.7 Arrangement of Study ……………………….…………………………………….6 1.8 Conclusion …………………………………………………………………………7 CHAPTER TWO LITERATURE REVIEW 2.1 Introduction ………………………………………………………………………...8 2.2 Overview of Literature………….………………………………………………...... 8 2.3 Literature Underpinning the Study………………………………………………….8 2.4 Statutory Provisions and varying Customary Laws pertaining to Women's Property Right after Divorce…………………………………………………………………………….9 2.4.1 Statutory Provisions……………………………………………………………….9 2.4.2 Customary Law: Tuïoukaand Tonga……………………………………………..13 2.4.3 Traditional Tumbuka Customary Law……………………………………………15 2.4.4 Traditional Tonga Customary Law……………………………………………….18 2.5 Law of Maintenance in Customary Marriages as Provided by Local Courts………20

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2.6 The Conflict between Customary Law and Statutory Law on Marriage and Divorce and how the Dual Legal System allows for these continued Conflicts……………………….21 2.6.1 Conflicts between the Marriage Act and African Customary Law………………...23 2.7 Conclusion ………………….……..…………………………………………………25 CHAPTER THREE RESEARCH METHODOLOGY 3.1 Introduction ……………………………..………………….……………………….25 3.2 Research Methodology and Strategy ……………………….………………………25 3.3 Philosophical Underpinning ……………………………………...... 26 3.4 Data Collection and Analysis ………………………………………………………27 3.5 Questionnaire Design ………………………………………………………………28 3.6 Target Population …………………………………………………………………..28 3.7 Sampling Methodology …………………………………………………………….28 3.8 Ethical Consideration ……………………….…..………………………………….29 3.9 Conclusion ………………………………………………………………………….30 CHAPTER FOUR RESEARCH ANALYSIS AND DATA IMPLEMENTATION 4.1 Introduction ……………….………….….………………………………………….31 4.2 Attitudes of The Property Dispute Processing………………………………………31 4.2.1 Family Forums……………………………………………………………………..31 4.2.2 Local Courts……………………………………………………………………….32 4.2.3 Magistrate Courts………………………………………………………………….36 4.3 The Ideal Situation: The Existence of a Single Legal System Encompassing Both Customary and Civil Law governing the laws of Marriage and Divorce……………….38 4.4 Problems that may be encountered in the Implementation of a Single Indigenous Piece of Legislation……………………………………………………………………………….39 4.5 The Benefits to Zambia of the Introduction of a Single Legal System……………...41 4.6 A Critical Analysts of the Law……………………………………………………...42 4.7 Conclusion…………………………………………………………………………..43

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CHAPTER FIVE CONCLUSION AND RECOMMENDATION 5.1 Introduction …………………………………………………………………………44 5.2 General Conclusion…………………………………………………….…………...44 5.2.1 Chapter One …………………………………………………………….………...45 5.2.2 Chapter Two………………………………………………………………………46 5.3.3 Chapter Three …………………………………………………………………….46 5.3.3 Chapter Four………………………………………………………………………46 5.4 Recommendations ………………………………………………………………….46 5.3.1 The Reform of the Law of Property After Divorce……………………………….46 5.3.2 Integration of Statutory and Customary Laws…………………………………….47 5.3.3 Separate Legislation………………………………………………………………48 BIBLIOGRAPHY………………………………………………………………………50 APENDIX A……………………………………………………………………………53

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CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction to the Background

It is imperative to note at the outset that the current legal system is that of a dual system of law.1 This dual system, can be described as a residue of the colonial era, comprises of customary laws and statutory laws. As a result of this dualism, two types of marriage laws apply in the country leading to two types of marriages: customary and statutory marriages. Matrimonial causes such as divorce and property disputes arising therefrom are governed by both customary and statutory laws depending on the type of marriage the parties contracted.2 Despite the two laws operating side by side they have different effects on the actors within their respective spheres of operation. The contention in this paper is that the distinctive effects of the customary and statutory law pertaining to women's property rights after divorce inevitably means that the woman married and divorced under customary law is exposed to grave injustices and hardships as compared to the woman married under statutory law.

In order to understand the varying effects, and in an attempting to highlight the injustices prevalent in such a dual system of law, the sources and nature of the two laws must be examined individually from their geneses. Initially this paper will deal with statutory laws.

The word "property" has several meanings, and in law we must be careful to distinguish between two meanings of property. Property may mean the things or things capable of ownership. Used in this sense the word includes both physical(corporal) things and incorporeal (non-physical) things such as patent rights, copyrights and debts. This is the popular sense of term. Property may also mean ownership. Thus, we may say in law that 6 "A" has the property in a watch, or in other words 'A' owns a watch. The working definition of property in this research will be the former definition alluded above.

1 Ndulo, M (1984) Law in Zambia (East African Publishing House Ltd Nairobi) p.143 2 Ibid

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The common law doctrine of unity of legal personality produced stunning consequences in the law property. Once parties were married, the husband had an interest in all of his wife's property.3 An interest in return for which he would be liable to maintain her and liable for all her ante-nuptial torts and contracts. By marriage, a husband gained seisin of all freehold lands which his wife held at the time of the marriage or that acquired during coverture and he was entitled to the rents and profits of them. This was justified by the fact that medieval law looked to the husband rather than the wife for the performance of the feudal dues. The wife had no power to dispose of her realty at all during coverture and the husband alone could not dispose of it for more than his own interest. The married woman therefore lost her personal right to her freehold property.4 The law relating to freehold property was the same as that relating to copyhold and the wife's leaseholds belonged to the husband upon marriage and he therefore had the absolute power to dispose of them inter vivo. All chose in possession or in action belonging to the wife at the time of the marriage or acquired by her during coverture vested absolutely in the husband.5 However, the husband must have had the wife's chose in reduced into possession or obtained judgement in respect of them during coverture. It is clear, therefore, that under common law all property rights vested in a woman prior to and during marriage automatically vested in the husband thus denying a married woman any property rights.

As a general rule equity followed the law and thus the husband had the same rights over his wife's equitable freeholds, leaseholds and her equitable interests in pure personality and the same power to dispose of them as he had in respect of her legal estates and interests. 10 By the end of the sixteenth century it was established, by equity, that if property was conveyed to trustees to the separate use of a married woman, she retained in equity the same right of holding and disposing of it as if she were an unmarried woman. Moreover, if property were conveyed, devised or bequeathed to a married woman to her separate use so that the legal estate vested in the estate, he was deemed in equity to hold it in trust for her and he acquired no greater interest in it than he would have done if it had been conveyed to trustees on similar terms. The separate estate in equity was therefore the first step to the development of women's property rights.

By the middle of the nineteenth century there was an increase in the number of women earning incomes and thus an increase in women acquiring assets. No relief could be obtained by the woman whose husband deserted her and took all her property with him. It was clear that the

3 Bromley, P. M (1987) Bromley's Family Law (Butterworths, London) p.493 4 Ibid 5 Ibid

2 old rules would have to be reformed and eventually a series of Acts of wider scope were enacted in favour of the married women. The most important of these Acts were, inter alia, the Matrimonial Causes Act 1857; the Married Women's Property Act 1870; the Married Women's Property Act 1882; the Married Women's Property Acts 1884, 1893, 1907 and 1908; the property Legislation of 1925, the Law Reform (Married Women and Tortfeasor) Act 1935 the Married Women (Restraint upon Anticipation) Act 1949; the Matrimonial Proceedings and Property Act 1970; and the Matrimonial Causes Act 1973.

The Matrimonial Causes Act, 1857 assisted women's property rights in two ways. Firstly, so long as a judicial separation was in force, the wife was to be treated as a single woman with respect to any property acquired.6 This was the first time in the history of English law where the married woman had the sole power to dispose of a legal interest. Secondly, if a wife were deserted, she was able to obtain a protection order which would protect any property, which she became entitled to after the desertion, from seizure by her husband and creditors.7

The Married Woman's Property Act, 1870 further presented a series of exceptions to the common law rule which denied married woman property ownership by providing that in a number of specified cases property acquired by the wife should be deemed to be held for her separate use. This Act is of historical significance as it gave a statutory extension to the equitable concept of the separate estate.

The 1870 Act was repealed by the Married Women's Property Act 1882 which is historically the most important of the series of Acts and whose provisions shall be analysed in chapter two. The Act provided under section two that any woman marrying after 1882.

1.2 Statement of the Problem

Women experience difficulties in accessing marital property especially in customary marriages. Although the Zambian Constitution recognises customary marriages, provisions of statutory law do not protect their property rights on divorce. This indicates that the law in Zambia does not protect women in customary marriages, for example the Matrimonial Causes Act No. 20 of 2007,8 whose mandate is to provide for the settlement of property between parties to a marriage on the dissolution or annulment of the marriage does not consider parties married under customary law especially upon dissolution of marriage, section 3 of the Act excludes

6 Section 25 of The Matrimonial Causes Act, 1857 7 Ibid 8 Act No. 20 of 2007

3 customary marriages. Even where the customary law court has awarded property settlements to the women, the high and supreme courts have overturned such judgements. The case of Martha Mwiya v Alex Mwiya (1997) ZR 1139 speaks to the aforesaid. In that premise, this paper is aimed at comparing the protection of women’s property rights on dissolution of a marriage between customary marriages and statutory marriages. The study goes further as to analyse the efficacy of the law on protection of women’s property rights on dissolution of marriage in under customary law.

1.3 Research Objectives I. To examine the legal framework regulating dissolution of marriages in Zambia. II. To evaluate the efficacy of the law on the protection of women’s property rights under customary marriages. III. To compare the extent to which the law protects Women’s’ property rights after divorce in statutory marriages with Customary Marriages. 1.4 Research Questions I. What is the Legal Framework regulating the dissolution of marriages in Zambia? II. How effective is the law in relation to the protection of women’s property rights under Customary law in Zambia? III. How far does the law go when it comes to protecting women’s property rights statutory marriages as compared to customary marriages? 1.5 Rationale/ Justification/ significance of the Study

In marriage, the man is considered the head of the family and the decision maker, this has given men so much authority that it tends to discriminate women. Much as it is understood that customary law traces our roots as Africans, it is best to move with the evolution of the world. Under customary law, women have very limited access to justice which is a fundamental breach of the laws of the land. Not only the laws of Zambia are breached, but also international conventions to which Zambia is part of. For example, the International Convention on the Elimination of Discrimination against Women (ICEDW)10, this convention protects the rights of the women, and denying them the right to marital property means the breach of the provisions of this Act.

9 (1997) ZR 113 10 International Convention on the Elimination of Discrimination Against Women

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This study has a broad aim as the subject involves a lot more than just violating women’s property rights because the woman will not only suffer the loss of property, but also mentally because customary laws tend to be bias on women for example, grounds for divorce in customary law are linked to marital misconduct by the woman. This however, increases the poverty levels in the country in the sense that the more customary marriages are encouraged, the more divorce cases and the more women are deprived of their property entitlements. This leaves them with almost nothing to rely on for survival.

In the case of Kaniki v Julias11, the court held that where customary law is in conflict with statutory law, statutory law will apply over customary law. The bill of rights under part V of the Constitution of Zambia Cap 1 of the laws of Zambia12 provides for equal rights, not only that, one of the characteristics of human rights is that where one individual’s rights end, another individual’s rights begin and this is more reason to give statutory recognition to customary marriages because they conflict with legislation, the international convention and also the precedent. This is not really to suggest that we should not have customary marriages, but rather that all marriages, including customary marriage should be given equal statutory recognition. In that premise, this study is significant because it attempts to fill, or rather close up possible gaps in the legal verifiable literature by establishing a link between the possible uncertainty in the law and protection of women’s property rights on dissolution of marriages.

The study aims at stimulating a better understanding on the nation’s legal position on the subject matter so as to encourage or intensify reforms engaged towards the marriage institution and protection of women’s rights. Furthermore, this study attempts to add on to the body of knowledge for the reliance of future research related to women’s rights.

This study is sacrosanct in the sense that the legislative arm of the government will see the need to revise marriage laws in Zambia. Women are considered weak and so, they find it very difficult to access justice under customary law.

This study is of relevance not only that it advocates for the inclusion of customary marriages under statutory law, but also to educate traditionalists on the need to distribute property in a manner that would benefit both parties because spouses separate even before their children are of independent age and given such a situation, custody of the children is usually with the mother especially if it is a girl child and both mother and children need to feed, cloth, children need to

11 (1967), ZR 71 12 The Constitution of Zambia Cap 1 of the Laws of Zambia

5 be educated, but this becomes a challenge when the women are not treated family in terms of division of property upon divorce.

1.6 Scope of the Study

The scope of the study and research conducted focused on the provisions in the laws of Zambia and establishing their effectiveness in protecting women’s rights on dissolution of marriages. However, comparisons were made with the extent to which the law goes in protecting women’s rights under statutory law and customary law since the legal provisions recognise more statutory marriages. The comparison aimed to show the need for the law on marriages particularly on divorce to consider customary marriages.

1.7 Outline of Chapters

The dissertation consists of five Chapters:

Chapter spoke to the general introduction, focusing on the background information, the statement of the problem, the objectives of the study, the rationale, justification and significance of the study, the scope of the study and lastly the outline of the study.

Chapter Two will be the literature review which will lay down the conceptual foundation of the study through an in-depth review and analysis of the various reliable works on women’s rights and customary law. The purpose of review will centre on the formation of a foundation for analysis and evaluation for the study’s empirical findings.

Chapter three focuses on the research methodology and will delineate the researchers entire research strategy including dimension of data analysis, sampling and prevailing ethical considerations.

Chapter four presents the research findings and data analysis, much emphasis will be on the presentation and interruption of all empirical finding in the study from the engaged research methods.

Chapter five draws an overall conclusion on how the current status of the law has affected women’s rights in Zambia while simultaneously making recommendations on how the issue of discussion can be rectified.

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1.8 Conclusion

In this chapter, a description of customary law and marriage has been given. Further this chapter has highlighted the background of the problem subjected to discussion and also stated the problem that has been noted which could possibly be the source of the problem of the violation of women’s property rights. This chapter goes further as to outline the objects of the study and also outlined the questions to be addressed in the study. This chapter has also presented the rationale behind the study, not to omit the scope of the study and lastly, this chapter has given an outline of chapters in this study.

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CHAPTER TWO

LITERATURE REVIEW

2.1 Introduction

The researcher did a review of literature. Literature review examines recent or historical significant research studies or industrial reports which act as a basis for the proposed study. For that reason, this chapter presents literature significant to conceptual and theoretical framework, previous studies, comparative studies and personal critique.

2.2 Overview Literature

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, as Munshya13 notes, Customary marriages are contracted using 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 local courts. Bizarrely, payment of dowry is an integral part of customary marriages.

In Zambia, courts invoke the principles of equity and law, concurrently Chibesakunda. J.J.S.14 opined that; It is a cardinal principle supported by a plethora of authorities that courts conclusions must be based on facts stated on record. In making property adjustments or awarding maintenance after divorce the court is guided by the need to do justice taking into account the circumstances of the case. Customary law in Zambia is recognized by the constitution provided its application is not repugnant to any written law.

2.3 Literature Review Unpinning Study

The current laws in Zambia regarding marriage and divorce are deeply steeped in colonialism and need urgent reform. Ellman15 alluded, that “in case of divorce, if one party has

13Munshya, E. (2017) Statutory Recognition of Customary Marriages in Zambia: Reforming Colonial Marriage Laws 14 Rosemary Chibwe v Austin Chibwe (SCZ Judgement No. 38 of 2000). 15 Ellman, I. M (1989) The theory of Alimony

8 maintenance difficulties, the other party should render appropriate financial assistance. Both parties should work out an agreement with regard to the details; in case an agreement cannot be reached, the people’s court should make a judgement”.16

The whole idea in the theory of Alimony was to advocate for equity in the division of assets upon divorce. There is nothing like too little to share when it comes to division of marital assets. This can only be done if customary marriage is made more legal, meaning including it in the statutory books.

In application of the Alimony theory, the Zambian laws regarding marriage are uncertain with the distribution of assets, which is why the laws need to be revised and recognise customary marriages in the statutory. In customary law, marriage disillusion and division of property is done in line with the traditional rules. That is to say, if a custom demands the woman to be divorced without a share of marital property, the courts have no objection to the custom.17 This act is too grotesque to be practiced in a Christian nation and a nation with written laws because the main function of law is to deliver justice and equity of which such practices cannot be regarded as just. This is based on the theory of Alimony, the broad aim of this theory is to ensure equal distribution or division of assets after divorce in customary marriages.

2.4 Statutory Provisions and varying Customary Laws pertaining to Women's Property Right after Divorce

In order to cement the argument that women who marry and divorce under customary law, as compared to women married and divorced under statutory law, are prone to grave injustices and hardships when dealing with property rights after divorce, it is deemed imperative to dedicate a compendious chapter to specific provisions under statute and specific varying customary laws.

2.4.1 Statutory Provisions

English statutory law has experienced pre -eminent developments in relation to women's property rights after divorce. As the progressional stages of statutory provisions have been alluded to in chapter one, the study shall confine its discussion mainly to the provisions of the Matrimonial Causes Act No 20 of 2007 (MCA), which replaced the Matrimonial Causes Act

16 Himonga, C.M (2011) Family and Succession Laws in Zambia

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1973.18 The MCA will suffice as it has replaced almost all the previous legislation on matrimonial causes.

Often however, categorization of property is not openly contemplated within a happy union as there is really no need to risk having a property dispute whilst living amicably together. When a marriage breaks down however, two questions arise: in whom are the legal and equitable interests in the property vested and what rights short of ownership may one spouse have in the property of the other?

It is imperative to note, for future comparison with customary law, that English law recognises that a spouse may have rights short of ownership in the property of the other.

Where there has been a divorce, it is desirable that property rights of the parties should be dealt with under the MCA. This Act gives the court wide powers to adjust those rights.

Problems may arise however, where the spouses' rights are not properly defined. In such a case, the court will have a wide discretion by ordering the interests to be divided in such propositions as it thinks fit. The court may, for example, order a spouse to give up possession of a house or even forbid him or her from dispossessing the other spouse or to deal with the property in any way inconsistent with the other 's rights. In Lee v. Lee (1974) 5 Fam Law 48,19 a married couple lived together in a house owned by the husband. He deserted his wife and when he suffered financial difficulties he sought to sell the house. His wife applied under section 17 of the 1882 Act for an order restraining him from entering into any contract for the sale conveyancing of the property which might interfere with her enjoyment of it. The court duly restrained the husband from selling the house until provision of alternative accommodation was made.

The court may also, order the property to be sold and direct how the proceeds of sale are to be divided or, if both spouses have interest, it may order one of them to transfer his or her share to the other on the latter's paying the value of the property transferred. In Bothe v. Amos (1976) Fam 4720 for instance, the wife committed adultery and left the matrimonial home and abandoned the joint business venture entered into by her husband and herself. After the divorce, she made an application under section 17 of the Women’s Property Rights Act 1882 for a share of the property and business as they were purchased in their joint names. The register held that

18 Matrimonial Causes Act 1973 19 (1974) 5 Fam Law 48 20 (1976) Fam 47

10 on the facts the wife was entitled to one third of the premises and business which amounted to £2,500. He then ordered that sum to be paid by the husband to the wife. The wife appealed on the ground, inter alia that she did not necessarily want her share in money. It was held that in dealing with an application in money terms the value of the parties' respective shares in any item of property and that since the court had the power to order a sale of property on application under section 17, it necessarily followed that the court had the power to make an order for the payment of a sum of money. This basically amounted to a sale of property by one spouse to the other, that the jurisdiction to order a sale of property was not restricted to a sale to third parties only.

Zambian statutory law which governs marriage under the marriage provides for property distribution in favour of the weaker spouse on divorce. In this respect, the courts are enjoined to ensure that the needs of the respective spouses are provided for from the available family resources after the dissolution of the marriage. The provisions in support of this contention are to be found under part viii of the MC Act.

The MC Act gives the court power to grant property adjustment orders in connection with divorce proceedings pursuant to section 54.21 It is through these property adjustment orders that the distribution of property is accomplished. The court, on granting a decree of divorce, may make any one or more of the following orders: that a party to the marriage shall transfer to the other party such property as may so specified. The property so to be transferred being property which the party transferring is actually entitled to, either in possession or reversion; that a settlement of such property as may be so specified, be made for the benefit of the party who was not entitled. That is, property to which a party to the marriage is entitled, being made subject to a settlement order for the benefit of the other party; an order varying any ante-nuptial or post-nuptial settlement so as to benefit the parties; and an order extinguishing or reducing the interest either of the parties to the marriage under any such settlement.22

Should the court make any of the above orders, then in making it, or at any time thereafter, the court may make a further order for the sale of such property, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion.23

21 Section 54 of the MCA 2007 22 Ibid 23 Ibid

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The court does not, nonetheless, have unfettered discretion in exercising its powers under provisions of the Act. The MC Act contains the matters to which the court is to have regard in exercising its powers for adjusting property under the foregoing provision. The court is to have particular regard to the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; the standard of living enjoyed by the family before the breakdown of the marriage; the contributions which each spouse has made or is likely to make in the foreseeable future to the welfare of the family, Including any contribution by looking after the home or caring for the family; the conduct of each party; and the value, to each party to the marriage, of any benefit, for example a pension, which by reason of the dissolution of the marriage, that party will lose the chance of acquiring.

From the foregoing provisions, it may be inferred that the judicial system attempts to place parties of a broken marriage at par with one another so as to avoid undue hardships. Though not expressly provided for in the amended MC Act, the court, nevertheless, appears to be required to exercise its powers so as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the e marriage had not broken down and if each party had property discharged his or her financial obligations and responsibilities towards the other.

In the case of Wachtel v. Wachtel (1973) EWCA Civ 10,24 a couple had been married for eighteen years and they had two children. During their marriage, they purchased the matrimonial home in the husband's name. The purchase price was £5000 which was paid by 100% mortgage, paid in instalments by the husband. The wife stayed at home looking after the children and helping the husband in his practice as a Dentist. She assisted by doing receptionist and clerical work. After the divorce, the wife left and the husband retained the house. The wife sought a property adjustment order and the judge after making reference to the requirements of section 25 of the Matrimonial Causes Act 1973 found that responsibility for the breakdown of the marriage rested equally on both spouses and that therefore the only capital asset, the matrimonial home should be equally divided; that the husband should consequently pay the wife a lump sum of £10,000 being half the price as the home was valued at £20,000. The court was directed in its holding by provisions of the 1973 Act pertaining to taking into consideration

24 (1973) EWCA Civ 10

12 the contribution made by each party, which includes looking after the home or caring for the family. The rationale as states by Lord Denning was to the effect that:

Parliament recognised that the wife who looks after the home and family contributes as much to the family assets as the wife who goes out to work. She contributes in kind, her husband in money's worth. If the home has been acquired and maintained by the joint efforts then when to marriage breaks down, it should be regarded as joint property of both, no matter in whose name it stands.'

This case illustrates the point that statutory law seeks to protect not only the working wife but even the housewife. In fact, statutes do not specifically refer to the woman but to a spouse. Statutory law therefore seeks to protect the economically weaker spouse.

The foregoing provisions and cases support the contentions that statutory law seeks to protect the weaker party of a broken marriage. It may be agreed that women, especially in Zambia, are the economically weaker of the two spouses. This reasoning leads to the conclusion that the provisions so alluded to provide favour to women in the distribution of resources on the dissolution of statutory marriage in Zambia.

2.4.2 Customary Law: Tuïoukaand Tonga

Because of the prominent features of the Zambian customary law such as being unwritten and variable according to locality, it must be assayed from the perspective of distinct ethnic groups. For purposes of this paper, the research will examine the Tumbuka and Tonga customs relating to women's property rights after divorce.

In any endeavour to understand any custom pertaining to divorce, it is essential to begin by understanding how marriages are looked upon and what kinds of varying social structures exist.

A customary marriage may loosely be defined as a marriage between one man one or more women and between the woman's and man's families.25 This definition emphasises the potentially polygamous character of customary marriages and the fact that the families of the parties to the marriage are as much parties to the marriage contract as the spouses themselves.

The involvement of the parties' families extends to the giving of the marriage payments and sometimes the paying of the same. It is pertinent to note that the families of the parties to the marriage are involved in matrimonial and property disputes and this shall be highlighted in the

25 Ndulo, M (1984) Law In Zambia, (East African Publishing House, Kenya, p. 143)

13 next chapter. The woman's parents may also be witnesses to proceedings for divorce in local courts and may be consulted as to whether or not the marriage should be dissolved.26

Generally, the following principles are recognised by all tribes in Zambia as governing the essential requirements of a valid marriage under customary law.27 Firstly, apart from the girl having reached puberty, there is no fixed age limit for either male or female to marry. Secondly women must be single whilst the man need not be. Thirdly, the parties must have consented to marry though there is no bar on family pressure being exerted. The consent of the woman's family is essential whilst consent of the man's family is not a necessity. Fourthly, marriage payments are an essential requirement of a valid marriage but differ in legal significance, purpose and variety from one tribe to another.

It has been argued that marriage payments, including those which have legal significance are not essential for a valid marriage because such payments may be waived or postponed and yet the marriage concerned is considered to be valid states that what constituted a proper marriage is a union entered into with the consent of the woman's parents after appropriate marriage payments have been made. He insists that these requirements facilitate the proof of the existence of a marriage since marriage was, especially in the urban areas, in a state of flux28

In the case of Martha Chikulo v. Lwiindi29 X sued her husband for divorce on the ground that he expelled her from the matrimonial home after he married another woman. X and her husband had been married for seven years under Tonga customary law. No payment had been made. Subsequently, the local court held that there was no marriage as marriage payments had not been made. Whether there were children or not was irrelevant and so was the length of time they had stayed together. The relationship which existed was said to be 'mapoto,' mere friendship, since there had been no dowry The court refused to reconcile the parties who were not married. The effect of invalidating to marriage on account of non-payment of lobola was to deny the woman any right to property which might have existed.

26 White, C.H (1968) Principles of Customary. and Civil Law, Cited in E. Colsons. Marriage and the Family Among the Plateau Tonga of Northern Rhodesia.

27 Clain W.T.C (1970) 'The Rights of Widows Under Customary Law' in Women's Rights in Zamia" Report of a consultation, Mindolo Ecumenical Foundations p.88 28 Epstein, A.L (1958) Politics in an African Community (Manchester, University of Manchester. 29LC 1437/81 (unreported)

14

In the case of Earing Nkhata v. Suzyo,30 the parties had been married under Tumbuka customary law. They had no children, and they had been married for ten years. Lobola had been partly paid. On a hearing for divorce the court held that the non-payment or part payment of the marriage payment did not invalidate the marriage. It merely meant that the husband had forfeited his right to the children had there been any. The marriage which ensued from a relationship where marriage payments had not been paid is called 'Kusompola'.

The above two cases illustrate the fact that the significance of marriage payments vary from one custom to the other. In the former case, the invalidating of a marriage on account of non- payment of lobola automatically bars the woman from raising issues pertaining to her property rights.

Another common factor in all tribes is that a customary marriage may be dissolved either by divorce in a local court or divorce out of court in a family forum.31 The choice belongs to the party initiating divorce proceedings. Most modern day divorces are heard by local courts because they show an ambit of flexibility. Divorce by private arrangement has the advantage of simplicity though the downside of this arrangement is that it often sacrifices the possibility of any arrangement being made vis-a-vis the security of women in relation to family property. Family forums are rigid in their application of customary property law which denies women of any property rights on divorce.32

2.4.3 Traditional Tumbuka Customary Law

The Tumbuka occupy part of the Eastern province of Zambia, particularly Lundazi. They are patrilineal in their social structure and this is perpetuated by the incidence of virilocal marriages. When a man pays part or all the lobola, the woman moves to his home or village. The woman becomes his wife and a member of his clan. All property, save that which she came with, becomes the husband’s property to administer in the best possible way for the family.33 Often, the man takes more than one wife and it is seen as his duty to be able to manage all property so that the whole clan, his wives inclusive, share in its enjoyment. If a man in fact marries several women, each woman, upon moving on to his village, is entitled to her own home or hut (depending on his wealth), and each house is furnished by the joint efforts of husband and the wife who resides there. Some wives are more industrious than others and as

30 LC 1621/81 Unreported 31 Ibid 32 Bealie, K (1966) Law and Custom in Colonial Africa (Longman, London, pi 15) 33 H.M.G Lungu; Clan Elder on July 22 1995, Lundazi

15 such accumulate better property. The property; furniture, cooking utensils, clothing and any other personal property are nevertheless deemed to have been acquired by the husband no matter who actually bought it.34 This being the case, the husband retains all property upon the dissolution of the marriage. If the woman takes anything at all, it is not as of right but out of the kindness of heart on the part of the husband and, or his family.

In the case of Christina Ndhlovu v. J. Nyirongo35 the parties had been married under custom for twelve years. During the course of the marriage the wife earned money by brewing herbal beer. The husband was a subsistence farmer earning a low and inconsistent income. The matrimonial home was built and maintained by money from the beer sales. The couple also owned a gas stove and a two-piece lounge set. These items were purchased by the couple though the wife's contribution was an estimated eighty per cent of the purchase price. The two equally agreed to divorce due to irreconcilable incompatibilities. At a family forum, it was decided that the wife was not entitled to any property as per traditional custom. The wife was not satisfied and took the action to a Lundazi local court seeking joint property distribution. Initially, the justice refused to hear the matter contending that the court was not an appeal court to overrule decisions of a family forum. After two or three family meetings, the families agreed to set aside their decision and begin the whole divorce proceedings afresh in the local court. The court consequently held that as the beer was brewed at the husband’s village, it was a product of the husband's village. This being the case, it was the husband who facilitated the wife's business and that therefore all property bought from the proceeds of the sales were the husbands. The court also emphasised the fact that even if the wife had brewed the beer outside the husband's village, the custom was to the effect that all property, regardless of who acquired it, was the husband's. This pronouncement included all property whether intended for common use and consumption in the matrimonial home or that intended for personal use and enjoyment. This rule however is restricted to property acquired during and not before the course of the marriage.

Another case demonstrating the effects of divorce on women's property rights under traditional customary law is that of Emily Mhiti v. Jackson Banda36 In that case, the parties had been

34 Interview with Local Court Magistrate; Mr. Mkandawire, Resident Magistrate on 26th September 1995, Lusaka Boma conducted by H.M.G Lungu. 35 LC 24 # 300/2/80 (unreported)

36 LC 243/2/80 (unreported)

16 married, under Tumbuka custom, for sixteen years. During these years, the wife was a housewife earning no income at all. She spent her time maintaining the matrimonial home and caring for the family. She also avoided spending her house allowance on vegetables by having and maintaining a vegetable garden. The husband was the breadwinner and all property was purchased by the husband for common use and consumption by the family. In the thirteenth year of marriage, the husband admittedly bought a mini tractor as a gift for the wife intended for her personal use and enjoyment, to use or sale as she desired in their sixteenth year of marriage, the wife opted for divorce due to wife battery. Upon dissolution of the marriage, the wife sought to take the tractor with her but the court held that as a matter of custom, the husband was the sole owner and custodian of all property acquired during marriage. The justice stated that even a gift acquired during marriage automatically reverted to being the husbands if still existed at the time of dissolution. The rationale was stated to be that a gift given during marriage was in fact given with the view of life time commitment; that upon dissolution, a wife might remarry and enjoy property acquired from the efforts of her former husband with her new husband and such situations were not desirous at all and as such was to be avoided at all costs.

The Ndhlovu and Mhiti cases demonstrate that: firstly, traditional Tumbuka customary law does not consider a woman's income, or property acquired therefrom as her own, but as that of the husband's; secondly, that once the parties are married, the property acquired during that period, regardless of who purchased it, is not subject to separate ownership nor does it become joint property but becomes the husband's property to be used by the wife and family. This right is of use only and is temporary as it ceases to exist upon dissolution of marriage; thirdly, that the custom does not take into account the conduct of the parties which led to divorce when ascertaining property rights, nor does it take into account the contributions made by the wives be it in kind of money worth; fourthly, that even if the husband gives a gift to the wife during the subsistence of the marriage, the wife does not thereby acquire absolute property rights; and lastly, that whether a woman earns an income or not or whether she solely maintains the home and cares for the family, women married under traditional Tumbuka customary law have completely no rights in personal property after divorce.

Regarding real property, it must be borne in mind that under customary law, It a person owns is a right in or over a piece of land rather than the land itself.37 As the nbuka are mainly virilocal

37 Gluckman, G (1945) 'African Land Tenure' Rhodes -Livingstone, Journal No. p. 1-2

17 in marriage, upon marrying a woman, that woman moves to the band's village. During the marriage, if she has no field of her own, she is entitled to private her husband's field or be given one by the husband. What she acquires is a right of a right to cultivate. The field or land remains the husbands for all intent and purposes.38 husband may still dictate what crops are to be grown and what use the land is to be put

All rights acquired by a wife in such field or land are forfeited by the wife on the dissolution of marriage. She has no claim or right to continue cultivating the field and no it to live in the hut or house in which she had temporary rights.

2.4.4 Traditional Tonga Customary Law

The Tonga occupy a greater part of the Southern Province and, unlike the nbuka, are matrilineal in their social structure.39 The Tonga, however, are also virilocal in Tiage.40 Because the Tonga are also virilocal, they apply the same law as Tumbuka when ling with real property.

In relation to personal property, Tonga custom does not recognise a woman as able of owning property whilst in a marriage. In the case of Edina Chizuka v. Paul izuka,41 the couple had been married for five years. Full marriage payment was made cause of divorce was the wife's adulterous behaviour. The local court held that in view of fact that the wife was to blame for the divorce, she lost the lobola which had been paid by husband's family. The wife's family was ordered to repay the marriage payment. It was her decided that regardless of fault all other property belonged to the husband.

In the case of Habenzu v. Habenzu,42 full marriage payment was made in Lotion to a marriage which lasted nine years. The cause of divorce was persistent wife. The court held that the store and car which were in issue belonged to the husband even though they were both in the wife's name and even though the wife was the sole breadwinner. The court did however declare that the marriage payment was forfeited by the husband because the cause of break up was his.

As evidenced by the case of Martha Chikulo the paying of the marriage payment is crucial for the validity of a Tonga marriage. If lobola is not paid, the marriage is invalidated and the issue

38 White, C. N (1959) Land Tenure Report No. 3 on the Eastern province. 39 Colson. E (1956) Marriage and The Family amongst The Plateau Tonga of Northern Rhodesia (Manchester, Manchester University Press) 40 Ibid 41 LC 423/82 (unreported) 42 LC 303/79 (unreported)

18 of divorce or property rights does not arise. If lobola is paid, traditional Tonga custom denies women of any property rights after divorce. The only property which she may retain is the marriage payment only if her husband’s conduct was the cause of divorce. This was illustrated by the Habenzu and Chizuka cases.

It is imperative to note that though both the Tumbuka and Tonga are mainly virilocal in marriage, both acknowledge and in certain instances practices uxorilocal marriages.43 In this instance, the man moves to the woman's village upon entering a union. In the case of Precious Zimba v. E. Nyirongo,44 the couple were married under Tumbuka customary law. the marriage lasted for nine years and during this period the husband and wife resided at the wife's village. The husband was a farmer and earned a high income. The wife maintained the home and cared for the family. The husband built a house at the wife's village for their joint use as the matrimonial home. He also bought various household items such as furniture and a radio. Upon dissolution of the marriage, the court held that all tangible and moveable property belonged to the husband as per custom but since the house and farmland were part of the wife's village, she retained them.

Similarly, in the case of Chiyota v. Chiyota45 the couple who had married under Tonga customary law sought to divorce. The husband moved to the wife's village and was given a field to cultivate. Both husband and wife through their joint efforts built a house which they furnished. Upon dissolution of marriage it was held that all property save realty belonged to the husband; that in an uxorilocal setting the husband merely has a temporary right to use and enjoy the land and therefore forfeit all realty upon termination of marriage.

From these two cases it is evident that even in a uxorilocal setting, a woman is denied all rights in personal property whereas the husband is denied all rights in realty. It is further evident that the court does not in either verilocal or uxorilocal instances inquire into the contribution made by either spouse in acquiring real or personal property.

It is interesting to note that even though the Tumbuka and Tonga vary in social structure, that is the former is patrilineal whereas the latter is matrilineal and even though the two tribes give

43 Colson, E (1960) Marriages and Family Amongst The Tonga Of Nyasaland (Manchester University Press,P. 202) 44 Case # 2024/1/86

45 Case # 2040/1/84 (unreported)

19 varying legal significance to the payment or non-payment of lobola, both customs are similar in their denial of women's property rights after divorce.

Whereas the courts under statutory law seek to place the parties in the financial position in which they had been if the marriage had not broken down, traditional customary law seems to seek to place the woman in particular, in the financial position in which she had been before the marriage ensued.

2.5 Law of Maintenance in Customary Marriages as Provided by Local Courts

Customary law as it applied to maintenance in customary marriages had been left to operate without intervention either statutory or by courts, this is unlike some aspects of the law where the courts came out and held that such of customary law were contrary to natural justice equi and good conscience. In the case of Kan-iki v.Jairos,46 a custom that required a surviving spouse to pay some money (akamutwe) to the deceased’ s family was held to be repugnant to natural justice equity and good conscience' by the High Court. This was a Lala customary law and the parties were in agreement as to the custom but what was at issue was the amount of money involved. The court passed such a judgment in accordance with section 12 of the Local Courts Act which allows the application of customary law in the Local Courts.

The section provides expressly that the law will only apply if it is not repugnant to natural justice and not at variance with any written law. Furthermore, paragraph 16 of the Local Courts

Hand book states that any customary law which conflicts with principles of natural justice is contrary to natural justice. This means that that offends the sense of rightness or decency or is contrary to fundamental natural rights is to be regarded as repugnant.

In yet another ease of Nkomo v. Tshili (1973) ZLR 102,47 the High Court refused to grant custody of an eight year child as required by custom to the relatives of the child' s father whom the child had never seen before. The court held that to do so would not be in the interest of the child and that it was contrary to natural justice.

Where maintenance of divorced women at customary law was concerned, however, courts came out in full support of the customary law. The courts agreed with this law and denied a

46 (1967) ZR 71

47 (1973) ZLR 102

20 divorced woman maintenance, this was despite decisions such as the ones in the Mwiya case, Kaniki and Nkomo cases. The law remained in operation even in the face of the social and economic changes pointed out in chapter one. In other words, the law remained static while society changed. This problem brought about the inevitable need for change.

Such a change came through the enactment of the Local Courts Act. Section 35 of this Act speaks to the maintenance to divorced spouses in customary marriage where it stipulates inter alia that the court may make the following orders: -

(d) "Make an order for the payment of such sum for the maintenance of a divorced spouse as the court may consider just and reasonable having regard to the means and circumstances of the parties for a period not exceeding three years from the date of divorce or until remarriage whichever is earlier"

2.6 The Conflict between Customary Law and Statutory Law on Marriage and Divorce and how the Dual Legal System allows for these continued Conflicts.

A major characteristic of the law in Zambia and indeed most African countries today is the dualistic system of law in practice. Such legal dualism gives rise to many problems concerning political unity, economic development, and administration of justice as well as internal conflicts of law.

2.6.1 Conflicts between the Marriage Act and African Customary Law

It must be noted firstly, that the underlying concepts of the African customary marriage and the marriage as stipulated in the Marriage Act differ radically in that in African custom, the essence of marriage is the creation of a bond between two families and their respective members while as mentioned before a statutory marriage is the creation of a bond between two people to the exclusion of all others. Establishment of the African marriage gives rise to rights and obligations not only applicable to the man and woman involved but also to the families of each. Inherent in the marriage is the purpose of bearing and rearing children and failure to produce children affects the rights and obligations of the principle parties of the marriage. It may in fact be concluded that marriage is a transfer of the bride to her husband's family. The African marriage is potentially polygamous and there is in theory no limit to the number of wives that a man can have although not every customary marriage is in fact polygamous. In the case of Janet Mpofu Mwiba v Dickson Mwiba, it was held that the basis of a civil law marriage is the Christian marriage, its concept being monogamous and the courts would

21 therefore not dissolve marriages unless they were monogamous within the meaning of the Christian marriage. In this case, although the marriage was monogamous, the man was allowed to take another wife under the law governing their marriage. In addition, the concept of age of the party was irrelevant. A girl or boy was ready for marriage not when he or she knew what they wanted in a mate but when they were able to reproduce and thus carry on the family tradition and estate. If a husband died, all his rights remained with the family and the wife was expected to marry one of her deceased husband's relatives. If the woman, however, died childless, the husband could demand a return of the lobola or another girl of the same family.

Parental consent is required if either of the parties to the proposed marriage is a minor. Where it is a prerequisite, it must be in writing but this is not applicable if the minor is a widow or widower. In the absence of consent where such consent is necessary, the contract is void. This was implied in Muyamwa v Muyamwa where it was held that the presence of a girl's mother at the marriage ceremony was proof enough of parental consent to validate the marriage. The essence of consent is in contrast to that under customary law as the only consent which can affect the validity of the marriage under customary law is that of the girl's parents. Even then, it only affects the validity in the sense that it is required for the setting of the lobola. Parental consent would still be necessary under customary law even where the proposed minor was previously married. This lack of consent on the part of women at the time of marriage denotes a failure on the part of society to accord women full majority status or adulthood while early marriages deny the girl child the right to education thus ensuring their economic dependency and exacerbating the current illiteracy problem in the country.

Whereas for a statutory marriage, much emphasis is placed on the registration and solemnization of the marriage this is not so in customary marriage which instead places great importance on lobola or dowry. This is because lobola is seen as an essential part of the establishment of the validity of the marriage. It is basically a gift of some form that is given to the family of the bride in cash or in kind. The bride therefore, does not become the property of the husband but the payment creates among others a bond between the man and the parents of his bride and in essence a means of continuing the lineage was received. This could be demanded by the family of the man if no children were born of the marriage or as a result of the dissolution of the marriage due to the misbehavior of the woman. Likewise, if the husband neglected his family and grossly mistreated his wife, she might claim the protection of her father who in extreme cases might return the lobola and dissolve his daughter's marriage. Africans who enter into civil marriages nearly always couple the marriage with bride price

22 agreements. Thus the marriage signifies the union between the bride and groom and the lobola signifies the joining of their two families. In this way, the African conception of marriage is imported into the civil ceremony giving the union a double validity in the eyes of the persons involved. It is probably the most enduring institution of customary law and it is this characteristic that ensures its practice in accompaniment of the civil marriage. Its persistence may well be indicative of the parties' entanglement in debts inherited by the previous generation rather than any particular attachment to cultural heritage. This is particularly so in urban areas where certain customs may be practiced without the basis for the custom being known or understood and thus the custom will be practiced because it has been handed down by the previous generation.

2.6.2 Conflicts between the Matrimonial Causes Act 2007 and Customary Law

The current civil law is that there is only one ground for divorce, this ground being the irretrievable break down of the marriage which is broken down into five facts. One of these five factors must be proved in order to establish such irretrievable break down but as mentioned earlier, the most common factors for divorce in Zambia are adultery, followed by unreasonable behaviour.48 The conduct in this instance must be such that cruelty is contemplated. It was stated in Young v Young49 that the conduct must amount to such a grave and weighty matter as renders the continuance of marital co-habitation virtually impossible. This view was however changed in the recent Supreme Court case of Malama v Malama50 where it was stated that the standard of proof necessary in determining the existence of one of the facts in section I (2) of the Matrimonial Causes Act, 1973 was that for the provisions to be met the conditions need not be as serious as would have amounted to cruelty under the pre-1971 laws.

Under customary law, divorce is a matter to be settled by the two families concerned and dissolution by divorce usually entails the return of part or all of the lobola. There is no need to have recourse to a court unless the parties cannot agree about the settlement of bride wealth. T. Bennet51 in his book on the application of customary law stated that the woman is often powerless to affect her own divorce. This opinion reflects the subordinate position of the woman as she would have no part to play in negotiating the return of the lobola in the event of

48 Sections 8 and 9 of the Matrimonial Causes Act No20 of 2017 49 (1962) 3 All ER 120

50 Appeal No.84 of 2000 51 Bennet T.W., The Application of Customary Law in Southern Africa, Cape Town, Juta and Co, 1985,

23 a divorce or the guardianship of the children because this is her guardian's function as representative of the family. It is however not uncommon today for a woman married under customary law to provide the money for the lobola to be returned in cases where her family are unable to raise the amount. A customary marriage comes to an end when the families of both parties have made an effort to reconcile and counsel them. The grounds for divorce are many and vary from one ethnic group to another. Among them are adultery, unbecoming behaviour, cruelty, childlessness and desertion to mention but a few.52

One of the main conflicts existing between the civil and customary laws on divorce is seen in the treatment of adultery as a ground for divorce. Whereas under statute, divorce is granted where adultery has been proven, this is not so under the customary laws.

2.7 Conclusion

This chapter provides an overview of some key literature prevalent in academia on the subject of women’s property rights and how the crafting of the legal and frameworks plays a role in the denial of women’s rights under customary law. More specifically, the overview considered comparing the two types of marriages (customary and statutory) the need to review the instruments used to protect women’s property rights after divorce.

The next chapter will proceed to discuss the research methodology and strategies deployed in fulfilling the empirical aims of this study.

52 Mushota L (2005) Family Law: Cases and Materials. UNZA press, P. 247

24

CHAPTER THREE

RESEARCH METHODOLOGY

3.1 Introduction

This study endeavours to give a comparative analysis on women’s property rights after divorce between customary marriages and statutory marriages and to carefully evaluate the law on the protection of women’s property rights after divorce in customary marriages in Zambia. A crucial part in satisfying this object is an empirical investigation employing specific research methods. Whilst chapter 2 of this study indulged a breadth of literature that progressively built a prominent discourse on the subject of women’s property rights, the remainder of this study invites a more in-depth inquiry in to the contextual functionality of the fiscal approach queried in this study.

This chapter outlines the research methods employed in satisfying the empirical aims of the study, as elucidated in the study’s objectives, and further highlights the investigations design and research strategy. Approaches towards data collection and analysis are also discussed and ethical considerations well-articulated. Within the scope of the discussion, potential challenges to implementing the research methods are highlighted and mitigations forwarded.

3.2 Research Methodology and Strategy

Venturing on a research of any kind usually entails numerous challenges and were proper planning is deficient, an empirical investigation can quickly derelict into an indistinct piece of work. A clearly defined research methodology and strategy therefore enables the assurance of systematic study that is co-ordinate and focused on its objectives.53

Methodology was defined by Collis and Hussey54 as the ‘overall approach towards the entire research process or study,’ Saunders et al55 on the other hand, viewed research strategy overall approach or plan to answering a study’s questions and meeting its objectives. In consideration of the relevant research methodology and strategy for any study, Saunders et

53 University of North Carolina (UNCA), 2005, Developing a Library Research Strategy, Ramsey Library: University of North Carolina. Available at http://www.lib.unca.edu/library/lr/resstrat.html. 54 Collis, J. & Hussey, R. (2009) Business Research: A practical guide for undergraduate and postgraduate students, 3rd edition, New York, Palgrave Macmillan. 55 Saunders, M., Lewis, P. and Thornhill, A. (2007). Research Methods for Business Students, 4th edn. Harlow: FT Prentice Hall

25 al56 guided that the choice must be made primarily on the basis of the desired approaches’ capacity to answer the research’s questions and speak to its main objectives. The choice should also consider other factors including the extent of literature available on the subject, the researcher’s philosophical position, the extent of resources and time available for the study. In the long run, the choice of research methodology and strategy should move towards that which is most dominant to the study’s activity.57

The exploration in this study principally adopts a theoretical position and seeks to elucidate a reciprocal relationship, if any, and within the areas of efficacy, between violation of women’s property rights and the legal framework. Within its scope, the study gives way to a wide range of systematic numerical data implying an overlap between qualitative and quantitative aspects. However, the employment of numerical data does not escalate to the measurement of any observable phenomena, hypothesis testing or scientific probing thus precluding quantitative research. In a nutshell, the research methodology and strategy adopted in this study can be primarily discerned as qualitative in nature.

As a matter of definition, Shank58 viewed qualitative research as ‘a form of systematic empirical inquiry into meaning.’ Systematic to mean ‘planned, ordered and public,’ also in accordance with the prescriptions of acceptable qualitative research and empirical meaning an inquiry grounded in the world of experience.59

3.3 Philosophical Underpinning

Every empirical investigation is supported by philosophical biases be it explicit or implicit.60 Therefore, consideration must always be given to a study’s apparent philosophical underpinning when stationing any preferred research methodology or strategy.61

Generally, qualitative research follows a more anti-positivistic, interpretive approach and ventures to understand social life and the meaning people attach to it.62 However, decrypting

56 Ibid 57 Yin, R. K. (2003) Case study research: Design and methods, 3rd edition, London, SAGE Publications. 58 Shank. G. (2002). Qualitative Research. A Personal Skills Approach. Merril Prentice Hall, Upper Saddle River. 59 Ospina, S., Dodge, J., Godsoe, B., Minieri, J., Reza, S., Schall, E. (2003). “From Consent to Mutual Inquiry: Balancing Democracy and Authority in Action Research” Unpublished manuscript. 60 Kakulu, I., (2014). Qualitative Research Strategies and Data Analysis Methods in Real Estate Research - An innovative approach using the BB Model, Conference: Estate Management Department Workshop, At Federal Polytechnic, Nekede, Owerri. 61 Ibid 62 Schurink, E.M. (1998), deciding to use a qualitative research approach, In Research at Grass Roots: A primer for the caring professions. Pretoria. Pg.246.

26 the relationship between violation of women’s property rights after divorce in customary marriages and the framing of the law entails the observation of real life phenomena in a defined context using several sources of information and this suggests a bound beyond generic positivism.

Given the flap between qualitative and quantitative aspect in this study, one can easily infer a mixed method in satisfying the empirical demands. In accordance with this mixed method, Creswell63 attached pragmatism as the default philosophical underpinning. As such the investigation in this study adopts a pragmatic orientation.

3.4 Data Collection and Analysis

As earlier highlighted, this study endeavours to give a comparative analysis on women’s property rights after divorce between statutory marriages and customary marriages and to critically evaluate the efficacy of the law on protection of women’s rights after divorce in customary marriages, Meeting the empirical aims of this objective entails the collection and analysis of diverse data both primary and secondary.

Whilst the literature review in chapter 2 of this study went as far as consolidating defensible secondary data, the study requires the adoption of additional secondary data in discerning other relevant principle beyond the scope of the review in chapter 2. The study will therefore employ desk research in collecting additional secondary data from a breadth of sources. These will include inter alia; Statutory provisions, textbooks, journal articles, newspaper articles, student’s dissertations and internet sources.

The use of secondary data has several overt dominations including its cost effectiveness and ease of access to large data sets. However, the use of such data is with its limitations, for example, it is not always easy to locate sufficient, relevant and up-to-date data for a particular study.64

The evaluation of data in this study will follow a descriptive and interpretive method. Results from primary research will be dissected and evaluated for emerging themes, patterns and relationships. The results will then be consolidated and thematically weighed against the results

63 Creswell, J. W. (2003). Research Design Qualitative, Quantitative and Mixed Methods Approaches. USA, Sage Publications. 64 Dunn. L, Engoren. C.A, Dekoekkoek. T, Rosemary. J, Scott. L.D, (2015). Secondary Data Analysis as an Efficient and Effective Approach to Nursing Research, Issue 1, Western Journal of Nursing Research, Sage Publications.

27 of the secondary research including the literature review. Finally, the study hopes to draw conclusions and recommendation from any consistencies, inconsistency and lacunas observed through the evaluation process and also identify areas of further study.

3.5 Questionnaire Design

In designing questionnaires, the researchers aim must always be that of eradicating measurement error, increasing response rates and improving the overall quality of data.65

The questionnaires used in this study have been designed with careful alignment so as to speak to the study’s objectives and self-distributed to the respondents. This was done in order to ensure reversion, precise and relevance of responses. As earlier stated the questionnaires feature a semi-structured format affording more flexibility to both the researcher and respondents but also a path to clarity.

A sample questionnaire is to be found in Appendix 1 of this study.

3.6 Target Population

The examination in this study will be carried out in the country of Zambia. The study will target respondents from two main institutions namely, the Ministry of Home Affairs and also the Judiciary of Zambia. The broad spectrum of responses will allow for the elimination of occupational bias.

The study aims to conjure responses from 5 local court magistrates, 5 family law experts and 5 lawyers. And given the resource constraints evident in this research, the locality of responses will be narrowed down to the campus of the City of Lusaka, Zambia

3.7 Sampling Methodology

The sampling approach adopted in this study will be purposive sampling, a technique akin to no probabilistic sampling. Generally, three main sampling techniques can be discerned when it comes to non-probabilistic sampling and these are convenience sampling, purposive sampling and Quota sampling.66

65 Berdie, D. R., Anderson, J. F., Niebuhr, M. A. (1986). Questionnaires: design and use (2nd Ed.). New York: The Scarecrow Press, Inc. Pg. ix. 66 Ibid

28

Non-probabilistic sampling speaks to the selection of participants from a population subset on the basis of availability, convenience, or specific characteristic the investigator intends to study.67 Therefore, the method relies heavily on the researcher’s judgment.

The rationale for adopting purposive for this study is simply because it represents the most convenient method for the researcher given both time and resource constraints.

Selection of respondents under purposive sampling follows a random approach. Priority will therefore be given to obvious professionals and resonate expertise within the target population especially those with close proximity to the judiciary.

3.8 Ethical Consideration

Several ethical challenges are apparent in this study including issues of the privacy and confidentially of respondents as there is a risk of plagiarism and also misinterpretation or misrepresentation of responses and findings.

In mitigating the foregoing, the researcher goes far as to acknowledge all relevant academic sources cited and to also give all participants full confidentiality and privacy in their responses and personal details. Additionally, the researcher will venture to obtain bonafide consent for both use and application of responses from respondents.

This study excludes itself from any biases towards individuals, organizations, or the furtherance of any political agenda.

Furthermore, the study aims to exclude issues of potential misinterpretation and misrepresentation by complying with the academic guidelines and research practice. This research is in partial fulfilment of the requirements of the Bachelor of Law degree at Cavendish University, Zambia. The researcher will therefore also rely on the guidance’s and oversight of the University’s supervisory faculties. This means abiding by all the reasonable rules and ethical prescriptions of the institution including time frame guidelines.

The validity and reliability of this study is contingent upon the authenticity of the study. The concept of validity speaks to the question, ‘does our investigative approach really measure what you intend and satisfy the intended aims of your study?’ and reliability looks at whether the same study outcome would result if the exact same process was repeated at a different point in

67 Fischler.A.S. writing Chapter 3 a Methodology (quantitative). Nova South-eastern University, School of Education. PDF Pg. 8-9

29 time.68 An even more pensive matter in this study is that of the external validity or rather the ‘generalizability’ of the study findings given the elucidated narrowing of the targeted study population to a single locality viz. Lusaka, Zambia

Both matters will be mitigated through good research design and protocol execution, as stated all through this chapter, and also compliance with good supervision. As Handley69 opined, no individual researcher can envisage all the potential problems surrounding a study particularly having an effect on its validity and reliability therefore the need for a ‘team approach’ in research design and hence the need for compliance with good supervision.

3.9 Conclusion

This chapter focused on criterion of the preferred research methodology and strategy. Within its scope definitions and key justifications for choice of methods and strategy were highlighted, sampling methodology, ethical consideration, data collection and analysis approached articulates.

The next chapter, Chapter 4: Findings and Data, will detail the finding of this study’s empirical investigation and processes.

68 Chris Handley “Validity and Reliability in Research,” Transplant Resource Center of Maryland, Baltimore. Article Available at www.natco1.org/research/files/Validity-ReliabilityResearchArticle_000. Lasted Accessed 15/08/2019. 69 Ibid

30

CHAPTER FOUR

RESEARCH ANALYSIS AND DATA IMPLEMENTATION

4.1 Introduction

This chapter confers the key findings emerging from the pragmatic investigation persuaded by this study and evaluates their essence. The chapter commences by identifying legal provisions. Key pieces of legislation relevant to the women’s property rights are also noted within the regulatory exposition.

The chapter goes further to present and analyse findings from the secondary and primary data investigations respectively.

4.2 Attitudes of The Property Dispute Processing

In contrast with the application of traditional customary law which is rigid in its denial of women's property rights after divorce, contemporary application of customary law appears to be in a state of flux. This can be exhibited by a comparative analyses of how various dispute processing machinery have applied customary law relating to women's property rights after divorce. For purposes of this analysis, the researcher shall evaluate the attitudes of three such disputes property machinery: Firstly, family forums, secondly, local courts; and lastly, Magistrates courts.

4.2.1 Family Forums

Family forums are devoted to giving effect to traditional customary law by denying women all property rights after divorce. Women are seen as the subservient spouses incapable of acquiring property without the guidance and assistance of the husband.70

In some forums, when a divorce hearing comes up, the matters in issue pertain only to custody of children and refunding of lobola and no mention is given to the distribution of property as it is taken to go without say that all property rights are vested in the husband; one could equate this practice to the practice of English courts in taking judicial notice of matters which are so notorious that formal evidence of their existence is unnecessary. The courts take cognisance of matters of common knowledge and everyday life. In a similar manner, family forums may be

70 Himonga. N.C (1985) Family Property Dispute: The Predicament Of Women and Children in a Zambia Urban Community Ph.D thesis (unpublished) London University, 1985 p.

31 said to take judicial notice of the fact that women married under customary law forfeit all property rights on divorce.

In the aftermath of rigid application of traditional customary law, injustices and in many cases hardships ensue. It is an injustice because the law does not take into account the financial contribution of the female spouse. A woman may expend all her efforts during coverture to earn an income in order to live comfortably and even luxuriously with her family. Upon the dissolution of marriage, the court, under colour of customary law, strip her of all property, the product of her own hard work. Secondly, even if the woman did not contribute financially, a house wife often expends all her efforts during the subsistence of the marriage maintaining the home, cooking for her spouse and family and generally caring after her household. She too budgets in order to allow the family to maintain a healthy diet and yet save money for any property venture the couple may wish to undertake. The house wife therefore contributes just as much as the wife who goes out to work and even contributes as much to the family assets as the husband in some cases. She contributes in kind and it would be an affront to justice to continue insisting that she does not have any interest or right in any or all property acquired during coverture.

The obvious hardships that proceed from this unjustifiable denial of women's property rights after divorce include being homeless and starting all over again without a single item of property save perhaps clothing. Given the prevailing social and economic conditions, it would be virtually impossible to reacquire all the property she had during the subsistence of the marriage. Furthermore, the sudden change from riches to rags is not one in which the divorcee would be able to easily acclimatize to.

4.2.2 Local Courts

Having realized that the rigid application of traditional customary often leaves a divorced woman without property, and without a home and invariably a destitute, some local courts started making property orders in favour of women on the dissolution of a marriage.71 These orders represent a very significant change to the traditional customary law on the subject under consideration; that is, the infiltration of statutory consideration into customary law.

The increased ability of some women to contribute either directly or indirectly to family property seems to be one of the significant factors in the courts response in favour of women

71 Ibid

32 in property disputes. Another noteworthy factor which facilitated the positive attitude appears to be the modern day urban fight for women's rights generally.

The courts have of late awarded a married woman who contributed towards the acquisition of property a share in that property. This applies to employed women who make direct contribution. For instance, in the case of Luciano Lungu v. Marness Tembo72 the couple were married under Nsenga customary law for twelve years. During that period the couple, through joint efforts, purchased a house and put it in the husband's name. In the divorce hearing, a Lusaka Local Court held that the wife had a financial interest in the property and as such the husband was ordered to compensate his wife the sum of K84,000 for her interest in the house in question.

Similarly, in the case of Martha Muyombo v. Jack,73 the wife who was an employed cook, adduced evidence to the effect that at the time she married her husband, he had no property. By the time divorce proceedings were commenced, their home had a fridge, carpets and a stove. In the judgement, the court declared that all property was acquired by both spouses equally and that, therefore, should be shared equally.

Notwithstanding the lack of financial contribution of a wife to the acquisition of property, the local courts may, when awarding a share of property to a married woman, take into account contributions which are indirect or non-financial.

Unlike in the Luciano Lungu and Martha Muyombo cases, the wife in Zimba v. Zimba74 was a full time house wife earning no income at all. In this case, the couple married in 1990 and remained so until 1994. At the time divorce proceedings were being commenced, the bought a bedroom house. On the divorce, the local court also ordered the husband to compensate his wife the sum of K2, OOO for her interest in the house. The interest was stated to have been one which arose out of her maintaining the house and her contributions in looking after the husband.

The two former cases clearly illustrate that the courts orders recognize the financial contributions of the wife to the maintenance of the home and building of the house during marriage. These cases highlight the point that the wife's financial contributions are not a basis upon which the husband may be ordered to share family property with her upon the dissolution

72 LC 24 1398/94 (unreported) 73 LC 24 434/95 (unreported) 74 LC 1023/94 (unreported)

33 of the marriage. The latter case, however, highlights the point that the local courts do not always seem to restrict their property sharing orders to cases in which the wife made a direct financial contribution to the property; reference being made to the wife maintaining the house and looking after the husband.

In the case of Joyce Phiri v. Chipata75 the wife insisted on divorce while the husband wanted to reconcile. The couple owned three small houses all fully furnished. Because the husband wanted to reconcile the wife was denied compensation but the court ordered that they share all the property in equal proportions in spite of the fact that there had been no claim that the wife contributed to the acquisitions nor any claim for the share of the property by the wife. This case illustrates the fact that property orders in favour of women are also made by the local courts in some cases without any claim by the wife for the share of property.

In the case of Lillian Matale, the only asset in dispute was the matrimonial home. The court held that as the husband was in custody of the three children of the family, he retained the house in return for the payment of K120,000 compensations to the wife for her interest in the house. In those cases, where in order for the husband to keep the house, he must pay a sum in return for it, it merely amounts to the sale of the wife's share in the house to the husband.

In cases such as Mutanda v. Phiri76 the house in question was held to be the joint property of the couple. The court ordered that the house be sold and the proceeds be shared equally.

The Lillian Matale and Mutanda cases demonstrate the apparent power of the courts not only to order property distributions but also to order the sale of property for the benefit of the spouses.

As intimated above, the application of contemporary customary law seems to be in a state of flux. The fact that local court justices seem to hold mixed views on the making of property orders is reflected by the differences in decisions.

At the same time that the Luciano Lungu case was being decided, the case of River Banda,77 was also in court. In this latter case husband and wife had been married for five years under Soli customary law. Both parties worked and earned substantially the same income. Through

75 LC 24 1782/94 (unreported) 76 LC 24 1395/94 (unreported) 77 Case # 204/1/92 (unreported)

34 their joint efforts they purchased a fridge, stove and television. On divorce, the court held that all property belonged to the husband as customary law demanded

Similarly, in the case of Habenga Jaru78 the court held that all property acquired during the subsistence of a Tonga customary union belonged to the husband and husband alone no matter how the wife might have contributed.

The difference in holdings obviously connotes some confusions and uncertainty as to the nature of customary law in the light of changing social and economic conditions.

It is imperative to note, however, that the great majority of local courts do in fact order the share of family property between spouses after divorce whether or not there is evidence of financial contributions to the property on the part of the women. However, some justices are reluctant to make property orders in the absence of evidence of financial contributions on the part of the wife because property orders are still opposed by many as being contrary to customary law. Another local court justice differed with his colleague and said that he found it justifiable to order parties to share matrimonial property in spite of the wife's lack of financial contributions because the wife in such cases had worked for the husband in so many other ways during the marriage.

It appears from the foregoing, that the local courts' attitude has been influenced by English legislation. Where it is clear that property belongs to one of the two spouses, the local courts have ordered that each spouse retain his or her property. Furthermore, cases such as Lillian Mutale and Mutunda v. Phiri where the court ordered compensation by the husband to the wife for her interest in the matrimonial home and the sale of property for proceeds to be shared respectively, are decided along the lines of the Matrimonial Causes Act 2007. These Acts give the court’s jurisdiction to order the sale of property as already alluded the in chapter two.

The inclination towards statutory law by local courts is further illuminated by the fact that local courts are disregarding traditional customary law by making property orders in favour of women on the dissolution of marriage. Not only are they making orders where a wife has made financial contributions but also, as in Wachtel v. Wachtel79 where she contributes in kind.

It is unfortunate that this attempt by the local courts to ameliorate the injustices of the effects of traditional customary law pertaining to women's property rights after divorce is surrounded

78 LC 24 1395/94 (unreported) 79 (1973) 1 ALL ER 82

35 by uncertainty and no authority. As such, the attempt is almost always undermined by the subordinate courts on appeal.

4.2.3 The Magistrates Court

The Magistrate Courts seem to be in complete adherence with traditional customary law. Almost all cases which husbands bring in appeal to the Magistrate courts succeed. The husband in Luciano Lungu v. Maness Tembo appealed to the Magistrate Court on the ground that the decisions of the local court to share the matrimonial home or pay his wife compensation for her interest in the house, was contrary to customary law. The appeal court subsequently reversed the decision of the local court holding that all property belonged to the husband.

Resident Magistrate in charge of the station at the Boma supported the quashing of property orders made by the local court because there was no legal basis for the orders in question. They all alleged to sympathise with the poor position of wives but stated that their duty was to give effect to the law and customary law did not recognise the right of women to property after divorce. Consequently, all local court orders which were heard on appeal were quashed by Magistrate courts.

It was contended that local courts make property orders in favour of wives purely on humanitarian ground and as such when the litigants, their main objection is that there is no legal basis under customary law upon which they were ordered to share matrimonial property after divorce hence they succeed in their appeals.

Occasionally, however, the Magistrates courts order property share when there is conclusive evidence that the wife contributed financially to its purchase. This in itself however is still in contravention of traditional customary law and defeats to whole argument of giving effect to the law.

In view of the Magistrate courts approach to property rights of women after appeal. Consequently, the attempts of the local courts to improve the plight of divorced women in relation to property rights come to nothing in a good number of cases.

It is evident from the foregoing, that within the machinery of administrating customary law, there is disorganization. Whereas family forums apply traditional customary law, the magistrate courts allege to adhere to customary law and yet hypocritically claim to sympathise with the poor positions of wives. Further, they sometimes disregard the very essence of the custom they claim to give effect to by occasionally ordering property shares when there is

36 evidence that the wife contributed financially to its purchase. In the meantime, most local courts are inclined towards statutory legislation in an attempt to ameliorate the injustices and hardships which are likely to ensue from rigid application of customary law. Unfortunately, the justices who make orders in favour of women do so only in humanitarian ground and without legal basis. As there is no legal basis, not all local court justices make favourable property orders and their decisions can thus be said to be whimsical and hence different courts will give varying judgements. Consequently, women in some cases seemed to go from one court to another in an apparent search of favourable decisions on the issues in question.

In Muyunda v. Kaluba.80 for instance, the wife deliberately did not make reference to any property when appearing in the local court where the divorce proceeding was being heard. After the divorce had been granted, she made a property claim in a different local court knowing that the justice in the latter court was in favour of sharing property.

The various courts and family forums clearly have different approaches to questions of family property in relation to women under customary law and whatever the reasons this is unfair to the litigants. It is tantamount to saying not everyone is equal before the law. For example, if two similar cases came up before justices of varying opinions, one woman will have a share in property and the other will have no right at all. The wife in the former case will be placed in a position similar to the woman married under statutory law and the wife in the latter case will be denied all rights in family property and consequently will be subjected to the unfavourable effects of traditional customary law.

It is contended hereto, that the uncertainty and the non-uniformity in the application of contemporary customary law only supplements the already existing inequalities of women married under customary law as compared to their counterparts married under statutory law. The women married under statutory law have a certain and uniformly laid down procedure which one can specifically allude to as authority.

80 LC 737/94 (unreported)

37

4.3 The Ideal Situation: The Existence of a Single Legal System Encompassing Both Customary and Civil Law governing the laws of Marriage and Divorce

In analysing the problems that would be encountered in the introduction of a single legal system, it is imperative that an outline of the ideal situation that would be on the ground be laid out. Such a system would effectively do away with the conflicts outlined in the preceding chapter thus creating a system of law that would be just and take into account the positive aspects of both customary and civil law, leaving out the negative aspects.81

To begin with, the discrimination of women under the customary law would be curbed by the domestication and codification of the provisions of the Convention on the Elimination of All forms of Discrimination Against Women 1970 (CEDAW)82 which states inter alia that state parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure on a basis of equality of men and women the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

The abovementioned provisions would therefore be incorporated into statute in Zambia thus domesticating them. In addition, as regards adultery which is included as a reason for the irretrievable breakdown of marriage under statutory law and is only actionable by the man under customary law, the ideal law would provide for it to be actionable or subject to penal action against men as well thus further enhancing the equality between men and women. This was demanded by the women of Ghana in the Women's Manifesto for Ghana of 200483 where it was stated that while recognizing the validity of polygamous marriages, the government and law enforcement agencies should ensure that the laws against bigamy are properly enforced, that the government should put in place mechanisms that discourage polygamy and encourage monogamy with a view to abolishing polygamy in Ghana in the future and that the existing grounds for divorce under customary law be aligned with those in statute to promote uniformity and equity between men and women. The enactment of such provisions in Zambia would do much to align the customary and civil laws and would contribute much to the existence of a

81 Anyangwe, C (1998) The Whittling Away of the African Indigenous Legal and Judicial System, the Zambia Law Journal, Special Edition, Lusaka, UNZA Press, pp48-49 82 Article 16(1) 83 www.abantu.org: The Coalition on the Woman's Manifesto for Ghana, Combert Impressions, Accra, p38

38 single legal system. Such a situation, would, however have to come into existence as a result of a concerted effort of the women as was the case in Ghana or as a result of the efforts of notable members of society. This would result in the law being recognized as being the will of the people and its legitimacy would result in the increased efficacy of the legislation that would exist under a single legal system.

As regards divorce, the need for the couple to be counselled must be emphasized in accordance with the customary law and the need to identify people who would be better placed to deal with this aspect of divorce.84 Although such a provision already exists in the Matrimonial Causes Act, there is no mechanism in place to ensure that conciliatory efforts have in fact been made. In customary law, divorce involves a series of meetings, discussions and counselling and in the event that reconciliation is found to be impossible the decision to divorce is made.

Most Zambian customs expect all men and women to be married and bear children once they have attained puberty. The women feel this burden more heavily as they are expected to marry much earlier than men and are blamed for the breakdown of the marriage and the absence of children in such marriage

4.4 Problems that may be encountered in the Implementation of a Single Indigenous Piece of Legislation

The implementation of a single system of legislation may be faced with many hurdles that may be difficult to surmount. Most prominent among are the problems related to culture and practices that have long been held to be an important aspect of the local customs that doing away with them would be seen to be a taboo.

Some customs have long been seen to be a fundamental part of the local traditions of Africans. This is true of the practice of bride wealth. It follows that to propose to remove such a practice would be seen as a deliberate move to undermine the traditions and values of Africans and the suggestion that it is a discriminatory practice against women may be seen as a direct insult to the traditional authorities. The same is true in the case of consent for the bride as the suggestion for the removal of parental consent in her case may be seen as insubordination on the part of the women as most traditional African cultures view the man as the head of the household who must therefore have authority and the last word over what happens in it. This is in line with the

84 Law Development Commission (2004) Paper prepared as a follow-up to the Submissions Received at the Internal Workshop attended by a Committee of Experts on the Enactment of a Local Matrimonial Causes Act for Zambia, August

39 traditional saying that "a woman should be seen and not heard". The woman is therefore not expected to take part in the decision making processes but should be cared for by the man. The loss of identity of the local populace may also be associated with such an action. This is because the culture of the people is so deeply rooted that to ask them to give up certain practices would be similar to the action of uprooting a tree.

Another problem that would be faced in introducing such legislation would be the sensitization and socialization of the local populace to a point at which they would recognize or realize that the traditions they had been practicing for so long were detrimental to the positive growth and development to a modern society. Making people in the rural areas understand that customs such as the marriage of girls because they had attained the age of puberty which have been practiced since time immemorial are against the girl child's right to education and have led to an increase in the poverty rates in Zambia and should no longer be practiced would be a major stumbling block. Although law is an instrument of social change, the resistance of the people to such measures would be a major factor in its implementation. The main difficulty in this instance would therefore be in trying to educate the rural society on the importance of an equitable society that is not entirely male-dominated. This could be overcome by enforcement measures to ensure conformity with the law and thus ensure social change.

As mentioned above, certain changes to the legislation can only made if the affected parties come together as one voice as was the case in Ghana or notable persons in society such as non- governmental organizations and other members of civil society speak out against the violations of the above mentioned rights and discriminations. Because of certain customary teachings and the fear of being chastised, independent research by Women and Law in Southern Africa has shown that most women would prefer not to speak out against such discriminatory practices. One such case is the introduction of sanctions for the adultery of men in marriages as most women feel that if sanctions such as arrest are implemented they will be without a breadwinner and so prefer to suffer in silence in order to avoid poverty. This therefore in itself shows one of the negative effects of customary law on the women as they cannot provide for themselves mostly due to early marriages which reduce them to a position of poverty in the absence of their husbands. This is therefore another difficulty that would be faced in the implementation of a single piece of legislation as the affected persons are afraid to speak out for themselves for fear of losing the main breadwinners of their families which would lead to a drop in their standards of living. It can therefore be concluded that the fear of a life of poverty and poverty itself is one of the difficulties that would face the implementation of such legislation. Although

40 it is not the norm that married women are better placed than their unmarried counterparts, because of the high levels of illiteracy and poverty in Zambia, most women prefer to get married in order that they do not have to be the sole breadwinners and to share costs with their husbands.

As Zambia is a country with diverse peoples that number seventy-three tribes in total, it follows that there are diverse customs as well therefore some conflict may arise as a result of whose customs to incorporate into statute. Thus it follows that a problem may arise in the selection of what customs to incorporate in a statute that incorporated customary law and therefore a careful selection of the positive customs that are universal may be a somewhat tedious operation.

4.5 The Benefits to Zambia of the Introduction of a Single Legal System

What amounts to substantial conformity at the end of the day is purely in the determination of the judge hearing the matter. This in effect takes away the essential characteristics of predictability and certainty in the law and the introduction of a single system of law would therefore ensure these qualities in the law.

Although the Zambian High Court Act states that the jurisdiction of the court in matters of divorce and matrimonial causes shall be exercised in substantial conformity with the law and practice in for the time being in force in England, no mechanism has been put in place to ensure that the said law is readily and easily accessible through inexpensive means to the High Court Judges, legal practitioners and the general public. This means that the ability to enforce the law is largely dependent on individual efforts. This trend cannot be continued because of the lack of access to the necessary materials and it will therefore be beneficial to Zambia to have an indigenous single system of law whose wealth of materials will be readily available within the country.

The integration of the positive aspects of customary law into statutory law is another benefit that could accrue to Zambia if a single legal system of law was adopted as there would be direct representation of the values of the people through codification in statute. An added advantage is the fact that once these values are codified there is a lesser chance of the culture of the people being lost. There may, however be a disadvantage in that certain customs and practices which have long been fundamental to the African marriage and divorce laws and have since become detrimental to the positive growth of society due to the dynamism of society may have to be removed thus resulting in a culture shock. In the same vein, if such customs are codified, the court system in existence can be done away with by which certain cases are relegated to the

41 local courts and can only be heard by higher courts on appeal. This will therefore allow everyone a right to be heard in the higher courts of law.

This removal of certain practices may, however, be somewhat advantageous to the international status of the country as a whole if it is done in line with international instruments that promote human rights such as CEDAW which advocates for the protection of the rights of the woman and the eradication of their discrimination in order to ensure that they are able to access and enjoy their rights in full. This is because it deals with discrimination that is systemic and is an integral and natural part of most societies. This would allow the law on the ground to be in conformity with the international standards of human rights and would raise the minimum standard of human rights for women in the country.

4.6 A Critical Analysts of the Law

The mischief intended to be prevented is the guiding line to find out whether a particular piece of legislation is effective or not. The court in the wachtel Case pointed out 22 curiam that in deciding cases the court can look at reports of a Commission although they are not binding on them they help to show the mischief that parliament intended to prevent. When looking at maintenance in Customary Marriages, literature is abounding to show that divorced women are subjected to a lot of inhuman treatment because of lack of maintenance. It is against such a background that the provision of maintenance in Customary marriages in the Local Courts Act is going to be analysed. The primary objective is to find out whether with the introduction of such legislation, the divorced woman's position in Customary Marriages is any better now than she was under Customary Law. It was noted in Chapter one that Customary Law does not provide for maintenance of a divorced woman. However, Local Courts took it upon themselves to order compensation to divorced women in a form of lump sum payment when the social and economic situations changed. This was contrary to Customary Law and the Subordinate Courts were justified to quash such orders or throw out appeals against non-order of compensation. In the case of Abina phi ri v Colling Banda the plaintiff appealed to the Subordinate Court because the Local court did not order the defendant to pay her compensation. The court held that she was not entitled to it. The orders were the initiative of the Local Court but they lacked legal backing. The first hurdle is the very nature of a Customary Marriage. As already pointed out in Chapter one, a Customary Marriage can either be dissolved in Court or outside Court. In the latter case, the divorced woman is subjected to Customary Law in other words she does not get any maintenance at all according to the Law. In thig cage the woman is not protected by

42 the Law. It appears that the legislators overlooked this fact in their noble work. Further, the law lacks the much helpful guiding details found under the law applicable to marriages. For instance, the statutory marriage law provides that the Court in awarding maintenance should take into account the living standard enjoyed by the family before the breakdown of the marriage. The maintenance law in customary Marriage seems to ignore thig important consideration.

With regards to the Matrimonial Causes Act 2007, this law has played a huge role in the denial of women’s property rights after divorce, the Act does not recognise customary marriages, section 3 of the Act speaks to the aforesaid, this means fair distribution of property after divorce does not apply to customary law. In as much as Zambia has a dual legal system, it must be noted that times have changed and dwelling on old systems that don’t relate to the present environment is not worth it. Zambia is a signatory to the UN Convention on Elimination of Discrimination Against Women and as such, women married under customary law fall within the definition of women as per the convention hence the need to recognise their rights when it comes to property.

From the research conducted for this paper there have been several conclusions. Among them, is that the Marriage Act85 and Matrimonial causes Act86 are inadequate and inefficient due to their insufficient inclusion of local Zambian values and beliefs. In addition, they are inefficient in that they do not promote universal human rights in that they are limited in scope since they deal only with civil law and ignore customary law thus promoting discrimination and ignorance of human rights under the customary law.

4.7 Conclusion

This chapter presented and evaluated the findings invited by the empirical investigation necessitated by the objects of this study. These included systematic findings from both the primary and secondary investigations as prescribed in the methodology detailed in chapter 3.

The next chapter will proceed to draw conclusions on the key findings emanating from the study and further make recommendation for policy consideration.

85 Cap 50 of the Laws of Zambia 86 No. 20 of 2007

43

CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

5.1 Introduction

This chapter is the final chapter of this academic paper. It adduces forth a summary of the whole study which is grounded on the comparison between customary law and statutory law when it comes to women’s property rights. This chapter will present reviews for all the chapters in this academic paper, from chapter one to chapter four. The chapter will then conclude on the evaluation of the law on protection of women’s rights in customary marriages. Appropriate recommendations on the subject matter will follow the conclusion.

5.2 General Conclusion

The foregoing chapters have attempted to show fundamental differences not only between statutory laws and customary laws pertaining to women's property rights after divorce, but also the dissimilar application of customary law itself due to the changing social and economic conditions. These divergences reflect the restricted rights of women to family property after a customary law divorce and consequent hardships, injustices and inequalities imposed upon them.

It has been observed that under traditional customary law, women have no rights after divorce although they may have contributed, either financially or in kind, the purchase of the property or the building or improvement of a house.

In contrast to the customary law position, statutory law demands that each spouse is to be taken as having contributed either financially or in kind, to the purchase of family property or the building or improvement of a house. Further to this presupposition, statutory law provides a uniform and codified procedure to ascertaining property disputes. The procedure goes to the extent of directing the court as to what matters it is to have regard to in deciding how to exercise its power to make property adjustment orders in connection with divorce proceedings and orders for sale of property for the benefit of the weaker spouse.

Amongst the considerations the court is to have regard to are those relating to the standard of living enjoyed by the family before the breakdown of the marriage and the contribution which each of the parties has made or is likely, in the foreseeable future, to make to the welfare of the

44 family, including any contribution by looking after the home or caring for the family. These considerations have been reiterated as they are an important distinguishing factor from customary law which carries with it no express guidelines for determination property rights. The deciding factor merely being the gender of the spouses.

The differences in the two laws were to such an extent that a woman married under customary law was subjected to hardships and injustices which a woman married under the Marriage Act could not equally complain of. As such, we saw the unilateral decision of the local courts to incline themselves towards considerations observed and dictated by statutory law. Some justices began taking into account financial and non-financial contribution of spouses and the conduct of the spouse in an attempt to ameliorate the position which was and is unjustifiably unfavourable to women married under custom.

It was further observed that the practices by some local court justices, alluded to above, was not and is not supported by law and thus is not the practice of all local court justices. It, therefore, is a practice which lacks uniformity as it has no legal backing.

As the local courts practice is merely de facto, their attempts at amelioration are invariably undermined by Magistrates Courts. The appeal courts frustrate local court decision simply by quashing such decisions in favour of women on account of failure of authority. This leads us to the initial contentions that the uncertainty and lack of definition of women's property rights after divorce, together with the practice of the indigenous customary law, inevitably means that the woman married and divorced under customary law is exposed to grave injustices and hardships as compared to the woman married and divorced under statutory law.

5.2.1 Chapter One

Chapter one contained a series unit in which the researcher introduced the research undertaking. In this chapter, the researcher introduced the concept of customary law and where it is enforced in Zambia. The chapter provides a brief historical background of customary law and marriage. This chapter contained the statement of the problem, which postulated the problem which prompted the research. The chapter also outlined research questions under unit five. The questions were used in the main questionnaire to address the statement of the problem and to seek resolve by pursuing how best the problem may be resolved. The chapter further went on to provide for objectives of the study which postulated the main goals that the researcher sought to achieve by the end of this study. Furthermore, under unit six of the chapter, the significance of the study was postulated. The significance of the study is that it attempts to

45 fill in a legal gap by establishing the link between the legal framework that are operative in Zambia.

5.2.2 Chapter Two

In chapter two, the researcher provided a broader view of the laws regulating customary and statutory marriage in Zambia. Much emphasis was also placed on the surrounding circumstances surrounding women married under customary law. In order to achieve this, the researcher looked at a variety of scholarly work from peers, works of prominent researchers, journals, news articles and some other periodic publications. It was also noted that in comparison to statutory marriages, the laws in Zambia exhibit hostility towards customary marriages.

5.2.3 Chapter Three

Chapter three portrayed the data collection method that was used in the study. It was highlighted in this chapter that throughout the study, the researcher employed the qualitative method of research. Thus, the researcher employed the qualitative process in the collection of data. This process involved the researcher collecting data through interviews from persons affiliated with the Ministry of Home Affairs, Registrar of marriages and the Judiciary, which are the main institutions mandated by the law to oversee the regulation of marriages in Zambia. 5.2.4 Chapter Four

Chapter four was the chapter in which the researcher evaluated all the data collected from various sources under the study. This chapter captures the analysis made with the basis of the gathered information in the research paper. The researcher noted that provisions of the Matrimonial Causes Act exhibited hostility towards customary marriages.

5.3 Recommendations

5.3.1 The Reform of the Law of Property After Divorce

It is axiomatic from the attitude of the various courts and family forums administering customary law, that there is need for reform in the area of women's property rights after divorce. Such reform is necessitated not only by the need to put women married under custom in a similar position as those married under the Marriage Act, but also to exercise uniformity in the application and administering of customary law.

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In this respect, it is suggested that the uncertainty, lack of uniformity and lack of authority prevalent in the application of contemporary customary law, be remedied by legislation.

Apart from legislation pertaining to specific items of property to the benefit of a widow, there has been no legislation in Zambia aimed at reforming the customary law governing distribution of property after the dissolution of marriage. This is so despite of the obvious need for such reform.

Legislation would provide authority for the decisions of the local courts, eradicate uncertainty and ensure uniformity. It is recommended that the legislation to be enacted take one of two forms: Firstly, an integration of statutory and customary law so that only one single statute governs all property disputes arising from divorce, whether statutory or customary; secondly, maintenance of the duality by having two statutes governing disputes pertaining to property rights after divorce that is, one for statutory marriages and the other for customary marriages.

5.3.2 Integration of Statutory and Customary Laws

To opt for an integration of statutory and customary law in one codified statute invariably means compromising the very essence of customary law. This is so because the outcry of the woman married under customary law is to be at par with those married under statutory law. In order to achieve such equality, the same demands and considerations taken into account when determining property rights after divorce of a statutory marriage would need to be taken into account when ascertaining property rights on the dissolution of customary marriage. If the same considerations are to be taken into account, there would be no need to distinguish between the two types of marriages. In essence, the spouses of a customary union would no longer be subjected to customary law pertaining to property rights.

Alternatively, it may be argued that individuals have a choice between customary marriage and statutory marriage. That one may deliberately choose to be subjected to customary law and hence to integrate and the laws into one statute which merely gives effect to English law would be tantamount to forcing people to give up their customs. To avoid such an argument, it is recommended that the legislation to be enacted should merely apply to customary law and should be aimed at avoiding the complete denial of women's rights after divorce.

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5.3.3 Separate Legislation

Here, the duality of laws will be maintained although customary law will have to forfeit its rigidity in completely denying women's rights after divorce.

The enactments governing statutory law will remain as they are whereas customary law will be given effect in a unified codified legislation. The enactment should categorise property into two: That intended for common use and consumption in the matrimonial home, and that intended for personal use and enjoyment. Whether property was intended for common use and consumption or personal use, will be a question of fact to be determined by available evidence.

Once the court has decided that property was intended for common use and enjoyment, such property would be subject to traditional customary law, hence will belong to the male spouse. The rationale for allowing this property to be subject to customary law is twofold. Firstly, customary law envisages the husband as the custodian of property to administer for the benefit of the whole family. If property was acquired for the common use and enjoyment of the family at large, it only follows that such property be retained by the custodian. Secondly, the mere fact that legislation will authoritatively support a form of rigidity to the application of customary law vis-a-vis a category of property, will appease the great majority who feel that we must hold on to custom and tradition. That those who wish to forfeit customary law in its entirety should marry under the Marriage Act.

If, however, property is found to have been acquired for the personal use of either spouse then regardless of whom acquired it, the court is to order such property as being that of the spouse for whose personal use and benefit it was intended.

This method not only ensures some form of amelioration to the hardships of rigid adherence to traditional customary law but also maintains the respect and continuity of customs by restricting women's property rights after divorce.

Furthermore, it provides a guideline on the application of an ever changing customary law to ensure certainty, uniformity and a basis for the authority of court decisions.

In the meantime, however, until legislative reforms materialize, much of the development of customary law to the benefit of women depends upon the courts.

In this respect, the courts must be mobilized and come to an agreement as to how best to approach the plight of the divorced woman under customary law. The courts should take a

48 unified stance in the development of a customary which takes into account the interests of all parties and which is in pace with social and economic changes taking place in society; a dynamic and not static customary law. As Lord Denning said in his book The changing law,

“law is often uncertain and it is continually being changed, as perhaps I should say developed, by the judges. In theory, the judges do not make law. They only expand it. But as no one knows what the law is until judges expand it, it follows that they make it.”

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APPENDIX A: QUESTIONNAIRE

PERSONAL DETAILS

1. Organization: …………………………………………………………………. 2. Management Level: a. Top Management b. Middle Management c. Lower Management

3. Qualification Attained: a. Professional certificate b. Professional diploma c. Bachelor degree d. MBA e) Others: ……………………………………….

This research comprises 6 questions. This will allow the researcher to obtain a clearer perspective on the questions asked.

1. Are You Aware of the Laws regulating marriages in Zambia? YES/NO

2. Do you know the institutions/courts that enforce both customary and statutory marriages?

YES/NO

3. Part VIII of the Matrimonial Causes Act which provides for dissolution of marriages in Zambia does not include customary law, does this omission contribute to the escalation of denial of women’s rights?

YES/NO

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4. Do you think customary law should be included in the statutory books of Zambia?

YES/NO

Give a reason for your answer above

………………………………………………………………………………………… ………………………………………………………………………………………… …………………………………………………………………………………………

5. How would you compare the law when it comes to protection of women’s rights after divorce in customary marriages and statutory marriages in Zambia?

………………………………………………………………………………………… ………………………………………………………………………………………… …………………………………………………………………………………………

…………………………………………………………………………………………

6. Are the traditional principles in customary law in Zambia fair enough when it comes to division of property after divorce?

YES/NO

Give a reason for your answer above

………………………………………………………………………………………… ………………………………………………………………………………………… ………………………………………………………………………………………… …………………………………………………………………………………………

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