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Statutory and Customary Law in Zambia by Chilufy

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Statutory and Customary Law in Zambia by Chilufy 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 i 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. ii 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 iii 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. iv 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. v 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 vi 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 vii 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 viii 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 ix 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
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