What is this ? masquarading as "African cullture".
Ladies and gentlemen, in the whole of Southern
Africa, women, black and white, are/were
minors. Except that white women in South Africa
were some of the fist ones in the world to be allowed
to vote, simply to boost the white settler colonist's
voting numbers.
I hope our irrational 'Ugandan cultural nationalists'
are not taking us back to this kind of barbarism.
In the article below just substitute Ganda for Shona
and you will see what I mean.
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Last Updated: Wednesday, 18 December 2002
Magaya vs Magaya: custom gone awry
By Ropafadzo Mapimhidze
AT 50, unmarried and bread-winner for her parents and siblings, Venia
Magaya seemed an obvious heiress to her parents’ estate. After all she was
the first born child of the first wife in a polygamous set-up.
The available inheritance, in the event of her parents passing away, was a
house in Mabvuku, Harare, acquired using the parents’ marriage certificate.
But when tragedy struck and her parents died, Venia found herself in an
unforeseen adversity. Despite having been appointed heiress to the estate
by the lower community court, that decision was reserved by the
magistrates’ court.
The latter’s finding was confirmed by the highest court in the land, the
Supreme Court, on appeal.
Venia’s second eldest half-brother from his father’s second marriage,
Nakayi, was appointed heir to the estate and had hurriedly sold the house
even before the Supreme Court had made its determination.
A year later, after having failed to find solace in the legal system, Venia died
a destitute. It was said that her death was a result of chronic depression
probably caused by her ordeal.
Venia’s case is just a tip of the iceberg of various trials and tribulations
suffered by Zimbabwean women in a system that claims to impartially
represent their interests.
When Zimbabwe gained its independence in 1980, it took a pro-active
approach on women’s problems and freedoms.
Since then, numerous laws have been enacted to improve the status of
women, one of them being the Legal Age of Majority Act (Lama), introduced
in 1985, which guarantees majority status for all Zimbabweans, regardless
of gender, upon reaching the age of 18.
This law was supposed to greatly improve the status of Zimbabwean
women. And before its enactment, women were considered minors and
needed consent from a guardian even before entering into a marriage.
In yet another effort towards equality for women, Zimbabwe ratified some
international conventions on women’s rights that include the Convention on
Elimination of All Forms of Discrimination Against Women (CEDAW), the
United Nations Universal Declaration on Human Rights and the African
Charter on Human and People’s Rights.
However, despite all these efforts, the Government’s support for women’s
rights can best be described as half-hearted because African Customary
Law has continued to gain precedence over the Constitution.
In Venia’s case, the Supreme Court ruled against women’s inheritance
rights.
Venia Magaya was the daughter, the eldest child of the late Lennon
Magaya’s first wife Emma Magaya (nee Nyika), who was also deceased,
and automatically qualified as the heir to her parents’ estate.
But instead Nakayi, her younger half-brother, inherited the estate by virtue of
being a man.
This case marked a sad turn for women’s rights in the country. It was a
typical example of a custom gone awry.
By a stroke of a pen, all the gains and strides that had been made since
1980 were gone.
The Supreme Court ruling declared that African women, who married under
Customary Law, could not inherit because they left their original families
behind upon getting married.
The learned judges of appeal found that women’s inability to inherit at
customary law was partly due to the fact that women were considered to be
perpetual minors.
The judges declared that Lama did not supersede traditional laws relating to
matters of property, inheritance, child custody, marriage or divorce and yet
all these favoured men.
This decision was a major blow to thousands of women who fought
alongside men during the war of liberation against white minority rule. The
ruling also had a devastating effect on many women; particularly women’s
rights activists who had worked tirelessly to ensure equality for men and
women.
Justice Gibson Muchechetere had admitted, in the Supreme Court finding,
that he "cautiously wrote the law’’ noting that women had previously been
given "rights they never had under customary law."
On May 13 1999, for the first time in the history of the Zimbabwean
judiciary, women from all walks of life gathered in protest against the ruling
and marched to the appeal court.
They did this to express their displeasure with the now infamous ruling of
the court in the case of Magaya versus Magaya and to show their support
for Venia Magaya.
Venia had appealed to the court against a magistrate’s ruling awarding the
estate to her half-brother Nakayi, second son born to Lennon Magaya’s
second wife Jessie.
At the centre of dispute was the municipal house in Mabvuku high-density
suburb.
The late Lennon Magaya, on the strength of a marriage certificate issued
upon marriage to Venia’s mother, had acquired the house.
In terms of the law, as it was a house that had been acquired on a rent to
buy scheme, the house would be transferred to whoever was appointed heir
to the deceased’s estate.
Prior to the hearing at the magistrates’ court, the community court in Harare
had appointed Venia heiress to her father’s estate.
But Nakayi, together with other male members of the family who included
Venia’s paternal uncles and Nakayi’s half-brothers, objected to the
appointment of a woman as heiress ahead of the deceased’s sons. The
matter was then brought to the magistrates’ court, which set aside Venia’s
appointment as heiress and instead nominated Nakayi.
It has been implied that Nakayi’s quest to inherit the house in Mabvuku had
nothing to do with discharging any customary obligations of care and
support.
They were all to do with self-enrichment and perhaps settling an unidentified
score.
According to the Women and Law in Southern Africa Research Trust
(WLSA) — which has since launched a book on the subject — Nakayi
prevailed upon the uncles and brothers to support his bid for heirship to the
estate, with promises of future bounty to be shared.
"Thus, there were no illusions on the part of all concerned about the
Nakayi’s true intention. His appointment as heir was to be a means to an
end, which was acquisition of the house, eviction of Venia and her mother,
sale of the house and application of the proceeds towards purposes that had
nothing to do with taking up any customary obligations of support," said the
report.
Nakayi lost no time in selling the house. He did so before the Supreme
Court finding.
"He was not deterred by the fact that legally he should not have sold the
property while the case was still subjudice because of the pending appeal.
"Indeed, so determined was Nakayi to sell the house that he went to the
extent of seeking eviction orders.
"Nor was Venia the only person he betrayed. The uncles and brothers who
had stood by him in expectation of sharing the bounty in the end got
nothing,’’ it was stated in the report.
Despite having apparently been brought up by Venia’s mother, Nakayi
evicted Venia from the house he knew had been acquired on the strength of
a marriage certificate of Venia’s mother and his father.
While the Magaya judgement might have shaken women out of their false
sense of security, was it really wrong for women to put their faith and trust in
the judicial system and the men who largely dominate it in the hope that
perhaps justice would prevail?
Or is that the story of women’s lives?
Venia Magaya died shortly after the judgement probably as a result of
depression, a broken heart and distress caused by the case. Hers was a
battle bravely fought but lost.
Her death should not be in vain for sooner or later there would be another
demonstration of gender insensitivity.
Venia was an unsung hero in the true sense of the word and the legacy she
has left for the women’s movements after putting herself forward and losing
her case.
"Women should not rest on their laurels and expect to have all their
problems solved through legislation and the courts."
The Magaya family story served to dispel a number of various myths.
The first myth is that daughters generally move out of the family upon
marriage and do not support their natal families and are, therefore, not
eligible to inherit from their father’s estates.
The second myth is that sons remain within the family, support their parents
and are, therefore, the logical choice to inherit the estate and care for their
remnant families.
By her conduct, Venia dispelled the myth relating to the unsuitability of
daughters to inherit.
Venia was over 50 years old and despite her two attempts at marriage, she
consistently looked after her parents to the extent that they dissuaded her
from acquiring and setting up her own home in Chirambahuyo in Seke.
Previous research by various non-governmental organisations have proved
that women actually continued to fend for their parents irrespective of their
place of residence, thus exposing the myth and notion that only boys will
take care of their parents in old age.
Venia started the battle, she might not have won it on paper but she
managed to expose a system that only does lip service to women’s rights.
May her soul rest in peace.
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"Ivinicus factus sum veritabem diceus." ( I have become an enemy for speaking the truth ) St Paul!
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Mitayo Potosi
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