By Sue Njanji Matetakufa
HARARE — More than six months after Zimbabwe's Supreme Court shocked equal rights campaigners worldwide by relegating African women to the status of "junior males" within the family, many Zimbabweans are worried about the ruling's long-term impact, particularly on women's reproductive and other rights.
Last May, 58-year-old seamstress Venia Magaya sought justice after a half-brother evicted her from their dead father's property that she had inherited. The all-male panel of judges unanimously ruled against her, declaring that African women who marry under customary law leave their original families behind and therefore cannot inherit.
Outraged, women activists and their allies took to the streets of the capital. "It is our view that ... the Supreme Court has set a very retrogressive precedent, greatly undermining women's rights in this country, and challenging the authority of Parliament", a coalition of rights organisations said in a petition delivered to the court and parliament.
The petition provoked an angry response from the court, which sent a written reprimand to seven Zimbabwe women's organisations for indulging in "gratuitous and unfounded insults to the judiciary" and warned that future protests "will be dealt with under the laws of contempt of court".
Magaya v Magaya also controversially reinterpreted the 1980 Legal Age of Majority Act (LAMA), which guarantees women's equality with men. The judges declared that the LAMA does not supersede traditional laws relating to matters of property, inheritance, child custody, marriage or divorce, all of which favour men. Admitting that he "consciously rewrote the law", Justice Gibson Muchechetere argued that previous judges had given women "rights they never had under customary law".
"It is a frightening judgment", said Rita Makarau, Magaya's defence lawyer. "By the stroke of a pen, all the gains and strides made since 1980 [when Zimbabwe became independent] are gone — completely."
"There is an element of backlash", says Rudo Kwaramba, director of the Harare-based women's group, the Musasa Project, and a signatory to the petition to the Supreme Court. "People are saying ... 'we want to hold on to our culture', but it's not culture. It's the power that comes with culture that they feel they are losing", she says.
Kwaramba worries that the Magaya ruling will have a profound impact on women's reproductive rights, especially women whose husbands have paid lobola (bride price): "What is really being paid for is her reproductive capacity, which now belongs to the husband". Many rights campaigners believe lobola enables a husband to acquire rights, including sexual rights, over his wife.
Lawyer Andrew Makoni agrees that many men will use the decision "to oppress women. Most women will no longer decide how many children they want to have or which contraceptive to use."
Society for Women and AIDS in Africa president Eka Esu-Williams also fears the Magaya ruling, saying "What chance is there to overcome HIV/AIDS if such a narrow-minded institutional endorsement of women's subjugation by Zimbabwe's highest court is allowed to stand?".
The decision is a blow to the thousands of women who fought alongside men in Zimbabwe's war against colonial and white-minority rule a generation ago. "It is devastating to women who fought endlessly in the liberation struggle for land and property", says law professor Julie Stewart.
Activists are hopeful that an officially convened Constitutional Committee, mandated to promote "good governance and the rule of law" and scheduled to conclude public hearings with a report to the president in November, will consider a clause in the new constitution which totally outlaws discrimination. The constitutions of several African countries, including Ethiopia, Ghana and Uganda, have added specific provisions banning discrimination based on customary law.
Meanwhile, Venia Magaya is now nearly destitute, living in a one-room wooden shack after her eviction from the house she inherited. Her half-brother, who owns another house, has since sold off their father's house to buy a car.
[Abridged from PANOS, October 27.]