ARTICLES

Marriage under African customary law in the face of the Bill of Rights and international human rights standards in Malawi

Lea Mwambene

Lecturer, Faculty of Law, University of the Western Cape, South Africa

SUMMARY

Contracting a marriage under African customary law in Malawi poses difficulties and challenges in the light of the Bill of Rights and international human rights standards. There are bound to be conflicts which, seen from a human rights perspective, amount to violations of women's human rights. The article explores the nature of the conflict between human rights and a plethora of principles, rules and practices pertaining to marriage under African customary law in Malawi. The article also shows strong support from both men and women for cultural practices that conflict with women's human rights. It is therefore argued that efforts to eradicate these cultural practices, however well-intended, must be undertaken with a very high level of cultural sensitivity. It is suggested that, instead of a formal approach to the realisation of human rights, a substantive approach which is inclusive of the reasons behind the support for cultural beliefs and values, be adopted in order to address those aspects of a particular cultural practice that violate human rights.

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* LLB (Hons) (Malawi), LLM LLD (Western Cape); lmwambene@uwc.ac.za
1 J de Waal et al The Bill of Rights handbook (2005) 232 have defined formal equality as 'sameness of treatment'. The law must treat individuals in the same manner regardless of their circumstances. In other words, formal equality supports the view that a person's individual physical or personal characteristics should be viewed as irrelevant in determining whether they have a right to some social benefit or gain. On the other hand, substantive equality requires the law to ensure that there is equality of outcome. It is partially based on a redistributive justice model which suggests that measures have to be taken to rectify past discrimination, because to fail to do so would leave people and groups at different starting points.
2 Matrilineal customary marriage refers to all customary marriages that trace their descent line through female relatives.
3 Patrilineal customary marriage refers to all customary marriages that trace their descent line through male relatives.
4 Sec 4 provides that '[t]he Constitution shall bind all executive, legislative and judicial organs of the state at all levels of government and all the peoples of Malawi are entitled to equal protection of this Constitution, and laws made under it'.
5 CEDAW was adopted on 18 December 1979 and entered into force on 3 September 1981.
6 An example would be sec 20 of the Malawian Constitution on the right to equality.
7 Sec 11(2)(c) of the Malawian Constitution provides that '[i]n interpreting the provisions of this Constitution a court of law shall ...where applicable, have regard to current norms of public international law and comparable foreign case law'.
8 Section 211(2) of the Constitution provides that '[international agreements entered into before the commencement of this Constitution and binding on the Republic shall form part of the law of the Republic, unless Parliament subsequently provides otherwise or the agreement otherwise lapses'.
9 Ratified by Malawi in 1993; GA Resolution 2200A(xxi) 21UNGAOR Suppl (No 16) 52, UN Doc A/6316 (1966), 999 UNTS 171, entered into force on 23 March 1976.
10 Ratified by Malawi in 1991.
11 Ratified by Malawi in 1993; GA Resolution 2200A(xxi) 21UNGAOR Suppl (No 16) 49, UN Doc A/6316 (1966), 993 UNTS 3, entered into force on 3 January 1976.
12 Ratified by Malawi in 1987.
13 Ratified by Malawi in 1989. The African Charter was adopted on 27 June 1981 and entered into force on 21 October 1986.
14 The Universal Declaration was adopted by UN General Assembly Resolution on 10 December 1948.
15 Art 15(1)(a) of ICESCR provides: 'The State Parties to the present Covenant recognise the right of everyone (a) to take part in a cultural life.'
16 Art 27 of ICCPR provides: 'In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.'
17 See the case of R v Chakufwa Chihana SCA Criminal Appeal 9 of 1993, as cited by S White et al Dispossessing the widow: Gender-based violence in Malawi (2002) 32. See also TT Hansen 'Implementation of international human rights standards through the national courts in Malawi' (2002) 46 Journal of African Law 31 37, who noted that the SCA considered the Universal Declaration as part of the law of Malawi.
18 As above.
19 Miscellaneous Civil Case 10 of 1993 (unreported).
20 Miscellaneous Civil Case 6 of 1993 (unreported).
21 Hansen (n 17 above) 37-38.
22 See eg art 17 of the African Charter.
23 JR Levesque Culture and family violence: Fostering change through human rights law (2001) 95-96.
24 R Cook 'State accountability under the Convention on the Elimination of all Forms of Discrimination Against Women' in R Cook (ed) Human rights of women: National and international perspectives (1994) 234-235.
25 Levesque (n 23 above ) 96.
26 The UN Charter was adopted on 26 June 1945.
27 Levesque (n 23 above) 96.
28 Commenting on arts 16(1)(a) and (b), the CEDAW Committee (established under art 17 of CEDAW to oversee the implementation of its provisions) in its General Recommendation 21 said this: 'While most countries report that national constitutions and laws comply with the Convention, custom, tradition and failure to enforce these laws in reality contravenes the Convention. A woman's right to choose a spouse and enter freely into marriage is central to her life and to her dignity and equality as a human being. An examination of states parties' reports discloses that there are countries which, on the basis of custom, religious beliefs or the ethnic origins of particular groups of people, permit forced marriages or remarriages. Other countries allow a woman's marriage to be arranged for payment or preferment and in others women's poverty forces them to marry foreign nationals for financial security. Subject to reasonable restrictions based for example on a woman's youth or consanguinity with her partner, a woman's right to choose when, if, and whom she will marry must be protected and enforced at law.'
29 See art 24(3) of CRC which provides: 'State parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.'
30 UN General Assembly, 48th session, Official Records, GA Resolution 4, Agenda item 11, A/RES/48/104 1994.
31 Cultural relativism promotes the belief that human rights vary from one culture to another.
32 Art 21 of the African Children's Charter provides: 'State parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular: (a) those customs and practices prejudicial to the health or life of the child; and (b) those customs and practices discriminatory to the child on the grounds of sex or other status.' The Children's Charter was adopted on 11 July 1990 and entered into force on 29 November 1999. Malawi ratified the Charter on 10 September 1999.
33 The Protocol was adopted on 11 July 2003 and entered into force on 25 November 2005. Malawi ratified it on 20 May 2005.
34 See Preamble to the Protocol.
35 Art 5 of the Protocol.
36 J Nyirenda et al A comparative analysis of the human rights chapter under the Malawi Constitution in an international perspective (undated) xxiii.
37 See C Himonga 'Implementing the rights of child in African legal systems: The Mthembu journey in search of justice' (2001) 9 International Children's Journal 89.
38 Himonga (n 37 above) 94.
39 See, eg, F Kaganas & C Murray 'The contest between culture and gender equality under South Africa's interim Constitution' (1994) 21 journal of Law and Society 427-428; L Fishbayn 'Litigating the right to culture: Family law in the new South Africa' cited in E Grant 'Human rights, cultural diversity and customary law in South Africa' (2006) 50 journal of African Law 2; TR Nhlapo 'The African family and women's rights: Friends or foes? (1991) Acta juridica 135; V Broinstein 'Reconceptualising customary law debate in South Africa' (1998) 14 South African journal on Human Rights 388.
40 L Mwambene 'Reconciling African customary law with women's rights in Malawi: The proposed Marriage, Divorce and Family Relations Bill' (2007) 1 Malawi Law Journal 113.
41 Sec 5 of the Malawian Constitution provides that 'any act of government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid'.
42 B Ibhawoh 'Between culture and constitution: Evaluating the cultural legitimacy of human rights in the African state' (2000) 22 Human Rights Quarterly 838 847. Similar provisions of constitutional supremacy exist in the constitutions of other African countries. See eg sec 26(1) of the Constitution of Ghana; sec 37 of the Ugandan Constitution.
43 This position is similar to that in South Africa. Sec 2 of the Constitution of the Republic of South Africa, 1996 provides: 'This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid and obligations imposed by it must be fulfilled.' Commenting on sec 2 of the South African Constitution, as read with sec 39, C Rautenbach 'Some comments on the status of customary law in relation to the Bill of Rights' (2003) 1 Stellenbosch Law Review 107 observed that 'the wording of these provisions is to the effect that the application of customary law is subjected to the provisions of the Bill of Rights and the Constitution'.
44 DM Chirwa 'Upholding the sanctity of rights: A principled approach to limitations and derogations under the Malawian Constitution' (2007) 1 Malawi Law Journal 11.
45 Sec 44(2) of the Malawian Constitution provides: 'Without prejudice to subsection (1), no restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognised by international human rights standards and necessary in an open and democratic society.'
46 Chirwa (n 44 above) 18.
47 P Sieghardt The international law of human rights (1983) 92.
48 In Friday A Jumbe & Humphrey C Mvula v Attorney-General Constitutional Case 1 & 2 of 2005 (unreported), as observed by Chirwa (n 44 above) 19, '[i]t was held that it was not enough for the state to argue in general that the reverse onus created by the Corrupt Practices Act was reasonable and necessary in an open and democratic society. The state was under the obligation to demonstrate with empirical evidence that such provision would lead to a reduction or curbing of corruption.'
49 Sieghardt (n 47 above) 93.
50 According to sec 48(2) of the Constitution, an 'Act of Parliament shall have primacy over other forms of law but shall be subject to the Constitution'.
51 Mwambene (n 40 above) 114.
52 M Chigawa Customary law and social development: De jure marriages vis-à-vis de facto marriages at customary law in Malawi (1987).
53 Generally, customary law requires that the intending spouses must be of marriageable age and that they should be in a good state of mind. For a detailed discussion, see C Himonga Family and succession laws in Zambia (1995) 75. The same issues are equally important in Malawi. It should be noted that Malawi is not a homogeneous country. It consists of different tribes whose origins go back to a historical ancestor or ancestress. Generally, for purposes of customary family laws, these tribes are divided into two categories: matrilineal and patrilineal. The matrilineal tribes are mostly found in 20 districts of the central and southern regions, namely, Dedza, Dowa, Kasungu, Lilongwe, Mchinji, Nkhotakota, Ntheu, Ntchisi, Salima, Blantyre, Chiradzulu, Machinga, Mangochi, Mulanje, Mwanza, Thyolo, Zomba, Balaka and Phalombe. The patrilineal tribes are mostly to be found in all of the six districts that are in the northern region and Chikwawa and Nsanje districts in the southern region.
54 This position has to be contrasted to civil law where they have a fixed age as to when one can marry.
55 See, eg, JO Ibik Restatement of African law: Malawi Vol 1, The law of marriage and divorce (1970); Chigawa (n 52 above); DS Koyana et al Customary marriage systems in Malawi and South Africa (2007); JC Bekker Seymour's customary law in Southern Africa (1989); White (n 17 above) 56.
56 N Ngwira Women's property and inheritance rights and the land reform process in Malawi (2003) 6. See also P Ntata & C Sinoya Customary law and the UN conventions on women and children (unpublished) (1999) 14.
57 F von Benda-Beckmann Legal pluralism in Malawi: Historical developments 1858-1970 and ermerging issues (2007) 89.
58 KM Phiri 'Some changes in the matrilineal family system among the Chewa of Malawi since the nineteenth century' (1983) 24 Journal of African History 257 258.
59 Similarly, in Tanzania's matrilineal societies, as noted by F Butegwa 'Using the African Charter on Human and Peoples' Rights to secure women's access to land in Africa' in Cook (n 24 above) 497, property is inherited through the wife's lineage.
60 This position is contrasted to Tanzania's matrilineal societies where, as noted by Butegwa (n 59 above), women do not have effective control or ownership of the family land.
61 The word 'belong' is used to mean that rights and obligations toward the children in a matrilineal society accrue to the woman.
62 E Mandala 'Capitalism, kinship and gender in the lower Tchiri (Shire) Valley of Malawi, 1860-1960: An alternative theoretical framework' (1984) 13 African Economic History 137 139. See also Phiri (n 58 above) 258-259.
63 Von Benda-Beckman (n 57 above).
64 Ngwira (n 56 above) 6; Phiri (n 58 above) 262.
65 This will be discussed later when examining how it conflicts with the Bill of Rights.
66 Ngwira (n 56 above) 6. See also A Armstrong et al 'Towards a cultural understanding of the interplay between children's and women's rights: An Eastern and Southern African perspective' (1995) The International Journal of Children's Rights 345.
67 Ibik (n 55 above) 79. See also Armstrong et al (n 66 above) 355.
68 Ngwira (n 56 above) 7.
69 White (n 17 above) 56.
70 JO Ibik 'The law of marriage in Nyasaland' unpublished PhD thesis, University of London, 1966 524, as cited by Von Benda-Beckmann (n 57 above) 86. See also the discussion by Armstrong (n 66 above) 362.
71 Ibik (n 70 above).
72 See discussion below.
73 See sec 11(b) of the Marriage Act, chr 25:01. See also sec 24 of the South African Marriage Act 25 of 1961.
74 TW Bennett Human rights and African customary law under the South African Constitution (1995) 113.
75 Bekker (n 55 above) 96.
76 See, eg, art 16(1) of the Universal Declaration. It provides that 'men and women ... have a right to marry and found a family'; arts 17 & 23 of ICCPR; art 10 of ICESCR; art 16 of CEDAW; arts 18, 27 & 29 of the African Charter.
77 Sec 22(4) of the Malawian Constitution is similar to art 16(1)(b) of CEDAW that states that 'women should also enjoy the right to freely choose and enter into marriage only with their free and full consent'.
78 It should be noted that 'guardian' is used interchangeably with the parents of the woman intending to marry under customary laws.
79 See sec 19 of the Malawian Constitution.
80 Ntata & Sinoya (n 56 above) 15.
81 As above.
82 This word is used in matrilineal systems.
83 This word is used in patrilineal systems.
84 This word is used in matrilineal systems.
85 This word is used in patrilineal systems and literally means 'taken by'.
86 Ntata & Sinoya (n 56 above) 14.
87 See also art 1 of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1962, GA Res 1763A (XVIII) of 7 November 1962.
88 F Banda Women, law and human rights: An African perspective (2005) 116.
89 See, eg, CEDAW General Recommendation 21 para 21; art 6(c) of the African Women's Protocol.
90 T Nhlapo 'African family law under an undecided constitution: The challenge for law reform in South Africa' in J Eekelaar & T Nhlapo (eds) The changing family: Family forms and family law (1998) 629, as cited by Banda (n 88 above) 116.
91 Nhlapo (n 90 above).
92 See Mphumeya v Republic, as cited by GS Kamchedzera 'Malawi: Improving family welfare' (1993-1994) 32 Journal of Family Law 372. As noted by Bekker (n 54 above) 126, this is also similar to the patrilineal customary marriage in South Africa.
93 Ibik (n 55 above) 191.
94 See Msowoya v Milanzi Civil Appeal Case 99 of 1979, NTAC (unreported).
95 Kamchedzera (n 92 above) 374.
96 MHRC Cultural practices and their impact on the enjoyment of human rights, particularly women and children (2005) 18.
97 The study covered 10 of the 27 administrative districts in Malawi.
98 WLSA Malawi & SARDC WIDSAA Beyond inequalities 2005: Women in Malawi (2005) 19-20.
99 The Centre for Reproductive Law and Policy and FIDA-(K) Women of the world: Laws and policies affecting their reproductive lives - Anglophone Africa as cited by EM Kisaakye 'Women, culture and human rights: Female genital mutilation, polygamy and bride price' in B Wolfgang et al (eds) Human rights of women: International instruments and African experiences (2002) 277.
100 P Govender The status of women married in terms of African customary law: A study of women's experiences in the Eastern Cape and Western Cape Provinces (2000) 32.
101 This finding has to be contrasted with the Malawi Law Commission's Report on the Review of Marriage and Divorce Laws in Malawi (2005) 29 which found, during the regional consultations, that 95% of the respondents cited more disadvantages than advantages of polygamy and had voiced strong support for it to be abolished. The study by the Malawi Law Commission could be compared to the study by Govender (n 100 as above) in South Africa, which shows that the predominant view (75%), reflected by most interviews, was for the abolition of polygamy.
102 Wolfgang et al (n 99 above) 279.
103 Malawi Law Commission (n 101 above).
104 This position is also similar to sec 9(3) of the South African Constitution, 1996. It should, however, be noted that other constitutional provisions, eg, sec 13(5) of the Constitution of Tanzania, as noted by Banda (n 88 above) 35, do not include sex as one of the grounds on which discrimination is prohibited in their non-discrimination clause.
105 Eg, arts 2 & 7 of the Universal Declaration; arts 2, 2(1), 3 & 20 of ICCPR; arts 2, 2(2) and 3 of ICESCR; art 1 of CEDAW; and arts 2, 19 & 28 of the African Charter.
106 See also CRM Dlamini The ultimate recognition of the customary marriage in South Africa (1999) 32.
107 Wolfgang et al (n 99 above) 279.
108 Malawi Law Commission (n 101 above) 29: See also Wolfgang et al (n 99 above) 279.
109 F Kaganas & C Murray 'Law, women and the family: The question of polygyny in a new South Africa' (1991) Acta Juridica 126.
110 J Goody The Oriental, the ancient and the primitive: Systems of marriage and the family in the pre-industrial societies of Eurasia (1990) 140, as cited by Kaganas & Murray (n 109 above) 127.
111 Chigawa (n 52 above) 5.
112 LL Mofokeng 'The lobola agreement as the silent prerequisite for the validity of a customary marriage in terms of the Recognition of Customary Marriage Act' (2005) 68 Journal of Contemporary Roman-Dutch Law 278.
113 Govender (n 100 above) 29.
114 CRM Dlamini 'The modern legal significance of ilobolo in Zulu society' (1984) De jure 149, as cited in Mofokeng (n 112 above) 279.
115 See the criticisms by White (n 17 above) 53.
116 See Bekker (n 55 above) 151 and Banda (n 88 above) 108.
117 Mofokeng (n 112 above) 282.
118 Koyana et al (n 55 above) 32.
119 As above.
120 White (n 17 above) 53.
121 Banda (n 88 above) 110.
122 Southern African Research and Documentation Centre (SARDC) Beyond Inequalities: Women in Zambia (2005), as cited by Banda (n 88 above) 110.
123 Wolfgang et al (n 99 above) 281.
124 As above.
125 See also Aiya v Aiya Divorce Cause 8 of 1973 (unreported) Ugandan case, as cited by Wolfgang et al (n 99 above) 281.
126 See also Bekker (n 55 above) 234 and Armstrong et al (n 66 above) 348.
127 A Shenje-Peyton 'Balancing gender, equality, and cultural identity: Marriage payments in post-colonial Zimbabwe' (1997) 9 Harvard Human Rights Journal 106.
128 Von Benda-Beckmann (n 57 above) 89.
129 As above. See also White (n 17 above) 58.
130 S Fredman Women and law (1997) 40, based on accounts by W Blackstone Commentaries on the law of England (1809); JH Baker An introduction to English legal history (1979), among others.
131 Secs 24 (1)(a)(ii) & (iii) of the Malawian Constitution provide: '(1) Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their marital status which includes the right ... (a) to be accorded the same rights as men in civil law, including equal capacity; ... (ii) to acquire and maintain rights in property, independently or in association with others, regardless of their marital status; (iii) to acquire and retain custody, guardianship and care of children and to have an equal right in the making of decisions that affect their upbringing' (my emphasis).
132 Sec 22(1) provides that '[e]ach member of the family shall enjoy full and equal respect and shall be protected by law against all forms of neglect, cruelty or exploitation'.
133 See arts 16(1)(c), (d) & (f) of CEDAW.
134 Sec 28 provides for the right to property. See also White (n 17 above) 59.
135 S Poulter 'African customs in an English setting: Legal and policy aspects of recognition' (1988) 31 Journal of African Law 210.
136 See also a discussion by TW Bennett Customary law in South Africa (2004) 304 for a similar position with respect to the patrilineal marriages of South Africa.
137 Puberty for girls is reached when menstruation starts.
138 Chigawa (n 52 above) 5 and Armstrong et al (n 66 above) 337-340.
139 MHRC (n 96 above) 22.
140 According to the MHRC study, 40% of the respondents reported that replacement of a deceased wife takes place in their areas. It was, however, found to be particularly common in patrilineal systems.
141 Under patrilineal customary laws, however, there is no rule that upon the death of a wife lobola should be paid back.
142 MHRC (n 96 above) 22.
143 As above.
144 The MHRC found that 45% of interviewees said that 'bonus wife' is a practice that takes place in their area.
145 MHRC (n 96 above) 23-24.
146 As above.
147 MHRC (n 96 above) 24.
148 Art 2 of the UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956.
149 Art 16(2) of CEDAW. See also CEDAW General Recommendation 21 paras 36, 38 & 39.
150 Art 21(2) African Children's Charter.
151 Art 6(b) African Women's Protocol.
152 See also DM Chirwa 'A full loaf is better than half: The constitutional protection of economic, social and cultural rights in Malawi' (2005) 49 Journal of African Law 215
153 Similar sentiments were also expressed in Malawi Law Commission Constitutional Review Programme: Consultative Paper (undated) 21. See also Ntata & Sinoya (n 56 above) 13.
154 Sec 22(8) of the Malawian Constitution provides that '[t]he state shall actually discourage marriage between persons where either of them is under the age of fifteen years'.