Zimbabwe's Magaya decision revisited: women's rights and land succession in the international context.

• Author: Knobelsdorf, Valerie

"Discrimination against women is not compulsory in African society." (1)

[W]hose customary law is this anyway? (2)

INTRODUCTION

When Shonhiwa Magaya died without a legal will, a local court in Zimbabwe designated his eldest child, Venia Magaya, heir to his estate. On appeal, Ms. Magaya's younger half-brother claimed heirship on the grounds that according to African customary law, "a lady ... cannot be appointed [as heir] to (her) father's estate when there is a man" in the family who is entitled to claim it. (3) An appellate magistrate agreed and Ms. Magaya's heirship was reversed. (4) The newly appointed heir took his position as head of household, removed Ms. Magaya from her family home, and placed her in a shack in the neighbor's backyard. (5) Upon further appeal, the Supreme Court of Zimbabwe upheld the appellate decision, stating that, despite constitutional protections against discrimination, the fact that this case arose under customary law exempted its discriminatory aspects from court scrutiny. (6) The court explained that the constitution permits this type of discrimination against women as within "the nature of African society." (7)

Magaya v. Magaya, (8) the now-infamous Zimbabwe customary law and intestate succession case, triggered significant domestic and international opposition. Critics alleged that the decision was invalid under both Zimbabwean constitutional law and international law, violating "fundamental issues of fairness, international norms and rights, and even customary law itself." (9) Questions surrounding the outcome of Magaya still linger throughout southern Africa. On one hand, critics argue, legal and social norms require that female children and widows be given equal rights to property inheritance upon the death of a family member, particularly as economic and health crises have imposed a disparate impact on the resources of women throughout the region. (10) On the other hand, legal decisionmaking is a delicate balancing process. Courts across southern Africa have upheld the cultural rights embodied in national constitutions, (11) as well as in numerous international human rights instruments, (12) as a basis for autonomy and development. With strong legal protections for cultural practices and the application of customary law in Zimbabwe, one of the most troubling critiques of this case is the idea that this decision may have been the only outcome the court could have reached; that, even if the court had incorporated human rights considerations, the law in Zimbabwe so clearly sanctions gender-based discrimination that the case could not have come out any other way. (13) Although this view is rather extreme, it demonstrates the scope and importance of the fundamental rights and freedoms at issue, and the legal obstacles that these rights face under Zimbabwean law. With such critical protections at stake, Magaya has raised the important question of whether a fundamental tension exists between anti-discrimination rights, particularly on the basis of gender, and the right to cultural self-determination, including a fight to the application of customary law.

While there has been extensive discussion about the domestic legal grounds for Magaya's outcome, there has been little exploration of the tension between gender and cultural rights in the international context. (14) Magaya provides a unique starting point for the examination of rights-balancing questions throughout southern Africa because of the court's particular focus on "the nature of African society" and the privileging of cultural practices over individual rights. In contrast, Ms. Magaya argued that the case struck at the heart of her internationally recognized human rights, and that denying her heirship would run contrary to basic principles of gender equality and individual rights. (15) Although there is arguably some support for the court's decision in Magaya, legal and policy implications within Zimbabwe, comparative constitutional considerations, and regional and international agreements seem to outweigh those arguments. In addition, a careful consideration of basic human rights concerns--including the right against gender-based discrimination, the right to economic opportunity, and the community right to cultural preservation--comes out in support of the widespread global criticism against the Magaya outcome.

To examine these tensions and to address the implications of Magaya in a local, regional, and international context, Part I of this Article will look first to the status of women in Zimbabwe generally, and Part II will discuss the legal arguments presented in the Magaya opinion. Part III will examine Magaya's legal impact and implications within Zimbabwe, examining in particular its effect on the following rights: to be protected from discrimination; to economic opportunity; and to cultural preservation. After discussing these rights in a local context, the Article will shift to a discussion of regional and international norms. Part IV of this Article will discuss the status of these rights in other African constitutions in order to provide a comparison and regional guide for the legal understanding of these rights. Part V will look to the Banjul Charter, an African human rights agreement, for similar comparison and as an example of a relevant regional human rights instrument that should have been considered by the Zimbabwe court. Part VI will discuss the potential role of broader international human rights instruments in the case. Finally, in Part VII, this Article will discuss the potential incorporation of human rights norms from all levels of legal discourse (domestic, regional, and international) into this type of judicial decision, and will suggest that the Magaya court should have taken a more balanced approach in examining Ms. Magaya's case.

1. THE SOCIAL AND LEGAL STATUS OF WOMEN IN ZIMBABWE

   The story of women's status in any context cannot be outlined adequately in any brief introduction; one must always bear in mind that the social and legal status of women varies by time, location, age, class, ethnic group, and personal circumstances. The interests of these women also vary widely, and generalizations are only useful as tools for description and discussion of a broader and more nuanced situation. To provide some context for Ms. Magaya's case, however, this section will briefly address some of the greatest challenges facing women in Zimbabwe today. The discussion will focus on women's access to land resources and the impacts of recent political, land reform, economic, and health crises facing the country.

   1. The Historical and Current Status of Women in Zimbabwe

      According to anthropologists studying pre-colonial Zimbabwe, the status of Zimbabwean women has shifted dramatically due to the impact of colonial structures and a colonially-imposed legal system. Historically, women's land and resource access was guaranteed through social and familial connections, with women's agricultural production tied to traditional roles in the family, and access to land guaranteed by marriage or clan-based land allocation. (16) "Prior to colonization," one researcher describes, "women were always assured of land which was allocated to them by their husbands at marriage. Those who were never married, or were single (divorced or widowed), were also allocated pieces of land." (17) Precolonial Zimbabwean women held a relatively high social position and were attributed "a certain place of honour and respect" (18) by customary laws and traditional community structures. Although Zimbabwean societies have been historically male-dominated, (19) it is evident that women were traditionally accorded some resource access and legal and social powers (20) that were negatively impacted by the imposition of colonial frameworks. (21) Contrary to popular claims that "African culture" privileges cultural and community rights, (22) there is evidence that women and children held an important status in traditional Zimbabwean social structures. (23)

      As British colonial influence penetrated Zimbabwe (Southern Rhodesia) during the years 1888-1980, newly imposed legal structures reduced women's access to economic and natural resources, including access to land. A bifurcated judicial system was established to distinguish between European and customary law, and to allow the "colonizers to maintain a 'hands-off' policy towards African tribal populations." (24) As colonization affected the legal structures and African rights to natural resources, women faced increased competition for land, (25) due in part to "a customary law [that] was developed which accorded women the status of perpetual minors ... who would need the assistance of a male member of the family to carry out any legal or commercial transactions." (26) Under these new legal structures, it became clear that "the colonial authorities and administrators had much to do with the subjugation of women." (27) A system emerged which denied women equal access to resources as that enjoyed by men; customary law practiced within colonially-imposed limits made it difficult to maintain traditional economic and social protections and guarantees for married and single women. Because of this manipulation of the traditional customary practices, scholars distinguish "living customary law," the customs actually practiced within African communities, from "official customary law," the post-colonization rules observed by the official legal profession. Consequently, the official customary law "must be treated with circumspection, for it may have no genuine social basis." (28)

      Since independence in 1980, the dominant Zanu PF political party has espoused rights for women, but "Zimbabwe has long lacked a gender policy" (29) and "has thus far shown extremely limited State budgetary and staffing commitment to achieving gender equity and integrating women into all of its development programmes." (30)...