Long Essays

This is a collection of Reasearch Papers done by Upgraders.

Papers List

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‘A roof over my head’ The rights of a civil marriage wife under family law to the matrimonial home registered in the sole name of her husband ‘A roof over my head’ The rights of a civil marriage wife under family law to the matrimonial home registered in the sole name of her husband

This essay looks at the current law of property in Zimbabwe and, by analysing a number of cases, assesses how it has affected women in civil marriages. The comprehensive and individualistic right of ownership over property conferred by the law is in conflict with the reality in marriage where two people merge their wealth generation capacities for mutual benefit. It has been common for property to be registered in the husband’s name and on the death of a spouse or on divorce, the wife has some rights to the property she has helped to acquire and maintain. However, the situation of a civil law wife within a marriage is far from ideal and is certainly in contravention of the international human rights legislation that Zimbabwe is party to. The current law does not take into account the gendered aspects of property acquisition and, consequently, the wife has no official right to participate in any decisions relating to the matrimonial property. The author suggests that this law, which has long been described as outdated and anomalous, needs to be changed by introducing the in community of property regime into the standard marriage contract or by introducing specific legislation to deal more equitably with the matrimonial home.

By Emilia Muchawa

Women’s access to credit: Is micro-finance an answer? Women’s access to credit: Is micro-finance an answer?

This article is a continuation of my previous dissertation presented for fulfillment of the Post-graduate Diploma in Women’s Law course pursued in 2000. In the research, I did a comparative study of the Co-operative and Rural Development Bank (CRDB) before and after its privatization in 1996 in relation to women and access to credit. The aim was to analyze the effect of structural adjustment programmes which led to privatization of many public companies, the Co-operative and Rural Development Bank included.

By Lucia Gamuyakairo

Underplaying women’s sexuality to control women– the case of polygyny Underplaying women’s sexuality to control women– the case of polygyny

This essay is an analysis of how women’s sexuality is played out in polygynous unions by showing that women are not actors, nor are they decision-makers over their bodies and sexuality. The analysis is based on research I carried out for the Women’s Law Diploma, (Nzira, 1995) and uses the sexual and rights framework as defined by the women’s coalition to the Cairo and Beijing conferences as well as the principles of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) to show how the Zimbabwe law discriminates against women in polygynous unions, as well as the impact of the institution in the spread of HIV/AIDS. As feminists have shown that women’s bodies are sites for male dominance, the purpose of the essay is to call on gender activists and/or feminists to bring the issue of women’s sexuality to the fore otherwise talking about women’s empowerment will remain an academic exercise as men will continue to control women’s sexuality as a means of keeping women down.

By Tsitsi Masenda-Nzira

The perception and application of international law within the domestic arena – the paradigm shift The perception and application of international law within the domestic arena – the paradigm shift

This essay analyses the extent to which international provisions as enshrined in CEDAW and the African Charter on Human and People’s Rights have been applied by the courts to protect the human rights of women in Kenya. While Kenyan courts do not generally apply these laws, recently a few courts have recognized the importance of international law in the interpretation of domestic law to protect women’s human rights. The author cites a number of relevant cases, including the Dow v Attorney General and Longwe v Intercontinental Hotels cases, to show that judges are beginning to recognize the importance of Kenya’s commitment to this legislation. International law is not self­executing and special measures have to be taken to make it applicable and enforceable but no such provisions have been made for its general application in the municipal legal system of Kenya. The author points out that the judiciary and lawyers in Kenya need to be trained to use international law within the domestic arena and judges need to be sensitive, bold, creative and innovative in implementing and enforcing international law. Training is ongoing under the jurisprudence of equality programme and, with the Kenyan constitution now under scrutiny with a view to eliminating the current anomalies, there is a chance that the scenario will change and international law will be implemented at the domestic level in Kenya.

By Ruth Aura Odhiambo

The HIV:AIDS problem and customary marriages among the Baganda in Uganda: The HIV:AIDS problem and customary marriages among the Baganda in Uganda:

The Baganda are the largest ethnic group in Uganda and are based in the southern part where Kampala City is located. This paper focuses on customary marriages, norms and vulnerability to HIV/AIDS infection within this group. It discusses the social and cultural determinants that can predispose married people to HIV infection through high-risk behaviour. It discusses briefly the ideological basis for customary law and adopts a social-legal perspective of legal pluralism. This paper aims to highlight some areas of customary law marriage that are risky and in need of reform due to the problem of HIV/AIDS and discusses the complexity of sexual behaviour and the vulnerability of wives. It is intended to contribute to the ongoing dialogue on the promotion of mutual and responsible behaviour in marriage and to generate debate on other aspects of behaviour that may not be covered by this brief. It is primarily based on qualitative research I conducted through in-depth interviews with married men and women and focus group discussions, for a post-graduate diploma in women’s law.

By Christopher Martin Madrama Izama

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