Long Essays

This is a collection of Reasearch Papers done by Upgraders.

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A critical analysis of the efficacy of the Intestate Succession Act chapter 59 of the Laws of Zambia in protecting the rights of widows A critical analysis of the efficacy of the Intestate Succession Act chapter 59 of the Laws of Zambia in protecting the rights of widows

This article examines the Intestate Succession Act chapter 59 of the Laws of Zambia to assess whether it complies with international treaties and conventions and adequately protects the rights of widows. The author uses a theory of patriarchy to explain women’s position in society through a plural perspective and cites relevant case law to investigate the way the law functions within this context. While the law provides equally for men and women, gendered perceptions and cultural norms still ultimately prevent women from claiming their rights. Consequently, while a woman is granted the right to the family home on the death of her husband, this right is withdrawn should she decide to remarry. The author points out further anomalies in the application of the Act and reveals that gendered, patriarchal and cultural forces still override the law’s attempt to comply with international human rights legislation. Even the Zambian constitution is ambiguous with regard to cultural practices and needs to be reviewed. She also calls for a review of the Intestate Succession Act chapter 59, taking into account the cultural reality of women’s position in society and dealing with particular situations like polygamous marriages and customary land. She acknowledges that a shift in societal attitudes is also needed and recommends a rigorous information campaign.

By Daphne Chabu

 

 

‘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

An exploration of lobola and its impact within the arena of sexual relations and procreative imperat An exploration of lobola and its impact within the arena of sexual relations and procreative imperat

This essay revisits the issue of lobola in the context of the AIDS pandemic in Zimbabwe. Lobola or roora is the bride price traditionally paid by a husband to the family of his wife­to­be. The author investigates the effect of this tradition on the power relations within traditional marriages.She suggests that when women are ‘bought’, they enter into an unequal partnership and cannot easily negotiate safe sex with their husbands, thus increasing their vulnerability to HIV infection. Other factors resulting in unequal power relations in marriages are discussed and both national and international legal frameworks for married women’s sexual rights are examined. The essay explores the meaning, significance and implication of lobola, finally focusing on whether the abolition of lobola would increase women’s ability to negotiate safer sex in marriage.

By Irene Sithole

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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