The Zimbabwe Supreme Court has shocked equal rights campaigners by relegating African women to the status of 'junior males' within the family.
More than six months after the Zimbabwe Supreme Court shocked equal rights campaigners worldwide by relegating African women to the status of 'junior males' within the family, many Zimbabweans are beginning to wake up to the reality of the ruling. They are worried about its long-term impact, particularly on women's reproductive and other rights.
"There's nothing left of the gains women's rights have made in the past 20 years," Welshman Ncobe, the country's leading authority on constitutional and family law, warned after the ruling in a case involving inheritance rights.
Fifty-eight-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 because of her sex. They declared 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.
Tension mounted as riot police kept a close watch on several dozen determined women demonstrators – and some men – who protested in front of the Supreme Court building in May and handed in a petition. Although none of the five judges dared to venture out, the deputy speaker of Parliament and a few male MPs joined the march in solidarity.
"It is our view that by virtue of this decision, 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 the petition delivered both to the Court and Parliament.
Placards wielded by demonstrators read: "Are we going backwards into the year 2000?" and "We will not accept customary legalised tyranny."
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 vs. 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 in his ruling that previous judges had given women "rights they never had under customary law."
"It is a frightening judgement," says 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."
For Rudo Gaidzanwa, University of Zimbabwe professor in sociology, the decision is part of an "economic and political retreat into right-wing, chaotic and destructive behaviour."
High unemployment and inflation has been plaguing the country and unrest has followed President Robert Mugabe's military intervention in Congo (former Zaire) and his clampdown on critics, particularly in the press.
"There is an element of backlash," agrees 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," he says.
Society for Women and AIDS in Africa (SWAA) 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.
Zimbabwe has signed up to international human rights treaties, such as the Women's Convention. But 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 look closer to home for solutions.
The constitutions of several African countries, including Ethiopia, Ghana and Uganda, have added specific provisions banning discrimination based on customary law.
"We want to make sure there is a clause in the new constitution which totally outlaws discrimination," Kwaramba says.
Meanwhile, Venia Magaya, the woman symbolising gender inequality in Zimbabwe, 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.
"I was disinherited out of sheer male greed," she told Panos Features.
"The Magaya case demonstrates that when it comes to women's rights, you cannot afford to use kid gloves," asserts legal expert Dr Amy Tsanga. "What is often put forward as 'culture' is not in the interest of women."