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No land rights for ex-spouses

Opinion & Analysis
I read The Herald report of July 10 2014 about Local Government minister Ignatius Chombo’s divorce with interest and disbelief.

I read The Herald report of July 10 2014 about Local Government minister Ignatius Chombo’s divorce with interest and disbelief.

Guest Columnist Sibusisiwe Marunda

From the beginning, let it be known that I do not have anything against the Honourable Minister or his person.

My interest in this case is from a women’s rights perspective. I am struggling with the question of whether the judgment would not have been different if the dispute was between non-politically connected individuals.

It would be remiss for the women’s movement not to see the implications of the ruling by the High Court on women’s access to land.

For the benefit of those who have not been following the reports on the case — a few facts — the Chombos divorced in 2012 and all their property was shared except for the farm on which they disagreed.

The High Court has ruled that the minister should get the farm on the grounds that it did not belong to either of the two parties but to government and could therefore not be treated as matrimonial property.

The High Court further ruled that in that context the farm should remain with minister Chombo as the “legitimate” lessee.

It is my opinion that the court’s finding in this case is most unfortunate and takes the nation to the period before the current Zimbabwe Constitution where a long history of male-biased land allocation was accepted as legal.

A number of issues arise from this ruling

1. The interpretation of the conditions of the lease is neither correct nor practical. The lease in Section 1.1a defines the lessee as the lease signatory and his or her spouse.

Reasonably, this means the spouse at the time of the signing of the lease!

This co-leasing implies co- benefits and responsibilities which the court chose to ignore.

The spirit behind mentioning a spouse in the definition of the lessee was to protect the rights of the spouse to land loaned to the couple by the State. The signatory according to this definition signs on behalf of himself/herself and the spouse. The spouse referred to here cannot be anyone that the signatory picks willy-nilly.

The spouse of the lease signatory will reasonably have legitimate expectations of security of tenure to the land not because he or she is the spouse, but because the lease was bestowed upon the two at the time of marriage.

The court, therefore, had a duty to deal with this legitimate expectation of security of tenure by Marian Chombo as she was the minister’s spouse at the time the lease was signed.

The ruling that says anyone that the minister marries now has automatic rights that override the original co-lessee implies that the minister could have at the time of the subsistence of the marriage thrown Marian out of the farm and brought in another woman and argued that he had replaced the spouse referred to in the lease agreement and the court would have accepted it!

If we take this approach then the court is saying it has no respect for marriages and women’s rights.

Never mind the fact that couples will obviously work on leased land and invest in it jointly and one of them gets stripped of rights simply because she is a woman and therefore did not append her signature to the lease agreement.

The argument by the Judge that the lease does not have room for ex-spouses is surprising.

2. The second issue arising from this ruling is the implicit argument by the court that women should continue accessing land through marriage and ultimately at the benevolence of men.

If this judgement is anything to go by, then men continue to be regarded as the primary owners of the means of production, particularly land in this country.

In my opinion, land is too much of a birthright for anyone to be told they have lost access to it simply because they are no longer married to a certain individual.

I sincerely believed that the Zimbabwe Constitution under sections 3, 13, 17, 26 and 72 provides for gender equality and equal access to land and other means of production.

Available information is that the court refused to allocate the farm to Marian even as an effort to redress historical gender imbalances in the allocation of resources, particularly land. The court’s argument was that it does not have a duty to allocate land.

If our courts do not seek to deliver justice to women by correcting past wrongs and facilitating the functionality of our Constitution then who should? 3. Paradoxically, the court accepts that the farm in question does not belong to the minister — it’s government property!

How then does the court then go on to allow the minister to say woman (A) is no longer my spouse and I am therefore replacing her with woman (B) in terms of access to this land that is not mine?

How does one individual get so much power over a national resource?

As acknowledged in our Constitution, land was one of the major reasons why we went to war for the liberation of this country.

It has to be accessed equally by both men and women; otherwise the nation is being shortchanged.

The government of Zimbabwe is on a land redistribution drive to cover the historically marginalised groups.

According to the Agriculture and Livestock Survey quoted in the Zim-Stat 2012 report, women are the majority of workers of the land yet hold a paltry 19,4% of agricultural land in Zimbabwe. If that is not marginalisation, then what is it?

One year down the line after Zimbabwe resoundingly adopted a gender-responsive Constitution, it is yet to be fully implemented so that it works for women. The High Court’s ruling on the Chombo vs Chombo case has just cast doubt on whether the courts want to have a role in ensuring the Constitution delivers on its promises of gender equality!

Mrs Sibusisiwe Marunda is the Director of the Women’s Coalition of Zimbabwe. She writes in her personal capacity.