Analysis: JUSTICE SHARPE-PHIRI
AS WE all know, customary law governs the majority of people living in Zambia today. Furthermore, the vast majority of marriages concluded in Zambia today (even those concluded under the Marriage Act CAP 50 of the Laws of Zambia) have a customary element to them.
Moreover, a major component of the work of the courts, especially at the lower levels of the judiciary, involves disputes arising from customary law. You may have read from the media, for example, that last year, about 28,000 cases heard by the local courts involved customary law divorces.
This is not to mention the many other customary marriage disputes that are dealt with by other formal and informal dispute processing forums, including chiefs, headmen, political party structures, civic organisations and social institutions, such as Alangizi as well as the respective families of the married couple.
In some cases, family members or married couples seek solutions to their marriage conflicts in different formal and informal forums, at different times, or simultaneously.
And yet, very little is known about the interactions between the legal normative orders established by state laws and the customary norms governing the formation and consequences of customary marriages as they are actually applied by indigenous communities.
We know from research conducted in other jurisdictions like South Africa that the official customary law, as it exists in law textbooks, court precedents and codified in legislation is often markedly different from the living customary law that is actually practiced by communities on the ground.
Furthermore, while our Constitution recognises customary law as a source of law, the exact place of customary law in our constitutional dispensation is contested. It appears in fact, that customary law has an inferior, step-sister, status to the formal law.
Not only is this discriminatory to persons governed by customary law, it is also out of step with jurisdictions like South Africa where customary law is recognised in the Constitution of the Republic as being on an equal footing with state law. This equal footing is also acknowledged by the courts, including the Constitutional Court.
And while conflicts between systems of law must be resolved by the courts, the precise role of the courts in interpreting, applying, and developing customary law has never been enumerated.
Because of these gaps in knowledge and practice, the research findings presented recently are of critical importance.
Needless to say, the regulation of customary marriages in Zambia affects the most vulnerable of our society, including women and children who increasingly, in changing social and economic conditions, look to marital family resources for their livelihoods.
Specifically, what if any, are the gaps in the research? Where are the challenges and opportunities in customary marriage regulation and what areas are in need of further elucidation and development? How can the research findings be disseminated on a larger scale.
What strategies should be adopted for the usage of the research results, and other knowledge-building efforts, as a platform for collaboration between the academy, practitioners and communities? What strategy should be adopted for prompting and supporting such action?
And what practices or models are likely to create a more legitimate and effective management of legal pluralism?
The data validation workshop on the “Patterns and formation of customary marriages in Zambia” held recently was therefore an opportunity to learn from stakeholders that regularly interface with customary marriages and therefore have a unique understanding of the challenges and opportunities that the research findings expose. I think we can all look forward to some interesting insights from the workshop participants who were drawn from diverse sectors.
The author is the Judge-In-Charge of Family and Children division, Lusaka High Court.