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Customary Marriage and The Urban Local Courts in Zambia
Published online by Cambridge University Press: 28 July 2009
Extract
The local courts of Zambia are the successors to the native courts which the British set up in Northern Rhodesia, as elsewhere in colonial Africa, to administer justice to Africans. However, while the system of native courts originally existed in parallel with the system of English-style magistrates' courts, after independence the native courts (re-named local courts) were integrated into the judicial system, with appeals lying to subordinate courts (i.e. magistrates' courts) of the first or second class. Although it was the ultimate goal of the government to have a fully professionalised judiciary (a policy adopted by Kenya in 1967), it recognised that the local courts still had an important role to play in the administration of justice, particularly in the rural areas. Twenty years later it looks as if their future is secure. If the amount of business transacted by the local courts and the paucity of appeals from their decisions provide an indication of their popularity and effectiveness, they would seem to have proved their worth.
Like their predecessors, the local courts have a limited criminal jurisdiction, but the bulk of their business is civil. They have jurisdiction in most civil matters where the claim does not exceed 200 kwacha. Some of these cases are actions for the recovery of a debt, actions for assault or actions for defamation of character (most frequently, accusations of witchcraft), but the majority of the cases could be broadly categorised as “family” cases, including divorce, adultery, seduction and inheritance claims.
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References
1 For a detailed history and review of the lower courts, see Hoover, E. L., Piper, J. C. and Spalding, F. O., “‘One Nation, One Judiciary’; the Lower Courts of Zambia”, [1970] Zambian Law JournalGoogle Scholar.
2 Local Courts Act 1966 s. 56(1)Google Scholar.
3 Figures obtained from the office of the Local Courts Adviser show that in 1969 73,439 cases (60,769 civil, 12,670 criminal) were heard by the local courts. The equivalent figures for 1976 were 102,371 (87,817 + 14,554) and for 1982 were 119,000 (105,483 + 13,517).
4 Everyone seemed to agree that appeals were extremely rare, though precise figures are hard to come by. In 1982 the local courts in Lusaka heard 9,520 cases and in the same year the subordinate Court in Lusaka heard 202 appeals from the local courts. Nationally, fewer than one case in 100 would go on appeal.
5 There have even been proposals to establish an additional tier of courts at ward level, a highly ambitious project given that there are some 1600 wards in Zambia. Interview with Mr. Chilundo, , Local Courts Adviser, 1 08, 1984, LusakaGoogle Scholar.
6 In the past there have been very few inheritance disputes brought before the local courts. The controversial reforms introduced by the Intestate Succession Act 1989 are likely greatly to increase the number, even though the local courts will only have jurisdiction where the value of the estate does not exceed 50,000 Kwacha. Intestate Succession Act 1989 s. 43(2). For a comment on this reform see Coldham, S. F. R., [1989] J.A.L. 128Google Scholar.
7 Local Courts Act s. 12(1) provides that “ … a local court shall administer (a) the African customary law applicable to any matter before it in so far as any such law is not repugnant to natural justice or morality or incompatible with the provisions of any written law … ”
8 The justices in Lusaka spoke English well; some were retired teachers and retired civil servants.
9 At the time of the research there were 422 local courts, of which 30 were situated in the urban areas.
10 The courts were established under the Native Courts Ordinance, no. 10 of 1936Google Scholar.
11 See, generally, Epstein's classic work on the urban courts, e.g. Epstein, A., The Administration of Justice and the Urban African (London, 1953)Google Scholar; “Some aspects of the conflict of Law and urban courts in Northern Rhodesia”, Rhodes-Livingstone Journal, vol.12 (1951), p. 28Google Scholar; ”The role of African Courts in urban comunities of the Northern Rhodesia Copperbelt”, Rhodes-Livingstone Journal, vol. 13 (1953), p. 1Google Scholar.
12 My research centred on the local courts of Lusaka and Livingstone. Time and transport difficulties made it impossible to spend time in the rural courts, though I was able to spend one day in the Lenje Court in Central Province. I examined more than 300 local courts appeal cases taken from the years 1978–1983, of which 100 were divorce claims.
13 For a more detailed account of the history of the Marriage Ordinance in Northern Rhodesia, see Morris, H. F., “The development of statutory marriage law in twentieth century British colonial Africa”, [1979] J.A.L. 37, at 55Google Scholar. For a consideration of the case-law that the Ordinance has engendered in Zambia, see Himonga, C. N., “Some aspects of the Zambian Marriage Act”, [1979” Zambia Law Journal 23Google Scholar and Hussain, S. J., “Breakdown of marriage in Zambia: judicial response to challenge”, [1979” Zambia Law Journal 95Google Scholar.
14 High Court Act s. 11(1).
15 Marriage (Amendment) Ordinance, no. 48 of 1963Google Scholar.
16 Figures were obtained from the Office of the Registrar-General, Births, Marriages and Deaths Section. Nation-wide divorce figures are hard to come by, but figures from the High Court Registry in Lusaka show a steady increase in the number of Africans petitioning for divorce, reaching a peak in 1983 (the last years for which the writer has figures) of 58 petitions.
17 White reached the same conclusion in his analysis of local courts cases for 1968, White, C. M. N., “Matrimonial cases in the local courts of Zambia”, (1971) J.A.L. 251Google Scholar.
18 The average age of the parties in divorce cases in Lusaka is about 35 for men and about 27 for women; the average length of the marriage 8–9 years.
19 Of the sample of 100 cases examined, the wife petitioned in 92 cases, the husband in eight. In 94 cases the divorce was granted; in three of the six remaining cases a divorce was granted on appeal and in a further case the appeal court ordered a re-trial as there was “evidence of incompatibility”.
20 Seventy-eight of the 100 cases were contested. It will occasionally happen that, after the parties have been divorced out of court, one of them will apply to the court for “reconciliation of marriage”. This seems to be a tactical step designed to secure favourable treatment by the court in matters of maintenance. Such an application rarely results in reconciliation, if it is even intended to do so.
21 This non-traditional mode of divorce (only open to the husband) seems to date from the period of missionary activity in Barotse land and to derive from a biblical text.
22 Local Courts Handbook (1968), para. 235Google Scholar.
23 This was particularly striking in the Livingstone local courts where almost every decision granting a divorce emphasised this factor. By contrast, in Lusaka it was less commonly mentioned. Another difference was the willingness of the Livingstone local courts to order one spouse to p ay compensation to the other for seeking a divorce without good reason.
24 Earlier research reached the same conclusion; see White, , op. cit., at 258Google Scholar.
25 In some societies (e.g. the matrilineal Bemba) bridewealth is a relatively recent phenomenon.
26 Nkomo v. Tshili, (1972) ZR 102Google Scholar; Chibamba v. Chibamba, 1975/HPA/17 (unreported)Google Scholar. Interviews with magistrates at the Lusaka Boma on 13 08 1984Google Scholar and with Mr Chilundo, , the Local Courts Adviser, on 1 08 1984 confirm this approachGoogle Scholar.
27 Nevertheless, they do sometimes adopt the rule-of-thumb mentioned above and give custody to “both parties”, i.e. depending on the age of the children. Thus the Presiding Justice of the Mungule Local Court (a rural court) agreed that he took this approach even though he admitted that custody should always go to the mother under the local (Lenje) customary law; interview held on 7 September, 1984.
28 For example, I looked at 42 appeals in Lusaka. Nine of them were eventually abandoned. Of the remaining 33, 25 were allowed and custody was awarded to the father, either at once (13 cases) or on the child reaching school age (12 cases). Of the eight appeals that were dismissed, the local court had awarded custody to the father in two cases, to the mother in one case, and to both parents (depending on the age of the children) in the remaining five cases. Appeals take the form of a full re-hearing of the case and magistrates seem to take a more robust attitude than twenty years ago when they were reported to “feel reluctant to disturb the decision of the local court, especially in marriage-related cases.” Hoover, E. L. et al. , op. cit., p. 148Google Scholar
29 For example, in one case the local court awarded the custody of the children to their mother, a Kunda, in accordance with her customary law (according to Kunda customary law the mother has custody where no prelobolo has been paid) and the father was ordered to pay K200 by way of maintenance. On appeal, custody was granted to the father on the grounds that he was currently looking after the children satisfactorily, and the maintenance order was set aside. The appeal court recognised that this was contrary to customary law. Lusaka Local Court Appeal no. 133 of 1981.
30 It has been noted in the past that courts have sometimes penalised women petitioners by ordering them to pay “compensation” as the price of divorce. See White, , op. cit., p. 260Google Scholar. I found no evidence of the practice in the urban courts.
31 Thus in one case the appeal court held, contrary to the finding of the local court, that Tonga people do not share property on divorce. Lusaka Local Court Appeal no. 86 of 1982. In another case it quashed an order giving the wife a share in the house that she and her husband had built together with the words, “I do not know on what customary law the court below based their findings”. Lusaka Local Court Appeal no. 164 of 1981. Finally, in one of the very rare cases that have gone on appeal to the High Court and where a divorced wife was applying for financial provision from her well-off husband, Sakala, J. (sitting with assessors) held that there was no Lozi custom requiring a husband to share property with his wife on divorce, nor was there any custom requiring him to maintain her for life; indeed any such custom would be repugnant to natural justice, equity and good conscience. Mwiya v. Mwiya [1977] Z.R. 113Google Scholar.
32 This is a crude rule-of-thumb approach and fails to take into account the variations and final distinctions discussed by White in his survey of customs relating to the refund of marriage payments. White, , op. cit., at pp. 260262Google Scholar.
33 The difference in approach is illustrated by a case where the husband had divorced his wife by forcibly taking her and her belongings back to her parents' home; he had previously infected her with venereal disease and she was ill at the time. The local court pointed out that in Cewa customary law it was “unreasonable” to divorce a wife while she was sick and it further noted that she had assisted her husband in building two big houses. It gave custody of the children to both parties, it ordered goods to be shared and it ordered the husband to pay K3000 in compensation. On appeal, where (unusually) the father was represented, the Court quashed all these orders and gave custody to the father. Lusaka Local Court Appeal no. 176 of 1981.
34 Epstein, A, “Some Aspects of the Conflict of Law and urban courts in Northern Rhodesia”, Rhodes-Livingstone Journal, vol.12 (1951), p. 28, at p. 40Google Scholar.
35 See, for example, Ghai, Y. P. and McAuslan, J. P. W. B., Public Law and Political Change in Kenya (London, 1970)Google ScholarMorris, H. F. and Read, J. S., Indirect Rule and the Search for Justice (Oxford, 1972)Google Scholar, Phillips, A., Report on Native Tribunals (Nairobi, 1945)Google Scholar, and Chanock, M., Law, Custom and Social Order (Cambridge, 1985)Google Scholar.
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