THE UNIVERSITY OF ZAMBIA
SCHOOL OF LAW
NAME : NYAMBE NKANGA
Comp # : 2018186809
COURSE : FAMILY LAW AND SUCCESSION
CODE : LPR 3940
LECTURER : Dr. LUNGOWE MATAKALA
ASSIGNMENT: FIRST ASSIGNMENT
DUE DATE : 07 MAY 2020
i
Table of Contents
Introduction....................................................................................................................................1
Legal Definition of Family in Zambia..........................................................................................1
International or Regional Human Rights Instruments on Definition of, and Right to Family
.........................................................................................................................................................2
Violations Against International Law Committed by the Zambian Definition of Family......2
Conclusion......................................................................................................................................5
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Introduction
Families have been in existence since the dawn of human civilization, yet the concept of ‘family’
largely remains an undefined phenomenon. This may be due to the fact that what constitutes a
family is diverse and constantly changing. The purpose of this essay is to first unpack the legal
definition of family in Zambia, in light of the dual legal system. The essay then proceeds to
discuss whether or not Zambia’s understanding of family is in conflict with any provisions of
international and regional human rights instruments.
Legal Definition of Family in Zambia
From the outset, it should be noted that Zambia has a dual legal system composed of general
statutory law based on common law and doctrines of equity, and tribe specific customary law.1
That customary law is a central aspect of Zambia’s legal system is buttressed by Article 7 of the
Constitution which recognizes customary law as a source of law. Therefore, family Law is
generally informed by both customary and civil law and the “legal definition” of family alluded
to in this piece of writing refers to both, unless otherwise specified.
There is no distinct definition of family in Zambia, nonetheless, the law and notable scholars
propose that a traditional family revolves around a civil or customary marital union, and blood
relationships between husband and wife, parent and child (whether biological or adopted). Lilian
Mushota categorically provides that ‘the basis of the family in Zambia, as elsewhere, is
marriage.’2 As regards marriage, statutory law offers that marriage, contracted pursuant to the
Marriage Act, is the voluntary union for life of one man and one woman to the exclusion of all
others.3 Whereas a customary law marriage is one contracted under a particular tribe and is
potentially polygamous.4 Both statutory and customary marital unions create family relations
based on blood (consanguinity) and marriage (affinity). Thus a family extends beyond nuclear
members and includes extended members, such as grandparents, uncles, aunties, cousins, sisters
in law etc.
1
Mushota, Lillian. Family Law in Zambia: Cases and Materials, Lusaka: UNZA Press (2005).
2
Mushota Lillian ibid (n1)
3
Lord Penzance in Hyde v Hyde and Woodmansee (1866) LR1 P & D 130
4
Ibid (n1)
1
In Uganda, where the understanding of family is similar to Zambia, it has been explained that
marriage is the primary institution upon which family is founded because it is the prism through
which the law legitimizes the family and enshrines rights to its members. 5 Though the rationale
for centering the understanding of family around marriage is sound, it is contended that Zambia’s
application of the same is too stringent and leaves much to be desired, as will be revealed below.
International or Regional Human Rights Instruments on Definition of, and Right to Family
International laws recognize the family as a fundamental unit of society, to be protected and
assisted by States.6 Recognition of the right to family is contained in provisions of several
international instruments, including Article 16 of the Universal Declaration of Human Rights
(UDHR) and Article 23(2) of the International Convention on Civil and Political Rights
(ICCPR), which affirm the right of men and women of full or marriageable age to marry and
found a family. Article 10 of the International Convention on Economic Social and Cultural
Rights (ICESCR) likewise, provides that a marriage must be entered into with the free consent of
intending spouses and obliges States to provide the widest possible protection to the family. The
African Charter on Human and People’s Rights also recognizes that the family is the custodian
of morals and traditional values and should receive protection from the state.7
Though the importance and protection of family is engrained in international human rights
instruments, there is no universally agreed definition of family. Rather, international human
rights instruments and foreign judicial precedent are of the position that the presence or absence
of a family is a matter of fact, determined differently from case to case. 8 This allows wide leeway
for recognition of various groups as families. As the Constitutional Court of South Africa
explained, “families come in many shapes and sizes and the definition of family changes as
social practices and traditions do…we must not entrench particular forms of family at the
expense of other forms”.9
5
Silvia Tamale “The Context and Content of Teaching Family Law in Uganda: A Feminist Analysis” Zambia Law
Journal 46 Zam. L. J (2015)
6
A/HRC/31/37 Human Rights Council Thirty-first Session Annual report of the United Nations High Commissioner
for Human Rights Protection of the family
7
Ibid (n6) Specialized instruments, such as the Convention on the Rights of A child, provide for the Right to family
8
2001 Summary Conclusions on Family Unity UNHCR, “The ‘Essential Right’ to Family Unity of Refugees and
Others in Need of International Protection in the Context of Family Reunification”,
9
Rahim Dawood & Others v Minister of Home Affairs & Others 2000 (3) SA 936,
2
Violations Against International Law Committed by the Zambian Definition of Family
Examination of Zambia’s notion of family appears at odds with several provisions and minimum
standards of international human rights instruments as regards adequate recognition of the right
to family. The first notable violation stems from the fact that creation of family in Zambia rests
on civil or customary marriages contracted between one man and woman (or women, as
customary marriages are potentially polygamous). The most glaring implication decoded from
this is that couples of the same sex cannot contract a valid marriage and thus found families.
Non-heterosexual couples, that is, couples falling within the Lesbian Gay Bi-sexual Transsexual
Queer (LGBTQ+) community are excluded from potential enjoyment of the right to family, and
are thus discriminated against, and unequally protected by the law in comparison to heterosexual
people.
Discrimination simply entails different treatment of persons in similar situations. That
discrimination on the basis of sexual orientation is present in Zambia can be gathered from the
Matrimonial Causes Act which provides in section 27(1)(c) that a marriage is void when
contracted by parties of the same sex.10 Further, sodomy laws such as sections 155 and 156 of the
Penal Code criminalize sexual activities between men.11 Although the Zambian Constitution in
Article 23 provides for protection from discrimination on various grounds including sex, 12 ‘sex’
is not defined in the Constitution. This has the effect of preventing proper redress for those
discriminated against on the ground of sexual orientation. Nonetheless, the case Toonen v
Austria13 reiterates that discrimination on the ground of sex does include sexual orientation in
light of the ICCPR.
Nondiscrimination and equality are the cornerstone of international human rights and must guide
the interpretation of all substantive provisions, including provisions on family. 14 Provisions on
nondiscrimination and equality can be found in Articles 2(1), 3 and 26 of the ICCPR; Article
2(2) of the ICESR; and Article 2 of the African Charter. These instruments affirm the enjoyment
10
Matrimonial Causes Act No. 20 of 2007 Chapter
11
Chapter 87 of the Laws of Zambia the penalty for which is possible for imprisonment 7 years
12
Chapter 1 of the Laws of Zambia
13
Communication no. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994)
14
Shirin Aumeeruddy-Cziffra and 19 Other Mauritian Women v Mauritius, CCPR/C/12/D/35/1978, UN
Human Rights Committee (9 April 1981) available at <http://www.refworld.org/docid/3f520c562.html>. This case
involved a demand by women to forestall discrimination against them committed by their husbands taking new
wives.
3
of rights without discrimination of any kind as to race, color, sex, language, religion, etc., and
equal protection of rights before the law.15 Therefore, an understanding of family which
effectively excludes same sex couples is discriminatory, as members of the LGBTQ+ community
are denied the ability to found families solely because of their sexual orientation.
Nondiscrimination is such a pertinent aspect of international law that it has attained the status of
jus cogens, signifying that no State is permitted to derogate international provisions against
discrimination.16
This essay additionally contends that the Zambian understanding of family, in determining
whether or not a family exists, considers invasive and private issues. For example, same sex
families are not legally recognized as families based on how sexual relations between consenting
adults are carried out.17 Christian or moral excuses do not justify such an encroachment of
private family relations. Several international provisions, including Article 17(1) of the ICCPR
and Article 12 of the UDHR provide for the right to privacy and safeguard against arbitrarily
interference of privacy, home and family. Privacy of family includes, inter alia, marriage and the
right to protection of a person’s intimacy, identity, gender, appearance, feelings and sexual
orientation.18
As per the customary understanding of family, various violations of international and regional
provisions of human rights instruments are extant. Although customary norms vary among
different ethnic groups, there are some core conditions for a valid marriage, such as: attainment
of puberty by a girl and appropriate initiation ceremonies; parental or guardian consent;
negotiations and exchange of lobola (bride-price).19 Such customs chiefly infringe women and
children’s rights.
To begin with, there is no minimum age of consent to marry for women under customary law,
therefore, a girl child who has reached puberty may be married off to an older man to form a
family.20 This goes against the Convention on the Rights of a Child (CRC); and the Convention
on the Elimination of all forms of Discrimination Against Women (CEDAW) which provides
15
ICCPR Articles 2(1), 3 and 26; ICESCR Articles 2(2); Article 2 of African Charter
16
Ibid (6)
17
Panos Institute of southern Africa “The Right to Equality and Non-Discrimination in Zambia”
18
The Right to Privacy and Family Life https://www.humanrights.is/en/human-rights-education-project/human-
rights-concepts-ideas-and-fora/substantive-human-rights/the-right-to-privacy-and-family-life
19
https://www.genderindex.org/wp-content/uploads/files/datasheets/2019/ZM.pdf
20
Ibid (n18)
4
that the betrothal and marriage of a child shall have no legal effect. It is an internationally agreed
standard for State and international laws to be interpreted with contemplation of the best interests
of a child. Therefore, the creation of family based on child marriages is in conflict with the
international norm of placing the interest of a child first. It is however noted that the number of
child marriages in Zambia has decreased as more tribal chiefs continue to ban child marriages.21
Secondly, the consent of the parents or guardians of the parties to be married is sufficient to
constitute a marriage, even without the consent of the marrying parties themselves. 22 In
traditional marriages, it is the bride’s family’s consent and not that of the bride which determines
whether or not a marriage is created. Contracting marriages without consent of women (and
sometimes men) is contrary to provisions which affirm that marriages are to be entered into with
the free and full consent of intending spouses. Articles providing to this effect include Articles
16 of the UDHR; 23(3) of the ICCPR; and 10(1) of the ICESCR. Article 16 of CEDAW further
adds that women should have the same right as men to freely choose a spouse and to enter into
marriage only with their free and full consent. Therefore, families based on non-consensual
marital unions violate international and regional laws affirming the right to consent to marriage.
Thirdly, the customary practice of polygamy has been greatly reproached by CEDAW. CEDAW
General Comment no.25 states that polygamy is an underlying cause of discrimination against
women, perpetuating male power, resulting in de facto and de jure gender inequality.23
Zambia is a state party to multiple international and regional instruments including the ICCPR,
ICESER, CEDAW, African Charter for Human and People’s Rights and others. Ratification of
these provisions does not imply that rights contained therein are enforceable or can be remedied
by the courts. Once a treaty is ratified, it has to be domesticated to be justiciable under Zambian
law.24 Nevertheless, ratification of such instruments by a state is a testimony of the willingness
by that state to be bound by the provisions of such a document. 25 Therefore, Zambian courts
should take cognizance of the violations abovementioned and meet the international standard of
family recognition, protection and assistance.
21
Ibid (n18)
22
Fatimata Diallo and Chuma Himonga ‘Formation and Patterns of Customary Marriage in Zambia: A Socio-Legal
Study’ SSHRC-AUF Partnership 2012-2018
23
Polygyny as A Violation of International Human Rights Law www.justice.gc.ca/eng/rp-pr/other-autre/chap3.html
24
Policy Monitoring and Research Centre (PMRC) “Status of Ratification of International and Regional Treaties”
25
Sarah Longwe v Intercontinental Hotels 1992/HP/765
5
Conclusion
Altogether, Zambia’s conception of family violates the above cited provisions and generally
abrogates the international obligation undertaken to adequately protect and assist the family.
There is need to fill in Zambian family law in order to meet the international standard.
6
BIBLIOGRAPHY
Statues
Constitution of Zambia (Amendment) Act No. 1 of 2016 of the Laws of Zambia
Marriage Act Chapter 50 of the Laws of Zambia
Matrimonial Causes Act Chapter 20 of the Laws of Zambia
Penal Code Chapter 87 of the Laws of Zambia
Cases
Hyde v Hyde and Woodmansee (1866) LR1 P & D 130
Rahim Dawood & Others v Minister of Home Affairs & Others 2000 (3) SA 936,
Sarah Longwe v Intercontinental Hotels1992/HP/765
Shirin Aumeeruddy-Cziffra and 19 Other Mauritian Women v Mauritius,
CCPR/C/12/D/35/1978, UN Human Rights Committee
Toonen v Austria Communication no. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994)
Books
Mushota, L. Family Law in Zambia: Cases and Materials, Lusaka: UNZA Press (2005).
Journals and Articles
2001 Summary Conclusions on Family Unity UNHCR, “The ‘Essential Right’ to Family Unity
of Refugees and Others in Need of International Protection in the Context of Family
Reunification”,
A/HRC/31/37 Human Rights Council Thirty-first Session Annual report of the United Nations
High Commissioner for Human Rights Protection of the family
Diallo, F. & Chuma, H. ‘Formation and Patterns of Customary Marriage in Zambia: A Socio-
Legal Study’ SSHRC-AUF Partnership 2012-2018
Panos Institute of southern Africa “The Right to Equality and Non-Discrimination in Zambia”
Policy Monitoring and Research Centre (PMRC) “Status of Ratification of International and
Regional Treaties”
Polygyny as A Violation of International Human Rights Law www.justice.gc.ca/eng/rp-pr/other-
autre/chap3.html
iii
The Right to Privacy and Family Life accessed at 12:13 from
https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-
and-fora/substantive-human-rights/the-right-to-privacy-and-family-life
https://www.genderindex.org/wp-content/uploads/files/datasheets/2019/ZM.pdf
Silvia Tamale “The Context and Content of Teaching Family Law in Uganda: A Feminist
Analysis” Zambia Law Journal 46 Zam. L. J (2015)
iv
