Zimbabwe’s Magaya Decision Revisited: Women’s Rights and Land Succession in the International Context

Abstract

Discrimination against women is not compulsory in African society. (1) [W]hose customary law is this anyway? (2) INTRODUCTION When Shonhiwa Magaya died without legal will, local court in Zimbabwe designated his eldest child, Venia Magaya, heir to his estate. On appeal, Ms. Magaya's younger half-brother claimed heirship on grounds that according to African customary law, a lady ... cannot be appointed [as heir] to (her) father's estate when there is man in family who is entitled to claim it. (3) An appellate magistrate agreed and Ms. Magaya's heirship was reversed. (4) The newly appointed heir took his position as head of household, removed Ms. Magaya from her family home, and placed her in shack in neighbor's backyard. (5) Upon further appeal, Supreme Court of Zimbabwe upheld appellate decision, stating that, despite constitutional protections against discrimination, fact that this case arose under customary law exempted its discriminatory aspects from court scrutiny. (6) The court explained that constitution permits this type of discrimination against women as within the nature of African society. (7) Magaya v. Magaya, (8) now-infamous Zimbabwe customary law and intestate succession case, triggered significant domestic and international opposition. Critics alleged that decision was invalid under both Zimbabwean constitutional law and international law, violating issues of fairness, international norms and rights, and even customary law itself. (9) Questions surrounding outcome of Magaya still linger throughout southern Africa. On one hand, critics argue, legal and social norms require that female children and widows be given equal rights to property inheritance upon death of family member, particularly as economic and health crises have imposed disparate impact on resources of women throughout region. (10) On other hand, legal decisionmaking is delicate balancing process. Courts across southern Africa have upheld cultural rights embodied in national constitutions, (11) as well as in numerous international human rights instruments, (12) as basis for autonomy and development. With strong legal protections for cultural practices and application of customary law in Zimbabwe, one of most troubling critiques of this case is idea that this decision may have been only outcome court could have reached; that, even if court had incorporated human rights considerations, law in Zimbabwe so clearly sanctions gender-based discrimination that case could not have come out any other way. (13) Although this view is rather extreme, it demonstrates scope and importance of fundamental rights and freedoms at issue, and legal obstacles that these rights face under Zimbabwean law. With such critical protections at stake, Magaya has raised important question of whether fundamental tension exists between anti-discrimination rights, particularly on basis of gender, and right to cultural self-determination, including fight to application of customary law. While there has been extensive discussion about domestic legal grounds for Magaya's outcome, there has been little exploration of tension between gender and cultural rights in international context. (14) Magaya provides unique starting point for examination of rights-balancing questions throughout southern Africa because of court's particular focus on the nature of African society and privileging of cultural practices over individual rights. In contrast, Ms. Magaya argued that case struck at heart of her internationally recognized human rights, and that denying her heirship would run contrary to basic principles of gender equality and individual rights. (15) Although there is arguably some support for court's decision in Magaya, legal and policy implications within Zimbabwe, comparative constitutional considerations, and regional and international agreements seem to outweigh those arguments. …