Monday, February 1, 2010

Guardianship rights for married mothers (Zimbabwe)

It appears that Zimbabwe has custody laws that are very similar to the the laws in western countries from 40-50 years ago, before various "feminist" reforms. Separated, divorced, and never married mothers pretty much get child custody, while married fathers monopolize guardianship rights relative to the mother. I'm certainly in favor of married mothers having equal rights. Many of these mothers cannot enroll their children in school or travel with them out side of the country because they lack the legal authority to do so.

However, I would caution reformers to be very careful about various casual boyfriends or sex partners with no real commitment to any children gaining rights in the process.

What a thorny Act

Heartbreaks with Delta Ndou

I nearly lost my cool during a TV recording session recently where I was discussing the need to amend the Guardianship of Minors Act in favour of women.

This was after one of the panelists had proffered the unhelpful suggestion that women need to “know their place’’ and stop “messing up the world’’ by insisting on being treated equally.

He went on to imply that everything was “fine’’ until women decided they wanted to be treated equally when according to our “wonderful traditions everyone knows women are really less than men’’ and then he went on to rave and rant about how women are trying to just “take over everything.’’

How all this nonsense was related to the topic we were discussing is beyond me, but the misguided man was not to be dissuaded as he harshly reprimanded women for “going too far’’ in trying to achieve parity with respect to guardianship.

Basically the Act stipulates that the father is the legal guardian of a child born in wedlock, while the mother settles for full custody in the event that the couple divorces or separates.

It also stipulates that the woman, who has a child out of wedlock, has guardianship over that child, meaning that the Act discriminates against married women by using their marital status as a basis to deny them guardianship of their own children.

Enacted in 1963 and later amended in 1997, there is little doubt that the Guardianship of Minors Act is a thorn in the flesh of many women who struggle to get crucial documents for their children as the law conspires with patriarchal institutions such as the church, Roman-Dutch law, customary and common law, to deny women legal rights over their children.

The Act presumes that women are not fit to be guardians when a great majority of them already fulfil the role of guardians in the lives of their children after the fathers desert them, are in absentia, refuse to take responsibility or are simply indifferent.

It boggles my mind that the matter should be subject to debate at all — to my way of thinking a mother (married or not) should be in a position to acquire relevant documents for their child without being made to jump through hoops, “go bring the father’’ and all these other demands that just give them unnecessary headaches.

I doubt that there is anything crafted in 1963 pertaining to families that could be of much relevance in today’s world, moreover, an Act that confines itself to the “ideal’’ of a family structure, is redundant because the dynamics of families have changed drastically over the years. The premise of my argument is that aside from the glaring social injustice that women are forced to suffer by this Act; it is an Act that has done more harm than good for the “minors’’ it ostensibly was crafted to protect.

Any legal instrument that obstructs the smooth facilitation of children’s documents on the basis of what anatomy the parent who’s signing possesses (ie is it the mother or father) is archaic to say the least.

The reality is that many children fail to get birth certificates because the mother has to go “find’’ the father; many of them fail to enroll at schools and this infringes upon their basic rights.

Many more children are stuck within our borders without travel documents or passports because their mothers are not legally recognised as guardians nor granted the legal authority to execute such documents for them.

Women can fly planes, run corporations, lead armies, head governments, practice law and medicine among a whole host of once male-dominated exploits and yet in Zimbabwe they are evidently not qualified to fill in a passport form for their own children!

Listening to that venomous man going on and on about how we must respect our “traditions’’, I could not help retorting that I for one, have never been sentimental about patriarchal tradition — it has done nothing but oppress womenfolk and I would sooner be rid of it than foist it on the next generation.

What most people forget is that the Act, while it inconveniences mothers, it actually punishes, penalises and ultimately disadvantages the children themselves who miss opportunities of self-actualisation — be it through education or travel.

So change it, if not for the sake of achieving equality — then for the good of the children who bear the brunt of these ill-conceived Acts that serve to institutionalise discrimination.

Parting shot: The law puts the married women under an onerous and expensive burden that most of them are incapable of discharging. The law favours and places the men above women. The guardianship law, together with Common Law and the African Customary Law are discriminatory and impose an unfair onus on women. To take away from her the simple right of executing a passport form is criminal.

— Ms Sarudzayi Njerere of Honey and Blackenberg Legal Practitioners (in defence of Margeret Dongo’s application to acquire passports for her children).