BEST PRACTICES AND CHALLENGES OF WOMEN’S POVERTY AND INEQUALITY
4.8 Poverty and inequality in Zambia
4.8.10 Justice system and customary law in Zambia
One way to reduce inequality and poverty in a nation is to have progressive laws that are applied fairly and equitably. The laws of Zambia are expressed through the constitution which is the highest law of the land. The law ensures that there is fairness and equal treatment and ensures that one is discriminated in any way. The constitution of Zambia prohibits discrimination of anyone. It states that “A person has the right not to be discriminated against,
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directly or indirectly, or any grounds including birth, race, sex, origin, colour, age, disability, religion, conscience, belief, culture, language, pregnancy, health, marital, ethnic, tribal, social, or economic status.” Furthermore, the constitution recognises property rights and protects all people against the deprivation of property. Article 34(1)(a)(b) states that all persons have the right to privacy which includes the right not to have their person, home, or property searched and their possessions seized. These two articles speak to non-discrimination of a person on any ground and to the right of property and protection of property. In the past, discriminatory articles have been cited from the previous constitutions of Zambia.
Zambia has now however, made significant progress in repealing discriminatory clauses from the laws and this is being achieved through the Gender equity and quality Act of 2015 and the 2016 constitution. Article 51(1), states that “Women and men have the right to equal treatment including the right to equal opportunities in cultural, political, economic and social activities.”
Article 51(5) furthermore urges that “Any law, culture, customs, or tradition that undermines the dignity, welfare, interest or status of women or men is prohibited (Constitution of the Republic of Zambia, 2016).” Notwithstanding these articles, I have observed that implementation of the law embedded in the constitution, is not always adhered to in all sectors of society in Zambia. For instance, customary law always comes in the way of statutory law.
Where for example, the constitution says that both men and women are entitled to equal access to land, however, traditional land usually belongs to men.
Veit (2012) argues that “Most women in Zambia do not enjoy the same land rights as men.
Zambia’s Lands Act provides support for women who hold statutory land, but the law does not apply to customary land. Most land is held under custom and most customary tenure systems do not provide women with significant land rights — even when they do, traditional institutions often do not effectively implement the rules.” The creation of Land Act in Zambia which maintains two categories: the customary and state, allows room for abuses to be perpetuated especially where local courts administer customary law and perpetuate rules that disadvantage women over men (Veit, 2012). Banda (2012) argues that the most critical concern for most women in Zambia is the issue of control and ownership of land. As already discussed above, land is critical to reducing poverty in Zambia, especially keeping in mind that women in Zambia are said to produce more food than even men in the country, but they have less or no
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access to land (Banda, 2012). Lack of access to land by women, especially traditional land, will continue to aggravate the disparity between women and men in Zambia and will continue to negatively impact food production and security in many households in rural areas.
Customary law also allows many discriminatory acts which are prohibited by the constitution of Zambia. While the constitution upholds equal treatment of all citizens, women find themselves oppressed culturally, economically, politically, and socially. The subordination of women is to a large extend fuelled by Zambian cultural and traditional beliefs. Women from young are taught to view men as superior and men grow up with a perception that they are superior to women. This kind of perception or world view is later carried to another sector of society such as workplaces where women, despite the censure of the law, are deemed less, paid less and are segregated to top jobs (Nyambe, 2019). Another negative aspect of the customary law which increases inequality is articulated by Milimo below:
“in the event of divorce, women (especially those from matrilineal groups) together with their children are expected to go back to their natal families, leaving behind everything they have contributed to acquisition during the marriage; and · after divorce, customary law does not provide for maintenance of women, and in some cases of children. Their natal families are expected to assume responsibility for them, which is a source of hardship for women and children given the fact that the extended family system has been weakened by many factors including poverty and urbanization (Milimo et al., 2004).”
As we have already seen, despite women being the majority in the country, they are still fewer in number than men, in decision making positions. There is a need for the statutory law to enforce a deliberate law to fast-track the number of women in key positions of decision making.
Having women, for example, occupy key positions in legislature might enable them to legislate law that will help them eliminate inequality and poverty against the majority. Zambia is far behind in realising fifty percent representation and meaningful participation of women in public life (GRZ, 2015). Increasing representation and participation can be done through the quota system which has been applied in some developed countries (Aggio, 2001). Aggio (2001) further says that gender quotas arose as a response under-representation women faced in the political arena, and this required introducing of stipulated minimum levels of representation for each sex. This arrangement was seen as a way to boost women’s participation in politics.
Most rural women hardly understand the language used by legal practitioners and as a result, they cannot gain access to legal or judicial services. Women’s rights, on paper, have failed to practically serve marginalised women. On the other hand, women cannot access these services
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because justice and legal services are expensive and because of deeply rooted customs and practices in society (Milimo et al., 2004). There is need for more education on how legal assistance works and it is government’s duty to assist the poor, especially poor rural women to afford legal services. The law, as embedded in the constitution, has the capacity to bring about equity and equality and expedite both human development and economic development.
However, if its application is not, carefully and effectively applied, the law might remain inactive and can only be paper law which lacks force. There is especially, need for customary law to align itself to statutory law, without which customary law will continue to oppress women and this will exacerbate inequality and poverty.