Student Number: 24101998 Course Title: LLB Module Title: Family Law and Succession Assignment Title: "Article 6 of the Maputo Protocol is arguably one of the most important provisions for safeguarding the rights of women in marriage. In particular it provides for compulsory registration of marriage in an official register. This is buttressed by Article 16 (2) of CEDAW. Critically discuss: i. why the registration of marriages in an official register is so important in the protection of women’s rights; (5 marks) ii. Zambia’s compliance levels to this requirement for registration of marriages; highlighting extent of compliance and gaps or barriers in the registration law and policy." Lecturer: Dr. Chanda Word Count: 1089
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Introduction
International human rights law provides a framework for ensuring equality within marriage. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the ‘Maputo Protocol’)¹ and the Convention on the Elimination of All Forms of Discrimination against Women ('CEDAW')² are key instruments in this area. Specifically, Article 6(k) of the Maputo Protocol requires state parties to ensure that 'every marriage is recorded in writing and registered in accordance with national laws, in order to be legally recognized'. This is supported by Article 16(2) of CEDAW, which calls for the compulsory registration of marriages. This essay will argue that while the formal registration of marriage is a fundamentally important mechanism for protecting women’s rights, Zambia’s compliance with this requirement is significantly undermined by its dual legal system and various practical barriers, leaving many women in customary unions without legal protection.
This discussion will first outline why marriage registration is so crucial for the protection of women’s rights. It will then critically analyse Zambia’s legal framework, highlighting the limited scope of its registration laws and the significant gaps that exist between statutory obligations and the reality of customary marriages, which remain largely unregistered.
(i) The Importance of Marriage Registration in Protecting Women’s Rights
The requirement for compulsory marriage registration is not a mere administrative formality; it is a critical tool for safeguarding the fundamental rights of women. A registered marriage provides official, undeniable proof of the union’s existence, which is the gateway to claiming a wide range of legal rights and protections that are often denied to women in unregistered unions.
First, registration is vital for securing property and inheritance rights. Upon the dissolution of a marriage through divorce or the death of a spouse, a marriage certificate is often the primary evidence required for a woman to claim her share of matrimonial property or to inherit from her deceased husband’s estate.³ Without this official proof, women, particularly widows in customary settings, are vulnerable to 'property grabbing' by the deceased’s relatives, who may deny that a valid marriage ever existed.⁴ Registration legally establishes the woman's status as a spouse, giving her a firm legal standing to challenge such dispossession and claim her entitlements under succession laws.
Second, registration provides protection against certain harmful practices. The process of registration requires the verification of the ages of the intending spouses, which serves as an important safeguard against child marriage, a practice explicitly condemned by Article 6(b) of the Maputo Protocol. By demanding proof of age, the state can prevent marriages involving minors from being legally formalised. Furthermore, in monogamous legal systems, a central marriage registry can help prevent bigamy and polygamy, protecting the rights of the first wife who may be unaware of subsequent unions entered into by her husband.
Finally, a marriage certificate is an essential document for accessing a range of social and economic rights. These can include a spouse’s pension benefits, health insurance coverage, and the ability to obtain passports and other official documents for herself and her children. The legal recognition that registration confers is therefore directly linked to a woman’s economic security and her ability to navigate state bureaucracy and access essential services. In essence, the act of registration transforms a private relationship into a legally recognised status with enforceable rights, providing women with a crucial shield against discrimination and abuse.⁵
(ii) Zambia’s Compliance, Gaps, and Barriers
Despite ratifying both CEDAW and the Maputo Protocol, Zambia’s compliance with the requirement of compulsory marriage registration is partial at best. The primary challenge stems from its pluralistic legal system, where statutory law co-exists with various systems of customary law, creating a significant disparity in the legal protection afforded to women depending on the type of marriage they are in.⁶
#### Zambia's Dual Legal Framework: A Barrier to Uniform Compliance
Zambia's legal framework recognises two main types of marriage: statutory marriage, governed by the Marriage Act,⁷ and customary law marriages, which are recognised as valid but are largely regulated by uncodified, community-specific traditions.⁸ This dualism is the root cause of the compliance gap. While statutory marriages adhere to the principle of registration, the vast majority of Zambians, particularly in rural areas, marry under customary law, where registration is not mandatory.⁹ This means that most marriages in the country fall outside the protective ambit of a formal registration system.
#### Statutory Marriage: Limited but Compliant
The Marriage Act provides for monogamous marriages and sets out a clear procedure for their solemnisation and registration. According to the Act, every marriage solemnised must be registered immediately by the officiating minister or registrar in a marriage register book.¹⁰ A copy of the marriage certificate is then sent to the Registrar-General. This system is fully compliant with the requirements of the Maputo Protocol and CEDAW. However, its application is limited to the small minority of the population who contract statutory marriages. These unions are more common in urban areas and among those with higher levels of education. For the majority of Zambian women, the protections offered by the Marriage Act are therefore theoretical rather than practical.
#### The Challenge of Unregistered Customary Marriages
Customary law marriages are legally recognised as valid in Zambia, provided they are conducted in accordance with the traditions of the communities involved.¹¹ However, there is no legal requirement for these marriages to be registered in a central, official register. While the Minister has the power to make regulations for the registration of customary marriages under the Marriage Act, this provision has not been effectively implemented on a national scale.¹²
This lack of mandatory registration creates a profound legal vulnerability for women. Without a certificate, a woman in a customary union has no simple way to prove her marital status. In the event of divorce or the death of her husband, she may struggle to claim maintenance, a share of property acquired during the marriage, or inheritance. While the Intestate Succession Act¹³ does provide for the rights of a surviving spouse irrespective of the type of marriage, proving that one was indeed a spouse in a customary union can be a difficult and costly evidentiary challenge, often pitting the woman against her in-laws in court.¹⁴ This situation is directly contrary to the spirit and letter of Article 6 of the Maputo Protocol, which aims to ensure all marriages are legally recognised through registration.
Efforts to reform this area have stalled. A draft Marriage Bill was proposed over a decade ago with the aim of harmonising the different marriage laws and introducing mandatory registration for all types of marriages, including customary ones.¹⁵ However, the Bill has never been enacted, reflecting a lack of political will to address this critical gap in the law. This legislative inertia leaves millions of women in a precarious legal position.
#### Socio-Economic and Cultural Barriers to Registration
Beyond the legal gaps, there are significant practical barriers that deter the registration of marriages. Firstly, registry offices are concentrated in urban centres, making them inaccessible for much of the rural population. The costs associated with travel, as well as the registration fees themselves, can be prohibitive for many families.¹⁶ Secondly, there is a lack of public awareness about the benefits of marriage registration. For many, the completion of customary ceremonies and the payment of lobola (bride price) signifies the conclusion of the marriage, and state registration is seen as a foreign and unnecessary bureaucratic step.¹⁷ These cultural attitudes, combined with the practical difficulties, mean that even if registration were made available for customary marriages, uptake would likely be low without extensive public education campaigns.
Conclusion
In conclusion, the compulsory registration of marriage, as mandated by the Maputo Protocol and CEDAW, is an essential mechanism for protecting the rights of women to property, inheritance, and security. It provides the official evidence needed to claim these rights and acts as a safeguard against harmful practices like child marriage.
While Zambia’s legal framework for statutory marriage complies with this international standard, its overall compliance is fundamentally flawed. The failure to make registration mandatory for customary marriages, under which the majority of the population marries, creates a significant protection gap. This legal vacuum, compounded by practical barriers of accessibility, cost, and cultural attitudes, leaves many Zambian women without the legal proof of marriage they need to secure their rights. The long-delayed enactment of the Marriage Bill, which would harmonise and modernise the law, represents a continuing failure by the state to fulfil its obligations to protect the rights of all women in marriage, regardless of whether their union is statutory or customary.
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Footnotes
¹ Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 11 July 2003, entered into force 25 November 2005) 1 AHRLR 11 (Maputo Protocol). ² Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW). ³ Solidarity for African Women's Rights Coalition, Zambia and the Maputo Protocol: A Shadow Report (2018) 12. ⁴ Women and Law in Southern Africa (WLSA) Zambia, The Justice Delivery System and the Poor: A Gender Perspective (WLSA 2005) 45. ⁵ Chileshe, M, 'Harmonisation of Marriage Laws in Zambia: The Intended and Unintended Consequences of the Marriage Bill, 2015' (2018) 2 University of Zambia Law Journal 89, 92. ⁶ Munalula, M, Legal Process: Zambian Cases, Legislation and Commentaries (UNZA Press 2004) 301. ⁷ The Marriage Act, Chapter 50 of the Laws of Zambia. ⁸ Himonga, C and M.S. Munalula, Family and Succession Law in Zambia (UNZA Press 1995) 24. ⁹ Solidarity for African Women's Rights Coalition (n 3) 11. ¹⁰ The Marriage Act, s 23. ¹¹ Himonga and Munalula (n 8) 28. ¹² The Marriage Act, s 38(1)(f). ¹³ The Intestate Succession Act, Chapter 59 of the Laws of Zambia. ¹⁴ Mwenda, W.S, Women’s and Children’s Rights in a Plural Legal System in Zambia (PhD Thesis, University of the Western Cape 2005) 189. ¹⁵ Chileshe (n 5) 90. ¹⁶ Ndulo, M, 'The Changing Nature of African Marriage' in F. M. Deng and I. W. Zartman (eds), A Strategic Vision for Africa (Brookings Institution Press 2002) 211. ¹⁷ Women and Law in Southern Africa (WLSA) Zambia, 'Is Child Marriage a ‘Necessary Evil’?: The Case of the Proposed Repeal of Section 34 of the Marriage Act' (WLSA 2017) 14.
Bibliography
#### Treaties and Conventions Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 11 July 2003, entered into force 25 November 2005) 1 AHRLR 11
#### Legislation (Zambia) The Intestate Succession Act, Chapter 59 of the Laws of Zambia The Marriage Act, Chapter 50 of the Laws of Zambia
#### Books Himonga C and Munalula MS, Family and Succession Law in Zambia (UNZA Press 1995) Munalula M, Legal Process: Zambian Cases, Legislation and Commentaries (UNZA Press 2004) Ndulo M, 'The Changing Nature of African Marriage' in Deng FM and Zartman IW (eds), A Strategic Vision for Africa (Brookings Institution Press 2002)
#### Journal Articles Chileshe M, 'Harmonisation of Marriage Laws in Zambia: The Intended and Unintended Consequences of the Marriage Bill, 2015' (2018) 2 University of Zambia Law Journal 89
#### Reports and Theses Mwenda WS, Women’s and Children’s Rights in a Plural Legal System in Zambia (PhD Thesis, University of the Western Cape 2005) Solidarity for African Women's Rights Coalition, Zambia and the Maputo Protocol: A Shadow Report (2018) Women and Law in Southern Africa (WLSA) Zambia, The Justice Delivery System and the Poor: A Gender Perspective (WLSA 2005) Women and Law in Southern Africa (WLSA) Zambia, 'Is Child Marriage a ‘Necessary Evil’?: The Case of the Proposed Repeal of Section 34 of the Marriage Act' (WLSA 2017)
