The Evolution of Zimbabwe’s Law of Intestate Succession: Improving Welfare for Widows Under Customary Law

Abstract

This article examines the evolution of Zimbabwe’s law of intestate succession since it gained independence in 1980, with a specific focus on improvements made to the welfare of widows married under customary law. It explores the influence of international human-rights legislation, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), in advocating for gender equality and women’s rights. The ratification of the African Union Protocol on the Rights of Women in Africa and the SADC Protocol on Gender and Development further supports women’s inheritance rights in Zimbabwe. The article highlights the significant strides made by the Constitution of Zimbabwe Amendment (No 20) 2013 in promoting gender equality and non-discrimination measures. The distinction between testate and intestate succession is examined, and light is shed on the historical flaw of male primogeniture within Zimbabwe’s intestate succession framework. The article discusses the landmark Magaya v Magaya case, wherein the Supreme Court declared male primogeniture unconstitutional, citing violations of the fundamental rights to equality and non-discrimination. The article also addresses the challenges and inconsistencies within customary inheritance laws that hinder the full emancipation of widows. Furthermore, the article explores the parties left behind after the death of the other party in civil partnerships, specifically examining the rights and entitlements of surviving partners. The study delves into relevant legislation, including the Constitution of Zimbabwe, the Administration of Estates Amendment Act, and the abandonment of the rule of male primogeniture. It also examines the introduction of section 68F(2)(b) to the Administration of Estates Act, which mandates the division of the net estate among surviving wives. This provision ensures that widows are provided for and acknowledges their contributions to matrimonial property. In addition, the study emphasises the need for consistent legal protection for widows and minor children against the misappropriation of matrimonial property. The study discusses the various types of marriage recognised in Zimbabwe, including civil marriage, customary marriage, and unregistered customary law union (UCLU). It places its primary focus on customary unions, highlighting the legal complexities they pose in determining marital status and inheritance rights. The article also explores the “immediately resident concept”, which grants surviving spouses the right to immovable property and household artefacts if they resided in the house prior to the deceased’s passing, providing some level of protection to widows. In conclusion, the article acknowledges the progress made in Zimbabwe’s law of intestate succession but stresses the necessity for further alignment with international conventions and the removal of barriers to ensure equitable inheritance rights for spouses, including those in civil partnerships. The article emphasises the importance of providing adequate legal protection and entitlements to surviving partners in order to enhance their welfare and address any potential disparities in inheritance rights.