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Why Lobola Should not be Refundable - Love must never be refunded nor measured in monetary terms

02 May 2021 at 02:50hrs | Views
The case of Lobola has generated a lot of interest amongst many Zimbabweans and many traditional leaders. The people of Zimbabwe put the proceedings in the public domain which they review the lawfulness of a decision or action made by the high Court regarding the most important pillar of our society.

This case exposed the hypocrisy the Zimbabwean leaders and system have. There is a great talk about women rights yet we commodify and objectify the women kind.

Forty one years after independence the woman's worthy is valued in monetary terms and it is called lobola. The Lobola has been transformed by the court to be a deposit which is refundable. There is no explanation on how unfaithfulness in a trigger for refund. Nobody explains how much should be deducted for the days you have been faithful.

Women's rights are human rights and the deference is a woman is a Hunan whose value is transacted in lobola. The idea of paying lobola should be scrapped abolished and banned. There must be no price tag on the human head and no deposit in the form of dowry should be accepted. We are all entitled to human rights. These include the right to live free from violence and discrimination; to enjoy the highest attainable standard of physical and mental health; to be educated; to own property; to vote; and to earn an equal wage and not to be sold or trapped in a relationship which is called marriage.

But across the globe many women and girls still face discrimination on the basis of sex and gender and are viewed as commodities to passed on for a price called lobola. Gender inequality underpins many problems which disproportionately affect women and girls, such as domestic and sexual violence, lower pay, lack of access to education, and inadequate healthcare those who pay lobola will find it difficult to accept that their partners are equal when they are the ones who have paid. To that end many men are myopic and celebrated the lobola judgement.

For many years women's rights movements have fought hard to address this inequality, campaigning to change laws or taking to the streets to demand their rights are respected but have overlooked the lobola payment.

In the case of Mangwende v Machodo, the High Court, sitting as an appeal court from a decision of the Magistrate Court, decided that lobola can and should be returned to a son in-law under certain circumstances. In the matter at hand, the circumstances were that the in-law had proved that during the subsistence of the marriage or union the wife had cheated on him, albeit with several men, related and unrelated to the husband. It would appear that the husband and the wife had a customary law union. This is a form of "marriage" or union that is recognized under customary law. For the reasons that follow, we respectfully submit that the case was wrongly decided, both from the perspective of Zimbabwean customary law and the common law.

It is our considered opinion that the matter should have been decided on the basis of the definition and understanding of what lobola is and what entails equal rights. Before delving deeper into what lobola is, we would like to point out that the matter at hand came before the magistrate court at the instance of or was initiated by the father in-law, tezvara, who was seeking the balance of his lobola. To that end, we posit that the outcome may have been different had it been the son in-law who had initially brought the case to court. This point or distinction is important because it could very well be that the court viewed the father in-law as being greedy and ungrateful, in that his daughter having cheated on her husband the father in-law still sought the balance of lobola. Accordingly, the court may have, in an endeavour to do justice and show its denunciation of the conduct of both the wife and her father, decided that the court needed to punish them by allowing the son in-law to recover the lobola paid. Viewed this way and using the principles of Zimbabwean common law, it might be that the court saw the father in-law as coming to court with dirty hands. All this, however, we submit, are or should have been irrelevant considerations.

What then is Lobola In his article Lobola Banned in Zimbabwe?, found at Mr. Kanokanga implies that lobola is marriage consideration. With all due respect to him, this is a misunderstanding of the traditional and customary meaning of lobola. Lobola, roora, in pith and substance is a token of appreciation of the love that a son in-law has for his wife or wife to be. In our view, it is immaterial whether the lobola is payable to the wife's father, family or the woman herself. If marriage is a token of appreciation, how can it then be returned? The judgement corrupts the meaning of lobola and taints the culture of tying relationships of two families through marriage.

According to the article Lobola in Zimbabwe, located at When a man failed to present a hoe, or badza, as lobola in marriage, he asked for kutema ugariri, meaning he would stay and work for his bride until the father-in-law was satisfied with his labour then he would be given his bride. So the payment of lobola forces a woman to be submissive. This means if lobola is refundable if there is unfaithfulness a woman is objectified and sex becomes the guarantee of the relationship. Once sex is shared the lobola becomes due and payable(runnable). Sexual and Reproductive Rights are eroded by lobola.

Everyone should be able to make decisions about their own body. Every woman and girl has sexual and reproductive rights . This means they are entitled to equal access to health services like contraception and safe abortions, to choose if, when, and who they marry, and to decide if they want to have children and if so how many, when and with who. Women should be able to live without fear of gender-based violence, including marital rape and other sexual violence, forced pregnancy, forced abortion, or forced sterilization.

But there's a long way to go until all women can enjoy these rights. When their rights are tied to lobola they become sexual slaves.

There have been some major steps forward, but women and girls are still being harmed by lobola which means they cannot make choices about their own bodies without having their husbands demand a refund.

In Zimbabwe, we found that women and girls were left vulnerable to unwanted pregnancies and a higher risk of HIV infection because of widespread confusion around sexual consent in marriages and access to sexual health services. This meant that women would face discrimination, the risk of child marriage, economic hardship and barriers to education will be higher.

Gauging from the sexist judgement given we will not be surprised to see authorities colluding with an abusive male "guardianship" system which controls women's lives and limits their personal freedoms, including detaining women accused of leaving home without permission or having sex outside marriage and subjecting them to humiliating "virginity tests".

Given the above history of lobola, it is clear too that lobola was and has always represented a token or symbol of appreciation by the son in-law for his wife or wife to be. As such, if it was traditionally or customarily meant to be returned, one wonders how the hoe, that would obviously have been used or the duties that the son in-law would have performed in appreciation of his wife could be returned. It was practically impossible. Consequently, our view is that the return of lobola is not supported by the history of its "payment".

The well celebrated case of Conradie V Rossouw 1919 AD 273, established the principle that consideration is not part of the Roman-Dutch law. Roman-Dutch law is the common law that is applied by the courts in Zimbabwe. What this means with respect to lobola is that lobola is certainly not a payment or consideration for a wife. If a son in-law promises to pay lobola, it becomes a binding contract between him and whoever he has promised to pay the lobola to. The other party, the father in law, the wife or her family do not have to do anything in return because consideration is not part of the Zimbabwean common law. Lobola in this respect is no different from a gift which the father in-law or the wife's family can and should enjoy without any fear that it would have to be returned.

The Constitution of Zimbabwe Amendment (No. 20) Act, 2013, the Zimbabwe Constitution, permits the payment or acceptance of lobola. In paragraph 63(b), it provides that everyone has a right to participate "in the cultural life of their choice". There is no debating that the payment of lobola is part of the cultural life in Zimbabwe. So, if one chooses to pay lobola, it is their choice and they should be held to their choice because it becomes a binding agreement, chibvumirano/chirangono, which has to be honoured, regardless of the other side not having given any consideration as part of the agreement. To be clear, lobola and/a wife can therefore not be deemed as consideration to a marriage contract.

Section 16 of the Zimbabwe Constitution states that:

(1) The State and all institutions and agencies of government at every level must promote and preserve cultural values and practices which enhance the dignity, well-being and equality of Zimbabweans.

(2) The State and all institutions and agencies of government at every level and all Zimbabwean citizens. must endeavour to preserve and protect Zimbabwe 's heritage.

(3) The State and all institutions and agencies of government at every level must take measures to ensure due respect for the dignity of traditional institutions.

Lobola has long been recognized as a voluntary act of appreciation by a son in-law. It is part of our cultural values, heritage and a well-established traditional institution or practice.

Accordingly, the State and all its institutions, including the courts of law, must recognize and enforce it, where one chooses to pay lobola.

In our view, the High Court erred by failing to enforce the lobola commitment made by the son in-law. The lobola paid should not have been refunded because it ceases to be what it is, a token of appreciation of one's wife or wife to be. Once you permit lobola to be returned for cheating, it opens up a can of worms as to what other circumstances lobola can and should be returned for. This should really not have been an issue if the High Court had fully appreciated lobola for what it is.

When looking at women's rights it's helpful to have an understanding of feminism. At its core, feminism is the belief that women are entitled to political, economic, and social equality. Feminism is committed to ensuring women can fully enjoy their rights on an equal footing with men. There will be no equality is one part has an upper hand in the relationship. When the son in law holds a trump card against his wife and her family. This creates marital bullies and abusers. Intersectional feminism is the idea that all of the reasons someone might be discriminated against, including race, gender, sexual orientation, gender identity, economic class, and disability, among others, overlap and intersect with each other.

The root of abuse and marital bullying is lobola. It makes it worse when lobola sits as a refundable controlling collateral thing. Women should be respected. Love must never be measured by money in any name it appears as.

If a wife errs in her faithfulness so as men do he failures must be connected to money. Lobola must never be refunded. Whatever is given in love must not be returned in the absence of love.

Source - Dr Masimba Mavaza and Denford Madekufamba
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