BASE STUDY REGARDING THE IMPACT OF FAMILY LAW MAIN CONCLUSIONS Isabel Casimiro (Coordinator) Liazzat Bonate Rudo Gaidzanwa Sonia Seuane Amélia Neves de Souto (Contributor) Fátima Fonseca ( Contributor ) André Cristiano José (Proofreading) CENTRE FOR AFRICAN STUDIES – EDUARDO MONDLANE UNIVERSITY, MAPUTO MOZAMBIQUE OXFAM AMERICA
Technical Profile Authors – Isabel Casimiro and Fátima Fonseca Publisher – Centre for African Studies, Eduardo Mondlane University Proofreading – André Cristiano José Layout – Humberto Coimbra Printing – XEROX Maputo Number of Copies – 200 Cover photograph – This edition was financed by OXFAM America Maputo, 2009
Index 1. Introduction ...................................................................................................................................... 1
2. Main Results of the Study ................................................................................................................ 2 2.1 Marriage Types, Forms of Family Constitution and Registration.............................................. 2 2.2. Women’s Estate Rights ............................................................................................................. 3 2.2.1. Divorce and a Woman’s Estate Rights ............................................................................... 3 2.2.2. Inheritance and a Woman’s Estate Rights .......................................................................... 5 2.3. Right to Food .......................................................................... Error! Bookmark not defined. 2.4. Type of Cases and Entities for Conflict Resolution ................ Error! Bookmark not defined. 2.4.1. Manica District ................................................................. Error! Bookmark not defined. 2.4.2. Paquitequete Neighbourhood ........................................... Error! Bookmark not defined. 2.4.3. Natite Neighbourhood ...................................................... Error! Bookmark not defined. 2.5. Knowledge and Usage of the Law and Access to Justice ....... Error! Bookmark not defined.
3. Recommendations .......................................................................... Error! Bookmark not defined.
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1. Introduction The current report is a result of research work regarding the impact of Family Law in Mozambique, carried out by a multi-disciplined team1, composed of researchers of the Eduardo Mondlane University and The University of Zimbabwe. The research team included: Isabel Casimiro, Sociology, CEA/UEM, coordinator; Liazzat Bonate, History, CEA/UEM; Rudo Gaidzanwa, Sociology, University of Zimbabwe; Sónia Seuane, Anthropology, Faculty of Humanities and Social Sciences, UEM; Amélia Neves de Souto, History, CEA/UEM, responsible for the proofreading of the literature; and Fátima Fonseca, Jurist, Judicial Court of the City of Maputo. The study integrates itself in a system of assessment and developed learning in the scope of the Program “Gender and Legal Reform “of Oxfam America's Southern Africa Regional Office (SARO), and had three main components: basic empiric data collection that would be used as future reference for the studies, allowing comparisons to be made and keeping up with the level of development of the situation; establishing indicators for the assessment of the impact of the program in its entirety; identification of reference points to allow measurement of contextual transformations that occur in the diverse areas of Program intervention. The work was conducted and based on a multiplicity of strategies and methodological tools, namely discussions with focus groups, individual interviews with key mediators (from formal institutions as well as informal cases of conflict resolution), case studies (as a means of analyzing the social dynamics, conflict resolution methods and identifying the tensions and/or discrepancies between the law and its application, highlighting the negative or unintentional consequences of legal reform), analysis of the cases/processes entered into court in the years 2002, 2004, 2006 and 2008. The choice of the years, and the intervals that separate them, is linked with the need to understand the development of the cases, before and after the approval of The Family Law. The field work took place in the provinces of Cabo Delgado (in the Natite and Paquitequete neighborhoods), Manica (Manica district) and Maputo (Boane district), to serve as a model to ensure the geographic and socio-cultural representativeness of the country. The Cabo Delgado province is situated in the northern region of the country, is predominantly matrilineal and has much Islamic influence (although the Natite neighborhood is dominated by Catholics). Manica, the central province of Mozambique (that borders Zimbabwe) is markedly patriarchal. In the south is 1
The research team included: Isabel Casimiro, Sociology, CEA/UEM, coordinator; Liazzat Bonate, History, CEA/UEM;
Rudo Gaidzanwa, Sociology, University of Zimbabwe; Sónia Seuane, Anthropology, Faculty of Humanities and Social Sciences, UEM; Amélia Neves de Souto, History, CEA/UEM, responsible for the proofreading of the literature; and Fátima Fonseca, Jurist, Judicial Tribunal of the City of Maputo.
situated the province of Maputo, subject to a plurality of influences and practices, given its proximity with South Africa and the city of Maputo, the country’s capital. The report presents the main results and recommendations regarding the following subjects: Marriage type or form of family constitution; The woman's estate rights in the case of divorce / separation; The woman's inheritance rights; The right to food; Entities for conflict resolution; Knowledge and use of the law and access to justice
2. Main Results of the Study 2.1 Marriage Types, Forms of Family Constitution and Registration While it reflects the diversity of options, needs and possibilities available to the citizens, the forms of family constitution are quite varied in all geographic and socio-cultural contexts studied. Nonetheless, it was possible to identify the predominance of common-law marriages in the Boane district, traditional weddings in Manica (involving the payment of a dowry) and in the case of the city of Pemba, a “dispute” between an Islamic religious wedding (in the Paquitequete neighborhood) and a traditional wedding (in the Natite neighborhood). In the case of Manica it occurs however that there is a tendency to reduce traditional weddings, especially on the part of the younger segment of the population, with the majority of cases not having economic conditions or finances to pay the dowry. The issue of common-law marriage is problematic and has raised some conceptual and practical problems, especially when confronted with the law and the uses and customs. Incidentally, many of those interviewed understand that the Family Law does not allow the capture of the diversity of relationships in progress, many of which do not necessarily lead back to the concepts of polygamy, monogamy or common-law marriage. The juridical consequences of the law, as affirmed by those interviewed, do not always correspond to the real intentions of the people. Considering this form as it is actually practiced, the common-law marriage finds itself in an intermediary zone, not clearly defined, between marriage and casual relationships, mainly when a man is not in any other matrimonial bond. According to custom, a man can marry more than one woman and establish other casual relationships. However, the men are combining a multiplicity of relationships, crossing the different types of marriages and forms of family constitution. This reality has created problems for the women and their respective children, especially when they are convinced that they are in a monogamous relationship. There is a general tendency not to recognize the validity of common-law marriages by the citizens, especially for estate purposes. 2
These situations become more problematic by the fact that, on the one hand, the registration of traditional and religious marriages is not a common practice. On the other hand, because the state has a diminished capacity for intervention in vast areas of the country, especially in rural areas, results in the registration of births, marriages and deaths not being sufficiently systematic. Finally, a marriage registration costs a minimum equivalent to $50 USD, which is very expensive for the majority of the population. In truth, there is little recognition of the citizen’s everyday problems from the part of official entities, in the same manner that formal law cannot always respond to the realities in which they find themselves living. Furthermore, the issuing of official documents is very slow, causing added problems to the exercising of basic rights such as studying, voting, and marrying in the registry office, inheriting belongings, etc. These limitations make it more difficult to apply the law in the sense of protecting women and children, once one of the most important premises are missing: the registration that makes it possible to prove their identity or marital situation.
2.2. Women’s Estate Rights 2.2.1. Divorce and a Woman’s Estate Rights The research shows us, in general, that the women are dependent on the men (husbands or family) in respects of life strategies, whether these are of an economic or social nature. In patriarchal societies, there is clear tension between customary practices and formal law. The men are of the opinion that the law is contrary to the manner within which familial contexts resolve divorce cases. They argue that law cannot be adhered to because generally women don’t work, and the entire family estate is acquired by men. Not having a legitimate expectation of dividing the belongings, they further affirm that this prevents women getting married for mere estate interests. Thus, in accordance with customary rights, in a case of separation or divorce, the woman returns to her parents’ home, taking with her only the belongings that the man (husband) has authorized, normally personal belongings or domestic utensils. However, if the separation was as a result of adultery committed by the woman, she is permitted to take even less with her. The circumstance that common-law marriages constitute many families increases the vulnerability of women in divorce cases. The research work allowed the collection of many cases that illustrate this problem. As an example: Lúcia, originally from Magude, is 44 years old. She was in a common-law marriage with a man for 12 years. 6 children were born out of that relationship, being that Lúcia already had 1 child. After receiving compensation from her work (as the company folded), Lúcia’s partner abandoned the home and lived with another woman. After many years of separation, Lúcia’s “partner” claimed the house’s property. He intended to sell it and evict Lúcia. With the assistance of the neighborhood secretary and the police, Lúcia and her children were 3
effectively removed from their home in December 2007. Furthermore, the neighborhood secretary “confiscated” Lúcia’s cellphone and demanded a payment of 9.000,00MT. At this moment, Lúcia and her children sleep in the home of their neighbor. In the Paquitequete neighborhood (Pemba, Cabo Delgado), as earlier mentioned, there is a strong influence of Islam, with the religion being an important reference of the life structure of the community. According to Islam, there is a certain relationship between the estate rights of the woman in the constancy of the marriage (nafaqa) and after the divorce. In Paquitequete, the value of nafaqa depends on the standard of living the woman was accustomed to before marriage, in principle, the man may not marry if he does not have the means to provide the woman with the same standard of living. During marriage, the man must guarantee the woman’s sustenance, provide a home, food, clothing and other belongings. The home should be solid and located in a secure place, in order for the woman to live without any concerns. If the home does not comply with these requirements, the woman is free to refuse to live with the man until he rectifies the situation. The man’s relatives are prohibited from living in the home. The exception to this relates to minor children from a previous marriage, although the woman should still consent to them living there. If the man is a polygamist, he has to offer the same standards of living to his various wives, being that each one of them has the right to her own home. However, if the women have children, they receive the value of the nafaqa in proportion to the number of children in their care. This is the case with one of the interviewees, originally from Namapa and residing in Paquitequete since 1979. None of his three wives have any formal employment, with the interviewee supporting two of them to start a small family business and the other one to open a machamba (backyard vegetable garden). The first wife (who has seven children) receives 500,00 MT monthly from the husband; the second wife (with 4 children) receives 450,00 MT; the third, not having any children receives 300,00 MT. In Paquitequete, the duty of sustaining a woman is prolonged after a divorce for a period of three months, or if the woman happens to be pregnant, until the child is born. Apart from attendance duty at an Islamic wedding, donations are obligatory on the part of the man towards the woman, locally known as mahari. If the mahari is not paid during the marriage, it must be paid if the couple divorce or if the husband dies. If the mahari is not paid, the woman has the right not to consummate the marriage. The value of the mahari varies in view of the contexts. In Pemba, usually a double-size bed and mattress with a value not less than 1.000,00 MT is offered. The Family Law foresees certain situations which, once verified, can lead to the expiration of donations between couples: the recipient’s death, except if the donor confirms the donation in the three months that follow; annulment of the marriage; divorce or judicial separation of people and belongings, where the recipient is declared the guilty party (article 169). In Paquitequete the Islamic rule is adhered to whereby a woman can lose the right to mahari if the marriage is annulled before it 4
is consummated or, if the similarity which is foreseen in The Family Law, the marriage is annulled by fault of the woman. In principle, in an Islamic marriage there is no sharing of belongings, nor obviously the joint administration of the couple’s belongings, mentioned in article 102 of The Family Law. Currently there are some transformations with respects to marriage laws in Paquitequete, looking to adjust the Islamic laws to the local reality and towards the poverty context. Contrary to what the laws prescribe, rarely do woman stay at home without working, caring for children and pleasing their husbands. Rather they work and contribute towards the household management. Incidentally, when people marry they are counseled by the qadis (judge or official entity) to mutually support one another and to lend support to their relatives. Another important difference concerns the administration of belongings. The Paquitequete Muslims act in a slightly different way to the Islamic law, closer to the provisions of The Family Law. As a shaykh-kadi of the neighborhood explains, relating his own experience: “In a marriage there are belongings that should be considered common. I was married about 40 years ago. Everything I brought to the home, including equipment and money, belongs to both of us. Anything I buy, I tell my wife that it belongs to her as well” In the Natite neighborhood (Pemba, Cabo Delgado), issues regarding marriage and the obligations of spouses are viewed in a slightly different manner to that in Paquitequete, although there is no agreement of opinions between men and women. The women say that the man is compelled to build a family home. On the contrary, the men are of the opinion that they are under no special compulsion to build a home, as they can inclusively live in the man’s or woman’s relatives’ homes. Nevertheless, in practice it is the men that build the family home. In spite of the relative differences of rules that regulate the marriage, when facing a split in marital relationships, we find many similarities between the various socio-cultural contexts that were studied. As in other areas, in Paquitequete there exists a tendency to dispossess a woman of her belongings that were acquired during marriage. The husband’s maternal uncles keep all the belongings of the woman and the children. However, information given us by our mediators shows that the situation tends to be better when the neighborhood’s community court intervenes.
2.2.2. Inheritance and a Woman’s Estate Rights Regarding the exercising of inheritance rights, women are confronted with very serious limitations in all contexts in which research was done. It is clear that currently, inheritances are not regulated by The Family Law, further enforcing the administration of the Civil Code of 1966. In the meantime, the issue of inheritances is also structured on family relationships, limiting it’s 5
organization, the relative responsibilities of its members, and the access and distribution of resources. The absence of updating the administration of inheritances can, of course, limit the setting of objectives as set out by The Family Law. According to the tradition of patriarchal societies, inheriting is also done according to the rules of the patriarchate. For example, if it is relatively easy to attain land and other resources by way of relatives, marriage or an administrative authority, it is extremely problematic to keep the possession (or the property) of those resources. In cases where husbands have died, women are subjected to “expropriation” of belongings by some of the husband’s relatives. Poverty has been one of the justifications for these types of practices, in that some are of the opinion that the widow will find better living conditions amongst her relatives. However, the latest justification is the intention to ensure that the estate remains in the family of the husband, thus safeguarding against the eventuality of having new nuptials on the part of the widow. Meanwhile, it is important to emphasize that we are not dealing with a consensual rule, having men that defend the expulsion of a woman “merely” in situations where she has been blamed for the death of her husband. In any manner, it is worrying to realize that the idea that the woman must abandon the family home and return to her parents, is still deeply rooted and almost never contested, in discussion or through acts, by different social players. In the majority of cases, the exercising of inheritance rights depends on the correlation of pressures on the family, the type of property in question and the existing interests, being the vulnerability of women, in principle, becomes greater the younger they are and whilst they yet have no children. Having adult children, there is greater possibilities to avoid the “expropriation” of belongings of the woman by way of moiety or inheritance. In Pemba, the position of widows is also problematic, in respects of inheritance rights, even though we can affirm that it is worse in Natite, when compared to Paquitequete. Normally there are conflicts between the deceased husband’s family and the widow, primarily over the house and the household contents. In the majority of cases, accusations of witchcraft are the leitmotiv for the “expropriation”. Similarly, what happens in the south of the country, the relatives on the side of the husband, decide as to future of the estate. They can inclusively remain with all the belongings, especially if the woman does not have any children. Sometimes, the relatives on the husband’s side stipulate that the woman and children may keep the belongings, on the express condition that she may not remarry in the future. Still, the woman continues vulnerable, as there are numerous examples of expulsion based on the pretense that a man was seen leaving the house during the night. In cases where the woman and children remain with the home and other belongings of the couple, the relatives on the side of the 6
man stipulate the condition that the woman may not re-marry. If, how we saw, the interests are subjacent to the customary rules, they constitute a problem for the exercising of inheritance rights on the part of the woman, the absence of a preventive juridical culture and the ignorance (or non-usage) regarding the processes of division, can bring about other problems for men and women. That is the example with Kay, a 26-year old youth, residing in Chimoio, who when six years old, her mother died. Kay’s father re-married. Children were born out of the new marriage. Meanwhile Kay’s father also died. Three years later, Kay’s stepmother got together with another man and took with her all the household belongings (including the pension of her previous husband), leaving Kay and her younger siblings without any support. Kay presented her problem to the local police and the Mozambican League for Human Rights. This case perfectly highlights the difficulties that can arise for the citizens’ inheritance rights, by the fact of not resorting to the courts to formalize the divisions and non existence of a will.
2.3. Right to Food The subject of food is a very problematic one in the sense that there exists clear tension between the customary right and the Family Law, both in matrilineal and patriarchal societies. Family Law recognizes the right of food sustenance to spouses, children and other relatives, brothers, descending or ascending family members, single mothers and women of a polygamous relationship in the case of a husband’s death. In this case, the polygamous relationship should have lasted more than five years and if the couple is not separated de facto for longer than a year at the time of the husband’s demise. In patriarchal societies, the man becomes responsible for the provision of food to his children while he is the father or head of the family. Wives also have the obligation to care for the children though the provision of love and other domestic responsibilities. These norms result from the fact that children are considered as belonging to the father, unless the wife has not received a dowry. If the children are living with their mother and other relatives, the father should compensate them in a way that covers maintenance expenses, in case he claims the children for himself. If there is no dowry, the children lose their inheritance rights as they may not claim belongings that belong to the maternal family. If during the marriage the right to supply food to the wife is not questioned, the situation becomes different when there is a divorce, as many view the man as not being responsible to provide food to his ex-wife. It is alleged that the wife who is an adult is in a position to look for work that will sustain her. In matrilineal societies the issue of maintenance to wives and children when there is a divorce is dealt with in a different manner, as it is believed that the maternal uncle is responsible for the 7
woman and her children. Thus, the biological father can leave and start a new relationship while not having the obligation to care for his ex-wife and children. In Paquitequete, the wife may simply receive the remaining muhari to which she is entitled, if this is the case. As far as children are concerned, they must get full support from the father. However this does not happen everywhere in the country. In many cases, the father stops to provide sustenance when the conjugal relationship comes to an end. Even in cases where the father keeps his children, support becomes irregular. Problems associated to food sustenance form part of conjugal conflicts and to the fact that some children are not registered at birth. Arlete’s case is paradigmatic. Arlete is 44 years old, has four children and lived in a common law marriage since 1978. Her husband who was from Zambézia, was an immigrant in South Africa. Arlete built a house in 1987 in the neighborhood of Mafalala with very little support from her husband. In 2005 Arlete’s husband began displaying a very violent behavior, alleging that she had evil spirits. The acts of violence towards the family included the sexual abuse of their 15 year old daughter. Afterwards her husband decided that they should sell the house and move to Zambézia where his family was living. Arlete asked her family for help but her reconciliation with her husband was not possible. Arlete’s husband claims that she has no right to the proceeds from the sale of the house because she is a woman and does not contribute towards the family’s income. Arlete sought help from an association that renders legal aid to women on the advice of the neighborhood’s secretary. The association supported her with the intent of initiating action with the Children’s Court. This was the only way for Arlete to register two of her children. As far as the house is concerned, there is a legal process underway in the city’s court for the sharing of common belongings and closure of this case. The difficulty in proving legal paternity of the children and setting legal motion into action is central to Arlete’s case and many similar ones. Yet, when legal action becomes successful, many men distance themselves from the court’s decisions, by changing jobs or address, hiding their true financial status and using other cunning ways. Further, many men demand sexual relations from their ex-wives given the state of vulnerability where they and their children find themselves.
2.4. Types of Cases and Entities for Conflict Resolution Confirming studies on justice administration that have been undertaken in Mozambique, the research found a number of processes where problems are directed to, like the family , sector chiefs, neighborhood secretaries, community courts, Frelimo Committee (Natite more specifically), religious bodies, non-governmental organizations - as it the case with Gabinete Júridico das Mulheres, in Pemba – Institiuto de Patrocínio e Assistência Jurídica (IPAJ), Attorney’s Offices and Judicial Courts. 8
The information supplied by those who act on behalf of the judiciary sector on underlying matters confirms the evidence gathered on the ground. We highlight the following cases:
"Separation of goods: this emanates from existing problems related to couples who separate or one of them dies when they are living in common law marriages;
"Regulation of parental power: this usually happens due to food issues because men often agree that children should remain under the care of their mothers, but do not contribute to their sustenance;
"Official regulation of paternity: it usually precedes food action, seeing there is a legal need to prove paternity, before payment for food is demanded.
"Custody’: the reason for custody is associated with the need to transact funds allegedly left by someone.
Given the diversity of cases and the different ways of dealing with these, we list hereunder some of the main statements emanating from the districts and neighborhoods that were under study.
2.4.1. District of Manica Access to the law is conditioned by the degree of knowledge people have on legal matters. Most citizens seek the advice of their families, listen to their traditional and religious leaders or go to community courts. The judicial court is usually their last hope in trying to solve conflict when all other means have failed. Most of the cases presented in the community courts are related to couples (united through traditional marriage) with conjugal problems such as adultery, polygamy, lack of assistance (particularly when the man has more than one wife) and defamation involving sorcery accusations. The decisions made by the community courts are based on tradition and morals and often result in reconciliation. Adultery committed by men is not sanctioned by these community courts. If the adultery is committed by a woman, the man with whom she committed adultery is obliged to pay between US$ 100 and US$ 200 to the “offended” person that is to the husband, as compensation and the in-laws must return the dowry. A monetary compensation should be equally applied when a minor girl (from 14 to 16 years of age) loses her virginity or becomes pregnant without the traditional norms being observed. The minor’s parents demand the payment of a compensation for the loss of virginity and a dowry. The amount of the compensation depends on the financial capacity of the man involved.
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We came across cases that reveal a certain change from the traditional rules that may have come about from the legal education campaigns developed in the province: even though a woman may have committed adultery, the goods acquired during the marriage are divided in two equal portions between the husband and the wife, should they divorce. As for the children, they stay with the mother until they are 7 years of age, after which they will move and live with their father. The father is responsible for the maintenance of the children while they live with their mother. This movement of change was equally confirmed to us by the very own judges of the Makudu Community Court who state that the communities are beginning to understand that they should not prevent widows from benefiting from the goods they inherit. The ways that members of the Chinfura Community Court are dealing with similar cases also reflect an internal process of transformation of the traditional rights with respect to women and children’s rights. In dealing with divorce matters, when the man states his intention of leaving his family, the judges will first try and convince him to stay. If he still decides to leave, the judges convince him to sign a declaration, committing him to guarantee maintenance to the children. If the man is employed, the court will present this declaration at his place of work, in order that the maintenance amount corresponding to the needs of the children may be deducted from his wages. Further, the court will advise the man to leave the household. The majority of cases recorded in judicial courts are related to the regularization of parental power and maintenance. These cases are generally presented by women. However, a considerable number of the cases filed with the judicial court are usually retracted by the complainants. This is probably due lack of knowledge on the women’s part as to their rights, and pressure put on them by their families, as well as the unavailability of lawyers and other services of legal interest. As we know, IPAJ is legally responsible to represent needy citizens who do not have the financial means to hire a lawyer. However, in Manica, as in other districts and provinces of the country IPAJ has not been accomplishing their objectives because their members are collecting fees for services rendered. Procedural delay is one of the main constraints in accessing the legal system as told to us by professionals of the judicial forum. We were given an example of the Gaza province where the deaths of many immigrants working in mines in South Africa are recorded. Many widows take their cases to the courts, even though they run the imminent risk of losing all their belongings to their in laws. These legal processes are usually so slow that many widows even die before their cases are finalized, thus affecting their orphans negatively.
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2.4.2. Paquitequete Neighbourhood In the neighborhood of Paquitequete we find two main entities, the community court and a religious body. The Community Court of the Paquiteque Neighborhood does not have its own premises and this makes it difficult to process and file documents accurately. The Court answers to the Provincial Registry Directorate and Notary, where they submit their annual reports. The court receives annually 50 to 70 cases, 60% of these being "social cases", that is, familial conflicts. The court charges a fixed fee of 100,00 MT to the complainant and the accused upon presentation and discussion of the case brought to them. This amount is used to buy work material and to minimally meet any operational expenses incurred by the court. Just as in other villages and other communities, the community court tries to solve the conflicts in accordance with local customs, common sense, equity and legal requirements, as prescribed and regulated by law. In Paquitequete, besides the community court, the intervention of the religious authority in matters relating to the Islamic faith is very important in resolving conjugal conflict. The Quran demands the involvement of two arbitrators when there is misunderstanding between a couple, each family being represented by an arbitrator. The arbitrators seek the couple's reconciliation. If reconciliation is impossible and the husband is guilty of causing separation, he might be forced to declare talaq (formal rejection of wife). When the wife becomes the guilty party, the arbitrators have two options: force her to return to her husband, after asking him to treat her with love, or simply declare the divorce by imposing on the wife to pay compensation to her husband. In accordance with Islamic rules, the talaq in order to be binding has to be presented three times in a period of three months and during this time the wife has to maintain herself free from any immoral or sexual accusations. After receiving the first talaq, the wife enters a period of waiting that will include three menstrual cycles. If she is pregnant she will have to wait until the baby is born. Reconciliation is still possible during this period. The third talaq becomes irrevocable. The separation becomes a divorce. Not all aspects of the normal talaq are followed in Paquitequete. The divorce is normally formalized and executed in a single act. Diversity in all the cases presented in all the different villages and neighborhoods lead couples to choose what is contextually better for them. There is also a variety of procedures being used by the social assistants involved in conflict resolution as well as legal bodies who are in a better position to solve problems correctly. Thus, nor the entities nor the people using them demand or apply Islamic law exclusively, but combine local tradition with state law and rules as well as the sense of justice of other local and provincial structures of conflict resolution such as neighborhood chiefs, community police, the Mozambican Woman’s 11
Organization (OMM), non-governmental organizations, the Republic Attorney General and judicial courts. This is an example recounted in the first person of a case taken to a judicial entity; "when a woman becomes a widow there are many problems. I was a widow for twenty years and I suffered. The family of my dead husband created many problems for me. At a time when my children were still small they wanted to send us away. I was always in court trying to do the best for my children. At times I thought of leaving, but that would cause more problems for the children. I had to speak to the attorney. He called the family and explained to them that I would not get married again because I had children and therefore they could not tell me to go. The problems stopped, but I never received any assistance from my in-laws. I worked as a domestic worker. I washed and ironed clothes. I worked for ten years while my children were growing and studying. This case took me to court 20 years ago. Since then I have listened to many similar stories”.
2.4.3. Natite Neighborhood In the neighborhood of Natite, familial conflicts occur mainly due to jealousy, adultery and abuse of alcohol. The conflicting parties normally turn to the humu or maternal uncle. If the problem is not resolved or one of the parties is not satisfied with the resolution taken, they will resort to the community chief and the community court. The Community Court of the Natite neighborhood was established in 1979. The judicial body (three men) emanate from the days of popular courts. Only one of the judges of this court has benefitted from education on children's rights. Contrary to what was observed in Paquitequete, the court in Natite does not produce activity reports and do not record cases. The community court charges a fee to resolve conflict. Unlike Paquitequete, the decisions taken are not based on legal principles, but on a simple generic understanding of the problem and the fact that an agreement is reached: "in agreement with a reached consensus, the court and its judges, after having presented the evidence and listening to witnesses and the parties, unanimously decide ……After the case has been judged, the judges of the Community Court of the neighborhood of Natite in Pemba sign jointly with the parties involved.’ Corresponding to the cultural and political identity of the majority of the inhabitants of Natite, the catholic community and the Frelimo Party Committee are often called upon to intervene in disputes occurring in the neighborhood.
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2.5. Knowledge and Usage of the Law and Access to Justice Work on the ground has made it evident that citizens do not have knowledge of The Family Law and the same applies to the majority of institutions and structures operating on the ground, including community courts and traditional police and authorities. In fact, many of them do not even have access to the law. The non-governmental organizations working in the area of family with AFRICARE (who works with orphans and on issues of inheritance) also have a poor understanding of legal matters. Others divulge incorrect interpretations or offer opinions that compromise the objectives for which the law has been approved. Many of the organizations that were involved in the process of reforming the Family Law are not represented in the majority of provinces and districts. For instance, in Manica the few organizations that have been contributing to the divulgence of the law and that are engaged in family mediation are LEMUSICA (that works mainly with orphans and victims of domestic violence), the Mozambican League for Human Rights (LDH), Kwaedza Simukai Manica (KSM), CARITAS and ANDA. Those organizations still lack knowledge on law issues and need to gain better competence in order to divulge information. Nevertheless, there is a certain understanding of the rights albeit little, especially in Manica, due to the fact that NGO’s are distributing pamphlets and posters detailing some articles of the Family Law. On the other hand, some officials of a local radio station, who are instrumental in divulging the rights to the people, have no knowledge of the law. The issue does not consist on merely allowing access to the law, but on adopting the correct strategy that allows assimilation of the content, seeing that there are still many cultural barriers to be overcome. This communication strategy should inclusively inform the legislative elaboration process. Some concepts, principles and rules do not fit in with citizen’s values and it is therefore necessary to educate and inform them in order that they may be accepted. The need and obligation to assist a divorced woman with food has for example not been easily accepted , especially when the woman is healthy and is in a position to work. Actually, in Mozambique the law is known better in the city of Maputo, where governmental and non-governmental legal services are made available to people in a larger way. The further we move from the nation’s capital, the poorer the knowledge becomes as far as the law and rights are concerned. In the provinces, the parties depend most of the time on initiatives provided by the entities they seek, and this determines or conditions their access to the law. In most of the cases, and especially when people approach community entities (whose methodology is not properly regulated) the outcome will always depend on the judge’s own character and the personalities of 13
those who form part of such entities. The exercise of one’s own rights is never guaranteed, especially the rights of women, as with the case of Lúcia mentioned above. In a context where the majority of the population is illiterate and where the State through IPAJ does not guarantee efficient legal aid to its citizens, it becomes obvious that the lack of knowledge will impact the access to justice negatively. The absence of a representation system for the poorer citizens may signify that they agree to issues that are detrimental to them, even in judicial courts where the legal control is stronger. This is an illustrative example: Gee got divorced three years ago after having been married for fifteen years. She opted for divorce through mutual consent. Gee and her husband were represented by the same lawyer. Gee is of the opinion that she got less than what she was entitled to because she did not understand the content and the implications of the documents she signed. The divorce proceedings took place in a court situated 200 km from her place of residence. Gee has two daughters who are still in secondary school. According to the terms of agreement, Gee kept the apartment that was bought while she was married. The husband kept a house. Gee receives a pension of 15.000,00 MT with which she has to pay food, school, clothes and other expenses towards her daughters. The agreement contemplated a car for Gee, but this did not materialize. The apartment is still on her ex-husband’s name, although they had agreed that it should be transferred to the daughters’ names. The agreement further states that should Gee leave the apartment, the rent will be divided between her husband and their daughters. Besides the house, Gee’s ex-husband also kept the savings belonging to the couple. Gee is unemployed due to health problems. In fact she is finding it difficult to integrate in the job market due to her Portuguese nationality and the fact that she has limited education. Gee had never heard about Family Law when she got divorced. She suspects that the content of the divorce agreement was schemed by her husband, the lawyer and the registry official. Some of the needs for legal information and defense of rights are mitigated by civil society organizations, especially those that defend human rights and women’s rights and offer free services to the citizens. However they are far from fully responding to the ever increasing, diverse and complex demands which often lack in very specialized services.
3. Recommendations
The State should assure an all inclusive manner of registering births, marriages, divorces and deaths. Besides agents, the State can to this end make use of facilitators who are physically close to the communities, like local chiefs, religious leaders, 14
students and other individuals. These people can make the necessary forms readily available to the citizens and facilitate the completion of the same;
The registering and access to documentation should be done in an easy manner and be free of charge in order to include the poorer citizens, the illiterate and all those that in one way or another have some kind of difficulty in making use of public services;
A clear and efficient dissemination strategy should be adopted in order to satisfy the needs at different socio-cultural levels. In this strategy the use of radio should be preferential as the best and more accessible way of communicating with the population. Other ways of transmitting information should be encouraged such as the theatre, music, pamphlets, etc;
The process of law divulging should be complemented with initiatives to promote woman autonomy in the different areas of her life, especially from an economic point of view;
The legislative elaboration should combine the judicial technique with the need of effective sense transmission;
The law should be translated in all local languages so that it may be internalized and debated within linguistic reference parameters that are symbolic to the community. Presently, 57% of Mozambicans cannot read or write Portuguese. This actually is not the language used by the majority of people in their daily lives;
Educational programs in schools, universities and institutions of professional training, especially training of magistrates and other judiciary professionals, should emphasize the importance of women's and children’s human rights;
The role of community courts should be clarified as well as the roles of other informal entities in resolving conflicts and the type of relationship that they should have with community courts;
The law of the community courts should be actualized and regulated;
A democratic process of revitalization for the community courts should be put into place;
Courses on issues relating to human rights, Constitution of the Republic, judicial organization for judges of community courts and for community authorities should be implemented;
Services provided by IPAJ should be amplified to the entire country and should not only concentrate on legal aid but information as well;
Cooperation between IPAJ and associations or institutions of higher education that render legal aid to needy citizens should be encouraged; 15
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There is a need to organize seminars that explain Family Law and these should be made available to a diversified public including government officials who have the professional responsibility of implementing such law.
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BIBLIOGRAPHY An-Na'im, A. A., ed. 2002. Islamic Family Law in Changing World: Global Resource Book. London/New York: Zed Books Ltd. El Alami, D. & Hinchcliffe, D. 1996. Islamic Marriage and Divorce Laws of the Arab World. London/The Hague/Boston: Kluwer Law International. El Hayek, S. 1994. The Meaning of the Verses of Sacred Koran. São Paulo: MarsaM Journalistic Publisher Ltd. Coulson, N. J. 1964. History of Islamic Law. Edinburgh University Press. He/she hurts, A. R. 1984. Shar´ah: The Islamic Law. London: Ta Has Publishers. Nasir, J. J. 1990. The Islamic Law of Personal Status. London/Dordrecht Boston; Graham & Trotman. Santos, Boaventura of Sousa, João Carlos Trindade & Paula Meneses [Editors], 2006, Law and Justice in Multicultural Society. The case of Mozambique. CODESRIA (Dakar), Center of Juridical and Judiciary Formation (Maputo), and Center of Social Studies (Coimbra), Dakar. Trinity, João Carlos, 2006 (Rupture and Continuity in Political Legal and Processes. In: Santos, Boaventura of Sousa, João Carlos Trindade & Paula Meneses [Editors], CODESRIA (Dakar), Center of Juridical and Judiciary Formation (Maputo), and Center of Social Studies (Coimbra), Dakar, pp.31-61. Trinity, João Carlos, 2004, "Interview with Maincha Pitara, Leader of the Woman's Juridical Cabinet in Pemba, province of Cabo Delgado". In: Santos, Boaventura of Sousa and Teresa Cruz and Silva (Org) Mozambique and Reinvention of the Social Emancipation, Center of Juridical and Judiciary Formation, Maputo, pp. 235-264 UTREL. 2006. Law of the Family (Logged). Republic of Mozambique.
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