Emilia Madziwa looks older than her 33 years. “I have been married for over ten years and I have four children, three boys and one girl,” she said slowly. “I have known no other life apart from looking after my children and husband.”
Madziwa like many women in Zimbabwe has been a victim of gender based violence at the hands of her husband for the past three years. She has made up her mind to take her young children and walk out of the marriage that has caused her untold suffering.
“I want to leave, I cant go on like this but it is difficult because I’m unemployed. How will I sustain myself and the kids,” she said with glassy eyes. “Where do I start, where do I get help? This is what is giving me sleepless nights.”
Several decades ago, Madziwa’s case would have been addressed in the private realm of the family and in other instances, the community but in present day her case can be heard in the public domain of the court of law.
A section of Zimbabwean women are beginning to appreciate the efficiency of formal law in cases not limited to maintenance claims, deceased estates, property sharing and in Madziwa’s case divorce and maintenance.
Madziwa is among several women not only in Zimbabwe but in the region whose access to justice has been hindered by financial constraints. Organisations that represent women’s rights have noted that accessibility to financial resources are among the major reasons why women tend to shy away from seeking legal services and the justice system.
Disadvantaged groups have been identified as those sections in society that are likely to face problems in accessing justice systems. While reasons for difficulties in accessing these institutions may range from them being remote, slow, biased and in some instances discriminatory, for women issues related to affordability have remained tops.
Matshobana Ncube, a Bulawayo based lawyer with Abammeli Bamalungelo Abantu Lawyers Network said the greatest challenge faced by women is the fact that they do not own the means of production, which loosely means they cannot afford to take care of themselves financially let alone meet the expense of engaging legal services when faced with a problem.
“The prime challenge is that the bulk of the women in Zimbabwe are still to access or to enter the economic sphere, that is to own the control of the means of production, very few women are in control. The nature of the political economy in Zimbabwe is that it is skewed towards men; it is the men who go to work whilst in most instances the women stay at home to take up their reproductive responsibilities,” Ncube said.
“In some cases, these women are single mothers who are not gainfully employed and worse still in an economy like ours where the last estimates indicate that 90% of the people are not working, the bulk of these are women.”
Ncube said culture has contributed to women making up the highest number of people who find themselves without jobs. He says local families have always preferred sending a boy child to school over the girl-child making it difficult for women, in a modern economy, to get employed without proper education qualifications.
“But the reality is, for one to access the justice system, one must have money because you have to pay for legal fees and lawyers charge quite exorbitant sums of money, for instance, I charge $210 per hour and very few people can afford this, worse still women who are already finding it difficult to cater for their other daily needs,” he said.
The human rights lawyer said the very few women who have managed to penetrate into the economic sphere have created and or helped in the formation of organisations that provide free legal representation for disadvantaged women.
According to Ncube, Musasa Project and Zimbabwe Women Lawyers Association (ZWLA) primarily serve women’s interests by assisting women who have become destitute to access the justice delivery system.
ZWLA members said while they believe they have played a key role in assisting women in accessing justice particularly those who cannot afford lawyers in private practice, women still find it hard to pay some of the money that is required by the courts in the justice system.
Sethulo Ncube of ZWLA said most women often place the financial needs of the family ahead of their own leaving them with little if any at all to feed into the financial obligations of the courts of law.
“At times in terms of finance, women may want to institute,but while we provide free legal services, they will have to pay the monies that are required at the courts for them to have a record opened, they have to pay the messenger of court or deputy sheriff for that office to serve the relevant person,” Ncube said.
According to ZWLA financial challenges in accessing the justice system for women is not only a thorn in the flesh for Zimbabwean women, but for most women in various countries in the region. Ncube said this is evidenced by the numbers of indigent women against the number of organisations and or institutions that provide free legal representation.
The United Nations Development Programme (UNDP) in 2007 said regardless of the particular reason, access to justice system mechanisms has become a major cause for gender disparities. If women are unable to equitably access justice mechanisms, they are not adequately protected from discrimination as is mandated by the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).
However, for activists and social commentators, lack of knowledge should be addressed in a linear process of ensuring that women assist themselves to acquire legal services as well as justice system mechanisms, an assertion that is supported by women’s organisations.
According to Kudzai Kwangwari, a social commentator, women need to be fully empowered financially and socially to enable them to access the justice system speedily.
He said women who are enlightened particularly on rights based issues usually reach out to such justice institutions without any difficulties. Kwangwari believes tailor made programmes to reduce women’s reliance should be employed.
“There is need for an affirmative approach but care must be taken on how far it is taken lest it weakens and disempowers women because they may relax thinking that such laws will address all their issues without their participation.
“Such approaches should address sectors such as access to education, health, access to and information dissemination and other basic needs, there should be a deliberate effort to ensure women have access to things that can empower them,” Kwangwari said.
Article 7 of the SADC Protocol on Gender and Development which pays attention to equality in accessing justice says state parties should by 2015 put in place legislative and other measures which promote and ensure the practical realisation of equality for women. According to the protocol, there should be equal treatment of women in judicial proceedings in customary, traditional courts and in national reconciliation processes.
Member states are also expected to ensure that women have equal legal status and capacity in both civil and customary law, full contractual rights, the right to acquire and hold rights in property, the right to equal inheritance and right to secure credit. The protocol also says state parties should by 2015 ensure that women have equitable representation on and participation in, all courts, alternative resolution mechanisms and local community courts as well as accessible and affordable legal services for women.
Women who have engaged ZWLA for representation have revealed that while the organisation has presented a ray of hope for financially disadvantaged women, waiting for months to be attended to makes it more ‘expensive.’
“Sometimes, as women we cannot wait, we want to be attended to immediately as is the case with women who engage lawyers in private practice,” said a young mother currently engaging ZWLA in a property sharing dispute.
Such is life for a Zimbabwean woman, particularly the one who dwells in the rural areas, justice delivery system is still a privilege rather than a basic right for her yet statistics show that women make up to 52 percent of the country’s population.
Zimbabwe ratified the SADC protocol on Gender and Development in 2009 but has remained silent on making efforts to ensure a conducive environment for women to fully access justice.
And government has remained arms akimbo not doing anything about this state of affairs. Perhaps one would say gender parity between men and women by 2015 is more of an imagination if justice remains a preserve for the rich!