Monday, February 3, 2014

When Justice Disenfranchises Women

...A typical case of how Malawi's property distribution laws affect women

Life, for 24-year-old Chikondi Mtchini, has become a struggle against the recurring bouts of despair which threaten her.

“I have been robbed by the court,” says 24-year-old Chikondi Mtchini.

Since mid-September this year, that’s how the mother of two begins her stories- with a grotesque parody of court judgment.

What has infuriated Mtchini is the way current laws disregard the needs of women when it comes to the distribution of property after divorce.

“I married my husband in 2007, and tried my best to help him take care of the family. I used to sell malambe (juice extracted from the baobab seed), so that we could find it easy in life. However, we have issues with my husband, and that led to divorce. Instead of distributing our property equally, the court gave my husband more than me and our children,” Chikondi says, struggling for speech.

“I feel that I have been oppressed and do not know what to do with my two children. As a jobless woman, I have become so stranded that I am staying at the house of my sister, herself a married woman,” Chikondi says.

She said her husband, whom she married in 2007, abandoned the family in February this year, prompting her to withdraw K120, 000 from his account so she could buy food, take care of education expenses for one of her children, and pay off a landlord who was threatening to grab family property.

Can of worms

When the husband came home and learned that she had used K120, 000, he chased her from their matrimonial house, which prompted her to refer the issue to Village Headman Magasa in Blantyre.

Magasa confirmed handling the issue, but said, from the way the two parties exchanged words, it was clear that no counsel would flatten their bumpy relationship.

“We, as chiefs, make it a point to settle issues that arise among our subjects from time to time. But, sometimes, and this is normal, we find it prudent to refer matters beyond our jurisdiction to the formal justice system,” the chief says.

In fact, what Chikondi and her ex-husband did is what the Catholic Commission for Justice and Peace (CCJP) promotes through its primary justice programme- a Malawi Government initiative aimed at sensitizing community members on the need to prioritise the traditional justice system.

CCJP primary justice regional coordinator for the Southern Region, Dalitso Chris Mipando, says primary justice has inherent advantages over the formal justice system. He cites the example of people being able to make peace after their issues are settled by chiefs, religious leaders, political leaders, marriage counselors, among others.

“That’s the beauty of primary justice. Former enemies become friends again, and co-exist in issues of community development as if nothing wrong ever happened, “Mipando says.

He adds: “However, for primary justice to achieve its intended purpose, community members need to realise that judgment cannot favour both sides. But when parties to a case are not satisfied with the decision of the primary justice system, they are free to go to the formal justice system.”

Magasa knows all these processes well and, realising that there was more to the issue than would be settled by the traditional (primary) justice system, he authored a letter which the Mtchinis had to present at the Blantyre Magistrates’ Court.

“We presented the letter at the Blantyre Magistrates Court on 29 August 2013,” Chikondi says. “But I am not happy with the judgment because, in the end, the court ordered the husband to pay K2, 000 to each of two children we had every month (amounting to K4, 000) and K3, 000 for my and the children’s rental fees.

“Out of all the property we owned together, the court only gave me chairs, one double bed, and plates, which it distributed equally between us. But the husband got a refrigerator, three television sets, home theatre, plates, and spoons, among others. What pained me most is the fact that the court bluntly said I had no say in property distribution because I don’t work,” she says.

Now, Chikondi says life is no longer the same for her, as her child has stopped going to nursery school because we have no money,” Mtchini said.

Contrasting signs

However, our investigations at the Blantyre Magistrates’ Court revealed that the court, filed as Cause Number 195 of 2013 involving Mtchini and Patrick Kankhwangwa, gave Chikondi more than one refrigerator, chairs, and plates to the woman.

For instance, court records indicate that Chikondi was allowed to retain custody of the two children, and was given a television screen, home theatre, beddings, dining set, clothes, and kitchenware while Patrick- the ex-husband- got a decoder, display, clothes, kitchenware, and refrigerator.

The court also ruled that the husband should be providing K7, 000 to the children monthly.

Reality check

Speaking about the issues, national coordinator of the Malawi chapter of Women in Law in Southern Africa Educational Trust, Seodi White, says magistrate courts are mandated to distribute family property when the value of the property is question does not exceed K2 million.

White said, when it comes to judgement, there were two schools of thought on the distribution of moveable marital property.

“Ordinarily, the law is a little difficult but, according to the two schools of thought, property is either distributed equitably, which is half-half, or by considering one’s contribution in he acquisition of such property,” White said.

Section 24 (b) (1) of the Constitution of the Republic of Malawi, which was also cited in he case, stipulates that on the dissolution of marriage, women have the right “to a fair distribution of property that is held jointly with a husband; and (ii) to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.”

At a recent meeting in Lilongwe, Chancellor College based expert Ngeyi Kanyongolo observed that Malawi’s laws were not gender-sensitive, attributing the development to the many problems faced by women who seek recourse from the justice system.

“When we ask officials at the Law Commission, they say that they do not look at that (gender) when formulating laws,” she observes.

May be because justice, as they say, is blind. It knows no Chikondi Mtchini.

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