By Carlyn Hambuba
Sunday, November 26, 2006
Theresa Chilala refused to be "inherited" by her deceased husband's family in Zambia through a custom known as sexual cleansing. Her ensuing legal battles highlight the frictions between customary inheritance laws and international norms.
MONZE, Zambia (WOMENSENEWS)--At the tidy homestead of Theresa Chilala, a 79-year-old widow who lives in this hilly region about 180 miles from Lusaka, the capital of Zambia, an old grinding mill rests after years of diligent service. Trees line the west side of the yard, shading three small houses and a good grain barn from the scorching sun.
It all looks very peaceful, until you find what are less visible: 17 unmarked graves that have been added to the homestead since 1994.
Chilala's husband died in 1990 and, for four years, she refused to be "sexually cleansed," a traditional Tonga custom in which a widow is inherited by her in-laws after she has sex with one of her dead husband's male relatives. According to the traditional belief of many Tonga--who live in Mozambique, Zimbabwe and Zambia--the ritual frees a widow from her husband's ghost.
Her in-laws pressed her to submit to the ritual but she resisted. Not only was she afraid of the prospect of HIV infection, but Chilala is a devout Christian and says her faith does not support such rituals.
Eventually, she says, her in-laws drove her off her husband's property. They also took away her livestock, forcing her to start over as an old woman on this new homestead.
It didn't end there. For the next 16 years, she says, they buried the bodies of dead people--relatives of her in-laws--on her property. Chilala and her children fear living among the graves and she has allowed the grass to grow high around them so they are less obvious.
Over 16 percent of Zambians between 15 and 49 are infected with the HIV virus.
In an effort to curb the spread of AIDS, the sexual cleansing ritual is being abolished in more and more Tonga communities. With over 1 million members, Tonga are a significant minority in the country of 11.5 million. A modified ritual is taking hold instead. Called the "kucuta," a man rubs his private parts against the widow, but does not have conventional sex with her.
Chilala's community officially discourages the cleansing practice, but many here still practice it secretly.
"Sexual cleansing is important in our culture," says Mable Cheelo, a middle-aged woman from a village in the Chikuni area near Chilala's home. "It is done to drive away ghosts from a widow because immediately after a husband dies the wife carries a ghost. If not sexually cleansed one can die early or even run mad."
In 1997 Chilala turned to the Law and Development Association, a local organization that helps women and works against gender violence in Zambia, a land-locked nation in the heart of Southern Africa with an annual per capita income of $490.
The group referred her case to Zambia's Lands Tribunal, a national court based on customary and traditional laws.
Chilala hoped the tribunal would bar her relatives from further burials and allow her to return to her husband's homestead. In 2002, the tribunal, under the new administration of President Levy Patrick Mwanawasa, ruled against her.
Under normal procedures she would have been informed about the hearing date in good time. But because Chilala does not have a telephone she was not informed and was absent for the verdict and unrepresented in the proceeding.
"I just received news that I had lost the case and then had to pay 5 million kwacha (about $1,500) within 21 days," she said. "It made me wonder how a decision could be made in my absence in a lands court. How do they win the case, when it was I suffering with graves in my midst?"
At a conference in early January 2006 on women's land, property rights and livelihood in the context of HIV-AIDS in Lusaka, more than 80 participants from five countries--including human rights activists, women's rights advocates and traditional leaders--mandated the Justice for Widows and Orphans Project to appeal Chilala's case to traditional leaders at the Royal Foundation of Zambia.
Later that month three representatives from Justice for Widows and Orphans traveled with five senior chiefs to meet at Chief Monze's palace in the town of Monze, about 19 miles from Chilala's homestead. There, Chieftainness Nkomesha, from Chongwe, east of Lusaka, called for a meeting with chiefs from the southern province and others to help her. In February 2006 those chiefs banned Chilala's in-laws from burying any more people on her new property.
While Chilala expresses satisfaction with the resolution, Florence Shakafuswa, a women's legal advocate, is still bristling.
In a recent interview, Shakafuswa rattled off a long list of reasons why the application of customary law in Chilala's case violated the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which Zambia signed in 1985.
"The fact that the Zambian customary law permits the widow's in-laws to invade upon her privacy by encroaching on the property that she shared with her husband; the fact that the customary law would permit interference with the well-being and livelihood of her family by forcibly evicting them and making them destitute; and the fact that the customary law would interfere with her home by making it virtually uninhabitable due to the ever growing graveyard on the property, clearly established that the widow's rights
. . . are being violated," she says.
Shakafuswa, executive director of the Justice for Widows and Orphans Project of the Lusaka-based nongovernmental organization Women and Law in Southern Africa, says this is only one case of where customary and sexually discriminatory laws are violating international rights treaties that the government has signed. She says her project has unearthed hundreds of cases of widows and orphans who have been turned off land they formerly lived on when their husbands or fathers were still alive.
Carlyn Hambuba is freelance journalist based in Lusaka, Zambia. She specializes in gender and environment issues.