PROMINENT labour lawyer Caleb Mucheche has launched a constitutional challenge against a decades-old inheritance law that he says “illegally erases” women’s property rights, a case that could become one of Zimbabwe’s most consequential gender-equality test cases since independence.
In an application filed at the High Court on Tuesday, Mucheche is seeking to strike down Section 68(4) of the Administration of Estates Act, a colonial-era clause that effectively strips a surviving civil-law spouse, usually a woman, of inheritance rights if the deceased had an earlier customary union that was never formally dissolved.
The challenge, filed against the Attorney-General and the Master of the High Court, argues that the provision “creates an unconstitutional and discriminatory hierarchy of spouses” by favouring customary-law partners over those in registered civil marriages.
In his 80-page filing, Mucheche contends that the clause violates several constitutional provisions guaranteeing equality, property rights and gender justice.
“The applicant avers that Section 68(4) of the Administration of Estates Act [Chapter 6:01] (the Impugned Provision) is unconstitutional, invalid and must be struck down for being inconsistent with Sections 56, 71 and 80(3) of the Constitution of Zimbabwe as supreme law,” the application reads.
He argues that the law “directly violates Section 56 by creating an unjustifiable and discriminatory exclusionary hierarchy of spouses upon intestate death”.
“The provision singles out and penalises a spouse who contracted a marriage under the Marriage Act [Chapter 5:11] (a civil marriage) solely because the deceased had a prior subsisting customary law union,” Mucheche states.
“The effect is to nullify or severely diminish the civil marriage spouse’s inheritance rights, placing them in a position inferior to the customary law spouse and, in many cases, to other non-spousal relatives.
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“This constitutes discrimination based on marital status and the origin/type of marriage.”
The dispute centres on a technical clause that parliament left intact when Zimbabwe overhauled its marriage and succession laws in 2019 and again in 2022.
Section 68(4) directs that where a man dies intestate while still bound by a customary union, a subsequent civil marriage “shall be regarded as valid only for the purposes of Part IIIA” of the Act, a section governing polygamous estates.
Mucheche argues that this wording amounts to “a legislative sleight-of-hand” that recognises the later civil marriage only to deny it the core protections of marriage, including the surviving spouse’s right to the matrimonial home and household property.
The filing further contends that the clause unlawfully discriminates on the basis of gender and marital status, violating: Section 56 of the constitution, which guarantees equality before the law; Section 71, which protects the right to property; and Section 80(3), which mandates the equal status of all marriages, civil or customary.
“The Impugned Provision violates Section 71 (Right to Property) by arbitrarily depriving the civil marriage spouse of their legitimate expectation of inheritance,” the submission states.
“A spouse in a lawful, registered marriage has a clear and legitimate expectation of inheriting from their deceased partner’s intestate estate, an expectation integral to the marital patrimony and the security of the family unit.
“By effectively nullifying the marriage for inheritance purposes, the Impugned Provision constitutes an arbitrary deprivation of property (or the legitimate expectation thereof) that is not sanctioned by a law of general application that is justifiable in a democratic society.
“The provision denies the subsequent spouse the right to the spousal share they would otherwise be entitled to under the ordinary rules of intestate succession, thereby depriving them of existing or anticipated property rights without due process or a compelling legal justification.”
In unusually strong language, the application describes Section 68(4) as “an anachronistic vestige of the Magaya v Magaya era”, a reference to the infamous 1999 Supreme Court ruling that denied daughters inheritance under customary law.
That judgment, delivered under Zimbabwe’s old constitution, became emblematic of entrenched gender inequities that activists sought to dismantle under the 2013 rights-based charter.
