When culture and the law meet : an ethical analysis of the interplay between the domestic violence act and the traditional beliefs and cultural practices of the Ndau people in Zimbabwe.

Abstract

Doctor of Philosophy in Religion, Philosophy and Classics. University of KwaZulu-Natal, Pietermaritzburg 2016.

This thesis offers a critical analysis of the interface between culture and law focusing on the impact of the Domestic Violence Act (DVA) (Chapter 5: 16) of Zimbabwe on the Ndau1 people‟s culture. The DVA was introduced in 2007 as a legal instrument to deal with a wide range of gender-based violence problems, including domestic and intimate partner violence.
 In order to find out why domestic violence is widespread in Ndau traditional communities, the thesis goes on to explore and identify two critical factors of Ndau culture, namely: patriarchy and masculinity as responsible for domestic violence prevalence. Furthermore, the thesis recognises that some of the DVA provisions such as arrest without a warrant, emphasis on separation and lack of adequate supporting resources for survivors are also responsible for perpetuating domestic violence. The thesis thus maintains that in so far as Ndau culture can be called upon to account for the prejudices suffered by women, the DVA has not effectively improved Ndau women‟s lives either. Instead, the existence of the DVA, to some extent, creates a dilemma associated with cultural allegiance for Ndau women. It is observed that when culture and the law meet, more often than not, it is culture that emerges triumphantly. The breach of confidentiality by law enforcement agents becomes an ethical issue that arises and affects the effectiveness of the law within communities with strong traditional beliefs and cultural practices. Ndau women are therefore torn between breaching confidentiality by using the law and observing allegiance to their culture. For this reason, the thesis realises that both culture and the law need to be interrogated in order to find the way forward to minimise the prevalence of domestic violence within traditional communities such as the Ndau. Thus, using three interrelated theories of analysis namely; legal paternalism, African feminist ethics and feminist jurisprudence, the thesis lays out bare the fact that there is need for a paradigm shift in dealing with the domestic violence problem in traditional communities in Zimbabwe. In order to adequately deal with the problem of violence in intimate relationships, the thesis proposes that African feminist jurisprudence be considered as an alternative basis for the construction of legislation against domestic violence. It is hoped that the key characteristics of African feminist jurisprudence which are communalism, compassion and harmony can go a long way in the formulation of a DVA that can reach into the lives of women in all the different traditional communities in Zimbabwe.