In February, 1981, the Customary Law and Primary Courts Bill was “celebrated” into law by the Parliament of Zimbabwe. It was swept into being with the reforming fervour which the new government brought to an independent Zimbabwe. The debating chambers, and loudspeakers at country-wide mass rallies, echoed with condemnations of the previous customary court structures and with the promise of popular justice and people's courts. Whether the legislation was “revolutionary” is arguable, but the atmosphere of its birth is an important indicator of its nature—a people's government was providing for a people's law. This article is mainly concerned with the changes in court structure and jurisdiction brought about by the Customary Law and Primary Courts Act. However, some observations on the early life of the primary courts, and on other matters of law reform in Zimbabwe, are necessary in order to breathe life into the legislative discussion. Many of these observations are personal—gleaned from field research into the primary courts in Zimbabwe between April, 1982, and February, 1983.

In 1967 the Malawi Parliament passed a set of statutes which were intended to provide a new legal framework for rural agrarian change. The President, Dr. Banda, emphasised during the proceedings that existing customs for holding and tilling land were outdated, wasteful and totally unsuitable for the development of a country with agriculture as the basis of the economy. He suggested that the main problem was the absence of individual titles:

“No one is responsible & for the uneconomic and wasted use of land because no one holds land as an individual. Land is held in common & and everybody's baby is nobody's baby at all.”

He argued that the existing laws and customs discouraged individuals and institutions from providing loans for the development of land. New laws were therefore required to ameliorate the situation:

These remarks were not completely novel; they echoed and repeated recommendations in the reports of the East Africa Royal Commission, 1953–55, and the Conference on African Land Tenure in East and Central Africa held in Arusha, Tanzania, in 1956. The defects of customary land tenure pertaining to shifting cultivation and the preponderance of group control over land holding and use which the Malawi President particularized were not the only justifications for reform. The reports suggested that tenure reforms were necessary where population explosion and shortage of land contributed to the uncontrolled emergence of land dealings; where unfixed and uncertain customary land boundaries contributed to excessive land litigation; and where succession rules led to excessive fragmentation and sub-division of holdings.

The right to freedom of religion and belief is closely linked with the rights to free expression of opinion, to peaceable assembly and freedom of association. In particular, they share the common purpose of assuring to an individual freedom of choice. Moreover, to be effective, each normally requires the use of one or other of the means of dissemination of knowledge and information, which include newspapers, books, pamphlets, petitions, posters, radio, television and motion pictures. Likewise, to be effective, the rights to freedom of religion and free expression of opinion must be linked to freedom of association in the sense of the right to form and to join organisations for the advancement of particular views and interests. This is particularly true of cities and other densely populated areas. Indeed, the essential similarity between these rights was reflected in their embodiment in a single article in earlier Sudan constitutions. A consequence of these similarities is that the denial or infringement of any one of them has further ramifications on the other rights apparently left intact. Accordingly, the present study, while focusing on freedom of religion, will make brief excursions into the related rights of free expression of opinion, assembly and association. Before considering problems raised by freedom of religion, reference must first be made to its necessity.

The long-standing Western Sahara dispute which has plagued the OAU finally came to a head in August, 1982, when, as a consequence of the admission of the Saharan Arab Democratic Republic to the Organization earlier in the year, the Nineteenth Summit Conference due to have been held in Tripoli was postponed sine die. Following a Moroccan-inspired boycott, an insufficient quorum existed to allow the meeting to proceed. The Western Sahara dispute has emphasised some of the shortcomings of the OAU. Although it may have been initially assumed that the OAU was better suited to handle this dispute, it was handicapped by the intransigent attitudes of the parties to the dispute. Threats to cancel membership of the Organization if the SADR was ever admitted were repeatedly made by Morocco and some of her allies. The SADR secured membership of the OAU in February, 1982, and the worst fears appear to have been confirmed. The question therefore arises as to what the future holds for the OAU, but first it is necessary to examine how the SADR was admitted to the OAU.

The Matrimonial Causes Act, 1 of 1973 (Cap. 29:07 of the Laws of Botswana) was passed by the National Assembly on 27 October, 1972. It was assented to by the then President of Botswana, the late Sir Seretse Khama, on 2 February, 1973, and entered into force a week later on 9 February, 1973. The Act applies to civil marriages only, i.e. marriages concluded in terms of the Marriage Act (Cap. 29:01); customary law marriages have been excluded from its operation. As its short title indicates, the Act deals with matrimonial causes, that is to say divorce, judicial separation and the annulment of marriages and matters incidental thereto such as the property rights of spouses, custody, guardianship, maintenance and the jurisdiction of the courts.

During its first 10 years of existence the Act has been the subject-matter of many a decision of the High Court and provisions of it have been considered also by the Court of Appeal. Most of these decisions deal with divorce. In academic circles, too, the Act received attention, witness the review by Chris Himsworth in the Journal of African Law. This review was written immediately after the Act came into force. An updated account is therefore appropriate. As I intend to approach the Act from a broader historical and jurisprudential angle, I will deal with it afresh rather than use Himsworth's penetrating but positivistic analysis as a frame of reference.