Zambezia (1978), VI (i)ESSAY REVIEWCOMMISSIONS OF INQUIRY IN A RAPIDLY CHANGING SOCIETYMEMBERS OF THREE recent Commissions of Inquiry have ventured whereangels fear to tread; the subjects of their Reports are key social issues inRhodesian society. Two Rhodesian Government Commissions relating toaspects of family life in Rhodesia have reported their findings: the Report ofthe Commission of Inquiry into Termination of Pregnancy 1976 and theReport of the Commission of Inquiry into Divorce Laws 1977. The thirdCommission, of Anglicans, was set up by the Church of the Province of Cen-tral Africa, Diocese of Mashonaland, and it brought out the Report of theCommission to Inquire into the Legal Status of African Women 1976. TheGovernment Commissions' Reports in theory deal with the total population ofRhodesia, but in practice their findings relate largely to the European popula-tion of Rhodesia, whereas the Church Commission's Report has a broad focuswhich embraces the majority of women in this country.These Reports are here considered from a sociological rather than alegal viewpoint. It is tempting to review the salient characteristics of eachReport in relation to the others, but the diversity of the topics and popula-tions covered does not permit other than a fragmented approach in the spaceavailable. Thus, each Report is treated separately.PREGNANCYBefore the Report of the Commission of Inquiry into Termination of Preg-nancy and the subsequent Termination of Pregnancy Act (No. 29 of 1977)which became law on 1 lanuary 1978, abortion in Rhodesia was governedbasically by Roman-Dutch common law and English case law. Accordinglyall abortions with the exception of those performed for therapeutic purposeswere considered common law crimes. For example, abortion could lawfullybe performed to save the mother's life and the principle was extended byMr Justice Macnaghten's direction to the jury in R. v. Bourne in 1938, thatthe law:does not permit of the termination of pregnancy except for thepurpose of preserving the life of the mother. As I have said, I thinkthat those words ought to be construed in a reasonable sense, and,if the doctor is of opinion, on reasonable grounds and with adequateknowledge that the probable consequence of the continuance of thepregnancy will be to make the woman a physical or mental wreck,the jury are quite entitled to take the view that the doctor, who, inthose circumstances, and in that honest belief, operates, is operatingfor the purpose of preserving the life of the woman.1« (1938) 3 Ail E. R. 615 quoted in Rhodesia, Report of the Commission of In-quiry into Termination of Pregnancy (Cmd R.R. 2, 1976), 4.6!62ESSAY REVIEWThe Commission was of the opinion that this case would be followed in theRhodesian Courts. Thus, abortion would be performed where the continuedpregnancy would cause physical or mental injury to the mother. This allowedfor considerable flexibility in the law. The Report points out that, underthe law- as it then was, Bulawayo had become the 'abortion centre' of Rho-desia. Abortions were performed in Bulawayo Central hospital by gynaecolo-gists after the abortion had been recommended by a general practitioner anda psychiatrist. These abortions were conducted according to the tariff offees laid down by R.M.A./R.A.M.A.S. The terms of reference of the Com-mission stated that it was:To inquire into, consider and report on the need for legislation tomake provision for termination of pregnancy under strictly control-led conditions and, if such legislation is deemed necessary by theCommission, to make recommendations regarding the circumstancesin which termination of pregnancy should be permitted and thecontrol that should be imposed.2The Commission reported that, in view of the ill-defined common lawin terms of the circumstances in which abortion was legal and the consequentexisting uncertainty, it advocated the imposition of certain controls andtherefore recommended the need for legislation to make provision for ter-mination of pregnancy under strictly controlled conditions. However, whilerecognizing that legislation on moral questions should reflect the needs andwishes of the society in question, and while being aware of the universaltrend for liberalizing abortion laws, the Commission admitted that:the evidence indicated that many Š perhaps the majority of ŠŁyounger Rhodesians wish to see abortion laws liberalized. Conse-quently, it may well be that if this trend continues, any Act whichmay now be passed will have to be reviewed in the future.3Despite this admission that its recommendation may become obsoletein the near future and there would be a need for constant review of the legis-lation in the future to take cognizance of changing attitudes, the Commissionrecommended that termination of pregnancy should be permitted only in thefollowing circumstances:(a) Where the continuation of the pregnancy constitutes a dangerto the life of the mother and termination is necessary to ensureher life;(b) where the continuation of the pregnancy constitutes a seriousthreat to the physical health of the mother and terminationis necessary to ensure her continued health;(c) where the continuation of pregnancy creates a great danger ofserious and permanent damage to the mother's mental healthand termination is necessary to avoid such danger;(d) where there exists a serious risk on scientific grounds that thechild to be born will suffer from a mental or physical defectso that he will be seriously handicapped;(e) where the child is conceived as a result of rape or incest;(f) where the mother is an idiot or imbecile.42 Ibid., 1.3 Ibid., 15.4 Ibid., 16.D. R. SEAGER63These recommendations were unanimously accepted by the members ofthe Commission, and one member of the Commission put forward thefurther recommendation on socio-economic grounds:(g) Where the mother seeking termination is destitute and wouldbe incapable of supporting the child without assistance frompublic funds.5While the Commission makes a seemingly liberal gesture by recognizingthat moral questions should reflect the needs and wishes of society, in sub-stance the Commission's recommendations are no different from previouslegislation. The minority recommendation (g) which is innovative and pro-gressive did not carry weight with the Commission. The Commission hasperhaps unnecessarily raised people's hopes of a more liberal legislation,only at best to more clearly define previous legislation. Thus, not surprisingly,the remainder of this very brief Report is largely devoted to recommendationson the controls that the Commission considered ought to be imposed toprevent the recommendations on the circumstances for termination of preg-nancy being interpreted so widely as to result in termination on social andeconomic grounds or even on request.Following upon this Report of the Commission of Inquiry, the Termina-tion of Pregnancy Act changed the law relating to abortion and defined thecircumstances under which a pregnancy may be terminated, but does notinclude the Commission's recommendations (c) and (g). This means that thereis now no provision under the present legislation for an abortion where thepregnancy is a threat to the mother's mental health, whereas previous inter-pretation of the common law allowed for abortion on the mental healthgrounds. Thus, to compound the conservative portion of the Commission'sReport, Parliament took a retrogressive stand on the question of abortion.DIVORCE LAWSThe Commission of Inquiry into Termination of Pregnancy can be said tohave made no real attempt to take a more liberal stand, but such a criticismcannot be levelled at the Commission of Inquiry into Divorce Laws whoseReport was made available to the public in October 1977.6 The present lawof divorce in Rhodesia is based on the fault principle, with adultery, cruelty,and desertion as grounds for divorce, and incurable insanity and imprison-ment as the sole concessions to the principle of marital breakdown. The mainsections of the Commission's Report deal with:(i) A Matrimonial Division of the High Court in Rhodesia;(ii) the age at which persons can enter into marriage;(iii) the grounds upon which a divorce may be granted and theprocedure for obtaining a divorce;(iv) the property rights of the parties on divorce, especially ques-tion of maintenance of spouses or any dependent children;(v) custody of and access to, minor children.5 Ibid-e Rhodesia, Report of the Commission of Inquiry into Divorce Laws (Cmd R.R.16, 1977).64ESSAY REVIEWThe Commission's recommendation to set up special Matrimonial Courtswould be very expensive to institute, particularly in the present Rhodesianeconomic circumstances. Additionally, the training of suitably qualifiedpersonnel to staff the Court would be a further expense. Presumably, in mak-ing this recommendation, the Commission must have taken into considerationthe cost factor and the problem of finding suitably qualified staff, but musthave concluded that the expense involved was balanced by the benefit tosociety in setting up a new Court structure to deal with matrimonial matters.The Courts as envisaged by the Commission will require a large specialiststaff to deal with matters such as counselling prior to marriage for thoseunder the age of 21 and counselling prior to divorce for those seeking divorce.Furthermore, a vast administrative staff will be required for the smoothrunning of the Court. It is debatable whether such an expensive enterpriseis justified to deal with the matrimonial affairs of a small proportion of thepopulation, especially since African divorces will remain largely the provinceof the District Commissioner's Court.The recommendation of the substitution of failure for fault in the groundsfor divorce is more realistically appropriate in relation to the behaviour andexpectations of those whose marriages the Divorce Law seeks to regulate.However, the recommendation that the marriage should have endured for aperiod of two years prior to divorce could mean that children may be bornduring this period to a couple whose marriage is subsequently dissolved.Nevertheless, the Commission recommended that in exceptional circumstancesthe Court should have the power to dissolve the marriage before this periodhas expired. This procedure would require some considerable time for theCourt to establish guidelines as to when this discretion could be exercised,and may involve considerable unnecessary litigation notwithstanding whetherprecedents are established over time or not.The recommendation, that where there is no consent and the petitioneris seen to be 'the cause of the failure of the marriage, a divorce should notbe granted until a further two years of separation have elapsed, would seemto incorporate an element of the fault system, which the Commission claimsto have discarded as a ground for divorce. However, it does allow for anelement of flexibility because the Commission recommends that even withoutthe consent of the other party such a marriage should be dissolved after theparties have lived apart for one year, provided that the conduct of the peti-tioner was not in 'overwhelming measure the cause of the failure of themarriage'.The Commission recommended that the Court should have wide powersin terms of the provisos that it attaches to the granting of divorce. Althoughthis would permit great flexibility, it also may mean unnecessary cost inpetitioning in vain before the Court establishes certain precedents. The pro-viso that the Court must be satisfied that suitable arrangements have beenmade for the division of property, maintenance of a spouse and custody,maintenance and access to children of the marriage, is a departure from theexisting legislation which considers these important consequences of divorceas incidental to the ground for divorce.Generally, the Commission considered that the aim of Rhodesian Lawshould be to:(a) buttress rather than undermine the stability of marriage; and(b) when a marriage has irretrievably broken down, it shouldbe possible for our courts to destroy the empty shell with theD. R. SEAGER 65maximum fairness and the minimum bitterness, distress andhumiliation.7In recommending to a large extent the abandonment of the fault system asgrounds for divorce and the replacement of it by the failure or breakdownsystem, aims (a) and (b) could be realized.However, there is not full abandonment of the fault principle, whichis still apparent in the Commission's consideration of the granting of aunilateral petition for divorce, and in the assessment of the maintenance andproperty rights of spouses. In regard to the Commission's recommendationson the setting up of Matrimonial Courts, the present reviewer suggests thatwhile this could help to furnish the Court with the information required todeal with matrimonial matters through the counselling and advice of personsconsidered to be experts in these matters, it is doubtful whether such anexpenditure is justified when the Court would serve such a small proportionof the population. However, matters hereto considered as ancillary to thedivorce, such as proprietary rights and maintenance of the spouses and themaintenance, access to and custody of children, may now be consideredby the Court in their correct perspective as important matters in the divorce.This is because the Court could now be provided with information on whichto make informed judgements on these matters. The move towards theabandonment of the fault principle in divorce would more truly reflect thebehaviour and expectation of those seeking a divorce. Finally, the Commis-sion fails to make any distinction between couples seeking divorce whohave children, and childless couples or those without dependent children.This reviewer suggests that in the latter two cases much of the administrativeprocedures and counselling could be dispensed with and thus divorce couldbe facilitated without complicated and costly administrative procedures.Nonetheless, generally, it is doubtful that the recommendations of the Com-mission would reduce the costs of a divorce for the individuals involved,although it would most certainly increase the costs for the State.This discussion shows that although the Commision of Inquiry and itsReport is a step in the right direction, there are considerable doubts in thepresent changing circumstances in Rhodesia whether this will result in changesin the divorce law, and even if changes are brought about whether they willbe appropriate for the new structure of Zimbabwean society.STATUS OF AFRICAN WOMENThe third Report is that of the Commission to Inquire into the LegalStatus of African Women. This is not a Rhodesian Government Commissionbut one set up by the Church of the Province of Central Africa, Diocese ofMashonaland. Whereas the other two Commissions were focused on a minoritygroup in the population, the scope of this inquiry embraces the majority ofwomen in this country.The Commission was set up to investigate the legal disabilities sufferedby African women in Rhodesia where continued application of cus-tomary law to the modern African woman was causing both hardship andinjustice: 'Customary law, as it exists and is applied in Rhodesia at present,deprives the African woman of her basic rights and freedom; of her claim7 Ibid., 28.66ESSAY REVIEWto support, maintenance and protection; and of the claim to the custody andguardianship of her children'.8 The Commission's terms of reference wereto investigate the present legal status of the African woman in regard to:(a) her relationship with her children;(b) her financial rights and duties Š her ability to work to earnwages and turn them to her personal use;(c) the plight of the widow and divorcee; and(d) her general freedom to live her life as an individual.9The Report provides a useful comprehensive coverage of materialsummarizing the social and legal status of African women backed up byextensive use of illustrative case material. A reading of the wealth of de-tailed evidence in the Report, however, makes it clear that the Commission'srecommendations are rather disappointingly conservative.The Report admits that frequently it is not legislation that will providethe solution to the women's problems, but rather a change in the attitudeof the men and furthermore:The law itself cannot, it is agreed, effect social change but it can, byaffirming that a greater degree of equality is an official value, clearthe way for those who are affected by discrimination and in-equality to secure the necessary social change.10Despite this declaration that law should take the lead, the Commissiondid not, however, consider the emancipation of women as a basic right, butrather felt that a woman must have the choice of whether she wishes toadopt the change to emancipated status or not. At the same time the Com-mission was aware of a widespread lack of knowledge on the part of Africanwomen of their legal rights, and it recommended a publicity campaign tomake women aware of their present rights which would also enablethem to make the choice of emancipation.The Commission considered that the way in which an African womancould become emancipated was through a civil or Christian marriage, thereason being that this would require minimal change in legislation. Thusthe Commission recommends certain changes to the African Marriages Act[cap. 238], Firstly, that a section should be inserted in the Act requiringmarriage officers to advise the parties of the nature of a civil or Christianmarriage and the legal effect of such a union on their rights and duties.Secondly, that section 13 of the Act be repealed so that those couples marry-ing under the Marriages Act [cap. 37] and thus entering a civil or Christianmarriage should have their property governed by the laws of Rhodesia andnot according to African law and custom. Thirdly, that a section be insertedinto the African Marriages Act in order that the payment of or agreement asto lobolo should not be necessary in regarding a marriage valid or in con-sidering the custody and guardianship of children of a marriage. Fourthly,that a section should be inserted in the African Marriages Act to providethat on contracting a civil or Christian marriage according to the Marriages Report of the Commission to Inquire into the Legal Status of African Women1976 {[Salisbury, Church of the Province of Central Africa, Diocese of Mashonaland,1977]), 1.Ł Ibid., 1.17.D. R. SEAGER67Act the African couple should have the same rights and duties before thelaw as their European counterpart. Fifthly, there should be an insertion of asection in the Act providing that, if a man contracts a potentially polygamousmarriage according to the African Marriages Act and subsequently takesanother wife according to a civil or Christian marriage while his first wife isstill alive and the marriage is not dissolved, this subsequent marriage shouldbe invalid. Sixthly, similarly if a man has contracted two or more valid poly-gamous marriages in terms of the African Marriages Act and then goesthrough a civil or Christian marriage with one of his wives or anotherwoman while his polygamous wife or wives are still alive and his polygamousmarriage(s) has not been dissolved, the civil marriage should not be valid.Furthermore, in order to protect the African wife, whether she bemarried according to the Marriage Act or the African Marriages Act, theCommission recommend further amendments to the African Marriages Act.Firstly, that, if a husband of an actual or potentially polygamous marriagewishes to take another wife, he should obtain the consent of his existing wifeor wives. Secondly, there should be an insertion of a section into the Actstating that no one has the right to inflict corporal punishment on his or herspouse. Thirdly, that a section should be inserted to provide that all divorcesshould be registered and that an appropriate alteration be made to themarriage certificate.CONCLUSIONWhile one can understand the necessity for these Commissions of Inquiryand acknowledge that they have taken care in the evaluation of evidence,there are certain deficiencies; one in particular acknowledged by all threeCommissions is the lack of comprehensive research in their particular fieldand related fields. All three Reports stress the need for further research; thisis required particularly in the socio-legal sphere where consultations withsociologists and social workers, for example, would prove useful in providingcurrent sociological research findings relevant to these important aspects offamily life in a rapidly changing society.University of Rhodesia DIANA R. SEAGER