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7 | Recognition of Polygamous Marriages in the New South Africa
- Brandeis University Press
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likhaPha mBatha and lisa FishBayn JoFFe Chapter Seven Recognition of Polygamous Marriages in the New South Africa Introduction: Why Did Post-apartheid South Africa Recognize Polygamous Marriage? “On 03 July 2001 I gave birth to my first-born child. I went to Home Affairs to get her a birth certificate. When I got to Home Affairs I found out that my husband was married to another wife. When I got home, I asked him about what I had found out at Home Affairs but he denied it. I even called both families to discuss the matter. He also denied that he was married to another woman. Later, I found out that his mother knew about this other wife.”1 In Setswana, the word for “polygyny” is lefufa. It also means “jealousy.” Mogadikane, the word for “co-wife” is derived from the verb meaning “to rival, annoy, or cause a pain in the stomach.”2 Women complain that polygyny breeds insecurity, hostility, and witchcraft among those who find themselves in competition for their shared husband’s scarce economic and emotional resources .3 Polygyny brings with it both the humiliation of being supplanted in their husband’s affections and anxiety over access to school fees and improved housing.4 In many cases, women find themselves involved in a polygamous relationship without their knowledge or consent. Women outside polygyny reject it, and women in it hope that their children will avoid being party to it.5 Eighty percent of South African women surveyed oppose the practice.6 The Universal Declaration of Human Rights,7 the African Charter on Human and People’s Rights,8 and the International Covenant on Civil and Political Rights9 all describe key rights in relation to marriage, which are honored to varying degrees by South African law.10 They include the freedom to marry, the capacity to consent to marriage (and the correlative right to mBatha & FishBayn JoFFe · PolyGamous marriaGes · 191 refuse marriage), the ability to have marriages registered (rendering rights annexed to marriage more readily enforceable), and the right to equality under substantive law during marriage and at its dissolution. The Convention on the Elimination of All Forms of Discrimination against Women (cedaw) expands upon these rights to require that state parties “modify the social and cultural patterns of conduct of men and women, with the view to achieving the elimination of prejudices which are based on customary and all other practices that deal with the idea of the inferiority of either of the sexes or on stereotyped roles for men and women.”11 With regard to the practice of polygamy, the mandate of the International Covenant on Civil and Political Rights could not be more clear: “Polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently it should be abolished wherever it continues to exist.”12 South Africa is a signatory to these instruments and to many other internationalagreementsonthehumanrightsofwomen .However,whenitreformed itsmarriagelawsin1998,SouthAfricagrantedlegalrecognitiontopolygamous marriages contracted under African Customary Law, for the first time.13 This novel legislation was part of a concerted effort to bring the full range of South African laws in line with the mandates of the new, post-apartheid, Constitution , a document that identifies equality as one of its central values.14 Why would a government committed to gender equality choose to do this? While a minority marital practice, polygamy occupies a disproportional space in public discourse about the dignity of African cultural values. The drafters of the new polygamy law faced the challenge of balancing competing obligations to comply with human rights norms, satisfy the political expectations of a newly empowered Black majority, and protect the interests of vulnerable members in existing polygamous families. The Recognition of Customary Marriages Act is the innovative, if imperfect, result of this balancing exercise. A History of Polygamy in South Africa African Customary Law permits polygyny. The number of wives that a man may marry is not subject to any formal limitation. The practice was already in declinebytheearlytwentiethcentury15 andisnowquiterare.16 Itbothreflected the high status of the husband and enhanced his status.17 Additional wives [3.238.233.189] Project MUSE (2024-03-28 18:33 GMT) 192 · interseCtions oF Civil and reliGious laws enabled him to father more children and thus become a hallowed ancestor to alargeclan.18 Additionalwivescouldalsobeabasisforincreasedlandholdings, as a man would be allocated a supplementary piece of land for each wife to farm. A man might also take a further wife in situations where a couple had difficulties producing children.19...