Voices

Men and the abuse of customary law

2018-11-11 17:34

Men sometimes use custom and culture to oppress women. Do they not know women have the same rights, asks Modidima Maanya

In recent years the courts have had to deal with disputes involving the validity or otherwise of customary marriages.

Often these disputes arise when one of the parties to the marriage dies.

The disputes are usually about who has the right to bury the deceased or who inherits the estate.

In the past couple of weeks a woman whose customary law husband died ended up in court to assert her rights.

It is reported that at the time of his death, they were estranged.

However, upon hearing of the death of her husband, she immediately – on the same day – returned to their home.

But it is reported that her father-in-law drove about 400km and took full control of his son’s house. Part of taking control, as it turns out, was to change the locks of the house.

In effect, and as the court later found, she had been evicted from the house. This led to an urgent application in the high court.

The husband’s family believed she was not the lawful wife as certain rites were not performed to finalise the customary marriage, which, they felt, meant she had no right to get involved and/or take control of his belongings.

Before this dispute, there had been several court hearings and judgments clarifying what qualifies as a customary marriage; even cases when the parties had not complied with all the rites.

There was, therefore, no confusion about what constitutes a valid customary marriage. And this was especially so because both parties in this case had access to legal advice.

Because the law was already settled at the time of the dispute, one should question what truly prompted the dispute to warrant an urgent high court application.

Anyone with access to legal advice would know it could not have been about whether the woman was the lawful wife.

But patriarchy is as vicious now as it was many moons ago, regardless of how our lives have changed in that time.

Even though we know women have the same rights as men and are equal in front of the law and society, many men continue to treat women as inferiors.

A customary marriage is initiated by the man’s family. They approach the woman’s family and ask for her hand in marriage. They pay lobola.

Once an agreement exists and certain rites are performed between the parties, the couple is regarded as married under customary law.

If either of the parties do not adhere to the agreement, the other has mechanisms to enforce it.

Often the families meet to discuss the issues in dispute and, unless they are extremely serious, a solution is usually found.

The same applies when the married parties have problems. The families intervene to find solutions. They should not cause or be part of the problem. They are there only to resolve the problem. That is the custom.

In this case if all the steps to consummate the marriage were not implemented, what did the groom’s family do to ensure compliance? What if the groom’s family accepted what might have been considered “breaches”?

The answer raises fundamental questions about the practice of customary law. Do we pick and choose what we want or do we apply the full spectrum of what makes up customary law?

Customary law is not just about specific practices. It is an institution with various elements. It is not about who you are but how you practise and embrace these elements.

It not only has rules but processes – including dispute resolution processes. When a dispute arises, there are protocols to follow to resolve it.

Evicting a wife without exhausting the processes is not correct. The same processes apply to both parties in the marriage and the same dispute resolution must apply.

The decision to marry under customary law is that of the parties and not of their families. The families are there to give effect and support the decision by the parties to marry.

Married parties have their own rights. Customary marriages were not intended to be any less inferior to other marriages.

They are marriages in their own right and no amount of patriarchy must determine the rights of the parties concerned.

Women have the same rights as men in a customary marriage. Any attempt to invoke customary law to reduce the rights and perpetuate historical stereotypes designed to oppress women must be rejected regardless of who is involved.

Our Constitution recognises human rights, prime among them rights to equality and human dignity. Our courts are enjoined to apply customary law in the adjudication of such disputes.

And if the parties cannot resolve their issues in any other way, they are entitled to take the matter to court.

But are these disputes really about customary law or is customary law a convenience in matters of this nature?

If parties are married under customary law why would they not use the processes offered to prevent and resolve disputes?

Why, if the parties adhere to customary law, would they not use the dispute resolution protocols before running to the courts?

One of the fundamentals of customary law is that it is a family-based system in which the family is the centre of authority. It is not about individuals but a broader relationship.

One wonders where these families are when disputes arise. Surely if they believe in customary law, they should use it to resolve conflicts?

The culture of entitlement that a father retains all rights and powers even over his married son manifests a dangerous, aggravated version of patriarchy.

As with all other manifestations of patriarchy, it simply points to the fact that often custom and culture are used to oppress women.

Customary law cannot continue to be a tool of oppression in a democratic society. A man does not have the right to decide what happens to a woman.

This case – as with many similar ones – demonstrates an ongoing pervasive culture of the oppression of women at the hands of men, even in modern life. It exemplifies the ongoing pervasive culture that heaps the blame on women.

Customary law must not be used as a convenience for those who have no leg on which to stand. Those who exploit the fluidity of customary law are not doing it justice.

The courts will have to be tougher with those who abuse the system of customary law for selfish ends.

The Constitution recognises customary law for those who practice it and not those who conveniently want to benefit from it.

If the parties had concluded a civil marriage what would the fight have been about? One is left guessing.

. Maanya is an advocate and former civil servant

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June 23 2019