First published in the Daily Maverick 168 weekly newspaper.
A couple of weeks ago the Department of Home Affairs issued a Green Paper which sought submissions from the public on a number of marriage-related issues, including legally recognising polyandry. There was a lot of commotion on both the Twitter and actual streets. A considerable number of women saw this proposal as the way to equality and dismantling patriarchy in our society. But is it? I do not think so.
SA recognises polygyny, an already existing cultural and religious practice, by way of section 7(6) of the Recognition of Customary Marriages Act, 1998, which states that “a husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages”.
The Act is an example of how laws can better align our cultural practices with the values of the Constitution by guarding against the potential abuse of power in polygamous marriages.
Why does the Department of Home Affairs seek to introduce polyandry in a society where it is not practised and where there has been no rallying call for its legal recognition, as we have seen with gay marriage? What was the impetus? The presence of polygyny in our culture does not necessitate the introduction of its counterpart for the realisation of equality in our society. The introduction of polyandry has to be founded on something deeper than simply allowing women to do what men can do. Polyandry cannot be legalised as a reaction to a long-standing and legitimate cultural practice such as polygyny. It has to be introduced because it is a practice that already exists culturally or religiously in South Africa and needs legitimatisation through the law.
In my research I learnt that in African countries where polyandry is recognised, such as Nigeria and Kenya, it originates from an existing cultural practice or religion. In SA, where my research suggests this is not the case, then its introduction is superficial and unwise, as it means the government can co-opt unfamiliar or foreign cultural practices, which are much more nuanced than meets the eye, in an attempt to bridge inequality between men and women simplistically. This intervention by the department seems out of touch with what is actually happening on the ground as it pertains to the politics of marriage.
Even if there were a legitimate foundation for legalising polyandry in SA, I still do not see how polyandry can be a reality in a society where the economic power is still largely held by men, which therefore gives them the power to initiate marriage and to claim the title of head of household. So much more beyond the law would need to shift in our society for polyandry to be an equaliser in a country where even the idea of a woman proposing to a man is seen as taboo.
My frustration with this polyandry matter has been aggravated by the sadly revealing and unimaginative discussion around it. Judging by the comments online, some women are relishing the idea of dominating men as they have perceived women being dominated in polygynous marriages. There is a worrying attraction to the power reversal, rather than interest in how we can disrupt how we embody power in our intimate relationships. We are still a community that does not understand how patriarchy works and until we do, our efforts at remaking our society will be as misguided as this polyandry misstep.
However, as flawed as this introduction of polyandry is, I am glad it has been initiated, as this conversation allows us to examine the new family structures that are emerging in our societies. The Department of Home Affairs should respond to what is actually happening on the ground, rather than appropriating cultural practices as superficial solutions to deeply entrenched gender inequality. We should be talking about some of the new ways that people are choosing to partner and how the law can give effect to these new ways and new family structures, where it is reasonable and in alignment with our constitutional values. DM168
This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.