Women ill-treated in polygamous unions

ILL-TREATMENT of women in polygamous marriages in South Africa should fill us with despair as the government’s failure to meet a two-year deadline to change the law to protect women in such marriages has once more made headlines.

In November 2017, the Constitutional Court ordered the government to amend the Recognition of Customary Marriages Act to ensure the equitable distribution of assets should a spouse in a polygamous marriage die. Sadly, under the watch of traditional leaders, the law was never changed.

Only six weeks before the deadline in 2017, the Justice and Correctional Services Minister approached the Concourt seeking another 12 months’ extension. He provided several reasons, including that last year and this year were difficult years in the legislative process due to the elections.

He also noted that, because the legislation dealt with customary law, it would be required to follow elaborate processes which included consideration of further input from the National House of Traditional Leaders.

Based on the judgment in 2017, we all knew that this law unjustifiably limited the right to dignity as well as the right not to be discriminated against unfairly. And how come traditional leaders have not pressed Parliament to amend legislation in compliance with the court order to vindicate the constitutional rights?

I remember well in 2017 when I bumped into two acquaintances at the Concourt. They were both members of the National House of Traditional Leaders. They were in the Concourt to hear the judgment on the matter challenging the constitutionality of the

Recognition of Customary Marriages Act. But immediately after judgment was delivered, they were lingering on the pavement outside, drawn in by the political energy of the occasion and yet simultaneously repelled, as though by an invisible force.

I think often of their faces, of the pain and bewilderment, each time the ANC-led government and national and provincial houses of traditional leaders’ derisory handling of the overdue legislative amendments return to the headlines.

Standing on the side and feeling separated from it by a force that too many still insist they cannot see has become a familiar feeling for women in polygamous marriages and their offspring, for whom the agonising issue of the lack of political will in the ANC and some elite traditional leaders has torn at two key parts of their identity.

The bill, introduced in 2008 and shelved in 2012, was recently resuscitated in September, with its crux being strengthening and reforming traditional courts. Those opposed to the bill in its present form say it is the ANC’s way of ingratiating itself with traditional councils as a return of favour for endorsement at elections.

Caught in the middle of ANC factions are many ordinary people, including women in polygamous marriages, with shades of opinion that don’t fit either category to deserve representation, and are increasingly dependent on the judiciary for vindication of their constitutional rights.

Failure to make human rights real is not an excuse for today’s politicians, but another case of minimisation of the real and noxious patriarchy that still permeates our society.