The ill-treatment of women in polygamous marriages in South African politics should fill us with despair as government’s failure to meet a two-year deadline to change the law to protect women in polygamous marriages has once more made headlines. Back in November 2017 the Constitutional Court ordered 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.
And then, only six weeks before the expiry of the deadline set in 2017, the Minister of Justice and Correctional Services approached the Constitutional Court seeking another 12 months extension until 30 November 2020. He provided several reasons for the failure to change the law, including that 2018 and 2019 were difficult years in the legislative process due to the national elections. He also noted that, because the legislation in question deals with customary law, it will be required to follow elaborate processes which include consideration of further input from the National House of Traditional Leaders. It sounds strange that traditional leaders are cited in this way in a motivation for a deadline extension, given that this is supposed to be a priority matter on their programme since 2017.
Based on the court judgement in 2017, we all knew that this law unjustifiably limits the right to dignity as well as the right not to be discriminated against unfairly. And so, how come that traditional leaders have not pressed parliament to amendment legislation in compliance with the court order in order to vindicate the constitutional rights? How come that this matter never featured as a priority in the national and provincial houses of traditional leaders? What account can traditional leaders provide on this?
I still remember very well. It was back in 2017 at the Constitutional Court when I bumped into two acquaintances. They were both members of the National House of Traditional Leaders and were standing outside the main entrance to the court. They had been inside to hear the judgement on this matter challenging constitutionality of the Recognition of Customary Marriages Act. But immediately after the judgement was delivered, they were lingering on the pavement, 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, every time the ANC-led government as well as the national and provincial houses of traditional leaders’ derisory handling of the overdue legislative amendments returns to the headlines. Standing on the side and yet 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.
But the feeling comes with an accompanying despair, about lack of action in some aspects of the fight for gender equality and elimination of patriarchy in South African society, where a dangerous prejudice that demands our serious attention and analysis has become the embroiled in an escalating and protracted ANC intra-party faction fights. The tendency to subordinate the fight for gender equality to party political disputes is hardly unique to our party politics inside and outside parliament. But this familiar cycle – of allegations, defences, evasions, counter-claims and dismissals – has now reached a new level as it muzzles progressive voices in the national and provincial houses of traditional leaders that should defend the rights of rural and cultural communities.
We’ve already seen countless repetitions of this cycle, which has intensified since the ANC-led government hastily reintroduced and fast-tracked the Traditional Courts Bill in parliament by rushing to complete a public consultation process on the proposed legislation without ensuring that communities are afforded every opportunity to have their say. The Bill, introduced in 2008 and shelved in 2012, was recently resuscitated in September, with its crux being strengthening and reforming traditional courts. Those of us 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 election time, and will entrench servitude in a democratic state.
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. And similarly trapped in the middle of this binary are those who are well aware of traditional leaders’ insufficiently decisive handling of legislative and policy reforms to promote gender equality and the rights of children, yet wonder why the institutions of traditional leadership are becoming accomplice in disrespecting court orders.
Every woman in a polygamous marriage has their own family story – of love and conflict, of threats and losses, but also of community and belonging. My own family’s journey in growing up in a polygamous marriage may explain my own shock at the government’s failure to meet the two-year deadline to change the law to protect women in polygamous marriages. A contention that 2018 and 2019 were atypical years in the legislative process due to the 2019 elections which caused inevitable interruptions and changed the ordinary deadlines for government departments to submit Bills to be passed is unacceptable, given a situation where other conservative and not time-sensitive Bills were given priority, as is the case with Traditional Courts Bill. Failure to make human rights real and failure to fulfil election promises is not an excuse for today’s politicians, but another case of minimisation of the real and noxious patriarchy that still permeates our society. Failure to change the law to as directed by courts should be a reminder that for many in South Africa, the experience of inequality and indignity is still the norm and not the exception.
Nkosikhulule Xhawulengweni Nyembezi is a researcher, policy analyst and a human rights activist.