By Lillian Tibatemwa Ekirikubinza

Legendary Ugandan playwright and poet, the late Okot p’Bitek, in his captivating style, once wrote:

“I am a bit jealous
Lying is no good
We all suffer
from a touch of jealousy
Jealousy seizes us
and makes us feverish”

Ugandans should meaningfully debate polygamy, that is, place it within the context of human rights.

All must appreciate that cultural values (and may I add religious practices) are as legitimately subject to criticism from a human rights perspective as is any other structural aspect of society.

Women are profoundly affected by their status in the family. Lack of rights in this area can effectively mean failure to exercise formal rights in other spheres.

Cultural relativism is often used as an excuse to deviate from international human rights standards. But as Howard (1986) said, to ignore human rights implications of culture, under the pretence that such concerns are indications of Western bias, is to disregard the true nature of relationships between men and women.

The African Charter on Human Rights states that it considered: “the virtues of African traditional values which should inspire and characterize reflection on the concept of human rights.” But inclusion of the notion of cultural values in a Rights instrument calls for handling culture in light of human rights standards, it is not to give culture supremacy over the rights of groups and individuals (Armstrong 1993).

The Charter limits the duty of preserving cultural values, to positive values. Is polygamy positive?

The answer lies in proof that there is a compelling interest to justify polygamy, that it enhances the welfare of all family members — men, women and children. Arguments that Africa is entitled to her cultural heritage ignore the fact that culture is not neutral in its impact: does polygamy enhance the welfare of all? We must move beyond debates in abstract and get empirical evidence of what stake (if any) society has in maintaining polygamy. We must focus on the real harms (if any) caused to women, children and men. Civilized society must encourage only customs based on recognition of human dignity regardless of sex.

Scholars of social change argue that polygamy no longer has functional value for women because today’s polygamy is practiced without corresponding duties, which men in traditional society had towards their wives and children.

Pateman (1994) considers marriage as inherently discriminatory against women:

“There is power embodied in the structure of the relation between “husband” and “wife”. To become a “husband” is to attain patriarchal right with respect to a “wife”…. The position of husband reflects the institutionalization of the law of male sex-right within marriage.”

Perhaps there is no clearer way of emphasizing patriarchy than through polygamy. Today’s polygamy goes against the constitutional provision of equal rights for men and women in marriage. It allows husbands unilaterally to fundamentally change the quality of the couples’ lives. It subjects wives to unconditional fidelity in the same way as their counterparts in monogamy, without the husbands’ reciprocity. And the institutional structure of male domination socializes women into accepting husbands’ decisions.

CEDAW’s committee acknowledges that family form can vary from state to state but:

“Whatever the system, religion, custom or tradition, the treatment of women in the family both at law and in practice must accord with the principles of equality and justice for all people.” It states: “Polygamy contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences for her and her dependants that it ought to be discouraged and prohibited.”

The Committee also noted that states whose constitutions guarantee equal rights, and yet permit polygamous marriages violate the concept of equality between the sexes. CEDAW enjoins States to modify customary and all practices based on the idea of the inferiority or the superiority or stereotyped roles for men and women.

Uganda’s Constitution entitles every person the right to privacy of her home. Yet some husbands do not consult their wives before bringing another wife into the homestead or even house.

Maillu (1978) said: “Modern polygamy is developing a new brand of polygamists … treating their wives more or less like domestic animals destined to live in a common shed. Such men commit a terrible social evil of not registering the fact that the union of a man and woman is a very personal one and psychologically it demands to be consummated privately…. Although they share one man for a husband, that man should realise that the women are not married to each other.

Arguing that polygamy is core to African identity is no longer sustainable. Consequently the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, enjoins States to enact legislation to guarantee prohibition of polygamy.

Family laws must operationalise the spirit of equality between men and women in marriage.

The writer is the Associate Professor of Law, Makerere University