by Prof. Lilian T. Ekirikubinza
â€œI am a bit jealous
Lying is no good
We all suffer
From a touch of jealousy
Jealousy seizes us
And makes us feverishâ€
Parliament must meaningfully debate polygamy by situating the discussion within the context of gender and human rights. Many people support polygamy on the basis of culture and religion. But it is important to 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.
The Constitution recognises the principle of equality between men and women. But what is important for women is to register equality as a practical concept. The rights of women within the family are central to their rights as individuals. Womenâ€™s lives are profoundly affected by their status in the family and lack of rights in this area can effectively mean that women cannot exercise any rights they may formally have in other spheres.
It is argued that human rights are not universal, but are rather embedded in each particular culture and that Africa is entitled to her cultural heritage.
But we cannot ignore the fact that culture is not neutral in its impact. To ignore human rights implications of African culture under the pretence that such concerns are indications of Western bias, is to show disregard of the true nature of relationships between men and women. (Howard (1986)
The African Charter on Human and Peoplesâ€™ Rights states that it took into consideration: â€œthe virtues of African traditional values which should inspire and characterise reflection on the concept of human and peopleâ€™s rights.â€
Article 18(2) provides that the state is obliged to assist the family, which is the custodian of morals and traditional values recognised by the community. However, the significance of the inclusion of the notion of cultural values in a human rights instrument is to call upon us to handle issues of culture in the light of human rights standards. It is not to give culture supremacy over the human rights of groups and individuals. (Armstrong et al 1993)
It is noted that the Charter limits the individualâ€™s duty of preserving and strengthening cultural values, to positive cultural values. Is polygamy a positive practice?
The answer lies in whether there is a compelling interest for society as a whole, to justify the practice of polygamy and that it enhances the welfare and dignity of all members of the family â€” men, women and children. Civilised society should encourage only those customs based on recognition of human dignity and which enhance human welfare, regardless of sex.
There is need to move beyond debates carried out in abstract and get empirical evidence of what stake (if any) society has in maintaining polygamy. We must also focus on the real harms caused to women, children and men in polygamous families.
Perhaps there is no clearer way of emphasising the law of male sex-right than through the practice of polygamy. As argued by Mayambala (1996), polygamy is against the spirit of equality between men and women because it allows one spouse (the husband) unilaterally to fundamentally change the quality of the coupleâ€™s family life.
Further still, polygamy makes the husband and wife unequal partners in marriage by subjecting the wife to unconditional fidelity in the same way as her counterpart in a monogamous marriage, when the husband is under no reciprocal duty â€” the husband has an exclusive right to sex with each of his wives and yet the wives are prohibited from having sex with any other man. The husband can have more than one wife if he desires without having to know the feelings or secure the permission of his first wife.
Typical of patriarchal society, men are given privileges as men, merely on the basis of sex. The institutional structure of male domination socialises the women into accepting their husbandsâ€™ decisions.
Every person is entitled to privacy of his or her home. Yet many husbands do not consult their senior wives before bringing another wife into the marital homestead or even house.
Basing his analysis of polygamy on Kenyan society, Maillu (1978) contended that one of the cornerstones of successful polygamy is the provision of at least separate houses, but preferably separate homes for each wife. He reported that such was the normal arrangement in traditional polygamy as practiced in nearly every ethnic group. In his criticism of patriarchy, Maillu, an ardent supporter of polygamy, said: â€œThe modern polygamy is fast developing a new brand of polygamists whoâ€¦. are treating their wives more or less like domestic animals destined to live in a common shed.
A man who thinks that all he needs is a big house with many bedrooms for his wives, is committing 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 privatelyâ€¦.. Although they share one man for a husband â€¦ the women are not married to each otherâ€¦.. He can force them to live in one house as the case with some uncultured polygamist, but he cannot force them to like each other. When he forces them to live in one placeâ€¦ they, in turn, spend most of their energy consciously trying to fight against each other.â€ (79) (My emphasis).
I argue that due to socio-economic and cultural changes that have taken place in Ugandan society, polygamy has no functional value for women.
This is because although a manâ€™s right to marry more than one woman is still upheld by todayâ€™s society, it is practised without corresponding duties, which a man in traditional society had towards his wife and children.
The argument that polygamy is a flag of African identity can no longer be sustained. The Protocol on the Rights of Women in Africa enjoins states to enact legislation to guarantee that monogamy is encouraged as the preferred form of marriage.
Ugandaâ€™s Parliament must enact a law that operationalises the spirit of equality between men and women during marriage; the right to the privacy of oneâ€™s home; womenâ€™s rights to full and equal dignity of the person with men; protection from cultures, custom or traditions which are against the dignity, welfare or interest of women or which undermine their status.
The writer is a professor
of law, Makerere University