Sunday, July 25, 2021

Law, culture still permit child sexual abuse

With the age of consent having been raised from 16 to 18 years, there should be full protection for underage girls but the case of a councillor in North West District shows that is still far from being the case.

As reported by The Voice, Zico Maoveka, who is councillor for Komana-Toteng, married a 15 year old girl some seven years ago.

“It is true that she was under age when I fathered our daughter,” the paper quotes him as saying.

Had this happened outside marriage, Maoveka would be in hot water. Courtesy of a motion that was tabled by former Specially-elected MP, Bogolo Kenewendo, and adopted by parliament, the age of consent, as stipulated in the Penal Code, has been raised from 16 to 18 years. The problem though is that in itself, the Penal Code doesn’t protect children from what essentially amounts to sex abuse. Constitutionally, Maoveka is well within his rights to do what his Mbanderu culture permits child marriages. As a matter of fact, that was a point he made when hauled over the coals for his actions. In fairness to the councillor and the Mbanderu, many more cultures permit child marriages.

On the face of it, the Marriages Act also seems to provide protection similar to that of the Penal Code but it doesn’t really do that. Section 14 of the Act says that no person below the 18 years may marry. However, that provision can be circumvented by reason of culture.

Ahead of the 2019 general election, the ruling Botswana Democratic Party had promised to carry out a comprehensive review of the constitution, with a view to weeding out problematic provisions. Almost two years later, that has not happened and in one respect, the result is that 15 year olds, who are themselves still children, are having children under circumstances of problematic wedlock.

The culture that permitted the councillor to marry a child has come under attack even from his own cultural community. Among those who have spoken out against his actions is the Ngami MP, Carter Hikuama. One very important point that Hikuama made is that there is a difference between arranged marriages and child marriages.

The disingenuousness of the culture argument is that it denies the essential character of culture – dynamism. The reality though is that generations have a duty to ensure that their cultures respond to the times that they live in. As a matter of fact, it is culturally anomalous to retain cultural practices that don’t benefit society and harm some of its members. One ventures to suggest that practices that are not subjected to this standard cease to be culture – and shouldn’t be referred to as such. As important to note is that societal practices always occur within a context that justify continued use – and only remain relevant for as long as they are useful. Save for merely saying “but this is our culture”, no one has provided any substantive reasons for why child marriages are necessary.

There are many more examples but it is in the nature of societies to discard odious practices. When William John Burchell, an English explorer, sojourned in Dithakong in 1822, he learnt that a man could lawfully kill his wife if she had wronged him in certain ways. Down the road, that practice was abolished.

Sunday Standard is aware of at least one case (there could be more) of a girl in a North West village who tried to commit suicide upon learning that she was to be pulled from school and married off to an elderly man. As a direct result of child marriages, Botswana also doesn’t get the full benefits of its human capital because future actuarial scientists (who would still have become wives and mothers) are being forced to settle for less for the benefit of a few.

Child marriages also ignore reality in one other way: new knowledge has always been used to inform the development of culture. Biology confirms that at 15, the female body is not ready for sex, especially with much older men. 

The finger of blame also has to point unwaveringly at the powers-that-be. A government which is the custodian of a constitution that protects culture doesn’t invest enough in indigenous culture to keep it dynamic. On the whole, an awful lot is wrong with the government’s exercise of this responsibility because in what is essentially a multi-cultural society, the government has long adopted a mono-cultural policy posture. In practical terms, that means that there is no substantive focus on what happens in other cultures, be it good or bad.

As president of the Customary Court of Appeal (South), Kgosikwena Sebele handed down judgement that, in line with evidentiary standard in Setswana law that adultery can only occur in the marital bedroom, a written confession from a cheating spouse could not be admitted as evidence of adultery. He dismissed the case for want of evidence. Naturally, that will raise eyebrows but that is the technical oddity of all legal traditions. The precedent that Sebele’s judgement should have established was never upheld and tabloids have reported stories of customary courts finding people guilty of adultery that occurred at hospitality establishments and in cars. In reflecting on the latter years later, Sebele said that the government was not investing as much effort in the development of indigenous law as it was on Roman-Duct law.

At least from what Hikuama has stated, had there been as much focus on indigenous law as there is on Roman-Dutch law, Maoveka would not have been able to consummate marriage with his child bride when she was only 15. Hikuama stated that consummation does not take place until the girl reaches the legal age of consent – which gets even trickier. If consent is a factor, she may decide not to give it, basically reversing the entire process and break free from an arrangement that she had not part of in the first place but involved her. And what exactly should happen if a child marries at 15? Should she move in with her husband and sleep in the same bedroom with him? If yes, will he fight the temptation to not unlawfully, aculturally consummate the marriage? The government is not doing enough to stimulate discussions of this nature at all the relevant levels.

Sebele recognised the fact that the judgement he handed down was outdated but he made a very important point: that in Setswana culture, laws are amended just before the kgosi declares the ploughing season open. With such forum never having amended the law in question, it remains in effect. The point of it all is that across cultures, internal processes – indigenous-culture fora, can help modernise cultural practices that are outdated. From what Sunday Standard learns, cultural communities that practice child marriages have never had serious engagement about this and other issues that need to be updated.

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