All marriages contracted under Roman-Dutch law formally end in a High Court witness box. And so, on this anticlimactic Monday morning, a woman decked out in her Sunday best lives out the final moments of her nine-year old marriage in a box at the Gaborone High Court, answering routine divorce-proceedings questions put to her by her lawyer.
Your name is …./Can you confirm that you are a citizen of Botswana?/ Your husband’s name is …/Is it your evidence that your marriage to husband has broken irretrievably? etc
It is all standard fare that happens every week day at Botswana’s three High Courts until Justice Dr. Zein Kebonang steps in. His line of questioning relates to salacious conduct alleged on the husband’s part. The questions are unusually difficult but thrust him in an environment where he is legally required to tell the truth and nothing but the truth, the man has to wiggle room. In her papers, the wife alleges that the man she is a few heartbeats away from divorcing is “a serial adulterer” who “jumps from woman to woman” and that at some time in the past, he assaulted one of his mistresses.
At a point when those in court would be forming a mental picture of this waywardness, Kebonang enquires about the husband’s whereabouts. He responds by jumping – not from woman to woman this time but to his feet.
“Do you agree that you are a serial adulterer?” the judge asks.
“Yes, my Lord,” the husband responds in a normal tone of voice.
These sort of ugly personal details are the currency of divorce proceedings. Last year when the divorce case of a big ruling-party member came before the High Court, the wife mentioned in her papers that he has a very small member. One can imagine the level to which the embarrassment would be elevated if, like the serial adulterer at the High Court last Monday, this man had been asked to confirm that indeed he has a small member. Holding divorce proceedings in open court itself doesn’t seem to be a good idea because information that comes out can very easily find itself to the school playground where the divorcees’ children interact with their peers.
In the serial adulterer’s case, the judge pronounced conviction that indeed the marriage had broken down irretrievably and that he was granting an order for divorce. And so another couple has been decoupled and their two children will be shunted back and forth under a court-ordered visitation arrangement. The children, who stay with their mother in Jwaneng, will visit the father on alternative weekends and during school holidays.
While some lament the high divorce rate in present-day society, this problem goes back centuries and is actually being handled more humanely than was the case in the past. In 1938 when Professor Isaac Schapera published a book on the customs of the Batswana, divorce was a lot tougher on women than is the case presently. A woman who divorced her husband forfeited all claim to the children. This was the main reason why a majority of women stayed in unhappy marriages in order to have full access to their children.
“The main grounds for divorce are flagrant ill-usage, excessive cruelty, or non-support on the part of the husband; and barrenness, the practice of sorcery, repeated adultery, wanton capriciousness, or non-performance of domestic duties on the part of the wife. A husband seeking to divorce his wife will as a rule deliberately neglect her, e.g. by not ploughing for her, by not buying her clothes and other necessities, by not eating food at her house, and by not sleeping with her,” Schapera wrote in “A Handbook of Tswana Law and Custom.”
