For half a century now and some 56 years after independence, the government’s disinterest in indigenous culture has resulted in a situation in which there is inconsistency in official application of customary-law marriage.
In the Northwest District, if a man marries three women under customary law, only the senior one will be issued a marriage certificate. For secondary wives, communal knowledge about their marital status would be the closest thing to a marriage certificate. On the other hand, if a man does the exact same thing in a neighbouring sub-national entity (Gantsi District), all three women will get marriage certificates. Culture is not a factor here because what happens with the Herero in Sehithwa doesn’t happen with their kith and kin in Charleshill.
Botswana’s Marriage Act was promulgated in 1973 during the administration of President Sir Seretse Khama, who was himself married under civil law and in a place where such law originated. In one respect, the Act reflects an argument that Dr. James Kirby, a historian at La Trobe University in Australia, has made – that Botswana was essentially created for the minority colonial settler whites. In limiting itself to civil marriages and excluding customary-law marriages, the original Marriage Act acknowledges the existence of whites but not that of blacks.
As Kgosi Tjazako Munduu, a Member of Ntlo ya Dikgosi (lower house of parliament) alerted the recent sitting, denying secondary wives marriage certificates is problematic because “it tramples on the human rights and dignity of women practising polygamy.” The problem, as he expressed it in a question to the Acting Minister of Labour and Home Affairs, Meshack Mthimkhulu, is that “the law of Botswana does not allow issuance of marriage certificates as proof to second and subsequent wives in a polygamous marriage under the customary law particularly in Ngamiland where polygamy is practiced.”
As Mthimkhulu would confirm, the law does indeed disallow the issuance of marriage certificates to secondary wives. His understanding is that the administration of customary law certificates “varies from one tribe to another.” That is certainly not the case and “region to region” would have been closer to the truth. Within Munduu’s Herero community in Ngami Region, secondary wives don’t get marriage certificates – which was why he raised the issue in Ntlo ya Dikgosi. However, secondary Herero wives who get married at the Charleshill kgotla in Gantsi District get such certificates. The latter was confirmed to Sunday Standard by Kgosi Mbao Kahiko III for Ghanzi West Region.
Kahiko’s explanation for what happens within his jurisdiction is that if polygamy is recognised under the law, then all women married customarily are “automatically” entitled to marriage certificates.
“If the same customary procedure that was followed for the first wife is also followed with regard to secondary wives, why shouldn’t the latter also get marriage certificates?” he poses. “As the first wife, the hand of the secondary wife is sought in marriage; bogadi is paid for her, as is the case for the first wife. There would be an issue though if the law forbade polygamy but that is not the case.”
While Munduu emphasised dignity for secondary wives in a customary-law marriage, Kahiko’s emphasis was on the practical. He said that a woman married under customary law is required to go to the national registration offices to change her surname. If she cites marriage as the reason for doing so, she would naturally be required to produce a marriage certificate to prove that she indeed married.
“How can she prove that she is married if she can’t produce a marriage certificate?” asks Munduu, adding that he would have preferred for the matter to have been tabled before the house in the form of a motion and not a question because the former would have provided more time and opportunity for in-depth elaboration. “Until there is a court order that proves otherwise, my understanding is that the law doesn’t disallow issuance of marriage certificates to secondary wives.”
When first promulgated in 1973, the Marriage Act was completely silent on customary-law marriages. However, subsequent amendments to the Act brought changes. While Part I of the Marriage Act excludes customary-law marriages, Part II includes them, alongside Muslim, Hindu and other religious marriages. In terms of this part, “parties to a Customary, Muslim, Hindu and other religious marriages shall ensure that their marriage is registered within two months of contracting such marriage”; either spouse may apply to the Registrar of Marriages for the registration of his/her marriage and must furnish him with the prescribed information and any additional information which the Registrar may require in order to satisfy himself as to the existence of the marriage; if satisfied that the spouses concluded a valid customary, Muslim, Hindu or other religious marriage, the Registrar shall register the marriage. The Registrar records “the identity of the spouses, the date of the marriage or property in cash or in kind which a prospective spouse undertakes to give to the other prospective spouse’s family in consideration of such marriage (referred to as “bogadi” in vernacular) and any other particulars prescribed.”
Part II recognises “Chiefs and Headmen of Record” as ex-officio district registrars of customary marriages in their respective areas of jurisdiction. Another provision in this Part says that says that a certificate of registration of a customary, Muslim, Hindu or other religious marriage shall constitute prima facie evidence of the existence of such marriage and of the particulars contained in the certificate. The latter clearly supports the argument that Kahiko makes.
Official neglect of indigenous law has also resulted in a situation in which what the Penal Code criminalises is unenforceable in one other respect. 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. However, the case of Zico Maoveka, a Herero man who is councillor for Komana-Toteng in the Northwest District, revealed what some see as gaps should be closed. Eight years ago, Maoveka married a girl who was then only 15 years old.
“It is true that she was under age when I fathered our daughter,” The Voice quoted him as saying last year.
Contrary to what the Penal Code says, Section 15 of the Marriage Act says that “No minor or person below the age of 21 years not being a widower or widow may marry without the consent in writing of his or her parents or guardians.” Parents can consent to the marriage of a 15-year daughter.