Ferminism
I’ll be damned! : The deception that is equality in polygamous marriages
Is equality an active aspect in the institution of polygamous marriages as vested upon all people by section 9 the Constitution? I think not.
As I perused through the case of Mayelane v Ngwenyama in which the Constitutional Court had to arbitrate on the validity of a second customary marriage concluded without the consent of the prime wife on the basis of whether consent of the former wife was indeed required, I had concerns. The Court in it’s decision, developed customary law such that a subsequent marriage concluded without the first wife’s consent is invalid.
It struck me that although the Court in deciding the matter before them evoked provisions of the Constitution (the most relevant for my purpose being sections 9 and 10 which are the right to equality and human dignity respectively) as it is the supreme source of law, polygamy in essence fails to uphold the right to equality, which lies at the very core of the Constitution.
According to the radical school of Feminism, the inequality that exists between men and women is as a result of the oppression of women by their male counterparts in a testosterone laden social order. To put it in blunt terms, patriarchy is the vehicle of female subordination and domination in society, with men assuming the role of beneficiaries even if they personally do not oppress women.
One manner in which gender inequality is accelerated in society is through law, which, in the words of Catherine MacKinnon ‘derives it’s authority from reproducing women’s social inequality to men in legal inequality in a seamless web of life and law.’
Take for instance the Recognition of Customary Marriages Act (of which the Court took into consideration), which purports to do away with the inequalities inherent in customary marriages and the discrimination accorded to them in relation to other forms of marriages. The Act grants women equal status and capacity
Is equality an active aspect in the institution of polygamous marriages as vested upon all people by section 9 the Constitution? I think not.
As I perused through the case of Mayelane v Ngwenyama in which the Constitutional Court had to arbitrate on the validity of a second customary marriage concluded without the consent of the prime wife on the basis of whether consent of the former wife was indeed required, I had concerns. The Court in it’s decision, developed customary law such that a subsequent marriage concluded without the first wife’s consent is invalid.
It struck me that although the Court in deciding the matter before them evoked provisions of the Constitution (the most relevant for my purpose being sections 9 and 10 which are the right to equality and human dignity respectively) as it is the supreme source of law, polygamy in essence fails to uphold the right to equality, which lies at the very core of the Constitution.
According to the radical school of Feminism, the inequality that exists between men and women is as a result of the oppression of women by their male counterparts in a testosterone laden social order. To put it in blunt terms, patriarchy is the vehicle of female subordination and domination in society, with men assuming the role of beneficiaries even if they personally do not oppress women.
One manner in which gender inequality is accelerated in society is through law, which, in the words of Catherine MacKinnon ‘derives it’s authority from reproducing women’s social inequality to men in legal inequality in a seamless web of life and law.’
Take for instance the Recognition of Customary Marriages Act (of which the Court took into consideration), which purports to do away with the inequalities inherent in customary marriages and the discrimination accorded to them in relation to other forms of marriages. The Act grants women equal status and capacity