Vol.21 No.190

Friday 10 December 2004    

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News
A legal coup against men

MAUREEN ODUBENG
Staff Writer

12/10/2004 3:51:33 AM (GMT +2)

Abolition of Marital Power Bill seeks to promulgate "an act to provide for the abolition of marital power, to amend the matrimonial property law of marriages, to provide for the domicile of married woman, to provide for the domicile and guardianship of minor children and to provide for matters incidental thereto".


The Bill may be seen as progressive. But progressive to who? The outside world or society? Which category of women does it represent, and does it adequately represent the society or is it just a cosmetic measure aimed at creating a place for Botswana in the global village?

The Bill raised a few eyebrows in Parliament during debate, more specifically the part that proposes to abolish the status of a man as head of the family in a marriage. A number of male parliamentarians agreed with the Bill but seemed to have problems with the clause, which nullifies a husband's pre-eminent status in marriage.

"Since you have cut all heads and we are now equal, this Bill should be gender neutral," the comment came from one Member of Parliament debating a totally different issue.

"What a fool," an observer was quick to react.

Was the MP really foolish?

Clause five of the Abolition of Marital Power Amendment Bill states that; the effect of the abolition power is to remove the restrictions which the marital power places on the legal capacity of a wife and abolishes the common law position of the husband as head of the family.

The part about abolition of males as heads of families goes deeper than just one sentence. It addresses issues of human rights and equality. This part should have been given careful consideration, including indepth consultation to determine whether it is really what Batswana want. A lot of people argue that the Bill was published without prior consultation and therefore, it has totally ignored the beliefs and traditions of the very people it is trying to serve, and faces a very good chance of being rejected.

The law has always been silent on who is the head of the family. It has always been a title that does not carry much weight. Some who have the blessing of growing up in a harmonious family setting will attest to the fact that the issue of the head of the family was a moot point. When debating the Bill, MPs tried to use both tradition and religion to prove their points. It is widely accepted that culture is not static and that it is always evolving. But what about tradition? Laws are made for society and as such should take into account the culture, traditions and beliefs of people. This is necessary to avoid having a toothless piece of legislation, despised by the very society supposed to benefit from it. Having followed the debates in Parliament, tradition was thrown out the window without a second thought. The Bill, however, excludes both customary and religious marriages. This has been used by those who agree with all the provisions of the Bill to argue that it does not intend to erase traditional practices. There are nations which take pride in their traditions. What about Batswana? Are they trying to say that they do not have a tradition or tradition does not matter or they can only use tradition when and if it suits them? Marriages in Botswana are a mixture of tradition and modernity. The common practice by a majority of tribes, start off with "patlo" (asking for the woman's hand in marriage from her parents). This is usually followed by a ceremony, at which dowry is paid to the family of the woman. Thereafter the couple can proceed to the District Commissioner to legalise their marriage the modern way. This obviously was not taken into account when the Bill was drafted. As it stands, the Bill divorces itself from the Setswana tradition. This certainly has the potential of transmitting wrong messages to some sectors of society. Is it trying to do away with traditions?

The Minister who presented the Bill explained that if passed, it would only be applicable to common law marriages. But where do most of those common law marriages start? It is not common to come across a couple which just went straight to the District Commissioner's office without having travelled the traditional route. It is not altogether crazy to think that for as long as men still pay dowry for their brides, they will think of themselves as superior to their wives. And they will maintain their head of the family status.

A chief in Mogoditshane Basiang Dihutso has expressed disregard for the Bill, more specifically the clause that abolishes marital power. The chief raised concerns that the abolition might bring chaos to most families. He said that in his house he is head of the family, but he still consults his wife on many matters. He said the term head of the family is being misunderstood by some people who tie it with violence against women. He said in his view, the Bill is bound to bring trouble in marriages.

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