Has Jacob Zuma registered his multiple marriages? This question is vital as the Recognition of Customary Marriages Act of 1998 does not apply to “indigenous African” marriages that have not been registered. Its safeguards and benefits, therefore, would have no force in such cases.
The choice whether to register a customary marriage in terms of the act or not, is one of the main points of criticism against this law and also against the soon-to-be-tabled Muslim Marriages Bill. This escape hatch makes a nonsense of such laws which are supposed to extend basic rights regarding capital, assets and children to women in polygamous marriages.
Given the unequal power relations between men and women, it is conceivable that many women would have difficulty convincing their new spouses to register the marriage. Resistance can be expected from some men as the legislation provides rights to women and puts spouses on an equal footing.
The Recognition of Customary Marriages Act has already been successfully challenged in the Constitutional Court for not protecting women who were married before the adoption of the law.
Meanwhile, women are still not allowed to enter into multiple marriages despite several “indigenous African” examples, such as Rain Queen Modjadji; “ancestral wives” among the Zulu and “female husbands” among the Nandi in Kenya, the Calabar in Nigeria and elsewhere. But the latter raises the possibility of same-sex sex which is exactly one of those historical cultural expressions that patriarchal chauvinists want to destroy.
A recent Sunday Times article suggested that some black people embrace polygamy as a way to regain their heritage devastated by colonialism and apartheid. As pointed out in the previous blog on this subject, this “heritage” is a version fabricated by colonial administrators. It was eagerly embraced by chiefs keen on the absolute power that the colonial customary regime granted them over newly invented subjects and by men who wanted to re-establish their patriarchal grip on women.
But let’s briefly look at the historical reasons for polygamy. It is true that 19th century British colonialists wanted to change the system of polygamy. For example, in the labour-scarce Natal colony, polygamy was the basis of a gendered division of labour that placed both black women and men’s labour out of reach of the settlers.
Polygamy in pre-colonial South Africa was a socio-economic system built on control over women’s reproductive capacity and agricultural labour, according to the historian Jeff Guy in Women and Gender in Southern Africa to 1945 (1990). The labour of women and the children they gave birth to was pivotal to the pre-colonial economy in Southern Africa.
This is the system that colonialists were trying to dismantle at the time, through the racist stigmatisation of black men as “lazy” and black women as no more than black men’s “slaves”, and through hut tax and other measures to force black men and women to work in the settler economy.
Little remains of this system in which polygamy was pivotal. As pre-colonial social and economic arrangements broke down under the impact of the colonial onslaught, women lost their central role in production and the status that went with that role (which was arguably more significant than what Victorian bourgeois values granted the middle-class settler woman. See also Sifiso Ndlovu’s chapter in Zulu Identities ).
Judging by the latest developments in the institution of polygamy, women in such marriages have been reduced to decoration and competitors for the husband’s capital and personal interest.
Polygamy would have changed radically and would quite possibly have fallen away over the past 150 years, were it not for the artificial preservation of aspects thereof in the formaldehyde of customary law.
Even without the earth-shattering effects of colonialism on “culture”, it would be absurd to suggest that such a dynamic and multifaceted phenomenon such as “culture” can be a fixed set of rules that is transferred from generation to generation without alteration.
But there are many in this country who attempt to do exactly that — whether they are neo-Afrikaner nationalists or Africanist populists. Similarly, it is in patriarchal and ethnic chauvinists’ interest to insist that what customary law has bequeathed us is indeed “true African culture” — as though there has always only been one African culture of which the rules were carved into stone for all eternity.
The Zuma-inspired “fashion” of polygamy illustrates Ugandan scholar Mahmood Mamdani’s point that the perpetuation of customary law in a post-colonial system draws a new line between “indigenous” and “non-indigenous”. (Read Mamdani’s chapter in William Gumede and Leslie Dikeni’s The Poverty of Ideas  to grasp the full extent of the peril in this.)
As always, women’s bodies are used to draw the borders of these new and dangerous in- and out-groups. This time it is done through the continuation of polygamous relationships marked by unequal power relations and by the refusal to extend to women the right that currently only men have, that is, to marry multiple partners.
The polygamy “fashion” also shows how well patriarchy has adapted to undermine the achievements of feminism in this democracy: black women are no longer legally designated minors but customary marriages can still be utilised to discipline them into subordination.