|The customary marriage of Pres Zuma's daughter |
a typical Southern African traditional marriage. Photo source : WEHNAM
Uganda’s Supreme Court recently ruled that the refund of bride price after a divorce is unconstitutional. The judges stated that the practice should be banned because it seemed that women are being traded in a market place. But the same judges also agreed that bride price itself is constitutional.
By this ruling, the judges are inferring that when the husband is paying the bride price; it won’t seem as if the woman is being traded in the market place. But it will only appear as if the woman is being traded once the husband demands the refund of the bride price.
Obviously, Uganda being a former colony of Britain; its constitution would be based on English Law. Hence, the ruling is a typical example of the numerous conflicts between African culture and the English law. And sadly, English law always supersedes Africa customs.
But first, let me explain why men pay bride price in African customary marriages.
In Christianity, the bible says in Matthew 19:5 that “…a man will leave his father and mother and be united to his wife, and the two will become one flesh.” But in Africa tradition, it is the woman that will leave her family’s home and join her husband.
And thus, one of the reasons why bride price is paid in Africa is the symbolism of transferring the bride from her family to her husband’s family. Therefore, it is erroneous to believe that a woman is bought when her bride price is paid by the husband.
Although a lot of money is spent in paying the bride price in some part of Africa but some families will simply ask for a token from the man to fulfil this traditional requirement of marriage. In this case, it becomes very clear that bride price is not a purchasing price for a wife.
Another reason for the payment of bride price is that it gives the wife access to the rights and privileges that other married women enjoy in their husbands’ community.
Very often, other married women would disrespect a woman whose bride price has not been paid. She would be seen by other women as a desperate woman who couldn’t wait for a man to need her. In other words, the payment of a bride price is the ultimate sign that a man desires the woman.
Perhaps, the very reason for the payment of bride price is that the children born in that relationship will belong to the husband and bear his name. Should the husband die before the children become adults, ownership passes to his extended family, therefore the woman cannot take the children away without their permission.
On the other hand and customarily, a man doesn’t own his children if he didn’t pay their mother’s bride price. The children will always belong to the woman’s family until the man pays. And the bride’s family can even name the child after their family name.
It is similar to what is obtainable in western countries. Children born out of wedlock legally belong to the woman. And the woman can chose to give the child her maiden name as surname, etc.
In addition, it is disgraceful in Africa culture for man to cohabit with a woman without paying her bride price. He will not be considered as a married man and a full fledged man by other men. This humiliation could force the man to work harder and pay her bride price.
By the way, before the westernisation of Africa, divorce was rare in Africa tradition. This was due to the fact that if a woman chose to divorce her husband, she will not leave with her children. As I have earlier stated, the children belong to the man if he has paid his wife’s bride price; otherwise she will be entitled to leave with her children.
Actually, losing the custody of their children is the very reason why most African women remain in abusive relationships. You often hear a woman say; I am still here because of my children. The fear of leaving her children in the hands of a prospective new wife of her husband will make a wife to stay back and weather the storm.
In my opinion and in the actual sense of it; Africa women should have more rights to children during divorce. I think they contribute more to bringing children into the world than men.
And hence, denying them the right to their children during divorce is what persuades most wives to remain in an abusive relationship and not the refund of bride price as stated by Uganda’s Supreme Court.
Besides, the refund of bride price is only effective when the woman didn’t have any child in the relationship. And no man will accept the refund of a bride price if he had children with the woman; that will amount to relinquishing his rights to own his children.
But if the relationship didn’t produce any child, the husband may accept the refund of the bride price. However, the process is usually initiated by the bride’s family since the refund comes from the bride price paid by the new man that wants to marry the divorced woman.
And as it is traditional that bride price is only paid once in the life of a woman, the bride’s family is under obligation to make the refund.
More so, the refund of the bride price in most cases is advisable because of the Africa traditional implication to ownership of children. The practise is that once a man pays a bride price he owns every child born by the woman notwithstanding who impregnated the woman.
Thus, if another man marries the divorced woman without refunding the initial bride price, traditionally, the woman still remains the wife of the first husband. And therefore, every child born in the new relationship, by custom, still belongs to the first husband.
Moreover, if the bride’s family withholds the new bride price without refunding the first husband, then it becomes complicated because each of the men can lay claim on every child born by the woman since they both paid bride price. This is why Africa tradition orders refund of bride price to settle this kind of complication.
Furthermore, if the refund of bride price is not built into Africa (Uganda) customary marriages, deceitful African fathers could receive bride price from different men and invariably, start trading their daughters in the market place, which is exactly what the Uganda judges and women rights activists are trying to prevent.
Obviously, in pronouncing the refund of bride price unconstitutional, the Uganda’s Supreme Court didn’t consider the traditional reasons why Africa (Uganda) customs ordered the refund of bride price.
In all, if the judges want a ban the refund of bride price they should also ban the payment of bride price. At least, if a man didn’t pay anything he won’t ask for any refund. I think it’s fair that way.
And since the judges believe that the inability to refund the bride price keeps a woman in an unhappy relationship, she can now get a divorce without any hindrance since her family would have no bride price to refund.
Consequently, the rights of wives to the custody of children during divorce should be the area that those human and women rights agitators should look into and not the refund of bride price, which technically doesn’t hider any wife from walking out from abusive marriage.