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| 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 the bride price after a divorce is unconstitutional. The judges stated that the practice should be banned because it seemed that women were being traded in a marketplace. But the same judges also agreed that the 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 marketplace.
But it will only appear as if the woman is being traded once the husband demands a refund of the bride price.
Uganda is a former colony of Britain; its constitution would be based on English Law, obviously.
Hence, the ruling is a typical example of the numerous conflicts between African culture and English law. And sadly, English law always supersedes African customs.
But first, let me explain why men pay the 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 African tradition, it is the woman who leaves her family’s home and joins her husband.
Thus, one of the reasons why the 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 on paying the bride price in some parts of Africa, some families will simply ask for a token from the man to fulfill this traditional requirement of marriage. In this case, it becomes very clear that the bride price is not a purchasing price for a wife.
Another reason for the payment of the bride price is that it gives the wife access to the rights and privileges that other married women enjoy in their husbands’ communities.
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 the bride price is that the children born in that relationship belong to the husband and bears his name.
Should the husband die before the children become adults, ownership passes to his extended family, 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 doesn’t pay their mother’s bride price. The children will always belong to the woman’s family until the man pays a bride price. 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 choose to give the child her father's name as a surname, etc.
In addition, it is disgraceful in African culture for a man to cohabit with a woman without paying her bride price. He is not considered 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 westernization of Africa, divorce was rare in African tradition. Since a traditional marriage is a union between 2 families, a divorce will also be between the families. If the divorce goes through the groom's family will keep any child from the relationship.
As I stated, the children belong to the man if he paid his wife’s bride price; otherwise, she will be entitled to leave with her children after divorce.
Actually, losing 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 makes a wife stay back and weather the storm.
In my opinion, in the actual sense of it African women should have more rights to children during divorce. I think they contribute more to bringing children into the world than men.
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 the bride price as stated by Uganda’s Supreme Court.
Besides, the refund of the bride price is only effective when the woman doesn’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. The bride price must be fully refunded before the woman remarries.
As it is traditional that the bride price is only paid once, the bride’s family is obligated to make the refund.
More so, the refund of the bride price in most cases is advisable because of the African traditional ownership of children. The practice 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 remains the wife of the divorced 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 man can lay claim to every child born by the woman since they both paid the bride price. This is why African tradition orders a refund of the bride price to settle this complication.
Furthermore, if the refund of the bride price is not built into African (Uganda) customary marriages, deceitful African fathers could receive bride price from different men. And invariably, start trading their daughters in the marketplace, which is what Uganda Judges and women rights activists are trying to prevent.
Obviously in pronouncing the refund of the bride price unconstitutional, Uganda’s Supreme Court didn’t consider the traditional reasons why African (Uganda) customs ordered the refund of the bride price.
In all, if the judges want a ban on the refund of the bride price, they should also ban the payment of the bride price. At least, if a man didn’t pay anything, he won’t ask for a 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 the bride price, which technically doesn’t hinder any wife from walking out from an abusive marriage.
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