Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law

Beginning of article

This is an explosive time for those seeking to define the meaning and parameters of marriage. The subject has generated heated debate worldwide. In June 2010, the European Court of Human Rights declined to extend marriage rights to a gay Austrian couple, but the Court carefully laid the foundation for the recognition of such rights when a European consensus on the issue emerges. In July 2010, Argentina extended to same-sex couples the right to marry, joining nine other countries that legally recognize same-sex couples" right to marry. In August 2010, a United States district judge struck down a California ban on same-sex marriage. Marriage, as a legal status and a social construct, continues to evolve.

In recent years, some theorists have questioned the continued salience of marriage as a legal category and advocated a minimal role for the state in marriage regulation. Those challenging marriage as an institution and the state's role in marriage regulation do so for legitimate and compelling reasons, primarily related to the role of the institution in perpetuating sexism and heterosexism. This Article is the first to explore the transnational applicability of this critique of marriage. In light of this critique, the Article interrogates the role of the state in marriage regulation in the particular context of Commonwealth African states. In contrast to those arguing for a limited or nonexistent role for the state in the ordering of private, intimate relationships, the Article argues strongly for expanded, rather than reduced, state intervention in marriage. Robust state regulation will promote equality within individual relationships and among relationships, including same-sex relationships.

The Article proposes a three-part strategy for promoting equality in marriage. First, states with plural legal systems, such as those in Commonwealth Africa, should preserve the plural legal architecture of marriage but integrate the relevant laws by establishing a legislative core of rights within marriage. Second, states should promote equality among intimate relationships by building on the existing marriage "menu" options, adding options for same-sex couples when the political climate is ripe for such reform. Third, states should explore traditions and customary law that support broader understandings of family and caregiving, moving the focus of family law beyond the heterosexual spousal dyad.

INTRODUCTION

Marriage matters. In recent years, activists and scholars from all over the world have challenged the traditional parameters of marriage, questioning eligibility requirements and legal benefits that arise from marriage. (1) Some advocate for the elimination of marriage as a legal status while others argue for the expansion of marriage rights to same-sex couples. (2) Both proposals have generated significant controversy and called into question the role of the state in marriage regulation. A number of theorists in the global North argue that reducing the state's role in marriage regulation, or eliminating it altogether, will promote equality for women and same-sex couples. This Article is the first to explore the transnational application of these important theoretical contributions. The Article assesses the role of the state in marriage regulation in the context of Commonwealth African states and concludes that robust state intervention in marriage has the greatest potential to promote equality within and among families.

For the vast majority of women in Commonwealth Africa, (3) marriage determines social acceptance, financial well-being, and even physical health. (4) Despite the centrality of the institution, women enjoy vastly different rights within marriage depending upon whether the couple marries according to statutory law, customary law, or religious law. (5) The level of state intervention in marriage depends, in large part, on the type of marriage into which a couple has entered. (6) Civil or statutory marriage suggests a high level of state control while the state cedes to local communities much regulatory control over customary and religious marriages.

Although some feminists have recently argued that the state should not be involved in the regulation or promotion of marriage, the state has a critical role to play in the protection of women's rights within marriage. The state has an obligation to promote equality both within and among intimate relationships. (7) The state's obligation to promote equality within relationships involves the promotion of gender equality within individual relationships. The obligation to promote equality across or among relationships concerns the state's exclusion of certain types of relationships, such as same-sex relationships, from state recognition. In the Commonwealth African context, this dual obligation is best served not by less regulation, as some would argue--but by more.

This Article provides an overview of marriage in Commonwealth African countries, explores the underlying values that animate reform of the plural legal systems in these countries, and offers a justification for contemporary state intervention in the customary marriage regime. The Article explores the argument of some Western feminists that the role of the state in marriage regulation is obsoletes and considers the saliency of this contention within the plural legal systems of Commonwealth Africa. Although these arguments are an important and compelling part of the discourse on women's and LGBT rights in the global North, they are less persuasive in the particular context of Commonwealth Africa.

Part I of this Article identifies the characteristics of Commonwealth African marriage within plural legal systems, including rights to enter into marriage, rights within marriage, and rights at dissolution of marriage. This description of the contours of marriage provides a backdrop against which to measure the intransigence of gender roles and to assess the state's role in challenging and transforming those roles. I do not intend to describe Commonwealth African marriage in great detail here. To do so would be impossible given the myriad variations on customary, religious, and even statutory marriage laws. Customary marriage law, for example, varies not only within countries but also among ethnic groups and even, at times, among villages. (9) My goal in this section is rather to sketch the parameters of marriage under different marriage regimes, primarily customary and statutory law. Although marriage under religious law, including Islamic and Hindu laws, forms an important part of the marriage mosaic in Commonwealth Africa, this Article focuses largely on comparisons between customary and statutory marriage. (10) This section highlights the ways in which customary marriage law discriminates against women. (11)

Part II explores the values that have shaped the evolution of marriage law within plural legal systems, including the impact of colonialism, the desire to preserve culture and tradition, the desire to promote women's equality within the family, and the recognition of choice in governing marriage law. As I have argued elsewhere, the discourse on gender equality in the region must engage both the promotion of equality rights and the preservation of custom. (12) These dominant frames provide the foundation for any discussion of women's rights within the family in Commonwealth Africa.

Part II also interrogates the plural legal system as a possible site for the exercise of women's agency in the choice of governing marriage law. Within the plural legal systems of Commonwealth Africa, statutory marriage regimes can offer women a more equitable, though imperfect, alternative to the relevant customary or religious marriage law. (13) Within these plural systems, women have the option to marry according to statutory law, an option that allows some women to exercise agency in protecting their own rights within the marital relationship. (14) Eliminating the state's role in marriage or eliminating marriage as a legal category in the Commonwealth African context would simply narrow the range of marriage options for women. Given the entrenched attachment to marriage in the region, rates of customary marriage would rise, reducing the opportunity for women to choose a marital regime that is more hospitable to women's rights while preserving traditional notions of marriage. By offering a civil law alternative to traditional marriage, the state plays a crucial role in protecting the exercise of women's agency in the choice of governing marriage law. Although the patriarchal social context of the family constrains women's ability to exercise that choice, the existence of a more equitable statutory alternative to traditional, customary marriage also serves an expressive function. The statutory alternative, even if selected by a minority of marrying couples in the region, expresses the state's normative commitment to women's rights within the family.

In Part III of the Article, I advocate preserving a role for the state in marriage regulation in Commonwealth Africa on two primary grounds. First, the state has an obligation to promote gender equality within relationships. (15) The state must take seriously its international human rights obligations to intervene in marriage. Abrogation of the state's role in marriage regulation would, in fact, contravene human rights obligations. Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), for example, requires States parties to actively engage in the promotion of equality within marriage. (16) It would be impossible for a state to fulfill this obligation if it abdicated responsibility over marriage regulation or constructed a minimal role for state intervention within marriage.

Second, the state has a role to play in the protection of equality across relationships. To this end, the state must protect not only heterosexual unions but those in same-sex relationships as well. (17) The global landscape of rights protection across relationships is evolving. In June 2010, the European Court of Human Rights issued a judgment stating that the Austrian government was not required to extend marriage rights to same-sex couples. Importantly, however, the Court indicated that it might someday require that states recognize the marriage rights of same-sex couples if and when a European consensus emerges. (18) In a surprising development in July 2010, Argentina, a majority-Catholic country, recognized same-sex couples' right to marry. (19) Argentina joins Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden in legally recognizing the marriage rights of same-sex couples. (20) In August 2010, a federal judge in the United States struck down a California law banning same-sex marriage. (21) A number of other countries across the globe fall short of providing marriage rights but extend protection to civil partnerships or other forms of same-sex unions. (22)

Despite the nascent trend toward state recognition of marriage rights for same-sex couples, feminists and LGBT activists are divided as to whether to embrace or reject marriage as an institution. (23) In this context, a number of feminists and LGBT advocates argue that the state should not privilege marriage over other types of familial relationships. (24) Although some LGBT advocates argue for the extension of marital privileges to those in same-sex relationships, others argue for dismantling the institution of marriage as a way to promote equality for women and same-sex couples. (25) Advocates of marriage deregulation suggest relegating the ordering of intimate relationships to ordinary contract law or constructing a system in which the state can register all manner of familial relationships and reward or compensate, for example, those who engage in caretaking. (26) This method avoids the use of a rather blunt instrument (i.e. formal marriage) as a proxy for behavior that the state would like to incentivize. (27) There are limitations, however, on the application of marriage deregulation in Commonwealth Africa. The arguments advanced by feminists and LGBT advocates in the global North are highly contextual. The arguments, compelling in their own context, are products of a geographic, political, and temporal reality that is not readily transferable to Commonwealth Africa.

In Part IV, the Article proposes several ways in which a Commonwealth African state might positively intervene in marriage, promoting equality both within and across relationships. Abolishing customary marriage systems is neither culturally sensitive nor feasible. Recognizing the continued purchase of customary marriage in the region, states should establish a "legislative floor" for marriage rights that applies regardless of the type of marriage into which a couple has entered. The "legislative floor" approach would standardize a minimum core of rights within marriage, such as minimum age, consent, property rights, and custody. The state would preserve aspects of customary marriage law that are valued markers of community and ethnic identity and that do not contravene the statutory standard of minimum rights within marriage. A "legislative floor" approach will allow states to preserve the positive aspects of customary and religious marriage law while reducing its discriminatory aspects. (28)

Rather than eliminating customary or religious marriage law in favor of a universal statutory option, the "legislative floor" approach maintains a plural system in which marrying couples select the governing law. Standardization of rights through a "legislative floor" approach will allow states to build upon the plural system and eventually increase the menu of options available for marriage. Removing the state from the marriage business would effectively reduce menu options by eliminating the state-sponsored statutory version of marriage. States should preserve the architecture of the plural system and, when politically feasible, increase the menu options to include civil partnerships or marriage for same-sex couples. Although distinct in its culture, politics, history, and economic status, South Africa provides a regional example of a country that has increased its menu of marriage options to include not only civil, customary, and religious marriage but also civil partnerships and marriage for same-sex couples. (29)

Finally, states should explore areas of potential resonance between state-sanctioned values of gender equality and customary law within marriage. Customary law is dynamic; in theory, it will respond to evolving social needs and pressures. (30) There may be ways in which customary notions of caregiving support a broader understanding of marriage and familial roles. Caretaking responsibilities, for example, have traditionally extended beyond the spousal dyad to include extended family members. (31) HIV/AIDS has left a startling number of children in the region without parental caregivers, leaving them in the hands of grandmothers and other extended family members. (32) This de-centering of the spousal relationship within customary understandings of family may allow for an exploration of resonance between custom and contemporary critiques of the state's privileging of individualistic, heterosexual marriage partners.

The Article strongly argues for preserving a role for the state in marriage regulation within Commonwealth Africa. This conclusion stems, in part, from the recognition that eliminating the role of the Commonwealth African state in marriage regulation would do more harm than good. In this sense, the transnational applicability of the marriage critique is limited. Feminist arguments to the contrary, although important and compelling in many jurisdictions, do not reflect the current reality of Commonwealth African women's lives. In this context, the state has a crucial role to play in promoting equality within and across marital relationships. Although contemporary political realities in the region suggest some limits on the state's ability to promote equality across relationships, there is considerable value in laying the foundation for future advocacy efforts. Indeed, rather than echoing Western feminists" concerns about state overreaching and intrusiveness in marriage, many African scholars lament the enervated state response to persistent inequality within and across intimate, familial relationships. (33)

I. CHARACTERISTICS OF AFRICAN MARRIAGE

A. Requirements for Marriage

1. Consent and Age Requirements

Marriage under African customary law is often seen as the union between two families rather than two individuals. (34) As such, the customary law of some ethnic groups does not require the individual consent of the marrying woman. (35) In many countries, customary law considers women to be under the guardianship of their fathers before marriage and of their husbands after marriage. (36) A widow may live under the guardianship of her husband's customary law heir, such as her husband's brother or a male cousin. (37)

These limited conceptions of women's legal capacity affect societal perceptions of women's ability to consent to marriage. (38) In other words, when a woman is considered a legal minor or otherwise lacks legal capacity under customary and/or statutory law, it becomes less important to seek her consent in the context of an impending marriage. (39) As a result, families sometimes coerce or force women and girls into marriages, sometimes with much older men. (40) In addition to explicit familial coercion, social pressure to marry is significant and acts as a powerful incentive for girls and women to accept the marriages arranged by their families. (41)

Under the statutory law of most Commonwealth African countries, both women and men must explicitly consent to the marriage. (42) Nigerian statutory law, for example, defines marriage as a voluntary contract between a man and a woman. (43) Although the statute restricts marriage to opposite-sex couples, it imposes a consent requirement designed to combat forced or coercive marriage. In addition to statutory consent requirements applicable to civil marriages, a few countries have enacted legislation extending the requirements of civil marriage, including consent, to customary marriages. (44) South Africa's Recognition of Customary Marriages Act, for example, requires consent of both spouses for legal recognition of the customary marriage, as well as that of the parents where a party is a minor. (45) In addition, Ghana's criminal code makes it a criminal offense to force another to marry. (46) In some cases, customary law has evolved to require the consent of both parties. In Ghana, Namibia, and Sierra Leone, for example, contemporary customary law requires the consent of both parties to the marriage. (47)

In some African Commonwealth countries, customary law permits early marriage. (48) Although the marriage may not be consummated until a girl reaches puberty, families may promise an infant or very young daughter in marriage. (49) Parents sometimes arrange marriages that involve a young daughter and a much older man. (50) This age difference may reinforce male dominance within the marriage, limiting women's or girls' ability to negotiate safe sex practices and contributing to violence within the marriage. (51)

Where early marriage occurs, it often causes serious health consequences for girls who become pregnant at a young age. (52) Girls between the ages of ten and fourteen are five to seven times as likely to die from childbirth as their counterparts who are over twenty years of age. (53) One of the primary health risks for girls who marry and become pregnant at an early age is obstructed labor due to small pelvic bones. Obstructed labor can result in sepsis, hemorrhage, obstetric fistula, and death. (54)

Many Commonwealth African countries have enacted legislation to regulate the age at which individuals may enter into marriage. (55) A number of countries require both boys and girls to be eighteen or older to marry. (56) Other countries have different marriage age requirements for boys and girls. In Tanzania, for example, the Law of Marriage Act, which applies to statutory, customary, and religious marriages, allows boys to marry at age eighteen and girls to marry at age fifteen. (57) In Uganda, marriage age requirements differ under statutory, customary, and religious law. (58) In addition to consent of the spouses, some countries require parental consent, depending on the age of the spouses. (59) In Ghana, for example, the Children's Act of 1998 established eighteen as the minimum age for marriage, but it allows children between sixteen and eighteen years old to wed with their parents' consent. (60)

2. Bridewealth or Lobola

Bridewealth, sometimes called bride price or lobola, is the payment from a husband's family to a wife's family in recognition of the couple's marriage. (61) Practiced primarily by patrilineal communities, lobola typically consists of two stages: small, introductory payments that initiate the marriage process and the "main ceremony where major payments are made." (62)

Although the particular requirements for lobola and the name given to the practice differ among ethnic groups, there are some similarities across communities. For example, in many communities, lobola represents "the transfer of a woman's reproductive capacity from her natal family to the man's family." (63) Indeed, so strong is this connection between lobola and reproduction that "where the lobola has been paid and there are no children born of that marriage, traditionally the family of the woman is obliged to find a replacement for the bride or refund the lobola." (64)

Over time, the meaning of the custom has changed. It has "lost much of its traditional and spiritual significance and has become highly commercialized.... " (65) Lobola "is now seen as the purchase of a wife." (66) In Ghana, "families of prospective brides demand huge sums of money in addition to other gifts." (67)

Under customary law, lobola is often a requirement for a valid customary marriage. (68) In some countries, such as Swaziland, the practice, while important, is not necessary for a valid customary marriage. (69) Within some ethnic groups in Nigeria and Zambia, on the other hand, lobola is a prerequisite for a valid customary marriage. (70) Similarly, Islamic law requires a payment from the husband's family. For example, in Mozambique, mahari (contract money) must be paid to the bride before the ceremony may occur. (71)

Statutory law does not require the payment of lobola as a prerequisite to a valid civil marriage. (72) However, although not legally required, statutory law in Tanzania provides for the option of paying bride price. (73) And even if couples choose to marry under statutory law, they sometimes incorporate traditional customs such as lobola. (74) The persistence of lobola payment, in both customary and statutory marriages, frustrates some women's rights activists. (75) A number of African feminists and others lament the customary practice, noting that it contributes to women's subordination within the family. (76) Some feminists have argued that "lobola demeans the status of women, making them servants, rather than partners, in marriage." (77) But despite calls for the practice's statutory prohibition, lobola continues to play a significant role in Commonwealth African marriages.

3. Monogamy/Polygamy

Customary law in most Commonwealth African countries allows polygamy. (78) Although polygamy is widespread within many of these countries, some countries attempt to regulate the practice by requiring legal registration of customary marriages or by requiring the husband to gain approval from an existing wife or from the court for subsequent marriages. (79) For example, in Tanzania, the Law of Marriage Act allows a first wife to contest a subsequent marriage. (80) South Africa requires a party to apply to the court for approval of polygamous marriage to ease the later distribution of property. (81) As with customary law, Islamic law permits polygamous marriages. (82) Several countries legally recognize polygamous marriages within religious marriage law. (83) Islamic law limits a man to no more than four wives. (84)

In the majority of Commonwealth African countries, statutory marriage law prohibits polygamy. (85) Despite statutory requirements for monogamy in civil marriages, some men contract a civil marriage and subsequently marry additional wives under customary law. (86) Ugandan scholar Margaret Oguli Oumo observes, "Polygamy is a feature in the African family system and is considered a symbol of wealth.... Polygamy lowers the status of a wife relative to her husband.... The husband becomes the master and his wives compete for his favors. (87)

Although most civil marriage statutes prohibit polygamy, it nevertheless still occurs. In many Commonwealth African countries, polygamy is common in customary and Islamic marriages. In some instances, when African feminists have advocated for the abolition of polygamy, they have encountered vociferous resistance from those who believe the practice is an important marker of cultural identity. (88)

4. Regulation of Sexuality

Custom and tradition operate as a mechanism of control over women's sexuality in the context of marriage. (89) Families and communities police the boundaries of marriage through several forms of social control targeted at women and girls. The methods of controlling women's sexuality and reproductive autonomy include, inter alia, female genital mutilation (FGM), virginity testing, and "curative" or "corrective" rape.

a) FGM

Female genital mutilation (FGM) refers to the process of "intentionally alter[ing] or injur[ing] female genital organs for non-medical reasons." (90) The World Health Organization divides FGM into four categories: clitoridectomy (Type I), excision (Type II), infibulation (Type III), and other procedures involving genital cutting for non-medical reasons (Type IV). (91) Irfibulation, which involves "the removal of the clitoris, labia minora, and parts of the labia majora," is the most severe form of FGM. (92) The WHO estimates that 92 million African girls aged ten and above have undergone FGM. (93) Prevalence rates of FGM vary significantly by country: 78.3% in Gambia, 3.8% in Ghana, 27.1% in Kenya, 38.2% in Liberia, 83.2% in Mali, 29.6% in Nigeria, 14.6% in Tanzania, and 0.8% in Uganda. (94) The health consequences of FGM can be severe or fatal and may include: "acute pain, post-operative shock, urine retention, bladder infection, ... hemorrhaging, tetanus, septicemia," (95) and transmission of the HIV virus through unsanitary surgical tools. (96)

Communities that practice FGM do so for a variety of reasons. FGM stems from gender inequality and "represents society's control over women." (97) Some view FGM as a way to restrict women's sexuality by eliminating or "reducing their sexual fulfillment." (98) These families believe that this increases the chance that a young woman will remain a virgin before marriage. (99) Virginity at marriage is an entrenched social value. (100) Many communities, in fact, treat women's virginity as a prerequisite for marriage. (101) Families have a financial incentive to ensure a daughter's virginity at marriage, as virginity may affect the family's negotiations over the amount of bridewealth it will receive at the time of her marriage. (102)

There are also several historical-institutional reasons for the prance. Women who have undergone FGM and view it as an important marker of their own identity often support the practice. (103) The mostly female practitioners who charge fees for performing FGM also have an economic incentive to continue the practice. (104) In communities where FGM is common, there tends to be strong social pressure for families to choose FGM for their daughters. (105) Although religious texts do not encourage the practice, some religious leaders support FGM as a religious act. (106) Other religious leaders openly oppose the practice. (107)

Some countries have enacted laws prohibiting FGM, but many of these have been criticized as ineffective. (108) It is widely recognized among non-governmental organizations that criminal prohibitions alone will accomplish little. (109) Legal sanctions must be accompanied by widespread public education campaigns and broader policy initiatives designed to enhance women's autonomy in matters related to sexual and reproductive health. (110) One strategy that has enjoyed success in parts of Kenya, for example, is the promotion of alternative rites of passage for girls. (111)

b) Virginity Testing and "Curative Rape"

Another way of restricting sexual behavior prior to marriage is through virginity testing, which has enjoyed a resurgence in South Africa. "Virginity testing, a prenuptial custom traditionally conducted just prior to marriage, refers to the examination of females to ascertain whether or not they are sexually chaste." (112) In South Africa, some have embraced virginity testing not only as a way to police morality among young women but also as a tool to combat the spread of HIV/AIDS. (113) Misconceptions about virginity further complicate the issue. For example, "[s]ome South African researchers attribute the increase in sexual violence …