OSSREA Publications

This chapter gives a brief expose of the author’s own experience with marriage and what eventually led her to go through the process of “divorce”. To give the context, the chapter further presents an overview of the origins of the Basotho people as a nation and the Lesotho’s profile touching on politics, economy and the legal system. The chapter also discusses the theoretical and conceptual frameworks, statement of the problem, and objectives, research questions, significance and scope of the study. It finally presents the methodology specifying the approach used, data collection methods employed and how the data was analyzed. 

 

This book is a product of long years of reflection and soul searching which started as far back as the late 1970s when the author first had initial close brushes with the law in an attempt to resolve marital problems. This journey has carried me through exploration and evaluation of my own experiences (memories, values, understandings and opinions) regarding issues of marriage and the chances of its survival or otherwise given the Basotho socio-cultural, legal, political, economic and religious contexts that have shaped the Basotho’s life. I, therefore, start this section by briefly outlining where I am from in terms of my long journey through marriage and an encounter with “divorce”. Note that I have everywhere put the word “divorce” in inverted commas because of the questions I have in my mind regarding the phenomenon, i.e. its existence or otherwise within the Sesotho culture. I presented the gist of my story and experience this early in the introduction to help the reader get an idea and the feel of where I am writing from and what has influenced me to see things the way I do.

Like majority, i.e. about 99 per cent of Basotho girls of my time, I was married both according to custom as well as through the “civil rites”. The marriage through the “civil rites occurred in a ceremony that involved the religious minister “blessing” the union following the waiving of calling of bans. Our parents had negotiated this with the priests’ guidance. The customary aspect had followed the normal process or procedure:

• an agreement between ourselves that we wanted to marry;
• followed by “Monna-Pere” (horse-man) who came to my parents to break the news officially and got the negotiations started;
• then followed by “ho theha Bohali” (initiate negotiations about bohali). This involved a series of meetings between the two families. What was significant was that each family had co-opted a member or two from another related family in order to bear witness to the unfolding developments; and
• the agreement reached between the two families regarding the “bohali” was endorsed by signatures of all those that had participated. The document also had to carry the official stamp of the chief.

At the church, my understanding and concern as I stood before the minister that August 23rd, 1974 was for me as a catholic to receive the sacrament of matrimony— thereby having the marriage that I knew had been completed according to custom, carry blessings and best wishes from this institution that I also believed would, from time to time, call on divine intervention to ensure that things go well. Least was I aware that the church minister was actually getting me into a different type of marriage; namely, the civil marriage that would be governed by rules and regulations that are foreign to what I had always known, understood and upheld. Worse still, I even least knew, let alone understood, the implications of such a contract. I later knew that the hallmark of that new contract was the so-called marital power which confers a legal minority status on a civilly married woman. Because of the absolute marital power bestowed on the husband, he is legally entitled to exercise such power over his wife and her property. This foreign concept remains an import of the Roman Dutch Law and is explicitly spelt out in the Common Law and the statutory law of Lesotho. The Sesotho Customary Law that one knows and understands does not have concepts, such as marital power and community of property because according to Sesotho custom property belongs to the family. Customary marriage also does not have the notion of a married woman’s legal minority status. One should, as early as this point, state that I am not sure that I buy into the argument that has been put forward by some of my academic colleagues that these concepts are implicit in the Sesotho customary law. To me this is very debatable, and I see it as a consequence of the common law influence on our legal system and the legal practitioners themselves. I also feel that it reflects a general manifestation of an opportunistic attitude among our generation of academics and gender activists.

In this regard, Fanana (2001–2004, 127 ) writes, “With a civil marriage, despite the issue of the ‘unity of spouses’ under which both the wife and the husband create one unit called ‘family’, only the husband becomes the head of this unit”. She further elaborates on the issue of marital power and how it generally disadvantages women. However, with regards customary law, I knew that I had a “molekane" 1 (a partner) who would just not wake up one day to claim that he alone has the power to decide how best to spend the money that he earns at his place of work as well as the one I get paid by my employer. This demands that the couple and the family communicate and not just have someone issue orders for the “minor” to follow. Custom recognizes the couple’s equal contribution in the economic and social welfare of their household. As Fanana (2001–2004, 138) correctly states, marriage under custom is neither in nor out of community of property; hence property acquired by the couple is known as “household property” and not marital property. In customary law marital property relations emphasize the protection of household members and not spouses per se”.

In an interview (08.02.2000) a customary law lecturer and a chief Mosotho male, who is bent on leading and ruling his Batlokoa tribe according to custom, applauds the durability and permanence of customary marriage and because of that he calls it a “Sacred Covenant” (drawing parallels from the Holy Bible). He argues that with several covenants in it, it brings families together and unites them. It also unites the clans (maloko) so that one’s weakness becomes their strength vice versa. For instance, consider the case of nephews or nieces and the family of their maternal relatives. Molapo (2005, 152) comments about “malome” (one’s mother’s brother) and refers to this character as “a pillar in Basotho society”. She correctly stresses the significant role that he plays in helping keep families connected together through marriage. She sees him possessing “multiple voices”, i.e. he speaks with two quite different voices:

He on one hand fulfils in his own family/patrilineage the “normal” patriarchal roles and duties and enjoys the privileges associated with and ascribed to a male person. His influence, on the other hand, extends into his sister’s family-in-law where he safeguards her interests, and thus directly those of his patrilineage. He has to be informed about events that take place regarding his sister and her children; conducts or is involved in various rituals and ceremonies on their behalf, (e.g. having a slot in the programme at the funeral of his sister’s children, performing rituals for initiation or when a nephew or niece is sick or befallen by some kind of misfortune). Malome is the one who introduces the newborn children of his sister to his/her lineage’s ancestors so that they protect them; he is the one who makes sure that there is frequent contact with the mother’s kin.
Molapo (2005, 153) concludes this important part by stressing, “Although the Basotho are a patrilineal society, the “malome” ensures that the “story” of the mother’s side is also told; that the married sister has a firm link with her natal lineage through her brother; and that the importance of the matrilineage is not being underplayed by the in-laws”.

This is what sustains the very strong chain that connects the two families brought together by customary marriage.
This is a relationship that has been built by blood. The children born out of this marriage create a very strong bond between the two families which cannot be broken.  The fact that I begot children with my husband in a customary marriage cannot be reversed regardless of the number of divorce decrees the high court grants. These children remain the factor that binds me to the in-laws forever because that is where they belong because of the “Lobola” (often used as an equivalent of bohali) that was given to my people. “Ke bana ba khomo tsa batho” (they are children of other people’s cattle) (Mahalefele 1990). According to Sesotho custom, children belong to the cattle that married their mother. Hence the saying “cattle beget children”. In other words, a child born of a woman married according to custom and for whom “bohali” has been exchanged remains the legitimate child of the husband regardless of who fathered it.  This is the message that Mahalefele (1990) is communicating. My only children, the two girls, “ke bana ba khomo tsa batho” (they are children of other people’s cattle). This was the type of marriage I entered.

 

The difficult situation that resulted mainly from the abuse of marital power as provided for in the civil marriage left me with no option after many years of struggle but to finally resort to divorce fully aware of the fact that this was merely to provide an expedient civil solution to a civil problem, while the unwavering customary marriage would still be there to stay. Divorce as a temporary solution with the removal of marital power made it possible for me to secure a site, negotiate a building loan, open a new savings account with the bank that I would independently operate and do several other things that benefited me and the children sometimes even the very husband himself. All of the issues briefly alluded to here will be discussed in detail in the following chapters. My position is that the current dual marriage system is confusing. The Basotho should either marry according to custom only or through civil rites and not mix the two. The churches should only stick with blessing the existing customary marriage and not push people unknowingly into civil marriages through its involvement. One has to acknowledge the solemn warning raised by Matsela in an interview (January 2006) that “molao oa tsofala; o hloka ho holisoa e seng o lahloe” (the law gets outdated; but ours is not to just throw it away and kill it.  It has to be reviewed, enriched and enhanced with a view to helping it grow to serve the purpose).

After the “divorce” was granted, my own parents and my natal family in general never accepted me back into the family. They had persistently argued that they had given me away in marriage to my in-laws according to customary procedures and that marriage does not end. They argued they would only accept me back if the same in-laws brought me back home. My father and mother died in 2003 and 2004, respectively without having shifted a bit from this position. In fact at my father’s funeral my in-laws were legitimately honoured with a slot in the programme to give words of condolences as “bakhotsi” (my son’s or daughter’s in-laws) as custom dictates. It is this experience that this book shares. The book has been enriched through and complemented by the voices and experiences of other Basotho women and men that have gone through similar experiences that forced them to end up as “divorcees”. It, therefore, brings to light some of the fallacies and hard facts about the realities of the day-to-day existence within the socio-legal, cultural and religious contexts of the Basotho.