A case involving a 54- year- old woman who was married at the tender age of 11 under customary law was recently returned to Maun customary court from Eretsha village customary court where it had been referred to two months ago.
The concerned first wife, Mosadimotho Ditshameko wants his 60-year- old husband, Ditshameko Makgetho to change their marriage regime from customary to civil so that she too can have a marriage certificate to prove that she is legally married, just like Makgetho;s second wife.
Appearing before Kgosi Leretse Mogalakwe on Tuesday, Mosadimotho wanted her husband to clarify before court where they stand in their marriage since he recently married his mistress and mother of his other children without getting consent from her.
“It is really important that this case be heard because I am troubled by my current status in this marriage,” explained Mosadimotho.
However the case could not proceed as her husband and other members of his family explained that they had to attend a funeral of a close family member in Eretsha.
The matter was initially heard before the same Kgosi Mogalakwe in May and Mosadimotho shared her side of the story, citing that since her husband has married another woman without caring to consult her first, she was not sure of where she stands in the polygamous arrangement.
Although she admitted that she had known about the other woman and that her husband has children with her, she said her concern was that her husband was yet to conclude her marital rights with her as she does not yet have a marriage certificate, “This is a concern because it would appear as though she is the recognised wife and I am not, yet I have been with him since I was 11,” she said.
However the husband who is yet to tell his side of the story has indicated that he had no intentions to divorce the first wife.
Mogalakwe then referred the matter to Eretsha, but the woman protested against the decision hence it is back before Maun customary court.
Asked about the customary law in relation to polygamy and child marriages, a Human rights activist and lawyer, Uyapo Ndadi of Ndadi law Firm in Gaborone explained that, “There is no Customary law known to me that requires consent of existing spouse if the man wants to marry another person. One can marry as many spouses as they want as long as they can afford it, there is no limit to numbers of wives a man can marry under customary law.”
Ndadi further explained that customarily both marriages are valid and children rate equally in matters of inheritance, “The only prohibition is you cannot then marry the second wife under common law because if you do, then you can be charged with bigamy because the moment you go the civil route you close yourself from polygamy.”
Regarding child marriages, Ndadi explained that the customary law allows it, “There was a time when we tried to move amendments seeking to outlaw child marriages in Botswana, but we were not successful. Customary law allows it.”
