Research Report

Polygyny and Canada's Obligations under International Human Rights Law

September 2006

VI. MEANS CHOSEN TO PROHIBIT POLYGYNY

A. Challenges of Transition

1. Transitional Challenges for States Moving to Prohibit Polygyny

One of the greatest challenges to prohibiting and eventually eliminating polygyny are the transitional concerns that arise in the process. Beyond the immigration context, the transitional concern that polygynous families will be left outside the scope of spousal protections also emerges when national legal systems that formerly permitted the practice move to prohibit it. Here the concern that polygynous wives will be left in a legal lacuna centres on issues such as spousal maintenance, inheritance, social security and health benefits, as well as child support and custody. These national transitional concerns thus pose a further challenge to the development of international consensus around the elimination of polygyny.

These types of concerns are well documented historically. As Karen Knop's survey of the treatment of polygyny in the British-administered Cameroons in the mid-twentieth century reveals, transitional concerns were at the forefront of the British reticence to immediately prohibit the practice.[424] The case of the Fon of Bikom, a polygynous tribal king in the region, drew significant negative reaction from the St. Joan's Social and Political Alliance, a Catholic women's organization that promoted the equality of women in colonized regions.[425] The British Administration was concerned, however, that suddenly prohibiting the practice would harm the Fon's existing wives as well as those families entitled to have their daughters live in the Fon's compounds.[426] There was also further concern that a sudden prohibition would raise superstitious fears and fervent objection.

The British policy was therefore “to achieve a gradual modification of custom and at the same time ensure that individual hardship [was] prevented.”[427] In doing so, the British Administration only pursued polygynous cases involving coercion at the level of child stealing, false imprisonment, and assault, while relying on the ongoing influence of Missionaries and Government officials to further erode the practice.[428] As Knop notes, the British response to polygyny was essentially two-fold. First, the practice was generalized as a problem of culture (that could in turn be dealt with by “civilizing” missionaries and government officials), and secondly “acceptable” polygyny was distinguished from unacceptable polygyny according to the level of coercion.[429]

The history of Visiting Missions to Trust Territories in Western Africa also reveals some of the transitional, as well as culturally relativist, tensions that arise in addressing polygyny.[430] The 1950 Visiting Mission to the Trust Territories in West Africa cautioned against applying Western standards to African culture or customs. The Mission found polygyny to be a form of social security for vulnerable single women within existing economic conditions.[431] In its final analysis, however, the Visiting Mission concluded that “the harmful effects of the practice, and its inability to adapt itself to the needs of a progressive society” outweighed its moral and customary significance, mandating its progressive, but rapid elimination.[432] It recommended that officials encourage the eradication of polygyny by promoting and publicizing the rights of women and girls to refuse to enter forced marriages as well as to be released from them. In addition, the Visiting Mission stressed the importance of informing women and girls of their right to leave polygynous unions if they no longer wished to remain in them.[433]

Within the modern context, some states have tried to ease the legal vulnerabilities faced by those already in polygynous marriages by recognizing unions entered into before a certain year or before the passage of new family legislation. Côte d'Ivoire, one of the few African states to prohibit the practice, continued to recognize polygynous marriages entered into before 1964, for example.[434] These same transitional concerns may explain the reluctance of the drafters of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa to explicitly prohibit polygyny. Rather, Article 6 states that:

monogamy is encouraged as the preferred form of marriage and [States shall ensure]that the rights of women in marriage and family, including in polygamous marital relationships are promoted and protected.[435]

Here, one sees an expressed encouragement of monogamy combined with a seeming reluctance to prohibit polygyny lest the rights of some women in marriage and family life are undermined or removed altogether.

2. Transitional Challenges for Individuals Leaving Polygynous Unions

In addition to the challenges that State systems face in moving to prohibit polygyny while still providing protection for those in pre-existing polygynous families, individuals within states that have long prohibited the practice also face substantial obstacles in transitioning out of polygynous unions or communities into broader society.

Within the Fundamentalist Mormon context, for example, a human rights report issued by the New York University Law School Human Rights clinic noted the many obstacles women and girls face in leaving such communities. These include serious economic, psychological and legal obstacles. Such women and girls often lack the social structures necessary for their psychological and economic well-being outside their community.[436]

There are a number of legal concerns regarding women and children who leave such unions including issues relating to spousal maintenance, spousal / child support, and rights of inheritance. Here, as Nicholas Bala has argued, there is no reason to deny legal protections for spouses or children in polygynous unions.[437] Should a dependent spouse in a polygynous union try to make a property claim based on a constructive trust or petition the courts for child or spousal support, judicial protection should be granted.[438]

Significant concerns remain, however, with respect to provincial matrimonial property schemes that limit the automatic equalisation of net family property upon relationship breakdown to legally married spouses. While Ontario, the Yukon, the North West Territories, and Nunavut include polygamous parties who were married in foreign jurisdictions that permit polygamy in their definition of “spouse” for the purpose of property equalisation,[439] this would not apply to de facto polygynous unions formed in Canada. Provincial legislatures that have not specifically extended spousal support and matrimonial property schemes to include de facto polygynous spouses,[440] in addition to de jure polygynous unions entered into in foreign jurisdictions, within the definition of “spouse” for the purpose of support and property equalisation should do so. Because many polygynous wives will not have property registered in their name throughout their de facto marriages, their inability to access matrimonial property division schemes makes them particularly vulnerable at relationship breakdown. This is the case in Bountiful, for example, where women are not permitted to own property.

In systems where polygynous marriages are permitted under parallel religious or customary laws, securing maintenance and/or property remedies on relationship breakdown or the death of a spouse is particularly challenging. An action is currently being brought in South Africa by a claimant seeking recognition of polygynous Muslim marriages for remedial purposes under the Intestate Succession Act and Maintenance of Surviving Spouses Act.[441] The South African Women's Legal Center is arguing that regulation by the High Court would provide better protection for such wives than the Muslim Judicial Council whose decisions are often unenforceable.[442]

In addition to these legal concerns, religious teachings that state that those who leave polygynous unions or communities will face spiritual damnation can have a severely deleterious psychological impact. Most disturbingly, within the United States there are reports of underage girls fleeing polygynous communities after allegedly being forced into assigned marriages, and subsequently being returned to their families by law enforcement personnel.[443] While it is unclear that this exact scenario has occurred within the Bountiful, B.C. context, the Canadian authorities' reluctance to prosecute polygyny-related crimes to this point raises the same transitional concern as within the United States—namely, that girls and women will be reluctant to leave their community because they fear their human rights will not be protected by government authorities.

In addressing these transitional concerns, particularly the obstacles that women and girls face in leaving such families and communities, temporary special measures may prove necessary to achieve the kind of de facto transformative equality that the Women's Convention was designed to achieve. Temporary special measures are time-limited, positive measures designed to increase opportunities for disadvantaged groups.[444] The over-arching goal of these measures is to bring members of disadvantaged groups into the mainstream of cultural, economic, and civil society. The historical disadvantages that women and girls within polygynous communities such as Bountiful, B.C. have endured as well as the severe obstacles they face in reintegrating into broader society reveal the need for such temporary special measures.

In outlining when such measures are permitted, Article 4(1) of the Women's Convention provides that the:

adoption by States parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

Article 4(1) thus distinguishes acceptable temporary special measures that serve to achieve de facto gender equality from more permanent measures that may establish discriminatory standards. While the text of Article 4(1) itself does not seem to indicate a positive obligation on States parties to adopt such measures, it can be argued that the overall object and purpose of the Women's Convention—to eliminate all forms of discrimination against women—imposes positive duties on States in this regard.[445]

Indeed, in its General Recommendation no. 5, CEDAW noted that “there is still a need for action to be taken to implement fully the Convention by introducing measures to promote de facto equality between men and women.”[446] To fulfill this purpose, CEDAW recommended:

that States parties make more use of temporary special measures such as positive action, preferential treatment or quota systems to advance women's integration into education, the economy, politics, and employment.[447]

Building on this need for positive measures to assist women with integration into broader society, CEDAW noted in its General Recommendation no. 25 on Temporary Special Measures that States parties have three central obligations in achieving substantive equality for women:

Firstly, States parties' obligation is to ensure that there is no direct or indirect discrimination against women in their laws and that women are protected against discrimination—committed by public authorities, the judiciary, organizations, enterprises or private individuals—in the public as well as the private spheres by competent tribunals as well as sanctions and other remedies.

Secondly, States parties' obligation is to improve the de facto position of women through concrete and effective policies and programmes.

Thirdly, States parties' obligation is to address prevailing gender relations and the persistence of gender‑based stereotypes that affect women not only through individual acts by individuals but also in law, and legal and societal structures and institutions.[448]

Discussions on temporary special measures often focus on employment, political, economic or education-related policies such as “affirmative action” in the United States or “reservation” schemes in India.[449] It is important to note that the nature and function of temporary special measures extends beyond these spheres to include all spheres of life where discrimination exists, including within the family. Article 2(c) of the Women's Convention calls on States parties to:

establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination…

Within the context of polygynous transition, there are several temporary measures that the Canadian State should enact to ensure that women and girls leaving polygynous families or communities are effectively protected from ongoing human rights violations and acts of discrimination, and are assisted in fully integrating into broader society.[450] Such measures may include, but would not be limited to:

  1. an inter-ministerial investigation into polygyny and polygyny-related abuses in Bountiful, B.C. and elsewhere in Canada until such abuses are eliminated (with an emphasis on the Attorney-General's duty to prosecute criminal offences occurring within such communities)
  2. the development of gender-, religiously-, and culturally-sensitive guidelines for law enforcement officers and social workers investigating cases of polygynous families
  3. a review and amendment of existing provincial family legislation relating to spousal support and matrimonial property to ensure that women leaving polygynous unions—whether de jure or de facto—can qualify for the automatic consideration of support where needed and equalization of net family property
  4. training for law enforcement officials, social services authorities, health-care professionals, judges, lawyers, and teachers regarding the characteristics of polygynous families and polygyny-related abuses, until such time as training goals are achieved[451]
  5. free legal aid for women fleeing polygynous relationships / communities, until polygyny is eliminated
  6. public education campaigns about polygyny and polygyny-related violations of human rights, until polygyny is eliminated
  7. a time-limited working group within the Canadian Department of Justice to coordinate governmental policies on and assist with prosecutions of polygyny-related criminal offences
  8. training for school counsellors about the impact of polygyny on young girls, as long as the practice continues to exist; within the Bountiful, B.C. community, this should involve a counsellor who is not from the community in order that students learn some of the life skills that may be ignored in their regular curriculum[452]
  9. provide and fund support services for individuals who wish to leave polygynous relationships / communities, until polygyny is eliminated, including, but not limited to:
    • safe houses for up to 90 days that are staffed with counsellors with training regarding these types of family circumstances[453]
    • assistance with life skills such as managing one's financial and personal affairs
    • counselling in sexual abuse / incest issues, grief resolution, and family separation issues

It is clear that the British Columbia government's current investigation is an important first step in determining the scope of reported abuses of women and girls within Bountiful, B.C. In particular, the involvement of the Ministry of Children and Family Development in determining what specialized social services may be required to assist victims of abuse in a community setting will likely better address the needs of women and girls than a purely law enforcement based investigation would. [454] R.C.M.P. involvement should serve, however, to underscore the criminality of coerced adolescent marriages and illegal polygamy within the community, as Palmer's “Life in Bountiful” report suggested.[455] Finally, while the Ministry of Education committed itself in July, 2004 to broadening the scope of its school inspections,[456] it is disconcerting to note that as of December, 2004, annual provincial funding to Bountiful schools was once again renewed.[457]

B. Balancing a Respect for Cultural and Religious Contexts with the Protection of Individual Human Rights

In applying the dynamic principle of treaty interpretation in the context of polygyny and international treaty law, it is essential to determine what constitutes modern “present day conditions.” One of the most effective ways to ascertain this is to examine how other judiciaries are analyzing certain practices, particularly within the context of a given treaty.

With regard to polygyny, recent African jurisprudence provides useful insights for such a determination. This jurisprudence not only indicates particular regional trends in cases involving discriminatory customary practices, but also reveals more generally some of the means available to legislatures and courts to eliminate discriminatory practices while still being respectful of culture. African jurisprudence is particularly informative because it so often involves balancing cultural values and individual equality rights, a task that is especially challenging where Courts have to address parallel legal systems. For the most part, African judicial trends indicate a desire to ensure constitutional guarantees of equality by giving primacy to statutory law when customary rules conflict with it either through a repugnancy to natural justice analysis[458] or a balancing approach.

The repugnancy to natural justice approach, augmented by international human rights reasoning, can be seen in David Tchakokam v. Koeu Madeleine, a Cameroon decision rejecting the applicant's petition for a Court order to return his levirate wife to him as part of his deceased brother's estate.[459] The Court found that the practice of levirate (whereby a widow is expected to marry one of her deceased husband's brothers because the bride price paid to the husband's family is believed to remain with his family) was contrary to statutory law, contrary to Article 16 of the Women's Convention, and repugnant to natural justice.[460]

While the result in David Tchakokam accords with international human rights norms prohibiting harmful and discriminatory practices, there are nevertheless questions concerning the “repugnancy to natural justice” approach. Particularly within the African context, some scholars have argued that the repugnancy doctrine when applied to customary practices serves as an extension of colonial oppression and chauvinism.[461] This doctrine was applied in Mojekwu v. Mojekwu, in which a deceased's brother sought to inherit the deceased's estate to the exclusion of the deceased's daughter.[462] In its reasoning, the Court had “no difficulty in holding that the Oli-ekpe custom of Nnewi is repugnant to natural justice, equity and good conscience.”[463] Commentators have raised questions as to why the Court chose to apply the repugnancy doctrine when they had already declared that the custom was unconstitutional.[464] It may be, however, that the Court in Mojekwu used a repugnancy to natural justice approach to reinforce the Constitutional prohibition. Within the Canadian framework, there is a similar need to be sensitive to culture and custom, while nevertheless upholding women's human rights.

An alternative approach to the repugnancy doctrine can be seen in the recent South African Constitutional Court decision of Bhe v. Magistrate, Khayelitsha and others, wherein the Court rejected the application of customary law regarding male primogeniture (an exclusive right of inheritance belonging to the eldest son) while still being sensitive to the cultural and customary norms that underlay it.[465] Noting that the “majority of Africans have not forsaken their traditional cultures,”[466] the Court went on to undertake a “balancing exercise” in considering both cultural traditions and individual rights.

The respect for our diversity and the right of communities to live and be governed by indigenous law must be balanced against the need to protect the vulnerable members of the family. The overriding consideration must be to do that which is fair, just and equitable. And more importantly, the interests of the minor children and other dependants of the deceased should be paramount.[467]

Through this balancing approach, the Court was able to give consideration to the African traditions that informed customary laws, while nevertheless recognizing that individuals within the family, particularly the most vulnerable members, deserve legal protection from discriminatory inheritance practices.

This type of reasoning could similarly be applied to the practice of polygyny. Legislation or jurisprudence that prohibits the practice should be sensitive to the cultural or religious traditions that have historically permitted it, at least according to some interpretations, while nevertheless recognizing that it subordinates women and violates their right to be free from all forms of discrimination. In addition, it is essential that Courts and legislatures are mindful of the fairness and equality principles within these same cultural or religious traditions that may have been silenced by patriarchal interpretations.

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