Polygyny and Canada's Obligations under International Human Rights Law


Polygyny is practised in various different ways depending on the religious, customary, cultural and socio-economic context.[28] As a result, the harms associated with the practice often differ according to these contexts. While some of the harms are generally cross-cultural (for example, the economic strain associated with polygynous families), some are more contextually limited. To this extent, this Part II does not mean to be exhaustive nor representative of all polygynous unions, but rather suggestive of some of the harms associated with the practice.

In addressing some of the harms often associated with polygyny, it is important to note that some academic commentators have questioned whether the practice is inherently harmful to women and children or whether the typically associated harms are merely indicative of patriarchal social contexts. Christina Murray and Felicity Kaganas have questioned the supposition that structural inequalities can only be addressed in one-to-one relationships.[29] In particular, they argue that it is not self-evident that a symmetrical relationship provides the sole means for marital equality. For Kaganas and Murray, the question of a husband being able to unilaterally change a family's composition can be addressed through spousal permission requirements.[30] They maintain that questions surrounding wives' capacity to consent (or refuse consent) to subsequent marriages points more toward the patriarchal social context of polygyny rather than the practice itself. Sexual stereotyping, male domination and the treatment of women as property, they argue, are neither limited to polygyny nor inevitable within it.[31]

While Kaganas and Murray are certainly correct in arguing that the sexual stereotyping of women is not limited to polygyny, they seem to underestimate the degree to which the inherent asymmetry of polygyny tends to perpetuate sex-stereotyping. Where polygyny exists, it often stereotypes women into reproductive and service roles. As a result of such stereotypes as well as its inherent structural inequality, women can never be truly equal in polygynous unions.

A. Polygyny as a Form of Patriarchy

Although polygyny as currently practised often perpetuates and reinforces patriarchy within the family, its anthropological and religious origins in some contexts reveal that it was designed to serve a protective or remedial function for women and families. Within impoverished societies, for example, polygyny was, and is still by some, thought to serve a protective function for poor women. A Visiting Mission to British Trust Territories in West Africa in 1950 identified polygyny as a form of social security for women within their economic conditions at that time.[32] Similarly, within Talmudic law, a man was believed to have a protective responsibility to his deceased brother's wife. Modern commentators have noted, however, that the practice of yibum (levirate marriage of a widow to her deceased husband's brother) was the product of a patriarchal, polygynous society in which male dynasty continuity was central.[33] Today, yibum is prohibited according to the Chief Rabbinate of the Herem DeYerushalayim.[34]

Polygyny has also historically served a restorative function when a significant percentage of the male population has been killed during warfare. Many reformist interpretations of Islam, for example, view the Qu'ran's allowance of polygyny as inextricably linked to the protection of orphans and widows within a post-war context. Sura 4, verse 3 of the Qu'ran reads:

And if ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three, or four…[35]

Parvez, a leading reformist commentator on the Qu'ran, has noted that the revelations regarding polygyny came after the Battle of Uhad, in which over ten percent of the Muslim male population was killed, leaving many vulnerable widows and orphans.[36] Likewise, polygyny was occasionally practised with Protestant religious approval following the Thirty Years' War in 1648.[37] Because of the loss of a substantial segment of the male population, theologians permitted men to take second wives during the ten-year period following the war. Similarly to Islamic requirements of fair treatment of wives, Protestant men during this time were instructed to“observe seemly behaviour, to make proper provisions for both wives,… to avoid ill feeling between them.”[38]

Unlike these more protective origins, the promotion of polygyny in Mormon teachings was from the outset premised on patriarchal stereotypes of men and women. In his July 12, 1843 revelation that solidified the place of plural marriage within Mormon theology until the 1890s, Joseph Smith noted that:

Under the “law of priesthood” a man “cannot commit adultery with that that belongeth to him and to no one else. And if he have ten virgins given unto him by this law, he cannot commit adultery, for they belong to him… If any man have a wife… and he teaches unto her the law of my priesthood, as pertaining to these things, then shall she believe and administer unto him, or she shall be destroyed,” saith the Lord your God.[39]

As Altman and Ginat have noted, the implicit stereotype within this revelation and other writings at the time of women as dependent and obedient beings whose proper place was in the domestic sphere raising children helped to reinforce polygyny. Likewise, the characterization of men in Smith's revelation as having strong and “inexhaustible” sexual needs further perpetuated the theology of plural marriages.[40]

Within many modern polygynous contexts, it is this more patriarchal form of polygyny that is now dominant. Thus, although the practice was originally conceived in some contexts as a benign means of protection, it has since taken on oppressive characteristics in many circumstances by encouraging and reinforcing a patriarchal conception of family life. In analyzing this type of patriarchy, Janet Rifkin's definition is a helpful starting point. Rifkin describes patriarchy as:

any kind of group organization in which males hold dominant power and determine what part females shall and shall not play, and in which capabilities assigned to women are relegated generally to the mystical and aesthetic and excluded from the practical and political realms, these realms being regarded as separate and mutually exclusive.[41]

Polygyny tends to reinforce such gender stereotypes by giving husbands the power to interrupt marital unions where they feel that one wife is not adequately fulfilling their reproductive and general-care needs.

As Susan Okin's discussion of gender and culture reveals, many traditional practices that are harmful to women “have as one of their principal aims the control of women by men.”[42] Okin points to anecdotal evidence garnered from polygynous husbands as support for the assertion that polygyny serves men's self-interest while at the same time providing a means of controlling women. One French immigrant from Mali stated in an interview that:

when my wife is sick and I don't have another, who will care for me?… [O]ne wife on her own is trouble. When there are several they are forced to be polite and well behaved. If they misbehave, you threaten that you'll take another wife.[43]

Thus, even where polygyny is not actually practised, its mere potential, particularly in contexts where men can exercise unilateral divorce, can be used to control and limit women's ability to assert their rights within marriage.[44] U.N. Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, raised precisely this concern in her 2002 report on cultural practices in the family that are violent towards women. In outlining how customary or cultural norms can contribute to serious gender inequality within marriage, she noted that “several… forms of threat or violence are used to ensure that women stay obedient within a marriage, for example the threat of the husband taking another wife….”[45]

While this level of oppressive patriarchy may not be representative of all polygynous contexts, it nevertheless highlights the degree to which a husband's ability to take on new wives can be used both to demean and control present wives. To this extent, polygyny often reinforces patriarchal familial power structures in which wives are forced to assume primarily reproductive or service roles. Where it stereotypes women into reproductive or service roles, polygyny operates under an assumption of masculine superiority and feminine inferiority. In doing so, it impedes women's autonomy within the family realm and in many cases may completely undermine any freedom of action in what Rifkin refers to as “the practical and political realms.”

As a party to the Women's Convention, Canada has an obligation to ensure that it protects women's human rights in the “private” realm, and in doing so acknowledge the connection between private subordination and an inability to fully exercise one's rights publicly.

Article 3 of the Convention, which requires States parties to take:

all appropriate measures, including legislation… for the purpose of guaranteeing [women] the exercise of human rights and fundamental freedoms on a basis of equality with men,

imposes a duty on the Canadian State to both enact, where necessary, and most importantly enforce legislation that would protect women and children from polygyny-related human rights violations. In addition, Article 5 imposes a specific duty on States parties to take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

As Sandra Fredman has argued, Articles 3 and 5 of the Women's Convention do not merely call for formal equality (or treating likes alike) or equality of opportunity, but “equality as transformation.”[46] In taking gender into account rather than simply calling for a gender-neutral world, equality as transformation:

requires a dismantling of the private-public divide, and a reconstruction of the public world… to facilitate the full expression of women's capabilities and choices, and the full participation of women in society.[47]

Where patriarchal practices such as polygyny are legally or de facto permitted through a lack of enforcement, women's ability to freely and fully participate in society is undermined. The importance of addressing these underlying causes of inequality is articulated in CEDAW General Recommendation no. 25, where the Committee noted:

The position of women will not be improved as long as the underlying causes of discrimination against women, and of their inequality, are not effectively addressed. The lives of women and men must be considered in a contextual way, and measures adopted towards a real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns.[48]

To this end, it is essential that discriminatory family structures be eliminated. Because the familial, cultural, religious and social contexts in which women live are central to their identity and in turn to their ability to participate in economic, social and political life, it is imperative that patriarchal practices such as polygyny be abolished.

B. The Harm of Non-Exclusivity

At its core, polygyny undermines the principle of exclusivity that serves to strengthen marital and familial bonds. In particular, polygyny denies couples exclusive sexual intimacy and the opportunity to build an exclusive life together. Moreover, it hinders the equal sharing of both material and emotional attention. In turn, it precludes the opportunity of creating something unique with another partner because of the expectation or at least the prospect of another party being introduced into the marital union and interrupting the relationship.

This type of marital interruption is striking in all polygynous contexts, but perhaps most striking in those where subsequent wives reside with their husband and his present wife. Requiring a first wife to accept subsequent wives into her household may be one of the most explicit and deleterious interruptions of one's marital relationship that exists. As the Allahabad High Court of India noted in Itwari v. Asghari,[49] the taking of a second wife into the first wife's original shared domicile often constitutes a:

stinging insult to the first… [and] is likely to prey upon her mind and health if she is compelled to live with her husband under the altered circumstances.[50]

The prospect of having to share their husband's sexual, material and emotional attention with other wives, including in some cases within the one household, thus deprives women of an exclusive connection to their husbands.

While many “monogamous” marriages also do not meet an exclusivity standard, it nevertheless remains an important value within marriage. It is this value of exclusive intimacy, along with the inherent harms of polygyny, that most differentiates polygyny from same-sex unions. As Ling-Cohan J. alluded to in Hernandez et al. v. Robles,[51] a recent New York State decision that found the marital exclusion of same-sex couples violated the State's Constitution, the intimate nature of marriage seems bound up with the symmetry between the parties. In her decision, Ling-Cohan J. noted that:

As a society, we recognize that the decision of whether and whom to marry is life-transforming. It is a unique expression of a private bond and profound love between a couple, and a life dream shared by many in our culture. It is also society's most significant public proclamation of commitment to another person for life.[52]

Thus, although de facto “serial polygyny” exists within many cultures through adultery, divorce, and re-marriage, it is not something that marital law should promote de jure.

C. Harms Arising from Competitive Co-Wife Relationships

The interruption of an exclusive emotional and material relationship is often exacerbated by competitive co-wife relationships. A review of anthropological literature suggests that jealousy, tension, strain, and competitiveness are common among plural wives.[53] While there are many examples of cooperative co-wife relationships, the majority of accounts emphasize negative feelings between wives in polygynous families.[54] Cooperative polygynous relationships are evident, however, among the Masai of Africa where co-wives sometimes have close and supportive relationships.[55] Likewise, the senior wife within polygynous unions among the Mende of Africa may nurture a junior wife in an almost maternal fashion. Polygynous unions within other cultural contexts may also be typified by both collaboration and competition. Among the !Kung of Africa, for example, co-wives may cook together or take turns cooking, share fire and shelter, and even nurse one another's infants. Conflict can nevertheless arise in other aspects of day-to-day life including access to their husbands and resource distribution.[56]

Sangeetha Madhayan's examination of polygyny in the West African context reveals that plural marriages can at times lead to collaborative relationships amongst wives, but can also “pit co‑wives” against each other.[57] While Madhayan concedes that much of the scholarship on polygyny portrays it as harmful to women, particularly because of unhealthy competition, she is right to stress the importance of examining the particular socio-cultural context in which co-wife relationships exist.[58]

Thus, while co-wife cooperation exists within some cultural contexts, the unequal distribution of polygynous husbands' emotional and material attention amongst their wives tends to be a significant cause of fractious co-wife relationships. Even where there is an expectation of equal treatment amongst wives, de facto inequalities can nevertheless undermine co-wives' emotional health. For the Bedouin of Israel, for example, there is a social expectation that husbands will provide equal time, material resources, and sexual attention to each of his wives. In practice, however, husbands sometimes favour one wife over the other, particularly a newer wife in the early stages of marriage.[59] Similarly, a survey of Yoruba wives of South-western Nigeria and Benin found that husbands' favouritism of certain wives was a significant source of dissatisfaction among polygynous wives.[60] Significantly, the mistreatment as perceived by wives within developing world contexts often centres on economic and material issues, in addition to the treatment of children. Within Mormon Fundamentalist polygynous settings, on the other hand, perceptions of unfair treatment are often connected to both practical and social-emotional factors.[61]

D. Mental Health Harms Associated with Polygyny

Polygyny has long been associated with family stress and mental illness among women.[62] As mentioned above, the practice can lead to co-wife jealousy, competition, and an unequal distribution of domestic resources—all tending to create acrimony among wives and between children of different wives.[63] These factors are believed to explain the greater prevalence of mental disorders among women in polygynous families in comparison to those in monogamous marriages and relative to the general population.[64] Among psychiatric patients, polygynous marriages tend to be associated with increased depressive disorders, somatization disorders, and anxiety states.[65]

In an outpatient psychiatric clinic study of Bedouin-Arab women, women in polygynous marriages generally reported greater despair than their monogamous counterparts.[66] 58.4% of polygynous women interviewed for the study described feelings of low self-esteem compared to 7.7% of their monogamous counterparts.[67] More polygynous subjects also reported poorer relationships with their husbands than monogamous subjects, often because they were physically, emotionally, sexually and materially neglected.[68] Thus, while 12.8% of women in monogamous unions expressed a sense of loneliness, 64.1% of those in polygynous unions did.

Of particular significance in these findings of low self-esteem and loneliness were the reasons reported by polygynous women for why their husband took a second wife. The four common reasons for Bedouin-Arab remarriage used in the study included:

  1. an exchange marriage (where two men marry each other's sisters)
  2. the number of daughters the first wife had
  3. the age of the first wife (that she was seen as “old”), and
  4. other factors including situations where husbands were persuaded to marry a woman by his extended family.[69]

Of those subjects with low self-esteem, 71% reported their number of daughters as the reason for their husband's subsequent marriage. 100% of those subjects who indicated their age as the reason for remarriage reported low self-esteem.[70] Given the social preference within Bedouin-Arab culture and others for younger wives and a higher number of sons, a woman's social status and self-esteem are doubly assaulted by her husband's choice to remarry.[71] Most notably, all the polygynous subjects, regardless of the stated reason for their husband's remarriage, reported somatic distress (physical symptoms), which is a culturally acceptable way for individuals in Bedouin-Arab society to express emotional difficulties.[72]

Within the Bountiful, B.C. Fundamentalist Mormon context, reports indicate a similar sense of emotional and identity-related harm among polygynous wives. In one report, a counsellor who worked with former members of the community noted that individuals within the community lacked or demonstrated a low level of personal identity.[73] Although conversant about their social roles, they were often unable to respond to inquiries about their own identities. To a large extent, they felt that their value to the group was not intrinsic, but rather was based on their current social role and their personal connections to powerful men in the community.[74]

E. Sexual and Reproductive Health Harms

Beyond the mental health harms associated with the practice, polygyny is also linked to sexual and reproductive health harms. In its General Recommendation no. 24 on Women and Health, CEDAW noted that:

… Adolescent girls and women in many countries lack adequate access to information and services necessary to ensure sexual health. As a consequence of unequal power relations based on gender, women and adolescent girls are often unable to refuse sex or insist on safe and responsible sex practices. Harmful traditional practices, such as …polygamy… may also expose girls and women to the risk of contracting HIV/AIDS and other sexually transmitted diseases.[75]

This specific concern about polygyny and the transmission of HIV/AIDS has been at the forefront of legislative debates in Uganda where there is an assumption that all marriages entered into by Muslims are governed by Shari'a law and can therefore be polygynous. Within this system, wives have no legal status to prevent their husbands from taking a second wife.[76] This is particularly alarming given the high rate of HIV-AIDS infection in Uganda, Kenya, and other African nations.[77]

Within Africa, the most common form of HIV-transmission is through heterosexual sex.[78] Thus, where husbands have multiple sex partners, including wives, they increase their own risk of infection as well as their wives.' The risk of transmission in polygyny is compounded by the fact that neither a husband nor his present wife can verify a prospective wife's HIV-status or guarantee her fidelity during marriage, particularly when the husband is away visiting other wives.[79] For although extra-marital sex is socially frowned upon within most African societies, many polygynous wives partake in it to make up for a lack of attention from their husband.[80]

In turn, when wives transmit sexual diseases to their husbands or vice-versa, other co-wives, who cannot refuse their husband's sexual advances, are also exposed.[81] Given the reluctance of many men in the African context to use condoms during intercourse, particularly with their wife, and the inability of wives to insist on condom use, the risk of transmission during marriage is even more heightened.[82] It is for these reasons that one commentator has called the continued legality of polygyny “the equivalent of an official license for men to transmit AIDS to their wives.”[83]

In response to such concerns, the Ugandan Parliament proposed limiting polygyny to two wives, and even then only if the first wife was infertile and consented to the second marriage.[84] There was substantial protest against the proposal by elements of the Muslim population who argued that polygyny constitutes part of their religious freedom.[85] As recently as March 2005, hundreds of Muslim men protested in the capital city to oppose the proposed law, which they believe would restrict their ability to marry more than once.[86] One protester, insisting that polygyny is a religious matter that should not be infringed upon, argued that ‘‘Islamic law has been there since it was passed on from Allah to the Prophet Muhammad. It cannot be re-written now.''[87]

Thus, the U.N. General Assembly's 2001 Declaration of Commitment on HIV/AIDS included a goal to ensure by 2005 the:

implementation of national strategies for women's empowerment, the promotion of women's full enjoyment of all human rights and reduction of their vulnerability to HIV/AIDS through the elimination of all forms of discrimination, as well as all forms of violence against women and girls, including harmful traditional and customary practices… .[88]

Despite this, practices such as polygyny continue to be legally permitted in various parts of the world. Women's ability to control their sexual exposure, especially within marriage, is fundamental to limiting the ongoing spread of HIV-AIDS and other infections. This is undermined where polygyny continues to be legally or de facto permitted.

Within the Canadian context, polygyny as practised by Fundamentalist Mormons may cause other distinct sexual and reproductive harms to women. In particular, the religious “Law of Chastity” teaching that reproduction is essential to marriage and that sexual activity should be limited solely to procreation deprives women of reproductive choice regarding pregnancy.[89] While a high number of pregnancies can pose physiological risks to women of all ages, the harms to girls within Bountiful's polygynous context could be particularly serious, given that some girls reportedly enter unions at as young as fourteen or fifteen years of age.[90] In this way, their age and gender intersect, making them physiologically at risk for early pregnancies and resulting death and disability.

In its 1997 Concluding Observations on Canada, CEDAW noted that one of their principal areas of concern was the “rising teenage pregnancy rate, with its negative impact on health and education and the resulting increase in the poverty and dependency of young women.”[91] While the Committee's comments were directed toward teenage pregnancies generally, their observations would be clearly applicable to the Bountiful polygynous context.

F. Economic Harms

While economic instability and vulnerability clearly impact women in both monogamous and polygynous unions, economic harms to women are especially aggravated by polygyny. Before examining the economic deprivation associated with the practice, however, it is important to consider whether polygyny as practised in some contexts may in fact increase familial wealth. The theory of “wealth increasing polygyny” or “polygyny with autonomous co-wives” (PCWA) advanced by some social science commentators, including D.R. White posits that the residential autonomy of co-wives (a signal of their economic autonomy) should predict a pattern of polygyny in which additional wives would increase the likelihood of the successful acquisition of another.[92] According to White, this would occur because each additional co-wife would augment the family's wealth, thereby facilitating the acquisition of more wives.

Bretschneider's recent cross-cultural study of polygyny, however, does not support this supposition. His findings show that the relationship between a female contribution to subsistence and polygyny is only very indirect and for this reason presumably only of limited significance.[93] Bretschneider concludes that culture-specific family developmental cycles and attitudes to competition versus cooperation likely provide a more adequate explanation as to why some polygynists accumulate additional wives more successfully than others.[94]

While the notion that polygyny in some contexts may be wealth-increasing is highly tenuous, it is well-documented cross-culturally that polygyny, particularly when practised according to a “male-head-of-household” paradigm, often results in economic deprivation.[95] The same factors that contribute generally to the feminization of poverty—namely, that women's domestic work is typically uncompensated and that women on average have less education and so a lower wage-earning capacity—are particularly aggravated by polygyny where it is associated with patriarchy. The economic under-valuing of women's work will often cause inevitable financial strain within polygynous families where one husband's earnings may have to support multiple wives and many children.

Within Mormon Fundamentalist polygynous communities in the United States, for example, anecdotal evidence indicates the financial difficulties such families face. Lillian Bowles, a former polygynous wife, noted the difficulty in finding, let alone affording, sufficient housing for families that may include three or four wives and a dozen or more children.[96] Although there are several large polygynous clans with substantial financial resources within U.S. Fundamentalist Mormon communities, women have no independent access to these assets. In addition, many polygynous families lack adequate health care and nutrition despite receiving significant levels of public assistance.[97] Within the polygynous community of Bountiful, B.C., community leaders have similarly admitted that most people in the community are poor and that about twenty “single mothers” (the “celestial wives” of polygynous husbands) are given financial support as teaching assistants from the community's education allotment.[98] Media reports indicate that the community-run schools deliberately end at grade 10, affecting education levels and in the end earning potential.[99]

This economic harm of polygyny is cited by many commentators as one of the main factors, along with a growing trend toward recognizing women's equality, in the restriction of the practice internationally.[100] Bedouin-Arab interview studies indicate that women in polygynous unions report more economic problems than their monogamous counterparts, with one study expressly concluding that “there are economic consequences of polygamy.”[101] Evidence of women's attitudes toward polygyny in Uganda illustrates a shared experience of economic deprivation. During the 1990s, the Ugandan government solicited the input of its citizens in the process of developing its 1995 Constitution.[102] In cooperation with women's NGOs and governmental entities, the Ministry of Women in Development conducted a series of seminars. The Ministry reported that:

A majority of the women who participated in the constitutional seminars recommended that a man should have one wife… Women noted that there is a lot of suffering in polygynous homes because the man cannot love his wives equally and usually he does not have enough to provide sufficient support to his wives and numerous children. This leaves a heavy burden on women…[103]

This type of financial strain is central to the decreasing incidence of the practice in the Horn of Africa, where although polygyny is permissible for all Muslims, few men actually practise it because they cannot afford to.[104] In addition, the economic harms of polygyny are particularly serious as societies become increasingly urbanized with urban living conditions typically not amenable to the living space required for multiple families.[105]

Amid this strained economic environment, certain wives may be especially vulnerable depending on the cultural or social context. Within the Bedouin-Arab culture, for example, as in other Arab cultures, second and subsequent wives are often favoured economically and given greater attention and support. This may be explained in part by the fact that first marriages are often arranged or consanguineous (of the same blood or related by birth) or are exchanges (where two men marry each other's sisters)[106] Subsequent marriages, on the other hand, may be based on greater love because of the husband's financial independence and his ability to choose his own wife.[107] In contrast, among Fundamentalist Mormon and some Islamic contexts, senior wives may have a greater role in controlling and distributing family resources. Particularly where subsequent wives are very young, older senior wives often retain primary control over a polygynous family's resources. Thus, while first wives may be relegated to a background position in some instances, in other cases older wives may use their seniority to control subsequent wives.[108] Particularly where an older wife has property and is a relative of her husband, her status within their extended family may ensure continued security and respect.[109]

G. Harms to the Enjoyment of One's Citizenship

Beyond causing economic harms, polygyny as practised in many contexts also undermines women's ability to effectively exercise their citizenship.[110] In this sense, familial practices that violate women's equality are not limited to the ‘private' sphere. Domestic inequality, as Courtney Howland has noted, represses fundamental political values including freedom of expression, freedom of assembly and association, the right to freedom of thought, belief and opinion, and even the right to vote.[111] In this sense, ‘private' harms to women and girls cannot be separated from the public rights that international legal instruments like the Political Covenant were established to protect. The Preamble to the Women's Convention recognized that discrimination against women within any context:

is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries… .

Despite this deconstruction of the public-private dichotomy, fundamentalist religious authorities in the Bountiful, B.C. context and beyond have expressed concern that religious freedom is threatened and portrayed the discourse on women's rights within the family as an intrusion into the ‘private' religious realm, openly celebrating the Canadian Charter of Rights and Freedoms as protecting their religiously-informed polygynous lifestyle.[112] What such an interpretation fails to acknowledge is the tension between freedom of religion and freedom from religion. The compartmentalized public-private paradigm assumes that individuals within certain religious communities necessarily choose to live according to religious doctrine that deprives them of their basic rights.

However, vulnerable individuals, particularly women and children, may well be subject to constraints that do not allow for any degree of freedom from religion.

In this sense, as Howland notes, the rights encompassed in the political articles of the Political Covenant envision citizens being able to participate meaningfully in democratic government. Systemic inequalities reinforced by patriarchal familial practices such as polygyny undermine women's ability to exercise their citizenship within the polity by depriving them of full “intellectual, social, political, and moral personalities.”[113] Where polygyny is accompanied by religious or culturally informed obedience rules that require wives to submit to the authority of their husbands, women are often unable to express or even identify their own autonomous social and political interests. Within the Bountiful, B.C. context, obedience rules manifest themselves early in girl children's lives as evidenced by the community's motto of “keeping sweet” painted at the school entrance, which requires that children not speak out against religious teachings.[114] It extends to priests' regulation over virtually every aspect of women's lives including who they marry.[115]

In addition, modesty codes that require “feminine modesty” in behaviour and dress also reinforce women's inferiority in both the public and private spheres.[116] Within the Bountiful, B.C. context, for example, men control both women's dress, which tends to be long, loose-fitting dresses, and boys' dress, which tends to be long-sleeved shirts.[117] In examining this element of subordination within the polygynous context, it is important to note that such codes do not merely prohibit freedom of choice in appearance or behaviour, but actually construct the feminine norm as ideally non-sexual (at least in public settings). To confine debate about such practices and modes of thought to being one about the ‘private sphere' is thus to underestimate the degree to which private inequality impinges on citizenship generally and on one's core political rights more specifically. Thus, as Howland argues, the Political Covenant imposes on States parties an affirmative obligation “to ensure that women's political rights are protected from systemic private interferences.”[118]

H. Harms to Children of Polygynous Unions

Beyond the harms to women associated with polygyny, studies also indicate that adolescents from polygynous families have lower levels of socio-economic status, academic achievement, and self-esteem, as well as higher levels of reported family dysfunction than children from monogamous families. [119] In a study by Varghese Cherian, the academic achievement of children in Transkei was measured in relation to their parents' marital status (monogamous or polygynous).[120] The mean achievement score of children from polygynous families (766.11) was significantly lower than those from monogamous families (1035.62). The researchers explained this difference by noting that polygynous families are more prone to jealousy, conflict, tension, emotional stress, opposing motives, insecurity, and anxiety.[121] This type of emotional stress, anxiety, and insecurity can seriously undermine educational progress. In particular, rivalry and jealousy between co-wives can cause significant emotional problems for children. Other studies also note that polygynous respondents have indicated increased stress in the mother-child relationship because of decreased social and economic resources.[122] In addition, the mothers' own low self-esteem regarding their marital context is associated with behavioural problems in their children.

Moreover, as Al-Krenawi has noted, fathers in polygynous households are often unable to give sufficient attention to all their children, thus reducing children's emotional security from close contact between their mother and father.[123] As a report regarding the Bountiful, B.C. polygynous context has shown, children in such contexts are typically deprived of paternal bonding and assistance in helping them to resolve and develop their personal identities.[124] Learning problems can follow from this emotional deprivation.[125] This emotional deprivation and ensuing learning problems clearly violate the best interests of the child as protected by Article 3of the Convention on the Rights of the Child.

Where such emotional deprivation undermines children's mental health, States parties to the Children's Convention have an obligation to take appropriate measures to abolish polygyny. In addition, where polygynous marriages involve the marriage of adolescent girls, this can harm their physical and mental health as outlined above.[126] In either case, failing to prevent and/or remedy such harms is contrary to States' obligations under the Children's Convention, especially under Article 24 on the right to the enjoyment of the highest attainable standard of health.

Article 24(3) provides that:

States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

General Comment 4 on Adolescent Health elaborates the content and meaning of the Children's Convention to explain that:

Adolescent girls should have access to information on the harm that early marriage and early pregnancy can cause, and those who do become pregnant should have access to health services that are sensitive to their rights and particular needs.[127]

This Comment also explains that States Parties are obligated “to adopt legislation to combat practices that either increase adolescents' risk of infection … ”[128], which would require them to adopt legislation to eliminate polygyny, or at least prohibit polygynous marriages with adolescent girls. Moreover, in its General Comment on HIV/AIDS and the Rights of the Child, the CRC explains that the Children's Convention requires that necessary steps be taken to reduce children's vulnerability to HIV/AIDS, including “making informed choices about decisions, practices and policies affecting them in relation to HIV/AIDS.”[129] Where traditional practices such as polygyny undermine children's health, including possibly exposing them to sexually-transmitted infections such as HIV/AIDS, international law requires that States take the requisite steps to eliminate them.

In addition to learning or mental health problems, the economic problems associated with polygyny can in some instances deprive children of their basic right to education. Because polygynous unions have the potential for producing large families, this can often undermine parents' abilities to meet their children's basic educational needs, particularly within the African context[130] where the African Charter protects the right to education.[131] While the African Charter also emphasizes the importance of African culture, Article 29(7) expressly limits this to “positive African cultural values.” As Tibatemwa-Ekiribukinza argues, a practice that may contribute to familial violence and undermine children's access to education does not qualify as a “positive value.”[132]

While the Committee on the Rights of the Child has not thoroughly addressed these harms to children, it has expressed concern about the impact of polygyny on children and the need for a review of programs, policies and legislation to discourage the practice.[133]