The issue of tshenyo
This week I am daring to walk on “hallowed ground” by attempting to demystify one of the cherished values of our culture - tshenyo or damages.
Yes I can only make an effort because the implementation and understanding of tshenyo depends on the traditional practices of different tribes. In modern day Botswana the younger generation has challenged it in customary courts as they seek to understand its purpose and relevance.
Over the years I have spoken to many elders in Botswana and some from neighbouring countries, and they confirm that the provision of laying charges of seduction on unmarried fathers (tshenyo) still has significant value and must not be abandoned.
Traditionally in most African Cultures sex before marriage has been discouraged and frowned upon. Hence the practice of arranged marriages that were supposed to ensure individuals would be fixed into stable relationships to raise their children in complete families. There was also teaching given to youth at puberty to empower them to manage their reproductive health to avoid pregnancy (go senyaor go senngwa.)
Young men were made aware that their fathers would lose their cattle if they dared play carelessly with girls, and girls were taught to look after their “treasure.” To this day many communities in Botswana uphold the tshenyo concept and fight for compensation when their daughters have suffered first child pregnancy out of wedlock (tigalebele). Sadly the whole thing is sometimes misunderstood as some parents have demanded compensation for a young woman whose breast had already fallen. Damages traditionally refer to the changes that a young woman’s naturally firm breasts undergo through the ‘wear and tear’ of breastfeeding their first born child.
In some cases young women present themselves to customary courts to claim tshenyo when their relationship collapses and are disappointed to be told that only their parents can claim ‘damages.’ The compensation for damages was supposed to make provision to raise the child of an unwed mother as well as to deter young men from the “scattering of their seed,” so to speak. Tshenyo was there on its own before the introduction of the Affiliation Act which enables the mother to claim maintenance for her child.
According to customary law, it is the parents of the young woman who lodge a complaint against the young man and his parents. In pre independent Botswana the seduction law of tshenyo was sustainable and it successfully acted as a deterrent to stop irresponsible parenthood.
It worked for the following reasons:
- Communities were small and manageable
- The combination of fear respect for the strict rules made compliance easy
- Parents were vocal about issues of reproduction and they advocated strict moral values
Having given that background, let me share with you the story of Zila who came to town after doing badly in her J.C. In town she met with Ntutshi who was working at the mine. Ntutshi offered Zila accommodation, and provided for all her needs.
After three years of a steady relationship, Zila became pregnant. Ntutshi took care of everything until their daughter Mercy was born. When Mercy was three years old, Zila met with the uncle who had taken care of her after the death of her parents. The uncle, Mr Setho was amazed that Zila was now a mother of a three- year-old girl. He immediately wanted to know who and where the father of her daughter was. Zila reluctantly provided details of Ntutshi, whereupon the uncle lodged a seduction case with the customary court and a date for the hearing was set.
Ntutshi appeared and listened carefully when the summons was read out. When he asked to plead he smiled gently and pleaded not guilty to the charge of tshenyo.
Mr Setho stated his facts as follows:-
- That he has not seen Zila for seven years.
- That he is the only relative/guardian for Zila
- That according to culture Ntutshi must pay him damages of P10 000.
Ntutshi’s then stated his side of the story and argued that he had already spent a lot to maintain Zila and the child. He also accused the uncle of opportunism since he had not been concerned over Zila’s whereabouts for the past seven years.
Zila requested that she be allowed to say something. She said if Ntutshi must pay P10 000, that money must go to her mother’s grave because the uncle had failed to act responsibly as a caretaker, which was part of the reason she ran away from home at the age of 18.
What would you do if you were to judge?
Although customary law justifies the tshenyo claim, it does not do so without taking into account the circumstances surrounding it.
The younger generation has become liberal and at times aggressive in fighting for their rights. In the past young men would simply rub their palms together and accept responsibility. There has been a shift in understanding the terms of tshenyo.
In this case there was anger from Zila directed towards an uncle who only saw her as a cow from which P10 000 could be milked, just because she was his niece. She used the case to state in no uncertain terms why her uncle must be disqualified from claiming any compensation.
The uncle disregarded all the protest from Zila and was assertive that if Ntutshi didn’t pay him he would take possession of Mercy and the customary law would support him.
Yes seduction (tigalebele) had taken place, but should an uncle who stumbles into a niece carrying a three-year-old child be allowed to claim damages?
Fortunately Ntutshi who was holding the child tightly, requested that his parents be given a chance to negotiate with Mr Setho outside Court, and this was granted. Zila was determined that her uncle should not reap where he had not sown.
Modern day Botswana needs to review some of these laws like tshenyo. Young Batswana men would like to know what they get in return after paying damages and maintenance. Most of them are not amused that they get nothing from the deal. Some young men have found an escape route in announcing that they intend to marry to dodge tshenyo charges. The declaration that they will marry keeps the seduction charge and maintenance at bay until they decide when they want to marry.
There is equally a feeling amongst emancipated and powerful women to discourage their parents from demanding tshenyo, claiming that it will give the young man unnecessary power over the life of the child and that of the mother.
NEXT WEEK MA MOSOJANE ANSWERS READERS QUESTIONS. IF YOU HAVE A QUESTION ON THIS ON ANY OTHER TOPIC, PLEASE E-MAIL margaret(at)thevoice bw.com