Despite the protection of progressive laws, the majority of women in Africa today still do not enjoy equal rights to own, inherit and transfer property. A recent High Court judgment in Botswana may signal a gradual levelling of the playing field for women, but as Cathal Gilbert explores, the change is not likely to happen overnight.
U.S. first lady Michelle Obama
greets audience members after she spoke at a multi-generational women leaders luncheon in Botswana
in 2011. (Credit: Reuters)
Prior to the colonial era and the introduction of European norms, African society was organised and governed according to a system of customary dispute resolution. The rules in this system passed down from generation to generation and were applied in a fluid manner by chiefs and elders.
Judgments that were produced aimed to provide the greatest benefit for the community at large. Customary 'law' therefore was not a system of rigid rules as those in the West would understand a legal system, but rather a flexible conflict resolution or public governance mechanism.
Although there have been periodic attempts to codify customary laws (for example The Natal Code of Zulu Law in South Africa), in almost all cases they remain unwritten and have always morphed over time in response to cultural, religious or even environmental imperatives. In the modern era, customary law remains paramount for most people in Africa, controlling areas of their lives like their marriages, property and right to inherit.
But customary law almost always gives more power to men, treating women either as minors or as falling under their husband's 'marital power', and therefore not entitling them to the same rights as their male adult counterparts.
A very visible consequence of this approach to women's legal rights is found in the system of inheritance upon the death of a husband. Traditionally, when the husband dies, the widow retains no legal rights over the property that often she may have helped to build, or over land that she may have lived on and farmed for decades.
Female children of the deceased man likewise obtain no rights to property. Instead, title to the property passes to the eldest son or brother of the deceased man.
For decades, women's rights organisations across Africa have called for a change to these discriminatory laws. They argue that constitutions enacted by democratically elected governments contain strong protections for women's rights.
Section 24 of the Malawian constitution for instance grants women "full and equal protection by the law" and declares invalid "any law that discriminates against women on the basis of gender." Even Swaziland - a notoriously patriarchal society - has enacted a constitution that guarantees "women...equal treatment...in political, economic and social activities." It goes even further, to also protect women from having to "undergo or uphold any custom to which [they are] in conscience opposed."
So if such strong constitutional protections for women exist across the region, why are discriminatory practices sanctioned by customary law allowed to continue?
One answer lies in the fact that the courts of record in the region have been slow breathe life into constitutional provisions protecting weaker members of society, including those protecting women.
Although South Africa has witnessed a decent level of constitutional litigation on the issue, most other countries in Southern Africa have yet to tackle this issue through the courts. There are signs however that this situation may be changing.
In Mmusi & others v. Ramentele , the High Court of Botswana found that centuries old rules on inheritance are in violation of the Constitution's guarantee of the right to equality. Mmusi had been deprived of her family home after the death of her parents because customary law dictated that the home should pass to her male sibling who then proceeded to evict her.
In a landmark ruling for Botswana, Judge Dingake struck down the customary law rule that excludes females from qualifying as heirs upon intestate succession and in an impressive display of judicial activism, he called on the government of Botswana to take steps that would ensure that the right to equality in Botswana "ceases to be an illusion or a mirage."
The Mmusi judgment has been enthusiastically welcomed by women's rights groups in the region, who see it as a stepping stone to more progressive pronouncements on discriminatory laws that impoverish and marginalise women.
Not everyone has welcomed the judgment however, and many in Botswana oppose what they see as the imposition of foreign legal concepts onto their traditional governance structure.
Men and women alike argue forcefully that customary laws regulating women's inheritance rights are intended to ensure that there is somebody there to take care of the homestead at all times, thereby protecting and providing for the woman.
As new ideas emerge about a more assertive role for women in rapidly changing African societies, they are coming into direct conflict with a group that views customary law as integral to African heritage and identity, and therefore something that must be protected and conserved.
This is the uncertain, shifting terrain that courts in the region must navigate. Ultimately however, as customary law continues to evolve to take account of changed circumstances, the debate will not be resolved inside a wood-panelled courtroom, but within communities themselves.
Indeed, this may already be happening. Anecdotal evidence from rural communities across Southern Africa is showing that some customary practices may be changing organically, to provide for more equitable solutions to disputes involving women.
It may therefore be the case that as we try to decipher and understand the content of customary law on inheritance, those norms may already be changing to be replaced by more gender sensitive rules that are underpinned by the consensus of the community. In the long term, these kinds of laws are likely to be far more powerful agents of positive change than judge-made laws are.
Cathal Gilbert is project director for rule of law and human rights in southern Africa for Freedom House. Freedom House supports democratic change, monitors freedom and advocates for human rights and democracy around the world.
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