Customary law must evolve with society to maintain legitimacy
IN ALMOST all African countries the law of the country is composed of customary law, the common or civil law and the Roma and Dutch and legislation enacted by both colonial and post colonial Parliaments.
In a typical African country, the great majority of the people conduct their personal activities in accordance with and subject to customary law. Customary law is largely ethnic in origin, and usually operates only within the area occupied by the ethnic group or in disputes where at least one of the parties to the dispute is a member of the ethnic group.
Customary law continues to have significant impact in the area of land holding, personal law, in regard to matters such as marriage, rights within the family, inheritance and traditional authority. In its present form, customary law is distorted and has been influenced by its recent encounter with apartheid and colonial rule. In its application, customary law is often discriminatory, especially in relation to capacity of women in these areas. It tends to treat women as adjuncts to the group they belong to such as a clan, family or tribe rather than as equal with men.
There is a major debate on the continued application of customary law, between human rights activists and traditionalists. While traditionalists argue that customary law by promoting traditional values makes a positive contribution to the promotion of human rights, activists argue that, discriminatory practices in customary law, undermine the dignity of women and is used to justify treating women as second class citizens.
Many African constitutions contain provisions guaranteeing equality, human dignity and prohibiting discrimination based on gender. However, the same constitutions recognise the application of customary law without providing a mechanism for the resolution of conflicts between some customary law and human rights norms where these arise. This results in clashes between human rights and customary law norms.
A fundamental question that arises is how to reform customary law so that norms that discriminate against women can be eradicated. A strategy is needed because opposition to reform by those who benefit most from maintaining the customary system as well as from political players should not be underestimated. Approaches to the reform of customary law can be divided into three.
The first approach should be ensuring that African states adopt both international and regional human rights instruments that outlaw all forms of gender discrimination. These instruments lay a foundational framework within which women’s rights can be advanced.
The second approach should be to ensure that African states incorporate into their national constitutions and legislation human rights norms contained in the human rights instruments they sign on to.
The apartheid regime and colonial administrations recognised customary law and its institutions. Human rights protections did not arise in this period as apartheid and colonialism were premised on the most grotesque violation of human rights. The post- independence constitutions recognised customary law together with the common law as sources of national law. Unfortunately the post colonial constitutions elaborated in the context of decolonisation left much to be desired on the issue of women’s rights. The new constitutions contained bill of rights which guaranteed human rights to all on the basis of equality between men and women while at the same time immunising customary law against human rights scrutiny. This has changed with the post democratisations constitutions. They do not immunise customary law from human rights norms.
For example, the 1985 Uganda Constitution, in article 33 provides that "(1) women shall be accorded full and equal dignity of the person to men … (4) women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities; (6) laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this constitution."
Similarly, the Constitution of South Africa provides that: "the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law."
The 2010 Kenyan Constitution provides that "traditional dispute resolution mechanisms shall not be used in a way that contravenes the Bill of Rights and that the Bill of rights trumps customary law norms that conflict with constitutional provisions. The post democratisation approach is informed by international and regional human rights norms that outlaw discrimination among them: The Universal Declaration of Human Rights; the Convention on the Elimination of all form of Discrimination, The Civil and Political Covenant; The Convention on the Elimination of All Forms of Discrimination, The African Charter on Human and People’s Rights and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa which all prohibit all forms of discrimination. All African constitutions should outlaw all forms of discrimination against women without any reservations and none of them should immunise customary law against human rights provisions. There is need for constitutional provisions that declare the rights of women and reaffirm their equality with men in all respects. The guiding principle should be the equality of all human beings regardless of gender.
The third major effort should be focused on legal reform of both customary law and ordinary legislation in all African countries to rid African countries of gender discriminatory laws. Reform efforts should start with a comprehensive diagnostic study of each African country’s legal system aimed at identifying laws that require reform to meet the "non-discrimination" test. There are several things that a legal reform project must take account of in order to be successful. It must begin with the underlying task of figuring out which laws are in conflict with human rights norms of equality and non discrimination. With respect to customary law, any reform efforts must be mindful of the weapons of the traditionalists who argue that human rights norms are the product of Euro-Christian societies. Reformers must assure the public that the human rights project is not about westernising African societies and that on the contrary, is an attempt to integrate the traditional and modern values of the African people with the concepts of human rights and dignity for all persons. The values of the customary law should be studied so that important and non discriminatory parts are preserved and included in the law reform. Getting to the heart of the values of customary law may be a daunting task, but including those values in a new legal system free from discrimination is the best way to ensure stability, predictability and equality.
The fourth element of the project should take the fight for gender equality to the courts and the people. This suggests that we need to improve access to courts so that women can bring claims based on discrimination thereby giving opportunities to the courts to reform the law. We have to ensure that the courts interpret the law in such a way that gender equality is advanced and the people should put pressure on the courts and society to act in the interests of gender equality.
Courts should be encouraged to contextualise their decisions in the prevailing social and cultural conditions as well as the goals of the justice system. Customary law like any other law is not static and is always changing to reflect how people are living today. In addition legal reform must involve educating society about the laws and what rights and obligations flow from them. Legal education should target a range of different actors, such as individuals, religious leaders, judges, traditional rulers and lawyers. Customary law cannot stand still. Its keeping up with the changing norms of society can only increase its legitimacy and role in society for the betterment of all our societies.
• Ndulo is Professor of Law, Cornell Law School and Director, Institute for African Development, Cornell University
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