Customary Law Overview

Introduction:

Customary law is the law of small scale communities which people living in these communities take for granted as part of their everyday experience but it excludes outsiders who to get any account of it have to either be told about it or read about it. (T.W. Bennett 1995)

Whether read about or narrated, customary law is once removed from the source. Thus the written accounts there are of customary law are not direct accounts of community practice but the work of informants each of whom, in recounting a particular rule brings to bear on the subject his/her preconceptions and biases. It would be easy to understand the ramifications of customary law if it was only one. However, there as many customary laws as there are tribal communities and despite the general consensus on certain fundamental principles, there are nuances in each that only one well versed with the community’s way of life can identify. (T.W. Bennett 1995)

The hallmark of African customary law is the dominance of older male members over property and lives of women and their juniors. Allied to this is the centrality of the family as opposed to the individual and the definition of the family in expansive terms to include ascendants and descendants and more than one wife in polygynous unions.

An outsider looking at these societies’ structures may aver that women have no rights under customary law. It has, however been contended that women were better off under customary law than they currently are because they were accorded great protection as mothers and assured of a share of and access to resources even where they did not exercise political leadership of the community. (Alice Armstrong, 2003) The women-unfriendly customary law has gradually developed as African societies have undergone change most of which can be seen arising from colonization and privatization.

The battle of the sexes at customary law is in one sense therefore a struggle over scarce resources and power as overlords in the form of colonial powers and states in modern African states have assumed control over all aspects of the lives of Africans, prompting the African males to consolidate the one bastion of their authority, namely customary law. In some cases, notions of customary law such as the concern for women have been dropped making women very vulnerable. The removal of protection has not been accompanied with fewer roles for women within the community. Their roles of reproduction and production have remained intact (rural women in Africa contribute substantially to food production.

Customary laws and traditional institutions in Africa constitute comprehensive legal systems that regulate the entire spectrum of activities from birth to death. Once the sole source of law, customary rules now exist in the context of pluralist legal systems with competing bodies of do­mestic constitutional law, statutory law, common law and international human rights treaties.

The African customary law is recognized in Kenyan law; African customary law may be described as the law based on the customs of the ethnic groups which constitute Kenya’s indigenous population.  Section 3 (2) of the Judicature Act 1967 provides that the High Court, the court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law.

These provisions of the Judicature Act may be explained as follows:-

(a)    The courts are to be ‘guided’ by African customary law.  This provision gives a judge discretion whether to allow a particular rule of customary law to operate or not.  The judges is not bound by any rule of customary law and may therefore refuse to apply it if, for example, he feels that it is repugnant to justice or morality.

(b)   Customary law is applicable only in civil cases.  The Magistrate’s Court’s Act restricts the civil cases to which African Customary Law may be applied to claims involving any of the following matter only:

(i)                 Land held under customary tenure

(ii)               Marriage, divorce, maintenance or dowry

(iii)             Seduction or pregnancy of an unmarried woman or girl.

(iv)             Enactment of, or adultery with a married woman

(v)   Matters affecting status, particularly the status of women, widows and children, including guardian-ship, custody, adoption and legitimacy.

(vi) Intestate succession and administration of intestate estates, so far as it is not governed by any written law.

In KAMANZA CHIWAYA vs. TSUMA (unreported High Court Civil Appeal No. 6 of 1970) the High Court held that the above list of claims under customary law was exhaustive and excludes claims in tort or contract.

(c)    One of the parties must be subject to it or affected by it.  If the plaintiff and the defendant belong to the same ethnic group, the may be said to be ‘subject’ to the customs of the ethnic group which could then be applied to settle the dispute.  For example, a dispute between Kikuyus relating to any of the matters listed in (b) above cannot be settled under Kamba, Luo or any other customary law except Kikuyu customary law. However, if there is a dispute involving parties from different ethnic groups it may be determined according to the customs of either party, since the other party would be ‘affected’ by the custom.

(d)   The customary law will be applied only if it is not repugnant to justice and morality.

Although the Act uses the phrase ‘ and’ and relation to ‘justice and morality’, it appears that ‘or’, rather than ‘and’ was intended.

In Maria Gisege Angoi Vs. Macella Nyomenda (see Civil Appeal No. 1 of 1981 being the judgment of Aganyanya J. delivered at Kisii on 24-5-1982) the High Court held that Kisii customary law which allows a widow who has no children or who only has female children to enter into an arrangement with a girl’s parents and take the girl to be her wife and them to choose a man from amongst her late husband’s clan who will be fathering children for her (i.e. the widow), was repugnant to justice because it denied the alleged wife the opportunity of freely choosing her partner.

The Court refused to follow the custom and declared that there had been no marriage between the appellant and the respondent.  A rule of customary law that might be declared to be repugnant to morality is the Maasai custom that a husband returning home and finding an age-mate’s spear stuck at the entrance to his hut, as a means of informing him that the owner of the spear is at the moment having an affair with his wife and he should not interrupt.  The husband cannot take divorce proceedings under Masai customs against his wife for adultery.  In the event of such a declaration, a Masai man would be able to petition the court for divorce on the ground of the wife’s adultery at common law.

The current status of customary law and its future

Three basic approaches can be identified regarding the place of customary law in the legal systems of post-independence Africa. The English-speaking countries have retained much of the dual legal structures created during colonial rule while attempting to reform and adapt customary law to notions of English law. On their part, the French- and Portuguese-speaking countries have pursued an integrationist course by trying to absorb customary law into the general law. Only in Ethiopia and Tunisia have some radical measures been adopted to abolish legislatively carefully selected aspects of customary law. However, regardless of the approach adopted, in no African country is customary law totally disregarded, or proscribed. It continues to be recognized and enforced, albeit to a different degree depending on the jurisdiction.

National constitutions and statutes authorize it as a major source of law to be determined and applied in legal proceedings when it is raised by the parties. For instance, the Constitution of the Fourth Republic of Ghana describes the laws of Ghana to include the ‘common law’ which in turn comprises the rules of customary law. Under the same constitution, customary law refers to rules of law that by custom are applicable to particular communities in Ghana. Since it is part of the national law, customary law will be enforced in judicial proceedings. This status of customary law is especially useful to folklore, which essentially is a body of rights derived from customs and practices of members of a given community. (Constitution of the Fourth Republic of Ghana)

In our Kenyan context customary law has a place also as long as it is not repugnant to justice. The constitution hence states that; in article 2 (4) any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. This is to infer that for a customary law to be regarded it must be in tandem with the constitution in place failure to which it is disregarded. For example the marrying of young brides in the Samburu customary setting is and has been stopped as it is repugnant to justice. The article hence begs for the question is there any future for the customary law? The answer is yes; this is so because regardless of the British influence in our laws we still regard our customary laws. For example, in marriage people still get married through the customary law of the tribe that they belong to. They in turn follow the laws regarding the pronouncement of their marriage and in case they want to seek a divorce then reference to the said customary law will have to be made. So the future for customary law is still there but also the constitution pronounces doom for the customary laws that are repugnant to justice. This is a way of correcting the previous societal discrepancies especially with the undermining of women.

In our Kenyan context where there appears a conflict between the customary law and the said law of the land Article 2(4) clearly states that the customary law is inconsistent to the level of its inconsistency. Also in the preamble of our constitution of Kenya the Constitution is envisaged as the supreme law of the land and hence making it superior to customary law.

African customary law and Human Rights

African customary law was indeed biased, mainly it under looked women and children as the idea was that they were to be seen and not to be heard at all. However with the promulgation of the Constitution of Kenya 2010 women and children are now afforded a better chance. With the constitution comes the Bill of rights that is in Chapter 4 with which it empowers women and children giving them a fighting chance. The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings. The makers of the said constitution I can say regarded the customary law in place and the injustices it had done and did its best in correcting the injustices that were there. In Article 27 (3) it specifically acts to state that women and men are equal including the right to equal opportunities in political, economic, cultural and social spheres. Article 27 (4) further affirms that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Therefore the constitution of Kenya has played a huge role in the Human rights department thereby edging out the cultural human rights abuse. However the main challenge lies in the implementation of the same constitutional Human rights as the people are adamant to stop these vices. For example the cases of wife inheritance are still there and going on even with the said constitutional restrictions. Therefore it all melts down to the individual Kenyan to accept it as a norm that now there is a new law that calls for the observation of the human rights of your neighbor. 

It is understandable that there is much nostalgia about African customary law among African people. Customary law is, after all, part of African identity. However, we should not ignore the structural limitations to adapt customary norms to changing circumstances imposed by the nature of the social-economic and political system that existed under colonial rule and contributed to the distortion of customary norms. Africans played a very limited and negligible role in governance and the formulation of laws that governed them. We must also not forget that equality is related to the right to dignity. Following the historical experiences of slavery and colonialism that African people have endured, we should be aware of the fact that discrimination conveys to the person discriminated against that the person is not of equal worth. The discrimination against women conveys the message that women are not equal to men and undermines their dignity.

African Customary Law and Development

African customary law has seen a paradigm development from its application before the Europeans, after their coming and after colonization. Kenya has gone a further step especially when the Constitution of Kenya 2010 was effected.

Customary law, like any other law, is not static and is always changing to reflect how people are living today. Like any system of unwritten law, customary law has a capacity to adapt itself to new and altered facts and circumstances as well as to changes in the economic, political and social environment. Thus, it has adjusted to such influences as the introduction of European and other foreign legal systems in Africa, urbanization and the growth of a money economy. This dynamism of customary law is illustrated in customary law rules about land ownership where it is now possible to own land individually unlike earlier times where land belonged to the family as a group and no individual could own a piece of land absolutely or sell it. From time immemorial customary law was the principal system of law in African communities. However, this exclusivity was broken in the nineteenth century when European colonialists introduced their own metropolitan law and system of courts into their colonies, but retained so much of customary law and the African judicial process that they did not deem contrary to basic justice or morality. The result of the imposition of colonial rule, therefore, was to produce a dual or parallel system of courts and laws in African countries. In the colonies, dualism was reflected on the one hand, by the establishment of Western type courts presided over by expatriate magistrates and judges whose jurisdiction extended over all persons in criminal and civil matters. These courts hereinafter referred to as ‘general courts’, applied European law and local statutes based on European statutes. A second group of courts was established composed of either traditional chiefs or local elders. Depending on the colony the latter courts were referred to as ‘African courts,’ ‘native courts,’ ‘native authority courts,’ ‘primary courts,’ ‘local courts’ or ‘people’s courts.’ These courts had jurisdiction only over Africans and for the most part, applied the customary law prevailing in the area of the jurisdiction of the court. They were supervised by administrative officers, who also had control over the appointment and dismissal of the court members. Attorneys were not allowed to appear before these courts or tribunals.

Customary law in the legal systems of post-independence Africa has not been entirely neglected. The English-speaking countries have retained much of the dual legal structures created during colonial rule while attempting to reform and adapt customary law to notions of English law. On their part, the French- and Portuguese-speaking countries have pursued an integrationist course by trying to absorb customary law into the general law. Only in Ethiopia and Tunisia have some radical measures been adopted to abolish legislatively carefully selected aspects of customary law. However, regardless of the approach adopted, in no African country is customary law totally disregarded, or proscribed. It continues to be recognized and enforced, albeit to a different degree depending on the jurisdiction.

In 1950 a number of countries gained Independence and the British Colonial office began to understand and appreciate that time has come for de -colonization and begun to think about the future of the African customary law and the African customary courts. The colonial government begun to think about the integrated system of justice and their concern was how customary law would fair in such integrated system. This led to series of African law conferences held in London, Dar and they were attended by law officers from British Africa. The main theme was the integration of the African Courts into the mainstream system. In preparation for independence and with it the integration of the courts led the colonial authorities to consider the question of ascertaining African Customary law with the objective of making it easier for it to be applied by the ordinary courts of law. This led to the codification and restatement projects. These 2 projects entailed the recording and conversion of African customary law into writing. From 1897 when the modern legal system was established to the 1950 no one thought of recording African customary law.

Codification: Codification seeks to produce a unified customary law and entails producing one code for the entire country. It would be a summarized version of all the people resident in this country and it would be binding and have the same effect as a statute it is not a guide it is binding. Codification is criticized because it tends to crystallize customary law yet it is a very dynamic body of law and when you reduce it into writing you freeze it, and it is likely to cause injustice to those relying on it, because it is very dynamic. The danger with this is that the customary law if codified could be very different from that which is actually practiced by the people. Tanzania opted for codification where the government developed a code of customary law for the entire country.

Restatement: Restatement on the other hand entails the reduction of African customary law into writing in English rather than in original language. A restatement is not binding like a code and it’s a mere guide to the court. Kenya decided to go for restatement with the view to restating the principles of African customary law on an ethnic basis tribe by tribe following a uniform format.

Therefore I can say that customary law has played a very big role in the development of the Kenyan law as the people themselves did not entirely assimilate the European laws. For a customary law to be applied it has to pass through some process. Once ascertained, customary law is to be applied by the courts subject to the following conditions. The first is that the customary law rule is not repugnant to natural justice, equity and good conscience; and the second is that it is not incompatible either directly or by implication with any law for the time being in force. While no detailed description of the repugnancy clause has been provided, several courts have taken the position that the clause is intended to invalidate ‘barbarous’ or uncivilized customs. Thus, in Re Effiong Okon Ata the court held that a custom whereby the former owner of a slave was entitled to administer the personal property of the slave after the slave's death failed the repugnancy test. In applying the repugnancy test, it is not within the province of the courts to modify an uncivilized custom and apply the modified version of the custom. The test of incompatibility has generally been limited to laws specifically enacted by the local legislature but in theory, it could apply to received Western law as well. A rule of customary law on a subject-matter is incompatible with a local statute if the statute is manifestly intended to govern that subject-matter to the exclusion of customary law. There is direct incompatibility where the statute states expressly its objective to abolish or modify the customary law rule. However, where the co-existence of a rule of customary law and the statute is not inconsistent with the manifest object of the statute, it is clear no issue of incompatibility is raised. But where, notwithstanding the fact that the statute does not expressly abolish or modify a customary law rule, the co-existence of both is inconsistent with the manifest object of the statute, it is plausible to argue against  the enforcement of the customary law rule on grounds of implicit incompatibility.

In every case, it is a question of construction whether a statute on a particular matter abolishes or modifies the customary law on the matter or is intended to co-exist with the customary law.

Thus, in proceedings before the general courts or statutory customary courts, where a right to folklore is at issue, the courts would ascertain the existence of such a right by calling for proof of the right which will then be enforced if it is found not to incompatible with statute. In development customary law has attained a place where it has to be ascertained that is not repugnant to justice. Such is seen in Article 2(4) of the constitution of Kenya 2010.

REFERENCES:

T.W Ben net. 1995. Human Rights and African Customary Law (Human rights and Constitutional law series of the Community Law Centre.

Alice Armstrong. 2003. The Nature of African Customary Law. Manchester University Press. Manchester.

The Judicature Act Kenya Chapter 8

The Constitution of Kenya 2010

The Magistrate’s Court’s Act

Constitution of the Fourth Republic of Ghana 1992

Maria Gisege Angoi Vs. Macella Nyomenda (see Civil Appeal No. 1 of 1981 being the judgment of Aganyanya J. delivered at Kisii on 24-5-1982

AFRICAN CUSTOMARY LAW AND WOMEN

AFRICAN CUSTOMARY LAW AND WOMEN

Introduction:

African Customary law is the law of small-scale communities which people living in these communities take for granted as part of their everyday experience. It excludes outsiders who, to get any account of it, either have to be told about it or read about it. Customary law is sometimes difficult to track since there are as many customary laws as there are tribal communities. Despite the general consensus on certain fundamental principles, there are nuances in each that only one well versed with the community's way of life can identify. An outsider looking at these societies’ structures may aver that women have no rights under customary law. It has, however been contended that women were better off under customary law than they currently are because they were accorded great protection as mothers and assured of a share of and access to resources even where they did not exercise political leadership of the community. (Alice Armstrong, 2003) The women-unfriendly customary law has gradually developed as African societies have undergone change most of which can be seen arising from colonization and privatization.

The battle of the sexes at customary law is in one sense therefore a struggle over scarce resources and power as overlords in the form of colonial powers and states in modern African states have assumed control over all aspects of the lives of Africans, prompting the African males to consolidate the one bastion of their authority, namely customary law. In some cases, notions of customary law such as the concern for women have been dropped making women very vulnerable. The removal of protection has not been accompanied with fewer roles for women within the community. Their roles of reproduction and production have remained intact (rural women in Africa contribute substantially to food production.

In this paper I seek to show how the African Customary law affected women in their day to day activities.

Women and property in the African customary law setting

In relation to customary law, there has been considerable opposition by women's organisations that are seeking to eliminate customary law on the basis that it is biased in favour of men; but, this does not appear to have had a large impact. Traditionally women were undermined by men in the customary law they always found themselves loosing out in major issues such as property and land.

Historically, women had influence or personal rights within their clan or kin based group but always under the tutelage of male elders in the patrilineal descent groups and were mostly responsible for bringing forth children and performing domestic work. This resulted in women not owning land. (Arigbede, 1997)

Further to this one would find that in the customary law setting that women were merely seen as part of a mans property. In succession under customary law it was based on the principle of primogeniture, which requires that only males in the setting could inherit property. As a result women were incapable of inheriting property from the deceased estate of their father or husband when they died without leaving a will. (Barber, 1995: 77)

The Hausa customary law allows women to own property. A woman can inherit from either of her parents though they seldom do. The female is entitled to half the share of the male sons. In practice where the only surviving child is a female, her uncle occupies the land as of right, but the female child is entitled proceeds of the farm land. (Holmes and Holmes, 1995)

However with increasing pressure on land females tend to receive movable and more liquid assets as inheritance while land remains close in the hands of men. (Palmer, 1991)

Women and their rights as human beings

African customary law was indeed biased on the part of the woman and the children as well. An outsider to the African customary law especially the Europeans saw African women having their human rights severely. In my research I particularly emphasized on the Samburu people who have been and still practise their culture. According to Satsya, women were generalised together with children and were treated in a very inhumane way. Particularly there is an instance where one Rebecca Lolosoli who severally was afforded a severe beating by men of the Samburu tribe. This was because she had tried to own land and even had made a payment of $2,000 to the purchase of a certain piece of land. However she did not loose hope and went further to purchase the land, and by doing this she risked the wrath of the Samburu men who beat up again. This prompted her to establish a village where no men were to be allowed into. The men had become so inhumane such that even when they would get raped by other men, the men would instead beat them up saying that it was their fault. She was a victim of this so many a times and hence her resolution of starting up a “male free village”. She recalls that when the British soldiers were training near Samburu they would occasionally rape the women there for sheer fun of it. The women in turn would keep mum about this otherwise they would face the full wrath of their men. Such are the inhumane acts that faced women in the African Customary setting.

Apart from battery wife sharing was common among the Maasai whereby a visiting male friend would be afforded the opportunity to sleep with the host’s wife. This was done without any regard to the wife’s acceptance.

Further in the Samburu culture, according to Daily Nation a local newspaper, young girls below the age of majority that is 18 years are being wedded of to male counterparts that are willing to pay their bride price. This in itself doesn’t regard the needs of the young girl in question as she will have her school life discontinued by the said marriage and also at her young age she should not be burdened with the responsibilities of a marriage. Also before the marriage they are also taken to an elderly woman for circumcision. Janice Lesotia in her interview with the daily nation recoups her marriage story before she was able to escape. “One day as my sisters and I were fetching water at the river, five masculine boys carried me to my father’s home. Upon arrival I met elderly men who were discussing or rather finalising my marriage plans to an elderly man who roughly was fifty four years old while I was barely fifteen years old. I had no prior information of my marriage to the man neither had I met him before, I had expected that not to happen since my father was always supportive of my educational plans. When I got the chance to speak to my mother she told me that she had no intention of marrying me off at such an age but her hands were tied. That was the most painful day of my life. My sisters had already come to at least bid me goodbye as I was being carried away by the same boys to my “husbands” house.”

This in itself shows how women are treated as mere property that can be disposed. Her father clearly did not consult her or her mother in the marriage plans as he was a sincere chauvinist.  It is as if women are too naive in the African customary setting to make decisions on their own and have them respected. It is a shame also at this day and age that such practises are still prevalent even with the promulgation of the Constitution of Kenya 2010.

The African customary law setting shows that women were:

a)      Treated as objects of pleasure; in that when a man desired to have sex with her there were no restrictions despite her disapproval as shown by the Maasai scenario.

b)      Women had their place among the children in the society disregarding whether they were adults or not. So men in turn had the authority to discipline them as they did to their children whenever they felt that they had erred.

c)      Women had no power to enforce decisions neither should they trouble themselves making future plans as their husbands were in charge of everything.

A sad thing to note is the reluctance of men despite the law categorically giving women the equal pedestal to men in life. Article 27 of the constitution of Kenya explains that, women and men are equal and are to be afforded the fair chance in making decisions in the political, social and economic spheres.

Women and marriage

Women in marriage played the role of mothering children and also raising them but the task of rearing children was among the members of the community. Women got themselves into marriage by being married off often at a younger age when a suitor appeared. It was without regard to the persons feelings. In the kikuyu community young men would choose a hardworking woman over a lazy one. So the main attribute that secured marriage was being hardworking as it was an assurance to the husband that he would not have a culpable wife of raising his family.

Inside the marriage it was the husband who called the shots in the major decisions involving the family.

Matrimonial property in a marriage was held by the man of the house while the wife and the children were only involved in the development of it. Women in most African communities could not inherit property. Mostly property was divided amongst the brothers with regard to age as the eldest would get the lions share. It is only in recent times with the effect of new laws that shunned this practise that women are afforded the chance of owning a piece of land.

Children in an African customary marriage were regarded as blessings and the many one could get denoted his wealthy status in the community. The number of children a woman could give birth to was according to the man’s ability to cater for them so a woman did not have a say as to how many children she desired.

In some communities, an elderly woman/ sterile woman who desired to have children could marry a young woman who in turn would get children that would not be considered as hers but rather the children of the elderly woman. When women were unable to get children they were marginalised by the community and jeered at by their co wives, who if she was the first wife were married to have children for her husband. So getting children was a major factor in the African customary marriage and childlessness was blamed on the woman. The man in a marriage without children is pitied and in most pacified and suggestions are even offered to him to look for an alternative way of having children. (Obi, 1998; Bingham, 1982; Robinson, 2001)

The woman is further blamed for not bringing forth male issues in the family even though it is known that there is medical evidence to prove that the man determines the sex of the child. In the Igbo culture, there is a customary culture when a man dies without a male issue. One of his daughters is chosen to stay back in his household, selects lovers with whom she cohabits and begets children on behalf of her father such that it is said that the lineage has not perished.

Women and work

In the African Customary setting a woman’s main work was the kitchen and taking care of the children. The general household chores were reserved for the women in the family. A proverb from Ghana declares that: ‘A woman is a flower in a garden her husband is the fence around it.’ In this regard the woman is the caretaker of the home thus ensuring that the home is beautiful and neat. Women were also operating as midwives and also telling the gender of the new born baby. For example in the Kikuyu custom the ululation the women would give differed from the sex of the newborn. (http://allafrica.com/stories/20010920054.html)

The relevance of this research to the modern times

There is basically a serious need for the reformation and sensitization of the current laws of Kenya and Africa in general. Women have always been strained of their rights because of the chauvinistic nature of the laws that have been in place before the Europeans came and after them. Women have been denied of their rights for a long time but at least there has started to be a paradigm shift in the analogy of how women have always been treated.  In a discussion of women's responses to customary law, Armstrong poses the following

question: if the lives of most women are governed by the unofficial, customary law rather than the official, state law, how can the "law" be used to improve their (our) position? Is there any way of using the customary law? Or do we simply say that we will rely on the state law, reform it, and try to encourage women to use that state law?

The question is particularly pertinent in relation to domestic violence where most of the women in South Africa may not benefit from the progressive provisions of the Domestic Violence Act and the state resources spent on ensuring its effective implementation. The answers which Armstrong provides to her own question could perhaps be equally applied in this context. First, women should reclaim the discourses of custom, pointing out and criticising the gendered and political interests which they serve. In this way customary rules can be reformulated to take account of women's interests. Secondly, women and men living under customary law can be informed of their rights and duties relating to domestic violence by using the discourses of custom and tradition, rather than those of civil law. Finally, women can use customary institutions like the family and traditional courts to enforce their customary rights, which have been reinterpreted in favour of gender equality.

Conclusion:

It is evident from the above discussion that most countries in the region of Africa have or are in the process of amending their statutes to ensure equality and non-discrimination under the law. A real and critical challenge remains in that even where laws providing for gender equality have been put in place, mechanisms for enforcement of these laws are either weak or non-existent. As a result, a significant gap between paper rights and real rights remains for many women throughout Southern Africa.

In attempts to redress this situation, women's NGOs have taken a more active role than governments in providing programmes for legal literacy and support for women to benefit from the countries’ constitutional and statutory provisions, as well as the guarantees provided for in the international and regional treaties and conventions. These efforts have seen the simplification, repackaging, translation and dissemination of CEDAW and national laws for the benefit of the ordinary woman as well as sensitizing policy- and law-makers.

A need has been expressed by women in the region that the Southern African Development Community (SADC) should establish the human rights tribunal provided for under article 16 of the SADC Treaty to deal with violations of women's rights. They have also challenged the SADC to adopt legally binding instruments and protocols and to encourage member states to incorporate them into their constitutions and legislation.

References:

Arigbe, M., (1997) Development and women’s health in Africa, Annual lectures: Series 3: Empare Monograph

Barber, K., (1995) Going too far in Okuku: Some Ideas About Gender Excess and political power in Gender and Identity in Africa, Reh M. And Ludwar. Ene (eds), Hamburg: LIT VERLAG 77-83

Holmes, E.R. and Holmes L.P., (1995), Other Cultures, Elders Years, Thousand Oaks, CA, Sage.

Palmer, I, (1991), Gender and Population in the adjustment of African Economies: Planning Change, International Labour Organization, Geneva.

Alice Armstrong. 2003. The Nature of African Customary Law. Manchester University Press. Manchester.

http://allafrica.com/stories/20010920054.html