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