Women, customary law and equality: lessons from research in southern Africa
Armstrong, A.
Southern Africa Political and Economic Monthly 7(6): 69-71
1994
PMID: 12287635 Document Number: 277780
The Women and Law in Southern Africa Research Project (WSLA) has concluded, after 6 years of study in Zimbabwe, Zambia, Swaziland, Mozambique, Lesotho, and Botswana, that the deconstruction of customary law rather than an emphasis on the concept of equality represents the most promising strategy for producing justice for women. An historical analysis indicates that customary law was, before colonialism, a family-centered, flexible system of law that favored the negotiation and settlement of disputes rather than a rigid state-centered application of a rule. Traditionally, the unifying value base of customary law was preservation of the family and protection of women and children. Marriage was viewed as a joint partnership rather than a guardian-minor relationship. Polygyny, which today constitutes a source of female subordination, was originally developed to provide the protection of marriage to women at a time when there were not enough men to go around and an unmarried woman was vulnerable. Moreover, under true customary law, family property was the norm and widows remained on the land. The responsiveness of true customary law to changing socioeconomic conditions is illustrated by the newly developed practice of Chiefs in Botswana to allow women to speak and represent themselves in court; another example is the Chief's modification of seduction damages law to stipulate payment directly to the young mother rather than to her parents. After the introduction of colonialism, customary law was reconstructed to serve the political interests of capital; even now, post-independence governments use the law as a tool to oppress women. WLSA research suggests that an emphasis on gender-neutral, equality-based laws and statutes can lead to the further oppression of women. For example, such laws have made unemployed divorced women responsible for the maintenance of their ex-husband, and could be used to promote women, as well as men, having several spouses. Needed instead is an emphasis on the concept of social justice, including assurance that a women's choices are informed and her interests are promoted.