JOHANNESBURG, South Africa (WOMENSENEWS)–When Itumeleng Kimane decided to wed, late in life and after securing a doctorate in Scotland, she made the unusual decision for an African woman of her educational and professional status. The sociology professor chose to marry under customary–or traditional–law rather than civil law.
Her husband-to-be had been previously married in a traditional ceremony and, though he was separated from his wife and considered himself divorced, was still married to his first wife under the law of his people, the Basotho, because his first wife’s bride-price had not been returned.
Kimane, who studies women’s issues at the National University of Lesotho, decided that a customary marriage would provide her more protection than a civil one. Under traditional Basotho law, polygamous wives keep their houses separate so the first wife would have no claim to her property.
“When I went to pay taxes, I was told that I didn’t look like someone who would get married customarily,” said Kimane, who dresses in modern suits and spends much of her time researching women’s rights issues. “Married women have more problems, legally and socially, whether you’re married under customary law or civil law.”
Caught Between Two Laws
Like Kimane, many African women are caught between customary laws that have long governed issues such as marriage, inheritance and land ownership and modern civil law that was first brought by colonialists and later embraced by newly independent African states.
Some women’s rights activists urge that the two systems be brought into better harmony to promote women’s global rights–an ambition formalized 10 years ago in a U.N. plan of action signed at a meeting in Beijing–while preserving cultural heritage.
“It’s an ongoing debate in the feminist movement, particularly the African feminist moment,” said Sibongile Ndashe of the Women’s Legal Centre in Cape Town. “But what I do not think–which I think is based on a flawed premise–is that there is something mutually exclusive about a rights-based system and African culture. I think African culture is quite able to adapt.”
But as activists and governments prepare for “Beijing Plus 10”–a summit opening later this month at U.N. headquarters in New York to review the progress of women in the decade since that platform was approved–little consensus exists about how to address married women’s rights in the context of this dual legal system and whether customary law can be adapted to protect and promote women’s rights in all parts of the continent.
Room for Harmony
Ndashe believes that within a country like South Africa–where constitutional protections for women’s rights are strong–there is space to adapt customary law. For example, a 2001 law in that country recognizes customary marriages like Kimane’s and allows for polygamous unions, but grants them equal control over marital property. Women’s rights activists in the country were among the biggest proponents of the new law, although some opposed the recognition of male polygamy.
While Ndashe agrees that many African customs are patriarchal, she also sees value in many aspects of African customary law, such as its communal approach. Marriage, for example, is seen as the bonding between two families, not just two people.
The two laws, however, are not always merged in ways that preserve constitutional rights. Courts in other countries, such as Zimbabwe, have ruled that customary law is exempt from constitutional oversight. In 1999 that country’s Supreme Court ruled that a woman could not inherit land from her deceased father because under African customary law she has the legal status of a minor.
Activists in Uganda doubt that customary law has the flexibility to bend to new demands for women’s equality, particularly on the issue of land ownership. While the constitution grants women the right to own land, customary law does not. As a result, women have been able to purchase land when it goes onto a formal market. But they remain unable to access land in communal areas, where the majority of the country’s land remains controlled under traditional law and is inherited rather than bought and sold.
“The customary laws pertaining to land have not been so helpful for women. Our women don’t own property under customary law,” said Harriett Nakandi, a program coordinator at Uganda Land Alliance, which has been active in trying to win greater property rights for women. “So we have been trying to use civil law to favor women.”
Forced to Compromise
In some African countries, like Zambia, women’s rights groups that would like to eliminate at least some aspects of traditional law and custom find themselves in such a minority that are forced to compromise and call for the adaptation.
The Zambian branch of Women in Law has campaigned against the practice of paying a bride-price, or “lobola,” which is closely tied to traditional marriage law. Joyce MacMillan, acting director of the organization, says that the under customary law, a woman and her future children belong to her husband’s family once the lobola is paid. The woman can only be granted a divorce if the lobola is repaid by the woman’s family, a requirement which often traps women in abusive marriages. Once paid in cows, lobola is now more often paid with currency.
While MacMillan would like to see the practice abolished and marriages take place only under civil law, she believes that is unlikely to happen soon because the tradition is widely considered a bedrock of African culture. “The difficulty we are having with lobola is that even though we feel that it disadvantages women, a lot of people, even women, feel that it should be continued.”
Instead of seek abolition, the organization, which is considered one of Uganda’s most influential civil society groups, is lobbying for more regulation of the practice.
A decade after Beijing, activists see slow signs of progress in improving the legal status of African women, both under customary and civil law.
In a few recent cases, MacMillan said, Zambian traditional courts that enforce customary law have awarded damages to women whose husbands have committed adultery, ruling that they violated the terms of traditional marriage. In a few cases, they have also allowed the divorce of women without the repayment of lobola when she claimed that she was at risk of contracting AIDS from a philandering husband.
But for Kimane, whose country still views women as legal minors in civil as well as customary law, the choice between customary and civil law is still a choice between the lesser of two evils.
“Women legally are still not in control of a lot of resources; not financial resources, not land; they cannot own property in their own right,” she said. “We’ve still got a long way to go.”
Nicole Itano is a freelance reporter based in Johannesburg, South Africa. She is currently working on a book about AIDS in Africa.
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