Constitution over custom protects women

The court gave precedence to customary law over the bill of rights. They ruled that women could not be equal to men before the law because of African cultural norms and "the nature of African society," making customary law immune from the non-discrimination clause.

 

Before her death at around sixty years of age, Magaya was living destitute in a one-room shack.  This, despite her many years of work as a seamstress from which her earnings not only maintained the home, but also sent a number of her siblings to school.

 

The ruling back in 1999 sent shock waves through the women’s rights community, and pointed to the need to ensure the protection of women’s rights in the dual system found in many African countries. A characteristic feature of the legal systems of all the Southern African Development Community (SADC) countries is the co-existence of customary and religious laws alongside the perceived European law.

 

A clause that makes explicit the supremacy of constitutional rights over customary, religious or other laws in the SADC Protocol on Gender and Development being reviewed at the upcoming Heads of State Summit in August will be an important yardstick for countries to measure against in their ongoing law reform processes.

 

In the current version of the draft Protocol, there is a provision for State Parties to endeavour, by 2015, to enshrine gender equality and equity in their Constitutions and ensure that these rights are not compromised by any provisions, laws or practices.”

 

The SADC Protocol Alliance, comprised of more than 16 organisations and experts from the region, is calling for the Protocol to state explicitly that where there are contradictions between customary law and Constitutional provisions for gender equality the latter is given precedence. Only two (South Africa and Namibia) have constitutions that state that where there is a contradiction between their Bill of Rights and the customary law, the former will take precedence.

 

While customary and religious laws could be implicit in “any provisions, laws or practises” this is a matter of interpretation. According to the Alliance, a matter so vital to achievement of gender equality in SADC cannot be left to chance in this way!

 

Upon independence, new African governments started law reform aimed at greater race, gender and class equality. There is, however, a tense relationship between notions of the values and principles of African custom and culture and gender equality as reflected in the different constitutions today.

 

There are countries that subject customary law to non-discrimination provisions. Other countries still hold customary law to be supreme to the constitutional non-discrimination clause. Others achieve the same effect by excluding personal law from the non-discrimination clause.

 

Angola has gone furthest by outlawing any discrimination and made it punishable by law. The level of protection of women and children’s rights differs depending on the position taken by a state on customary versus constitutional law. Women and children’s right receive the best protection where customary law or personal laws are subject to the non-discrimination provisions and the repugnancy test.

 

A different example is the Bhe case in South Africa.  The applicants were the Bhe sisters, aged nine and two, on whose behalf their mother challenged the rule that, in the absence of a will stipulating that the girls inherit their deceased father’s estate, they could not inherit the property because they were female and illegitimate. Their parents had never married and had cohabited in a permanent life partnership for twelve years.

 

The applicants challenged the constitutional validity of the African customary law rule of primogeniture in which the house would become property of the eldest male relative of their father, in this case their grandfather, who planned to sell their home in order to defray burial costs.

 

The Cape High Court ruled in September 2003 that the African customary law of succession were unconstitutional since the girls could not inherit only because they were female. Thus, giving precedence to constitutional over customary law protected the girls’ right to inherit.

 

The different outcomes in these cases related to the level of recognition and protection of customary law in the different Constitutions. Most States are now recognising that some customs and customary laws are not only damaging to all classes of women and girl children, but are indeed incompatible with a modern economy, social order and development.

 

It is therefore important for states to assess their standing in terms of their Constitutional provisions and support the inclusion of an Article in the proposed SADC Protocol on Gender and Development that, although recognising customary law and the right to culture, does not make these immune from non-discrimination clauses.

 

Some states have even gone further and outlawed any such discriminatory practices. In Malawi, Namibia, South Africa, Swaziland and Tanzania, customary law is subject to the non-discrimination clause. However, in countries like Botswana, Lesotho, Mauritius, Zambia and Zimbabwe, where customary law is not subject to this clause, protection of women and children’s rights are less likely to be upheld.

 

The reality for most women in Southern Africa is that constitutional and legal provisions mean very little because in reality customary and or religious laws govern their lives. Thus, for women to have meaningful legal protection, their rights must be enshrined in laws that are not open to interpretation.