Plural legal systems hurt women?s rights...
Plural legal systems hurt women?s rights
Date: January 1, 1970
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The interplay between State laws, customary laws, religious laws and other laws in Southern African Development Community (SADC) countries is a critical issue in the determination of women?s rights. State law carries with it the mandate to adopt the rights discourse as debated and adopted at international level. The rights discourse at international level recognises women?s rights as human rights. Other laws such as customary laws and religious laws carry with them recognition of a country?s traditional values and norms as an essential quality. However, they also carry with them a baggage of women?s subordination and oppression.
The interplay between State laws, customary laws, religious laws and other laws in Southern African Development Community (SADC) countries is a critical issue in the determination of women’s rights.
A gender audit of the SADC Declaration on Gender and Development points to the “the schizophrenia of the dual legal system,” as a major contributory factor to women’s continued subordination.
At 26 years, SADC has now reached a crossroads and must decide which way it will go with respect to gender equality. SADC Member States must adopt a clear position concerning women’s rights and gender equality.
The majority of the 14 SADC countries have a dual legal system in which customary law and statutory law work side by side. Only two, South Africa and Namibia, have made it clear in their Constitutions that where there is a conflict between the two systems, the Bill of Rights takes precedence. Only South Africa and Tanzania have passed laws to provide for equal status between women and men in customary marriages.
State law carries with it the mandate to adopt the rights discourse as debated and adopted at international level. The rights discourse at international level recognises women’s rights as human rights.
Other laws such as customary laws and religious laws carry with them recognition of a country’s traditional values and norms as an essential quality. However, they also carry with them the baggage of women’s subordination and oppression.
In State terms the instrument that is critical for recognition of women’s rights is the Constitution. In many countries, the Constitution is the supreme law of the land. But this is often juxtaposed with the notion that customary and religious laws carry a value of preserving who we are as Africans.
While the Malawi Constitution has adopted the International Bill of Rights it explicitly excludes any law including customary should it explicitly undermine its provisions. To this extent the constitution of Malawi can be seen to effectively consolidate women’s rights.
But there is a further debate on the ratification of international treaties. When a Member State of SADC ratifies a treaty, how does its Constitution treat it?
The desirable position is that that the Constitution should automatically adopt it in order for it to be part of the laws of that country without further recourse to parliament. The Malawi scenario is quite peculiar. Whilst the Constitution in Article 11 clearly adopts public international law as forming part of the laws of Malawi in the same Constitution (at the back) this adoption only goes as far as treaties that were ratified before 1994.
The rest have to go through parliament. Two steps forward, one step backward in one legal document.
However, it appears that in comparison to some SADC Member States the Malawi situation is reasonably progressive. In Zimbabwe, Lesotho and Swaziland fairly conservative views have been undertaken in their Constitutions. Whilst recognising the Bill of Rights, customary law reigns above this should such a question arise.
In December 2005, the African Union Protocol on Women’s rights came into force. We are moving towards a regional protocol for women in SADC. Fumbling and being indecisive about our positions as a region and therefore as Member States is no longer an option.
Gender inequality has caused domestic violence in very high proportions, high HIV/AIDS prevalence among women, and in-country and cross-border trafficking of women and girls. This is all symbolic of deeply held inequalities among women and men.
This can no longer be the case. Our Constitutions should override any religious, customary laws that oppress, discriminate, subordinate women. It is only when the letters of Constitutions reflect a response to the realties on the ground and reject any form of oppression that SADC will truly move forwards as a democracy.
Seodi White is a lawyer and Women’s Rights Activist. She Is the National Coordinator For Women and Law In Southern Africa Research Trust- Malawi (WLSA Malawi) This article is part of a special series of the GL Opinion and Commentary Service produced ahead of the SADC Heads of State summit in Lesotho from 17-18 August by the Southern Africa Gender Protocol Alliance comprising ten NGOs that promote gender equality in the region.
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