Can women’s rights abuse be explained by the perceived tension between constitutional provisions and customary law?

By Gerard Emmanuel Kamdem Kamga

Introduction

Is there really a tension between constitutional provisions and women’s rights? During the partner forum held in Harare Zimbabwe in September 2017 one of the issues raised was that of the tension between a human rights approach and a community based approach. Partners then formed breakaway groups to discuss the matter and until the end of the forum, the discussion did not die down owing to the conflicting but always interesting arguments of one another. The heating debate inspires the current short reflection.

As a starting point, it is crucial to note that the constitution in any democratic system is the supreme law of the nation which contains all mechanisms and guarantees of human rights, good governance, separation of powers, accountability, transparency, equality and so on. This means that, at least in theory, no one should be marginalised by the principles embedded within the fundamental law of the state. Yet, despite these mechanisms, there are clear instances of marginalisation, including when it comes about the rights of women. I will soon portray this by looking at the cases of South Africa and Zimbabwe.

The constitution, supreme law of the nation must reflect the history, practices, culture, custom and various other principles dear to the country and its inhabitants. Custom for example, is generally defined as a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place or time. From this definition, it is evident that custom does not emerge from nothing, but from a set of beliefs, recurrent facts and behaviour that, over the years, became normalised and engraved within the minds and the collective consciousness. If that is the case, how can the conflict between constitutional provisions and women’s rights be explained given that the very same rights are embedded within the constitution? Indeed, it is actually reported that many African constitutions contain provisions guaranteeing equality, human dignity, and prohibiting discrimination based on gender. However, the same constitutions recognise the application of customary law and they do this without resolving the conflict between customary law norms and human rights provisions (NDULO 2011).

The popular conception is that the tension between women’s rights and constitutional provisions has some historical roots (NDULO 2011). This argument suggests that, prior to the colonial and apartheid periods, several countries on the African continent were governed by sets of particular rules and practices, i.e. what is now known as customary laws. Later, these rules and practices were pushed to the background as a result of imperialistic and colonial enterprises. Both of these initiated and introduced a dominant system of Western origin which did not always aligned with local practices; even though postcolonial states re-introduced some aspects of customary law. The current postcolonial world appears therefore to be characterised by the co-existence of so called modern law and customary law. This coexistence is not deprived of tensions. Through a process of codification, a hybrid set of rules from Western origin along with local customs was embedded within the constitution to acquire the full force of law. Resultantly, we find ourselves in a situation where customary law and constitutional provisions seem to be clashing within the same space and by being both applicable to the same subjects. These clashes often lead to women’s rights being sacrificed.

My concern in this paper is not with the fact that there might be some fundamental tension between women’s rights and constitutional provisions. If there is an overwhelming sense of tensions between the two, it is surely because of the nature of constitutional provisions and women’s rights. It is also because of its poor interpretation or biased implementation as well as men’s tendency of domination and control. This was experienced in South Africa and Zimbabwe, where women are regularly relegated to the status of minors.

Relegating women to the status of minors: South African and Zimbabwean experiences

A minor is defined as a person under the age of full legal responsibility. In the case of South Africa, for example, to address one persisting tension between women’s rights and constitutional provisions, the constitution provides for a balance between common law and customary law. Section 39(3) devoted to the interpretation of Bill of Rights, reads that ’the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.’

Yet, it is well known that African customary law is also about relegating wives of customary marriages to the status of minors under the legal guardianship of their husbands (Jagwanth and Murray 2002). Women may not own property or hold office in public forums; they may not negotiate or terminate their own marriages or claim custody of their children; and customary marriages require husbands to pay bridewealth and allow them to enter into polygynous unions (Jagwanth and Murray 2002). Violations of women’s rights, and discrimination based on sex and gender remain a fact in several traditional African settings governed by customary law. But this is not to suggest that discrimination and marginalisation of women are peculiar to African customary law and culture. It has existed around the world before feminist movements, human rights advocates and various pressure groups rose to fight for its eradication and to bring about equality that is now embedded within the constitution. Indeed, a non-discrimination clause is clearly mentioned by section 9(3) of the South African constitution, preventing the state from unfairly discriminating, directly or indirectly, against anyone on one or more of the following grounds: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

However, despite the constitutionalisation of equality, women’s rights are still subject to violation. In this case it is difficult to say whether the culprit is the constitution or even the entire legal system. If I am of the view that the constitution is not a perfect document, I also consider that the abuse of women’s rights result from the patriarchal attitudes that have developed in society for years. Women’s rights are very often sacrificed to the profit of men with culture and tradition cited as the main reasons. This is reminiscent of the debate between human rights universalism and cultural relativism. The fact that public authorities often fail to implement the constitution is sometimes perceived as the failures of the constitution itself. In any case there is no any possibility for the constitution to enforce itself as this power belongs to humans.

An example of such confusion is the issue of the recognition of Muslim marriages in South Africa. For the past several years, multiple instances had been brought to court for this purpose. One of the most famous cases in point remains that of Hassam vs Jacobs No and Others where the Constitutional Court recognised, in 2009, a Muslim marriage and admitted that all the Muslim wives could inherit after their husband died intestate. Judges argued that the alternative would have been constitutive of discrimination based on religion, marital status and gender. Yet despite this important judgement, the recognition of Muslim marriage in South Africa is not automatic. This is inconsistent with section 15(3) of the constitution on freedom and religion which does not prevent legislation recognising ‘(i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.’ It seems that Muslim women should be ‘always’ prepared to go to court to have their marriage recognise in order to enjoy their rights. This instance of women’s rights abuse has nothing to do with neither the provisions of the constitution nor with customary law but with judges who are supposed to enforced the spirit of the law. There is a common purpose for protecting women’s rights both by the constitution and the Muslim tradition but it does not work because of the judge’s unwillingness to activate and enforce the mechanisms of protection available in the legal system. This case amounts to a situation where Muslim women are relegated to the status of minors.

A similar situation happens in Zimbabwe where widows’ rights to inheritance and property are infringed only because they are women. A report released by Human Rights Watch in 2017 portrays how Zimbabwean widows are evicted from their homes, land, and how their property is taken by their in-laws following their husbands’ death. The 53-page report, entitled ‘” You will get nothing,’ Violations of Property and Inheritance Rights of Widows in Zimbabwe,’ is based on interviews with 59 widows in all 10 provinces of Zimbabwe between May and October 2016. This report portrays how, following the death of husbands, their widows are often told by in–laws and the deceased’s relatives their intention to take over the homes, lands and other properties where the couple had settled for decades. It is in such circumstances that a widow testified by quoting her brother-in-law’s words to her after her husband’s funeral, by telling her: ‘you are rubbish and you will get nothing. I am taking everything.’ The whole situation accounts for another instance of women’s rights abuse which inevitably result in widows’ deprivation, vulnerability, poverty, homelessness and so on.

Can we still consider such practices as the results of a tension between constitutional provisions and women’s rights? This happens because section 56 of the constitution of Zimbabwe on equality and non-discrimination is not implemented. The third paragraph of this section provides that ‘every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.’ Instead of looking for the causes of such drama within the law and human rights architecture, one should pay attention to people’s attitude which play a key role in women’s rights violations. Prior to 2013 when the constitution was reviewed, a legislation had been enacted in 2006 to allow women’s rights to inherit property from their husbands and fathers. This was a step forward in a context where it is particularly difficult to pass legislation protecting women’s rights to property and gender equality. Yet despite this legislative arsenal, it seems the situation of women in general and widows in particular has not improved. One of the explanations provided for such abuse is that, in Zimbabwe, laws are applicable to widows whom marriages have been officially registered whereas the majority of marriages in the country are governed by customary law and are not registered. This argument alone cannot justify the fact that the rights of women or widows who have been living in couple for years with their love ones (whether registered or not) be subject to violation especially by family’s members. It is a fact that widow’s rights to land and property in Zimbabwe are well guaranteed by the constitution and the blatant manifestation of gender inequality which happens can be perceived more as a symptom of male dominance, patriarchy and control than a clash between human rights approach and community approach. It can even be argued that women are not only protected from a human rights perspective but also from a traditional approach. This is the meaning of section 80 (3) of the constitution of Zimbabwe on the rights of women which provide that ‘all laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement.’

Conclusion

Overall, the ideal is to reach a point where it is no longer necessary to look for a tension between constitutional provisions and women’s rights but to make sure that both are fully implemented. It would be instrumental to pay more attention to the structure and mindset of our society than to transfer our responsibility to the tension or perceived tension between human rights approach and community approach. This can be possible only if there is a radical shift about people’s perception of gender and only if the idea of human rights becomes really, really universal, that is to say if the following points are given full consideration:

All humans have rights by virtue of their humanity.
A person’s rights cannot be conditioned by gender, national and ethnic origin.
Human rights exist universally as the highest moral rights, so no rights can be subordinated to another person or institution (Donnelly 2003).

Laws have considerably evolved compared to what they were just a few decades ago and I believe the problem with women’s rights abuse and gender inequality today is not (always) generated by some sort of ontological tension or opposition between so called customary law and constitutional provisions but also by our attitude and (artificial) inclination toward violence. It is therefore crucial not to give too much power to law but instead to step up our determination to completely eradicate violence in general and gender base violence in particular. As rightly observed by John Zerzan (“patriarchy, civilization, and the origins of gender” available at https://theanarchistlibrary.org/library/john-zerzan-patriarchy-civilization-and-the-origins-of-gender) ‘without a deeply radical women’s liberation we are consigned to the deadly swindle and mutilation now dealing out a fearful toll everywhere.’