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Statement of the problem
The Constitutions of countries such as Nigeria, South Africa and Zambia prohibit discrimination against women on grounds of sex, birth and gender. However, majority of women continue to face discrimination arising from harmful cultural practices under the customary law system particularly in the areas of inheritance, succession and at widowhood. Notwithstanding constitutional as well as international human rights law prohibiting discrimination to which 28 Ndulo (1995) supra 20 at 99-100. 29 Mabena v Letsalo 1998 (2) SA 1068 (T) these three countries are state parties, many women are forced to endure cultural practices that continue to subjugate them thereby infringing on their rights to dignity and equality. In addition, the processes involved in seeking redress for violations of human rights arising from harmful cultural practices remain tedious for the majority of women. So, to effectively deal with discrimination arising from harmful cultural practices demands a shift in mechanisms designed to promote human rights and justice.
Objective of study and research questions
The objective of the study is to assess the normative standard already established in Africa for the enhancement of gender justice, in order to highlight their importance and relevance within the African customary law context with a view to matching universal standards with local values where community-based and informal justice systems are most relevant. In pursuance of an appropriate and effective implementation of gender justice in Africa, the study poses the following research questions: (I) how best can states give effect to the non-discrimination clauses in their constitutions as well as international human rights law for the promotion of gender justice? (II) How sufficient are both regional and global human rights law in the promotion and protection of gender justice in Africa? And if not, (II) Can a viable model that recognises the complexities of the cultural obligations of state parties and its traditional institutions be proposed / adopted?
Scope
This study would be limited in scope to three countries in sub-Saharan Africa such as; Nigeria, South Africa and Zambia.The reasons for the choice of these three countries are as follows: • They provide great reflection of what happens in majority of the countries in sub-Saharan Africa. • Nigeria and South Africa have similarities in a number of instances such as cultural diversity, language as well as regional economic strengths. They also share similarities as countries colonised by Western powers but differs remarkably in ways in which colonisation affected their legal systems. • Zambia is selected because of the deep traditional orientation of the people of that country and so, has challenges on the application of aspects of its customary law system. It also shares similarities with Nigeria as a country with aspects of British legal system working parallel with customary law. Zambia also shares sub-regional grouping with South Africa as countries from South African Development Community (SADC) and also as countries with dual legal systems. • References to other countries in sub-Saharan Africa or elsewhere are merely to show similarities and differences. 1.5 Research Methodology This thesis deals with the impact of systems of law on the realisation of gender justice in Africa. While the study aims to use analytical approach, descriptive sections are necessary to provide valuable information to inform the analysis. In addition to descriptive and analytical approaches, the study takes a comparative approach in specific areas to highlight the experiences of the different countries on the issues dealt with in the thesis.
Table of Contents :
- Declaration
- Dedication
- Acknowledgements
- Summary
- List of Acronmys
- List of Statutes, Conventions and Charter-based Treaties
- List of Cases Cited
- CHAPTER ONE: Introduction
- 1.1 Background to the study
- 1.2 Statement of the problem
- 1.3 Objective of study and research questions
- 1.4 Scope
- 1.5 Research methodology
- 1.6 Literature Review
- CHAPTER TWO: Conceptual analysis on gender justice in African customary law
- 2.1 Introduction
- 2.2 Understanding the concept of universalism
- 2.3 Understanding the concept of cultural relativism
- 2.4 Universalism vs relativism: Reconciling competing interests
- 2.5 Cultural rights in Africa and its impact on women
- 2.5.1 Positive and negative culture
- 2.6 The meaning of custom
- 2.7 The concept of customary law / living law
- 2.8 Legal pluralism and plural legal orders
- 2.9 Gender as a concept
- 2.10 Different approaches to gender as a concept
- 2.11 Gender justice, human rights and culture
- 2.12 Legal meaning of discrimination
- Conclusions
- CHAPTER THREE: Marriage: law and practice in Nigeria, South Africa and Zambia
- 3.1 Introduction
- 3.2 Marriage under customary law in Nigeria
- 3.2.1 Religious marriages in Nigeria
- 3.3 Marriage under customary law in Zambia
- 3.4 Marriage under customary law in South Africa
- 3.5 Harmful cultural practices and their impact on women
- 3.5.1 Forced and child marriage in Nigeria
- 3.5.2 Forced and child marriage in South Africa
- 3.5.3 Forced and child marriage in Zambia
- 3.5.4 Justification for the practices
- 3.6 The Rights child marriage violate
- 3.7 Reconciling the differences
- 3.8 Critique of bride wealth/ lobola/insalamu
- 3.8.1 The Rights bride wealth/ lobola/insalamu violate
- 3.8.2 Resolving the conflict
- 3.9 Polygny / Polygamy
- 3.9.1 The Rights polygny / polygamy violate
- 3.9.2 Resolving the conflict
- Conclusions
- CHAPTER FOUR: Challenges to the law of succession and inheritance in Nigeria, South Africa and Zambia
- 4.1 Introduction
- 4.2 Succession and inheritance in Nigeria
- 4.2.1 Rights of the spouse in Nigeria
- 4.2.2 Rights of children in Nigeria
- 4.2.3 Succession and inheritance in South Africa
- 4.2.4 Rights of the spouse in South Africa
- 4.2.5 Rights of children in South Africa
- 4.3 Succession and inheritance in Zambia
- 4.3.1 Rights of the spouse in Zambia
- 4.3.2 Rights of children in Zambia
- 4.4 Harmful traditional /cultural practices that affect women in inheritance
- 4.5.1 Mourning / widowhood practices
- 4.5.2 Sexual Cleansing
- 4.5.3 Wife inheritance/Ikuchi Nwanyi/Ukupyana
- 4.6 Divorce /maintenance in customary law
- Conclusions
- CHAPTER FIVE: Correlation between gender justice, citizenship of women and development
- 5.1 Introduction
- 5.2 Formal and substantive citizenship
- 5.3 Custom and religious norms and practices
- 5.4 Systematic inequalities in family relations
- 5.5 Challenges to sexual and reproductive rights of women
- 5.6 Lack of access to justice for women
- 5.7 Women and economic empowerment
- 5.8 Development
- 5.8.1 Development as a right
- Conclusions
- CHAPTER SIX: Global and regional responses to gender justice
- 6.1 Introduction
- 6.2 Global rights
- 6.3 Regional responses to the realisation of gender justice
- 6.3.1 Substantive rights in the African Charter
- 6.3.2 The Protocol to the African Charter on the Rights of Women in Africa
- 6.4 The Protocol on the Rights of Women in Africa and institutional frameworks in Nigeria, South Africa and Zambia
- 6.4.1 The Protocol and the African child
- 6.4.2 The Protocol and solemn declaration on gender equality
- 6.5 Enforcement of global and regional rights
- Conclusions
- CHAPTER SEVEN: Bridging the gap: approaches to
- engendering justice in African traditional system
- 7.1 Introduction
- 7.2 Approaches to gender justice in African traditional system
- 7.3 Traditional justice system revisited
- 7.4 Modern institution: possible alternative?
- 7.5 Traditional Court Bill: South Africa at crossroad of justice
- 7.6 Expanding the frontiers of justice: an alternative model
- Conclusions
- CHAPTER EIGHT: Conclusions and Recommendations
- 8.1 Conclusions
- 8.2 Recommendations
- Publications/Presentations from this work
- List of Persons with whom the author had informal
- discussion
- (2009-2011)
- Bibliography
