It is encouraging to note that some nations, whose federal or statutory laws say that both sexes must be treated the same, have actually gone so far as to create legislation enforcing these rules. For example, in Botswana (the orange-colored country just above South Africa on the map) marriages must be registered, men may not marry more than one wife, and "men who are married under statutory law do not have marital power over their wives[...]a man may not sell or mortgage property without his wife agreeing in writing, and she must be there when he does this," according to the Centre on Housing Rights and Evictions (COHRE). However, this does not apply to men married under customary law, which is further discussed below. Similarly, in Ethiopia the Family Code says that girls cannot marry before they are 18, all marriages must be registered, husband and wife must make joint decisions about property and women living with men without being married still have rights. In this case, statutory law overrides customary law, but the situation is unfortunately reversed when it comes to inheritance. Furthermore, Ghana, which is generally a progressive country in terms of inheritance rights, has specifically covered the passing-down of estates in its constitution. Article 22 states that "spouses shall have equal access to property jointly acquired during marriage[...a] spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will." I believe that more countries should copy Ghana's document, which does not make an exception for customary law, unlike the previous examples of Botswana and Ethiopia. Moreover, the legal administration of customs and traditions may be used for any issue in South Africa as long as it does not go against the Bill of Rights, but many local judges follow cultural mores regardless of whether or not they comply with the constitution.Besides creating legislation, most of these African countries and others have also signed and/or ratified international agreements on women's rights. The most important agreements are the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the African Charter on Human and Peoples' Rights, which all generally say in total or in part that women should be treated the same as men, that both should have the same rights in marriage and inheritance, and that everyone should have proper housing. Although many governments have signed on to these agreements, I have found throughout my research that there still remains a significant difference between written code and what is actually happening. The main reason for this disconnect is that despite the equality provided in the constitutional or federal law, "land use, housing, and the transfer of land and housing between generations is regulated by customary law, which largely excludes women from property ownership and inheritance," says the Human Rights Brief (HRB). These issues are very deeply embedded in the culture and therefore difficult for legislation, international agreements or non-governmental organizations (NGOs) to change. As previously stated, several governments allow customary law to rule in certain cases, such as in Botswana where a man married under customary rather than statutory law does not have to adhere to legislation requiring his wife to have the same rights. Botswana has even created the Customary Courts Act, which directs courts to apply "the customary law of that tribe or tribal community so far as it is not incompatible with the provisions of any written law or contrary to morality, humanity, or natural justice." I find this damaging for women because male tribal leaders who generally find in favor of men, regardless of constitutions or agreements, often lead customary courts. Furthermore, in summarizing the country's Administration of Estates Act, the
HRB writes, "every person belonging to an ethnic group, which essentially applies to every native citizen of Botswana, will have their property devolved according to the customs and practices of their particular ethnic group." Therefore, although Botswana (and many other African countries with similar situations) have agreed to make males and females equal, the practice of customary law renders the notion of complete equality useless. This is further shown in Zambia, which also passed the Local Courts Act that puts local and traditional courts in control of all customary and even some statutory law. I think it is obvious that as long as customary law has authority over the issues of marriage and inheritance, women will continue to lack power over their own economic security.In theory, combining statutory and customary law is a good idea. It eases tension between the people and their government, creates a sense of mutual understanding and does not support or promote government oppression. History has shown that a government will not succeed and its actions will perhaps result in bloodshed or revolution if it does not recognize the culture, needs and wants of its governed. For these reasons, the dual system of law in many African countries is created with good conscience. But unfortunately in reality, legitimizing the old tribal rule by national government is allowing harmful acts of gender bias, and because of this women are suffering from a lack of rights and several other related problems as illustrated in the picture above. Additional stories of widowed women can be found at Human Rights Watch that give personal accounts of a life of homelessness, beatings, forced intercourse with social outcasts and shame resulting from the lack of inheritance rights.
To end this contradiction of law, it is my belief governments must enact new policies. First, customary law must not be allowed jurisdiction over marriages, land or inheritance, though it may still exist for other purposes. Second, governments should honor and recognize all marriages whether they are statutory or customary as one and the same. Women must have the same marital power as men, and be left most of the entitlement to the estate should her spouse die. Moreover, boys and girls ought to inherit the same amount of their parent's property, regardless of whether their parents wed or not, and everyone, including judges, government officials, and females in particular must be educated about women's rights. While I understand it is not easy to change the customs or traditions of a society, governments have begun and must continue recognizing the equality of females. With the adherence to international agreements and changes to this contradictory dual system of law, I am confident African countries can eventually succeed in establishing inheritance rights for women and more equality in the future.
