Women, Law and Human Rights in Southern Africa

Abstract

Journal of Southern African Studies Publication details, including instructions for authors and subscription information:This article examines the development of human rights in the Southern African Development Community (SADC). 1 It looks at personal laws and the attempts of parties in postcolonial states to deal with conflicts that arise between the dictates of state customary law, which may be discriminatory towards women, and the move towards embracing human rights with their focus on the removal of sex and gender-based discrimination. While it is clear that there has been enormous progress made in enshrining women's rights, the article urges caution, noting that there are limits to the law's power to change behaviour. Law cannot always provide a solution to discrimination rooted in socio-economic and cultural dispossession. The article is divided into four parts. Part one introduces the legal systems of the region. Part two offers a discussion of the different constitutional models illustrated by case law relating to inheritance. Part three provides an overview of the African engagement with human rights before moving on to consider the two Declarations of the SADC in dealing with gender-based discrimination and violence against women. 2

The Ordeal of “Property Stripping” From Widows in a Peri-Urban Community: The Case of a Selected Ward in Binga District, Zimbabwe

“…This Chapter 37 Act has now been changed to the Marriages Act [Chapter 5] (Law Hub, 2015). Customary law, on the other hand, dictates that property be devolved according to the customs and usages of the ethnic group to which it applies (Banda, 2007). The use of such a dual legal system confuses the management of the estate upon the death of the male co-owner of property.…”

“…The main hurdle has been seen as the dual legal system that the colonialists used to disadvantage Africans and their women. To that end a dual legal system, in which different laws applied to different races, was enforced (Banda, 2007;Ndlovu-Bhebhe, 2012). Despite the complexity of its application, this discriminatory dual legal system which prevailed in the colonial era still applies in Zimbabwe, even though the country is independent.…”

South Africa’s System of Dispute Resolution Forums: The Role of the Family and the State in Customary Marriage Dissolution

“…This raises questions about the accessibility of state courts and the possible structural constraints which may be preventing women from turning to them for assistance with their marital disputes. Banda (2006) highlighted the existence of structural constraints which limit the ability of women to exercise their legal rights by accessing state dispute resolution forums. Referring to the provision of human rights to women in Southern Africa, Banda (2006) argued that these structural constraints have, for the most part, rendered only traditional dispute resolution forums available to women in customary marriages.…”

“…Banda (2006) highlighted the existence of structural constraints which limit the ability of women to exercise their legal rights by accessing state dispute resolution forums. Referring to the provision of human rights to women in Southern Africa, Banda (2006) argued that these structural constraints have, for the most part, rendered only traditional dispute resolution forums available to women in customary marriages. These structural constraints will be further elaborated upon below.…”

Formalising land rights based on customary tenure: community delimitation and women's access to land in central Mozambique

“…Knowledge on how the new land policies and legal reforms work in practice is in Mozambique still based on few empirical studies of the local implementation processes. More generally, however, critical research literature point at the challenges involved in efforts to protect local people's customary land tenure rights while also seeking to secure -in practice -the 'normative success' of legally established equal rights for women and men Banda 2006;Claassens 2013).…”