Tamar Ezer’s “Forging a Path for Women’s Rights in Customary Law” outlines the importance of customary law in advancing women’s rights. Ezer’s piece draws on examples of customary law issues and their effect on women in sub-Saharan Africa, but she emphasizes that these examples provide broader lessons for women’s rights and customary law. Ezer does not claim customary law to be a panacea for women’s rights in Africa. Rather, she argues that if used correctly, it has the capacity to “build bridges” between the traditional and modern legal regimes, acting as a vehicle for advancing human rights generally
According to Ezer, one of the primary problems with customary law in Africa is that it is used to sustain patriarchy and undermine women’s rights. The patriarchal system supported by customary law is particularly debilitating to women because it bars them from heirship and property rights. This exclusion from inheritance rights essentially condemns women to be what the South African Constitutional Court has called “perpetual minors,” reliant on controlling male relatives. Additionally, the patriarchal system encouraged by customary law has the damaging effect of discouraging social and community responsibilities among males. Male inheritors will often take over family property but fail to take on corresponding responsibilities, exacerbating these male-dependent family structures and often leading to the eviction of women and children from the home. Furthermore, because customary law is communally based, the community elders—almost always male—create the customary law, concentrating their power in these patriarchal systems.
Other problems inherent in customary law exacerbate the problems described above and further serve to disadvantage women. To begin with, there is often a tension between customary law and statutory law. Many African constitutions have exempted themselves from the obligation of prohibiting any discriminatory practices in customary law, thus creating a conflict between customary law and statutory law and leaving discriminatory practices intact. Furthermore, customary law in Africa is highly flexible, because it is based on local values and varies in application depending on who interprets it and to whom it is applied. Finally, customary law is generally not codified, which leads to a high degree of ambiguity and uncertainty.
In spite of these problems, Ezer argues that customary law, if developed in a manner that harmonizes local culture and international human rights standards, can promote “a global human rights consensus” that will ultimately advance women’s rights in Africa. In particular, Ezer emphasizes that, in order for customary law to have any meaningful effect for women in Africa, it must operate within a human rights framework. In this way, local culture cannot be used as an excuse or rationale for discriminatory practices such as the exclusion of women from inheritance rights. Ezer also suggests that customary law, if developed and used in the manner described above, can strengthen and complement the statutory law filling gaps in the legal system by strengthening communities and having a prophylactic effect on disputes and disagreements. Ezer further goes on to describe the general need for customary law to be a more defined, regulated, and formal entity, stressing the importance of incorporating female leaders into customary justice structures in order to promote positive views of female leadership.
NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).