Gender, Discourse, and Customary Law in Africa – Article by Johanna E. Bond

From Volume 83, Number 3 (March 2010)
DOWNLOAD PDF

Around the world, efforts by states to accommodate cultural pluralism vary in form and vigor. Some multiculturalist states cede to cultural minorities the authority to govern in certain substantive areas, such as family law. Not surprisingly, feminists have raised concerns that a state’s reluctance to govern in areas traditionally seen as “private,” and leaving those areas of law to customary legal systems, leaves women within those minority communities vulnerable to discrimination. The potential clash between multiculturalism and equality has been the focus of much theorizing in the last decade. Much of the discourse has been abstract, polarizing, and minimally productive. Furthermore, the ways in which women act with agency, engaging with and reformulating cultural policy, has received insufficient attention. Many women value cultural identity, even as they work to eliminate discrimination within their cultural communities. 

The international human rights community, however, has not always viewed women as committed, active members of their cultural communities. By viewing African women almost exclusively as victims of their culture, the international human rights community has historically undervalued the potential for African women to reformulate cultural policies within their communities. The two primary human rights treaties for the promotion of gender equality in Africa, the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW” or “the Convention”) and the African Charter on Human and Peoples’ Rights (“African Charter” or “the Charter”), are dismissive of culture and gender equality, respectively. The Protocol to the African Charter on the Rights of Women in Africa (“the Protocol”) attempts to remedy the shortcomings of CEDAW and the African Charter and offers new hope for promoting gender equality on the continent. In addition to strong substantive rights, the Protocol provides important procedural rights to ensure that women have a voice in the ongoing examination and reformulation of cultural practices and customary law.


 

83_509