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Lessons from the past.

As nation states emerged through the establishment of artificial borders, as complex changes set in through the introduction of market economies and land ownership, and as the practice of Islam and Christianity became widespread, customary practices were unable to provide adequate guidance in these new situations. Gradually, the system of customary laws, however entrenched, weakened with the new and fundamental legal changes that were sweeping across communities (Obiora 1995, p. 581). When change was sought through such top-down legal reform, two things happened.

First, these external authorities imposed legal norms that arose from a different vision of society, one based on the norms of individual rights and liberty that underlie social organization in the West. A classic example is the Ethiopian experience as described in Chapter 2. Such intervention weakened the important principle underlying most customary laws--"communal" harmony and focus on obligations--without providing adequate security under the new system, particularly for women. In addition, it subverted the natural, albeit slow, evolution of customary practices. In many cases, it introduced rigidity and stagnation to what had been an evolving process for centuries (Obiora 1995, p. 5822).

Second, the formal system of law that was introduced in many of these African countries also resulted in centralizing what was previously a highly decentralized customary legal system. The agency of normative authority in many areas, particularly in the case of land, was shifted from the clan or clan elders to an external state authority. In Ethiopia, for example, the principles governing personal relationships were stated in the Civil Code of 1960. Legislative authority shifted to an external ruler, such as the colonial rulers who ruled through their nominated chieftains and leaders; or in post-colonial Africa, to a central entity, often the national legislature. The duty or obligation to implement or enforce the laws was also shifted from the authority of the clan or elders to unfamiliar units such as the police or other commissions, who derived authority from the state. The formal system also centralized the dispute-resolution institutions in many cases. Disputes were now adjudicated by external authorities, involving judges who were trained in the English systems. Where disputes continued to be settled by local authorities as in Ethiopia, lack of capacity and knowledge among male arbitrators reiterated invalidated customary practices.

External interference--whether by the colonial powers or post-colonial leaders--ultimately weakened the indigenous or traditional systems, reducing the effectiveness of their rules and sanctions and depriving them of the participatory processes by which they organized themselves and managed resources. These centralized systems of legislation, implementation, and dispute resolution were so unfamiliar, complex, and costly to enforce that together they not only failed to protect the interests of women, but in many cases adversely affected them, weakening even the protection they had enjoyed under the customary framework.

At least two broad lessons emerge from this experience, and these must be studied and understood as African countries move on to further reform their personal laws. They are formulated below as questions, and are discussed in detail in this chapter:

* What is the basis for change?

* What are the legal tools for change?

Basis for Change

The newly introduced legal frameworks in these countries significantly affected the lives of men and women, at least on the books, despite initial attempts in some countries to exempt indigenous communities from drastic changes in personal laws. In all cases, men and women affected by these changes had no say in determining the nature of the changes imposed on them. They had no opportunity to determine whether these changes were suitable or required, given their world view. Consequently, progress meant for them the imposition of externally driven norms, established and determined by unfamiliar institutions.

Even in Ethiopia, where a native government introduced the new legal system, the basis for the new rules was as alien as the systems imposed by the colonial regimes in the other eastern African countries. In effect, they introduced a vision of personal relationships that was and is not fully shared or appreciated by the majority of Ethiopians.

In all countries under discussion here, customary rules and traditions evolved that were intended to ensure social harmony and maintain equilibrium, perpetuate the lineage of the tribe or clan, and protect members from external forces (Woodman and Obilade 1995). African communities did not see this social equilibrium as resting on a fine balance of individual rights, but rather as focusing on the tribe or the clan as a whole. "It was not the gladiatorial law of the kind associated with the individual-rights-centered, Graeco-Roman inheritance" (Woodman and Obilade 1995, p. 369). Ilumoka reiterates this view of the concept of rights in the context of gender equality:
 The discourse of rights has had little resonance for the majority
 of the African women, and the national and international rules and
 procedures for enforcement of rights have rarely been their arenas
 of struggle ... This may partly be because women have generally not
 seen themselves as organizing in opposition to men, but for social
 justice. In this sense, although many women see their rights as
 unquestionably human, they do not define themselves solely in
 relation to men.

Kinship was the articulating principle of social organization (Aylttey 1991; Holleman, 1995). The interests of the individual were subordinate to those of the group. Although the degree to which the "we" or the "I" was defined varied from group to group, the definitions were a collective decision of the group as a whole in most traditional African communities. This affiliation with the group was important for both men and women, providing an identity, reputation, and pride. A complex set of social and traditional obligations protected members of a larger group, a clan, or a tribe. As Aylttey argues, the emphasis on collective ownership of resources was valued. The clan or tribe held critical resources collectively and allocated their use to different households.

Concepts of justice were also perceived differently. In western traditions, justice was seen as the rejection of inequality (Woodman and Obilade 1995, p. 22) and the application of notional or formal equality. In African communities, this was not so. As Woodman points out, the best-articulated form of justice was one of "distributive justice," in which age, title, and relationships are important factors. Within a polygynous household, for example, seniority, which was determined by the date of marriage, was a critical factor; among children, it was determined by sex and age. Treating all wives equally would not have been just in the eyes of many households.

Misconceptions of the underlying principles of many customary norms have also been the basis of many legal reforms, resulting in the formulation of misconceived solutions to problems confronting women. For example, to ensure the survivability of a group, many African communities demonstrated a tendency to lay claim to both women and children, and to guard the reproductive capabilities of women. In addition, in patrilocal communities, a woman, once she married, was not considered a member of the community of her birth. The custom of bride price thus evolved, reflecting partly the value that was placed on a woman's reproductivity. Also, as Obiora argues, "customary-law marriage is a contract or an alliance between the families of the spouses; only in a secondary sense is it a union of the spouses as individuals" (Obiora 1993, p. 222). When a woman was widowed, therefore, she was absorbed into the household of her husband's brother. Once the brother-in-law claimed her, the clan or tribe was obliged to maintain and ensure her safety and needs. In some cases, it appears that she could choose to live with someone else, in which event she or her kin would have to return the bride price that was paid to her family upon marriage. If the group did not wish to claim her, she was free to return to her native village and retain the bride price (World Bank, 1997).

Scholars argue that viewing this practice as the right of the deceased's brother to inherit the widow is misleading, and is based on ignorance of the norms that underlie the practice (Woodman and Obilade 1995, p. 369; Aylttey 1991). Then, the obvious solution would be to seek the immediate abolition of the system. If, however, the practice is correctly characterized as an action that stresses the need to ensure the perpetuity of the tribe and to protect the widow and her offspring, however, the legal solution would not be simply to ban the perceived practice of the "inheritance of widows", but to do so only after providing alternative safeguards to protect their economic and social interests. As Obiora says, in cases like this, "rather than probing the indigenous justification and function of the practice, [they] decontextualized and situated it in an incongruous frame of reference" (Obiora 1995, p. 589), thereby finding highly inappropriate solutions to address the issue.

Experience from other developing countries reiterates the important lesson that legal solutions not moored in the cultural context of the communities to which they are applicable are often ineffective or costly to enforce. The treatment of the "dowry" (13) system in India illustrates the dangers of laying down norms inconsistent with general goals and aspirations. Stridhana (from which the concept of dowry evolved) was the only property that a woman could own. It came to signify her share in family property; when she received it (usually at the time of marriage), she also lost any further claim to the family property (Shastri 1959). With increasing scarcity of resources, coupled with the woman's inability to generate any new household resources, dowry became something that was bartered and demanded by the bridegroom's family or offered as an incentive for marriage by the bride (see Obiora 1993, p. 221 on the issue of bride price in Africa).

When the practice of Stridhana was seen to result in the harassment and even murder of brides unable to provide adequate dowry, the Indian government intervened with the 1961 Dowry Prohibition Act, which prohibited the asking for, taking of, or giving of a down: in relation to a marriage. (14) This was considered just and fair to women following the 1957 codification of Hindu personal laws that provided women with equal rights of inheritance to all but ancestral property of joint families. (15)

According to a report issued to the Indian Parliament, however, dowry deaths increased from 186 during 1985 and 1987 to 922 in 1988. Some of this increase may be attributed to the fact that they are increasingly reported because the perpetrators can be punished more easily, but it is clear that the law has not successfully tackled the issue.

Despite the well-intentioned legal reforms, the top-down replacement of traditional practices with alien norms has added to the disempowerment of women. Male heirs continued to inherit family property in predominantly patriarchal communities. At the same time, the ancient and accepted obligation to provide the bride with a share of the family property has been considerably weakened. Where women are unable to exercise their newly found rights, their economic vulnerabilities seem to have been actually increased by the law.

Experience in industrialized countries supports the lesson that where legal reform of personal relationships has been effective, it has been because that reform has acknowledged changing public opinion and has been closely linked with underlying social and economic interests. Dicey, the famous English jurist, opines that the English legal system owes its effectiveness to the fact that it developed on "empirical approaches that stud[ied] ... beliefs, convictions, sentiments, accepted principles, [and] firmly rooted prejudices, which, taken together, make up the public opinion of a public era." Dicey argues that a legal framework can be sustainable only when the "law will reflect local reality [and] local reality will no longer have to adapt to law"--the latter, he says, being "a main reason for the malfunctioning of the legal systems" (Gopal 1995, p. 16). Writers such as Walzer have also supported the view that the rights of men and women "do not follow from common humanity; they follow from shared conceptions of social goods; they are local and particular in character" (Okin 1989, p. 62). Although these arguments continue to be contested, in the opinion of this writer, they are clearly valid, even when one considers the emergence of women's rights in the West.

For example, the doctrine of individual liberty that pervades family law in England has its roots in the Magna Carta of 1215 AD, which represents a critical point in and the basis for the development of this concept in common law. The Magna Carta represented an assertion of individual liberty and the rule of law against the tyranny of King John, albeit for a selected few at that time. This doctrine of individual liberty provided the impetus for the concepts of equality that lent themselves to the theories of social contracts in family law. Social contract theories permit family members to deal with each other on terms and conditions determined by the individuals themselves. Individual rights are thus the basis of many norms that underlie family law in common-law countries.

However, despite the early emergence of the concept of individual liberty in England, it was not until the Married Women's Acts of 1870 and 1882 that married women were permitted to even own and hold property. Not until 1964, for example, were wives given equal shares in any income generated from housekeeping allowances provided by the husband. Fewer children, the availability of household appliances, growth of the service sectors, and a number of other such factors increased the number and variety of jobs for women, providing women with greater opportunities to be economically self-reliant. This then provided the impetus for them to demand real change in the laws that affected their access to economic resources. In this, they were encouraged by the feminist movement across the Atlantic.

In the United States, changes in personal matters came as a direct result of changing public opinion. It was only after 1960 that gender biases were increasingly addressed through revision of laws (Boneparth 1982, p. 2). (16) Policies that protected the rights of women within their homes reflected shifts in public opinion that occurred as women moved in large numbers into the employment market--the result of greater education, inflation pressures that created the need for a second household income, and significant growth in demand for women workers. The increase in divorce rates, urbanization of communities and changes in demographic profiles, the introduction of labor-saving devices, and the lack of support for women who were single parents contributed to this growing change in public attitudes. The emergence of strong women's lobbies and representative groups also played an instrumental role in the change of attitude toward women's rights.

Despite this progress, it was only in 1981 that the U.S. courts interpreted the U.S. Constitution as prohibiting laws based on the notion that the husband was the head of the household (Kinchberg v. Feenstra, 450 U.S. 455 [1981]). Laws were not immediately expunged from the books, but could no longer be enforced; it was only in the 1990s that such principles were laid to rest at law (Baer 1991, p. 128).

In conclusion, in Africa, the colonial rulers and their successors introduced personal laws based on concepts of individual rights, supporting a vision of personal relationships that bore little connection to the reality in these countries (Chanock 1989, p. 83). Laws and judicial cases intervened in critical stages of a woman's life--birth, matrimony, divorce, custody, and inheritance--introducing new norms that governed the allocation of resources at these important junctures. The concepts of equal rights to inheritance and equitable division of property may have been appropriate for a minority of urban women living in nuclear families outside their clan and tribes, and for whom there were no other safeguards. But prevailing conditions were and continue to be very different for the vast majority of the rural population.

For most women, there exist none of the social and economic conditions that had galvanized gender-sensitive legal reform in industrialized countries. The majority of women continue to be part of rural households.

Socially, women live within clans and tribes that are strongly committed to patrilocal traditions. They do so in some cases out of choice, and in other cases out of lack of choice. Their mobility is highly restricted, and their ability to live outside their clans or tribes, except through commonly accepted arrangements such as marriage, is virtually non-existent. The division of labor has not changed, and women have little leisure time and little or no access to other economic opportunities.

Economically, women remain highly dependent on others, usually the male members in their households. They undertake subsistence farming, but they are not yet a part of the formal labor force. In many of these communities, women depend on the surrounding environment for their livelihood, for brewing liquor and gathering firewood and raw materials for handicrafts, and so on. Degradation of the environment and, in some cases, legislation of forest and community lands have significantly weakened this safety net.

In this socioeconomic context, a simple rights-based approach to the allocation of economic resources cannot provide an efficient or equitable solution. Given the high levels of inequality of opportunity between men and women and the relatively greater vulnerability of women, a rights-based system often affects women adversely. For example, where grounds for divorce are similar, women often suffer because they are more likely to be the economic victims of liberal divorce rules.

As Rhodes says, the "law's traditional focus on equal treatment cannot cope with situations where the sexes are not equally situated" (Rhode 1989, p. 319). In the context of tribes and clans that lived on land possessed for generations by their forefathers and that strongly maintained patrilocal traditions, such laws destabilized tradition and weakened the checks and balances that protected women under traditional systems. The emergence of new ways of life also strengthened this weakening of customary laws and practices. At the same time, the new legal framework did not adequately support women and could not protect their interests. Most women found that their social and economic vulnerability increased significantly. The protective traditional socioeconomic groupings eroded, but they were not able to exercise their newly found rights in a manner similar to that of men.

Legal Tools for Change

The legal tools used to seek change are another important factor that contributes to the overall achievement of any legal reform process. In the eastern African countries under discussion, it was equally important in the failure of the legal frameworks that the tools used to usher in change were imported and implanted from other countries. They involved highly centralized mechanisms of legislation, implementation, and adjudication, alien to communities that were used to decentralized and local systems of rule-making, implementation, and dispute resolution.

Existing research provides some evidence of the traditional legal systems that existed in Africa. Research suggests that among African tribes and clans, respected leaders and elders made the laws. Although these law-makers were mostly men, it seems that older women and grandmothers also played an important role; however, they did not have a formal role in the application of the rules in some of these patriarchal communities.

Another important characteristic of traditional systems was that customary laws were based on religious beliefs and were considered blessed by ancestors. As Ebo states, the "spiritualization of law and its sanctional sources and, indeed, of life in general, operates to surround law and its procedures with an aura of sanctity and to endow it with the instantaneous ability to evoke voluntary compliance with its dictates as an exalted religious obligation" (Woodman and Obilade 1995). These systems and procedures provided a far more powerful type of sanction--such as being disgraced before the clan or tribe (Batten 1954, p. 146).

Customary laws were also flexible and expected to evolve with changing situations. Customary courts, therefore, did not follow the principle of judicial precedents. Rules and laws were collectively decided. They could be discarded if found irrelevant or unsuitable to evolving situations (Aylltey 1991, p. 62). This gave the process a flexibility that was necessary to resolve cases in a manner contributing to social harmony, and one not necessarily available within a stable set of predictable rules.

Separation between rule-making and dispute resolution was not as marked as in western systems. Often, the same elders who made the laws were invested with the authority to settle disputes. The two processes were closely integrated and allocated to the same institutional authority. In most cases, the stakeholders perceived the system as fair in its dispensation of justice.

Dispute resolution was not always an arbitrary process reflecting patriarchal authority, but often involved decisions arrived at through discussion and consultation with members of the household (Aylttey 1991, p. 41). The process was decentralized and participatory, reflecting to varying degrees a pluralistic vision for the clan or the tribe as a whole. "The ... system of control of conflict by the peaceful settlement of disputes was an extraordinary achievement. It was a complex system of interdependent parts of much ingenuity and sophistication" (Aylttey, quoting Carlston 1991, p. 42).

There is also evidence to show that in many cases, disputes were resolved by discussion and deliberation. For example, among the Tiriki of western Kenya and likely also among many other tribal groups, both adult men and elderly women were free to seek permission to interrupt or ask any man or woman to provide testimony during a judicial proceeding. It was also common to provide an opportunity for an aggrieved party to appeal a decision at the first level (Aylttey 1991, pp. 42-49; World Bank 1997, p. 62).

Adjudication was always by impartial elder members who would have the interests of the whole group in mind. Fairness was a critical principle, and the focus of the resolution was on relationships, not on punishment. Wrongdoing was usually punished through payment of compensation by the wrongdoer, except in extreme cases such as murder. This was important because, after the dispute, it was imperative that the disputants could return to living together harmoniously, believing that justice had been done (see opposite view in Chanock 1989, p. 79, and 1995, p. 39).

Newly introduced legal systems and institutions were very different. They were centralized and resembled institutions that had evolved to suit the needs of emerging market economies in largely industrialized countries. These institutions were characterized by a rule of law that was formulated not on the principle of consensus, but on the process of majority rule. These rules derived their authority not from tribal or clan authority, but from sanction of the state.

The newly introduced dispute-resolution systems were also more formal, and enabled easy access only to a minority. Complex procedural rules, court fees, attorney fees, and protracted delays in settling litigation together formed significant barriers that constrained the poor, particularly women, from seeking justice through the formal systems. Unlike earlier systems, the formal systems did not take account of the fact that few men or women were literate. A legal system of enforceable and registrable rights, based on written laws and records, was perhaps not appropriate for the majority of the people.

Under the new systems, disputes were settled by external authorities who were different from the rule-makers. The dispute settlers, judges, or magistrates were agents of the state and were not perceived as having any religious sanction, thereby reducing the sanctity of these institutions. The credibility of the process was also diluted because arbitrators or judges were not accountable to the disputants under the new system, but were appointed and monitored by an external authority.

The new system of dispute resolution was no longer a participatory process of resolving disputes. Judges were expected to resolve disputes impartially, consistent with the stated law or with other judicial precedents. Punishing the offender was an important principle; the focus was not on ensuring harmonious relationships as in traditional systems. The imported systems had evolved in conditions where urbanization and industrialization ensured that even disputing members of a family would not be forced to live in the same area and remain in contact with each other. The social relationship between the parties was therefore not a critical factor underlying the formal method of dispute resolution, which was again another important difference.

The new dispute-resolution system, therefore, did not serve the interests of the majority. It assisted in protecting the interests of colonial and other rulers in resources they had claimed from the indigenous communities, and permitted the collection of taxes and duties levied to maintain the colonial apparatus (Aylttey 1991, p. 398).

Given the cultural and social traditions, women were relatively more alienated from these dispute-resolution mechanisms, which were controlled by outsiders with whom women themselves would not choose to have contact. Also, it would be more difficult now to take a dispute to these external dispute-settlers, have it settled in an adversarial fashion, and then return and live within the same community.

It must also be generally noted that the experiences of women who turned to formal institutions were also not positive (Stewart 1990, p. 167). The judiciary acted in a limited and conservative manner, applying laws as they perceived them and where they were not repugnant to their morality and principles of justice. (17) Given the legal concepts of judicial precedents and stare decesis, the courts also ignored the flexibility of customary laws and their ability to adapt to conditions. They failed to recognize that by privatizing land, the new laws changed social conditions in a fundamentally radical manner, and ignored the differences between access, control, and ownership. On the contrary, the courts cast an air of permanence on customary laws that had evolved under different socioeconomic conditions, inhibiting the strongest characteristic of customary laws--their inherent ability to evolve. They also ignored the diversity of customary practices, interpreting the laws and practices conservatively and emphasizing principles that were consistent with patriarchal principles familiar to an English judiciary.

For example, until early 1998, the Zimbabweans had valid judicial precedents that recognized women as working for their husbands; therefore, all property they acquired belonged to their husbands, except for gifts or personal income earned through services rendered as a midwife or herbalist. In Jenna v. Nyemba, the court declared that "property acquired during a marriage becomes the husband's property whether acquired by him or his wife" (Gopal and Salim 1998, p. 95). In Khoza v. Khoza, a divorced woman was denied access to communal lands and matrimonial homes, which had been built entirely due to her efforts, on the grounds that she would need to return to her parents' home for residence (Gopal and Salim 1998, p. 97). Even in customary marriages, however, the law has since 1985 provided some rights to the children of such marriages, and has provided minimal support to the wives. When a marriage ends by death, there was no provision for allocation of property. It was only in 1997 that the customary law was amended to permit women to inherit property from parents or spouses. Until then, African women had no rights to their husband's property.

It was no different in Kenya. In Virginia Edith Wambui Otieno v. Joash Ochieng Ougo and Omolo Siranga,1* a wife sought a declaration from the court that she had the legal right to the remains of her deceased husband under English law. The respondents, a brother and a cousin of the deceased, based their case on customary laws. The Court of Appeal held that African customary law was applicable to a person such as the deceased and granted the right to the brother and the cousin. Earlier in Re Ogola's Estate, (19) the same court had held that a customary wife could not claim her deceased husband's estate when he had a statutorily married widow--in so doing, failing to recognize the validity of a customary marriage. In another example, the court held that a father, possessing land registered in his name, had absolute ownership over the land. Even his sons, who had held it jointly with him prior to registration, had no rights to the land. The courts ignored customary law perhaps because it was necessary to preserve the integrity of registered titles for their own administrative and economic purposes. (20)

This is not to say that all indigenous institutions and systems need to be preserved. The Ethiopian experience demonstrates the need to adapt indigenous institutions and processes to modern times, because in their pristine forms customary or traditional mechanisms may no longer be suitable. A survey conducted among divorced women in Addis Ababa revealed problems with the traditional system of dispute settlement, as described in Chapter 2.

In Addis Ababa as in many other urban areas, couples were living outside their traditional groupings and could not turn to elders within their communities to settle disputes. Arbitrators were, therefore, randomly picked from near the courts in Addis Ababa. First, they were strangers. This clearly was a departure from the traditional shimagele, who was accountable to the clan or tribe and whose first priority was maintaining the harmony and interest of the group. Second, shimageles now needed to be paid for delivery of service. Because payment was often linked to the length of time that the arbitration involved, shimageles tried to prolong disputes, taking a longer time to settle them, even though the Civil Code prescribes a time within which disputes must be settled. Third, the women interviewed complained that the arbitrators continued to be men, who were better able to socialize with then-male spouses and were therefore more sympathetic to them. Many women therefore argued for the abolition of the shimagele system. Others, however, argue that experience in other countries demonstrates that women have less access to a formal dispute-resolution process, given the complexity of procedure, the costs, and the time delays that invariably surround such processes. The challenge before the Ethiopians is daunting, but they have generated a participatory debate on the future of the dispute resolution system. They hope that a process of participatory dialogue will increase the likelihood that the final product will be acceptable and in line with the desires of both men and women.

In general, the legal tools used reflected a structure or process that had little in common with previous customary systems. The new systems significantly constrained the meaningful participation of communities in determining the norms that governed them. They effectively converted what was a bottom-up approach into a top-down approach.

In both systems, men were in the controlling position and participation in legal institutions was predominantly male. Although the outcome from a gender perspective was perhaps only marginally different, it must be said that women had greater capacity to be heard in the previous customary system than they did within the formal system that replaced it. Except for a small minority, the majority of women were alienated from the new and formal systems, which remained largely ineffective.

The Challenge for African Leaders

Although the new legal norms based on the concept of individual rights and the formal structures were first introduced by colonial rulers, they were equally acceptable to post-colonial and often very nationalistic leaders. This is perhaps because many of them were educated in Western universities and Western thought, and these approaches represented a vision of society consistent with the doctrines of freedom and liberty that were the underlying themes of many of the independence movements (Obiroa, 1995, p. 576). Having been schooled in Western liberal traditions, thoughts, and languages, many of these leaders would also have perceived a return to traditional mechanisms and norms as a step backward. The rejection of customary practices in fact came to be seen as progressive and modern, and by those terms desirable.

African leaders need to free themselves from this modernist approach to legal reform, as it is one that understands progress or freedom largely in universalist terms (Grenz 1996, p. 4). They must move toward a post-modernist approach that recognizes the historical and cultural basis of effective legal systems. "In Africa, as elsewhere, much of life is lived outside of the law and involves values and patterns of behavior which are different from those enshrined in the state's legal system. In these patterns may be found a repository of customary values which provide better building blocks than those which were legitimized by the colonial state" (Chanock 1989, p. 87).

This recognition will underscore the need to find solutions, in terms of both norms and systems, to specific problems. These solutions should focus on the historical, social, and economic contexts of the particular problems, rather than on unimportant and abstract norms or imported systems. The challenge before African men and women is how to lobby for change in personal laws in a manner that will create less alienating and more enduring solutions to their problems (Ilumoka 1994).

The traditional or customary systems are clearly inadequate, and romanticizing the traditional vision on which these customary laws were based cannot lead to an equitable solution for women in the modern context. In fact, nor would it lead to a just solution for the community as a whole. Turning back is not a solution. At the same time, the so-called modern vision that replaced the customary system with a formal legal system based on a universalist approach has proved equally if not more ineffective in protecting the interests of women.

Any new legal system or tools will need to protect the interests of both the minority elite of educated women and the majority of poor rural women. For the former, the concept of rights and the vision held by the formal system could be a liberating force; for the latter, it may reinforce their dependency for decades to come.

This leads to perhaps the single most important lesson to emerge from analysis of past attempts at legal reform in these countries. A single universalist vision may be too constraining in the search for gender justice. To insist on committing to or finding a single vision of gender justice may prove mistaken in the context of these eastern African countries. In fact, some legal scholars have strongly opposed the view that law can be based on a "shared understanding," because they argue that there is no shared understanding on gender issues, even among women (Okin 1989, p. 67). The new approach to legal reform should avoid trying to impose a vision of an ideal society, because any such ideal would inevitably become outdated with time.

What then could be the basis for a new approach? It is submitted that the new approach should discard the search for a universal conceptual framework, whether it is traditional, modern, or a combination of the two. Instead, it should focus on a contextual analysis of the problems that constrain women's choices and limit their access to and control over economic resources (Rhodes 1989, p. 316, Obiora 1995, p. 589). It should help to ground the analysis of problems facing women within the existing socioeconomic context, and should facilitate a process that would allow men and women themselves to find solutions to addressing their problems, solutions that are practical and shorn of > any ideology as African countries increasingly integrate with the world economy.

Such an approach would focus on and encourage a legal process that permits people to settle their own problems by applying their own norms through a fair and transparent process. As Rhodes states, "detailed blueprints of the ideal structure are less important than strategies to engage more participation in the reconstructive process" (Rhodes 1989, p. 317). In the long term, these processes will enable people to participate in establishing a vision for a system of justice. A new model of justice must evolve in a truly participatory and bottom-up manner, and if the vision that emerges is one that is truly owned and acceptable to the large majority of people, it is irrelevant whether it bases itself on customary or on modern constructs. Such a process-based and participatory approach may ultimately prove a more effective approach to legal reform in the long term. The beginnings of such an approach have perhaps emerged in Ethiopia and Uganda, at least at one level, and are described in the next chapter.
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Title Annotation:Gender-Related Legal Reform and Access to Economic Resources in Eastern Africa
Author:Gopal, Gita
Publication:Gender-Related Legal Reform and Access to Economic Resources in Eastern Africa
Date:Aug 1, 1999
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