Customary Law and Woman’s Rights within the African System of Human Rights Protection

Customary Law and Woman’s Rights within the African System of Human Rights Protection | Maria Beatrice BERNA

Abstract: Of all the regional law systems, the African system offers a peculiar place to moral values – a fact that is demonstrated by means of the African Charter on Human and People’s Rights which recognizes a special role to the African culture. The legal implementation of African traditions has determined, within the African nation-state, the establishment of a specific legal system that is organized upon two main levels (we refer to customary law and statutory law). Consequently, we can upheld the idea that this legal duality strongly impacts the sphere of the juridical protection of women’s rights; this is obvious as the traditional African values contain provisions that challenge the principle of gender equality meanwhile, statutory law is consistent with Western-inspired norms according to which gender equality is deemed as essential. In our paper, we aim to assess the issue of gender equality within the context of legal pluralism that is determined by the co-existence of customary law and statutory law by bearing in mind two fundamental hypothesis: (1) customary law is built of African moral traditions; it is unwritten and orally transmitted thus being adaptable to ever changing social realities; (2) statutory law is, on the other hand, written, unalterable and in agreement with international regulations that are destined to human rights protection and which are taught, by African scholars, to be the creation of Western legal schools. Within this framework, our analysis will take into consideration juridical institutions belonging to family law like marriage or divorce; furthermore, we will concentrate upon the manner in which these African customary practices influence the juridical protection of women’s rights. From the methodological point of view, we will use the hermeneutical method because all the dispositions belonging to customary or statutory law will be construed within a personal perspective.

Keywords: customary law, statutory law, customary practices, women’s rights.

DOI: http://dx.doi.org/10.18662/lumenlaw.2015.0401.05

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