Customary law and gender renegotiation in Africa

Rayanne L.

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Customary law and gender renegotiation in Africa

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Abstract

The Colonial Period brought various and drastic measures of control to African communities which had previously been autonomous and self-regulated. The creation of colonial governments, institutions and courts brought radical and lasting change to individual lives and African societies as a whole. In British Colonies, a primary function of colonial control became known as “Native Customary Law”. Through this invented legal structure, colonial officials and African men collaborated to design legislation that disempowered and subjugated African women. This essay will discuss the various avenues through Customary Law that women’s status, rights and obligations were re-defined. Through what was termed “Customary Law”, Colonial governments and African patriarchs were able to legally dominate African women and limit their rights in a variety of ways, most significantly through migration, marriage and medicalization legislation.

Introduction
The significant aspect of Britain's colonial policy
Patriarchal control
The major contestations of Customary Law
Clash of colonial and African patriarchal forces
Control over the migration and travel of women
The marriage legislation
Conclusion

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[...] Hamilton declared marriage law of the Protectorate expressly omits native union from its purview . and does not deal with them as legal marriages.”[22] By outlawing any un-colonized marriages, a wife married under Customary Law had no right in a colonial court. Women were not persecuted or imprisoned under customary courts.[23] While in some ways this protected female liberation, it more importantly erased women's agency in marriage disputes and ultimately in marriage. Women were creates as dependencies and insignificant actors in customary courts. [...]

[...] Shadle, Brett. “Bridewealth and Female Consent: Marriage Disputes in African Courts, Gusiiland, Kenya”. Journal of African History, vol.44, no.2, (2003), p Ibid, p.259. Kenya National Archives: Provincial Commissioner/Central Province 1/4/1 Kiyuku District Political Records May 1912. Cited in Kanogo, African Womanhood p.16. Ibid, p.21 Ibid. Kenya National Archives: Attorney General 4/2790 PA McElwaine, Crown Counsel to Acting Senior Commissioner Mombasa, Pagan Women Deserting' October 1923. Cited in Kanogo, African Womanhood p.21. Shadle, “Bridewealth and Female Consent” p.255. Ritongo Kuja Case 927/59. [...]

[...] Missionaries, too, became highly involved in this debate, providing and urging legal action for women who had been forced into the procedure.[11] In this case the Native Customary Law was not easily accepted by colonial officials and by the end of 1929 the debate had reached both houses of the British Parliament.[12] The circumcision issue drew increased colonial attention as anti-circumcision voices began to preach the effect of inhibited child birth. The official British opinion was that obstruction causes terrible suffering at childbirth, and the first child is rarely born alive.[13]” This threat to the colonial labor force and economy brought much more attention than did the threat of physical abuse or mutilation of African women. [...]

[...] Kanogo maintains that diverse situations, women adopted negotiated solutions, out rightly violated conventional norms, or adapted novel responses to intractable problems.[30]” Customary Law, while also assisting in African female subjugation, allowed women the power to bring grievances against men which was a very new capacity for most. Women gained the ability to take their husbands or fathers to court. Though not always successful, this ability shifted the control in African society and allowed women to “succeed, however slightly, in reconfiguring local gender norms.”[31] African Customary Law was a complex and shifting institution. Its rulings may have been contradictory, allowing one woman new freedom in her marriage while sentencing others to continued or increased subjugation. [...]

[...] Robert Waller calls the example of the juvenile native court in Lagos, Nigeria, which made its focus female traders thought to be in “moral danger”, rather than the widespread criminality of male youth in the city.[4] The courts of Customary Law were sites of debate and even “extensive cooperation between colonial administrators, missionaries and indigenous authorities”[5] over control and subjugation of African females. One of the major contestations of Customary Law came with medical laws, customs and regulations. Forced changes in medical practices and treatments were a new imposition on African women which drastically changed their lives. [...]

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