Written by Doreen Gaura for Bokamoso Leadership Forum
In spite of the progress that has been made thus far regarding public policy and legislation to ensure gender equality and bodily integrity in a lot of Southern  Afrikan countries there continues to be a barricade impeding the smooth flow of these policies from the public/ political space into people’s personal spaces and more specifically the home. It has become abundantly clear that it is not enough to just have laws written down on a piece of paper that the majority of people do not know exists or do not understand or cannot identify with.
I recently attended a symposium organised by the Women’s Legal Centre, Heinrich Boll Stiftung and Bowman Gilfillan in Cape Town, South Africa, on customary law and women’s rights. The recurring theme of the conference was the need to find an effective way of marrying customary law/ traditional justice systems with state constitutions which are essentially designed to ensure equality and entrench the inalienable rights of all people. Yet, of course we know that in most cases as in some countries “all” does not include their queer citizens, within that state. The attempt to reconcile customary law with common law especially as it regards gender equality is nothing new as this has been the aim, at least in theory anyway, for decades and a question remains: is it working?
The answer is both yes and no. Yes, in the sense that a lot of countries in the region have either signed or signed and ratified various international and regional instruments that speak to the advancement of gender equality such as the Convention to Eliminate all forms of Discrimination Against Women (CEDAW), Protocol to the African Charter on Human and People’s Rights on the Rights of Women, Convention on the Rights of the Child (CRC), African Charter on the Rights and Welfare of the Child (ACRWC), Beijing Declaration and Platform for Action, the United Nations Millennium Declaration, the SADC Protocol on Gender and Development and the Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children and most — have gone as far as legislating the provisions in most of these conventions. However, it is a ‘no’ in the sense that implementation in most countries has left a lot to be desired as well as the fact that there hasn’t been substantial buy-in or internalisation of these principles and laws as they are presented and understood from the majority of the public.
Various factors play into the perceived resistance of these ideals along with obstructions to effective implementation but here I will focus one of the perceived main obstacles to entrenching human rights on the continent: cultural and traditional practices. I am of the view that the differences between common/constitutional law and customary law are that to most people, the former exists only in the confines of the public and political domain while the latter exists both in the public and the personal spaces so in other words, it is a matter of accessibility and ownership.When I speak of accessibility, I am referring to the accessibility of the language of these modern and progressive laws as well as accessibility to and of the structures, the advocates, officials and enforcers of these laws. Regarding ownership, as far as most people who these laws are supposed to serve and guide are concerned, these laws belong to the white people, the economic elite and politicians whereas customary laws and culture belong to “us” – the rest.
Having worked in the gender sector in South Africa for a few years, I have noticed that this disconnection between common law which represents the public space and customary law which essentially represents the personal spaces is not limited to the rural and/ or uneducated public. They also affect the role players and service providers, including some activists and legal professionals, as they too have personal realities influenced by the very same personal politics as their beneficiaries such as culture. Sylvia Chirawu, National Coordinator of Women and Law Southern Africa (WLSA) in her paper All that Glitters is Not Gold: Challenges Faced by Women in Implementation of Laws that Outlaw Harmful Cultural Practices in Zimbabwe highlights:
Anecdotal evidence shows that very few African women would marry under general law without lobola having been paid
Due to colonialism and its influence on indigenous traditional legal structures and the need by the colonised to assimilate, we see people living dual realities with many of us balancing our traditional customary identities with our modern, colonial and post-colonial and global identities. As a result we are CEDAW wielding, Simone de Beauvoir quoting warriors by day (in the public and political space) and culture preservationists by night (in the personal spaces) and we seem to be struggling as activists, professionals, service providers and experts ourselves to make the two aspects of our politics and our realities meet.In my opinion it has a lot to do with two facts and these are our need to preserve our autonomous cultural identities as empowered Afrikans as well as thewrong notion that our customs and their laws are inherently opposed to the realisation of human rights.
Our customs and laws are not inherently opposed to human sights
There is no such thing as a homogenous Afrikan culture/tradition but there are similarities and recurring themes across most, if not all, indigenous cultures and traditions and these include the preservation of the community and the protection of its individuals. Bearing that in mind, a many customary laws — even the ones that are being harmfully practiced today — were essentially designed to ensure this and not the opposite. The subsequent perversion of our cultures and laws can be attributed to the contamination by and influence of the cultures of the colonisers. Thus, a lot of things that we claim to be part of our culture or our tradition may not actually be ours to begin with and our communities were more inclusive and tolerant than we are led to believe.
We must remember that indigenous customs were not always essentially patriarchal or homophobic, for instance, and despite popular belief gender identity and gender relations in Afrika prior to colonisation were more egalitarian than has been alleged and certainly more egalitarian than European cultures were. If anything, it can be argued that colonialism introduced and facilitated the marginalisation of women and LGBTI people in our societies.Customary law is by its very nature an evolving system. Instead of calling for the banishment of customary laws and cultural practices in a bid to ensure human rights and equality, we should facilitate this societal evolution ourselves. Without interference from outsiders, we can create something context specific and workable that we can all call our own. This can start with understanding the authenticity and origins of a particular customary law or what necessitated it and what issues it intended to address and ultimately the relevance of the said law in the present society and/or whether modification or erasure is necessary and how this can be done. Justice Westhuizen, in the case of Shilubana and others vs. Nwamita and others, aptly pointed out:
The involvement was stagnant during the colonial and apartheid era but it should not continue and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated.
Ultimately, I am of the opinion that there needs to be a realisation that regardless of one’s level of education, exposure or class there appears to be more of a connection, be it at internal or environmental and conscious or subconscious levels, between their personal and their cultural/ ethnic identity than there is between their political and the personal. I would like to posit that a connection between the political and the (evolved and evaluated) cultural be established and perhaps by doing so we may see the required and necessary integration of our political rights and bodily integrity into our homes and making those spaces safe for women and girls.
 In this post (and on this blog) Afrika is spelt with a ‘k’ in line with the author’s Afrikan activist affiliations. Most Afrocentrists use the letter ‘k’ instead of ‘c’ as way of acknowledging that ‘Africa’ is not the true name of the continent. When one speaks of Afrika, they’re bringing an Afrikan-centered view to the meaning.