Why the Law
1. Why law matters
In relation to the question of whether the law changes society or whether society that leads to a change in the law, debates revolve around the inquiry which of the two should influence the other. There are two schools of thought. One argues that law is an instrument of change and paves the way for social reform. The second argues that it is society that changes first while law lags behind.
In reality the relationship between law and social change swings like a pendulum and can go either way. However, changes in the law have not always been beneficial to women. In the transition from colonialism to independence, the rights of women under customary law were lost. The same rights have been largely been overlooked in international laws pertaining to women’s rights such as CEDAW.
2. Law as an instrument of social change
Law has been particularly useful in leading by example by changing society when there were blatant and gross violations of human rights, particularly women’s rights and particularly under cultural practices that were clearly harmful to women Examples can be seen in India where law reform led to changes in practices and customs including the 1829 abolition of the “Sati” system, a cultural practice where a widow was burnt or buried live along with her deceased husband in what was considered an act of honor.
During MIFUMI’s campaign on bride price people asked why we did not allow culture to evolve. The suggestion was that left on its own, bride price would evolve and slowly die out. Culture is not static but is constantly evolving to reflect changing ethics and morality in society.
3. Post-independence constitutions and gender
When the African nationalists were celebrating the dawn of independence and drafting what came to be dubbed the African Independence Constitutions, they applied the values of international law, in which the Universal Declaration of Human Rights (1948) had declared that all men were equal before and under the law. The African nationalists did not appreciate that women were in many ways not yet equal to men. What was missing in the transition to independence was the issue of equality as it pertained to women’s rights.
Many women were still bound by customary law which placed them at a disadvantaged position compared to men. The process of reform subordinated the participation of women compromised the interests and perspectives of women. Furthermore, the new constitution writers excluded women from the process of law reform which meant women’s interests and perspectives were also excluded. It can be argued that the the very structure of law, has been built on the silence of women. Legal scholars have argued that women were “doubly jeopardised” in the transition from colonialism to independence, because patriarchal attitudes entrenched in customary law were imported into national law (Oloka and Tamale, 1995).
** We have seen that laws lag behind social change, in terms of women’s rights, so it is important to critique, tackle, reform and most importantly transform the law so that women can come to be at a level with men, at least in terms of law.
4. Laws, CEDAW and universal norms
As women celebrated the new Universal Bill of Women’s Rights (CEDAW), they did not pay adequate attention to the fact that women were not a homogenous group. Not all women are ruled by universal laws and norms. Some women are poor and illiterate and are primarily governed by customary laws and norms.
The lawmakers and reformists of CEDAW (the Convention on the Elimination of All Forms of Discrimination Against Women) were not able to address issues such as bride price and polygamy or even female genital cutting (FGC). This is the kind of gap that organizations such as MIFUMI can fill, because we traverse the borders between international human rights and cultures and norms as they pertain to the lives of ordinary men and women in African communities.
MIFUMI, together with its Champions and social movement activists, is in the privileged position of acting as an intermediary between those who make the laws, and those who live the experience the law is meant to safeguard in particular contexts. MIFUMI plays a critical role of interpreting human rights law in the language that the local people and women in communities can understand, and to take their stories and frame them in national and international human rights language.
5. FGM, polygamy and the law
In Africa women have pushed for laws against cultural norms and practices that were harmful to women. These include the practice of female genital mutilation, which became the poster child of harmful practices. However, one might wonder why issues such as polygamy and bride price have not been in the ‘text’ of some of the laws that have shaped African women’s rights such as The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also known as the Maputo Protocol which have prohibited harmful practices such as female genital mutilation. Although the Protocol does not name practices such as bride price and polygamy although it can be implied that they are included under harmful practices.
Society left on its own takes a long time to change and it is women and children that pay a high price for this. The issue of polygamy is an example of practice where law could be used as an instrument of social change.
6. The 1990s: the decade of human rights
The decade of the 1990s has come to be known as the decade of human rights, where ‘human rights’ became the dominant moral vocabulary in foreign affairs. It is also the decade in which it was declared “Women Rights are Human Rights’ famously by Hilary Clinton at the Beijing Platform for Action during the 1995 Fourth World Conference for Women which marked significant turning points for the global agenda for gender equality.
This period also saw a rise in life narratives which tell or document human rights violations. It is therefore not a surprise that it is also the decade in which MIFUMI began its work on violence against women and opened the first domestic violence advice centre in Uganda, near Mifumi village.
7. In conclusion
In the recent years we have seen many achievements by women’s rights organisations and activists from around the world resulting in many reforms in the law on women’s rights. But in order to create and reform laws that are specific to the African woman who is still subject to customary law, we still have a long way to go. The Women’s Movement began by dismantling FGM, partly it is argued because western feminists shone a spotlight although their method of reform has been criticized by African feminists (but that’s a subject for another debate).
MIFUMI has done very well in tackling the harmful norm and custom of bride price. Other harmful norms still exist, such as polygamy, wife inheritance and child marriage. The landmark ruling by the Supreme Court that outlawed bride price refund will hopefully open the way for these practices to be examined as human rights violations.
For those practices where laws have been enacted, much still needs to be done towards enforcement of the law. We need vibrant social movements to transform societies and bring about the desired change. We need the resources to enforce it laws which in turn requires goodwill from the government. We need all this to create living laws that protect women and promote their advancement.
MIFUMI will continue with Public Interest Litigation, to move courts to pronounce themselves on issues that violate women’s rights, on behalf of those women and children who do not have the means to access courts of law.