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The Impact of the Bill of Rights on African Customary Family Laws: A

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The Impact of the Bill of Rights on African Customary Family Laws: A View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UWC Theses and Dissertations The Impact of the Bill of Rights on African Customary Family Laws: A Study of the Rights of Women in Malawi with some Reference to Developments in South Africa by LEA MWAMBENE Dip. N, LLB (Hons) (Malawi), LLM (UWC) Thesis submitted in fulfillment of the requirements for the degree of Doctor Legum in the Faculty of Law, University of the Western Cape Supervisor: Prof. F.A. de Villiers, Faculty of Law, UWC June 2008 Contents Contents i Key words xi Abstract xiii Dedication xv Declaration xvi Thanks and Acknowledgments xvii Abbreviations and Acronyms xxi Glossary of African Words xxi i 1 Introduction and overview of the study 1 1.1 Problem statement . 1 1.2 Significance and objectives of the study . 5 1.2.1 Significance . 5 1.2.2 Objectives . 7 1.3 Methodology . 9 1.3.1 Literature review/ interviews/ observations . 10 1.3.2 Use of materials researched . 12 1.3.3 Limitations of study . 13 1.3.4 Description of research areas and work done . 15 1.3.5 Overview of chapters . 17 2 Historical arguments: Overview of Malawi's court systems and recognition of African customary family laws 19 2.1 Introduction . 19 2.2 Brief description of Malawi . 21 2.3 Historical overview of court systems and customary laws in Malawi . 26 ii 2.3.1 Pre-colonial period . 26 2.3.2 Colonial period . 29 2.3.3 Post colonial period . 40 2.3.4 After introduction of democracy in 1994 . 51 2.4 Conclusion . 67 3 Customary laws and human rights: Theoretical debates 70 3.1 Introduction . 70 3.2 Women's rights: Universalism and cultural relativism . 73 3.2.1 Significance of universalist-relativist debates in the women's rights domain . 80 3.3 International protection of the right to culture . 84 3.3.1 The place of culture in international law: Does it sup- port cultural relativism? . 87 3.3.2 Resolving conflicts between African customary family laws and women's rights . 97 3.3.3 Feminism and African culture: The public and private dichotomy in the application of human rights . 103 iii 3.4 International norm of equality and non-discrimination . 111 3.4.1 Scope of equality and non-discrimination principles at international law . 115 3.4.2 Formal and substantive equality . 142 3.5 Conclusion . 147 4 Conflicts between African customary family laws and the Bill of Rights in Malawi 149 4.1 Introduction . 149 4.2 Geographical location of main tribes of Malawi . 151 4.3 Forms of customary marriages . 153 4.3.1 Matrilineal customary marriages . 153 4.3.2 Patrilineal customary marriages . 155 4.4 Rules and practices governing customary marriages . 156 4.4.1 Consent . 157 4.4.2 Polygamy . 161 4.4.3 Lobola . 167 4.4.4 Child marriage . 175 iv 4.4.5 Choice of spouse . 187 4.5 Other forms of validating customary marriages . 189 4.5.1 Widow inheritance . 190 4.5.2 Marriage by proxy . 194 4.5.3 Exchanging of wives . 195 4.5.4 Kutwala ..........................196 4.6 Rights and obligations arising from customary marriages . 198 4.6.1 Property rights . 198 4.6.2 Affiliation and custody of children . 201 4.7 Divorce in customary marriages in Malawi . 203 4.7.1 Grounds for divorce under customary laws . 206 4.7.2 Who can initiate divorce . 208 4.7.3 Effects of terminating customary marriages . 210 4.8 Inheritance under African customary laws of Malawi . 220 4.8.1 Introduction . 220 4.8.2 Customary rules of inheritance . 220 v 4.8.3 Customary inheritance under Wills and Inheritance Act (WIA) . 222 4.9 Conclusion . 225 5 The Bill of Rights and application of African customary fam- ily laws in Malawi 228 5.1 Introduction . 228 5.2 Background to the Bill of Rights in the Malawi Constitution . 232 5.3 The Bill of Rights . 237 5.3.1 Preliminary remarks . 237 5.3.2 Provisions for the Bill of Rights application to African customary laws in Malawi . 239 5.3.3 Effect of the application of the Bill of Rights to African customary laws . 248 5.3.4 How does the Bill of Rights affect the application of African customary family laws? . 251 5.3.5 Limitations on application of African customary family laws in Malawi . 259 5.3.6 Enforcement procedure under the Bill of Rights . 264 vi 5.4 Socio-economic factors and the application of Bill of Rights in Malawi . 269 5.4.1 Poverty and marginalisation of women . 271 5.4.2 Economic limitations . 274 5.4.3 Literacy levels . 277 5.4.4 Judicial limitations . 278 5.5 Conclusion . 280 6 Law reform: Reconciling African customary family laws with modern women's rights 282 6.1 Introduction . 282 6.2 International law and law reform on women rights in Malawi . 284 6.2.1 Justification of use of international law . 285 6.2.2 Relevance of international law principles concerning women's rights reform in the Malawi Constitution . 288 6.3 Bill . 289 6.3.1 Marriage laws in Malawi . 290 6.3.2 Lobola . 294 vii 6.3.3 Requirements of customary marriages . 298 6.3.4 Marriage by permanent cohabitation and repute . 300 6.3.5 Maintenance of unmarried women . 302 6.3.6 Maintenance of spouses and children after dissolution of customary marriages . 305 6.3.7 Custody of children on divorce . 307 6.3.8 Polygamy . 308 6.3.9 Child marriages . 311 6.3.10 Consent . 312 6.3.11 Widow inheritance . 313 6.3.12 Equal status and capacity of spouses . 314 6.4 DEPA . 316 6.4.1 Historical background to reform of inheritance laws in Malawi . 316 6.4.2 Overview of DEPA . 317 6.4.3 Choice of law governing deceased estate . 319 6.4.4 Property rights of a widow . 320 viii 6.4.5 Provision for spouses in polygamous marriages . 322 6.4.6 Deceased woman survived by children . 326 6.4.7 Widow inheritance . 327 6.5 Problems in implementation of proposed law . 327 6.5.1 Individual versus group rights . 328 6.6 Conclusion . 332 6.6.1 Concluding remarks on the Bill . 332 6.6.2 Concluding remarks on DEPA . 333 7 The Bill of Rights and courts' application of African custom- ary family laws 335 7.1 Introduction . 335 7.2 Examination of role of MC in practice . 337 7.2.1 Divorce . 337 7.2.2 Recognition of customary marriages . 342 7.2.3 Custody of children . 351 7.2.4 Property after divorce . 361 ix 7.3 Examination of the role of HC in practice . 363 7.3.1 Recognition of customary marriages . 364 7.3.2 Custody of children . 366 7.4 Challenges of application of African customary family laws by courts in Malawi . 371 7.4.1 Lack of knowledge of customary family laws . 372 7.4.2 Determining what law to apply . 374 7.4.3 Proof of customary family laws . 376 7.4.4 Examples provided by foreign case law . 376 7.5 Conclusion . 379 8 Conclusions and observations 380 8.1 Introduction . 380 8.2 Impact of the Bill of Rights on courts and their application of African customary family laws . 383 8.2.1 Custody of children . 383 8.2.2 Property after divorce . 385 8.2.3 Recognition of marriages . 385 x 8.3 Challenges faced by courts . 387 8.3.1 Nature of court system . 387 8.3.2 Cultural legitimacy . 389 8.4 Impact of the Bill of Rights on law reform of African custom- ary family laws in Malawi . 391 8.4.1 Proposals to reform customary marriages and inheri- tance laws . 393 8.5 Obstacles to implementation of proposed laws . 394 8.6 Conclusion . 395 Bibliography 397 Appendix 1 433 Appendix 2 434 Appendix 3 436 xi Key words African customary family laws Bill of Rights Cultural Rights Customary marriage Divorce Inheritance Matrimonial property Matrilineal Patrilineal Women's rights xii Abstract On the assumption that the Bill of Rights in the Malawi Constitution has brought change in the enjoyment of rights by women married under custom- ary family laws, this research study examines its impact on African custom- ary family laws that are discriminatory against women in Malawi. The main focus is on customary family laws governing marriage, divorce, children after divorce, and inheritance in both patrilineal and matrilineal systems of mar- riages. The extent to which this has been reflected in practice is assessed in the light of women's rights law reforms and courts' adjudication of cus- tomary family law issues. The central argument that has been advanced is that, in reconciling customary family laws with women's rights, courts and law reformers need to look closely at customary family laws that are dis- criminatory against women, and develop them so that they are compatible with the constitutional principles of equality. In ignoring the application of customary family laws in favour of a constitutional provision that is aimed at the protection of women's rights, courts and law reformers are failing to ad- equately protect the rights of women married under customary family laws. xiii Furthermore, it has been argued that ignoring the application of customary family laws not only fails to represent an adequate response to women.
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