Legal pluralism and human rights in the seven WLSA countries By Slyvia Chirawu National Coordinator WLSA Zimbabwe

1. Legal pluralism and human rights in the seven WLSA countries By Slyvia Chirawu National Coordinator WLSA Zimbabwe sly@wlsazim.co.zw

2. Issues to be covered • Situational analysis of legal pluralism in the seven WLSA countries • Relationship between the State and Customary law institutions • Human rights framework in respect of gender /women/ children/ • Some strategies on tackling legal pluralism

3. About WLSA • Formed 1989 • Seven countries in Southern Africa – Botswana, Malawi, Zambia, Lesotho, Swaziland, Mozambique and Zimbabwe • Laws and policies that affect women • Over 100 publications on women and the law

4. Situational analysis • Many similarities • Colonialism- British and Portuguese • Capitalism • Recognition of general law and customary law in Constitutions except Mozambique • Constitutions allowing discrimination on basis of customary law with respect to matters of adoption,marriage,divorce,burial, devolution of property at death, other matters of personal law- Botswana, Zimbabwe • Codification of customary law in Lesotho - Lerotholi

5. Situational analysis continued • Four distinct spheres • Western Court structures • State imposed customary law system • Chief’s traditional court structures • The family • Repugnancy clause • Mozambique- “ good sense and justice”

6. Relationship between State and customary law institutions • Complex and multifaceted relationship • British indirect rule • Varies from country to country • TL – jailed, ridiculed, banned,deposed • TL paid state salaries e.g. Botswana and Zimbabwe, given resources – State wants access to rural communities • Competition with elected officials especially at local levels • TL have shown resiliency • State has been transformed by TL

7. Relationship continued…. • TL given authority to adjudicate on matters e.g Criminal jurisdiction – Botswana, Zimbabwe DVA – limited jurisdiction,access to land and resources • Enforcement of judgments – Through general law system • Perception of customary law courts –user friendly, less confrontational • Modernists vs. Traditionalists – Artificial dichotomy?

8. Pluralism, HR concerns regarding women • Multiple subordination • Distortion of customary law – rigidity – Murisa and Magaya case – Zimbabwe • Choice of law process but how much “ choice” do women have? • Women perpetual minors e.g. Swaziland • Semi autonomous social fields • Influence of political parties

9. HR concerns for women …. • Tolerance of violence vs. women • Inheritance disputes • Remedies available at Customary law courts – compensation ( e.g. payment of goat) • Customary law courts handling criminal law matters without jurisdiction to do so • Limited recognition of customary law marriages. • Gender inequalities despite constitutional provisions guaranteeing equality

10. HR concerns for women … • Lobola and impact on reproductive health • Non domestication of international human rights instruments

11. HR concerns for children • Discrimination of the girl child despite CRC • Control of female sexuality • Sexual abuse • Harmful cultural practices • Different treatment of children born in and out of wedlock despite “ best interests” of the child concept • Duties vs. rights

12. Suggested strategies • Judicial activism • Reinforce Bangalore principles ( Sara Longwe vs.. International Hotels – Zambia) Dow vs. AG Botswana • Deconstruction of colonial state version of customary law • Specialized courts e.g Family law • Reinforce positive cultural context • “ Educate” Lawyers on international human rights standards and norms eg RBA