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
Year: 2008
Type: dissertation
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 customary family laws, this research study examines its impact on African customary 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 marriages.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 customary 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 discriminatory 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 adequately protect the rights of women married under customary family laws.xiii enna Declaration, 9 which, even while affirming the ultimate goal of universal protection, makes clear that: '• • • while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of the state, regardless of their political, economic and cultural systems to promote and protect all human rights and fundamental freedoms'.The inclusion of culture as a right within the Bill of Rights, as well as the protection of women's rights, have thus created a new dimension to the whole question of the application of customary family laws.It is against this constitutional dilemma that this thesis examines the impact of the Bill of Rights on African customary family laws focusing on women's rights in Malawi.109 Vienna Declaration and Programme of Action, 12 July, 1993, para 5 as cited by Grant E 'Human Rights, Cultural Diversity and Customary Law in South Africa' (2006)Journal of African Law 2 at 3. 10 The arena of women's rights provides an ideal laboratory for examining the way the HC, as an interpreter of the fundamental law of the land, both initiates and responds to social change.Cases decided by the HC also provide a stage on which abstract constitutional terms, such as equality, take on concrete meaning as they are seen applied to live controversies of topical interest.29 This is according to the NSO projected population for 2008 based on the 1998 Malawi Population and Housing Census.30 See 1998 Malawi Population and Housing Census by the NSO accessed at www.nso.malawi.net on 12/10/2006.31 Among the districts that channel their appeal cases to this HC are Nsanje, Chikwawa, Mulanje and Thyolo.
Author: Lea Mwambene
Language: English
Topic: Family and Matrimonial Law
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2616570665