Forging a Path for Women’s Rights in Customary Law

This article discusses customary law in Africa, specifically in Kenya, Namibia, Botswana, and South Africa. The author describes both the problems and the potential of customary law, and suggests how it should be developed and applied to further women’s rights in these countries. Customary law is an ever-evolving body of rules that promotes communal values but, historically, it has often been used to promote patriarchy and to disempower women. To operate beneficially in modern societies, communal law must fit into a human rights framework. Communal law should be codified by the community in question based in the human rights principles of participation, accountability, non-discrimination, and empowerment, and then developed by customary justice structures with the help of formal courts and the legislature. Finally, the article calls for the inclusion of women and minorities at every stage of the process, especially in leadership positions.