WOMEN AND RIGHTS VS CULTURE AND RELIGION

The case of Zimbabwean woman Venia Magaya is well-known in Southern Africa. Magaya brought a legal case contesting eviction from the house she had been living in all the way to the Supreme Court. Magaya’s half-brother forced her to leave the home she had been living in when her father passed away, and argued to the court that women could not inherit the same as men. Magaya lost. The court gave precedence to customary law over the bill of rights. They ruled that women could not be equal to men before the law because of African cultural norms and "the nature of African society," making customary law immune from the non-discrimination clause. A characteristic feature of the legal systems of all the Southern African Development Community (SADC) countries is the co-existence of customary and religious laws alongside the perceived European law. A clause that makes explicit the supremacy of constitutional rights over customary, religious or other laws in the SADC Protocol on Gender and Development being reviewed at the upcoming Heads of State Summit in August will be an important yardstick for countries to measure against in their ongoing law reform processes. The SADC Protocol Alliance, comprised of more than 16 organisations and experts from the region, is calling for the Protocol to state explicitly that where there are contradictions between customary law and Constitutional provisions for gender equality the latter is given precedence. The reality for most women in Southern Africa is that constitutional and legal provisions mean very little because in reality customary and or religious laws govern their lives. Thus, for women to have meaningful legal protection, their rights must be enshrined in laws that are not open to interpretation.