A cross-section of women attending family day in Dodoma. Credit: Sabato Kasika. - Photo: 2024

African Women Battling Legal Bias in Families

By Kizito Makoye

DAR ES SALAAM, Tanzania | 16 May 2024 (IDN) —Thandi* was barely 14 when she was forced into marriage—crushing her dreams to become a nurse.

Her cash-strapped granny who lives in Malawi’s impoverished Nano district, married her off at a meagre pride of 15,000 Malawian Kwacha, barely $8. The money, intended to sustain her extended family, was a paltry solace for the sacrifice of a young girl’s dream.

“Marriage as a child proved to be a difficult journey.., my husband’s violent behaviour and the dreams I had for my education were abruptly halted,” she says.

Forced to abandon schooling at Standard 7, Thandi grappled with the harsh realities of motherhood in her adolescence, robbed of the joy of youth and leisure her peers enjoyed.

“I couldn’t play with my friends or enjoy some good banter,” she says.

Thandi’s story mirrors the worsening plight of women and girls across Africa, where legal biases rooted within family laws perpetuate systemic discrimination.

A new research from Equality Now—a global girls’ rights charity shows widespread gender inequality afflicting women and girls, deeply embedded within legal systems and customary laws concerning marriage, divorce, custody and property rights across 20 African nations.

Despite some glimmer of hope in the legal reforms made by some African countries, the journey toward gender parity, remains fraught with obstacles, hampered by a dearth of political resolve and lax enforcement mechanisms, researchers warned.

Gender inequality

Titled “Gender Inequality in Family Laws in Africa: An Overview of Key Trends in Select Countries,” the report unveils a complex web of laws rife with contradictions and loopholes, hindering the realisation of equitable legal systems thus putting women and girls across 20 African nations in greater risk of sexual and gender-based violence.

Esther Waweru, a Senior Legal Advisor at Equality Now and co-author of the report, underscores the barriers posed by cultural and religious traditions, which often hamper the advancement of gender equality. “Culture and religion frequently act as major impediments in the struggle for family law equality, stalling reforms,” she says, lashing out at the prevalence of retrogressive practices and backlash from anti-rights movements seeking to reverse the progress in quashing harmful practices including child marriages and female genital mutilation (FGM).

“Stagnation is also a problem, with governments pledging to reform discriminatory laws but failing to take meaningful action. In some instances, progressive family codes remain in limbo awaiting enactment,” she says.

Family laws wield a huge influence over the lives of women and girls, shaping matrimonial relations, inheritance dynamics, and parental rights. Yet, the legacy of colonialism and the coexistence of diverse legal traditions have engendered a patchwork of statutes that fall short of international human rights standards, researchers observe.

The enforcement of equitable legal frameworks remains inconsistent

Despite the ratification of treaties like the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) and the UN’s Convention on the Elimination of All forms of discrimination against Women( CEDAW), the enforcement of equitable legal frameworks remains inconsistent, leaving women vulnerable to exploitation and abuse, they say.

However, in some countries, as in other parts of the world, rape is not outlawed in marriage; in others, women are unable to petition for divorce and have no guarantee of inheriting property on the death of a partner. In nations including Algeria, Cameroon and Nigeria, women receive less inheritance than men, the study shows

Notably, progress has been made in curbing child marriage problems, with several African nations enacting tougher laws. There has been some success across the continent, including raising the legal age for marriage to 18, the report says. Countries including the Democratic Republic of the Congo, Kenya and Mozambique have banned child marriage. However, Cameroon, Senegal and Tanzania still allow it. Countries such as Nigeria outlawed child marriage in 2003, but the practice continues unabated in the north of the country, where approximately 50% of girls are married before the age of 18.

However, legislative loopholes persist in many jurisdictions, permitting child marriage under certain circumstances. Similarly, the absence of statutory provisions criminalizing marital rape leaves women at the mercy of abusive partners, their bodily autonomy compromised by archaic legal norms, the research shows.

In Tanzania, the voids in legal protections against domestic violence have left survivors like Fatu* not-her-real-name, a 55-year-old woman in Tanzania’s northern Kilimanjaro region exposed to untold abuse.

Fatu’s life has been consumed by violence at the hands of an abusive husband, a former security officer. His violent demand for money, food and forced sexual encounters have left her living in constant fear.

“He forces me to have sex anytime he wants; otherwise, he threatens to punch me severely. His assaults, both in public and behind closed doors, are relentless. This has driven me to avoid spending nights in our shared space, where he keeps menacing tools under his bed, including a machete, hammer and screwdrivers” she complains.

Tanzania’s Marriage Act

Despite nominal prohibitions against domestic violence in Tanzania’s Marriage Act of 1971, the absence of punitive measures renders these safeguards toothless. Fatu’s harrowing ordeal underscores the urgency of comprehensive legal reforms to address marital rape and safeguard survivors from further harm.

As African nations grapple with the imperative of harmonizing legal frameworks with international human rights standards, Waweru advocates for legislative reforms and heightened awareness campaigns to combat entrenched biases. By challenging patriarchal norms and advocating for the domestication of international treaties, stakeholders can foster an environment conducive to gender equality and women’s empowerment.

“To safeguard women and girls within family law, it is imperative for all African nations to promptly enact robust legislative and policy frameworks that align with international and regional human rights obligations,” she says

In an exclusive interview with IDN, Waweru shed light on the complex landscape where customary, statutory and religious laws coexist, often to the detriment of women and girls.

She emphasised the urgent need for countries to enact laws aligning with international human rights standards to safeguard the rights of women and girls. “Countries should adopt statutory laws on family law to ensure discriminatory practices are not applied,” she stated.

Constitutional Amendments Needed

She called for constitutional amendments in nations where discriminatory practices persist under customary or religious laws.

Regarding harmful practices such as widow inheritance and surrogate marriage, Waweru highlighted the role of patriarchy and customary law.

“Governments and civil society organisations can combat these practices through sensitization and awareness raising,” she asserted.

By challenging the traditional mindsets that view women as property, progress toward gender equality can be achieved.

Waweru emphasized the need for implementation and domestication of Internnational Human Rights treaties to advance gender equality effectively.

Addressing the challenge of harmonising laws across diverse cultural and religious context, Waweru suggested legal reform and standardization of family laws in line with international human rights standards. This approach, she argued, would promote equality and eliminate exceptions.

The legal stance on marital rape in Tanzania came under scrutiny, with Waweru highlighting its implications on women’s right and bodily autonomy

“Marital rape undermines the aspect of consent within a marriage,” she noted, calling for legal reforms to address this issue.

In Tanzania, lack of comprehensive legal framework to address domestic violence has left survivor  vulnerable without recourse.

While section 66 of the law of Marriage Act, prohibits domestic violence, it lacks any penalties or sanctions.

Thandi’s strength during tough times reminds us that fighting for fair laws can change lives. It’s a tough journey, but it holds the hope of a better, a fairer future for women and girls everywhere in Africa.

Spurred by the belief that education is key to girls’ liberation, Thandi, who is now a mother has become the voice for change, championing the cause against child marriages.

“I hold on to my dreams. I aspire to become a nurse and to be self-reliant and I am patiently waiting for the baby to grow up so that I can pursue my aspirations,” she says. [IDN-InDepthNews]

Photo: A cross-section of women attending family day in Dodoma. Credit: Sabato Kasika.

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