Constitutional Exclusion and Gender in Commonwealth Africa

Abstract:     
Multiculturalism has long been considered inimical to gender equality. In the last two decades, many proponents of multiculturalism and feminism have perpetuated a dichotomous approach to identity in which an equality-minded, rights-seeking woman could not meaningfully enjoy membership in a cultural community. This misguided, unitary understanding of the self would require such a woman to exit from her familial or cultural community, often at great personal cost, to fulfill her individual right to equality.

In parts of Commonwealth Africa, however, feminists face severe structural impediments to any systematic engagement with traditional custom and culture. These structural impediments have an unlikely source. They are firmly embedded in constitutional text. The constitutions of a handful of countries in the African Commonwealth contain provisions that specifically exclude family and customary law from constitutional non-discrimination protection. In other words, a woman may invoke constitutional equality guarantees but only if the contested issue does not concern “marriage, divorce, burial, devolution of property on death or other like matters which is the personal law of persons of that description.” The exclusion of family law from the constitution can have a devastating effect on women in those countries. Because those issues that most commonly affect women are external to the constitution, women lack a crucial vehicle through which to negotiate the meaning of cultural norms in light of equality guarantees.

Number of Pages in PDF File: 54

Keywords: African Women’s Rights, Reproductive Law, Jurisprudence

JEL Classification: K10, K19

Accepted Paper Series