Lessons from the past.

Lessons from the past. As nation states emerged through the establishment of artificialborders, as complex changes set in through the introduction of marketeconomies and land ownership, and as the practice of Islam andChristianity became widespread, customary practices were unable toprovide adequate guidance in these new situations. Gradually, the systemof customary laws, however entrenched en��trench? also in��trenchv. en��trenched, en��trench��ing, en��trench��esv.tr.1. To provide with a trench, especially for the purpose of fortifying or defending.2. , weakened with the new andfundamental legal changes that were sweeping across communities (Obiora1995, p. 581). When change was sought through such top-down legalreform, two things happened. First, these external authorities imposed legal norms that arosefrom a different vision of society, one based on the norms of individualrights and liberty that underlie social organization in the West. Aclassic example is the Ethiopian experience as described in Chapter 2.Such intervention weakened the important principle underlying mostcustomary laws--"communal" harmony and focus onobligations--without providing adequate security under the new system,particularly for women. In addition, it subverted the natural, albeitslow, evolution of customary practices. In many cases, it introducedrigidity and stagnation StagnationA period of little or no growth in the economy. Economic growth of less than 2-3% is considered stagnation. Sometimes used to describe low trading volume or inactive trading in securities.Notes:A good example of stagnation was the U.S. economy in the 1970s. to what had been an evolving process forcenturies (Obiora 1995, p. 5822). Second, the formal system of law that was introduced in many ofthese African countries also resulted in centralizing what waspreviously a highly decentralized de��cen��tral��ize?v. de��cen��tral��ized, de��cen��tral��iz��ing, de��cen��tral��iz��esv.tr.1. To distribute the administrative functions or powers of (a central authority) among several local authorities. customary legal system. The agency ofnormative authority in many areas, particularly in the case of land, wasshifted from the clan or clan elders to an external state authority. InEthiopia, for example, the principles governing personal relationshipswere stated in the Civil Code of 1960. Legislative authority shifted toan external ruler, such as the colonial rulers who ruled through theirnominated chieftains and leaders; or in post-colonial Africa, to acentral entity, often the national legislature. The duty or obligationto implement or enforce the laws was also shifted from the authority ofthe clan or elders to unfamiliar units such as the police or othercommissions, who derived authority from the state. The formal systemalso centralized the dispute-resolution institutions in many cases.Disputes were now adjudicated by external authorities, involving judgeswho were trained in the English systems. Where disputes continued to besettled by local authorities as in Ethiopia, lack of capacity andknowledge among male arbitrators reiterated invalidated customarypractices. External interference--whether by the colonial powers orpost-colonial leaders--ultimately weakened the indigenous or traditionalsystems, reducing the effectiveness of their rules and sanctions anddepriving them of the participatory processes by which they organizedthemselves and managed resources. These centralized systems oflegislation, implementation, and dispute resolution were so unfamiliar,complex, and costly to enforce that together they not only failed toprotect the interests of women, but in many cases adversely affectedthem, weakening even the protection they had enjoyed under the customaryframework. At least two broad lessons emerge from this experience, and thesemust be studied and understood as African countries move on to furtherreform their personal laws. They are formulated below as questions, andare discussed in detail in this chapter: * What is the basis for change? * What are the legal tools for change? Basis for Change The newly introduced legal frameworks in these countriessignificantly affected the lives of men and women, at least on thebooks, despite initial attempts in some countries to exempt indigenouscommunities from drastic changes in personal laws. In all cases, men andwomen affected by these changes had no say in determining the nature ofthe changes imposed on them. They had no opportunity to determinewhether these changes were suitable or required, given their world view.Consequently, progress meant for them the imposition of externallydriven norms, established and determined by unfamiliar institutions. Even in Ethiopia, where a native government introduced the newlegal system, the basis for the new rules was as alien as the systemsimposed by the colonial regimes in the other eastern African countries.In effect, they introduced a vision of personal relationships that wasand is not fully shared or appreciated by the majority of Ethiopians. In all countries under discussion here, customary rules andtraditions evolved that were intended to ensure social harmony andmaintain equilibrium, perpetuate the lineage of the tribe or clan, andprotect members from external forces (Woodman and Obilade 1995). Africancommunities did not see this social equilibrium In sociology, a system is said to be social equilibrium when there is a dynamic working balance among its interdependent parts (Davis & Newstrom, 1985). Each subsystem will adjust to any change in the other subsystems and will continue to do so until an equilibrium is retained. as resting on a finebalance of individual rights, but rather as focusing on the tribe or theclan as a whole. "It was not the gladiatorial glad��i��a��tor?n.1. A person, usually a professional combatant, a captive, or a slave, trained to entertain the public by engaging in mortal combat with another person or a wild animal in the ancient Roman arena.2. law of the kindassociated with the individual-rights-centered, Graeco-Romaninheritance" (Woodman and Obilade 1995, p. 369). Ilumoka reiteratesthis view of the concept of rights in the context of gender equality: The discourse of rights has had little resonance for the majority of the African women, and the national and international rules and procedures for enforcement of rights have rarely been their arenas of struggle ... This may partly be because women have generally not seen themselves as organizing in opposition to men, but for social justice. In this sense, although many women see their rights as unquestionably human, they do not define themselves solely in relation to men. Kinship was the articulating principle of social organization(Aylttey 1991; Holleman, 1995). The interests of the individual weresubordinate to those of the group. Although the degree to which the"we" or the "I" was defined varied from group togroup, the definitions were a collective decision of the group as awhole in most traditional African communities. This affiliation with thegroup was important for both men and women, providing an identity,reputation, and pride. A complex set of social and traditionalobligations protected members of a larger group, a clan, or a tribe. AsAylttey argues, the emphasis on collective ownership of resources wasvalued. The clan or tribe held critical resources collectively andallocated their use to different households. Concepts of justice were also perceived differently. In westerntraditions, justice was seen as the rejection of inequality (Woodman andObilade 1995, p. 22) and the application of notional or formal equality.In African communities, this was not so. As Woodman points out, thebest-articulated form of justice was one of "distributivejustice DISTRIBUTIVE JUSTICE. That virtue, whose object it is to distribute rewards and punishments to every one according to his merits or demerits. Tr. of Eq. 3; Lepage, El. du Dr. ch. 1, art. 3, Sec. 2 1 Toull. n. 7, note. See Justice. ," in which age, title, and relationships are importantfactors. Within a polygynous po��lyg��y��ny?n.1. The condition or practice of having more than one wife at one time.2. Zoology A mating pattern in which a male mates with more than one female in a single breeding season. household, for example, seniority, whichwas determined by the date of marriage, was a critical factor; amongchildren, it was determined by sex and age. Treating all wives equallywould not have been just in the eyes of many households. Misconceptions of the underlying principles of many customary normshave also been the basis of many legal reforms, resulting in theformulation of misconceived mis��con��ceive?tr.v. mis��con��ceived, mis��con��ceiv��ing, mis��con��ceivesTo interpret incorrectly; misunderstand.mis solutions to problems confronting women. Forexample, to ensure the survivability sur��viv��a��ble?adj.1. Capable of surviving: survivable organisms in a hostile environment.2. That can be survived: a survivable, but very serious, illness. of a group, many Africancommunities demonstrated a tendency to lay claim to both women andchildren, and to guard the reproductive capabilities of women. Inaddition, in patrilocal pat��ri��lo��cal?adj. AnthropologyOf or relating to residence with a husband's kin group or clan.pat communities, a woman, once she married, was notconsidered a member of the community of her birth. The custom of brideprice bride price:see marriage. thus evolved, reflecting partly the value that was placed on awoman's reproductivity. Also, as Obiora argues, "customary-lawmarriage is a contract or an alliance between the families of thespouses; only in a secondary sense is it a union of the spouses asindividuals" (Obiora 1993, p. 222). When a woman was widowed,therefore, she was absorbed into the household of her husband'sbrother. Once the brother-in-law claimed her, the clan or tribe wasobliged to maintain and ensure her safety and needs. In some cases, itappears that she could choose to live with someone else, in which eventshe or her kin would have to return the bride price that was paid to herfamily upon marriage. If the group did not wish to claim her, she wasfree to return to her native village and retain the bride price (WorldBank, 1997). Scholars argue that viewing this practice as the right of thedeceased's brother to inherit the widow is misleading, and is basedon ignorance of the norms that underlie the practice (Woodman andObilade 1995, p. 369; Aylttey 1991). Then, the obvious solution would beto seek the immediate abolition of the system. If, however, the practiceis correctly characterized as an action that stresses the need to ensurethe perpetuity perpetuityn. forever. (See: in perpetuity, rule against perpetuities) PERPETUITY, estates. Any limitation tending to take the subject of it out of commerce for a longer period than a life or lives in being, and twenty-one years beyond; and in case of a of the tribe and to protect the widow and her offspring,however, the legal solution would not be simply to ban the perceivedpractice of the "inheritance of widows", but to do so onlyafter providing alternative safeguards to protect their economic andsocial interests. As Obiora says, in cases like this, "rather thanprobing the indigenous justification and function of the practice,[they] decontextualized and situated it in an incongruous frame ofreference" (Obiora 1995, p. 589), thereby finding highlyinappropriate solutions to address the issue. Experience from other developing countries reiterates the importantlesson that legal solutions not moored in the cultural context of thecommunities to which they are applicable are often ineffective or costlyto enforce. The treatment of the "dowry dowry(dou`rē), the property that a woman brings to her husband at the time of the marriage. The dowry apparently originated in the giving of a marriage gift by the family of the bridegroom to the bride and the bestowal of money upon the bride by " (13) system in Indiaillustrates the dangers of laying down norms inconsistent with generalgoals and aspirations. Stridhana (from which the concept of dowryevolved) was the only property that a woman could own. It came tosignify her share in family property; when she received it (usually atthe time of marriage), she also lost any further claim to the familyproperty (Shastri 1959). With increasing scarcity of resources, coupledwith the woman's inability to generate any new household resources,dowry became something that was bartered and demanded by thebridegroom's family or offered as an incentive for marriage by thebride (see Obiora 1993, p. 221 on the issue of bride price in Africa). When the practice of Stridhana was seen to result in the harassment Ask a Lawyer QuestionCountry: United States of AmericaState: NevadaI recently moved to nev.from abut have been going back to ca. every 2 to 3 weeks for med. and even murder of brides unable to provide adequate dowry, the Indiangovernment intervened with the 1961 Dowry Prohibition Act, whichprohibited the asking for, taking of, or giving of a down: in relationto a marriage. (14) This was considered just and fair to women followingthe 1957 codification The collection and systematic arrangement, usually by subject, of the laws of a state or country, or the statutory provisions, rules, and regulations that govern a specific area or subject of law or practice. of Hindu personal laws that provided women withequal rights of inheritance to all but ancestral property of jointfamilies. (15) According to according toprep.1. As stated or indicated by; on the authority of: according to historians.2. In keeping with: according to instructions.3. a report issued to the Indian Parliament, however,dowry deaths increased from 186 during 1985 and 1987 to 922 in 1988.Some of this increase may be attributed to the fact that they areincreasingly reported because the perpetrators can be punished moreeasily, but it is clear that the law has not successfully tackled theissue. Despite the well-intentioned legal reforms, the top-downreplacement of traditional practices with alien norms has added to thedisempowerment of women. Male heirs continued to inherit family propertyin predominantly patriarchal communities. At the same time, the ancientand accepted obligation to provide the bride with a share of the familyproperty has been considerably weakened. Where women are unable toexercise their newly found rights, their economic vulnerabilities seemto have been actually increased by the law. Experience in industrialized in��dus��tri��al��ize?v. in��dus��tri��al��ized, in��dus��tri��al��iz��ing, in��dus��tri��al��iz��esv.tr.1. To develop industry in (a country or society, for example).2. countries supports the lesson thatwhere legal reform of personal relationships has been effective, it hasbeen because that reform has acknowledged changing public opinion andhas been closely linked with underlying social and economic interests.Dicey dic��ey?adj. dic��i��er, dic��i��estInvolving or fraught with danger or risk: "an extremely dicey future on a brave new world of liquid nitrogen, tar, and smog"New Yorker. , the famous English jurist A judge or legal scholar; an individual who is versed or skilled in law.The term jurist is ordinarily applied to individuals who have gained respect and recognition by their writings on legal topics. juristn. , opines Opines are low molecular weight compounds found in plant crown gall tumors produced by the parasitic bacterium Agrobacterium. Opine biosynthesis is catalyzed by specific enzymes encoded by genes contained in a small segment of DNA (known as the T-DNA, for 'transfer DNA') that the English legal systemowes its effectiveness to the fact that it developed on "empiricalapproaches that stud[ied] ... beliefs, convictions, sentiments, acceptedprinciples, [and] firmly rooted prejudices, which, taken together, makeup the public opinion of a public era." Dicey argues that a legalframework can be sustainable only when the "law will reflect localreality [and] local reality will no longer have to adapt tolaw"--the latter, he says, being "a main reason for themalfunctioning of the legal systems" (Gopal 1995, p. 16). Writerssuch as Walzer have also supported the view that the rights of men andwomen "do not follow from common humanity; they follow from sharedconceptions of social goods; they are local and particular incharacter" (Okin 1989, p. 62). Although these arguments continue tobe contested, in the opinion of this writer, they are clearly valid,even when one considers the emergence of women's rights The effort to secure equal rights for women and to remove gender discrimination from laws, institutions, and behavioral patterns.The women's rights movement began in the nineteenth century with the demand by some women reformers for the right to vote, known as suffrage, and in theWest. For example, the doctrine of individual liberty that pervadesfamily law in England has its roots in the Magna Carta Magna Cartaor Magna Charta[Lat., = great charter], the most famous document of British constitutional history, issued by King John at Runnymede under compulsion from the barons and the church in June, 1215. of 1215 AD, whichrepresents a critical point in and the basis for the development of thisconcept in common law. The Magna Carta represented an assertion ofindividual liberty and the rule of law against the tyranny of King John,albeit for a selected few at that time. This doctrine of individualliberty provided the impetus for the concepts of equality that lentthemselves to the theories of social contracts in family law. Socialcontract theories permit family members to deal with each other on termsand conditions determined by the individuals themselves. Individualrights are thus the basis of many norms that underlie family law incommon-law countries. However, despite the early emergence of the concept of individualliberty in England, it was not until the Married Women's Acts of1870 and 1882 that married women were permitted to even own and holdproperty. Not until 1964, for example, were wives given equal shares inany income generated from housekeeping allowances provided by thehusband. Fewer children, the availability of household appliances,growth of the service sectors, and a number of other such factorsincreased the number and variety of jobs for women, providing women withgreater opportunities to be economically self-reliant. This thenprovided the impetus for them to demand real change in the laws thataffected their access to economic resources. In this, they wereencouraged by the feminist movement across the Atlantic. In the United States United States,officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. , changes in personal matters came as a directresult of changing public opinion. It was only after 1960 that genderbiases were increasingly addressed through revision of laws (Boneparth1982, p. 2). (16) Policies that protected the rights of women withintheir homes reflected shifts in public opinion that occurred as womenmoved in large numbers into the employment market--the result of greatereducation, inflation pressures that created the need for a secondhousehold income, and significant growth in demand for women workers.The increase in divorce rates, urbanization of communities and changesin demographic profiles, the introduction of labor-saving devices, andthe lack of support for women who were single parents contributed tothis growing change in public attitudes. The emergence of strongwomen's lobbies and representative groups also played aninstrumental role in the change of attitude toward women's rights. Despite this progress, it was only in 1981 that the U.S. courtsinterpreted the U.S. Constitution as prohibiting laws based on thenotion that the husband was the head of the household (Kinchberg v.Feenstra, 450 U.S. 455 [1981]). Laws were not immediately expunged fromthe books, but could no longer be enforced; it was only in the 1990sthat such principles were laid to rest at law (Baer 1991, p. 128). In conclusion, in Africa, the colonial rulers and their successorsintroduced personal laws based on concepts of individual rights,supporting a vision of personal relationships that bore littleconnection to the reality in these countries (Chanock 1989, p. 83). Lawsand judicial cases intervened in critical stages of a woman'slife--birth, matrimony MATRIMONY. See Marriage. , divorce, custody, and inheritance--introducingnew norms that governed the allocation of resources allocation of resourcesApportionment of productive assets among different uses. The issue of resource allocation arises as societies seek to balance limited resources (capital, labour, land) against the various and often unlimited wants of their members. at these importantjunctures. The concepts of equal rights to inheritance and equitabledivision of property may have been appropriate for a minority of urbanwomen living in nuclear families outside their clan and tribes, and forwhom there were no other safeguards. But prevailing conditions were andcontinue to be very different for the vast majority of the ruralpopulation. For most women, there exist none of the social and economicconditions that had galvanized gal��va��nize?tr.v. gal��va��nized, gal��va��niz��ing, gal��va��niz��es1. To stimulate or shock with an electric current.2. gender-sensitive legal reform inindustrialized countries. The majority of women continue to be part ofrural households. Socially, women live within clans and tribes that are stronglycommitted to patrilocal traditions. They do so in some cases out ofchoice, and in other cases out of lack of choice. Their mobility ishighly restricted, and their ability to live outside their clans ortribes, except through commonly accepted arrangements such as marriage,is virtually non-existent. The division of labor has not changed, andwomen have little leisure time and little or no access to other economicopportunities. Economically, women remain highly dependent on others, usually themale members in their households. They undertake subsistence farming subsistence farmingForm of farming in which nearly all the crops or livestock raised are used to maintain the farmer and his family, leaving little surplus for sale or trade. Preindustrial agricultural peoples throughout the world practiced subsistence farming. ,but they are not yet a part of the formal labor force. In many of thesecommunities, women depend on the surrounding environment for theirlivelihood, for brewing liquor and gathering firewood and raw materialsfor handicrafts, and so on. Degradation of the environment and, in somecases, legislation of forest and community lands have significantlyweakened this safety net. In this socioeconomic context, a simple rights-based approach tothe allocation of economic resources cannot provide an efficient orequitable solution. Given the high levels of inequality of opportunitybetween men and women and the relatively greater vulnerability of women,a rights-based system often affects women adversely. For example, wheregrounds for divorce The Grounds for divorce are set regulations in each state that specify under what circumstances can one party be granted a divorce. In almost a dozen states, the couples must live apart for several months before being granted a divorce. are similar, women often suffer because they aremore likely to be the economic victims of liberal divorce rules. As Rhodes says, the "law's traditional focus on equaltreatment cannot cope with situations where the sexes are not equallysituated" (Rhode 1989, p. 319). In the context of tribes and clansthat lived on land possessed for generations by their forefathers forefathersnpl → antepasados mplforefathersnpl → anc��tres mplforefathersnpl → Vorfahren andthat strongly maintained patrilocal traditions, such laws destabilizedtradition and weakened the checks and balances that protected womenunder traditional systems. The emergence of new ways of life alsostrengthened this weakening of customary laws and practices. At the sametime, the new legal framework did not adequately support women and couldnot protect their interests. Most women found that their social andeconomic vulnerability increased significantly. The protectivetraditional socioeconomic groupings eroded, but they were not able toexercise their newly found rights in a manner similar to that of men. Legal Tools for Change The legal tools used to seek change are another important factorthat contributes to the overall achievement of any legal reform process.In the eastern African countries under discussion, it was equallyimportant in the failure of the legal frameworks that the tools used tousher in Verb 1. usher in - be a precursor of; "The fall of the Berlin Wall ushered in the post-Cold War period"inaugurate, introducecommence, lead off, start, begin - set in motion, cause to start; "The U.S. change were imported and implanted from other countries. Theyinvolved highly centralized mechanisms of legislation, implementation,and adjudication The legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. , alien to communities that were used to decentralizedand local systems of rule-making, implementation, and disputeresolution. Existing research provides some evidence of the traditional legalsystems that existed in Africa. Research suggests that among Africantribes and clans, respected leaders and elders made the laws. Althoughthese law-makers were mostly men, it seems that older women andgrandmothers also played an important role; however, they did not have aformal role in the application of the rules in some of these patriarchalcommunities. Another important characteristic of traditional systems was thatcustomary laws were based on religious beliefs and were consideredblessed by ancestors. As Ebo states, the "spiritualization spir��i��tu��al��ize?tr.v. spir��i��tu��al��ized, spir��i��tu��al��iz��ing, spir��i��tu��al��iz��es1. To impart a spiritual nature to.2. To invest with or treat as having a spiritual sense or meaning. of lawand its sanctional sources and, indeed, of life in general, operates tosurround law and its procedures with an aura of sanctity and to endow en��dow?tr.v. en��dowed, en��dow��ing, en��dows1. To provide with property, income, or a source of income.2. a. itwith the instantaneous ability to evoke voluntary compliance with itsdictates as an exalted religious obligation" (Woodman and Obilade1995). These systems and procedures provided a far more powerful type ofsanction--such as being disgraced before the clan or tribe (Batten bat��ten?1?v. bat��tened, bat��ten��ing, bat��tensv.intr.1. To become fat.2. 1954,p. 146). Customary laws were also flexible and expected to evolve withchanging situations. Customary courts, therefore, did not follow theprinciple of judicial precedents. Rules and laws were collectivelydecided. They could be discarded if found irrelevant or unsuitable toevolving situations (Aylltey 1991, p. 62). This gave the process aflexibility that was necessary to resolve cases in a manner contributingto social harmony, and one not necessarily available within a stable setof predictable rules. Separation between rule-making and dispute resolution was not asmarked as in western systems. Often, the same elders who made the lawswere invested with the authority to settle disputes. The two processeswere closely integrated and allocated to the same institutionalauthority. In most cases, the stakeholders perceived the system as fairin its dispensation DISPENSATION. A relaxation of law for the benefit or advantage of an individual. In the United States, no power exists, except in the legislature, to dispense with law, and then it is not so much a dispensation as a change of the law. of justice. Dispute resolution was not always an arbitrary process reflectingpatriarchal authority, but often involved decisions arrived at throughdiscussion and consultation with members of the household (Aylttey 1991,p. 41). The process was decentralized and participatory, reflecting tovarying degrees a pluralistic plu��ral��is��tic?adj.1. Of or relating to social or philosophical pluralism.2. Having multiple aspects or parts: "the idea that intelligence is a pluralistic quality that ... vision for the clan or the tribe as awhole. "The ... system of control of conflict by the peacefulsettlement of disputes was an extraordinary achievement. It was acomplex system of interdependent parts of much ingenuity andsophistication so��phis��ti��cate?v. so��phis��ti��cat��ed, so��phis��ti��cat��ing, so��phis��ti��catesv.tr.1. To cause to become less natural, especially to make less naive and more worldly.2. " (Aylttey, quoting Carlston 1991, p. 42). There is also evidence to show that in many cases, disputes wereresolved by discussion and deliberation. For example, among the Tirikiof western Kenya and likely also among many other tribal groups, bothadult men and elderly women were free to seek permission to interrupt orask any man or woman to provide testimony during a judicial proceeding.It was also common to provide an opportunity for an aggrieved party An individual who is entitled to commence a lawsuit against another because his or her legal rights have been violated.A person whose financial interest is directly affected by a decree, judgment, or statute is also considered an aggrieved party entitled to bring an action toappeal a decision at the first level (Aylttey 1991, pp. 42-49; WorldBank 1997, p. 62). Adjudication was always by impartial elder members who would havethe interests of the whole group in mind. Fairness was a criticalprinciple, and the focus of the resolution was on relationships, not onpunishment. Wrongdoing was usually punished through payment ofcompensation by the wrongdoer, except in extreme cases such as murder.This was important because, after the dispute, it was imperative thatthe disputants could return to living together harmoniously, believingthat justice had been done (see opposite view in Chanock 1989, p. 79,and 1995, p. 39). Newly introduced legal systems and institutions were verydifferent. They were centralized and resembled institutions that hadevolved to suit the needs of emerging market economies in largelyindustrialized countries. These institutions were characterized by arule of law that was formulated not on the principle of consensus, buton the process of majority rule. These rules derived their authority notfrom tribal or clan authority, but from sanction of the state. The newly introduced dispute-resolution systems were also moreformal, and enabled easy access only to a minority. Complex proceduralrules, court fees, attorney fees, and protracted pro��tract?tr.v. pro��tract��ed, pro��tract��ing, pro��tracts1. To draw out or lengthen in time; prolong: disputants who needlessly protracted the negotiations.2. delays in settlinglitigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.When a person begins a civil lawsuit, the person enters into a process called litigation. together formed significant barriers that constrained thepoor, particularly women, from seeking justice through the formalsystems. Unlike earlier systems, the formal systems did not take accountof the fact that few men or women were literate. A legal system ofenforceable and registrable rights, based on written laws laws deriving their force from express legislative enactment, as contradistinguished from unwritten, or common, law. See the Note under Law, and Common law, under Common,a. os>See also: Write and records,was perhaps not appropriate for the majority of the people. Under the new systems, disputes were settled by externalauthorities who were different from the rule-makers. The disputesettlers, judges, or magistrates were agents of the state and were notperceived as having any religious sanction, thereby reducing thesanctity of these institutions. The credibility of the process was alsodiluted because arbitrators or judges were not accountable to thedisputants under the new system, but were appointed and monitored by anexternal authority. The new system of dispute resolution was no longer a participatoryprocess of resolving disputes. Judges were expected to resolve disputesimpartially, consistent with the stated law or with other judicialprecedents. Punishing the offender was an important principle; the focuswas not on ensuring harmonious relationships as in traditional systems.The imported systems had evolved in conditions where urbanization andindustrialization industrializationProcess of converting to a socioeconomic order in which industry is dominant. The changes that took place in Britain during the Industrial Revolution of the late 18th and 19th century led the way for the early industrializing nations of western Europe and ensured that even disputing members of a family wouldnot be forced to live in the same area and remain in contact with eachother. The social relationship between the parties was therefore not acritical factor underlying the formal method of dispute resolution,which was again another important difference. The new dispute-resolution system, therefore, did not serve theinterests of the majority. It assisted in protecting the interests ofcolonial and other rulers in resources they had claimed from theindigenous communities, and permitted the collection of taxes and dutieslevied to maintain the colonial apparatus (Aylttey 1991, p. 398). Given the cultural and social traditions, women were relativelymore alienated from these dispute-resolution mechanisms, which werecontrolled by outsiders with whom women themselves would not choose tohave contact. Also, it would be more difficult now to take a dispute tothese external dispute-settlers, have it settled in an adversarialfashion, and then return and live within the same community. It must also be generally noted that the experiences of women whoturned to formal institutions were also not positive (Stewart 1990, p.167). The judiciary acted in a limited and conservative manner, applyinglaws as they perceived them and where they were not repugnant REPUGNANT. That which is contrary to something else; a repugnant condition is one contrary to the contract itself; as, if I grant you a house and lot in fee, upon condition that you shall not aliens, the condition is repugnant and void. Bac. Ab. Conditions, L. to theirmorality and principles of justice. (17) Given the legal concepts ofjudicial precedents and stare decesis, the courts also ignored theflexibility of customary laws and their ability to adapt to conditions.They failed to recognize that by privatizing land, the new laws New Laws:see Las Casas, Bartolomé de. changedsocial conditions in a fundamentally radical manner, and ignored thedifferences between access, control, and ownership. On the contrary, thecourts cast an air of permanence on customary laws that had evolvedunder different socioeconomic conditions, inhibiting the strongestcharacteristic of customary laws--their inherent ability to evolve.They also ignored the diversity of customary practices, interpreting thelaws and practices conservatively and emphasizing principles that wereconsistent with patriarchal principles familiar to an English judiciary. For example, until early 1998, the Zimbabweans had valid judicialprecedents that recognized women as working for their husbands;therefore, all property they acquired belonged to their husbands, exceptfor gifts or personal income earned through services rendered as amidwife or herbalist herb��al��istn.1. One who grows, collects, or specializes in the use of herbs, especially medicinal herbs.2. See herb doctor. . In Jenna v. Nyemba, the court declared that"property acquired during a marriage becomes the husband'sproperty whether acquired by him or his wife" (Gopal and Salim1998, p. 95). In Khoza v. Khoza, a divorced woman was denied access tocommunal lands and matrimonial mat��ri��mo��ny?n. pl. mat��ri��mo��niesThe act or state of being married; marriage.[Middle English, from Old French matrimoine, from Latin m homes, which had been built entirely dueto her efforts, on the grounds that she would need to return to herparents' home for residence (Gopal and Salim 1998, p. 97). Even incustomary marriages, however, the law has since 1985 provided somerights to the children of such marriages, and has provided minimalsupport to the wives. When a marriage ends by death, there was noprovision for allocation of property. It was only in 1997 that thecustomary law was amended to permit women to inherit property fromparents or spouses. Until then, African women had no rights to theirhusband's property. It was no different in Kenya. In Virginia Edith Wambui Otieno Virginia Wambui Otieno Is a domestic house hold name in East and Central Africa, a region where Women rights always come second In a complex society still crucified by the antagonism between western and native cultures, In three distinct and conspicuous concurrencies, Wambui has v.Joash Ochieng Ougo and Omolo Siranga,1* a wife sought a declaration fromthe court that she had the legal right to the remains of her deceasedhusband under English law The system of law that has developed in England from approximately 1066 to the present.The body of English law includes legislation, Common Law, and a host of other legal norms established by Parliament, the Crown, and the judiciary. . The respondents, a brother and a cousin ofthe deceased, based their case on customary laws. The Court of Appealheld that African customary law was applicable to a person such as thedeceased and granted the right to the brother and the cousin. Earlier inRe Ogola's Estate, (19) the same court had held that a customarywife could not claim her deceased husband's estate when he had astatutorily married widow--in so doing, failing to recognize thevalidity of a customary marriage. In another example, the court heldthat a father, possessing land registered in his name, had absoluteownership over the land. Even his sons, who had held it jointly with himprior to registration, had no rights to the land. The courts ignoredcustomary law perhaps because it was necessary to preserve the integrityof registered titles for their own administrative and economic purposes.(20) This is not to say that all indigenous institutions and systemsneed to be preserved. The Ethiopian experience demonstrates the need toadapt indigenous institutions and processes to modern times, because intheir pristine forms customary or traditional mechanisms may no longerbe suitable. A survey conducted among divorced women in Addis Ababa Addis Ababa(ăd`ĭs ăb`əbə)[Amharic,=new flower], city (1994 pop. 2,112,737), capital of Ethiopia. It is situated at c.8,000 ft (2,440 m) on a well-watered plateau surrounded by hills and mountains. revealed problems with the traditional system of dispute settlement, asdescribed in Chapter 2. In Addis Ababa as in many other urban areas, couples were livingoutside their traditional groupings and could not turn to elders withintheir communities to settle disputes. Arbitrators were, therefore,randomly picked from near the courts in Addis Ababa. First, they werestrangers. This clearly was a departure from the traditional shimagele,who was accountable to the clan or tribe and whose first priority wasmaintaining the harmony and interest of the group. Second, shimagelesnow needed to be paid for delivery of service. Because payment was oftenlinked to the length of time that the arbitration involved, shimagelestried to prolong disputes, taking a longer time to settle them, eventhough the Civil Code prescribes a time within which disputes must besettled. Third, the women interviewed complained that the arbitratorscontinued to be men, who were better able to socialize so��cial��ize?v. so��cial��ized, so��cial��iz��ing, so��cial��iz��esv.tr.1. To place under government or group ownership or control.2. To make fit for companionship with others; make sociable. with then-malespouses and were therefore more sympathetic to them. Many womentherefore argued for the abolition of the shimagele system. Others,however, argue that experience in other countries demonstrates thatwomen have less access to a formal dispute-resolution process, given thecomplexity of procedure, the costs, and the time delays that invariably in��var��i��a��ble?adj.Not changing or subject to change; constant.in��vari��a��bil surround such processes. The challenge before the Ethiopians isdaunting daunt?tr.v. daunt��ed, daunt��ing, dauntsTo abate the courage of; discourage. See Synonyms at dismay.[Middle English daunten, from Old French danter, from Latin , but they have generated a participatory debate on the futureof the dispute resolution system. They hope that a process ofparticipatory dialogue will increase the likelihood that the finalproduct will be acceptable and in line with the desires of both men andwomen. In general, the legal tools used reflected a structure or processthat had little in common with previous customary systems. The newsystems significantly constrained the meaningful participation ofcommunities in determining the norms that governed them. Theyeffectively converted what was a bottom-up approach into a top-downapproach. In both systems, men were in the controlling position andparticipation in legal institutions was predominantly male. Although theoutcome from a gender perspective was perhaps only marginally different,it must be said that women had greater capacity to be heard in theprevious customary system than they did within the formal system thatreplaced it. Except for a small minority, the majority of women werealienated from the new and formal systems, which remained largelyineffective. The Challenge for African Leaders Although the new legal norms based on the concept of individualrights and the formal structures were first introduced by colonialrulers, they were equally acceptable to post-colonial and often verynationalistic leaders. This is perhaps because many of them wereeducated in Western universities and Western thought, and theseapproaches represented a vision of society consistent with the doctrinesof freedom and liberty that were the underlying themes of many of theindependence movements (Obiroa, 1995, p. 576). Having been schooled inWestern liberal traditions, thoughts, and languages, many of theseleaders would also have perceived a return to traditional mechanisms andnorms as a step backward. The rejection of customary practices in factcame to be seen as progressive and modern, and by those terms desirable. African leaders need to free themselves from this modernistapproach to legal reform, as it is one that understands progress orfreedom largely in universalist terms (Grenz 1996, p. 4). They must movetoward a post-modernist approach that recognizes the historical andcultural basis of effective legal systems. "In Africa, aselsewhere, much of life is lived outside of the law and involves valuesand patterns of behavior which are different from those enshrined in thestate's legal system. In these patterns may be found a repositoryof customary values which provide better building blocks than thosewhich were legitimized by the colonial state" (Chanock 1989, p.87). This recognition will underscore the need to find solutions, interms of both norms and systems, to specific problems. These solutionsshould focus on the historical, social, and economic contexts of theparticular problems, rather than on unimportant and abstract norms orimported systems. The challenge before African men and women is how tolobby for change in personal laws in a manner that will create lessalienating and more enduring solutions to their problems (Ilumoka 1994). The traditional or customary systems are clearly inadequate, andromanticizing the traditional vision on which these customary laws werebased cannot lead to an equitable solution for women in the moderncontext. In fact, nor would it lead to a just solution for the communityas a whole. Turning back is not a solution. At the same time, theso-called modern vision that replaced the customary system with a formallegal system based on a universalist approach has proved equally if notmore ineffective in protecting the interests of women. Any new legal system or tools will need to protect the interests ofboth the minority elite of educated women and the majority of poor ruralwomen. For the former, the concept of rights and the vision held by theformal system could be a liberating force; for the latter, it mayreinforce their dependency for decades to come. This leads to perhaps the single most important lesson to emergefrom analysis of past attempts at legal reform in these countries. Asingle universalist vision may be too constraining in the search forgender justice. To insist on committing to or finding a single vision ofgender justice may prove mistaken in the context of these easternAfrican countries. In fact, some legal scholars have strongly opposedthe view that law can be based on a "shared understanding,"because they argue that there is no shared understanding on genderissues, even among women (Okin 1989, p. 67). The new approach to legalreform should avoid trying to impose a vision of an ideal society,because any such ideal would inevitably become outdated with time. What then could be the basis for a new approach? It is submittedthat the new approach should discard the search for a universalconceptual framework For the concept in aesthetics and art criticism, see .A conceptual framework is used in research to outline possible courses of action or to present a preferred approach to a system analysis project. , whether it is traditional, modern, or acombination of the two. Instead, it should focus on a contextualanalysis of the problems that constrain women's choices and limittheir access to and control over economic resources (Rhodes 1989, p.316, Obiora 1995, p. 589). It should help to ground the analysis ofproblems facing women within the existing socioeconomic context, andshould facilitate a process that would allow men and women themselves tofind solutions to addressing their problems, solutions that arepractical and shorn shorn?v.A past participle of shear.shornVerba past participle of shearAdj. 1. of > any ideology as African countriesincreasingly integrate with the world economy. Such an approach would focus on and encourage a legal process thatpermits people to settle their own problems by applying their own normsthrough a fair and transparent process. As Rhodes states, "detailedblueprints of the ideal structure are less important than strategies toengage more participation in the reconstructive process" (Rhodes1989, p. 317). In the long term, these processes will enable people toparticipate in establishing a vision for a system of justice. A newmodel of justice must evolve in a truly participatory and bottom-upmanner, and if the vision that emerges is one that is truly owned andacceptable to the large majority of people, it is irrelevant whether itbases itself on customary or on modern constructs. Such a process-basedand participatory approach may ultimately prove a more effectiveapproach to legal reform in the long term. The beginnings of such anapproach have perhaps emerged in Ethiopia and Uganda, at least at onelevel, and are described in the next chapter.