LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES
109
rapidly changing society must be respected and facilitated. . . . “Living” customary law is not always easy to establish and it may sometimes not be possible to determine a new position with clarity. However, where there is a dispute over the law of a community, parties should strive to place evidence of the present practice of that community before the courts, and courts have a duty to examine the law in the context of a community and to acknowledge developments if they have occurred (page 22).
In Zambia, local courts have the jurisdiction to decide on matters of customary law in relation to family disputes. According to customary traditions in the region, families agree on a bride price and a verbal agreement is made, witnessed by the families. There is no written record. In divorce, women do not have the right to demand anything, and, in some customs, the children are taken away from the mother. According to a local lawyer, Manfred Chibanda, “It is precisely for these reasons that men prefer customary unions . . . because the mind-set is I do not want my wife to get anything of mine, if she leaves my house, she goes the way she came” (IRIN 2005). In a landmark case in December 2005, a local court ruled that women married under customary law have the right to a share of marital property on divorce or husband’s death. In Martha Mwanamwalye v. Collins Mwanamwalye (2005), Magistrate Mwaba Chanda stated that “notwithstanding that the parties married under customary law, justice demands that when a marriage has broken down, the parties should be put in equal position to avoid any of them falling into destitution.” Another woman who had been married under customary law for 30 years but was awarded nothing in her settlement is using the case to make a fresh claim (IRIN 2005). Disadvantages of customary law for women. Customary law can also discriminate against women and be unsupportive of gender equality (Ayuko and Chopra 2008a, 2008b). Under Article 127 of the Code of Dahomey 1931 in Benin (repealed only in 2004), “a woman has no legal rights. Only in practice is she given some importance. She is often in charge of the administration of the household and can create some savings through the sale of her items. She is part of a man’s property and heritage.” Under this Code, women were considered legal minors and did not have the right to inherit from their parents or spouses. The Benin United Nations Human Development Report 2003 reports that 231 of 419 women included in their study had been denied loans specifically for these reasons and were forced to resort to informal financing. The Modogashe Declaration, drawn up to help bring peace to tribes in northern Kenya, sets out the traditional laws of these communities. According to the declaration, killing a man engenders compensation of 100 camels or cows, and killing a woman involves half that amount. When some women protested, they