Customary Law, according to Black’s Law Dictionary is, a law consisting of customs that are accepted as legal requirements or obligatory rules of conduct. This law is confirmed as part of the laws of Sierra Leone by virtue of sec 170(2) of the 1991 Constitution, which recognizes the Common Law. The 1991 Constitution defines Customary Law as “… the rules of law, which by custom are applicable to particular communities in Sierra Leone.” In other words, customary law differs from place to place. Discrimination on the other hand is the unfair treatment of people because of their race, colour, sexual orientation, language, religion or other personal features.
Although Chapter 3 of the 1991 Constitution of Sierra Leone states that the fundamental Human Rights and Freedoms of every individual in Sierra Leone must be recognized and protected; and that sec 27 further states that “no law shall make any provision which is discriminatory either in itself or its effects, the practices in customary law, however, runs contrary to these provisions. In other words, women are seriously discriminated against under this law. Moreover, the provisions in the customary legal system are couched in such a way that women are always the principal victims of human right abuses. These provisions are contrary to international standards such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), which states that “……..state parties condemn discrimination against women in all it forms and agree to pursue by all appropriate means without delay a policy to eliminate discrimination.”
To this end, this article examines the unequal treatment of women in customary law with regard to education, customary law marriage, divorce, succession, and illegal adjudication by chiefs. It concludes by proffering suggestions for reform.
Education
Art. 10 of CEDAW requires governments to offer women, on an equal basis with men, equality in education, including but not limited to the same conditions for career and vocational guidance; access to study at primary, secondary and tertiary levels and award of scholarship and study grant opportunities. However, customary practices widely discriminate against the girl child in the area of learning. Under customary law, it is accepted for a family to send male offsprings to school, and the female children stay at home. This typical customary practice is principled on the fact that the girl child should stay at home and be trained in basic household chores, so as to prepare them become suitable housewives. Even where they are sent to school, the environment is hardly conducive to foster effective learning; some of the facilities in schools discriminate against them, especially those who have reached puberty and are often subjected to sexual harassment. This has resulted in an overall low literacy rate among women compared to their male counterparts.
Customary Law Marriage
Under such marriage, a woman’s position is analogous in many respects to that of a minor. Women are denied equal rights before, during and after the dissolution of the marriage. Consultations over a prospective marriage by a potential suitor are often conducted with the woman’s father or the oldest surviving male relative, often without recourse to the woman or girl in question. As if adding insult to injury, once such a marriage is contracted, it is not considered as a partnership between husband and wife. That is to say, the wife has little or no say in terms of decision making in the home. Her role in such marriage is largely to take care of the domestic chores and the children. She is relegated to a subordinate role and makes her presence known only when required by the husband. In that respect, she becomes subservient to her husband at all times. Dereliction from her duties may lead to chastisement, which may be in the form of battery and sometimes divorce.
Polygamy as a traditional practice has been out rightly condemned by the monitoring body of the Committee on the Elimination of all forms of Discrimination Against Women (CEDAW) which states that “polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences on her dependants that such marriages ought to be discouraged and prohibited.”
Divorce
Article 16 of CEDAW and Article 23 of the International Covenant on Civil and Political Rights (ICCPR) recognize the right to equality in marriage. This includes the same rights and responsibilities during and at its dissolution. Contrary to this, women under customary law are divorced by their husbands as and when they like. Women may be divorced for adultery, whilst a man can marry as many wives as he so desire. Moreover, there is no provision in customary law for paying care and maintenance to the wife or child prior or subsequent to a divorce.
Succession
In the case of property devolution, the general practice is that, the widow herself is regarded as a property to be inherited together with the deceased property on the death of the husband. In the event the wife refuses to be inherited by one of the husband’s relations, only her personal belongings will be given her. If she, however, marries a member of the family of her late husband, she may enjoy whatever benefits the new husband derives from the estate.
Generally under customary law, the widow is not entitled to take out letters of administration, such rights are given to the eldest brother, the eldest son or the eldest surviving male in the deceased’s family. In modern customary societies, if the wife succeeds to get any property at all, she will only be given one-third of it. On the other hand, if the wife predeceases the husband, the latter automatically becomes the sole heir to everything. Another aspect of succession under customary law is with regard to who has right over the children. Generally, children born in marriage are ’owned’ by the husband and in the event of him predeceasing the wife, such guardianship/ownership passes on to the head of the husband’s family.
Illegal Adjudication by Chiefs on Women
Women face discrimination and inequality in laws, customs, and in rulings by chiefs and local officials primarily in marriage, divorce, inheritance, and property devolution. The consequences are devastating for women as it further entrenches them into poverty.
Furthermore, it forces some to stay in violent relationships and contributes to live in unhappiness. Moreover, it severely compromises women’s ability to properly care for themselves, and their children.
Laws governing marriage, property and inheritance impacts women in every facet of their lives. Yet women find the process of pursing remedies related to these human rights inaccessible. Their unfamiliarity with the law and procedure leave a lot of room for manipulation by those administering the law. In some cases, chiefs unlawfully impose fines and even detain them in their ostensible native prisons, contrary to Sierra Leone laws which prohibit chiefs from imposing fines or imprison people. Cases involving chiefs adjudicating on issues that pertains to women often results in unlawful rulings, humiliation and at times, imprisonment, trumped up charges and exorbitant fines.
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The above state of affairs is not helped by the fact that sec27 [4] d and e of the 1991 Constitution makes room for discriminatory practices against women in the area of marriage, divorce, devolution of property on death and customary law. The said provision states that “it shall not apply to any law that makes provision for adoption, marriage, divorce, burial, devolution of property on the death and customary law. It is therefore ironic to see discriminatory laws enshrined in the 1991 Constitution. In this light, this provision should be expunged because the areas mentioned are the very areas in which women are treated unequally.
Additionally, it is submitted that this provision is in need of radical amendment and/or repeal as discrimination against women in customary law is repugnant to equity, good conscience and natural justice. Moreover, it contravenes Article 2 [f] of CEDAW which states that, State Parties must undertake “all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices, which constitute discrimination against women.”
Government should endeavour to bring customary law in line with the general law. In view of the fact that from examination of documents and interviews conducted, it is obvious that customary law, which governs the bulk of the populace, is more discriminatory than civil law. Government must also ensure that customary courts operate within the ambit of the general law so that these courts will uphold basic rules of law being practiced by the formal courts.
Civil society groups should be robust in advocating for the abolition of discriminatory customary laws. These groups should monitor and report on institutions that uphold discriminatory practices. They should also galvanize their effort to advocate for the mainstreaming of CEDAW in our municipal laws.