Abstract

This paper looks at African customary law as a system of distributive justice capable of fulfilling the just distribution of basic goods in state. In this case that good is the right to property (land) and those seeking a fair entitlement to it are women. The aim of the paper is to re-vision customary law to appropriately fulfill its mandate as an inclusive gender sensitive system of justice. The paper is premised on the fact that not only is land a pre-requisite for securing a livelihood, much of it is regulated by customary law. Furthermore, women’s land rights are mostly sanctioned by customary law. And yet the significance of customary law is not reflected in the dual legal system that applies which ranks customary law below state or general law, and thereby renders rather precarious any entitlements to land derived from customary law. If justice is to prevail, customary law should be accorded its rightful status. However that is not the primary concern of this paper. The appropriate recognition of customary law comes only later after customary law has adequately provided for women. Thus its recognition should be earned by its own renewal as a system that is not based on gender hierarchy or a denial of women’s status as persons under the law with a full set of rights and obligations. Thus prior to or through the process of recognition, customary law must pass the test required of a distributive justice system by feminist theory. Lozi (Western Zambia) customary law is used to illustrate this argument: First it reminds the reader that as originally conceived, customary law is a system of law capable of providing for the distribution of basic goods in society. Secondly and more significantly, Lozi customary law shows that whilst it has the potential to serve as a system of distributive justice, its orientation towards gender hierarchy undermines that capacity. Thus what follows is a proposal to move customary land tenure from a system that espouses bilateral traits with a bias towards the father-right to a truly equitable system capable of a gender-just distribution of land rights. In short, the paper is a proposal for effectuating gender justice.