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Customary law and gender renegotiation in Africa

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  1. Introduction
  2. The significant aspect of Britain's colonial policy
  3. Patriarchal control
  4. The major contestations of Customary Law
  5. Clash of colonial and African patriarchal forces
  6. Control over the migration and travel of women
  7. The marriage legislation
  8. Conclusion

The Colonial Period brought various and drastic measures of control to African communities which had previously been autonomous and self-regulated. The creation of colonial governments, institutions and courts brought radical and lasting change to individual lives and African societies as a whole. In British Colonies, a primary function of colonial control became known as ?Native Customary Law?. Through this invented legal structure, colonial officials and African men collaborated to design legislation that disempowered and subjugated African women. This essay will discuss the various avenues through Customary Law that women?s status, rights and obligations were re-defined. Through what was termed ?Customary Law?, Colonial governments and African patriarchs were able to legally dominate African women and limit their rights in a variety of ways, most significantly through migration, marriage and medicalization legislation.

[...] Hamilton declared marriage law of the Protectorate expressly omits native union from its purview . and does not deal with them as legal marriages.?[22] By outlawing any un-colonized marriages, a wife married under Customary Law had no right in a colonial court. Women were not persecuted or imprisoned under customary courts.[23] While in some ways this protected female liberation, it more importantly erased women's agency in marriage disputes and ultimately in marriage. Women were creates as dependencies and insignificant actors in customary courts. [...]


[...] Shadle, Brett. ?Bridewealth and Female Consent: Marriage Disputes in African Courts, Gusiiland, Kenya?. Journal of African History, vol.44, no.2, (2003), p Ibid, p.259. Kenya National Archives: Provincial Commissioner/Central Province 1/4/1 Kiyuku District Political Records May 1912. Cited in Kanogo, African Womanhood p.16. Ibid, p.21 Ibid. Kenya National Archives: Attorney General 4/2790 PA McElwaine, Crown Counsel to Acting Senior Commissioner Mombasa, Pagan Women Deserting' October 1923. Cited in Kanogo, African Womanhood p.21. Shadle, ?Bridewealth and Female Consent? p.255. Ritongo Kuja Case 927/59. [...]


[...] alignment between the parallel patriarchal legal systems of the elders and the state continued into the post-colonial period.?[33] Customary Law allowed African men to colonize their own women and to rework ?tradition? into a new definition of patriarchy and control. Arhem, Kaj. Maasai and the State: The Impact of Rural Development Policies on Pastoral People in Tanzania. Copenhagen, International Work Group for Indigenous Affairs p.16. Hodgson, D and McCurdy, S. ?Wayward Wives, Misfit Mothers, and Disobedient Daughters: Women and the Configuration of Gender in Africa? Canadian Journal of African Studies, vol.30, no.1 (1996) p.6. [...]

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