Many African countries have complex legal systems that disadvantage women. Sometimes, however, women can use this complexity to their advantage and win a disproportionate number of cases, writes Erin Hern.
Most African countries are legally ‘plural’, meaning that the legal system includes numerous overlapping and sometimes contradictory principles. This legal pluralism in Africa is the result of colonialism. When European powers colonised Africa, they grouped together pre-existing communities that often had distinct legal traditions. Additionally, the colonial powers often imported their own legal systems. African colonies—and later independent states—wound up with a patchwork of indigenous legal principles alongside those brought by the colonial power.
Typically, each set of legal principles reflected a patriarchal social order: they were biased against women, but in different ways. One might think that women in such legally plural systems would have little hope of using the courts to their advantage. Yet, there are numerous historical accounts of women across Africa using the court system to claim their rights.
Court records from colonial Gold Coast (now Ghana) and Senegal show how women fared when they brought their cases to court. In each colony, there was an area of law in which women were disproportionately victorious: women were more likely to win inheritance disputes in the Gold Coast and divorce proceedings in Senegal.
What inheritance laws in the Gold Coast and marriage laws in Senegal have in common is that they were each in part of a legal code that was particularly complex. In each case, the different legal principles that could apply were contradictory and the way a judge should rule was ambiguous. That ambiguity created opportunity. Women in both places were able to win their cases by norm- or venue-shopping: activating different legal principles within a court system or selectively moving to different courts that applied different rules.
Gold Coast inheritance
In the Gold Coast, women were able to win inheritance claims by activating different legal principles. The rules governing inheritance at the time were supposed to reflect the indigenous practices of each ethnic group. Inheritance disputes were first heard by ‘Native Authorities’ run by local chiefs, who were able to apply local civil laws as they saw fit. These customary laws often disadvantaged women—particularly widows—by returning the estate of a deceased man to the head of the family on his mother’s side, often an uncle, rather than granting it to his surviving wife and children.
However, inheritance customs varied from group to group, and additionally, these laws conflicted with English law as applied in colonial courts, which privileged the rights of surviving members of the nuclear family. When women were dissatisfied with the way that their local chief ruled on a case, they could appeal to the colonial court system. Judges there had latitude over which legal principle to apply, and well-resourced women could continue appealing their claims to higher courts until a judge ruled in their favor. Between 1930 and 1955 of the inheritance cases appealed to the highest regional court, women won in 64 per cent of the time, despite both customary and British laws reflecting patriarchal social norms.
In Senegal, women were able to win divorce cases by taking their cases to different courts that applied different rules. The legal principles surrounding marriage and divorce were a complicated mix of Islamic law, French law, and local custom. Islamic and French law recognised a few pathways to divorce for women, but in local practice divorce was very hard for women to initiate. The lowest courts—village tribunals—prioritised reconciliation for married couples, making it functionally very hard for women to win divorce cases. However, the structure of the legal system made it possible for women to appeal their cases to provincial courts, where French-educated Senegalese judges were far more inclined to grant women divorces. In the Provincial Court records from 1928-1929, women won these cases 85 per cent of the time.
In both colonies, women were able to win—in a legal system that disadvantaged them—in areas of the law that were marked by complexity, ambiguity, and contradictions between the plural legal traditions. In both cases, women’s victories carried forth and influenced legal reforms in post-independence Ghana and Senegal, although social pressures limit women’s ability to fully exercise these rights.
While there are many studies that celebrate women’s highly visible resistance to unjust systems through demonstrations, civil disobedience, or participation in nationalist liberation movements, it is also important to understand the quiet, day-to-day actions that women take within disadvantageous structures.
While legal systems often benefit the most powerful within society, the contradictions within plural systems may offer opportunities for less powerful people to work the system to their advantage. In colonial-era Africa, women were able to upend the status quo in areas of the law marked by ambiguity, which may have implications for other marginalised groups.
This blog is based ‘When do Women Win in Legally Plural Systems? Evidence from Ghana and Senegal.’ Journal of Modern African Studies 60(4): 527-546.