Gender equality under customary law: an analytical study on the developments of women's rights under customary law

Abstract

African traditional customs have historically been criticized for perpetuating practices that undermine women's rights. Rights to equality, human dignity, and bodily and psychological integrity have been suppressed under many Indigenous customs. Historically, customary law systems were structured in ways that disadvantaged women, particularly in areas such as marriage, inheritance, and traditional authority. Patriarchal norms entrenched in customary law before the democratic era afforded men significant privileges over women, especially in leadership roles within society and the family. Consequently, many customary law norms remain at odds with human rights principles that promote gender equality. Although South Africa has made significant strides in reforming customary law to align with constitutional principles and ensure gender equality, women living in traditional communities still face systemic barriers to justice. Many of these challenges stem from limited access to legal recourse and continued reliance on traditional leaders to interpret and enforce customary norms. While constitutional rights theoretically apply to all citizens, women in rural areas often experience these rights as inaccessible or ineffective due to entrenched traditional practices. This study examines the progress made by South Africa's judiciary and government in addressing the historical injustices of customary law. It evaluates the effectiveness of constitutional protections and judicial interventions in safeguarding women’s rights under customary systems. Finally, this paper argues for the need to strengthen oversight of traditional communities and integrate government institutions into areas governed by customary law. These measures aim to enhance awareness and enforcement of women's rights, ensuring their full realisation in practice.