Human Rights and Personal Law: Women in Sub-Saharan Africa

Author(s): Rhoda Howard

Source: Issue: A Journal of Opinion, Vol. 12, No. 1/2, African Refugees and Human Rights
(Spring - Summer, 1982), pp. 45-52
Published by: Cambridge University Press
Stable URL: http://www.jstor.org/stable/1166538
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 HUMAN RIGHTS AND PERSONAL LAW: WOMEN IN
SUB-SAHARAN AFRICA
Rhoda Howard

In this paper I will discuss women's rights regarding equality and women.
marriage, the family, and genital operations in the context of It follows from this that I do not accept the extreme view
internationally accepted views of the individual rights of of cultural relativity, sometimes used to defend cultural
women. I focus upon these particular areas partly because the practices regarding women in Africa, in which "Reverence
issue of female genital operations in Africa has been the for cultural values, rather than reverence for life, becomes
subject of much popular attention in the last three years, but the absolute virtue...."' I do accept, however,that in what is
mainly because, given that women's biological reproductive left of "traditional" Africa there is a concept of human
roles are so much more central to their lives than are the dignity which is bound up in an individual's fulfilling of her
equivalent roles for men, their rights in these areas socially approved role: that is, the individual who conforms to
profoundly affect their ability to exercise their rights in other
society's view of her role as daughter, wife, mother or widow
areas, i.e. in the polity and in the economy. For data I use will feel a sense of respect and worthiness. This view of
examples from several English-speaking sub-Saharan human dignity does not accord with Western concepts of
countries. individual freedom.
Nevertheless, human dignity is not the same thing as
WOMEN AND UNIVERAL HUMAN RIGHTS
human rights, which inhere in a human being merely because
Discussion of women's rights in underdeveloped she countries
is human, not because she fulfils prescribed duties. I
is often linked with debate as to whether or not the concern believe that women in Africa, like women everywhere, must
with women's rights or women's "liberation" is merely be
a guaranteed their individual rights. They may choose, as
latter-day form of Western ideological imperialism. I take theindividuals, to remain within their culture and to fulfil
position that while the provision of women's rights cannot cultural
be norms, or they may choose to "opt out" of some of
separated from the attempt to develop sub-Saharan African their traditional customs. I will argue that individual women
countries, neither can women's rights be put aside until such in Africa should be enabled to opt out of traditional customs
Utopian time as the government of a newly-developed state when they so desire; however, this does not mean that
sees fit to grant them. legislative abolition of deeply-rooted and valued customs is
Macro-social global inequalities do not render inequalitiesappropriate, even when such customs violate universally-
between men and women in specific African societies acknowledged (in United Nations' documents) principles of
irrelevant, nor are such gender inequalities merely the resulthuman rights.
of ideological control by colonial powers. In pre-contact A number of United Nations' treaties deal specifically
indigenous social structures in sub-Saharan Africa, women's with the rights of women in marriage and the family. Among
rights and duties differed from men's, and often rendered these is the Supplementary Convention on the Abolition of
them unequal in family, lineage and state affairs. Such Slavery, the Slave Trade, and Practices Similar to Slavery
differences have been elaborated upon in the colonial and (1956) which contains two clauses especially applicable to
post-colonial eras to create substantial legal, social and sub-Saharan Africa, namely that countries ratifying the
material inequalities between the two sexes. Thus the African Convention must agree to abolish any institutions or practice
woman of today is not merely a member of her indigenous whereby
primary group; she is also a citizen of a nation-state which
(i) a woman, without the right to refuse, is promised or given
has undergone five centuries of change as a result of its in marriage on payment of a consideration in money or in
incorporation into the world capitalist economy. African kind... or ... (ii) a woman on the death of her husband is
societies may be rooted in traditionalistic, communal origins, liable to be inherited by another person [Article 1, c, i and iii]
but they now also contain strong competitive traits.
"Modernization" and colonialism have altered the status of These clauses can be interpreted to prohibit bridewealth and
widow inheritance, both practiced with some frequency in
women in Africa to such an extent that perhaps only
sub-Saharan English-speaking Africa.
"modern" ideologies of women's liberation can provide the
intellectual organization necessary for the struggle for
The Convention on Consent to Marriage, Minimum Age
for Marriage and Registration of Marriages (1962) also
RHODA HOWARD is an Associate Professor in the Department of contains a number of clauses directly pertinent to
Sociology at McMaster University. "traditional" African marriage practices. This Convention

45

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46 ISSUE: A JOURNAL OF AFRICANIST OPINION

specifically declares in its Preamble that MARRIAGE AND THE FAMILY

certain customs, ancient laws and practices relating to marriage
Free Choice in Marriage
and the family ... [are] inconsistent with ... the Universal
Declaration of Human Rights [and that] ... all States: ... The rights of women in marriage and family matters ar
should take all appropriate measures with a view to ... central to their rights as individuals. Insofar as women's live
ensuring ... complete freedom in the choice of a spouse,
are affected far more profoundly than are men's by the
eliminating completely child marriages and the betrothal of
young girls before the age of puberty ... and establishing a civil
reproductive roles, lack of rights in this area can effective
or other register in which all marriages will be recorded. mean that women cannot exercise any rights they ma
formally have in other areas. Nevertheless, the assurance of
However, were this Convention to be implemented in sub- rights for women in this most personal of spheres is
Saharan Africa, one could anticipate quite severe social complex matter, given that all societies value preservation o
consequences from attempting to legislate out of existence the family as much as they purport to value individua
long-standing practices. It is more important in this regard tofreedom. If woman is the linchpin of the family, can he
note that the United Nations "sets international standards"2 rights then be considered more important than those of th
to which all countries committed to human rights can aspire, larger group? In sub-Saharan English-speaking Africa, wher
even if provision of such rights in genuinely impractical at extended families predominate and marriages are usually
present. matter of lineage concern, this question is even more
All of the above rights, along with many more, are pressing than it is in areas where the nuclear family prevails
included in the omnibus Convention on the Elimination of The customs of child betrothal, arranged marriage,
All Forms of Discrimination against Women (1979). This
bridewealth, and widow inheritance are central to the
Convention resembles in part the 1967 "Declaration" on the organization of society. Marriages based on these principles
Elimination of Discrimination against women,3 which are generally contracted in good faith, and the people who
included all previously acknowledged rights, plus the rightarrange
to the marriages are attempting to obtain a satisfactory
family planning, equal rights and duties regarding children,
outcome both for the individuals concerned, and for the
and equal rights regarding property and inheritance. Articles
lineages which are allied by the particular marriage.5
16,1,b and 16,2 of this Convention also reiterate the In this connection any advocacy of immediate
prohibition against any form of unfree marriage. Throughoutimplementation in sub-Saharan Africa of laws which conform
the rest of this paper I will refer to the 1979 Convention to
as United Nations' provisions for women's rights in the
the basic United Nations document on human rights for
sphere of marriage and the family could be interpreted as an
women.
imposition of a secularized, individualistic view of human
Of equal importance to United Nations' provisions for relations upon Africa. Different cultures have different norms
women in Africa is the recently adopted Organization of of individual versus social needs. While socio-economic rights
African United Charter on Human and People's Rights (the embodies in the "basic human needs" approach, and even
Banjul Charter).4 Provisions of this Charter specifically rights of civil and political freedom, seem to be accepted as
relating to women include the following: The anti- universal, rights impinging on "custom" can be seem as
discrimination clause specifically prohibits distinction on the more relative. On the other hand, there is almost universal
basis of sex. (Article 2). Articles 4 and 16 assure respect for evidence that marriage customs are hinged on the
life, the integrity of the person, and physical and mental subordination of women as a group to men as a group.
health. Article 18 specifies Customs are neither immutable in time, nor neutral in their
1. The family shall be the natural unit and basis of society. It impact.
shall be protected by the State.... While I cannot, in this paper, discuss the complex
3. The State shall ensure the elimination of every question of "cultural relativity" in any depth, I can propose
discrimination against women and also ensure the protection of three principles regarding culture, which can serve as a guide
the rights of the woman and the child.... in understanding the difficulties in implementing women's
While the rights of women are thus specifically protected, personal rights in English-speaking sub-Saharan Africa. First,
their inclusion with the protection of the family could resultpeople value customs even when they seem to be
in ambiguities when the individual woman comes into conflict "irrational" to an outsider; the symbolic value is a real
with family norms or with her husband's desires. This personal value. This is a particularly important point to
potential ambiguity is also reflected in Article 17,3. "Theremember with regard to female genital operations. Secondly,
promotion and protection of morals and traditional values culture and customs can change endogenously, not merely as
a result of colonialism or contact with Westernization or
recognized by the community shall be the duty of the State."
As discussed above, some community values, such as the urbanization. As Luckham remarks regarding the codification
custom of child betrothal, arranged marriage, bridewealth and of "customary" law in Ghana into written law, "the static
widow inheritance are directly antithetical to individual conception of the law which resulted was wholly alien to the
women's rights as defined by the United Nations' flexible and adaptive nature of custom."6 Finally, just as
conventions. those who attempt to modify or change customs may have
personal interests in that change, so also do those who
attempt to preserve customs. Again regarding Ghana,
Luckham states that "customary law tended to be
systematized from the start by people who had a personal and
class interest in its operation."7 The preservation of custom

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VOLUME XII, NUMBERS 1/2, SPRING/SUMMER 1982 47

can mask real conflicts over economic or political resources. a matter of debate among Africans. The Economic
The discussion of cultural relativity is even more pertinentCommission for Africa, for example, has advocated its
in former British Africa than elsewhere, because of the abolition, although not by changes in the law.1
continued existence, in most countries, of more than one The case against polygyny seems to be that it is considered
code of law. The British chose to formally codify demeaning for one man to "own" several wives, and that it
"customary" law in their African colonies. Codification isofimpossible, in a multiple-wife situation, for the (Western)
customary law is complicated by the fact that each ethnic ideal of a companionate marriage based upon love, trust and
group has its own legal system, so that conflicts can occur mutual respect to be realized. From the wives' point of view,
when two people of different ethnic groups marry.polygyny (For also means that they and their children must share
example, a woman from a patrilineal ethnic group may
their husband's material, emotional and sexual resources:
believe that her children should inherity their father's estate,that they will be plagued by rivalry; and that senior wives will
but if the father is from a matrilineage, he may believefear thatyounger, prettier wives while junior wives will live under
his estate should be inherited by his maternal kin.) In thethe
senior wives' authority.12
urbanized areas British law was introduced in order to serve The case for polygyny, from the man's point of view, is
Europeans and "modernized" Africans. In most sub-Saharan that it allows him to accrue economic resources of female
English-speaking countries, then, there is a customary and a labour-power, and that it ensures him the status and long-
formal legal sector, the latter being exemplified in the case ofterm material security of large numbers of children.13 From
marriage law by the Marriage Ordinance. In addition, some the woman's point of view, polygyny provides other women
countries provide separate laws for Muslims, and Kenya also to share in child-rearing, husband care, and possible
has a separate Hindu law for its Asian-origin citizens. Reform economic ventures such as marketing; it provides
of legislation involving human rights thus also implies companionship; and it ensures her the right to post-partum
unification of the law, as recommended, for example, by thecelibacy so that she can space her children.14
Economic Commission for Africa.8 The assumption among most women is that husbands are
In this connection Tanzania's recent decision to adopt a necessarily unfaithful; the Christian ideal of monogamy on
unified marriage law, with new provisions such as the idea which many outsiders' and "modernized" Africans'
that the rights of the child should be paramount in custody objections to polygyny are based, is seen as unrealistic. Whi
cases, is of particular interest. By abolishing legal pluralism, it men married under the Marriage Ordinance are not legally
puts all marriages on an equal footing. It also subordinatespermitted to take customary wives as well, they often do s
customs, including Islamic customs, to a secular, legal this results in a situation in which the Ordinance wife has
framework.9 Interestingly, the Tanzanian law is based upon a legal rights while the customary wives do not. The trend
proposed reform of Kenyan law which did not go through therefore, in African legal reform circles is not to advocate
Parliament. The Kenyan Law Reform Commission had been that polygyny be abolished, but rather to ensure that
instructed to frame a uniform law of marriage, paying marriages of all types (and wives of all types) be on an equa
"particular attention to the status of women." Two of the legal footing.15
principles underlying the commission's report are of special Polygyny is in fact related to a complex of customs
interest: prevalent in "traditional" African societies which violate
any such uniform law must be founded on the African way of life, United Nations' norms: these include bridewealth, arranged
always bearing in mind, however, that that way of life is marriages, child bethrothal, and widow inheritance. Certainly
rapidly changing and that urban and rural conditions are widely to those who believe in the individual's right to choose her
different; for these reasons, we thought that traditional rites spouse, the ideas of child betrothal, arranged marriage in
and customs should not be codified, as to do so would impede return for a monetary consideration, or the "inheritance" of
natural and gradual change.... a widow by her deceased husband's relative, are abhorrent.
Yet these practices are far from abhorrent in a society which
the law must be based on a recognition of human dignity,
regards marriage as an alliance between lineages, which
regardless of sex....10 [emphasis in original]
believes that young people are incapable of making reasoned
decisions regarding their future spouses, and which wishes to
Despite the stating of these principles, objections to the Bill,
from members of Parliament as well as others, included theprotect widow by providing them with a new male guardian
ideas that the Bill was "un-African," and gave too many on the death of their spouses.
rights to women. It can by no means be taken for granted There are contradictory indications, for example, as to
that the men in power in sub-Saharan Africa will willingly whether or not bridewealth means that a daughter is subject
grant women equal rights. In the culturally sacrosanct family, to sale by her father. Writing in the early 1960s, Izzert noted
men retain a marital, sexual and moral dominance which that among the Yoruba, "acceptance [of bridewealth]
many are unwilling to relinquish. indicates approval of the marriage and a willingness to render
The custom of polygyny, which is permitted by both assistance if the bride's husband dies or turns out to be
customary and Islamic law in English-speaking sub-Saharan unreliable, the assistance being given to the bride and her
Africa (including Tanzania, where unification of the law has children."16 In the past, then, bridewealth served as a form
not prohibited polygyny) is often cited as an example of male of insurance. A man who divorced his wife without cause
dominance. But there is no provision in and United Nations permanently forfeited his brideprice, which could then be
or Organization of African Unity convention, nor indeed in used to support his wife and children; similarly, a woman
any International Women's Year recommendations, that who left her husband without cause would know that her
polygyny should be abolished; nevertheless, its continuance is family would be obliged to return the bride-price. Nowadays,

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48 ISSUE: A JOURNAL OF AFRICANIST OPINION

there are signs that "Fathers [are] tempted to hold up their

law seems to guarantee the most equality for women
daughters to the highest bidder;"17 however, among the marriage breakdowns are matters for negotiat
divorce;
more "modernized" population, "there is [also] a growing
between the two families. However, matters to be negotia
tendency among educated parents ... to refuse all money can discriminate against women. For example, a husband c
payments, saying their daughter is not for sale."'8 divorce a woman for "barrenness" or adultery, whereas sh
Bridewealth is practiced extensively in sub-Saharan Africa. cannot leave him for the same reasons. Family negotiation
An attempt to abolish it by legislation could well interfere moreover, leaves the woman dependent upon decisions
with traditional means of protecting a young woman from advice from male elders of her own lineage, with which s
abuse by her husband. It would seem that among the elite may not agree.
population the practice will die out in any case, as a new Moreover, a divorced wife may not have rights to
ideology of women's autonomy takes hold. The sensible legal maintenance for herself or her children, or even to retent
course to take would probably be not to abolish the practice of property acquired during marriage. Such a fact is n
outright, but merely to ensure the right of any woman not to surprising. In "traditional" societies, wives are expected
be subjected to the practice if she chooses otherwise. provide much of their and their children's own supp
The same principle should probably be applied to arranged through agricultural and marketing activities; the divorce
marriages and child betrothal. No one should be forced wife presumably can return to her own lineage and acquir
against her or his will to enter a marriage. Registration of all land use rights there, so that she is not in need of
marriages and the enforcement of a rule that marriages can maintenance. Unfortunately, the urban wife does not have
only be formalized after the age of majority has been the same resources at her command. The "modern" wife
reached, would ensure a mechanism to ascertain whether or married under the Ordinance, moreover, is subject to
not both spouses agreed to the marriage. Paternal pressure discriminatory provisions of British law which assume that a
would however still influence a young woman's decision.19 wife's housework is not an economic contribution to the
Legislation cannot control how decisions to marry are made; household, and which provide very weak sanctions against
but it can provide a means by which a young woman who husbands who default on maintenance payments.
wishes to escape from traditional family controls can do so. It Article 16,1,h) of the 1979 Convention against
can also embody a new ideology which can act as an impetus discrimination guarantees women and men "the same rights
towards future relaxation of community norms. for both spouses in respect of the ownership, acquisition,
A similar analysis can be applied to the custom of widow management, administration, enjoyment and disposition of
inheritance. Sagay discusses the case of a succeeding Yoruba property...." This provision is acknowledge in some court
Oba (chief) who inherited fifty "palace wives": the issue at decisions in English-speaking Africa, so that educated urban
hand was whether he could actually marry these fifty women women, who have the resources to avail themselves of the
under customary law, given that he had already married one courts, have some recourse against ex-husbands who default
woman under the monogamous Marriage Ordinance; one or do not offer maintenance payments. In other cases even
solution posited was that as long as the women were merely educated women have no such recourse; in 1969 Kenya
"institutional wives" and the marriages were not repealed its Affiliation Act, which obliged fathers of children
consummated, they would be legal. Such a solution suggests born out of wedlock to pay for their support.23 In the
that widow inheritance is actually a form of protection for
customary sector the wife seems to be dependent upon family
women; by being formally affiliated to a man from their
negotiations and the assumption of good-will between the
husband's lineage, they maintain their residence rights
two
andparties. For women living in "detribalised" urban
(limited) rights to support. Sagay notes that "In modern
settings, or married outside of their own ethnic groups, such
times, an Oba's widow who does not wish to become the wife
provisions are of limited use. With regard to both inheritance
of her husband's successor may move out of the palace."20
and maintenance rights, many women in English-speaking
However, in practice such a choice may not be tenable,Africa
as in still suffer severe legal disabilities.
many parts of Africa, a woman who is not a wife is a womanThe final area in which women suffer legal discrimination
without any rights to her children or property.21 is in the matter of custody law. Article 16,1,d) of the 1979
Covenant specifies that women and men shall have "The
Economic Rights of Women in Marriage same rights and responsibilities as parent, irrespective of their
marital status, in matters relating to their children; in all
The above statement brings to our attention the necessity
casesatthe interests of the children shall be paramount."
for women to have real, economic rights in marriage and
its dissolution by divorce or death, as well as the personal
However, with the exception of Tanzania, English-speaking
freedom to choose their marriage partners. In this sub-Saharan
sense, countries do not necessarily guarantee women
inequitable access to divorce constitutes a discriminatoryequal rights with men regarding their own children; indeed,
liability from which women suffer. Article 16,1,c) of the the1979
presumption seems to be that fathers' rights to custody
covenant against discrimination guarantees women andare men
paramount, even in supposedly matrilineal societies.
"the same rights and responsibilities during marriage Although
and at the interests of the child are supposedly paramount
in Kenya,
its dissolution." But this right is not necessarily guaranteed to in practice "some judges insist on using the
all women in English-speaking sub-Saharan Africa. Muslim traditional concepts which considered the father as the
women are under the greatest legal disability; in Kenya 'owner'
and of the child."24 Although the Bemba (of Zambia)
custom is that children stay with their mother, "men do not
Sierra Leone, a husband can divorce his wife by repudiation,
and even in Tanzania, a husband's repudiation can be takenhesitate to take their children away from their natural
as evidence or irreparable marriage breakdown.22 Customarymothers.... If a man is politically powerful and wealthy, it

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VOLUME XII, NUMBERS 1/2, SPRING/SUMMER 1982 49

seems that traditional custody rules are suspended, and refusing."31) Izzert reported of her Yoruba sample th
women do not feel able to challenge their ex-husbands."25 "Married women often complain of physical cruelty-usuall
Shuster reported that some of the mothers she interviewed in of frequent beatings without any justification."32 In a hig
Lusaka (Zambia) did not want to accept badly-needed percentage of Nigerian divorce cases cruelty is cited as the
maintenance payments from the fathers as the father would reason for the divorce.33 A number of cultures in East Afr
then claim he had the right to custody of the children when give positive sanction to wife-beating.34
they were older.26 In many instances, as in Sierra Leone, the The problem of violence against women seems to b
mother bears the full burden of raising the child until it is partly exacerbated by women's increasing tendency to step
about seven; the child is then removed from her.27 Aside out of their presumptive roles, especially in urban are
from whatever "maternal" feelings a mother may have for a Mushanga explains wife-murder partly by the fact that ma
child she has raised for seven years, when she loses a child, men believe that women should "remain subservient" to
she loses a valuable economic resource, both for assistance in their husbands, and that they become enraged when their
her day-to-day chores and as security for her old age.28 wives are not subservient.35 Men seem to use violence as a
Thus there are two themes running through the above form of social control when communal norms break down
discussion of women's rights in marriage. The first is that and women assume freedom. The "single" woman of the
although many women may prefer to live under those city, who defies convention by living independently of a man,
customs with which they are most familiar, even though the is especially likely to incite male hostility; presumably the
customs deny them personal freedom, international human assumption that she is a "loose woman" can be used as a
rights legislation as well as some of the legislation of the justification for attacking her, as sporadic assaults on women
countries concerned, requires that they be able to remove in miniskirts in Malawi, Tanzania, and Kenya36 testify. "Men
themselves from the control of these customs should they so are angry at women because they are no longer
desire. The second theme is that formal economic rights of subservient;"37 but to defend oneself against violence from
women in marriage are becoming increasingly necessary as men by the assumption of a subservient role seems faint
customary means for providing for women and children protection. This is an area in which cultural beliefs may
within the lineage break down. require legislation, in conformity with the provision of the
OAU Declaration on human rights that "human beings are
"New" Rights of Women inviolable."
A third comment which can be made regarding women's Finally, the provisions for women's rights to control their
rights in the marriage and family sphere in Africa is that a own reproductive powers are ambiguous. The 1979 Covenant
number of the concerns of "Western" feminists, namely the reflects most United Nations documents in its provision
sharing of domestic responsibilities, the issue of violence (Article 16,1,e)) that women and men have "The same
against women, and rights of women to control over their rights to decide freely and responsibly on the number and
own reproductive systems, have been inadequately addressed spacing of their children and to have access to the
in the United Nations and in the individual African countries. information, education, and means to enable them to
To ignore these concerns under the pretense that they areexercise these rights." This statement ignores the reality that
the burden of child-bearing falls only on women, and of
indications of Western bias is to show disregard of the nature
of relationships between men and women in Africa. child-rearing disproportionately on women. Moreover, there
Regarding "household" chores, the evidence indicates that are differences between husbands and wives regarding desired
women do an inordinate share of productive and domestic numbers of children. For example, a study of nine rural
labour. For example, during the planting season, a typical Yoruba couples revealed that the husbands' ideal number of
Zambian woman has a work-day of fifteen hours. The children was eleven, while the wives' was six.38 The men in
Economic Commission for Africa concludes that women this small sample, as in many other cases, also preferred
perform the major part of the labour in basic production boys,and
so that wives can be compelled to bear children until
household activities.29 The provision of article 16,1,d)they of the
produce the requisite number of sons. Given the
Covenant against discrimination against women that both cultural domination of men in decision-making, combined
men and women share "the same rights and responsibilities with their physical capacity to impose sexual relations on
as parents" may be interpreted to mean that men should their wives, the reality of the matter is that men usually have
share in day-to-day child-rearing chores; however, there is no the last word on family size, as the Economic Commission
mention or discussion of this possibility in the literature on for Africa has recognized.39 Moreover, the "means to
human rights. enable" the right to determine the number and spacing of
With regard to violence against women, there is no children are denied to women insofar as abortion is denied by
specific mention of this problem in the various United legislation, as in Kenya and Ghana.40 Akingba found that
Nations' Covenants, although the 1980 International "while Nigerian men still contend that all pregnancies are
Women's Year conference did recommend that "Legislation welcome, the incidence of unwanted pregnancies, and hence
should ... be enacted and implemented in order to prevent abortions, in both single and married women is a major
domestic and sexual violence against women."30 In Africa, problem."41
the problem of violence against women seems to be more
FEMALE GENITAL OPERATIONS
one of wife-beating than of rape. (Although even here, the
evidence is not clear; Schuster reports of her "sub-elite" The question of control by women of their own bo
sample in Lusaka that "Nearly everyone has submitted to brings us to the issue of female genital operations. T
sexual relations out of fear of the consequences of issue which has received much attention in the Weste

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50 ISSUE: A JOURNAL OF AFRICANIST OPINION

and among Western feminists since about 1979, largely as maya be possible for African women to enjoy their sexual
result of the work of Fran Hosken.42 Much of the Western relationships even after having undergone the operation.
reaction has been couched in terms verging on the racist. In any case, attribution of the origin of the practice to
Circumcision, both male and female, has been cited in gross misogyny seems unwarranted. The origins are obscure.
Christian Europe for centuries as evidence not only that They may represent an attempt by males to control female
Africans, but also that Australian aborigines and indeed reproductive powers or female sexuality. Some informants
European Jews are a lesser form of being.43 Hence in say that both male and female circumcision are intended to
discussing the practice of female genital mutilation, it isremove the "female" parts of males and the "male" parts of
important to keep in mind the ideological context in which females; in this regard, the practice represents one among
previous discussions have been couched. To avoid discussion many attempts to impose order on an uncertain world. Many
of the practice altogether, or to interpret it, as anthropological informants assume that female genital operations are
functionalists have done in the past, merely as an integrative required under Islam; this, however, appears to be a
indigenous custom44 is to avoid confrontation of its misinterpretation of Islamic teachings.49 Many women say
detrimental effects on women. that they perform genital operations on their daughters, or
I use the term "female genital operations" rather than undergo them themselves, as otherwise they or their
than the term "female circumcision" because the latter term daughters would be unmarriageable. It would be useful to
is inaccurate. Circumcision, the removal of the clitoris, is the ascertain if women would still perform the operation on their
mildest form of this operation, which also includes excision, daughters if they were assured their daughters would be
or "the cutting of the clitoris and of all or part of the labia marriageable without it.
minora" and infibulation, or "the cutting of the clitoris, labia While generally speaking it is educated African women
minora and at least the anterior two-thirds and often the who have publically spoken out against the continuation of
whole of the medial part of the labia major."45 "Several tens female genital operations, there are known cases of adult,
of millions of women"46 are estimated to have undergone educated women who have voluntarily undergone it. These
these operations in Africa as a whole. The operations are cases serve as evidence for the proposition posed at the
widespread in Ghana, Kenya, Nigeria, Sierra Leone, and beginning of this paper, namely that people value cultural
north-east Tanzania. Infibulation appears to be practiced practices
in even when they seem to be "irrational." The
Northern Nigeria and Northern Kenya, and excision in rationality of female genital operations, in the eyes of those
Kenya, northern Tanzania, Nigeria, Ghana and Sierra Leone;
who practice them, would seem to be in their connection of
some ethnic groups merely practice circumcision. Rejecting
the individual to the ethnic group of which she is a part, as a
the term "female circumcision," however, I prefer not to
mature, respected adult. Moreover, the practice may have a
adopt the currently-fashionable term "female genital general symbolic meaning for the whole group, as male
mutilation" in its place; the latter implies a deliberate intent circumcision has for Jews. Jomo Kenyatta, defending
to mutilate (as in torture) which is not at the root of the circumcision among the Gikuyu (Kenya) in the 1930s in
practice, even though objectively, women and girls are response to British missionary efforts to suppress it,50 argued
mutilated. A more neutral term is merely "female genitalthat the practice was central to the entire symbolic and age-
operation." grading organization of society.51
There is overwhelming medical evidence that even the Defenders of female genital operations seize upon
mildest form of this operation can have, and often does have arguments such as Kenyatta's to maintain that the custom is
very serious medical consequences, including so culturally central that to abolish it would be to destroy the
shock, haemorrhage with often fatal results, infections very fabric of society. In response, critics note that much of
complicated by tetanus, urinary retention, damage to urethra the ritual surrounding the custom has disappeared, and it is
or anus, gynaecological complications resulting from ill- done at younger and younger ages, partly to avoid external
performed cuts, chronic pelvic infections, callous formation, censure and partly because girls run away to avoid "the
infertility caused by damage to vital organs and infections, razor." On the other hand, one could argue that if all that is
obstetric complications resulting in delayed labour or inability left of an initiation ceremony is the operation itself, its
to deliver a baby normally [resulting in foetal death or brain symbolic importance is even larger than it was before.
damage] .47
Perhaps a better way to discuss the problem is to note that
There is absolutely no evidence that female genital mutilation cultures change, and that people can learn to develop an
contributes to hygiene, as is often claimed for its justification; identity through new ways, for example, as one female M.P.
on the contrary retention of urine or menstrual flow as a in Kenya suggested, "the expansion of girls' education as an
result of excision of infibulation is extremely unhygenic. alternative means of achieving self-identity."52 Thus changes
The operation also has the consequence of interfering in one custom can be compensated for by adjustments in
with basic physiological responses to sexual stimulation; another; an ethnic group can identify itself by its language or
indeed, this is fully acknowledged by the many Africans who its territory, rather than by its ritual.53
cite (somewhat erroneously) as justification for the practice, What, then, ought to be done with regard to this practice,
that it will control promiscuity in young women. Some which is clearly detrimental to women's and children's
western feminists, among them Hosken, therefore view health, and as such clearly violates a number of United
female genital mutilation as a deliberate form of "sexual Nations and OAU principles regarding basic human rights?
castration," an example of "contempt for the female of the Article 25 (2) of the Universal Declaration of Human Rights
species."48 Sexuality, however, is a sociological and states "Motherhood and childhood are entitled to special care
psychological as well as a physiological phenomenon, and it and assistance." Article 4 of the Banjul Charter states

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VOLUME XII, NUMBERS 1/2, SPRING/SUMMER 1982 51

"Human beings are inviolable. Every human being shall be operation which leaves many traumatized and passive.59
entitled to respect for his life and the integrity of his
CONCLUSION
person," while Article 16 (1) states "Every individual shall
have the right to enjoy the best attainable state of physical Women's personal rights in sub-Saharan Africa cannot
and mental health." Finally, insofar as "the descriptions left aside until their various governments have impleme
available of the reactions of children [to genital operations] minimal levels of basic socio-economic rights. These righ
... indicate a practice comparable to torture," it also violates will not be implemented, given the nature of class-strat
the 1959 Declaration of the Rights of Children, which societies and the economic inequities of peripheral capitali
specifies that "children should have the possibility to develop unless individuals, including women, organize and fight
physically in a healthy and normal way in conditions ofthem.
liberty and dignity. They should have adequate medical Women have a right to physical integrity and to indiv
attention, and be protected from all forms of cruelty."54 Inchoice in how they will live, even if, highly influenced
this regard we should also note that there is a much higher their cultures, they choose to live in a manner which m
than normal risk of fetal death through uterine infection, Western feminists might find offensive. Women have a r
death at delivery because of a constricted birth canal, andalong with men, to demand political participation a
brain damage for children of mothers who have undergone minimal economic security. In order to put into effect s
the most severe forms of genital operations. rights, they need their health; and many women's healt
In 1979, the Economic Commission for Africa condemned adversely affected in both the short and the long term
"infibulation and other female sexual mutilations" and called genital operations. They also need time; this means that
for an educational campaign and government assistance to must be relieved of the burdens of excessive child-be
attempt to eradicate these practices, while at the same timeand the responsibilities of child-rearing and child-suppo
condemning international campaigns on the subject which They need to be able to behave in ways which their
"do not take into account the complexity of the African "traditional" societies and their husbands might find
situation."55 It would seem that, for the moment at least, an offensive; they need to join the new, urban-based, literate
educational campaign directed particularly at health polity as equal co-operators (or competitors) with men.
professionals, schoolgirls, and patients in maternity clinics, Thus rights for women in the person sphere are central to
would be the most appropriate manner of beginning rights for women in the legal, political and economic sphere
elimination of the custom. Legislation banning female genital and by extension, I maintain, to any reasonably equitable and
operations might merely drive the operators underground, democratic
as development in Africa as a whole.
it appears to have done in the Sudan.56 Legislation which
NOTES
permits the operation only with the consent of the woman or
girl to undergo it, might be considered, but such legislation This paper is based on part of a larger paper on women's rig
would not solve the problems of performance of genital English-speaking sub-Saharan Africa, containing sections on po
operations upon minor females. Clearly, operations upon and economic as well as personal rights. The larger paper
adult females without their consent could be made illegal. delivered at a conference on "International Human Rights:
Dilemmas of Liberty and Development in Africa," SUNY Buffalo,
Indeed, there has been at least one case in Kenya in which
May 8, 1982, and is forthcoming in Claude E. Welch and Ronald I.
five people were jailed for circumcising a twenty-three year Meltzer (eds.), Human Rights and Development in Africa (New York:
old woman against her will.57 With regard to this and other SUNY Press, 1983). I would like to thank Drs. Welch and Meltzer
cultural practices such as brideprice, a useful reconciliation of for permission to print part of the paper in Issue. For their helpful
social norms with individual rights could be obtained through comments on earlier drafts of this paper, I would like to thank
the provision that the state would uphold the right of an Omega Bula, Graham Knight, Michael Levin, Harriet Lyons, Clairee
individual woman to refuse to subject herself to such Robertson, and Audrey Wipper. I would also like to thank Karen
customs. Poxon and her staff for their efficient preparation of this manuscript,
and Barbara Freeze and the staff of the Interlibrary Loan Service at
Given the overwhelming medical evidence against female
McMaster University for their assistance in obtaining source material
genital operations, and the fact that the practice is
for this paper.
condemned by leading African women as well as by Western
1. David Bidney, "Cultural Relativism," International Encyclopedia
feminists, attempts to perpetuate it must be analysed within of the Social Sciences (New York: Macmillan and the Free Press,
the framework of the third proposition regarding culture 1968), Vol. 3, p. 545.
presented at the beginning of this paper, namely, that those2. Margaret K. Bruce, "An Account of United Nations Action to
who attempt to retain a custom, as well as those who attempt Advance the Status of Women," Annals of the American Academy
to change it, may have personal interests in so doing. Men of Political and Social Science 375 (January 1968), p. 163.
who oppose abolition of female genital mutilation may do so 3. Proclaimed by the General Assembly of the United Nations, 7
out of ignorance; it would be incumbent upon them, November 1967 (resolution 2263/XXII).
especially if they are academics, journalists, or political 4. Document CAB/LEG/67/3/Rev. 5. from the Organization of
African Unity Ministerial Meeting on African Charter on Human
leaders, to avail themselves of the facts. Ogunmodede,
and People's Rights, 7-17 January 1981, Banjul, the Gambia.
indeed, states that in Nigeria most male political leaders
5. Yaa Luckham, "Law and the Status of Women in Ghana,"
support abolition.58 If, with medical evidence in hand, men Columbia Human Rights Law Review 8, no. 1. (Spring-Summer
still oppose abolition on cultural grounds, then one must at 1976), p. 69.
least ask the question, whether men as a group benefit from 6. Ibid., p. 71.
a system which restricts women's physiological capacity to 7. Ibid., p. 74.
enjoy sexual relations, and obliges them to undergo a painful

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52 ISSUE: A JOURNAL OF AFRICANIST OPINION

8. (UN) A/CONF. 94/17, "World Conference of the United
Nations Decade for Women: Equality, Development and Peace"
(Copenhagen 14-30 July 1980), "Report of the Regional
Preparatory Meeting of the United Nation Economic
Commission for Africa (Second Regional Conference for theCanadian Journal of African Studies 6, no. 2, (1972), special issue
Integration of Women in Development)." Hereafter referred toon African women, Audrey Wipper, ed.
as ECA 1980.
9. Roberta Ann Dunbar, "Legislative Reform and Muslim Family38. Mack, "Husbands and Wives," p. 809.
Law: Effects upon Women's Rights in Africa South of the
Sahara," paper presented at the African Studies Association,
Philadelphia, (October 1980), p. 28.
10. "Notes and News: The Rejection of the Marriage Bill in
Kenya," Journal of African Law 23, no. 2, (1979), p. 111.
11. ECA 1980, p. 33.
12. Helen Ware, "Polygyny: Women's views in a Transitional
Society; Nigeria 1975," Journal of Marriage and the Family 41,
(February 1979).
13. Felix K. Ekechi, "African Polygamy and Western Christian
Ethnocentrism," Journal of African Studies 3 (August 1976), p.
331.
14. Ware, "Polygyny;" Suellen Huntington, "Issues in Women's
Role in Economic Development: Critique and Alternatives,"
Journal of Marriage and the Family 37 (November 1975), and A.
Izzert, "Family Life among the Yoruba, in Lagos, Nigeria" in
Social Change in Modern Africa, Aidan Southall, ed. (London:
Oxford University Press, 1961).
15. "Notes and News: Rejection" p. 112, Luckham, "Ghana," p.
93, and C. E. Donegan, "Marriage and Divorce Law in Sierra
Leone: A Microcosm of African Legal Problems," Cornell
International Law Journal 5, no. 1, (1972), p. 63.
16. Izzert, "Family Life," p. 309.
17. Aidan Southall, "Problems of the New Morality," Journal of
African Studies 1, (Winter 1974), p. 384.
18. Izzert, "Family Life," p. 308.
19. Rose Maina, V. W. Muchai and S. B. O. Gutto, "Law and the
Status of Women in Kenya," Columbia Human Rights Law
Review 8 no. 1, (Spring-Summer 1976), p. 189.
20. Itse Sagay, "Widow Inheritance versus Monogamous Marriage:
the Oba's Dilemma," Journal of African Law 18, no. 2 (August
1974), p. 169, fn. 3.
21. A. N. Allot, "The Legal Status of Women in Africa," Journal of
African Law (1961), p. 128.
22. Dunbar, "Legislative Reform," p. 31.
23. S. B. O. Gutto, "The Status of Women in Kenya," Discussion
Paper No. 235, Institute for Development Studies, University of
Nairobi (April 1976), p. 30.
24. Maina et al., "Kenya," p. 194.
25. Ilsa M. G. Schuster, New Women of Lusaka (Palo Alto, Cal:
Mayfield, 1979), p. 107.
26. Ibid., p. 137.
27. Donegan, "Sierra Leone," p. 73.
28. I owe this point to Harriet Lyons.
29. Economic Commission for Africa, "Report on five workshops in
home economics and other family-oriented fields," (1973)
quoted in UN E/CONF.66/BP/3, World Conference of the
International Women's Year, Mexico City 19 June-2 July 1975,
Regional Seminar for Africa on the Integration of Women in
Development with Special Reference to Population Factors, p. 7.
30. UN A/CONF.94/35, Report of the World Conference of the
United Nations decade for Women: Equality, Development &
Peace, Copenhage, 14-30 July 1980, p. 13.
31. Schulter, Lusaka, p. 93.
32. Izzert, "Family Life," p. 315.
33. Dolores E. Mack, "Husbands and Wives in Lagos: the Effects of
Socioeconomic Status on the Pattern of Family Living," Journal
of Marriage and the Family 40, no. 4, (November 1978), p. 815.
34. Tibamanya M. Mushanga, "Wife Victimization in East and
Central Africa," Victimology 2, nos. 3-4, (1977-78).
35. Ibid., p. 484.
36. Audrey Wipper, "African Women, Fashion and Scapegoating,"
37. Southall, "New Morality," p. 371.
39. ECA 1980, p. 29.
40. Maina et al., "Kenya," p. 200, Luckham, "Ghana," p. 90.
41. J. B. Akingba, The Problem of Unwanted Pregnancies in Nigeria
Today (Lagos: University of Lagos Press, 1971), quoted in Mack,
"Husbands and Wives," p. 808.
42. Fran P. Hosken, The Hosken Report: Genital and Sexual Mutilation
of Females (Lexington, Mass: Women's International Network
News, 1979).
43. Harriet Lyons, "Anthropologists, Moralities and Relativities: the
Problem of Genital Multilations," Canadian Review of Sociology
and Anthropology 18, no. 4 (November 1981).
44. Ibid., p. 507.
45. Scilla McLean, et al., Female Circumcision, Excision and
Infibulation: the Facts and Proposals for Change (London: Minority
Rights Groups, 1980), p. 3. This short, accurate and unbiased
summary, prepared in consultation with many African women
experts, is the best single source on matters concerning female
genital operations.
46. Ibid., p. 3.
47. Esther Ogunmodende, "Female Circumcision in Nigeria,"
quoted in Hosken, Report, "Case History: Nigeria," p. 8.
48. Hosken, Report, p. 1.
49. McLean et al., Female Circumcision, p. 7.
50. Jocelyn Murray, "The Church Missionary Society and the
'Female Circumcision' Issue in Kenya, 1929-32," Journal of
Religion in Africa 8, no. 2, (1976).
51. Jomo Kenyatta, Facing Mount Kenya (London: Heinemann,
1979, 1st ed. 1938), pp. 131-135.
52. McLean et al., Female Circumcision, p. 17.
53. I owe this last suggestion to Omega Bula.
54. McLean et al., Female Circumcision, p. 10.
55. ECA 1980, pp. 43-44.
56. McLean et al., Female Circumcision, p. 19.
57. Hosken, Report, "Case History: Kenya," p. 21.
58. Ogunmodende, "Nigeria," in McLean et al., Female
Circumcision, p. 18.
59. McLean et al., Female Circumcision, p. 6.

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