Rural women redefining land rights in the context of living customary law

Abstract

Women’s rights and customary law are often understood as being in opposition to one another. This article challenges the usefulness of the prevailing custom/rights dichotomy, arguing that it obscures the way in which struggles to claim resources such as land combine ‘human rights’ equality claims with claims to customary entitlements. The article focuses on contestation over who has the power to define custom, rights and customary entitlements. It discusses the democratic potential inherent in Constitutional Court judgments that define customary law as ‘living law’ reflecting changing practice, and the dangers posed by national legislation that reinforces the power of traditional leaders to unilaterally define custom. It argues for legal strategies that engage with, and support, the struggles for change taking place at the interface between custom and rights in the former reserves. We draw on insights about the nature of rights and rights struggles in the work of Nedelsky, Nyamu Musembi and Merry to argue for an approach to rights that focuses on the relationships and power relations that rights mediate, rather than solely on rights as ‘boundaries of autonomy’. Moreover, engaging with processes of women claiming, redefining and ‘vernacularising’ rights within their communities relates directly to the project of engendering socio-economic rights, given the primacy of claims of need, and of access to material resources, within indigenous constructs of relative rights.