Constitutional Exclusion and Gender in Commonwealth Africa

Part I of this article briefly describes customary law and explores the effect of colonialism on legal pluralism and the region’s early post-colonial constitutions. Part II describes the structure and content of constitutional clauses that exclude personal law and customary law from constitutional non-discrimination protection. Part III briefly examines international and regional human rights law and offers a pragmatic conclusion that countries must eliminate exclusionary clauses in order to conform to human rights commitments. Part IV provides a theoretical justification for eliminating exclusionary clauses from these constitutions. This section builds upon feminist theory and dialogic constitutionalism to argue that countries should eliminate constitutional exclusionary clauses in order to dismantle the faulty public/private dichotomy and provide a voice for women in constitutional debates over the normative content of customary law. Finally, Part V assesses alternatives for judicial intervention once the exclusionary clauses have been eliminated through constitutional amendment. This part explores a number of strategies courts might employ in interpreting personal and customary law in light of constitutional equality guarantees, ranging from less interventionist to more interventionist. These intervention strategies include limited intervention, in which customary law is largely left to evolve on its own; formalist intervention, in which gender equality rights clearly trump rights to custom or vice versa; and activist intervention, in which courts must balance gender equality rights with rights to custom. This article proposes a rights-balancing approach that values both culture and equality rights. Recent jurisprudence in South Africa illustrates the promise of a type of rights balancing that I call “weighted balancing.” Eliminating exclusionary clauses and encouraging courts to balance relevant rights is the only way to facilitate a constitutional dialogue that will ultimately determine the normative content of constitutional equality guarantees as applied to personal and customary law.