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——,The Manners and customs of the Rwala Bedouins,
New York 1928.William Lancaster and Felicity LancasterSub-Saharan AfricaHow do women use and participate in customary
processes of dispute resolution? How do customary
and Islamic legal traditions coexist? There is much
variation in the position of women and the status of
gender relationships vis-à-vis customary law in
Sub-Saharan Africa, particularly in Muslim areas
where women may also be subject to Islamic law. It
is difficult to define what constitutes customary
law. In Sub-Saharan Africa, “customary law” has
had many meanings: it refers to indigenous African
legal institutions, to different kinds of formal and
informal social control, and to colonial attempts to
restrain subject populations through codification
of what they perceived as indigenous law. Law and
law-related behaviors are, of course, subject to and
dependent upon the cultural, social, and political
environments. Law is thus constantly changing and
is infinitely variable, and that which is (or should
be) considered customary is highly contested.
Women’s rights, social status, and access to dif-
ferent forums for dispute resolution vary tremen-
dously across cultures in Sub-Saharan Africa, and
they have been subject to significant internal and
external changes – particularly with the spread of
Islam, the imposition of colonial rule, and later
with independence. Although there is much var-
iation in indigenous African legal thought and
procedure, some generalities can be addressed con-
cerning the status of women and gender roles.
Throughout Africa, much of precolonial law was
highly flexible in the sense that it was tailored to
meet specific needs in special circumstances – little
was codified. In the precolonial era, disputes were
often subject to a range of mediation options. In
much of Africa, elders have held a great deal of
authority in their communities and they often
played the lead role in handling disputes. Disputes
in the past were most often dealt with at home or in
community forums; this is still common in many
parts of Africa today, even though most popula-
tions are also subject to state law. In Zanzibar, now
a semi-autonomous island state of Tanzania, dis-
putes were taken first to the wazee, the family elders.
While men generally took charge of the proceed-
ings, women’s opinions were valued, and a woman424 law: customary
could take the lead in resolving a dispute, particu-
larly if she headed a household involved. If the eld-
ers failed to resolve the matter, it was taken to the
sheha, a community leader (almost always male).
The final resort was the kadhi, in Arabic qà∂ì, or
Islamic judge – also male. This basic course of
action is still followed today, although the role of
the shehaand kadhifeature more prominently
because they are the state-sanctioned means of han-
dling disputes. While elders remain the first resort,
some bemoan the loss of their authority to the state.The spread of Islam
The spread of Islam into Sub-Saharan Africa
brought with it important changes in legal thought,
means of social control, and dispute resolution.
Although some scholars argue that Islamic law is
not indigenous because it was introduced through
the gradual spread of Islam, it has become local in
many parts of Africa. Communities and individuals
have different ways of interpreting and applying
Islamic law and viewing the relationships between
customary and Islamic law. Also, women and men
can have different ways of framing legal claims and
articulating the differences between Islamic and cus-
tomary law. In some communities of East Africa, for
example, Swahili men tend to frame disputes with
reference to Islamic law while women are more
likely to draw on mila, or custom. Despite cross-cul-
tural variation, there are some important general
distinctions between Islamic law and customary
African legal norms. For example, the acceptance of
Islamic law brought with it an increased focus on the
rights of the individual over the kinship group. The
acceptance of Islamic law also had an important
impact on gender relationships because of differ-
ences in marriage, inheritance, and land-usage
rights. Sometimes women gained rights with Islam
and sometimes they lost rights. Thus, the arrival of
Islamic law should not be viewed as either progres-
sive or regressive in this regard. In some areas, such
as northern Nigeria, women benefited from the
acceptance of Islamic legal norms that brought
inheritance rights to women that they had not pre-
viously enjoyed. In others, such as eighteenth-
century Sudan, women lost advantages when the
acceptance of Islam influenced inheritance practice
and domestic relationships of production by draw-
ing women away from their conventional roles in
the productive sector (Spaulding 1984).The colonial period
The colonial period brought significant legal
change and affected women’s legal practice in
important ways. The imperial governments ap-