La Trobe University, Bundoora, Victoria, Australia 3083. This paper was written for, and delivered at, a conference on Family Law in East, Central and Southern Africa held in January 1987, sponsored by the International Society on Family Law and the Department of Applied Social Sciences of the University of Zimbabwe and supported by the Ford Foundation. The article is based on material related to this region.
Family law in Africa appears to involve a clash between the customary law and the modernizing ambitions of post-colonial states. An adequate conceptualizing of the customary law is, therefore, a necessary part of the comprehension of the politics of family law reform in modern Africa. The relatively recent overthrow of the colonial states has made it an important part of the symbolical politics of modern Africa to reassert African values and institutions. Because of the difficulties of utilizing the customary in other realms of law, family law has borne the burden of an invocation of custom which has served to obscure the realities of gender and generational conflict in modern Africa. The African family laws which were established during the colonial situation were, however, the product of the colonial state and of far-reaching economic changes. Processes of state sponsored legalization, and the disruption of family formation and workings by the money economy and labour migration, led to the dominance of a new version of customary law which suited the white administrators and African male elders who ruled colonial society. This version of the customary law is not the only one derivable from the ways in which people lived their lives in which alternative values were demonstrated. By re-integrating the history of African family law with that of other parts of the world we can escape the false dichotomies which have dominated discussions of the subject and free ourselves of the need to espouse a false traditionalism in the name of African cultural assertion.