DOC

African Customary Law and Customs Changes in the Culture of

By Phyllis Rose,2014-08-11 08:08
11 views 0
African Customary Law and Customs Changes in the Culture of ...

    African Customary Law and Customs: Changes in the Culture of Sexual Cleansing of Widows and the Marrying of a Deceased Brother’s

    Widow

    by

     *Kenneth Kaoma Mwenda

1. Introduction

    Despite being legally regarded as minors, women in Swaziland have begun to

    challenge the status quo. …Leliswe Nxumalo, a widow, sued her in-laws, who

    had ordered her out of her husband‘s house and confiscated all her marital

    property after his death . . . Under Swazi custom, a widow is expected to marry

    her deceased husband‘s brother and continue bearing children. The family argued

    that, by tradition, the deceased man‘s property belonged to them and not to the

    widow. They also castigated the widow for refusing to go into a month-long

    seclusion following her husband‘s funeral, as custom dictates . . . Nxumalo

    countered that she needed to return to work to support herself, especially since

    her in-laws had confiscated her husband‘s estate. The case is among several that

    have brought the situation regarding Swazi women‘s rights into sharp focus . . .

    Women may not own property or enter into contracts without the sponsorship of

    a male relative . . . Although a new constitution is expected to improve the rights

    of Swazi women, critics argue that, like all constitutional clauses, these rights 1may be suspended by the king, Mswati III.

     * LL.B(Zambia), BCL/MPhil(Oxford), MBA(Hull), PhD(Warwick), CAMS, FCI, FICA, FRSA, Rhodes Scholar, Advocate of the High Court for Zambia, formerly Lecturer in Law at the University of Warwick (UK), and, currently, Senior Counsel, the World Bank, Washington D.C., USA. I am highly indebted to a number of colleagues for their invaluable comments on the earlier drafts of this paper. However, the interpretations and conclusions expressed in this paper are entirely mine. They do not represent the views of the World Bank, its Executive Directors, or the countries they represent.

     1 U.N. Office for the Coordination of Humanitarian Affairs, SWAZILAND: Women Challenging

    Their Traditional Status as Minors, http://www.irinnews.org/report.aspx?reportid=53331 (last visited Sept. 23, 2007).

     1

This paper examines the legality under African customary law of customs encouraging 2the sexual cleansing of widows and the inheritance (or marrying) of a deceased brother‘s

    widow by a male sibling or relative of the deceased. These two customs, as argued in the paper, are intrinsically linked as they both deal with the plight of widows and the threat to 3abrogate human rights of widows. As Kuyela observes:

    I[n] much of the African society, widowhood represents a ‗social death‘ for

    women. It is not merely that they have lost their husbands, the breadwinner and

    supporter of their children, but widowhood robs them of their status and confines

    them to the fringes of society where they suffer discrimination and

    stigma . . .Widows are generally trodden upon, poor and least protected as their

    lives are determined by local, patriarchal interpretations of tradition, custom, and

    religion . . . It is as if they are in some way responsible for their husband‘s death

    and must be made to suffer for the rest of their lives . . . In some African cultures,

    death does not end a marriage, and a widow is expected to move into a ‗levirate‘

    arrangement with her brother-in-law (‗the levier‘) or other male relative

    nominated by his family. The children are so conceived in the name of the dead

    man . . . Some widows may resist these practices, which are life-threatening in

    the context of HIV/AIDS and polygamy. Refusal to comply, however, is met 4with physical and sexual violence.

    Historically, the practice of widow inheritance guaranteed many widows and their 5children some form of social security. However, in recent times, because of the

    increasing levels of poverty in Africa and the break-up of the extended family system, many widows are discovering that there is little, if any, protection or support to be gained 6from widow inheritance. Furthermore,

     2Throughout this paper, the concept of ―inheritance of a deceased brother‘s widow‖ refers to the marrying of a deceased brother‘s widow. In the paper, the word ―inheritance‖ is used so as to be consistent with much of the nomenclature pertaining to such customary practices under African customary law. It is, however, an oxymoron that the word ―inheritance‖ should appear to be the more common terminology than the word ―marriage,‖ especially with regard to the custom at hand. Generally, the term ―inheritance‖ tends to indicate that it is ―property,‖ and not a ―human being,‖ that is being inherited. Normally, individuals inherit property, relationships or obligations such as book debts and other receivables, but not human beings. Also, the word ―adopt‖ does not convey a politically correct message because, under family law, the use of the word ―adopt‖ indicates that a minor or disabled is being adopted. This leaves us with the term ―marriage.‖ Indeed, the term ―marriage‖ appears to be more appropriate. As such, in the title of this paper, we

    use the term ―marriage‖ in order to convey the politically correct message to the reader. 3 Such as the inalienable right to freedom of expression and the right of widows to choose whoever they would like to associate with, including the enjoyment of all other freedoms enjoyed by every other citizen (e.g., freedom from such torts as battery and assault or from criminal offenses that offend and violate the individual‘s privacy or person). 4 Teddy Kuyela, Alleviating the Pangs of Widowhood, TIMES OF ZAMBIA,

    http://www.times.co.zm/news/viewnews.cgi?category=7&id=1171442890 (last visited Sept. 23, 2007). 5 Id. 6 Id.

     2

    Despite the four United Nations, UN, World Women‘s Conferences (Mexico

    1975, Copenhagen 1980, Nairobi 1985, and Beijing 1995) and the ratification by

    many countries of the 1979 UN Convention on the Elimination of All Forms of

    Discrimination against Women (CEDAW), widows are barely mentioned in the

    literature of gender and development, except in the context of ageing . . . Yet the

    issues of widowhood cut across everyone of the 12 critical areas of the 1995

    Beijing Platform for Action, covering poverty, violence to women, the girl child,

    health, education, employment, women and armed conflict, institutional

    mechanisms, and human rights . . . One explanation for the neglect of this vast

    category of abused women is the assumption that widows are mainly elderly

    women who are cared for and respected by their extended or joint families . . . In

    fact, of course, far from caring for and protecting widows, male relatives are

    likely to be the perpetrators of the worst forms of widow abuse. If they are young

    widows, it is imagined that they will be quickly remarried . . . In fact, millions of

    widows are very young when their husbands die but may be prevented by custom

    from re-marrying, even if they wish to do so . . . Across cultures, religions,

    regions and class, the treatment of widows is harshly discriminatory . . .

    Patriarchal kinship systems, patrilocal marriage (where the bride goes to the

    husband‘s location), and matrilineal inheritance (where succession devolves

    through the male line), shows the concept that women are ‗chattels‘ who cannot

    inherit and may even be regarded as part of the husband‘s estate to be inherited

    themselves (widow inheritance). Where matrilineal kinship systems pertain, 7inheritance still devolves onto the males[.]

It is, however, clear that

    The CEDAW or ‗Women‘s Convention‘ and the Beijing Global Platform for

    Action require governments to enact and enforce new equality inheritance laws.

    Some governments have indeed legislated to give widows their inheritance

    rights . . . But even where new laws exist, little has changed for the majority of

    widows living in the South Asian sub-continent and in Africa . . A raft of

    cultural, fiscal, and geographical factors obstructs any real access to the justice 8system.

    I have previously examined the plight of widows regarding the issue of property grabbing, and how some widows are disenfranchised from owning or inheriting 9matrimonial property after the death of their spouses. In that work, I pointed out that in

    many of the world‘s common law jurisdictions, including several African countries, a 10will is a public document that can be inspected by members of the public. ―However,

     7 Id. 8 Id. 9 See generally Kenneth K. Mwenda, Judge Florence, N.M. Mumba, and Judith Mvula-Mwenda, Property-Grabbing Under African Customary Law: Repugnant to Natural Justice, Equity and Good Conscience, Yet a Troubling Reality, 37 GEO. WASH. INTL L. REV. 949, 950 (2005)

    (hereinafter Property-Grabbing). 10 See D.J. HAYTON, THE LAW OF TRUSTS 37(1989); FRONTIERS OF LEGAL KNOWLEDGE:

    BUSINESS AND ECONOMIC LAW IN CONTEXT, (Kenneth K. Mwenda & David A. Ailola eds.,

    Carolina Academic Press) (2003).

     3

    11 [there are no formal testamentary dispositions] and this under African customary law,

    leaves claims of intestate succession open to manipulation and abuse by members of a 12deceased‘s extended family.‖ I make a further argument that African customary law is

    often cited for reasons of personal convenience by selfish members of the deceased‘s extended family as the basis upon which the widow should be disenfranchised from owning property in the matrimonial home left behind by her deceased spouse, including at times, property that was actually acquired by the widow herself or property that was 13acquired jointly by the widow and her deceased spouse. Indeed, this is the practice that

    is most commonly referred to as ―property-grabbing.‖ Yet, there is no single coherent or

    systematically developed body of jurisprudence that covers precisely ―what is‖ or ―what is not‖ African customary law. We are left to look at evidence of adherence by a claimant to reasonably well-established norms of African culture and traditions as the basis of considering whether there is indeed evidence of African customary law. ―As a result, opportunistic relatives of the deceased have an incentive to manipulate rules and norms relating to African customary law so as to disenfranchise the widow [and allow themselves to take over ownership of the estate of the deceased even] when these 14relatives have not been provided for in any will of the deceased.‖ Why should a widow

    not be allowed to inherit property that she and her husband acquired for their matrimonial home while her husband was alive, if this property is not the subject of a lawful disposition to a third party and the wife is the beneficiary under the will? Furthermore, what should be the result when the deceased does not leave a will? Should relatives of the deceased, relying on African customary law, be allowed to help themselves to the estate of the deceased without paying attention to the legislative framework for intestate 15succession?

    At the outset, it must be stated that it is not the aim of this paper to delve into intricacies of medical aspects of customs encouraging the sexual cleansing of widows and

     11 ―African culture and custom, as they exist today, are a blend of African customs, imported colonial common and civil law notions, and religious concepts from Christianity, Islam and traditional African religions . . . For instance, African female children are taught from a very early age that the man is the head of the household, and are advised by their mothers to remain in complete subjugation to their husbands . . .Natural law principles of male superiority, common law and Christian religious principles of female inferiority, and Islamic tenets of female domesticity and incapacity, all contributed to the shaping of customary law into its present form[.] . . .This deviation of judicial interpretation of custom from traditional practice emerged because African societies lack homogeneity, and social institutions vary from tribe to tribe and from one ethnic group to another within the same tribe.‖ Fitnat Naa-Adjeley Adjetey, Religious

    and Cultural Rights: Reclaiming the African Woman‟s Individuality: The Struggle Between

    Women‟s Reproductive Autonomy and African Society and Culture, 44 AM. U. L. REV. 1351,

    1356, 1365, 1368 (1995); ALEXANDER NÉKÁM, EXPERIENCES IN AFRICAN CUSTOMARY LAW,

    (University of Edinburgh for the Centre of African Studies, 1966); T.W. BENNETT, THE

    APPLICATION OF CUSTOMARY LAW IN SOUTHERN AFRICA: THE CONFLICT OF PERSONAL LAWS

    1-16, (Juta, 1985). 12 Property-Grabbing, supra note 9, at 949-50. 13 See Id. at 952. 14 Id. at 950. 15 An example is where there is a statute to govern intestate succession.

     4

    the inheritance of a deceased brother‘s widow. And neither does the paper concentrate on philosophical issues focusing on the legitimacy, ethical, aesthetical or moral dimensions of such customs. In dealing with legal issues surrounding the two customs, it is important to find out if such customs violate the rights of widows, and if there is no alternative to customary practices promoting the sexual cleansing of widows. There are other questions similarly related that are not directly considered by this paper. For example, should African customary law be subjected to the legislative provision left by the white settlers in many parts of Commonwealth Africa? That is to say, is African customary law only 16valid in as far as it is not repugnant to natural justice, good conscience and equity? Or,

    has African customary law now evolved and acquired its own new distinct properties?

    In the present paper, I extend the discussion regarding the plight of widows, focusing this time on the legality under African customary law of two customs related to property-grabbing: (a) the sexual cleansing of widows; and (b) the inheritance of a deceased brother‘s widow by a male sibling or relative of the deceased. This paper critically examines the legality of these two customs, arguing that today, because of health risks associated with contracting incurable and fatal sexually transmitted diseases, unlike in the olden days when almost all sexually transmitted diseases were curable, customs such as those promoting the sexual cleansing of widows and the inheritance of a deceased brother‘s widow not only offend the law, but should be banished and condemned. The paper raises a number of jurisprudential issues regarding the legality under African customary law of customs encouraging the sexual cleansing of widows and the inheritance of a deceased brother‘s widow by a male sibling or relative of the deceased. For example, under African customary law, to what extent can sexual cleansing of a widow and the inheritance of a deceased brother‘s widow be said to be valid? Or, does sexual cleansing of widows or the inheritance of a deceased brother‘s widow by a male sibling or relative of the deceased offend the rights of women in some societies and not others? And, should widows be coerced into submitting to sexual cleansing by relatives of their deceased husbands, or should they be treated like property that is part of the estate of the deceased such that a male sibling or relative of the deceased can ―inherit‖ them for his own wife? Equally, under African customary law, is it permissible to treat 17widows as if they are minors, and that they cannot manage their own family affairs or

    have a voice in such matters? What is the relationship between African customary law and a country‘s legislative framework, on the one hand, and African customary law and public policy, on the other? The validity test of African customary law, as spelt out in the legislative frameworks of many Commonwealth African States that is, a custom is only

    valid if it does not offend public policy, or any laws of a concerned country, or natural justice, good conscience and equity defines the nexus between African customary law 18and other laws of the country.

2. Contending with Conservative Cultures and Prohibitive Ideologies

     16 For a discussion of such legislative provisions, see generally Property-Grabbing, supra note 9. 17 E.g., U.N. Office for the Coordination of Humanitarian Affairs, SWAZILAND: Women

    Challenging Their Traditional Status as Minors,

    http://www.irinnews.org/report.aspx?reportid=53331 (last visited Sept. 23, 2007). 18 See generally Property-Grabbing, supra note 9.

     5

    A prohibitive ideology prescribing that public debate or public discussion should never be held on certain aspects of a people‘s culture, especially on matters touching on 19 This sex and sexuality, continues to persist in many parts of the world today.retrogressive element of human behavior continues to spring up, especially as concerns people and societies that are quite conservative. Topics that border on sex and sexuality are discussed only in dark corners and behind closed doors, veiled with connotations of tradition and secrecy. There is a strong view that it is a taboo to talk or write about certain African traditions, such as those bordering on erotic sexual practices, and that the sharing of knowledge regarding the same remains a function of some occult which can only 20transmitted selectively through the medium of oral tradition. It is this very aspect of

    mystifying and concealing certain types of information that contributes to the silencing and suppression of vulnerable social groups in society. For example, in many conservative cultures, women are expected to be submissive all the time, and they are only allowed a passive role in matters of leadership and property ownership, while younger folks should never question or challenge the elders even if the younger folks are 21itching with valuable contributions. And, often a time, some misguided and unsound

    arguments riding on the whims of cultural norms dictating a ―profound respect for elders‖ are used to buttress such value-laden viewpoints. That said, the argument being advanced here is not to advocate or promote a culture of wholesome or blanket disclosures of all cultural traits and patterns pertaining to sexuality and sex, or to rebel against all forms of traditional authority, including the wisdom of the elders, but rather to identify and distinguish discussions and issues that have, as their objective, a primary or secondary developmental impact on society. Only by doing so can valuable and useful information be disseminated effectively to the public. And such dissemination should be done in graduation phases, following parameters of age, maturity and responsibility.

    In many conservative societies, knowledge bordering on sex and sexuality is often shared in an obscure manner, inviting only those whose age and prejudices qualify under some 22vaguely defined cultural criteria. Such troubling approaches usually prescribe that

    outsiders to a particular culture, ethnic group, peer group or gender category should not be privy to certain types of information or knowledge, especially information that deals 23with the sexuality of a particular culture, ethnic group or gender category. More

    specifically, in many African countries a silent decree is handed down by senior members, so that outsiders may not have the opportunity to know about certain female sexual

     19 See generally Priscilla Pardini, The History of Sexuality Education, RETHINKING SCHOOLS,

    http://www.rethinkingschools.org/sex/sexhisto.shtml (last visited Sept. 23, 2007). 20 Interview with Anonymous Bemba-speaking Colleagues, in Washington D.C., (December 15- December 30, 2006) (hereinafter Interview with Anonymous Colleagues). The author is grateful to a number of colleagues from Bemba-speaking dialects who provided useful and valuable information on important aspects of Bemba customs and traditions. My colleagues desired to remain anonymous. 21 See Id. 22 Id. 23 See generally Kenneth K. Mwenda, Labia Elongation Under African

    Customary Law: A Violation of Women‟s Rights, 10 INTL J. HUM. RTS. 341-57 (2006).

     6

    24 Many of these practices, considered by the United Nations Economic and practices.

    Social Council to be violent towards women, are deeply rooted in African tradition; so 25that discussing certain sexual practices is taboo. Even though future generations of

    African women may benefit from publicizing and documenting these practices, they 26remain shrouded in secrecy.

In conservative communities such as those throughout the countries of Africa, people 27hardly discuss sensitive topics that border on sexual practices. An example if found in

    one Zambian fable:

    …A man is embroiled in an argument with his wife who accuses him of having

    an extra-marital affair. His wife points out to him that she has noticed lately that

    he comes home late in the night and looking very tired. She makes further

    accusations that even though his pubic hair looks nicely shaven, she is suspicious

    as to who could have been the barber because she herself did not shave his pubic

    hair! According to one African legend and custom, it is the wife who should

    shave her husband‘s pubic hair.

    …Irritated with the accusations, the man decides to ignore his nagging wife and

    goes out the next day for a drink again. But, on his way back home from the

    drink, he notices an unusual sight of several old bicycles and some dilapidated

    cars parked outside his house. He begins to wonder what is happening. As he

    approaches his house, he sees his youngest son, Chileshe, playing outside the

    house on the veranda. He whispers quietly to Chileshe, asking what is going on.

    Chileshe replies that he just saw grandpa, grandma and many other relatives start

    arriving. The man queries his son further as to what the heck in the world is

    going on with all these old-looking bicycles leaning against the walls of his

    mansion. But the son, being young and naïve, innocently and unsuspectingly

    replies:

    ‗Katwishi, naine nshi-shibe... (I also don‘t know…) Na chu-mfwa fye ba mbuya

    bale landa ati, pano pa ng‘anda na pa luba aamaso… (I just overheard grandma 28complaining that, at this house, pubic hair has gone missing)!‘.

    In the fable presented above, the young boy, Chileshe, did not understand what his grandmother meant when she said ―pano pa ng‘anda na pa luba aamaso‖. Nobody had

    ever told young Chileshe the implications of repeating certain words to his father. However, if young Chileshe had an iota of an idea or clue of what was at stake, he would not have repeated his grandmother‘s words to his father. This fable shows a common burden within many African countries, because there is little room for tolerance regarding open debate on matters of sex and sexuality.

     24 See Id. 25 See Id. 26 See Id. 27 See Id. 28 This fable is a common tale in some Zambian circles, though its source has not been traced to a particular person or author.

     7

    Imagine if the field of modern and conventional medicine was subjected to cultural prohibitions inhibiting open discussion bordering on sex and sexuality, stressing that medical students in Africa or Asia, for example, as young people, should not learn publicly about sexual organs of the human body (i.e. in a lecture theatre at university), because by doing so they will be going against their African culture or Asian culture. What would have happened to the development of medicine in Africa or Asia today? We would likely have been in a situation where even some curable sexually transmitted diseases would not have been treatable today.

3. The Concept of Sexual Cleansing of Widows

    While some communities in Africa, Asia, Europe and the Americas subscribe to such customary practices as sexual cleansing of widows and the inheritance of a deceased 29 reservations have been brother‘s widow by a male sibling or relative of the deceased,30expressed by many about the moral basis and the legality of such customs. Some

    women and human rights activists have argued strongly against the value and lawfulness of customs that require defenseless widows to be subjected to sexual cleansing against 31their will or to be forced into marrying a male sibling or relative of a deceased spouse.

    It must also be pointed out that both sexual cleansing and the inheritance of a deceased sibling‘s widow do not only involve the cleansing of a surviving female spouse or the inheritance of a surviving female spouse. At times, though rarely, these customs also involve the sexual cleansing of a surviving male spouse, or the parents of the deceased woman offering their son-in law (i.e. the widowed male spouse) one of the young sisters

    to the deceased for a wife so that the chosen sister ends up marrying her brother-in-law; 32that is, the man who was married to her late elder sister. This practice is based on the

    theory that since the widowed male spouse has served as a good son-in-law, and that both families of the deceased and the widowed male spouse have enjoyed healthy family ties, it would best to offer the son-in-law one of the sisters to the deceased so that the existing 33family ties can continue.

    In Malawi, a recent report on the sexual cleansing of widows provides as follows:

    MCHINJI, Malawi In the hours after James Mbewe was laid to rest three

    years ago, in an unmarked grave not far from here, his 23-year-old wife,

    Fanny, neither mourned him nor accepted visits from sympathizers.

    Instead, she hid in his sister‘s hut, hoping that the rest of her in-laws

    would not find her. But they hunted her down, she said, and insisted that if

    she refused to exorcise her dead husband‘s spirit, she would be blamed

    every time a villager died. So she put her two small children to bed and

     29 Interview with Capt. Lloyd Situkali, in Washington D.C. (December 22, 2006) (hereinafter Interview with Capt. Situkali). 30 Interview with Anonymous Colleagues, supra note 20. (Providing useful and valuable

    information on important aspects of Bemba customs and traditions). 31 See Id. 32 See Id. 33 See Id.

     8

    then forced herself to have sex with James‘s cousin. ‗I cried, remembering my husband,‘ she said. ‗When he was finished, I went outside and washed myself because I was very afraid. I was so worried I would contract AIDS and die and leave my children to suffer.‘ Here and in a number of nearby

    nations including Zambia and Kenya, a husband‘s funeral has long concluded with a final ritual: sex between the widow and one of her husband‘s relatives, to break the bond with his spirit and, it is said, save her and the rest of the village from insanity or disease. Widows have long tolerated it, and traditional leaders have endorsed it, as an unchallenged tradition of rural African life. Now AIDS is changing that. Political and tribal leaders are starting to speak out publicly against so-called sexual cleansing, condemning it as one reason H.I.V. has spread to 25 million sub-Saharan Africans, killing 2.3 million last year alone. They are being prodded by leaders of the region‘s fledging women‘s rights movement, who contend that lack of control over their sex lives is a major reason 6 in 3410 of those infected in sub-Saharan Africa are women.

    The report goes on to say that:

    …change is coming slowly, village by village, hut by hut. In a region where belief in witchcraft is widespread and many women are taught from childhood not to challenge tribal leaders or the prerogatives of men, the fear of flouting tradition often outweighs even the fear of AIDS. ‗It is very difficult to end something that was done for so long,‘ said Monica Nsofu, a nurse and AIDS organizer in the Monze district in southern Zambia, about 200 miles south of the capital, Lusaka. ‗We learned this when we were born. People ask, Why should we change?‘…Even some Zambian volunteers who work to curb the spread of AIDS are reluctant to disavow the tradition. Paulina Bubala, a leader of a group of H.I.V.-positive residents near Monze, counsels schoolchildren on the dangers of AIDS. But in an interview, she said she was ambivalent about whether new widows should purify themselves by having sex with male relatives. Her husband died of what appeared to be AIDS-related symptoms in 1996. Soon after the funeral, both Ms. Bubala and her husband‘s second wife covered themselves in mud for three days. Then they each bathed, stripped naked with their dead husband‘s nephew and rubbed their bodies against his. Weeks later, she said, the village headman told them this cleansing ritual would not suffice. Even the stools they sat on would be considered unclean, he warned, unless they had sex with the nephew. ‗We felt

    humiliated,‘ Ms. Bubala said, ‗but there was nothing we could do to resist, because we wanted to be clean in the land of the headman.‘ The nephew died last year. Ms. Bubala said the cause was hunger, not AIDS. Her

     34 Sharon LaFraniere, AIDS Now Compels Africa to Challenge Widows' 'Cleansing', N.Y. TIMES,

    May 5, 2005, at A1, available at 2005 WLNR 7397151.

     9

    husband‘s second wife now suffers symptoms of AIDS and rarely leaves 35her hut. Ms. Bubala herself discovered she was infected in 2000….

    Turning to Malawi again, the report sheds more light on the devastating effects of upholding customs that encourage the sexual cleansing of widows.

    Like their counterparts in Zambia, Malawi‘s health authorities have

    spoken out against forcing widows into sex or marriage. But in the village

    of Ndanga, about 90 minutes from the nation‘s largest city, Blantyre,

    many remain unconvinced. Evance Joseph Fundi, Ndanga‘s 40-year-old

    headman, is courteous, quiet-spoken and a firm believer in upholding the

    tradition. While some widows sleep with male relatives, he said, others

    ask him to summon one of the several appointed village cleansers. In the

    native language of Chewa, those men are known as fisis or hyenas because

    they are supposed to operate in stealth and at night. Mr. Fundi said one of

    them died recently, probably of AIDS. Still, he said with a charming smile, 36‗We can not abandon this because it has been for generations.‘

    Advancing arguments in support of sexual cleansing of widows, local members of the Ndanga village maintain that sexual cleansing of widows is an indispensable custom and 37believe in upholding tradition. A woman whose husband has just died should not marry

    or have any sexual relationship with another man before she has been cleansed; the belief being that a widow who has not been sexually cleansed is haunted by the spirit of her 38deceased spouse until she has been cleansed by the relatives of the deceased. But what

    would happen in situations where a widow decides to become a lesbian? Does she still need to be cleansed by her late husband‘s relatives even though she has not had any subsequent heterosexual encounter? It would appear so given that lesbians normally engage in what could be deemed as sexual intercourse even though African customary 39law, generally speaking, does not sanction or recognize homosexual relationships. What

    about situations where a widow has oral sex with a man? Is oral sex considered real sex under African customary law, and does oral sex get caught up under the requirement that a widow should first be cleansed before she can have sexual intercourse with another man? And what exactly does the term ‗sexual cleansing‘ entail? Again, it would appear that the widow needs to be cleansed still, even though African customary law does not recognize 40oral sex or anal sex.

In general, there are several variations regarding rituals of sexual cleansing across 41different cultures, dialects, tribes and communities. A common thread involves a male

    relative of the deceased man, acting in accordance with a decision handed down by the

     35 Id. at 2. 36 Id. at 2-3. 37 Id. at 3. 38 Id. at 3-4. 39 Interview with Anonymous Colleagues, supra note 20. 40 See Id. 41 See Id.

     10

Report this document

For any questions or suggestions please email
cust-service@docsford.com