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11 Gonz. J. Int'l L. [1] (2007-2008)

handle is hein.journals/gjil11 and id is 1 raw text is: 





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 may be suspended by the king, Mswati 111.1
This paper examines the legality under African customary law of customs encouraging
the sexual cleansing of widows and the inheritance (or marrying2) 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 abrogate human rights of widows.3 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 with physical
and sexual violence.4

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