sexual health and human rights in the african region - The ICHRP

States parties shall take appropriate legal measures to ensure that widows enjoy all human rights
through implementation of the following provisions
(a) that widows are not subjected to inhuman, humiliating or degrading treatment;
(b) that a widow shall automatically become the guardian and custodian of her children, after
the death of her husband, unless this is contrary to the interests and welfare of the children;
(c) that widows shall have the right to remarry, and in that event to marry the person of her
choice.
[31] At a domestic level, leviratic marriages that deny the widow choice would be
inconsistent with the domestic laws of all the African countries. However, the
surveyed countries, with the exception of Nigeria, have not adopted specific laws
to impress upon the right of the widow to exercise choice and to outlaw coercive
leviratic marriage. Nigeria proscribes forced leviratic marriages but only in
respect of some states. Enugu State’s Prohibition of Infringement of a Widow’s
and Widower’s Fundamental Rights Law provides that ‘no person for whatever
purpose or reason shall compel a widow/widower … to be remarried by a
relative of the late husband/wife. 506
[32] Zimbabwe is the only jurisdiction that specifically recognizes leviratic marriage
under customary law, but providing, as with other customary marriages, it is
non-coercive. 507
4.8 Polygny
[33] Civil marriages can only be monogamous as marrying more than one spouse
constituting the offence of bigamy in all the African countries. In contrast,
customary laws and Islamic Shari’ah permit polygny. Customary law does not
prescribe the number of wives whereas Islamic Shari’ah prescribes a maximum
of four. Countries in the African region permit polygny through recognition of
African customary law or Islamic Shari’ah. The only instance of a proscription
against polygny is Rwanda where it is constitutionally provided that ‘only
monogamous marriages shall be recognized within the conditions and forms
prescribed by law’. 508
[34] Polygynous marriages in the African region are built on patriarchy and gender
inequality that, in turn, is embedded in customary law and Islamic law. To the
extent that the husband has multiple sexual partners, polygynous marriages are
not conducive the protection and promotion of sexual health, not least in a region
that is the epicentre of HIV/AIDS.
506 Section 4 of the Prohibition of Infringement of a Widow’s and Widower’s Fundamental Rights Law of
Enugu State, Nigeria (2001). See also: Widows’ Empowerment Law of 2002 (Edo State); Malpractices
against Widows and Widowers (Prohibition) Law of 2004 (Anambra State); Inhuman Treatment of
Widows (Prohibition) Law 2004 (Edo State).
507 Section 3(1) of the Customary Marriages Act (Zimbabwe)
508 Article 25 of the Constitution of Rwanda of 1991.
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