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

Ephrahim v Pastory not only illustrates a reading in of ‘sex’ into an equality clause
of a constitution that is otherwise silent on the matter, but also the subordination
of customary law to constitutional rights and values.
[36] There is a significant body of case law illustrating the protection of ‘sex’ as a
protected ground in the countries that have been sampled. With the exception of
South Africa and Uganda, Much of the case law has arisen out of succession or
inheritance disputes where a female was seeking to uphold a right to inherit
property from a parent or a spouse or dispose inherited property in the face of a
contrary customary law norm that is embedded in patriarchy and hence favours
males. In the majority of cases, as is exemplified by the decision of the High
Court Tanzania in Ephrahim v Pastory, 221 African domestic courts have been able
to interpret the constitutional right to equality and non-discrimination to
invalidate contrary customary law norms and thus uphold the rights of women.
The decision of the Supreme Court of Zimbabwe in Magaya v Magaya 222 in which
the court upheld a primogeniture customary law norm is against the trend of
African judicial decision that have sought to reconcile the patriarchal traditions
of customary law norms with constitutional rights to equality and nondiscrimination.
221 (1990) LRC 757 (High Court of Tanzania), supra. See also: Mary Rono v Jane Rono and Another, Civil
Appeal No 66 of 2002 (Court of Appeal of Kenya), supra; Chiku Lidah v Adam Omari, Civil Appeal No 34 of
1991 (High Court of Tanzania; Mokekwu v Mojekwu NWLR 283 (1997) (Court of Appeal, Nigeria). It was
held that a customary law norm preventing a wife from inheriting from her deceased husband in order to
prioritise inheritance by a male relative inheriting on the ground that the deceased had died without male
issue was contrary to the equality provisions of the Nigerian Constitution as well as the Women’s
Convention. The decision of the Court of Appeal was appealed against in Mojekwu v Iwuchukwu (2004) 4
SC (Pt II) 1. In this case, the Supreme Court of Nigeria said that the Court of Appeal has been wrong in
finding that the customary law norm was inconsistent with the constitution. However, the Court said that
on the facts, the widow was entitled to the property; Nzekwu v Nzekwu (1989) 2 NWLR 373 (Supreme
Court, Nigeria). It was held that a customary law norm which allowed a son to dispose of property of his
deceased father during the lifetime of the deceased’s widow was ‘repugnant to natural justice, equity and
good conscience’; Muojekwo and Others v Ekijeme and Others (2000) 5 NWLR 402 (Court of Appeal, Nigeria)
where it was held that a custom that prevented grandchildren born of daughters who had not undergone
the custom of nrachi was contrary to the principles of natural justice and morality. According to the nrachi
custom, a father may decree for one of his daughters to stay with him but without marrying. The
daughter is allowed to have children. In return, the daughter can inherit her father’s property on his
demise as if she were a man. Moreover, her children may also inherit the property; Bhe v The Magistrate
Khayelitsha and Others 2005 (1) BCLR 1 (Constitutional Court of South Africa). This case was discussed in
Chapter 1 of this study; Mandizvidza v Chaduka NO and Others 1999(2) ZLR 375 (Supreme Court of
Zimbabwe). It was held that exclusion of a female student from a training college on the ground that she
was pregnant constituted unfair discrimination on the ground of sex contrary to section 23(1) of the
Constitution of Zimbabwe.
222 Magaya v Magaya 1999 (1) ZLR 100 (Supreme Court of Zimbabwe). This case was discussed in Chapter
1 of this study.
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