Legal and Political Vulnerability

Zambia’s constitution prohibits the enactment of any law that is discriminatory on the basis of sex or has such discriminatory effect. But it also recognizes a “dual legal system”, which allows local courts to administer customary laws, some of which discriminate against women.”

Human Rights Watch, 2007

Most cultures in sub-Saharan Africa are patrilineal, so when a woman marries through customary law, she will then be a part of her husband’s family or tribe and therefore any property will be passed along through the males in the family. Women can often only access land or property through their fathers, brothers, husbands or male relatives and cannot legally own land. If a relationship ends between a woman and her husband, there is a good chance that the woman will lose her home, land, livestock, household goods, money and any other property. These violations thus perpetuate women’s dependence on men and undercut their social and economic status. Women, therefore, have little or no access to property or reproductive rights.

Although equality, reproductive and sexual rights are supposed to be guaranteed under international and regional human rights treaties, unless they are recognised and enforced by national-level courts, they are of little or no value. This situation is exacerbated by the fact that in much of rural sub-Saharan Africa, there is limited access to legal information or to African national courts in particular when it comes to the rights of women.

In Zambia, there are two ‘legal systems’ – the ‘civil’ court system and the ‘traditional’ court system and, depending on location and practice, these systems do not view issues identically with the traditional system being predominant. Women, and especially rural women, are routinely at the mercy of traditional courts because of the patriarchal nature of traditional practices. This can greatly affect women especially in terms of finance, and specifically in relation to owning property.

Poor educational capacity is often further compounded by lack of access to even basic information on, for example, ‘property grabbing’ by the family of a deceased husband or partner and what the law allows – this increases the vulnerability of women when faced with the economic realities of HIV and AIDS. The link between powerlessness and the risk of HIV infection is key to understanding the sources of women’s vulnerability.

There is one factor more than any other that drives me crazy in doing the Envoy job: it’s the ferocious assault of the virus on women. We’re paying a dreadful and inconsolable price for the refusal of the international community, every member of the community without exception, to embrace gender equality. And in so many parts of the world, gender inequality and AIDS is a preordained equation of death.

Former UN Special Envoy Stephen Lewis, 2004