(Dis)Continuities of Custom in Zimbabwe and South Africa: The Implications for Gendered and Sexual Rights
Health and Human Rights: An International Journal, Vol. 7, No. 2, pp. 82-113, July 2004
32 Pages Posted: 28 Oct 2010
Date Written: October 27, 2010
Abstract
This article historicizes the legal regulation of sexuality and claims to sexual rights in South Africa and Zimbabwe, analyzing their implication in the gendered entitlement arising out of post-colonial citizenship. The paper focuses on the interaction of formal Constitutions and informal Customary Law in the differential development of agency and rights. It highlights the constancy of women’s partial legal subjectivity alongside shifts in authority from lineage to nation-state. While the Constitution of South Africa makes Customary law subject to its Bill of Rights and Equality Clause, the Constitution of Zimbabwe specifically rejects such an approach. Further differences in process and development distinguish these two Constitutions and result in contrasting treatment by their governments. These tensions between the legal formalism of rights, and the historical authority of customary structures buttress the regulation of sex and the claims to sexual rights within these two countries, and frame a discussion of how sexual health programmes and policies might better engage with the development of sexual agency.
Keywords: Sexuality, customary law, constitutional law, sexual rights, agency, gender, Zimbabwe, South Africa
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