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 III.[1]

This paper examines the legality under African customary law of customs encouraging the sexual cleansing of widows and the inheritance (or marrying[2]) 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]

Historically, the practice of widow inheritance guaranteed many widows and their children some form of social security.[5] However, in recent times, because of the increasing levels of poverty in Africa and the break-up of the extended family system, many widows are discovering that there is little, if any, protection or support to be gained from widow inheritance.[6] Furthermore,

Despite the four United Nations, UN, World Women's Conferences (Mexico 1975, Copenhagen 1980, Nairobi 1985, and Beijing 1995) and the ratification by many countries of the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), widows are barely mentioned in the literature of gender and development, except in the context of ageing . . . Yet the issues of widowhood cut across everyone of the 12 critical areas of the 1995 Beijing Platform for Action, covering poverty, violence to women, the girl child, health, education, employment, women and armed conflict, institutional mechanisms, and human rights . . . One explanation for the neglect of this vast category of abused women is the assumption that widows are mainly elderly women who are cared for and respected by their extended or joint families . . . In fact, of course, far from caring for and protecting widows, male relatives are likely to be the perpetrators of the worst forms of widow abuse. If they are young widows, it is imagined that they will be quickly remarried . . . In fact, millions of widows are very young when their husbands die but may be prevented by custom from re-marrying, even if they wish to do so . . . Across cultures, religions, regions and class, the treatment of widows is harshly discriminatory . . . Patriarchal kinship systems, patrilocal marriage (where the bride goes to the husband's location), and matrilineal inheritance (where succession devolves through the male line), shows the concept that women are ‘chattels' who cannot inherit and may even be regarded as part of the husband's estate to be inherited themselves (widow inheritance). Where matrilineal kinship systems pertain, inheritance still devolves onto the males[.][7]

It is, however, clear that the CEDAW or ‘Women's Convention' and the Beijing Global Platform for Action require governments to enact and enforce new equality inheritance laws. Some governments have indeed legislated to give widows their inheritance rights . . . But even where new laws exist, little has changed for the majority of widows living in the South Asian sub-continent and in Africa . .  A raft of cultural, fiscal, and geographical factors obstructs any real access to the justice system.[8]

I have previously examined the plight of widows regarding the issue of property grabbing, and how some widows are disenfranchised from owning or inheriting matrimonial property after the death of their spouses.[9] In that work, I pointed out that in many of the world's common law jurisdictions, including several African countries, a will is a public document that can be inspected by members of the public.[10] "However, under African customary law,[11] [there are no formal testamentary dispositions] and this leaves claims of intestate succession open to manipulation and abuse by members of a deceased's extended family."[12] I make a further argument that African customary law is often cited for reasons of personal convenience by selfish members of the deceased's extended family as the basis upon which the widow should be disenfranchised from owning property in the matrimonial home left behind by her deceased spouse, including at times, property that was actually acquired by the widow herself or property that was acquired jointly by the widow and her deceased spouse.[13] Indeed, this is the practice that is most commonly referred to as "property-grabbing." Yet, there is no single coherent or systematically developed body of jurisprudence that covers precisely "what is" or "what is not" African customary law. We are left to look at evidence of adherence by a claimant to reasonably well-established norms of African culture and traditions as the basis of considering whether there is indeed evidence of African customary law. "As a result, opportunistic relatives of the deceased have an incentive to manipulate rules and norms relating to African customary law so as to disenfranchise the widow [and allow themselves to take over ownership of the estate of the deceased even] when these relatives have not been provided for in any will of the deceased."[14] Why should a widow not be allowed to inherit property that she and her husband acquired for their matrimonial home while her husband was alive, if this property is not the subject of a lawful disposition to a third party and the wife is the beneficiary under the will? Furthermore, what should be the result when the deceased does not leave a will? Should relatives of the deceased, relying on African customary law, be allowed to help themselves to the estate of the deceased without paying attention to the legislative framework for intestate succession?[15]

At the outset, it must be stated that it is not the aim of this paper to delve into intricacies of medical aspects of customs encouraging the sexual cleansing of widows and the inheritance of a deceased brother's widow. And neither does the paper concentrate on philosophical issues focusing on the legitimacy, ethical, aesthetical or moral dimensions of such customs. In dealing with legal issues surrounding the two customs, it is important to find out if such customs violate the rights of widows,  and if there is no alternative to customary practices promoting the sexual cleansing of widows. There are other questions similarly related that are not directly considered by this paper.  For example, should African customary law be subjected to the legislative provision left by the white settlers in many parts of Commonwealth Africa? That is to say, is African customary law only valid in as far as it is not repugnant to natural justice, good conscience and equity?[16] Or, has African customary law now evolved and acquired its own new distinct properties?

In the present paper, I extend the discussion regarding the plight of widows, focusing this time on the legality under African customary law of two customs related to property-grabbing: (a) the sexual cleansing of widows; and (b) the inheritance of a deceased brother's widow by a male sibling or relative of the deceased. This paper critically examines the legality of these two customs, arguing that today, because of health risks associated with contracting incurable and fatal sexually transmitted diseases, unlike in the olden days when almost all sexually transmitted diseases were curable, customs such as those promoting the sexual cleansing of widows and the inheritance of a deceased brother's widow not only offend the law, but should be banished and condemned. The paper raises a number of jurisprudential issues regarding the legality under African customary law of customs encouraging the sexual cleansing of widows and the inheritance of a deceased brother's widow by a male sibling or relative of the deceased. For example, under African customary law, to what extent can sexual cleansing of a widow and the inheritance of a deceased brother's widow be said to be valid? Or, does sexual cleansing of widows or the inheritance of a deceased brother's widow by a male sibling or relative of the deceased offend the rights of women in some societies and not others? And, should widows be coerced into submitting to sexual cleansing by relatives of their deceased husbands, or should they be treated like property that is part of the estate of the deceased such that a male sibling or relative of the deceased can "inherit" them for his own wife? Equally, under African customary law, is it permissible to treat widows as if they are minors,[17] and that they cannot manage their own family affairs or have a voice in such matters? What is the relationship between African customary law and a country's legislative framework, on the one hand, and African customary law and public policy, on the other? The validity test of African customary law, as spelt out in the legislative frameworks of many Commonwealth African States - that is, a custom is only valid if it does not offend public policy, or any laws of a concerned country, or natural justice, good conscience and equity - defines the nexus between African customary law and other laws of the country.[18]

2. Contending with Conservative Cultures and Prohibitive Ideologies

A prohibitive ideology prescribing that public debate or public discussion should never be held on certain aspects of a people's culture, especially on matters touching on sex and sexuality, continues to persist in many parts of the world today.[19] This retrogressive element of human behavior continues to spring up, especially as concerns people and societies that are quite conservative. Topics that border on sex and sexuality are discussed only in dark corners and behind closed doors, veiled with connotations of tradition and secrecy. There is a strong view that it is a taboo to talk or write about certain African traditions, such as those bordering on erotic sexual practices, and that the sharing of knowledge regarding the same remains a function of some occult which can only transmitted selectively through the medium of oral tradition.[20] It is this very aspect of mystifying and concealing certain types of information that contributes to the silencing and suppression of vulnerable social groups in society. For example, in many conservative cultures, women are expected to be submissive all the time, and they are only allowed a passive role in matters of leadership and property ownership, while younger folks should never question or challenge the elders even if the younger folks are itching with valuable contributions.[21] And, often a time, some misguided and unsound arguments riding on the whims of cultural norms dictating a "profound respect for elders" are used to buttress such value-laden viewpoints. That said, the argument being advanced here is not to advocate or promote a culture of wholesome or blanket disclosures of all cultural traits and patterns pertaining to sexuality and sex, or to rebel against all forms of traditional authority, including the wisdom of the elders, but rather to identify and distinguish discussions and issues that have, as their objective, a primary or secondary developmental impact on society. Only by doing so can valuable and useful information be disseminated effectively to the public. And such dissemination should be done in graduation phases, following parameters of age, maturity and responsibility.

In many conservative societies, knowledge bordering on sex and sexuality is often shared in an obscure manner, inviting only those whose age and prejudices qualify under some vaguely defined cultural criteria.[22] Such troubling approaches usually prescribe that outsiders to a particular culture, ethnic group, peer group or gender category should not be privy to certain types of information or knowledge, especially information that deals with the sexuality of a particular culture, ethnic group or gender category.[23] More specifically, in many African countries a silent decree is handed down by senior members, so that outsiders may not have the opportunity to know about certain female sexual practices.[24]  Many of these practices, considered by the United Nations Economic and Social Council to be violent towards women, are deeply rooted in African tradition; so that discussing certain sexual practices is taboo.[25] Even though future generations of African women may benefit from publicizing and documenting these practices, they remain shrouded in secrecy.[26]

In conservative communities such as those throughout the countries of Africa, people hardly discuss sensitive topics that border on sexual practices.[27]  An example if found in one Zambian fable:

...A man is embroiled in an argument with his wife who accuses him of having an extra-marital affair. His wife points out to him that she has noticed lately that he comes home late in the night and looking very tired. She makes further accusations that even though his pubic hair looks nicely shaven, she is suspicious as to who could have been the barber because she herself did not shave his pubic hair! According to one African legend and custom, it is the wife who should shave her husband's pubic hair.

...Irritated with the accusations, the man decides to ignore his nagging wife and goes out the next day for a drink again. But, on his way back home from the drink, he notices an unusual sight of several old bicycles and some dilapidated cars parked outside his house. He begins to wonder what is happening. As he approaches his house, he sees his youngest son, Chileshe, playing outside the house on the veranda. He whispers quietly to Chileshe, asking what is going on. Chileshe replies that he just saw grandpa, grandma and many other relatives start arriving. The man queries his son further as to what the heck in the world is going on with all these old-looking bicycles leaning against the walls of his mansion. But the son, being young and naïve, innocently and unsuspectingly replies:

‘Katwishi, naine nshi-shibe... (I also don't know...) Na chu-mfwa fye ba mbuya bale landa ati, pano pa ng'anda na pa luba aamaso... (I just overheard grandma complaining that, at this house, pubic hair has gone missing)!'.[28]

In the fable presented above, the young boy, Chileshe, did not understand what his grandmother meant when she said "pano pa ng'anda na pa luba aamaso". Nobody had ever told young Chileshe the implications of repeating certain words to his father. However, if young Chileshe had an iota of an idea or clue of what was at stake, he would not have repeated his grandmother's words to his father.  This fable shows a common burden within many African countries, because there is little room for tolerance regarding open debate on matters of sex and sexuality.

Imagine if the field of modern and conventional medicine was subjected to cultural prohibitions inhibiting open discussion bordering on sex and sexuality, stressing that medical students in Africa or Asia, for example, as young people, should not learn publicly about sexual organs of the human body (i.e. in a lecture theatre at university), because by doing so they will be going against their African culture or Asian culture. What would have happened to the development of medicine in Africa or Asia today? We would likely have been in a situation where even some curable sexually transmitted diseases would not have been treatable today.

3. The Concept of Sexual Cleansing of Widows

While some communities in Africa, Asia, Europe and the Americas subscribe to such customary practices as sexual cleansing of widows and the inheritance of a deceased brother's widow by a male sibling or relative of the deceased,[29] reservations have been expressed by many about the moral basis and the legality of such customs.[30] Some women and human rights activists have argued strongly against the value and lawfulness of customs that require defenseless widows to be subjected to sexual cleansing against their will or to be forced into marrying a male sibling or relative of a deceased spouse.[31] It must also be pointed out that both sexual cleansing and the inheritance of a deceased sibling's widow do not only involve the cleansing of a surviving female spouse or the inheritance of a surviving female spouse. At times, though rarely, these customs also involve the sexual cleansing of a surviving male spouse, or the parents of the deceased woman offering their son-in law (i.e. the widowed male spouse) one of the young sisters to the deceased for a wife so that the chosen sister ends up marrying her brother-in-law; that is, the man who was married to her late elder sister.[32] This practice is based on the theory that since the widowed male spouse has served as a good son-in-law, and that both families of the deceased and the widowed male spouse have enjoyed healthy family ties, it would best to offer the son-in-law one of the sisters to the deceased so that the existing family ties can continue.[33]

In Malawi, a recent report on the sexual cleansing of widows provides as follows:

MCHINJI, Malawi - In the hours after James Mbewe was laid to rest three years ago, in an unmarked grave not far from here, his 23-year-old wife, Fanny, neither mourned him nor accepted visits from sympathizers. Instead, she hid in his sister's hut, hoping that the rest of her in-laws would not find her. But they hunted her down, she said, and insisted that if she refused to exorcise her dead husband's spirit, she would be blamed every time a villager died. So she put her two small children to bed and then forced herself to have sex with James's cousin. ‘I cried, remembering my husband,' she said. ‘When he was finished, I went outside and washed myself because I was very afraid. I was so worried I would contract AIDS and die and leave my children to suffer.' Here and in a number of nearby nations including Zambia and Kenya, a husband's funeral has long concluded with a final ritual: sex between the widow and one of her husband's relatives, to break the bond with his spirit and, it is said, save her and the rest of the village from insanity or disease. Widows have long tolerated it, and traditional leaders have endorsed it, as an unchallenged tradition of rural African life. Now AIDS is changing that. Political and tribal leaders are starting to speak out publicly against so-called sexual cleansing, condemning it as one reason H.I.V. has spread to 25 million sub-Saharan Africans, killing 2.3 million last year alone. They are being prodded by leaders of the region's fledging women's rights movement, who contend that lack of control over their sex lives is a major reason 6 in 10 of those infected in sub-Saharan Africa are women.[34]

The report goes on to say that:

...change is coming slowly, village by village, hut by hut. In a region where belief in witchcraft is widespread and many women are taught from childhood not to challenge tribal leaders or the prerogatives of men, the fear of flouting tradition often outweighs even the fear of AIDS. ‘It is very difficult to end something that was done for so long,' said Monica Nsofu, a nurse and AIDS organizer in the Monze district in southern Zambia, about 200 miles south of the capital, Lusaka. ‘We learned this when we were born. People ask, Why should we change?'...Even some Zambian volunteers who work to curb the spread of AIDS are reluctant to disavow the tradition. Paulina Bubala, a leader of a group of H.I.V.-positive residents near Monze, counsels schoolchildren on the dangers of AIDS. But in an interview, she said she was ambivalent about whether new widows should purify themselves by having sex with male relatives. Her husband died of what appeared to be AIDS-related symptoms in 1996. Soon after the funeral, both Ms. Bubala and her husband's second wife covered themselves in mud for three days. Then they each bathed, stripped naked with their dead husband's nephew and rubbed their bodies against his. Weeks later, she said, the village headman told them this cleansing ritual would not suffice. Even the stools they sat on would be considered unclean, he warned, unless they had sex with the nephew. ‘We felt humiliated,' Ms. Bubala said, ‘but there was nothing we could do to resist, because we wanted to be clean in the land of the headman.' The nephew died last year. Ms. Bubala said the cause was hunger, not AIDS. Her husband's second wife now suffers symptoms of AIDS and rarely leaves her hut. Ms. Bubala herself discovered she was infected in 2000....[35]

Turning to Malawi again, the report sheds more light on the devastating effects of upholding customs that encourage the sexual cleansing of widows.

Like their counterparts in Zambia, Malawi's health authorities have spoken out against forcing widows into sex or marriage. But in the village of Ndanga, about 90 minutes from the nation's largest city, Blantyre, many remain unconvinced. Evance Joseph Fundi, Ndanga's 40-year-old headman, is courteous, quiet-spoken and a firm believer in upholding the tradition. While some widows sleep with male relatives, he said, others ask him to summon one of the several appointed village cleansers. In the native language of Chewa, those men are known as fisis or hyenas because they are supposed to operate in stealth and at night. Mr. Fundi said one of them died recently, probably of AIDS. Still, he said with a charming smile, ‘We can not abandon this because it has been for generations.'[36]

Advancing arguments in support of sexual cleansing of widows, local members of the Ndanga village maintain that sexual cleansing of widows is an indispensable custom and believe in upholding tradition.[37]  A woman whose husband has just died should not marry or have any sexual relationship with another man before she has been cleansed; the belief being that a widow who has not been sexually cleansed is haunted by the spirit of her deceased spouse until she has been cleansed by the relatives of the deceased.[38] But what would happen in situations where a widow decides to become a lesbian? Does she still need to be cleansed by her late husband's relatives even though she has not had any subsequent heterosexual encounter? It would appear so given that lesbians normally engage in what could be deemed as sexual intercourse even though African customary law, generally speaking, does not sanction or recognize homosexual relationships.[39] What about situations where a widow has oral sex with a man? Is oral sex considered real sex under African customary law, and does oral sex get caught up under the requirement that a widow should first be cleansed before she can have sexual intercourse with another man? And what exactly does the term ‘sexual cleansing' entail? Again, it would appear that the widow needs to be cleansed still, even though African customary law does not recognize oral sex or anal sex.[40]

In general, there are several variations regarding rituals of sexual cleansing across different cultures, dialects, tribes and communities.[41] A common thread involves a male relative of the deceased man, acting in accordance with a decision handed down by the elders in the extended family of the deceased, having sexual intercourse with the deceased's widow.[42] Often at the time, it is immaterial that the sexual cleanser or the widow has no affection towards the other.[43] Further, there is usually no commitment for a love affair afterwards or for a long-term marital relationship.[44] However, in some cultures, sexual cleansing can only take place if both the widow and the sexual cleanser have agreed that sexual cleansing should be undertaken through sexual intercourse, or if the widow and the sexual cleanser have agreed to get married to each other after the act of sexual cleansing.[45]

But where sexual cleansing does not lead to a commitment for a love affair or for a long-term marital relationship between the widow and the sexual cleanser, some argue that the widow could just have been used for sexual gratification by some disgruntled and selfish male relative of the deceased.[46]

There are many cases of sexual cleansing where the widow is not expected to have a say in the matter.[47] Even her own relatives may, at times, encourage her to comply with what her in-laws are saying.[48] The widow is defenseless, with nobody on her side. And some male relatives of the deceased, who, including after the death of the deceased, have been fantasizing lustfully and eyeing the deceased's wife, often seize upon the opportunity, arguing forcefully that ‘it is important that we preserve and honor our culture'.[49] Such proclamations are made with a false sense of cultural authority as a veiled suggestion that the widow should be subjected to sexual cleansing, with the proponent of the view hoping that he will be appointed or anointed by the deceased's extended family to carryout the sexual cleansing.[50] Often a time, the reasoning of such selfish individuals is predicated not on any rational grounds, but on purely selfish and lustful intents, disguised under the banner of ‘culture and tradition.' And this type of behavior is common, whether sexual cleansing is taking place in a community in Africa, Asia, Europe or the Americas. It is the insatiable sexual appetite and greed in some men, evidenced in some gigantic and stressful lust that tends to fuel this sense of urgency in a cunning libido. And this weakness drives some men into extreme distortions of valuable customs, just so that they can feed their own sexual egos. In some cultures and countries, some wives have put up a strong fight against their husbands serving as a sexual cleanser in matters involving the sexual cleansing of a widow that had been married to the husband's relative. Yet, there are also many lustful husbands who deliberately choose not to listen to their wives, arguing that it is important that they preserve and honor their culture and, also, that the widow of the deceased be sexually cleansed.[51] In many cases, such husbands have ended up losing their wives and marriages because most female spouses nowadays will not accept or allow their husbands to indulge in what they deem illicit sex outside marriage.[52] If anything, a common view among many married women is that a decent husband should not volunteer or accept to be a sexual cleanser of a widow, unless he himself simply wants to be unfaithful to his wife by engaging in adultery or extramarital sex.[53] 

While sexual cleansing of widows is a cultural practice that occurs in many parts of the world, it is also a fact that some opportunistic and lustful male relatives of the deceased try to take advantage of such customs, volunteering eagerly and enthusiastically to carryout the sexual cleansing of the widow even before the deceased's extended family has met to discuss the logistics of how to go about with the sexual cleansing. In such situations, the value and usefulness of a custom, such as that pertaining to sexual cleansing of widows, is watered down and can be circumvented to opportunism, deceit and chancing by selfish relatives of the deceased. And, as noted above, in many cases, the widow has little say in the matter. If anything, she will be threatened with subtle and disguised sentiments of relatives of the deceased pointing to witchcraft should she not comply.[54] If anything, she will be threatened with subtle and disguised sentiments of relatives of the deceased pointing to witchcraft should she not comply.[55] Fearing for her life, the widow may give in, though reluctantly. The lack of genuine consent here by the widow should be subjected to the test of criminal law. But why is it that there is a glaring absence of criminal prosecutions in many countries regarding such cases? Is customary law above criminal law? A recent report in Zambia provides some novel guidance:

Some traditional rulers in Central Province have resolved to ban sexual cleansing and other cultural practices promoting HIV/AIDS transmission among their subjects. The chiefs further banned spouse inheritance and pledged to help uphold fidelity among couples in their chiefdom as a weapon to fight the disease. These were among the chiefs' resolutions made after a three-day seminar on the abolition of negative cultural practices that make women vulnerable to HIV/AIDS. The seminar was at Kabwe's Masiye Motel.  In what they dubbed ‘Masiye declaration', the chiefs collectively recognised their role in the fight against the pandemic in their chiefdoms and resolved to change certain negative cultural practices. The declaration was signed by chiefs Chitina, Liteta, Kaindu and Mukonchi as well as senior chiefs Mboroma and Mukuni Ng'ombe. They agreed that instead of promoting sexual cleansing, they would encourage the use of alternative methods of cleansing widows and widowers to avoid danger to anyone's life.[56]

According to the report, the Zambian traditional chiefs reached their agreement on banning sexual cleansing of widows and the inheritance of a deceased relative's widow against the following background:

‘Considering the magnitude of the HIV/AIDS pandemic in the country and the devastating impact it is having on the socio-economic development of our people and communities...‘In recognition of our influence, authority and custodianship of the traditional norms and customs, we do hereby ban the practice of sexual cleansing and encourage alternative methods such as use of mealie meal and wearing of beads.'...They also resolved to ban spouse inheritance as well as early marriages because of the effects the latter had on the girl-child and on the development of communities.[57]

The report notes that the chiefs further resolved to encourage faithfulness among spouses as a way of insulating couples against the pandemic.[58] As such,

They pledged to uphold the law against child sexual abuse while working tirelessly to discourage prostitution, which contributed to the spread of HIV/AIDS. They identified tattooing among villagers as another way through which the disease was being transmitted and resolved to discourage subjects from doing so. Chiefs' retainers and traditional councillors also attended the seminar.[59]

In many African cultures, such as among some Bemba-speaking dialects[60] and some Tonga-speaking dialects in Zambia,[61] the act of sexual cleansing can be dispensed with or substituted through non-sexual practices of cleansing a widow.[62] Among some Bemba speaking dialects, for example, a common method of cleansing a widow without using or involving any sexual intercourse involves the relatives of the deceased identifying among themselves an elderly person to bless the widow and set her free of the supposedly possessive spirit of her deceased spouse.[63] The elder will sprinkle and smear the widow with some whitish powder, which is also known as impemba among the Bemba-speaking dialects, and place a bracelet of white beads around one of the widow's wrists.[64] Impemba is a powder form of grinded white clay. If the elders are not able to obtain or find impemba anywhere nearby, the appointed elder will sprinkle and smear the widow with some white cornmeal and place a bracelet of white beads around one of the widow's wrists.[65] As the elder performs this ritual, he will also utter some incantations to free the widow of the spirit of her deceased husband and to bless her as well.[66] In many African cultures, the smearing of such white powder has great cultural significance.[67] It denotes many significant things, including the showering of blessings on an individual.[68] And the ritual recitation of verbal charms is intended and expected to produce some magic effect of not only blessing the widow but also spiritually liberating her from the presumably possessive spirit of her deceased spouse so that she can now live a new life and remarry, if she so wishes.[69]

Usually, shortly after the deceased has been put to rest, but before any form of widow cleansing has taken place, a precursor customary practice among some Bemba-speaking people takes place.[70] Under this custom, often referred to as imishingo, the relatives of the deceased will soon, after returning from burying the deceased, set aside and tie up in a bundle a few clothes that belonged to the deceased and that were the deceased's favorite clothes.[71] Some Bemba-speaking dialects insist that this bundle of clothes should not remain in the house where the mourners have gathered to mourn the deceased, which is usually the house in which the deceased himself used to reside, but that the bundle should be placed somewhere outside the house.[72] Thereafter, the relatives of the deceased will identify someone from among themselves to inherit the deceased's name.[73] The person so chosen will also be given the bundle of clothes to take and wear.[74] And the next day, very early in the morning, the deceased's extended family and a few select elderly mourners will gather in one room of the house.[75] The person who inherited the deceased's name will be invited in and asked by the elders to tell them how he or she slept, or, rather, if at all he had any dreams in the night. And this is a crucial aspect of the custom of imishingo, often defeating even the speculative views of the critics. This custom has been known to provide a high degree of certainty in terms of the revelation that comes from the person that is being asked by the elders.[76] Indeed, aren't there certain things around us that are mysteriously incapable of explanation? It is in this vein that the authenticity and value of the custom of imishingo should not be doubted at all, but should be respected as it is. And where someone else, other than the person chosen by the extended family of the deceased to inherit the deceased's name, helps himself or herself to the bundle of clothes set aside for the purpose of imishingo, such individuals are known to have either gone mad or have experienced severe hardship in their lives.[77] In short, such clothes should never be stolen, for stealing them will be at the peril of the wrongdoer.[78] 

Among the Tonga-speaking dialects, there are relatively similar non-sexual rituals for cleansing widows.[79] Although most Tonga-speaking dialects, like many other peoples of the world, including most Bemba-speaking dialects, have sexual cleansing as a part of their culture, more recently, people are beginning to shy away from practices of sexual cleansing.[80] In fact, some tribal chiefs in Africa, including many human rights activists and government officials, have been lobbying strongly against customs pertaining to sexual cleansing through sexual intercourse given the alarming rate at which the global scourge of sexually transmitted diseases is progressing.[81] Many traditional chiefs in Africa are now encouraging their subjects to be using alternative forms of cleansing a widow.[82] Among some Tonga-speaking dialects, for example, the extended family of the deceased can identify a close relative of the deceased who could be a minor or an adult, or a female or a male, to carryout the cleansing of the widow.[83] The rituals of sexual cleansing differ widely even within a particular tribe or ethnic group.[84] That said, where a minor is chosen among some Tonga-speaking dialects to perform the ritual of cleansing a widow, the widow will be asked to sit on the ground while the minor takes his or her position close to the laps of the widow.[85]  The minor will then sprinkle and smear the widow with some white powder or cornmeal, showering blessings on the widow so that she may go in peace and that should she decide to get married she may have a happy marriage.[86] Alternatively, the minor may not sprinkle or smear the widow with any white powder or cornmeal, but could simply utter some few special words to bless the widow so that she may go in peace back to her people and that she is henceforth released from the spirit of her dead husband and can, if she so wishes, get married again.[87] It appears that under African customary law, unlike the case under the English common law, marriage vows that couples take when they are getting married have a life span that extends beyond their deaths. A widowed spouse will only be released from his or her marriage vow, if at the time of the deceased's death the couple had still been married, once the relatives of the deceased have cleansed the widowed spouse and allowed him or her to go free and remarry or live another life happily. 

Among the Tonga-speaking dialects, some other common methods of cleansing a widow that do not involve sexual intercourse with the widow include the following:

(a) a few select elderly women from the deceased's extended family go out to look for traditional herbal medicine in the bush, and then later return to bath the widow using water in which those traditional herbs had been soaked; or

(b) the widow is asked to sit down on a mat, with her legs bound together and fully stretched out, while a relative of the deceased is asked to cross over or walk past the widows' stretched legs and to utter some incantations to free the widow from the spirit of her deceased husband and to bless the widow as well. [88]

Sometimes, a combination of two or more of the cleansing methods described above can be used.[89]  Like among the Bemba-speaking dialects, the pronouncement of ritual recitations by the Tonga-speaking dialects during the cleansing of a widow is intended to produce some magic effect of not only blessing the widow but also spiritually liberating her from the presumably possessive spirit of her deceased spouse so that she can now live a new life and remarry if she so wishes.[90] Most Tonga people call the whole act of cleansing a widow, whether through sexual cleansing or otherwise, kusalazya.[91]

In the latter sections of this paper, I will look closely at the legality of sexual cleansing under African customary, including the legality of a male sibling or relative of the deceased inheriting the deceased's widow. Following below is an examination of the concept of inheriting a deceased brother's widow.

4. The Concept of Inheriting a Deceased Brother's Widow

In many societies that subscribe to the concept of a male sibling or relative of the deceased inheriting the deceased's widow, a number of arguments have been advanced in support of such customs. Chief among them is the view that whatever was owned by the deceased belongs to his extended family, including his education and the fruits of his education.[92] Therefore, many relatives of the deceased, including some enlightened ones, take the view that the wealth left behind by the deceased relative should remain in the deceased's extended family, and that the only way this can be achieved is by a relative of the deceased marrying the deceased's widow.[93]

Then, there is also a common assumption by some relatives of the deceased that the deceased's widow might not have the requisite managerial capacity or intelligence to manage the finances or estate of the deceased, and that the extended family of the deceased should therefore find a suitable man within the extended family to marry the widow and assist her in running the estate of the deceased or the deceased's nuclear family.[94] This view, like many other arguments in favor of sexual cleansing of widows, should be condemned for being demeaning towards widows and for promoting a male chauvinistic attitude. Why should widows be thought of as being incapable of running affairs of their own matrimonial home or the estate left behind by their deceased spouse?

Other views supporting the idea of inheriting a deceased brother's widow include the idea that since the deceased was a wealthy man, it follows naturally that one or more of his surviving male siblings or/and relatives will be selfish and want to inherit the wealth that he has left behind.[95] Such developments are common even if the selfish sibling or relative has not been provided for under the deceased's will or under the law relating to intestate succession.[96] And this brings us back to the issue of property-grabbing. In a way, the concept of inheriting a widow here is closely related to property-grabbing. This is so because where a selfish male relative of the deceased does not succeed at property-grabbing, his other alternative would be to marry the deceased's widow as a means of getting at the assets left behind by the deceased. And this type of behavior is what is called ‘inheriting a deceased brother's widow.' In many cases, such male relatives are not interested in helping out or maintaining the deceased's widow or the deceased's children, but simply in benefiting from the material wealth left behind by the deceased. 

Admittedly, there are also cases where a deceased was a poor man and has left behind a big family. In such situations, some members of the deceased's extended family may be concerned over the plight of the many children left behind by the deceased, especially if the widow does not have a steady income to support the children.[97] Although becoming increasingly rare nowadays due to economic hardships, the adoption of some of these children by members of the deceased's extended family could help alleviate economic hardship on the widow.[98] However, there are also cases where some relatives of the deceased ill-treat and sexually abuse some of the children they adopt.[99] Young female orphans are particularly prone to such vices.[100] As one report shows on Zambia, for example:

Many of the most tragic stories connected with HIV transmission involve the sexual abuse of children. The high prevalence of HIV has increased the level of sexual violence and coercion, and not just because many of the victims are vulnerable AIDS orphans. Men are targeting increasingly younger sexual partners whom they assume to be HIV-negative, and the ‘virgin cure' myth (which wrongly claims that sex with a virgin can cure AIDS) fuels much of the abuse. An increased proportion of the abusers are HIV-positive and many transmit their infection to their victims.[101]

According to the report,

Like most countries, Zambia does have laws against child abuse. However, orphans who inform against their guardians risk abandonment or violent punishment, and families will often go to great lengths to conceal what is going on. It is no surprise that the vast majority of perpetrators go unreported, unpunished and free to abuse again: ‘To report a crime of sexual violence or abuse, a girl would face a police department that is rarely child- or gender-sensitive, health service providers that may scold her for being promiscuous, a court system lacking any facilities for youths, and a societal structure that teaches girls to be submissive to men. Even if she did report abuse, chances that officials would act against the abuser are minimal.' [102]

Police handled more than 200 cases of child rape in the second quarter of 2003, and some experts believe that for every case published another 10 go unheard."[103]

Other relatives of the deceased may volunteer to look after the deceased's children because they themselves are only interested in getting a share of the monies or wealth left behind by the deceased through clawing out of the deceased's estate monies supposedly for the school fees and upkeep of the children.[104] Yet, there is also another view advanced by some male relatives of the deceased, arguing that, if they have to financially support or look after the deceased's widow and children, they might as well have the widow for their wife.[105]

And some widows have on their own created problems for themselves. In some cases, widows are treated respectfully and fairly by relatives of the deceased, and the widows have not been subjected to property-grabbing or such customs as a male sibling or relative of the deceased inheriting the widow.[106] Yet, some of these widows soon after losing their spouses have been known to indulge in illicit sexual relationships with young men of no fixed abode and of limited means even when the widows know fully well that their deceased husband could have died from a communicable and sexually transmitted terminal illness.[107] For the young men involved in such relationships, most of them are just seeking economic survival as they have no professional skills to sell to the job market. And when information about such illicit and clandestine relationships reaches the relatives of the deceased, these relatives will go and grab the deceased's property from the widow, fearing that the property and the accompanying estate of the deceased might just get looted by the opportunistic young man who the widow has now befriended.[108] Indeed, many cases have shown that widows who indulge in such illicit sexual relationships and affairs with young men often spend lavishly and extravagantly on these young men in order to keep them close.[109] And some young men have, in turn, sweet-talked some of these widows into financing dubious and speculative business deals that have yielded nothing but a myriad of financial losses.[110] 

Another reason why some relatives of the deceased will support the idea that one of them inherits or marries the deceased's widow is premised on a reason that we visited in the previous section when we looked at sexual cleansing. Some male relatives of the deceased who have been fantasizing lustfully and eyeing the deceased's wife will try and seize this opportunity to marry the deceased's widow, arguing forcefully that ‘it is important that we observe and respect our culture'.[111] As noted earlier, often a time, the reasoning of such selfish individuals is predicated not on any rational grounds, but on purely selfish and lustful intents, disguised under the banner of ‘culture and tradition.' In some countries, such as Zambia, legislation has even been enacted to codify the custom of a male sibling of the deceased inheriting the deceased brother's widow.[112] But should such legislation continue to be in force today given the health risks associated with inheriting or marrying a widow whose husband could have died from a communicable and sexually transmitted terminal illness? The appendix appearing at the back of this paper provides the text of a piece of legislation in Zambia codifying the custom of inhering a deceased brother's widow.[113] 

In Zambia, the Deceased Brother's Widow's Marriage Act 1926 was enacted during the colonial days when the British white settlers were at the time administering the then Northern Rhodesia.[114] Yet, this statute is still in force today. The statute codifies what the colonialists saw as a common customary practice among many tribes in Zambia - the inheritance of a deceased brother's wife by a sibling of the deceased. Accordingly, section 3 of the Deceased Brother's Widow's Marriage Act 1926 provides that marriage with a deceased brother's widow will not be void as a civil contract for reasons only of affinity.[115] By contrast, the Deceased Brother's Widow's Marriage Act 1926 prohibits marriage by a man, during lifetime of his brother, to the divorced wife of his brother or marriage by a man to the wife of his brother who has divorced the brother.[116]

5. Factoring in the ‘Validity Test' Under African Customary Law

The validity under African customary law of customs that encourage the sexual cleansing of widows and those that encourage the inheritance of a deceased brother's widow is being questioned. It has already been pointed out above that often  time such customs work against the interests and rights of widows, and that the validity of these customs should be tested against modern science in order to protect the rights of widows. Also, countries where such customs are practiced should introduce legislation and adopt treaty obligations that place restraints and prohibitions on the application of these customs. There are several other instances where the application of African customary law has resulted in injustices to women. For example, in Zimbabwe, a 1999 report sheds some light, providing as follows:

Zimbabwean women have no rights in their country and should be considered virtual sex slaves. That is the effect of two recent court rulings. Last month the Zimbabwe Supreme Court ruled unanimously that ‘the nature of African society' dictated that women are not equal to men. According to cultural norms, the court said, ‘women should never be considered adults within the family, but only as a junior male, or teenager'. The case that sparked the decision involved seamstress Vennia Magaya, who sued her half-brother for her portion of her father's estate. According to Zimbabwe's laws and Constitution, she had a clear claim as an heir. The laws have now been erased.[117]

In another interesting Zimbabwean case involving the mistreatment of women,

Marita Ncube (42) of Kezi, south of Bulawayo, was recently jailed for 18 months after being found guilty of arson. Ncube burned down her father-in-law's house after he insisted on having sex with her. When Henry Ncube married Marita 22 years ago, his father Dumisani Ncube consummated the marriage. ‘I have the right to continue sleeping with the young woman,' an unrepetant Dumisani Ncube told magistrate Thembelani Khumalo. Among the Kalangas...sex between a father-in-law and daughter-in-law is not only permissible but compulsory. Raphael Bhutshe, a staunch Kalanga traditionalist, says their young men are not allowed to have sex with their wives until the head of their families officially ‘approve' them. There are no dissenters or protests usually, and Kalangas claim they have practised this tradition since time immemorial. ‘Among my people, sex between a father-in-law and daughter-in-law is an initiation act never to be ignored,' Bhutshe said. Besides being a way of welcoming a new bride into the households, the father-in-law is also believed to be more experienced in determining a bride's virginity. A Kalanga father presides over all domestic disputes, Bhutshe said, and a daughter-in-law who had sex with him would ‘have absolutely no inhibitions when she reports matters concerning her sexuality'. But there is a restriction: sex between the father-in-law and his son's wives can only happen on the wedding night. Dumisani Ncube was not satisfied with one night only. Marita Ncube told the court that she had been pestered by her randy father-in-law who wanted to have sex with her regularly. ‘I don't want any more of it. I will never do it again and that is why I burned down his house. I was disgusted by my father-in-law's persistent requests for sexual favours,' she said. Dumisani Ncube told the court: ‘It is my responsibility to look after my son's possessions until he returns from Johannesburg. This includes his wife.'[118]

However, reacting to the court's ruling,

Marita Ncube appeared delighted with the decision to imprison her. ‘There's HIV and Aids. How on earth do I know whether my father-in-law is infected or not? I am happy that the magistrate has sent me to prison because then the old man will not be able to harass me any more.' Jane Ndlovu, co-ordinator of the NGO Women against Male Oppression, has vowed to appeal against the sentence. ‘Dumisani Ncube had his chance to test his daughter-in-law when his son married her in 1976,' she fumed. ‘Whether her sexual performance was irresistible or not, he had no right to sleep with her again because that is against Kalanga laws. The burning down of the house resulted from provocation and I am surprised that the magistrate did not take that into account'.[119]

Generally, while a number of countries have good laws protecting the rights of widows, the enforcement of these laws is often weak due to various cultural, political, sociological and economic factors. For example, in a case where a widow does not subscribe to customs encouraging the sexual cleansing of widows or the inheritance of a deceased brother's widow by a male sibling or relative of the deceased, but the deceased's relatives insist that the deceased's widow should be sexually cleansed or inherited, what rights does the widow have? Should she simply comply? Do widows have a right to refuse to submit to such customs if by doing so or by not getting cleansed society will shun them? And knowing fully well that many societies tend to discriminate and stigmatize widowed men and women who have not been cleansed, what chances do widows have of gaining acceptance back into society and among friends if they are not cleansed? It would appear that, in the absence of any other argument opposing the sexual cleansing of widows and the inheritance of a deceased brother's widow, there would be four main principles guiding the validity test of customs that encourage the sexual cleansing of widows and the inheritance of a deceased brother's widow. And these principles are:

The widow should do so freely, having given her consent.

The widow should not be coerced or threatened into the practice(s).

Relatives of the deceased or relatives of the widow, or friends and acquaintances of the widow, or friends and acquaintances of the deceased, should not, through negligent or fraudulent misrepresentation, mislead the widow into submitting to the practice(s).

Where a custom is sought by a party seeking to exonerate himself or herself from liability arising out of a representation made to the widow who, based on the representation, submitted to the custom of sexual cleansing or the custom pertaining to the inheritance of a deceased relative's widow, evidence must be adduced by the defendant that the custom in issue actually exists and that it is a widely accepted custom, and that the complainant acquiesced in it.   

In the same vein, I have examined elsewhere the issue of whether or not, under African customary law, the practice of labia elongation violates the rights of women in African cultures that subscribe to such practices.[120] In that work, I highlight the difference between labia elongation and other forms of cultural practices that negatively affect, or even violate, the rights of women. And I advance the argument that, unlike situations of female circumcision involving partial or complete removal of the external genitalia, or removal of the prepuce (hood) of the clitoris, or full excision of the clitoris, labia minora and labia majora, the case of labia elongation does not necessarily involve offensive physical violence against women.[121] A conclusion is reached that, notwithstanding the controversies surrounding what constitutes consent and the age at which a young female can be considered to have consented freely to elongating her labia, the practice of labia elongation per se, as customary in many parts of Africa, does not violate the rights of women, and that such a practice can, however, offend African customary law and violate the rights of women where a woman is coerced into labia elongation or where she is misled fraudulently or negligently into the practice.[122] The argument that, in many African cultures, girls engage in the practice of labia elongation when they are too young to be considered legally capable of freely consenting to such a practice is not free of illogical difficulties. Are there not many other instances when parents or elderly relatives will make choices on behalf of the young ones? In the area of religion, for example, children usually have no say as to which church they will attend. The same logic applies to the choice of schools that young children will attend. Can we then say that since it is the parents that are making decisions here then we should interpret that as a suppression or violation of children's freedom of expression? By the same token, what wrong is there in the elders pointing to a ‘physically moderate and non-harmful' custom, such as labia elongation, for the children to embrace? That said, the practice of labia elongation can also offend African customary law and the rights of women where legal norms of a particular society show that labia elongation is contrary to either public policy, other laws of that jurisdiction, or natural justice, good conscience and equity.[123]

While some widows willingly, and with full knowledge, submit to customs that encourage the sexual cleansing and the inheritance of a deceased brother's widow by a male sibling or relative of the deceased, there are many others who are ignorant about the complexities of such customs.[124] Some members of the latter group are coerced, threatened or tricked into submitting to these customs by relatives of the deceased or by their own relatives or by both.[125] Fearing the stigma associated with a widow who has not been cleansed, most widows submit to the custom of being cleansed.[126] More recently, however, the act of cleansing a widow through sexual intercourse has become less common since other non-sexual methods are being emphasized by many ethnic groups.[127] As noted above, one of the acid tests of showing that customs encouraging the cleansing of widows and the inheritance of a deceased brother's widow do not violate the rights of widows rests on the ‘free' consent or acquiescence of the widow.

Generally, the courts of law in many African countries have not been seen to engage in judicial activism that defines more pronouncedly the boundaries of African customary law on what is reasonable practice regarding customs such as sexual cleansing of widows and the inheritance of a deceased brother's widow by a male sibling or relative of the deceased. It is not enough for a court to rule that the only persons that can claim the benefit of African customary law are those whose personal lives have been governed by the custom in issue.[128] African customary law is in a constant flux and it is faced with a marked absence of codified norms. Equally worrying are court holdings that support the view that an African man can never contract himself out of his own African custom, on matters pertaining, for example, to the posthumous disposal of his own human body, no matter how educated or westernized he may be.[129]

In many common law jurisdictions of Africa, the test of reasonableness of an African custom is based on an ancient postulate of the former colonial masters. Even today, the legality of these customs remains subject to statutory provisions replicated in almost all former English colonies and protectorates in Africa. The statutory provision required that after a rule of customary law had been proven to exist, the court had to consider whether that rule was judicially enforceable, or whether it was repugnant to natural justice, equity and good conscience.[130] As Okereafoezeke observes,

In 1900 the British imperialists established the so-called ‘repugnancy test' justice policy in Nigeria. In both colonial and post-colonial periods, Nigerian justice officials have used the policy to subjugate the country's native justice systems to the imposed English-style justice system. The Igbo experience in this regard illustrates the experiences of Nigeria's native justice systems... the researcher concludes that the justice policy hinders - more than it helps - the growth of the native justice systems. One of the most important negative consequences of the repugnancy test policy is that...some official appellate court judges view native laws and customs as inferior or subject to the official, English-style laws.[131]

Ada Okoye, examining the Nigerian legal system, adds that, "for a customary practice to qualify as customary law, a custom must be accepted as an obligation by the community, and it must be recognised as law by members of that ethnic group or as ‘a mirror of accepted usage."[132] Okoye observes further that "where proof or judicial notice of a custom as law has been established, its applicability is still subject to statutory provisions requiring it not to be:

• (a) repugnant to natural justice, equity and good conscience;
• (b) incompatible either directly or by implication with any law for the time being in force; and,
• (c) contrary to public policy.[133]

But are customs encouraging the sexual cleansing of widows and the inheritance of a deceased brother's widow by a male sibling or relative of the deceased repugnant to natural justice, equity and good conscience? Or, are they incompatible either directly or by implication with any law for the time being in force in countries where such customs are practiced? We have seen that in Zambia, for example, the custom of inheriting a deceased brother's widow by a male sibling of the deceased is reinforced by legislation.[134] But the Deceased Brother's Widow's Marriage Act of 1926 has limited scope as it narrowly confines the legality of such marriages, stating that a marriage to a deceased brother's widow will not be void by reasons only of affinity. This means that such a marriage can be declared void only for reasons not to do with affinity. Also, the statute limits its scope to marriages between a deceased brother's widow and the deceased's sibling. It does not extend to marriages between a relative of the deceased other than his sibling and the deceased's widow. Therefore, members of the extended family of the deceased, such as uncles, cousins, nephews and so forth, are not covered by the Deceased Brother's Widow's Marriage Act of 1926, and are covered only under African customary law.

Under Zambia's Deceased Brother's Widow's Marriage Act of 1926, where the inheritance of a deceased brother's widow by a sibling of the deceased is proven under African customary law to be repugnant to natural justice, equity and good conscience, the marriage will be struck down as invalid and void. This could happen, for example, where customary law deems that the widow is too old to get married to a much younger brother of the deceased even though the young man himself might be eager to take on the old woman. In the same vein, a marriage between the deceased's widow and the deceased's brother can be declared void if it is proven that the widow or the deceased's brother did not freely consent, or either of the two or both were coerced, tricked or threatened into the marriage. Also, the marriage will be void where relatives of the deceased or relatives of the widow, or some third-party, with undue influence over the widow or the deceased's relative, misled, coerced or tricked either the widow or the deceased's relative or both into marriage.

To what extent, then, can it be argued that customs encouraging the sexual cleansing of widows and the inheritance of a deceased brother's widow are contrary to public policy? According to Okoye, the three provisions outlined above - that is, repugnance to natural justice, equity and good conscience; incompatibility either directly or by implication with any law for the time being in force; and, contrary to public policy - are known as the ‘validity test' in Nigeria, and that:

The first provision is also described as the repugnancy clause or repugnancy test, and a custom may not fail this test simply because it diverges from the accepted norms of practice in other societies. Similarly, it is not for the courts to modify a custom and apply or recognise the modified form as customary law. Nor is it a simple matter to define what constitutes a violation of the repugnancy clause without the adjudicator employing an external standard. Be that as it may, case law has declared certain customs repugnant to natural justice, equity and good conscience. These include a custom sentencing a deposed chief to death, customs based on slavery, and more recently, customs barring women from succeeding to the estate of a deceased husband or father.[135]

As a general rule, as long as customs encouraging the sexual cleansing of widows and the inheritance of a deceased brother's widow do not violate public policy, or any laws of a concerned country, or natural justice, good conscience and equity, and as long as such customs are subscribed to freely by widows, and with full consent, they may not violate the rights of women. To that extent, these customs can be deemed to be valid customary norms. Again, it must be stressed that a fine line must be drawn between a widow's free consent to such customs and situations where the widow is coerced, tricked or threatened into submission.

An important line of thought not to be overlooked or forgotten here is that, given the threat of communicable and sexually-transmitted terminal diseases today, customs that encourage the cleansing of widows through sexual intercourse and those that encourage the inheritance of a deceased brother's widow should be viewed with caution. If anything, there is strong presumption that such customs offend public policy and are repugnant to natural justice, good conscience and equity. But how do we determine what constitutes public policy in matters affecting traditional customs? Let us take a more reasoned look at what some traditional chiefs in Africa, including some government officials and human rights activists, are saying. A recent media report shows the following:

The HIV/AIDS pandemic in Africa has encouraged women's advocates and local leaders to ‘speak out publicly against so-called sexual cleansing,' in which a newly widowed woman must have sex with one of her husband's male relatives in order to ‘exorcise' his spirit, the New York Times reports. Some people believe the practice contributes to the spread of HIV in sub-Saharan Africa, where about 25 million people are HIV-positive and about 60% of them are women. In Zambia, where the HIV prevalence rate among adults is about 20%, President Levy Mwanawasa has said that the tradition should be ‘discouraged,' and tribal chiefs throughout the country no longer are enforcing the practice, according to the Times. However, ‘change is coming slowly, village by village, hut by hut,' because for many people ‘the fear of flouting tradition often outweighs even the fear of AIDS,' the Times reports.[136]

In Malawi, the Malawi News Agency reports that:

If there is one thing that is giving Nsanje District Commissioner Toby Solomoni sleepless nights, it is the cultural practice, kulowakufa. Solomoni says the cultural practice poses the greatest danger to people's lives in the district, and that if allowed to continue, the population risks being wiped out. He bemoans the fact that Nsanje has one of the highest HIV-prevalence rates in the country because of the cultural practice which, he says, is fanning the virus that causes Aids. He says while President Bingu wa Mutharika's administration is eager to initiate programmes in Nsanje to eradicate the district's widespread poverty, HIV is thwarting government's development's efforts. ‘We are bogged down by this pandemic,' Solomoni told reporters... Solomon condemns kulowakufa, saying it encourages people to engage in sex and that as a result, countless people are being exposed to HIV. ‘People are dying everyday, and with loss of life, we are losing the number of people in terms of participation in development,' he said. ‘Let us do away with kulowakufa.' Kulowakufa is a sexual-cleansing ritual mostly practised in the Lower Shire districts of Chikwawa and Nsanje. It is performed after the death of a spouse, supposedly to ward off evil spirits that may haunt the deceased's household. When a husband dies, his relatives identify a man to have sex with the widow not long after the burial ceremony. The same ritual is performed when a wife dies-the widower must have sex with another woman. It is forbidden to use condoms during the sexual act. The practice, which has existed from time immemorial, is being blamed for the increase in the number of HIV-positive people in the district, and the rise in the number of orphans.[137]

A plausible view, I contend, is that, from the perspective of public health policy, customs that encourage the cleansing of widows through sexual intercourse and those that encourage the inheritance of a deceased brother's widow do violate public policy and are also repugnant to natural justice, good conscience and equity. Such customs encourage sexual intercourse to take place outside the institution of marriage at a time when the world is grappling with grave health calamities. And many traditional rulers, government officials and publicists have condemned these customs, arguing instead that widows can be cleansed through non-sexual oriented means.[138] And this is the view that this paper champions. Although in the past customs that encourage the cleansing of widows through sexual intercourse and the inheritance of a deceased brother's widow did not necessarily offend African customary law, they now do violate public policy where such customs involve sexual intercourse. And because of the health risks associated with these customs, they can be safely considered to be repugnant to natural justice, good conscience and equity. It matters less that the widow herself and the sexual cleanser consented to the sexual act or that the deceased's widow and the deceased's relative consented to a marriage. In the same vein, it would be futile to try and advance superficial and unpractical arguments that the sexual cleanser will use a condom when cleansing the widow because we know for a fact that most acts of sexual cleansing do not involve the use of condoms.[139] And neither do parties undergo a medical exam before embarking on sexual cleansing.[140] As a general rule, therefore, matters of public policy should take precedence over private contractual rights of legal persons in the same manner that a private contract to engage into prostitution will not be enforceable at common law even if though the parties may have freely consented.

6. The Underdeveloped State of African Customary Law

In addressing the question whether or not customs that encourage sexual cleansing of widows and those that encourage the inheritance of a deceased brother's widow violate public policy, or laws of a particular country, or natural justice, good conscience and equity, "one school of thought advances the view that a major reason why African customary law has not progressed much is not because it lacks codification and uniformity."[141] "Both the issues of uniformity and codification are only one aspect of the equation. African customary law, it is argued, reflects the major means of production in various parts of Africa and, thus, hardly ever deals with disputes relating to modern commerce."[142] "There are no financial instruments such as bills of exchange, or financial institutions such as tax authorities, that are governed, in part or wholly, by African customary law. In the main, African customary law has remained largely pseudo-feudal in nature to an extent that while there is no such thing as African customary law of banking, or African customary law of securities regulation, African customary law of insurance, African customary law of international trade, African customary law of pensions and companies, or African customary law of financial services, there is, by contrast, European Union jurisprudence relating to banking and capital markets regulation. African customary law, as if glued to the feudal structures of rural Africa, remains rooted to matters of adultery, bridal price, and other matrimonial causes such as customary rights of women to inherit property left behind by a deceased spouse. Even the courts that have jurisdictional competence over matters of African customary law in the first instance are often presided over by justices who are not very well-trained lawyers and who rely more on conventional wisdom than rules of evidence and substantive law."[143] There is a need for judicial systems in Africa to begin developing systematic legal norms to govern the interpretation of African customary law.

7. Conclusion

This paper has examined the legality under African customary law of customs that encourage the sexual cleansing of widows and the inheritance of a deceased brother's widow by a male sibling or relative of the deceased. In examining this theme, the paper addressed the extent to which such customs violate the rights of widows. The validity test of African customary law - that is, a custom is only valid if it does not offend public policy, or any laws of a concerned country, or natural justice, good conscience and equity - was identified as the nexus between African customary law and other laws of the country. The paper argued that, from a public health policy perspective, customs that encourage the cleansing of widows through sexual intercourse and those that encourage the inheritance of a deceased brother's widow actually violate public policy and are, also, repugnant to natural justice, good conscience and equity. Evidence was presented that many traditional rulers, including government officials and publicists, are against such customs. Many traditional rulers in Africa are now arguing that when cleansing widows no sexual intercourse should be involved and that people should be utilizing non-sexually oriented methods of cleansing.

With a growing international consensus against customs that encourage the cleansing of widows through sexual intercourse and those that encourage the inheritance of a deceased brother's widow, irrespective of whether or not the parties to the arrangement have consented freely, it is now a given that such customs are generally to be considered as offending the tenets of African customary law. Indeed, the African customary law has evolved from what it was yesterday. Society does not remain static and neither do values and societal norms. Although in the past, customs that encouraged the cleansing of widows through sexual intercourse and those that encouraged the inheritance of a deceased brother's widow did not necessarily offend African customary law, they now do violate public policy and are thus repugnant to natural justice, good conscience and equity. It matters less that the widow herself and the sexual cleanser consented to the sexual act or that the deceased's widow and the deceased's relative consented to a marriage. As a general rule, matters of public policy take precedence over private contractual rights of legal persons in the same manner that a private contract to engage into prostitution will not be enforceable at common law even if though the parties to the contract have consented freely.

Appendix A

REPUBLIC OF ZAMBIA

THE DECEASED BROTHER'S WIDOW'S MARRIAGE ACT

CHAPTER 57 OF THE LAWS OF ZAMBIA

       CAP. 57                  Deceased Brother's Widow's Marriage   

CHAPTER 57

THE DECEASED BROTHER'S WIDOW'S MARRIAGE ACT

ARRANGEMENT OF SECTIONS

Section

1. Short title

2. Interpretation

3. Marriage with a deceased brother's widow not to be void as a civil contract except in certain cases

4. Saving of existing rights and interest

5. Marriage by a man to the divorced wife of his brother or wife of his brother who has divorced his brother unlawful during lifetime of such brother

6. Liability of minister to ecclesiastical censure

DECEASED BROTHER'S WIDOW'S MARRIAGE

An Act to amend the law relating to marriage with a deceased brother's widow; and to provide for matters incidental thereto.

1. This Act may be cited as the Deceased Brother's Widow's Marriage Act.

2. In this Act, unless the context otherwise requires-Interpretation "brother" includes a brother of the half-blood.

3. No marriage heretofore or hereafter contracted between a man and his deceased brother's widow within Zambia or without, shall be deemed to have been or shall be void or voidable, as a civil contract, by reason only of such affinity:provided that-(i) no minister of any church, denomination or religious body shall be liable to any suit, penalty or censure, whether civil or ecclesiastical, for anything done or omitted to be done by him in the performance of the duties of his office to which suit, penalty or censure he would not have been liable if this Act had not been passed;(ii) when any minister appointed to solemnise marriages in Zambia under the provisions of subsection (2) of section five of the Marriage Act at any place of public worship within Zambia licensed as a place for the solemnisation of marriages under the provisions of subsection (1) of section five of the said Act shall refuse to perform such marriage service between any persons who, but for such refusal, would be entitled to have the same service performed in such place of public worship, such minister may permit any other minister of the church, denomination or body to which such place of worship belongs who has been appointed under the provisions of subsection (2) of section five of the said Act to solemnise marriages in Zambia, to perform such marriage service in such place of public worship;Use of place of public worship. Cap. 50(iii) in case, before the commencement of this Act, any such marriage shall have been annulled, or either party thereto (after the marriage and during the life of the other) shall have lawfully married another, it shall be deemed to have become and to be void upon and after the day upon which it was so annulled, or upon which either party thereto lawfully married another as aforesaid.  Subsequent marriage after prior annulment valid

4. (1) No right, title, estate or interest, whether in possession or expectancy, and whether vested or contingent at the commencement of this Act, existing in, to, or in respect of, any dignity, title of honour, or property, and no act or thing lawfully done or omitted before the commencement of this Act, shall be prejudicially affected, nor shall any will be deemed to have been revoked by reason of any marriage heretofore contracted as aforesaid being made valid by this Act. And no claim by the Republic for duties leviable on or with reference to death, and before the commencement of this Act due and payable, and no payment, commutation, composition, discharge, or settlement of account in respect of any duties leviable on or with reference to death before the commencement of this Act duly made or given shall be prejudicially affected by anything herein contained.  (2) Nothing in this Act shall affect the devolution or distribution of the real or personal estate of any intestate, not being a party to the marriage, who at the commencement of this Act shall be, and shall until his death continue to be, a lunatic, so found by inquisition. 

5. Notwithstanding anything contained in this Act or the Matrimonial Causes Act, 1857, of the United Kingdom, it shall not be lawful for a man to marry the divorced wife of his brother, or the wife of his brother who has divorced his brother during the lifetime of such brother.

6. Nothing in this Act shall relieve a minister of any church, denomination or religious body from any ecclesiastical censure, to which he would have been liable if this Act had not been passed by reason of his having contracted or hereafter contracting a marriage with his deceased brother's widow

* LL.B(Zambia), BCL/MPhil(Oxford), MBA(Hull), PhD(Warwick), CAMS, FCI, FICA, FRSA, Rhodes Scholar, Advocate of the High Court for Zambia, formerly Lecturer in Law at the University of Warwick (UK), and, currently, Senior Counsel, the World Bank, Washington D.C., USA. I am highly indebted to a number of colleagues for their invaluable comments on the earlier drafts of this paper. However, the interpretations and conclusions expressed in this paper are entirely mine. They do not represent the views of the World Bank, its Executive Directors, or the countries they represent.

[1] U.N. Office for the Coordination of Humanitarian Affairs, SWAZILAND: Women Challenging Their Traditional Status as Minors, http://www.irinnews.org/report.aspx?reportid=53331  (last visited Sept. 23, 2007).

[2]Throughout this paper, the concept of "inheritance of a deceased brother's widow" refers to the marrying of a deceased brother's widow. In the paper, the word "inheritance" is used so as to be consistent with much of the nomenclature pertaining to such customary practices under African customary law. It is, however, an oxymoron that the word "inheritance" should appear to be the more common terminology than the word "marriage," especially with regard to the custom at hand. Generally, the term "inheritance" tends to indicate that it is "property," and not a "human being," that is being inherited. Normally, individuals inherit property, relationships or obligations such as book debts and other receivables, but not human beings. Also, the word "adopt" does not convey a politically correct message because, under family law, the use of the word "adopt" indicates that a minor or disabled is being adopted. This leaves us with the term "marriage." Indeed, the term "marriage" appears to be more appropriate. As such, in the title of this paper, we use the term "marriage" in order to convey the politically correct message to the reader.      

[3] Such as the inalienable right to freedom of expression and the right of widows to choose whoever they would like to associate with, including the enjoyment of all other freedoms enjoyed by every other citizen (e.g., freedom from such torts as battery and assault or from criminal offenses that offend and violate the individual's privacy or person).

[4] Teddy Kuyela, Alleviating the Pangs of Widowhood, Times of Zambia, http://www.times.co.zm/news/viewnews.cgi?category=7&id=1171442890  (last visited Sept. 23, 2007).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See generally Kenneth K. Mwenda, Judge Florence, N.M. Mumba, and Judith Mvula-Mwenda, Property-Grabbing Under African Customary Law: Repugnant to Natural Justice, Equity and Good Conscience, Yet a Troubling Reality, 37 Geo. Wash. Int'l L. Rev. 949, 950 (2005) (hereinafter Property-Grabbing).

[10] See D.J. Hayton, The Law of Trusts 37(1989);  Frontiers of Legal Knowledge: Business and Economic Law in Context, (Kenneth K. Mwenda & David A. Ailola eds., Carolina Academic Press) (2003).

[11] "African culture and custom, as they exist today, are a blend of African customs, imported colonial common and civil law notions, and religious concepts from Christianity, Islam and traditional African religions . . . For instance, African female children are taught from a very early age that the man is the head of the household, and are advised by their mothers to remain in complete subjugation to their husbands . . .Natural law principles of male superiority, common law and Christian religious principles of female inferiority, and Islamic tenets of female domesticity and incapacity, all contributed to the shaping of customary law into its present form[.]  . . .This deviation of judicial interpretation of custom from traditional practice emerged because African societies lack homogeneity, and social institutions vary from tribe to tribe and from one ethnic group to another within the same tribe." Fitnat Naa-Adjeley Adjetey, Religious and Cultural Rights: Reclaiming the African Woman's Individuality: The Struggle Between Women's Reproductive Autonomy and African Society and Culture, 44 Am. U. L. Rev. 1351, 1356, 1365, 1368 (1995); Alexander Nékám, Experiences in African customary law, (University of Edinburgh for the Centre of African Studies, 1966); T.W. Be