from Africa Today Volume 49, Number 1

The Power of Language in the Discourse on Women's Rights: Some Examples from Tanzania

Ulrike Wanitzek

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The primary object of this paper is to contribute to the work of living-law scholars by adding an element of language to their research agenda. It is argued that language as a means of social interaction constitutes a powerful medium for the construction and transmission of culture. As a medium of communication, language expresses hidden notions of power, although at a superficial level the ideas and meanings contained in ordinary words are often assumed to be universally accepted by those who speak the language. The main questions raised in this paper are: in what way has language been used as an expression of power? how does legal language reflect and reinforce male dominance over women and, more generally, gender bias? what can and ought to be done? The paper shows the relevance of language to the work currently being done by living-law scholars and suggests possible areas of cooperation between lawyers and scholars of language and gender.

Introduction

Women's-rights discourse appears to have moved to center stage during the last decade thanks to the work of human-rights activists, the UN, several NGOs, and progressive governments throughout the world. One of the landmark achievements that decade was the recognition at the Vienna Conference in 1993 that women's rights are human rights.1 The implication of this, as stressed in 1995 at the Beijing Conference, is that women's rights and issues of gender justice should form part of the conduct of international relations. The Draft Protocol to the African Charter on Human and Peoples' Rights in 2000 gave particular attention to women's rights in Africa.2 Similarly, state-level economic and social planning programs, including implementation and national policies, are recognizing that they should no longer be gender neutral.3 It is therefore of great significance that certain African states, such as South Africa and Tanzania, have now made special provisions in their constitutions to protect women's rights.4

Notwithstanding these achievements, the women's-rights movement in Africa continues to face serious challenges. One of the challenges is the perceived conflict between women's rights and certain features of local cultures (Brems 1999:183–185). Culture, as an expression of a people's identity and way of life (Kaganas and Murray 1994:413; Himonga 1998:3–6), is also protected by national constitutions (such as the Constitution of the Republic of South Africa, sections 15, 30, and 31) and international human-rights law.5 Culture is also expressed in various customary and religious laws, which are still applicable in many legal systems of Africa.6 It is not surprising, therefore, that culture has now become a site for much of the struggles for the rights of women (Preis 1996). Those on the side of culture tend to play the anticolonist card, reminding us of Africa's colonial past where local cultures were denigrated. They stress the importance of protecting culture as part of an anticolonialst and anti-imperialist policy (Brems 1999:24, 194; Hellum1999: 31). Such a line of argument has instant appeal (acknowledged for instance by Freeman 1998:296). Yet because most cultures are sympathetic to male dominance and female subservience, claims based on culture are often difficult to disentangle from disguised forms of political domination (Kaganas and Murray 1994:423).

It is in this context that the call to abolish customary and religious laws, which are in conflict with the rights of women,7 has encountered serious obstacles, not only from men (Preis 1996) but also from some women as well (see, for instance, Stamp 1991:827–833, on S. M. Otieno's case in Kenya). It cannot be denied, therefore, that claims based on custom and culture stand in the twilight zone of the cultural as well as the political. Such claims are hard to dismiss without effectively challenging them on their own terms. One of the most promising challenges so far has been launched by legal scholars and women's-rights activists8 whose focus is to draw a theoretical distinction between official or state customary law, and living law. As for the term living law, its proponents refer to Ehrlich (1989), according to whom the major part of law is living law, and only the minor part consists of "norms for judges."9 The main thesis of living-law researchers is that culture is not static and immutable but always changing and capable of meeting new social conditions.10 Hence customary law, as an expression of culture, also changes to meet new needs and circumstances and is therefore called living law (Armstrong et al. 1993:324; Bentzon et al. 1998; Hellum 1999). This is, indeed, a promising line of research that has yielded interesting insights.

The primary object of this article is to contribute to the work of living-law scholars by adding an element of language to their research agenda. I argue that language as a means of social interaction constitutes a powerful medium for the construction and transmission of culture. As a medium of communication, language expresses hidden notions of power, although, at a superficial level, the ideas and meanings contained in ordinary words are often assumed to be universally accepted by those who speak the language. Hence, the terms good wife or good husband are often used as if they are not contentious, as if they express values deeply rooted in culture. In short, language cannot and must not be ignored, given its potential impact on women's-rights discourse (Kaganas and Murray 1994:412, 413, 415).

The paper is divided into four parts. First, I examine three approaches to language and its uses. Next, I look at the implications of language in feminist discourse. Third, I focus on the language of the law and the way it is used in the courts in Tanzania. I conclude by showing the relevance of language to the work currently being done by living-law scholars, and I suggest possible areas of cooperation between lawyers and scholars of language and gender.

Language and Social Action

According to Elizabeth Mertz (1994), linguists have until recently viewed language in two major ways. First, there are the formalists, who view language as an abstract system, a formal grammatical structure, and a medium through which information is being conveyed. For them, the actual use of language as a medium of social interaction is of little significance. The second group, instrumentalists, sees language as a means to social ends, and is interested in the social functions of language. Unlike the formalists, the instrumentalists take little interest in the formal grammatical structures of the language (Mertz 1994:435–6).

To these approaches, a third has been added. This is known as the integrationist approach because it seeks to understand the language as a "structure-in-use" (Mertz 1994:436). This approach, developed mainly by linguistic anthropologists and sociolinguists, attempts to integrate the formalist and the instrumentalist approaches. What the integrationist approach has achieved so far is to combine "details of grammar with contexts of many kinds" (Mertz 1994:448), in order to show how language impacts upon various actors. For instance, this approach can give a deeper insight to the linguistic details and variations that often reflect the divisions of gender and other socially relevant categories, while analyzing the possibilities of using linguistic variations as a tool to effect social ends (Mertz 1994:436–7).

It seems to me therefore that the integrationist approach provides a useful tool for analysis and explanation of how certain social processes can be strongly affected, even by seemingly minor variations in the language use (Mertz 1994:443). Looking at language in this way entails an exploration of the relationship between language and social structure. This is a two-way relationship: on the one hand, communication is shaped and often constrained by the structures and dynamics of the "social institutions within which we function as members"; on the other hand, these social institutions and the roles and relationships of their members are molded by a particular language use (Candlin 1994:x).

Language and Gender: Dominance and Difference

If we look specifically at gender-related aspects of language as a structure in use, two major positions have been taken in linguistic studies: the dominance position and the difference position (Cameron 1992:15–16).11 The dominance position explains gender-related differences in language use mainly on the basis of social status (Cameron 1995:33). According to this position, women are socialized as part of their subordinate social position into using a language that consists of certain linguistic features connoting tentativeness, deference, and lack of authority. The difference position, in contrast, views the conversational styles of women not as a result of their subordinate social position, but as "a manifestation of distinctive female sub-cultural norms and values" (Cameron 1992:15).

Cameron criticizes both approaches, first, because of their "massive generalizations about male and female speech," and second, because of their lack of attention to the consequences of women's use of language for their social position. Such a criticism has merit because, as will be shown later, failure to recognize the use of language as an expression of power has the effect of perpetuating women's exclusion from languages of power and thus of tending to maintain the status quo (Cameron 1995:35–6, 42). We should now move on to see in a more concrete way how the mentioned theories of language apply in practice.

Legal Language

Legal language has been described as "a crucial crossroads where social power and language interact" (Mertz 1994:441). It acts as a medium through which struggles for social power are conducted between individuals, but it also acts as a medium through which the state imposes its interpretations and appropriations (Mertz 1994:441). The notion of legal language as a medium of social power helps us understand the ways in which gender struggles are conducted within the context of litigation. Thus, observations relating to legal language may have important implications, particularly for women's access to justice.

Therefore, viewing language as a structure in use evokes, in the specific legal context, three points of reference, or "a triangle of forces," as Candlin calls it: (1) the description and interpretation of language not simply as a set of forms, but as discourse, and as action; (2) the explanation of social structure including its gender-specific aspects; and (3) the understanding of the context of particular professional and institutional practices (1994:x). By examining language within this triangle, it is possible to understand why "access to and participation in the power forums of society depend largely on the mastery of their discourses" (Candlin 1994:xi).

The Asymmetrical Courtroom Discourse

Language structure and use in the courtroom, as noted by Mertz, may exert a power of its own (1994:444). For example, through the speech styles of participants in a court case, one can tell the way the game is played between the powerful and the powerless. Language in the court room may be described as an asymmetrical discourse between court officials and parties to a case. Such discourse is asymmetrical because one party (the court official) has institutionally constructed control over talk and a good deal of actual power over the other party. This is comparable to the talk between doctor and patient, or welfare officer and client (Cameron 1992:18).

The language used in asymmetrical encounters may also have other functions than that used in symmetrical situations (Coates 1995:16). For example, it has been shown that certain linguistic forms, such as questions including tags like "Isn't it?" (or comparable tags) may be used to express deference or concern for others. In asymmetrical discourses, however, they have been characterized as powerful linguistic forms because such questions do not only seek information but through the use of such questions, the powerful participants are able to control the topic of discourse (Coates 1995:18; Cameron 1992:18).

In her study of the use of different speech styles before the Kadhi's court in Kenya, Susan F. Hirsch (1991; see also Hirsch 1998) found that in the statements given before the Kadhi's court, women produced more narrative sentences than men did,12 and that these narratives contained experiences and examples of actual life (1991:279). In contrast, men used more nonnarrative elements, such as statements of their own views, value judgements, or references to abstract norms of behavior. Even where such referencing is wrong, it still creates the impression of an authoritative, knowledgeable, and law-oriented speaker (1991:268–9).

In the Kadhi's immediate reaction to these different speech styles, Hirsch detected a certain depreciation of the women's speech style and thus an undermining of their position before the court (1991:283–4). For instance, the Kadhi used to cut the women short because he preferred short statements noting that narrating a conflict tends to generate new conflicts. He often prevented the women from stating their case in their own way, insisting that they should not repeat insulting words previously used by their husbands toward them. Interestingly, however, his decisions were more often in favor of the women than one would have expected from his immediate reaction to the women's speech style (1991:262, 281).

Language and Its Impact on Women's Access to Justice

According to Cappelletti and Garth, the term access to justice contains two basic judicial elements. The first is that the administration-of-justice system must be equally accessible to all, and the second is that it must lead to results that are individually and socially just (1978:6). The two authors contend that effective access to justice, in contrast to a merely formal right to litigate or defend a claim, is "the most basic requirement—the most basic human right—of a modern, egalitarian legal system which purports to guarantee, and not merely proclaim, the legal rights of all" (1978:6–9). Thus, effectiveness includes issues such as the cost of litigation and party capability (1978:10, 14), the latter including the party's financial resources and the competence to recognize and pursue a claim or defense (1978:15).13

Party capability is indeed greatly affected by the language of the law in any jurisdiction including that of Tanzania, where language use in legal contexts can be quite complex, since it is a multilingual jurisdiction. Like many other African countries, Tanzania is characterized by linguistic diversity: apart from English and Kiswahili, there are at least one hundred and twenty African languages spoken in Tanzania. While Kiswahili is the official national language, English is used as an official language in various spheres of law, state administration, and commerce (Rwezaura 1993; Wanitzek and Twaib 1996). Kiswahili and English are languages of the law in Tanzania, though in court proceedings a third language may be used where parties or witnesses do not speak either Kiswahili or English. In such cases, interpretation becomes necessary. The process of interpretation passes through the three layers of the English, Kiswahili, and local languages.

The specific legal terminologies in the languages involved can be considered as forming a fourth layer. Since even within one language, translation may be necessary from everyday language into legal language and vice versa,14 one can easily imagine the difficulties arising from the interaction of the four layers and the effects this may have on the proceedings. It certainly affects the understanding of the proceedings by the litigant, and it can delay the proceedings while creating a distortion of meanings.

In a case, for example, dealing with the administration of a deceased's estate before the High Court of Tanzania at Mbeya, the court record's English translation of the widow's statement (made in Kiswahili) is as follows:

I was not called at the clan baraza to discuss the administration of my husband's estate. The deceased had two houses in Dar es Salaam and one in Mbeya. I live in the house in Mbeya.

[The deceased's younger brother] came to ask about the list of the deceased's property. . . . He said he was sending the list to his advocate. Four days later he told me to sign before the advocate that that was his property. I went and he gave me papers to sign but I did not know what they were about. I was still mourning. . . . I can read and write in Kiswahili [but not in English]. . . .

The relatives of the deceased have never approached me to ask if the [younger brother of the deceased] should administer the estate. . . . I did not know that the paper I signed was consent that he could be the administrator of the deceased's estate. . . . I did not know what an administrator of the estate means.

Then I saw him changing the licences into his name. Then I went to ask the State Attorney what an administrator of an estate was all about.

[Later] the clansmen wanted me to leave the matrimonial home. . . . They have stopped to maintain the children. I bear the burden alone.

Alexander Yoram Mwankupili Decd.

(Grace Zabron Kyengula v. Charles Yoram Mwankupili 1989)

In this case, the widow's unfamiliarity with English legal terminology made her powerless in the struggle over the deceased's estate. Although Kiswahili is a language of law in Tanzania, English is still the dominant legal language.

Such a disadvantaged position of women litigants resulting, inter alia, from their lack of knowledge of English, can be witnessed in many courtroom dramas that take place, especially in the lower courts. The problem arises not only from the translation as such, but also from the entire process of communication, including the use of words within one and the same language. Besides problems arising from the technicalities of translating from one language to the other in the courts, language is also problematic when used by litigants to express their claims. This language, which sometimes reflects their conception of their relationship with the defendant, may differ from the language known to the law (Rwezaura 1984:190). The resulting misunderstanding has often led to the miscarriage of justice.

Let us consider a case (Consitantia Anatori v. Taidini Snaga, 1977) that illustrates such lack of ability to express a claim. The Primary Court granted a wife a divorce decree upon her petition. The court further ruled that since the wife was a mtumishi (literally meaning a "servant" of the husband), she should be awarded 600 Tanzanian shillings (about U.S. $75 at that time) as fidia (compensation). On appeal to the High Court, the wife insisted that she was not a servant, but a wife, and demanded that "Kwa mujibu wa sheria za ndoa . . . nipewe kiinua mgongo kilicho halali na wala siyo fidia,"15 or "In accordance with the laws relating to marriage, [I pray] for payment of retirement benefits and not for compensation" (Rwezaura 1985:125).

What seems to be at play here is that the wife recognizes that there is something to be given at the end of the marriage, but she does not know how to express it; however, she also knows for sure that she is not a servant. The discourse of power becomes quite clear here, revealing how patriarchal notions are imposed on the litigants by the court, and how the woman petitioner contests such imposition. Again the words used reflect the perception of gender roles in the wider community. Thus, the male magistrate speaks of the woman as a servant, and he is therefore prepared to give her something, even though not much—and he thereby expresses the patriarchal notion that a wife is a husband's servant.16 But the wife refuses to accept that she is a servant. She also considers the amount granted as inadequate. So she appeals to the High Court, claiming a just share of the family assets as a lawful former wife "Kwa mujibu wa sheria za ndoa," or "According to the marriage law of this country" (Rwezaura 1985:125).

Here, the language of the woman's discourse differs from that of the magistrate because of their contrasting conceptions of the power relationships between husband and wife. The magistrate assumes that the relationship of husband and wife is comparable to that of master and servant, while the wife objects to this view, saying in effect: "I have better rights." Indeed, she has such rights under the Law of Marriage Act, 1971 (No. 5 of 1971), namely to a share in the jointly acquired matrimonial assets (section 114). But although she has a right, she is not able to frame her claim in the "correct" language. Somewhat strangely, the magistrate does not make reference to the provisions of the Law of Marriage Act that apply to such cases. He also fails to translate her claim into the proper legal terminology. It is difficult to say whether his failure is a consequence of judicial incompetence or a refusal to do justice to the litigant. It could also be a problem of two systems of law at work; one (i.e., the Law of Marriage Act) that recognizes such a right) and one (i.e., the codified customary law17) that does not expressly recognize such an entitlement.

These two cases reveal not only that language used in the administration of justice reflects power relations; it also has implications for understanding access to justice. In this context, it should be noted that equal access to justice is a constitutional right guaranteed to everybody in Tanzania without discrimination.18 Article 13 of the Constitution of the United Republic of Tanzania19 provides in subsection (1) that: "All persons are equal before the law and are entitled, without any discrimination, to equal opportunity before and protection of the law."20

The Concept of a Good Wife

Another case dealing with the administration of an estate came before the High Court of Mbeya (In the Matter of the Estate of the Late Ahaz Moses Mwalubanda and in the Matter of an Application for Letters of Administration by Jane Kalyembe, 1989). Here, the wife of the deceased, who had left behind a large and valuable house, applied to be appointed administrator of the estate. The brother of the deceased placed a caveat on her appointment because, inter alia, the widow did not have "good behavior." To prove his allegation he accused the widow "of showing an uncaring attitude to the parents of the deceased by not visiting them." In response to the accusation, however, the widow countered that on the third day after the death of her husband and while she was still in mourning, she was told to return to her parents as she was not wanted in the family and was chased away by the brothers of the deceased. Since that time she lived with her parents at Tukuyu without any maintenance whatsoever for herself and the children.

The power of language becomes visible here in the relationship between the widow and her late husband's relatives. By defining the widow as "uncaring," the deceased husband's relatives hoped to disentitle her (and her children) from her rights as the deceased's widow. This shows how a traditional value such as that of respect and care for the older generation, as encapsulated in the term good behavior, is used as a trump card to the disadvantage of the widow, apparently by stressing the rights of the extended family and ignoring those of the deceased's nuclear family. Fortunately, the High Court judge recognized the tactics of the opposing side and refused to buy into the tacitly implied notion of "good behavior." He appointed the widow as administrator of the estate. It seems the judge recognized (without saying so expressly) a conflict between the rights of the extended family and those of the nuclear family.

The use of the term good wife also played a role in a divorce case before the High Court at Mbeya (Tusajigwe Kambinda v. Edward Mwakikota, 1993), where the husband alleged in his petition for divorce that his wife was indulging in heavy drinking, insulting him, often leaving home without permission or notice, and lastly, always coming back home after 8.00 p.m. At the end of the trial, the court found the wife "guilty of heavy drinking and abusive language against her husband, hence granted the divorce as prayed." Despite the wife's denial of the alleged misbehavior and her plea against a divorce decree, the courts at all three levels found that on the basis of this behavior divorce was to be granted to the husband. The repeated reference to the wife as the "guilty" party places an obvious emphasis on the term good wife, even though the concept of guilt, as in many other legal systems now, does not play a major role in the determination of divorce.

Under the Law of Marriage Act, divorce is granted on the basis that the marriage has broken down irreparably (section 110 (1) (a)). It seems that once a wife falls short of the community's expectations, this, in itself, defines the wife as guilty, irrespective of what the law says. Here again, one notices judicial reluctance even at a higher level to grant the wife's rights where she has been guilty of matrimonial misconduct. Although this is not strictly a problem of language, still it reveals how the expectations of a good wife impacts on the mind of the court and ultimately on the rights of the woman litigant.

Discordance of Legal Terminology and Social Reality

Many researchers and some senior judges have rightly criticized the codified version of the Tanzanian customary law (see above) as no longer reflecting social reality. Indeed, one High Court judge has called for recognition of customary law as constituting not only the codified version, but also the uncodified version, a species of living law that is capable of adaptation and development (Chiku Lidah v. Adam Omari, 1991).21 It seems important not only from a purely linguistic point of view that there should be some sort of harmony between the legal terminology and social reality (Rwezaura 1999:415). This is because language is the tool lawyers use to connect rules with social reality (Bainham 1998:154). Hence, changes in the social perception of human relations must be followed by appropriate changes in the language of the law and the corresponding legal concepts.

Many judges brought up in the English common-law tradition perceive customary law as represented by certain authorities and as accepted by earlier judges as a fixed normative entity. The language in which this species of customary law is expressed both reflects as well as reinforces the understanding of law as a system of abstract, unambiguous, obligatory, and static norms to be applied and enforced by courts. Hence, it has been observed that "if stated in a form considered acceptable to the state court, a customary rule has a higher chance of acceptability. But equally, this strategic behaviour of certain litigants has given rise to the assertion of 'traditional rights' in nontraditional contexts" (Rwezaura 1987:5). This representation of culture and customary law therefore falsifies customary law because it does not sufficiently take into account two major factors: first, that customary law cannot always adequately be represented in the form of abstract rules (van Niekerk 1999:209); and secondly, the possibility that customary law may have changed over the years.

Some judges are concerned about such discordance between legal terminology and social reality. For example, the use of the term living law by the Tanzanian High Court judge to refer to customary law, instead of referring to the codified version of customary law, is an attempt to harmonize the concept of customary law with social reality. Thus the naming of customary law as living law, in the sense of the unwritten customs "representing the law governing the social life of the people in their day to day lives" (Rwezaura, as quoted in Armstrong et al. 1993:327), gives a new meaning to the concept of customary law in the contemporary Tanzanian legal system and thus directs the attention of the agents of the legal system to adopt a more critical attitude toward concepts such as customary law.

Language Change: An Agenda for Living-Law Researchers

Legal language has been described in this paper as a crossroads of social power and language. It is also an expression of hidden notions of power relations (Mertz 1994:446). The cases discussed above demonstrate how the language structure in the courtroom can exert a power of its own. We have observed powerful and powerless speech styles, often divided along gender lines. We find that the discourse here is loaded with social values—with underlying conceptions of the place of women in society and their relationship with men. The cases also demonstrate the resistance of women to be defined as subordinates. We have further seen that in the case of Tanzania, a multilingual jurisdiction, this kind of struggle for social power is even more complex as it runs through the various layers of languages involved and through the pluralistic character of culture and society. The difficult question arising out of these observations is how and to what extent these issues might be tackled.

First, it is suggested that we approach the problem of language and law "from below." The language of the people must be taken seriously and must not be viewed as "incompetent" or unintelligible. Both women and men should be encouraged to describe and explain in their own language how they see their situation and their needs. The idea of "taking women as the starting point" that Stang Dahl (1987) as well as living-law scholars have emphasized (Stewart 1997:19) must be articulated with that of taking women's language as the starting point. Western normative views and traditions of law, as well as male perspectives (Armstrong et al. 1993:324–325), influence the language of the codified version of customary law. It seems that living-law researchers will need to give more space to women's narrative (van Niekerk 1999) so that they can speak in their own language, instead of trying to interpret women's language in accordance with the codified customary law and statutory law. Where living law is made the object of concern, attention should be given to the language in which it is represented. The meaning of terms and concepts should no longer be taken for granted. Moreover, the integrationist sociolinguistic approach, which sees language as a structure in use, linguistic forms and speech styles, as they appear in specific symmetrical or asymmetrical speaking situations, should be considered in the interpretation and evaluation of the various representations of customary law, including living law. To this end, living law researchers could consider interdisciplinary cooperation with sociolinguists and linguistic anthropologists.22

Second, the implications of living-law scholarship for language change are compelling. If we view culture and customary law not as static but as "a practice embedded in local contexts and in the multiple realities of everyday life" (Preis 1996:290), then the various social actors may lead us to discover that culture and customary law contain and represent not only barriers to women's rights, but also elements that further the rights of the women (Hellum 1999:423). Where women stand up against being defined as their husbands' servants, it could be helpful to consider whether the alternative definition offered by the women is more representative of social reality. This could be taken up in debates on women's rights and law reform. Such a change of language inspired from "below" or "within" the community is more likely to be acceptable than reforms coming from the central government. In this way, language can be regarded as a legal resource for gender justice and empowerment (Omondi 1989:15). This, to some extent, is already happening in some African jurisdictions, such as Uganda, where, in the Children Statute, 1996 (No. 6 of 1996), the term children's rights has been adopted in place of parental rights and authority. Similarly, in the Namibia Married Persons Equality Act, 1996 (No. 1 of 1996), the term married persons' equality has replaced marital power. Such changes of legal language seek to reflect social reality while, in some cases where new ideas have not taken root, they may reinforce such ideas. Since it is through language that "the ideas and thinking of law reformers find expression" (Bainham 1998:154), it seems essential to change legal terminology whenever necessary to reflect more accurately ideas and meanings of what is happening on the ground or what may represent the policy of the law.

Conclusion

This paper has raised three main questions. First, in what way has language been used as an expression of power? Second, how does legal language reflect and reinforce male dominance over women and, more generally, gender bias? And finally, what can and ought to be done? Some of the contributors to this volume have considered these questions. Jane E. Goodman demonstrates the ways in which legal languages and legal concepts function in Algeria today. Samuel Obeng and Beverly J. Stoeltje address language in the queen mother's court in Kumasi, Ghana. In the forthcoming issue, Susan F. Hirsch looks at linguistic interaction and power relations as expressed through language, as observed in a workshop on gender and the law in Tanzania, and Loveness Schafer shows the implications of language use for refugee women in Malawi.

From these and other contributions in this volume it is clear that, while living-law scholars direct their attention to social reality as they seek to define and develop a wider concept of customary law, it is also essential to complement these commendable efforts by taking a close look at the power of language in legislation, court disputes, and other sites of social interaction to uncover the extent to which dominant groups may use language to further their objectives against the interests of women and other politically powerless social groups. Language and language use ought therefore to be part of the ongoing research on customary law. Furthermore, legal practitioners who have their clients' interests at heart should also pay attention to the power of language and how language affects their clients. It is my sincere hope and expectation that law reformers and parliamentary draftsmen will also heed this call.

ACKNOWLEDGMENTS

Greatly appreciated are Bart Rwezaura's inspiring comments, which helped me to develop some of the major points made in this contribution. Valuable suggestions were also made by Chuma Himonga, Gudrun Ludwar-Ene and, Heidi Willer. Thanks are due to Steven Vissenaekens for drawing my attention to useful sources.

NOTES

1 United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993, International Legal Materials 32 (1993), 1661 et seq., para. 18: "The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights."

2 Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Organization of African Unity, CAB/LEG/66.6, final version of 13 September 2000.

3 United Nations Fourth World Conference on Women, Beijing Declaration and Platform for Action, 15 September 1995, International Legal Materials 35 (1996), 401 et seq. (For instance, see para. 21 of the Declaration; paras. 5, 196 et seq. of the Platform for Action); see also Dakar Plan of Action.

4 See especially Section 9 of the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996); Article 13 (5) of the Constitution of the United Republic of Tanzania, as amended by section 5 of Sheria ya Mabadiliko ya Kumi na Tatu katika Katiba ya Nchi, ya Mwaka 2000 (Act No. 3 of 2000).

5 See Article 27 of the International Covenant on Civil and Political Rights of 1966; Article 15 (1) (a), (2) of the International Covenant on Economic, Social and Cultural Rights of 1966; Section 17 (2) of the African Charter on Human and Peoples' Rights of 1981.

6 In Tanzania, for instance, on the basis of Section 19 of the Judicature and Application of Laws Ordinance, 1961 (Cap. 453).

7 See, for instance, Article 2 (f) of the Convention on the Elimination of All Forms of Discrimination Against Women of 1979.

8 The most prominent of them are the WLSA group (Women and Law in Southern Africa Research Trust, http://www.wlsa.co.zw) and scholars from South Africa who are seeking to understand the meaning of the "right to culture" under the new South African Constitution of 1996 (e.g., Kaganas and Murray 1994; Himonga 2000). As for Women and Law in Eastern Africa (WLEA), see Rwebangira 1993.

9 Ehrlich 1989; Bentzon et al. 1998:75; see also Woodman 1988:45, who distinguishes between "lawyers' customary law" and "sociologists' customary law."

10 For the controversial discussion among social anthropologists on the concept of culture see Current Anthropology 1999.

11 For a further analysis of the differentiation between "deficit model" and "dominance model" see Cameron 1995:33.

12 Narration is defined as two sequential sentences in the past tense (Hirsch 1991:267–268).

13 Hence, the problems affecting effective access to justice have tended to be addressed, for example, through legal aid programs and, in a few cases, legal literacy. It is now generally realized that legal aid is not the most effective remedy to the problem of access to justice. A number of suggested ideas are based on an analysis of the dispute and all its implications from its origins to its end (Cappelletti and Garth 1978:52). It is, however, beyond the scope of this talk to explore the various approaches suggested, including those of ADR, alternative dispute resolution (Cappelletti and Garth 1978:54). On access to justice and legal representation, see Wanitzek 1990–1991.

14 Actually, the term translation has been used in studies that deal with monolingual legal systems; for instance, attorneys are seen as translators for and to clients (Mertz 1994:443). Authors such as Jayakumar (1992) in respect to India and Chen (1992) in respect to Hong Kong put it in terms of alienation: "Even in countries where the language of the law is the language of the people there is an alienation of the people from the law. Obviously this alienation of the people from the law becomes more bitter by the use of a foreign language understood by less than five percent of the population as the language of the law" (Jayakumar 1992:4).

15 The quotation is from the appeal in Kiswahili contained in the court records. The Kiswahili expression kiinua mgongo, literally translated "that which raises the back," is used to mean both "a type of severance allowance usually given to employees on the termination of their employment" and pension payments or retirement benefits (Rwezaura 1985:125).

16 See Rwezaura 1984:187–188, on the concept of wifely duties, probably originating from the customary law view that "payment of bridewealth enables a husband to acquire rights in his wife which include her labor power" but such a concept being actually applied "to deprive wives of their share in the family assets."

17 Local Customary Law Declaration 'Sheria Zinazohusu Hali ya Watu' ['Law of Persons'], Government Notice (G.N.) 279 of 1963, Schedule 1; Local Customary Law Declaration 'Sheria za Ulinzi' ['Law of Persons'], 'Sheria za Urithi' [Law of Inheritance], 'Sheria za Wosia' ['Law of Wills'], G.N. 436 of 1963, Schedules 1, 2, and 3.

18 See Read 1995:133 and Onh'wamuhana 1981:252 for the translation of the rule of law into guarantees of, inter alia, equal protection of the law and fair trial.

19 Constitution of the United Republic of Tanzania, 1977; the Bill of Rights was added by the Fifth Constitutional Amendment Act, 1984 (No. 15 of 1984), effective beginning 1 March 1988.

20 See also subsection (6): "For the purposes of ensuring equality before the law, the state shall make provisions:—(a) that every person, when his rights and obligations are being determined, be entitled to a fair hearing by the court of law or other body concerned and be guaranteed the right of appeal or to another legal remedy against the decisions of courts of law and other bodies which decide on his rights or interests founded on statutory provisions."

21 See also the discussion of a similar approach by a South African judge in the case Mabena v. Letsoalo 1998 (2) SA 1068 by Bosch and Himonga 2000.

22 Such cooperation may help clarify statements such as "it is our culture," which were given by widows when asked "how they felt about the donning of 'widow weeds' (black mourning clothes) and the strictures on life and movement this imposed" (Bentzon et al. 1998:215–216). Without any sociolinguistic assessment of the context of this response, this statement may be interpreted both as approval, resignation or disapproval (ibid.).

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