Western Influences on Family Law in Africa

• Post by: Ann Kioko
• December 24, 2016

Africa’s definition of the term family has for long been limited to a household made up of a man, a woman, and children. Most constitutions in Africa define the family as the fundamental natural unit in society, which should be defended and protected by all. The African family has long celebrated this definition—until recently. Today, there is discord in defining marriage in Africa. We have witnessed great judicial activism, especially in South Africa, Kenya, and Uganda. The change in the definition of marriage has been influenced by the introduction of same-sex unions: civil unions, domestic partnerships, courts beginning to rule in favor of same-sex unions, and legislation reflecting current Western trends. Essentially, family laws today are influenced by just a few issues, which are geared towards conferring the benefits of marriage on same-sex unions. This is being accomplished under legal systems which are largely pluralistic, and considerations are also made to religious law (common where Islam is the dominant religion) and received law (civil or common law). A Brief Overview The first stage in the evolution of family law in Africa is at the level of colonial law (adopted from the colonizing state), while the second stage is post-independence law (developed by national parliaments). Marriage and family law in Africa are characterized by similar phases, which include the pre-colonial (defined by cultural law), colonial legislation (infusion of Christian and Western beliefs), and post-independence legislation. These phases created multiple variations in marriage law, which later developed to accommodate specific country needs—for example, religious and customary laws that allowed for both polygamous marriages and traditional, monogamous marriages Africa has also been subject to generic legislation, which includes the African Charter on Human and Peoples’ Rights (also known as the Banjul Charter, which includes the Protocol on the Rights of