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Living Law and African Women’s Rights in a Digital Era

MacBook Pro on top of brown table
Source: Kari Shea (2017)

ANALYSIS Linda Besigiroha 10 September 2021

For many women in Africa,[1] ‘everyday’ living represents not ‘ordinary’, but a literal daily struggle to exist on one’s own terms. My home country Uganda, for instance, is lauded for making significant strides in educating girls and broadening women’s access to the public sphere, but ‘the personal’ is yet to become truly political in ways that can change women’s lives in meaningful ways: in terms of wielding effective political clout,[2] financial independence, personal safety, or ‘simple’ things like rest.[3] The gap between gender as ‘talk’ and as critical praxis is not for a lack of women organising or activist fervour but is symptomatic of contradictory postcolonial realities. These are realities characterised by simultaneously striving, surviving, and thriving amidst the heteropatriarchal capitalist conditions of contemporary Africa.

Such contradictions also pertain to the Law and the understanding of its workings and impact on our daily lives. Here, I would like to foreground the idea of law as something that is alive, to echo the Austrian legal theorist Eugen Ehrlich, whom the title above partly references. As law professor Tamanaha re-reads Ehrlich, “This neglected insight – that law lives in society – is what makes Ehrlich still worth reading today,” [5] despite his many critics. My overall concern as a media scholar is to argue for an ongoing endeavour to ‘ease legalese’ and, thus, enhance the level of public critical engagement with the law in everyday terms.

Lawyers have numerous avenues through which they can move to a re-engineer both the profession and the wider society…we can use litigation, legislation, mass media, and research to bring about change. All we need is a commitment to change the status quo by collaborating with the community.[6]

Notably, the media are constitutive of lived experience, not representing a separate, fixed ‘reality’. This makes them a part of radical processes like decolonisation even as they continuously (re)present these processes to us through discourse.

Decolonial and Decolonising Intersections

In the seminal Decolonisation and Afro-Feminism (2020), Tamale rigorously bridges decolonial thought and practice and gender dynamics in Africa to argue for a destabilisation of inherited notions of cohesion, knowledge, truth, and legality. I would even like to suggest that Tamale’s presentation of precolonial ‘legal systems’ as cultural norms, social codes of conduct and corrective measures in African societies in essence predates Ehrlich’s living law. Or, to put it otherwise, one may read the two scholars in an imaginary ‘transnational’ firelight talk that transcends the rationale of linear time, connecting us as citizens of, and responsible to, the world.

Thus, as Tamale engagingly clarifies, most Africans primarily live the law outside state law. In fact, many consider the ‘formal’ statutory realm with awe and fear because of the way its structure has created the impression that the Law belongs to or works for the rich and powerful only. Tamale, therefore, makes the case for exposing colonial untruths of the ‘primitivity’ of non-state legal systems and reclaiming their egalitarian essence. She extends her argument to suggest embracing Ubuntu principles of common humanity as a better avenue to realise women’s rights in lieu of gender equality discourses.

Digital Knowledge Contestation to Change the Status Quo

The urgency of Tamale’s plea for reclaiming values of Ubuntu comes from her observation of the futility of expecting the Law to function ‘successfully’ separate from the conditions of its existence, that is, its contextual history and contemporary contradictions. Reflecting the hollow gender discourse described above, Tamale rightly posits that “[…] no amount of legal reform without dismantling structures of power or the persistent paradigms that support them will engender social transformation […].”[7] For Tamale, then, endeavours like Public Interest Litigation – using the law to help the poor and marginalised or advance broad-reaching public issues – risk reinforcing the status quo on the rights of women, marginalised groups like sex workers, and the LGBTI community. It is akin to try to dismantle the master’s house using the master’s tools.

What will the future hold for us?

I, on the other hand, read such efforts slightly more positively, emphasising instead the underutilised possibilities of approaches combining both the demystification of imperialist or state law and Tamale’s appeal for consciousness-raising to reclaim Ubuntu values using technological innovation. For example, the South-Africa based Initiative for Strategic Litigation in Africa – ISLA is leading the way in strategic feminist litigation thereby using online platforms to train litigators in “applying law with a ‘feminist lens’” [8] or raising public consciousness through social media on how the Law can itself be discriminatory. In Uganda, the NGO Barefoot Law enhances traditional legal methods with digital innovation such as Artificial Intelligence and Machine Learning, Apps, webinars, SMS services,  to provide free legal services to the public, perform outreach and legal training activities for litigators, multiplicate legal knowledge to local leaders to serve rural and underserved areas.

In sum, the opportunities are manifold for youthful Africa, even as we must keep in mind the disconnects. As one example, for all the exciting technological advancements, many Africans – as of 2020, a user-to-population penetration rate of about 40 per cent only[9]  – still do not have access to the Internet. Moreover, those who do are subject to the whims of authoritarian governments and corporate monopolies. In addition, sexism and structures of oppression that seek to silence the marginalised move to the internet with its users so that new areas of action are opening where African-centred legal thought is concerned. What form can/must communitarian and state legality take to match Africa’s ongoing digital migration and avoid regressions in women’s rights?


[1] Well aware of the “Africa is not a country” debate, ‘Africa’/’African’ is used here in respect of the cultural, economic, and socio-political diversity of individual African countries.

[2] As opposed to what activists and scholars have observed to be the reinforcement by women leaders of the instrumentalization of ‘gender’ discourse by authoritarian, heteropatriarchal African leaders pandering to neocolonialist puppet masters.

[3] The greater burden of care work rests on women’s shoulders on top of contributing to endeavours outside the home and the demands of communal accessibility and responsibility. See, e.g., Guloba, M. and J. Ahikire et al. (2018). Gender Roles and the Care Economy in Ugandan Households: The case of Kaabong, Kabale and Kampala Districts, Abridged Report (EPRC, UWONET and the School of Women and Gender Studies at Makerere University, in collaboration with Oxfam in Uganda and the WE-Care team, August.

[5] Tamanaha, B. Z. (2011). “A Vision of Social-Legal Change: Rescuing Ehrlich from ‘Living Law’.” Law & Social Inquiry 36.1: 297-318. Accessed September 7, 2021. http://www.jstor.org/stable/23011878, pp. 298.

[6] Tamale, S. (2014). Keynote address at the formal launch of Chapter Four Uganda on March 7, Chapter Four Uganda, https://chapterfouruganda.org/. Accessed 08 September 2021.

[7] Tamale, 2020, Decolonisation and Afro-feminism, pp. 334.

[8] Kearoma, M. (anon). Building Feminist Litigation Networks to Challenge Gender Discriminatory Laws, African Feminism, https://africanfeminism.com/how-to-build-feminist-litigation-networks-to-challenge-gender-discriminatory-laws/. Accessed 01 September 2021.

[9] Internet World Stats, ‘Internet Penetration in Africa: 2020 – Q1 – March’, https://www.internetworldstats.com/stats1.htm. Accessed 24 February 2021.

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