Do Equality and Non-discrimination Apply to Polygamous African Customary Marriages? A Constitutional and Statutory Analysis of 14 African Commonwealth States

Scholarship on ‘radical decoupling’ and ‘sham constitutionalism’ suggests that constitutional promises do not necessarily translate to state action. African states, dually concerned with affirming African Customary Law (acl) and international standards of human rights, face particular legislative challenges in this regard. This article examines 14 Commonwealth African states’ statutory regulation of polygamy, which epitomizes that apparent dilemma. Using simple indices to code levels of protection, it argues for disjuncture between constitutional and legislative levels of protection of women’s rights in polygamous customary marriages. This calls into question the supremacy of constitutions as a catalyst for social reform and the need for revision to African marriage laws on the basis of equality, cognisant of the position of women in legally pluralistic societies.