Customary laws are customs which are accepted as legal requirements or rules of conduct. They are so vital to the functioning of a society that they are treated as law. These laws concern the norms, laws and practices of indigeneous and native people and communities.
Indigeneous people are the people who first settled on the land in which they reside.These laws can be verified in a particular area as they represent an established pattern of behaviour within a social setting.
Why is customary law important?
Customary law is important in protecting the traditional cultures and knowledge of indiegeneous people. In Africa it is important as it stops colonial laws from infringing on their way of life.
Most African countries’ legal systems have a mixture of laws from the colonial era, post-independence legislation, religious laws and customary laws which represent the indigeneous laws of various ethnic groups within the country. The pre-colonial laws in most African countries were essentially customary laws.
South African Customary Law
South Africa follows a pluralistic form of law. This means that many different kinds of laws operate under the same legal system. When the country instituted its constitution in 1996 after apartheid, customary law became a core part of the legal system.
Under Section 211 the South African Constitution recognised customary law and traditional authority and protected them in their own right. This means that these customary laws are not subject to any legislation that follows common law. These laws only have to follow the rule of constitutional law and so must follow the Bill of Rights. This can cause conflict.
Can customary laws coexist with the Bill of Rights in South Africa?
One conflict in South Africa is that customary laws do not abide by the Bill of Rights. The Bill of Rights protects the right to culture, but it also protects the right to equality, non-discrimination and dignity.
For example, with inheritance rights, in some areas customary laws dictate that when a man in a customary marriage dies the heir will be the first born son, and not the husband’s wife. Many womens’ rights activists argue this is discrimination against women.
One way such customary laws can coexist with the Bill of Rights is by improving education on how customary laws may be discriminatory and offering citizens the choice to write a will that is in line with the common law to allow the heir to be a husband’s wife.
In conclusion, customary laws are important to maintain the way of life of indigeneous people and allow these communities’ customs to have legal standing. Sometimes customary laws might conflict with constitutional laws, these issues may be solved in a court of law.