African customary law is controversial. This is due to the dissonance between the past and present. The social settings in which Africans interact have changed over time. These changes have been characterised by a tense relationship between indigenous customs and statutory laws with colonial origins. Indigenous customs have communal, welfarist features, while statutory laws have industrial, individualistic features.
This dissonance is very evident in South Africa. The ethos of its formal legal order often conflicts with the values of indigenous customs. This has made the interaction of indigenous customs and statutory laws problematic. Two examples arise in the areas of marriage and inheritance.
Unlike in the past when heirs inherited property along with a duty of care to the family, modern heirs are influenced by socioeconomic changes to inherit for themselves. Similarly, it was natural in precolonial South African societies for the family to be involved in marriage contracts. The family came together to provide ilobolo (bridewealth in isiZulu) from their collective wealth. Today, ilobolo is no longer raised communally.
To regulate the application of indigenous customs, South Africa has adopted a range of laws. They include the Recognition of Customary Marriages Act, the Reform of Customary Law of Succession and Regulation of Related Matters Act, the Communal Land Rights Act, and the Traditional Leadership and Governance Framework Act.
But overshadowing these laws is the country's constitution. It is the 'face' of state law.
My research shows that dissonance is at the heart of South Africa's legislative regulation of indigenous laws. Statutory laws do not take sufficient account of the differences between African social settings in the past and present. The foundational values that underpin indigenous African customs are often disregarded.
The Traditional Courts Bill provides a good illustration of what can go wrong when indigenous values are neglected.
The bill has been contentious since it was first introduced to Parliament in 2008. There was virulent opposition to its imposition of Western values on indigenous customs. It was withdrawn in 2012 and then resurrected in Parliament in 2017. In 2019, it was submitted to the National Council of Provinces for approval.
Part of the problem with this bill is that it requires traditional courts to "function in accordance with customary law, subject to the Constitution." This raises some questions: In what ways do constitutional values reflect indigenous customs? What is their significance for the behaviour of Africans? Would constitutional values eventually become customary law?
These questions lie at the heart of the legal, economic, religious, philosophical, and technological influences that affect the application of indigenous customs. My approach to these questions draws on legal history and anthropology.
For example, Professor Sally Moore's semi-autonomous social field presents law as the product of processes occurring within behavioural fields that have porous boundaries. These fields retain elements of autonomy. But they are influenced by and linked to activities in other fields.
New rules are created from the interactions in these fields. Thus, tribal councils, schools, police stations, religious houses, non-governmental organisations, markets, Parliament, the courts, and even social media are semi-autonomous behavioural fields with rule-making qualities.
South Africans belong simultaneously to many behavioural fields. In these fields their customs interact with statutory laws. The activities in these fields ultimately produce African customary law. This argument informs my theoretical framework for understanding the relevance of African customary law in modern times.
I argue that scholars and policy makers misunderstand the nature of South African customary law. This is because they ignore how socioeconomic changes create dissonance between how South Africans observed indigenous customs in the past versus the present.
Scholars artificially divide South African customary law into 'living' and 'official' versions. At the same time, the state's supreme law-making authority forces South Africans to adapt their indigenous customs to its Western values.
These arguments reflect in my recent publications. I draw on the field research I conducted between 2013 and 2017 on judicial attitudes towards customary law, indigenous trade laws, and the coercive nature of statutory laws.
I drew some key conclusions on the meaning and relevance of African customary law.
Categories of law
My research indicates three categories of laws (excluding religious laws) in South Africa.
Category one is statutory laws, or state laws, which evolved from industrial European laws imposed by colonial officials. Most state laws are individualistic, prescriptive, and sanction laden.
Category two is indigenous African laws. These are largely unwritten customs with precolonial origins. Many South Africans still observe them in their ancient forms. Most of them emerged in agrarian, close-knit social settings. These settings prioritised communal rights and responsibilities.
Category three is African customary law. This is arguably one of the most misunderstood regulatory systems in the world. It consists of written and unwritten hybrids of state laws and indigenous customs. This includes distorted versions of African customs. In other words, customary law emerges from the ways Africans adapt their customs to the legal, economic, religious, and cultural changes triggered by globalisation.
Of these changes, the legacies of colonialism are the most influential. For example, gender equality has become customary law through various new laws. Similarly, community of property has become customary law in matrimonial relations, and the handing over of the bride may be performed symbolically without affecting the validity of marriage.
New legal identity
More attention needs to be paid to the influence of globalisation on the behaviour of people who observe indigenous customs. My research indicates that customary law emerges from people's adaptation of their customs to the socioeconomic changes of globalisation. European colonisation is a major part of these changes since it bequeathed the Roman-Dutch law and South Africa's liberal order.
In this context, the South African constitution reflects the socioeconomic forces of globalisation. It recognises traditional authorities that observe systems of customary law. But it subjects everyone and every authority to its Western-oriented values.
The meaning and relevance of South African customary law can be understood through dialogue between indigenous customs and state laws. This will provide scholars and policymakers with a theoretical path to legal integration in South Africa.
Author: Anthony Diala - Director, Centre for Legal Integration in Africa, University of the Western Cape