15 October 2008

Customary law and Constitutional Law in Africa (New Papers: Tebbe & Andrews)

Two new papers on SSRN deal with the interrelationships between constitutional law, customary law and tradition in Africa. Penelope Andrews (Valparaiso) has posted 'Who's Afraid of Polygamy? Exploring the Boundaries of Family, Equality and Custom in South Africa' on SSRN (Utah L Rev, 2009). The abstract:

South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. My paper will examine the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, I will focus on the Recognition of Customary Marriages Act (the Act), a statute that purports to regulate customary marriages, including the establishment of such marriages, as well as their termination. I evaluate the influence of this statute, if any, on gender equality, and whether its purported protection of women in polygamous marriages, in fact results in such protection.

Nelson Tebbe (Brooklyn Law School), for his part, has posted 'Inheritance and Disinheritance: African Customary Law and Constitutional Rights' on SSRN (Journal of Religion, 2008). This paper's abstract:

This Article concerns the conflict between African traditional rules of inheritance, which feature a rule of male primogeniture, and the post-apartheid constitution, which contains a strong guarantee of gender equality. While that guarantee must ultimately be enforced by the judiciary, this Article argues that the South African Constitutional Court's recent decision to strike down the central African customary rule for property inheritance carries a greater danger of backlash than has commonly been recognized. That risk is particularly grave under current political conditions, which are seeing a shift toward Africanization. Enduring change might more profitably be achieved by Parliament, by provincial and local governments, and by local communities themselves. A recent decision concerning inheritance of the chieftainship suggests that some African communities are already harmonizing customary law and progressive constitutional values. The Article ends by suggesting an approach that incentivizes localized reform, rather than commanding it in the first instance.

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