Assignment: Customary Law and Constitutional Rights Essay
This is largely because Customary law gives women and or children & gays, less power than ‘real’ men; and has existed without being successfully challenged for a long time. Furthermore it continues to unfairly discriminate between family members on the basis of their status in the family and their gender. Some rules of customary law allow for inequality among people to continue. The Constitution says that customary law is protected, but the rules of customary law must be in line with the principles in the Bill of Rights- with its strong focus on all kinds of liberties.
The Bill of Rights also protects the right to culture.
But it also protects the right to equality and non-discrimination, and the right to dignity. This means that the courts will have to measure customary law rules which treat people unequally against the right of people to use their customary laws and cultures. Customary rules which limit other rights in a way which is unreasonable and go against the spirit of the Bill of Rights can and should be declared unconstitutional.
A more in-depth examination of women’s right’s, children’s rights and LEGIT rights in the light f both customary laws practice and the South African Bill of rights now takes precedence. 2.
Children’s rights Children’s protection is guaranteed through the Bill of Rights according to the South African constitution. Some of these rights are put at risk however, by a number of harmful customary practices, including the following: Harmful gender roles: It is customary for mothers and fathers to have different parenting roles. Mothers are responsible for the daily upbringing, the nurturing and disciplining of children. Fathers, on the other hand, have a more distant relationship with their children. They are seen as responsible for providing children’s material needs, and do not get involved in the daily upbringing of children.
Consequently, children tend to have a poor relationship with their fathers. Children are taught how to fulfill these gender roles from an early stage in life through their early childhood games and education. Boys are taught to take on a traditional male role of looking after the livestock and family fields, being providers and protectors of their households, while girls are prepared to take care of the children and household. Customary adoptions and foster care : These care arrangements are not jugulate and monitored as they are with government placements.
This creates a risk of abuse and exploitation of vulnerable children. There are examples of children being “adopted” by extended family members simply to get to the child support grant and these children are not cared for properly. There is a need for these customary practices to be regulated. Culture of strict obedience and loyalty to the male headed extended family : There is a risk that the protection rights of children may be seen as less important than their loyalty and responsibilities to protect the family interests.
This means hat there is little, if any, room for children to participate in decision- making in households. The unquestioning obedience to male adults by children, together with the tradition of strict discipline and loyalty to the male elders, can create a greater risk of abuse. Child labor : It is common for children in traditional families to be working – either for payment or in the house or homestead. The two main reasons for this are, first, the obligations children are traditionally seen to have towards the family, and, second, the high levels of poverty in rural areas.
Child labor is not by its nature harmful – but t does become harmful when it affects the child’s education, health and well- being, or results in the exploitation of the child. Initiation ceremonies, virginity testing and circumcisions: Children can suffer great physical and emotional harm if these practices are not carefully planned to match their protection rights. Despite the fact that the Children’s Act prohibits the circumcision of boys and virginity testing of girls younger than 16 years, it is quite common for children younger than this to participate in both customs. (www. Chatelaines. Org. AZ/… 341-the-interplay-between-customary-law-and- hillsides-protection. PDF There is growing recognition that harmful traditional beliefs and practices underscore violence and discrimination against girls. Traditionally condoned forms of discrimination include: son preference as tradition; Early and forced marriage; and female genital mutilation, to name a few. (http://www. Saver. Org [female. HTML It is also clear that a customary law that prohibits women from becoming traditional leaders like chiefs or queens, unfairly discriminates against women, because it is based on patriarchal notions about the “proper” roles of men and women in society.
Harmful gender roles and strict male obedience as taught by customary law and other myths around the world, aptly described under Children’s rights above, are intimately connected to the escalating global problem of violence against women in particular. We may say that violence against women is the direct manifestation of the ideology of male superiority. Certain rules of customary law allow for inequality among people to continue, especially for women and girls, who remain economically and socially inferior to men.
This makes women dependent upon relationships that may, at the same mime, put them at risk for HIVE and may force them into situations of vulnerability like sex work. (http://section. Org. AZ. Eddied. Kept. Host-h. Net/WAP-content/uploads 12010/04/manual. PDF ) The South African Law Commission has, and still is, examining different parts of customary law with the aim of doing away with unfair discrimination for example: in the customary laws on marriage and succession. For a long time, customary unions (marriages) did not have the same full legal status as civil marriages (egg magistrate’s court marriages) had in South African law. Http://section. Org. AZ. Eddie. Kept. Host-h. Net/WAP-content/uploads/2010/04 /manual. PDF ) This was unfair discrimination, completely at odds with the South African Bill of rights, and made women in customary marriages vulnerable. Women married under customary law had limited legal status. They were either given the status of minors or they fell under their husband’s marital power. This limited women’s power considerably. Because customary unions were not given full legal status, this created uncertainty about the property and inheritance rights of the marriage.
The issue of labor under customary marriage was and s, similarly controversial. Research shows that the ‘advantages’ stipulated by paying labor is not true and in fact many women find it offensive that their reproductive potential is transferred. ( UNIONS 2010: 67 ) In spite of having to endure both racism and sexism throughout the centuries, women in South Africa has come a long way in the struggle for their own rights. New laws now fully recognize equality between the partners of a customary marriage.
This new law along with others including women’s reproductive and sexual rights; the basic right of freedom against all forms of violence, woman’s eight to end a polygons marriage, and the maintenance act does certainly go a long way on the road to freedom from oppression for women in South Africa. However there is still a long way to go before the Constitution would be applied and implemented in society, as the ideology of male superiority is entrenched in our value system. This mentality, which is personified by some traditional and or customary laws & practices, needs to be looked at, challenged and changed consistently.
Traditional leaders (and other leading men) need to realize the worth of a woman, and women must continually empower themselves and there women; notwithstanding to celebrate how far they have already come. The fight to end apartheid has been waged and won, but the fight for gender equality continues. Http://pulchritude. Org/reporting/south-Africa-gender-inequality -women’s-rights-poverty-justice-democracy 4. Gay rights South Africans Constitution is the first in the world to prohibit unfair discrimination on the grounds of sexual orientation.
In 2012 in its submission to the Constitutional Review Committee of parliament, the National House of Traditional Leaders proposed a constitutional amendment to remove sexual orientation as a ground for non-discrimination from the Bill of Rights. (http://query. IA. Co. AZ/2012/04/the-culture-of-the-chiefs-is-a-set-back-for -gender-and-sexual-rights’) This is in direct contradiction to the new-found leadership South Africa is displaying internationally on the advancement of sexual orientation and gender identity rights.
Fact is that Traditional leaders & their customary value system perpetuate the myth that homosexuality is unafraid. This line of thinking is certainly inconsistent with the South African Constitution, permitting freedom of sexual orientation regardless of which ‘race’ r nationality one belongs to. (That would imply another form of discrimination i. E racism) A bill regulating traditional courts should attempt however to synchronism The Constitutional system enshrined in the Bill of rights with the traditional system, but not at the expense of the vulnerable populations of our country.
It is no accident that some of the most vicious public debates in South Africa and sites of the most violent conflict have concerned the role of the legal equality of sexual and gender minorities. Xenophobia is a growing problem and has escalated since the inception of the New democratic South African Constitution. The recent xenophobic violence in South Africa was primarily directed against foreigners living in some of the poorest urban areas of the country. However, it has also impacted on those who acquired citizenship by virtue of their specialized skills.
Many South Africans, influenced by customary belief, and not just those living in the poorest areas, are opposed to the presence of a large number of foreigners from other African countries, and they blame foreigners for many of the ills in AS, including high unemployment of locals, and crime (http://WV. Xenophobia. Erg. AZ/) This is to say that some South Africans maintain a strict nationality and sense of own culture, so strict that they resort to violence in order to rule out these imposing foreigners which are taking land and ‘stealing jobs. The thing that need to be stressed is that we are all Africans, living in Africa. There must be no division between African brothers ; sisters. The Bill of rights state that we ought to have respect for those different to us, this is after all the meaning of the new South African Constitution. While xenophobia is a worldwide phenomenon, South African antifreeze attitudes have specific cultural and historical contingencies.
While all non- citizens are generally viewed negatively, African foreign nationals are more likely than other foreigners to be victims of aggressive antifreeze attitudes and practices. This approach explores as a sociological problem to the construction and manipulation of the figure of Masterwork, that is, the African foreigner through established-outsider nationalistic discourse and practices in post- apartheid South Africa. (http://www. Academia. Deed/428997/Cleaning_the_Nation _Anti-African_Patriotism_and_Xenophobia_Len_South_Africa) The very essence of our democracy is the protection of vulnerable people.
For children, women, gays, lesbians and transgender people, in particular, the protection of the bill of rights is necessary armor against traditional authority. If South Africans keep traditional leaders in a modern democracy, these figureheads should play a role consistent with the constitution, not one that tampers with our rights. (http://www. Disheartening. Com/commonalities/2012 /may/26/south-Africa-gay-legit-traditional) As we have complied, Mbabane and Sloth Nielsen also argue that customary law must, as with any other DOD of law, comply with the constitution.
And in order to make it compliant, it has over the years been shaped and changed through various legal and squalliest processes, including: ‘development’ (defined as ‘change/evolution or forward movement on a continuum, a departure from past practice’), ‘recognition and reception ‘, ‘rediscovery’, adaptation/adjustment/modification’, ‘regulation’, ‘registration’, ‘invalidation’, ‘prohibition’, and ‘harmonistic’. (http://WV. Londoner. AC. UK/media/London-metropolitan-university/London-met -documents/faculties/law-governance-and-international-relations/CFML/2011 -2-flop 1/issue-4-Lea-Mbabane-Julia-Sloth-Nielsen. UDF) This process we believe, must be ongoing. In South Africa there is evidence of traditional leaders’ willingness to take a leading role in changing attitudes, customs and practices for the improved well- being of their children in their communities. A number of traditional leaders have taken up the cause of eliminating southward (Stealing the bride) . There is further evidence showing how effective collective advocacy campaigns led by traditional leaders working in partnership with Nags can be in bringing about changes n customary attitudes and practices, especially in the context of addressing gender-based violence.
This is all good progress, however not only traditional leaders carry the weight and ability to a transformation of values, the role of the family, elders, the broader community and children must be taken into account when attempting to change things. Many families are today not keenly observing, for example, strict gender divisions between the roles of girls and boys, communication with children on important health-related matters such as HIVE and AIDS, and consultation with children in the family on matters of direct elevate to them, such as their education.