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African Customary Law

Professor David Friedman

Legal Systems Very Different from Ours

Student's Name: Khalid Alameer

LAW 353

Abstract

Conventional African community examples are gradually yet logically being changed accordingly of the procedure of modernization which is displayed through patterns like urbanization. For instance, Family designs that were the standard in country African customary social orders are slowly being adjusted and substituted by current day values. Sub-Saharan Africa has one of the quickest yearly populace development and enhancement rate (Merrick 202:41). It has the quickest rate of urbanization by and by occurring on the planet…... The change of social orders in the sub-landmass from rustic to urban settings has tremendously contributed in activating changes in family structure. This has set off the bending of social/conventional standards and qualities that described provincial groups in the locale. African families are progressively confronted with the test and weight radiating from the opposition winning amongst customary and present day family values. Thus, Contemporary family designs in the locale are progressively subjected to change and adjust to evolving times. Examinations of family examples in contemporary Sub-Saharan Africa are made in reference to the procedure of cultural assimilation, urbanization (the development from rustic to urban zones), which have molded current family structures, and additionally cultivated the pervasiveness of statistic changes (Kalu 1981:353). Family in sub-Saharan Africa is encountering changes which are felt in ripeness rates that are the number of kids women bring forth, and age at marriage to give some examples.

Introduction: Marriage

Marriage can be seen from various aspects, as an organization, an association, a life-cycle stage and as a part. Marriage as an establishment is gone up against with the way toward adjusting to the procedure of modernization which naturally shape present day marriage structure. Wilhelma Kalu (1981) expressed that the foundation of marriage is impressively subjected to the pattern of settlement to the procedure of industrialization/modernization. Financial conditions are experiencing changes which produce adjustment of the essential estimations of culture. Marriage constitutes a fundamental variable that is vital for multiplication. The bending of its structure tends to fill in as a medium where financial changes related with the primary estimations of culture can be measured. Conventional precepts of African relational unions are progressively relational unions ruled customary social orders. Paulina Makinwa-Adebusoye (2001 5) clarified that starting at 1999, in Nigeria, 32.7 percent of wedded women were in polygamous relational unions that were comprised of at least two spouses. This is portrayed by the pattern of early marriage; the vast majority of the ladies got hitched very youthful, generally to more seasoned men. Polygamy constitutes a prime element of provincial Africa. Africa has the most elevated rate of polygamy pervasiveness on the planet (Therborn2006:13). Marriage in contemporary sub-Saharan Africa is significantly set apart by the development from polygamous relational unions to monogamous marriage. This is conspicuous in urban ranges in the area generally among the more youthful era. The act of polygamy was focused on the thought of blocking the circumstance of spouse lack. Monogamous relational unions have turned into the standard, in light of the way that the withdrawal of marriage has significantly floated from polygamy to monogamy. This, however, does not imply that polygamous relational unions don't happen; its scale is littler these days than it was some time recently. The presentation of Christianity in the greater part of the nations, to a specific stretch out, has an awesome part to play for this also. The withdrawal of marriage in the locale is progressively set apart by the union of one man and one lady. This on a basic level has not been the situation in country Sub-Sahara African social orders, where relational unions between one man and at least two spouses ruled. Urbanization and modernization too have been pinpointed to be in charge of these progressions.

Wilhemina Kalu (1981:351) investigation of marriage in Ghana among the Ga people group in the 1980s outlined it to be ruled more by polygamy despite the fact that there existed the flexibility to pick amongst monogamy and polygamy. As indicated by Wilhemina Kalu (1981:382) marriage was contracted as an organization as opposed to a natural union, supported by equal wishes and commitment. The effect of cultural assimilation coming from the procedure of urbanization finished from the pattern of the development from rustic to urban regions, has formed marriage structure. There is the development of components or practices from abroad which did not win before, for example, love, sentiment, and physical fellowship in most African social orders that have helped in changing customary conceptualization of conjugal relationship. Wilhemina Kalu (1981) maintains that there is progressively rivalry winning between western origination of marriage and the customary African conceptualization. There is mounting interest in change for the most part among the more youthful era. The act of cultural assimilation supports the acclimation to current circumstances (Kalu1981 358).

Types of Marriages in Namibia

There are two basic types of marriages in Namibia, that is civil marriages and customary marriages. It is important a discussion on these types of marriages is advance in the paper at this point because the subsequent discussions on the divorce laws will be based on these types of marriages.

I) Civil marriages: This is a marriage in the terms of the Marriage Act 25 of 1961 and registered in term of the Marriage, Death and Birth Registration Act 81 of 1963. A civil marriage is a marriage celebrated by state recognized and authorized marriage officer such as a magistrate officer or a religious leader such as a religious minister or priest.

II) Customary marriage: This is a marriage entered into in terms of the traditions or customs of the communities of the parties to such marriage. It follows therefore that customary marriages do not conform to one single or specific form because customs differ from one community to another; hence the term is used holistically to denote a marriage in indigenous communities in terms of such communities’ customs or traditions.

The African Cultures

Seizing your lady

Among the Sudanese Latuka tribe, when a man needs to marry a lady, he seizes her. Elderly individuals from his family go and approach the young lady's dad for her turn in marriage, and if father concurs, he beats the suitor as an indication of his acknowledgment of the union. In the event that the father dissents, be that as it may, the man may compellingly wed the lady in any case.

Khweta Ceremony

This Southern African function is honed by a few tribes and is the way a young man demonstrates his masculinity. When they are young men, the family send them to spend a few days or weeks in a circumcision stop amid winter, where they're put through thorough and frequently hazardous tests and ceremonies, for example, nonstop moving until depletion and circumcision.

Putting a cost on the bride

Lobola is an old and questionable Southern African custom in which the groups of brides, when they come to age are prepared and arranged on how much the prep must pay for the lady. All transactions must be done songs — never by telephone or face to face. The two families can't talk until transactions are finished.

Spitting your endowments

Individuals from the Maasai tribe in Kenya and Tanzania spit as a method of gifting. Men spit on babies and say some words they think they know of, it will be reviled. Maasai warriors will likewise spit in their grasp before shaking the hand of a senior.

Bull hopping

To show their masculinity in the Ethiopian Hamer tribe, young men must run, hop and land on a bull's back before then endeavoring to keep running over the backs of a few bulls. They do these numerous circumstances, and as a rule states.

Women have their own particular houses

In the Gio tribe in Ivory Coast, every spouse has her own particular little house that she lives in with her kids until they are mature enough to move out. The kids never live with their fathers.

The prep wears a cloak

The Ahaggaren Tuaregs of Algeria are a piece of a bigger gathering of Berber-speaking Tuaregs. In their way of life, the men wear cover constantly. Be that as it may, they can take their shroud off when inside family camps or while voyaging.

Ladies can't lament older folks

In the Southwestern Congo, the Suku tribe respects progenitors and senior citizens, when they eat the dust, with a service held in the clearing of a forest. Here, endowments and offerings are brought, yet untouchables and all ladies are prohibited to go to.

Cows are the basis of wealth

Among the Kenyan Pokot community, wealth is measured by what number of cows a family has. Most Pokot individuals are either "corn individuals" or "cows individuals"— implying that is the thing that they develop on their property — however, all Pokot individuals measure their riches by cows. The number of brides a man can wed is controlled by what number of dairy animals he has.

An exhaustive purifying

The Chewa individuals are one of the biggest indigenous gatherings of Malawi, however, live all through Central and Southern Africa. At the point when a man dies, one family custom includes taking the body into the forested areas, slitting the throat, and driving water through the body to rinse it. They do this by crushing the corpse's stomach until what turns out the backside runs clear.

Customary Justice Systems

Customary justice systems refer to all dispute resolution mechanisms that develop from the customs and other customary practices of a group of people. Therefore, what customary justice systems are, is dependent on the meaning of the term ‘custom.’ A customary justice system may be based on tribal custom (that is African customary law) or modern custom. Their nature is thus, dependent on an understanding of the term ‘custom.’ Sapir describes a ‘custom’ as the totality of behavior patterns carried by tradition and lodged in a group. Some customs can be explained in historical terms, by focusing back to remote antiquity. These are customs that have been practiced by communities since time immemorial, gained the force of law and are generally regarded as customary law. Customary law is described as a body of general rules within African tribal communities that govern personal status, communal resources and local organization of the people.Each tribal community has its own customary law. Customs, therefore, differ from community to community and serve to preserve cultural aspects of the people. In customary justice systems anchored on customary law, the later becomes a critical part of its normative content and in the development of tribal/customary law jurisprudence. In this regard, it is argued that customary law provides a better methodology in delivering justice to the people in tribal court adjudication. However, in most of Africa, formal laws have been accused of subjugating, expropriating and subverting African customary law, thus undermining its utility and applicability in the justice sector.

There are other types of customs, which are not traditional in the sense of being archaic, but may develop from current social practices such as in trade, business or profession, and thereafter gain legal recognition. Additionally, in the international law arena, some practices and laws gain notoriety and become international customary law through usage and practices. Thus, conceptually, for an unwritten custom or practice to become customary, it must be practiced widely by a group of people, whether the group is ethnic-based, business or otherwise, and it must gain notoriety. Although, African customary law is critical in adjudicating disputes within tribal courts, the law that will govern dispute resolution in a modern ‘customary’ dispute resolution forum is not clear. Is it the modern ‘customs’ developed by the people? Or is it the formal laws codified in statutes? If customary justice systems, are aimed at giving people the power to adjudicate disputes locally and culturally, one would argue that it is the developed customs that should apply subject to the Constitution and other formal laws. It is also arguable that such customs should apply only where the law allows for their specific application.

Customs, whether remote in antiquity or modern, are dynamic and can change according to new trends and social norms. This dynamism of customs and their change over time leads to a dichotomy of dispute resolution mechanisms, such that there can be pre-modern or traditional and modern justice systems. Customs that survive over time and are passed from one generation to another become customary law, while modern or new ‘customs’ operate as informal justice systems since they have not gained enough public notoriety to be recognized as customary law. Thus, informal justice systems amongst people living in informal settlements would remain informal since they have not gained acceptance by the law.

Traditional Dispute Resolution Mechanisms

Traditional dispute resolution, like the wider customary resolution mechanism, differs from one ethnicity or tribe to another. There may have been similar structures across most ethnic communities, for example, the council of elders. However, they have had different names across different tribes, and their roles and mechanisms of resolving disputes were subtly different according to the circumstances of individual tribes. Examples of names for a council of elders include the kokwo of the Pokot, Nabo of the Samburu and Marakwet, tree men of the Turkana, Njuri Ncheke of the Meru, and Kiama of the Kikuyu.

The mechanisms used to resolve disputes under traditional justice fora include negotiation, mediation, conciliation, settlement, consensus approach, and restoration. These mechanisms focus on restoring peace and maintaining social bonds. Since traditional or primitive societies have complex relationships, the social bonds and social capital help dispute resolution institutions such as the council of elders or tribal chiefs to enforce the dispute resolution decisions. Thus, traditional dispute resolution mechanisms may be stronger in communal societies such as rural areas compared to urban areas where the dispute resolution mechanisms are individualistic, self-interested and are not aimed at maintaining relationships.

Customary Inheritance Practices

The discussion on inheritance in customary law or practices, is advanced primarily due to the need to address and empower women and children who may easily be considered more vulnerable. Women and children may be considered vulnerable when it comes to inheritance matters particularly in the customary law setup because they are more often in an unfair position to inherit under customary laws and practices as opposed to their older male counterparts. The reasons for such inequality is due to the fact that women and children while they may be considered as having a more legitimate interest in their late husband and father’s estate for reasons of acknowledging the importance of a family unit, they may at the same time be considered as having a less powerful claim to the estate due to the husband and fathers extended family and their involvement. This situation therefore necessitates the need to protect the women and children as they can end up being left with nothing but themselves if the husband and father passes on. The extended families can take anything and everything, from land, livestock, clothing, furniture’s etc, claiming it as belonging to their own.

There are three main systems of inheritance in customary practices:

i) Matrilineal decent

ii) Patrilineal decent

iii) Cognatic/mixed decent

In a partilineal community, property status and rights are transmitted in the father’s line as opposed to the mother’s line in a matrilineal community. This defines the composition of the inheriting group. While there is significant difference between matrilineal, patrilineal, and cognatic communities, it is true that the spouse and more particularly the widow does not have a right to inherit from the estate and in extreme situations, the widow might be seen as part of the estate to be inherited by the brother of the late husband.

Mercedes H. Ovis 1989 states that the Ovambos and the Kavango communities follow a matrilineal decent, the Namas and Damara follow a patrilineal decent and the Hereros a bifurcated decent. The communities of Caprivi are said to be cognatic as they have a matrilineal system but with a strong patrilineal influence. In the matrilineal community, the intestate sister of the deceased and her children are the primary beneficiary and therefore most likely to challenge the widow’s claim to a share of the estate. In the patrilineal community, the youngest son is the preferred heir. If women does inherit they were most likely precluded from inheriting properties of value such as land, buildings valuable or large movable property such as vehicles.

There is a cultural presumption in most of the above stated communities that all properties of a married couple belong to the husband. Such a presumption places widows at the receiving end as they may lose out on properties that are rightfully theirs considering the fact that they too contributed to the joint estate.

The unfair prejudice on women as illustrated above has not gone uncritizised and some writers on the subject argue that such practices should be faced out because modern inheritance law is characterized or modeled more towards privileging the surviving partner to the marriage and their children. This is quite contrary to certain customary preferred practices which recognizes the interest to distribute the estate to the extended family of the deceased. It is however unfortunate that these customary practices are not being challenged by the very people they affect.

What is the way forward for customary inheritance legal system?

Namibia needs a system of intestate succession which accommodates the range of indigenous law and blends it with aspects that promote gender emancipation, it is not ideal to leave everything to indigenous law which may lack clarity and which may easily be subject to manipulation and discrimination due to its lack of clarity. After the judgment in the Berendt case, parliament promulgated the Estate and Succession Amendment Act 15 of 2005, but in so doing, parliament still considered it appropriate to leave in place the customary rules and customs governing the distribution of intestate estates. Therefore, black intestate property presently continues to be distributed according to native laws and customs as provided for by the Native Administration Proclamation, as opposed to the Intestate Succession Ordinance 12 of 1946.

Moreover it suffices to point out that in South Africa, the South African Law Commission had during the time of considering customary law reform, also propose that customary law should be retained as a separate legal system, but that the areas of marriage and succession should be integrated into a single code of rules

Civil Law Marriages.

Prior to colonialism, the local indigenous people practiced customary marriages. The Western concept of a civil marriage and the legal consequences thereof were foreign to the indigenous peoples of Southern Africa during the pre-colonial era. These western marriages now known as civil marriages only came with the European settlers. Legally, the German law was the first European law that was applicable to civil marriages in Namibia, but however, the German laws did not develop significantly in Namibia during the German colonial era. It is the South African law that developed civil law and forms the basis of the Namibian civil law legal system. The earliest South African laws that regulated civil marriages in Namibia was the Proclamation 16 of 1915 which repealed some of the German civil law provisions and provided for the empowering of magistrate officers in the military government to act as marriage officers.

Another important piece of legislation was the Administration of Justice Proclamation 1919 which had the provision that the Roman Dutch Common law as applicable in the Cape was to be the law applicable to the territory of South West Africa. Of particular importance in this piece of legislation is the fact that this proclamation introduced the Roman Dutch Common Law divorce law into Namibia which applies up until this day and as extended by article 66 of the Namibian constitution. The Roman Dutch Common Law however still forms the back bone of the civil divorce law in Namibia.

To summarize the divorce legislations in Namibia, divorce law is based on RDL and Divorce laws amendment ordinance No 18 of 1935, matrimonial causes Jurisdiction act 22 of 1939, matrimonial causes jurisdiction act 35 of 1945, matrimonial affairs ordinance no 25 of 1955. The analysis here shows that the Namibian divorce laws are scattered and also that the last major statutory reform of the law on divorce took place half a century ago.

The Default Marital Regime System.

The default marital regime system for marriages between Africans outside of the former police zone which is one of the components despicable from the application of the Native Administrative Proclamation 15 of 1928 which is concerned with the of consequences of such marriages regulated by the proclamation. The proclamation provides that such marriages are by default out of community of property unless the parties specifically agree to the contrary. Such an agreement should be made one month before the marriage ceremony; and the intending spouses should jointly declare before a magistrate or a marriage officer that it is their intention that the property regime to be applicable to their Mercedes H. Ovis: The problem faced with this is that many of the intending parties are not aware of these requirements and in practice, it is a reoccurrence that such declarations are not properly executed, with the result that even if it was the intention of the parties to contract a marriage in community of property, if the declaration is not executed or properly so executed, such marriages would be considered by law to be out of community of property. The consequence will be that such an estate will be administered in terms of customary law and the problem that follows is that women’s rights to their deceased husband’s estates are limited because the women`s rights are hardly recognized under customary law as stated earlier above. The above situation has however not gone unnoticed. For example, in the Mofuka v Mofuka case, our courts took cognizance of the unfortunate position that the Native Administrative Proclamation places on women, established what they considered an informal and unregistered ante-nuptial agreements between parties although not enforceable against third parties, which spouses conclude either expressly or impliedly which regulate the property consequences of the marriage between themselves. The conclusion of the case is plausible because it is questionable why such a law should persist without challenge, considering the fact that it affects a large number of the Namibian population. This is trite because 40% of the Namibian population lives in the four regions of the northern part of Namibia, this is excluding Caprivi and Kavango which also forms part of the areas north of the Former police zone and which are affected by the proclamation

Civil divorce provisions and the proposed reform law

The most important provisions of the current divorce laws in Namibia are outlined in this chapter and in order to avoid repeating these laws in another chapter dealing with the shortcomings of these laws and the proposed reforms, both the current divorce provisions and the proposed changes will be discussed concurrently in this chapter.

Main aspects introduced for reform

Under the Roman Dutch Common Law the current divorce law is based on a fault based system, the divorce bill proposes the adoption of a divorce regime based on irretrievable breakdown. Key issues that are addressed by the divorce bill are:

1. To eliminate the fault based system or ground for adultery and introduce one based on irretrievable breakdown

2. Simplify divorce procedure in cases where there are no real dispute about the divorce or terms thereof

3. Give courts sufficient power to distribute marital properties fairly to avoid injustice by strictly applying the existing property regimes.

4. Ensure child’s best interest is considered before a divorce is granted particularly matters pertaining to child custody and additional protection.

The immediate challenge if the ground for irretrievable breakdown is introduced would be the question of what would constitute irretrievable breakdown. The irretrievable breakdown principle is however clear that where both parties allege irretrievable breakdown, the reasons for breakdown should be considered irrelevant on the question whether or not to grant a divorce, it is equally irrelevant when irretrievable breakdown is alleged and the other party does not oppose the divorce.

This means that the marriage has broken down beyond any repair) rather than fault. HR (Hahlo,1985)

The reason for doing away with the fault based system is because:

1. Marriages are complex relationships and the distinction between guilt and innocence is too simplistic

2. Where people want a divorce they will always manage to make their case fit the law, which in fact makes the fault system a legal fiction.

3. There is no point in trying to revive a dead marriage. The South African Divorce Act 70 of 1979 contains a similar clause.

The concept of irretrievable breakdown is defined in section 4 of the draft bill, which also outlines what constitutes irretrievable breakdown. The said section provides that irretrievable breakdown occurs where a marriage relationship has reached such a stage of disintegration that there is no reasonable prospect of restoring a normal marriage relationship.

Another significant proposed change to the current divorce law, is in regards to the High Court rules, in particular rule 43 of the High Court rules. Under the current provision, rule 43 is a powerful tool for parties seeking interim relief pending the finalisation of the divorce proceedings, the rule also provides for a simple and quick procedure. This is because, applications would now be simplified as far as possible and done on the basis of affidavit evidence unless the court insists on a hearing and parties also have the option of using standard affidavit forms thereby making the process easier.

Conclusion

The paper discussed the two types of marriages practiced in Namibia, namely civil and customary marriages and further the laws pertaining to such marriages. In so doing the paper pointed out the shortcomings of such laws and emphasized the need for reform in that regard. It has however transpired in the paper that efforts were made particularly by the legal Assistance Center and the Law Reform and Development Commission to reform the customary and divorce laws in Namibia via extensive research; however the legislature is yet to legislate to that effect. The issue of divorce and customary law reform is illustrated in this paper to be of great importance considering the fact that divorce and marriage laws affect substantive rights and interest of parties involved.

African family examples are progressively confronted with the test and weight amongst customary and present day family values and structure. There is the enduring increment in the pace towards the surrender of traditional practices for present day ones (western). Notwithstanding, the most prevalent pattern is that of the predominance of family examples that are expanding blending customary and present day marriage standards or practices (Kalu1981:2)