Legal pluralism, Customary Law and Women’s Rights

• Date: 01 August 2017
• Record Number: sapr1_v32_n1_2_a12
• Author: Muna B. Ndulo
• Published date: 01 August 2017
• Pages: 1-21
• DOI: 10.10520/EJC-1033c60c17

1

https://doi.org/10.25159/2522-6800/3576

ISSN 2522-6800 (Online) | ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–21

ARTICLE

Legal Pluralism, Customary Law and Women’s Rights

Muna B Ndulo

Cornell University

Email: mbn5@cornell.edu

ABSTRACT

This article examines the challenges legal pluralism poses in legal systems, especially

in relation to conicts between customary norms and the Bill of Rights and the need to

contextualise customary law in order to resolve the need to adapt it to changing societal

needs and values. The article focuses on African customary law, African legal systems and

women’s rights because it is a burning issue in Africa and was the subject-matter in several

of the cases that came before the South African Constitutional Court during the time Justice

Ngcobo was on the Court. Cases involving conicts between customary law and gender

rights are not unique to South Africa. These are issues that have engaged African courts and

those elsewhere in the world. In Africa, the coexistence of customary law and received law

is as old as colonial rule. Like all other systems of law, customary law has been inuenced

by various other forces in an ever-changing world. Justice Ngcobo’s approach to resolving

conicts between customary law and the Bill of Rights in constitutions is instructive and

makes a signicant contribution to the jurisprudence in this area of the law. In his opinions

on customary law, especially in the Bhe case, he implores us to look at the social context in

which customary rules originated and, before discarding them, to examine the possibility of

developing them to meet the changing needs and circumstances of society.

Keywords: legal pluralism; customary law; African legal systems; Bill of Rights; gender rights

Introduction

It is tting to pay tribute to Justice Sandile Ngcobo’s immense contribution to

constitutional jurisprudence in South Africa and the world by publishing a Special Issue

in his honour. I feel privileged to have been given the opportunity to participate in this

project. My article focuses on customary law and women’s rights. Justice Ngcobo’s

approach to resolving conicts between customary law and the Bill of Rights in

constitutions is instructive and makes a signicant contribution to the jurisprudence in

this area of the law. In his opinions on customary law, especially in the Bhe & Others v

2

Ndulo Legal Pluralism

Magistrate of Khayelitsha & Others case,1 he implores us to look at the social context in

which customary rules originated and, before discarding them, to examine the possibility

of developing them to meet the changing needs and circumstances of society. He argues

that customary law in its diversity and the legal pluralism that it imports can be greatly

strengthened to advance justice in the communities practising customary law. This,

he states, is possible if customary law is aorded the opportunity to deal with issues

according to the customary laws of the particular domain, that are fashioned to address

those issues in context and in their specicity and particularity.

Against this background, this article examines the challenges legal pluralism poses in

legal systems, especially in relation to conicts between customary norms and the Bill

of Rights. It also considers the need to contextualise customary law in order to full the

need to adapt it to changing societal needs and values. We realise that there are several

other plural jurisdictions in the world—India, Malaysia to name but two. But the article

focuses on African customary law, African legal systems and women’s rights because it

is a burning issue in Africa and was the subject-matter in several of the cases that came

before the South African Constitutional Court during the time Justice Ngcobo was on

the Court.

Cases involving conicts between customary law and gender rights are not unique to

South Africa. These are issues that have engaged African courts and those elsewhere

in the world.2 In Africa, the coexistence of customary law and received law is as old

as colonial rule. Like all other systems of law, customary law has been inuenced by

a variety of forces in an ever-changing world. The mutilation of customary law by the

forces of religion, colonialism, neocolonialism, and now globalisation, has meant that

dierent narratives of customary law exist.

Legal pluralism is a condition in which a population observes more than one body of

law. It has also been described as ‘the presence in the social eld of more than one

legal order’.3 It is of the essence that even if it is plural, the various elements are all

1 2005 (1) SA 580 (CC) (‘Bhe’).

2 Raymond Atuguba, ‘Customary Law: Some Critical Perspectives in Aid of the Constitutional Making

Process in Zimbabwe’ in Norbet Kersting (ed), Constitution in Transition: Academic Inputs for a New

Constitution in Zimbabwe (Fredrich Ebert Stiftung 2009) 291 <http://library.fes.de/pdf-les/bueros/

simbabwe/07322.pdf> accessed 13 November 2017.

3 John Griths, ‘What is Legal Pluralism?’ <http://commission-on-legal-pluralism.com/volumes/24/

griths-art.pdf> accessed 13 November 2017. Griths argues that legal pluralism ‘refers to the idea

that in one geographical space dened by the conventional boundaries of a nation state, there is

more than one law or legal system.’ He contrasts this with what he called ‘Legal Centralism’, which

sees law as an exclusive systematic and unied hierarchical ordering of normative propositions,

which can be looked at either from the top downwards as depending from a sovereign command

(Bodin, 1576; Hobbes, 1651; Austin, 1832) or from the bottom upwards as deriving their validity

from ever more general layers of norms until one reaches some ultimate norm(s) (Kelsen, 1949; Hart,

1961). In either case, while the various subordinate norms which constitute law carry moral authority

because of their position in the hierarchy, the apex itself—the sovereign or the ‘Grundnorm’ or the

rule of recognition—is essentially a given. It is the factual power of the state which is the keystone