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Two Systems of Law?

07 November 2012, 07:42

The proposal to introduce traditional or customary law courts for large swathes of South African territory is surely a threat to democracy in South Africa.

The idea is that pre-colonial African justice systems (with no legal representation, no prosecution teams, no defense teams and no right of appeal) should be applied to tribal lands ruled over by traditional chiefs and should take precedence over or substitute the laws and legal system supposedly enshrined in the Constitution. This would directly affect some 18 million citizens – at least half of whom would be women who, under traditional law have very few, if any, rights and are often (as with mediaeval feudal law of Europe) treated as mere chattels to be utilized at the whim of men.

In a recent speech President Zuma appeared to support and promote the entire concept, speaking of the preference of solving “African problems the African way” rather than doing things, as presently, “the White Man’s” way.

The racial overtones aside, the President’s intervention is highly questionable given that he, of all citizens, is legally bound (by way of his Presidential Oath of Office) to uphold and defend the Constitution of the Republic of South Africa. It is also highly questionable since the proposal, in the form of a Bill, is still a process in motion and his comments and apparent support are clearly prejudicial to its evaluation as a possible law of the land.

Notwithstanding the procedural issues, it is the concept itself that deeply troubles me.

The Constitution gives more than a passing nod to some traditional law, under certain circumstances, but only under the precedence and supremacy of the Constitution as the guiding and governing law of the country. It is difficult to imagine the mindset that will then permit a totally different system of law to operate in parallel with the existing system.

How would jurisdictional issues be decided – and in favour of which system?

How would the traditional laws be policed and by whom? South Africa already has extreme difficulty policing crime under the existing system.

How would the country be prevented from fragmenting and dividing (territorially, politically and culturally) as a result of two fundamentally differing legal systems being in place? This, surely, is a return to the old homelands policies of the Apartheid government, to say nothing of the dispossession of the human rights of millions of women and children in the country.

And, once having permitted an alternative and parallel legal system to be emplaced, would not the precedent then allow the introduction of other alternative systems to be introduced – such as, for example, Islamic Sharia law?

A final question: with the introduction of such a fundamental change to our Constitution, should not the entire question be subject to a national referendum rather than to the uncertain motives of a political party, already under intense scrutiny and criticism over its failing policies and overall lack of administrative abilities, uncomfortably close to a two-thirds majority in Parliament necessary to change the Constitution unilaterally?

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