Heritage Day Special: Contemporary vs. Customary Law

Kay Selisho

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After a few weeks of pondering over the idea of cultural heritage (prior to national Heritage Day) I have come to the conclusion that South African – in an African context – is where the old and the new often meet to create a unique and often tumultuous reality for us, young Africans. In pre-colonial times, […]

After a few weeks of pondering over the idea of cultural heritage (prior to national Heritage Day) I have come to the conclusion that South African – in an African context – is where the old and the new often meet to create a unique and often tumultuous reality for us, young Africans.

In pre-colonial times, Africans naturally had their own religions, tribes, languages, customs, laws and so forth. Through imperialism and colonization – becoming exposed to other cultures, religions, languages – they were then indoctrinated into viewing Western ideals, customs, cultures and religions as superior and therefore preferable to their own. This inferiority complex has stuck and is evident in our covertly negative reactions to anything remotely African today.

To refer to anything as ‘African’ is honestly a very vague classification but for the purposes of this article, we will assume it to mean anything that originated from this continent. With that said, African cultures are habitually classified as old (or backward). While Western cultures – for a range of historical, philosophical and socio-psychological reasons – are habitually viewed as new. Over the course of centuries, the precepts of either realm have interacted and affected each other in diverse and sometimes chaotic ways, as a result creating the reality we know today – where the need for any young person to honour one’s heritage clashes with the modern context in which we now live. But should it?

This bridge between old and new is perhaps best illustrated by the clash between customary and contemporary law in South Africa; especially when the personal life choices & preferences of those in positions of power in governance intersects with the professional outlook required of the as policy-makers. This clash is based on the fact that while these individuals may personally define and abide themselves according to the laws of their cultural backgrounds, the positions which they occupy require them to adhere to and operate within the parameters of contemporary law.

Our President, Jacob Zuma, serves as the prime example of this. He is a customary-law practicing Zulu man who tries his best to preserve and honor his cultural heritage but at the same time – as President of a democratic South Africa – is obliged to be the guardian of the rights, principles and values set out in our constitution. President Zuma in justification of his worldview, staunchly refers to himself as an African foremostly.  One such statement he made in the name of his “Africanness” was an anti-gay comment at a Heritage Day celebration in KZN as deputy president of the ANC in 2006.

“Same sex marriage is a disgrace to the nation and to God. When I was growing up, ‘ungqingili’ [homosexuals in isiZulu] could not stand in front of me, I would knock him out.” [Excerpt from speech; 26 September 2006]

Still, the Civil Union Act – which legalises same sex marriage – came into effect on 30 November 2006 against the legal precept that the Constitution of South Africa guarantees equal protection before the law for all citizens regardless of sexual orientation. Interestingly, personal preferences, ideals and prejudices are sometimes passed off as inconsistent with “Africanness” – thus casting ‘Africanness’ in a negative light – where as in a global context, such human rights issues are often debated on religious or equally “traditional” grounds. At home, homosexuality is generally not accepted by many African cultures but before the eyes of the law, the homosexual community are human beings that need to be protected and fought for. So where does this leave President Zuma? Does this create a dilemma for policy-makers such as President Zuma who vehemently observe custom but must be at the sharp end of protecting civil rights?

COO of the SABC Hlaudi Motsoeneng serves as another example of somebody whose personal and professional life has contentiously straddled this dichotomy. When he was appointed as permanent COO of the public broadcaster, the Sowetan reported that he was given a wife, a cow and a calf as gifts by Mudzi Wa Vhurereli ha Vhavenda, a lobby group of Venda traditional leaders and healers. This was reportedly because “he became the first senior SABC manager in 14 years to engage with the group about vhaVenda language issues.” Women’s rights groups throughout the country immediately took offense to his receipt of a wife as a “gift” and the Ministry for Women located within the presidency launched an investigation into what really happened. News website Dispatch Live reported that feminist and researcher at the University of the Witwatersrand Institute for Social and Economic Research (Wiser) Lisa Vetten said she was speechless when first told of the gifting of a wife for Motsoeneng. She was quoted saying “this is why we need a robust debate around culture, tradition and gender equality. We need to seriously ask the question about whether these practices reflect the spirit of the constitution.”

King Buyelekhaya Dalindyebo. Source: mg.co.za
King Buyelekhaya Dalindyebo. Source: mg.co.za

Unlike individuals such as King Buyelekhaya Dalindyebo who have maintained their positions as traditional leaders and by design continue to operate according to customary law first and contemporary law second, the aforementioned are required to operate inversely – according to contemporary law first and foremost. This dichotomy thus raises questions obvious concerns about how the likes of Zuma and Hlaudi may inform their policy frameworks, causing their decisions to be called into question. So does traditionalism, or customary law threaten to negatively impact policy and the frameworks of our democracy, like Lisa Vetten claims?

Former President Thabo Mbeki. Source: kids-brittanica.com
Former President Thabo Mbeki. Source: kids-brittanica.com

Thabo Mbeki is an interesting proposition in this regard – a self-proclaimed Africanist who does not publicly observe any form of traditionalism – he remains a proud advocate of  “Africanness” – but of a different kind. His approach to this idea is more focussed on Africa’s modern place in the global political, social and economic landscape; and his idea of African identity isn’t fixed on any tribal ideals or precepts but rather a more inclusive, or pan-Africanist, recognition of all who reside on this continent – as evidenced by his renowned “I am an African” speech. He seems to want to design an “Africanness” that can reside authentically in either of two worlds. Is this possible?

When one set of ideals is neither superior nor inferior to the other, the Thabo Mbeki approach to life may be the best way to move forward. It is impossible to fully subscribe to customary law and completely forsake contemporary law? And for those who do subscribe wholly to contemporary law, it is advisable to be aware of and sensitive to customary laws? Why is it that we continue to operate on the assumption that African culture and customary law are stagnant? Compromise is essential to co-existence. I think Africa culture can exist alongside modern ideals and contemporary law; do you?

If you find yourself struggling with this dichotomy, sound off on our twitter!

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