There is consensus on the idea that Zambia needs to change the constitutional framework regulating customary marriages. The government has been reluctant to adopt either a new transformative Constitution or comprehensive legislation regulating marriages contracted under customary law. This study investigates how this stagnation affects the recognition, status and consequences of customary marriages and considers the way in which living customary law has evolved to address some of the challenges confronted by spouses in customary marriages. While the country has passed legislation regulating certain specific aspects of marriage such as legitimacy, maintenance, and the dissolution of marriages, it is important to examine the interplay between these formal laws and the ‘real’ marriage practices which are observed by persons living under customary law. To this end, this study seeks to examine the taxonomy of interactions between the legal normative order established by state laws and the customary norms governing the formation and consequences of customary marriages. This is important because very few researchers have gone into the relevant communities to investigate the state of customary laws of marriage and the nature of their relationship with the Constitution and other pieces of legislation.
The enduring reality and continuity of interactions between customary law and state law are evident in the context of the customary land tenure system of Botswana. Customary land ownership in Botswana is not only regulated by living customary law, but also by state law and the codified (official) version of customary law that may no longer be obtaining in some parts of the country. Before British colonial rule, land ownership was largely communal and land belonged to tribal communities, not to individuals. In large measure, land was owned by chiefs, but their powers were limited and not equivalent to ownership in the common law sense.
The powers of the chief were equivalent to those of a trustee holding the land for the tribe. These rules have changed over time, not least as a result of the legislative regulation of customary land tenure in Botswana. In 1970, Parliament sought to bring certainty to customary land tenure by passing the Tribal Land Act which vested ownership of land in the Land Boards. However, the exact nature of the interactions that exist between the Tribal Land Act and living customary land tenure principles remains unclear and contested. Against this background, it is important to investigate the interactions that exist between living customary land tenure and statutory provisions regulating tribal land ownership in Botswana. This study seeks to bridge the gap between the provisions of the Tribal Land Act and the realities that are experienced by people who own land under the living customary land tenure principles.
In South Africa, legal pluralism is a popular doctrine and manifests itself mainly in the context of matters of personal law, marriage, divorce and other related aspects. Customary marriages, including their dissolution, are now largely regulated by the Recognition of Customary Marriages Act (hereafter the Recognition Act). This piece of legislation symbolises South Africa’s attempt to regulate several aspects of customary marriages and to bring the vulnerability of women married under customary law into the bounds of constitutional protection.
The main changes brought by the Recognition Act are, among others, the need to register every customary marriage, the codification of the ground of the irretrievable breakdown of marriage as the main basis upon which customary marriages may be dissolved and the requirement that a customary marriage be dissolved only by a High Court or another court of similar status. However, there is debate on whether the Recognition Act actually improves the status of women under customary law. This study investigates the nature and extent of the interactions that exist between the provisions of the Recognition Act and the living practices that govern the dissolution of customary marriages. It seeks to examine people’s views about the provisions of the Recognition Act and to investigate whether the bulk of customary marriages are dissolved in line with these provisions. The study will primarily rely on the analysis of the recently concluded socio-legal study of the DST/NRF Chair in Cusotmary Law, Indigenous Values and Human Rights on customary marriages.
This research will be conducted within a collaborative framework between the Chair in Customary Law and the National House of Traditional Leaders in South Africa. The project investigates the social and legal status of several outstanding cultural practices. Some of these practices include initiation practices for boys and young men, virginity inspection for girls, ukuthwala, ukungena and polygamy. There is ongoing debate on whether these cultural practices are harmful. On one hand of the ledger, proponents of these practices view them as an integral part of the identity of communities that adhere to and practice customary law in South Africa. On the other, advocates for the reform of customary law view these practices as a symbol of patriarchy and the domination of weaker members of the kinship groups, particularly women and children, by those who have decision-making powers in the family and in the society in general.
The question of whether certain cultural practices are harmful or beneficial is evidently subjective and, to a large extent, depends on the individual’s orientation and attitude, upbringing and insider/outsider stand, and the degree of social and cultural change to which one is exposed. While these factors are important, the question of whether a particular practice is harmful ultimately depends, from the positivistic point of view, on how such practice, in purely objective terms, measures with constitutional standards and values. Yet, a more pluralistic approach could define the litmus test differently on the basis of the indigenous traditional values and principles believed and followed by the people who perform the specific cultural practices.
This study seeks to investigate the content and meaning of selected cultural practices through the lens of relevant legislation, the Constitution and community representations of the same practices. It explores the interaction between the formal laws regulating the exercise of cultural practices and the ways in which community members evaluate practices identified by others (or the law) as harmful. In specific terms, the research seeks to explain the nature and scope, from the perspective of both the ordinary members of the community and traditional leaders, of each of the practices deemed to be harmful; to identify and record agreements and disagreements about the nature of the practices; to identify the content, significance and compatibility/incompatibility of the cultural practices with the Constitution; and to investigate ways of reuniting conflicting definitions and distortions of perspectives on the deemed harmful cultural practices. In this way, the research aims to identify means of reconciling the supposed harmful cultural practices with the Constitution where necessary, as well as examining the appropriateness of the content of existing legislation with respect to the community perceptions of these practices.
Traditional cultural practices will be evaluated in light of the community’s representations and understanding of constitutional values. The importance of community participation arises from the changing nature of customary practices and the rights of cultural communities to alter their customary laws within the confines of the Constitution. Generally, communities have the right to define the contents of their living customary law. This right is buttressed by the Constitution which confers on communities that adhere to and practice customary law the right to participate in cultural practices of their choice. These communities are therefore central to knowledge production relating to their customs and practices. Therefore, engaging with them on the assessment of their own cultural practice is an important step towards the ascertainment of living cultural practices.
This research project is framed as a thesis executed by a PhD student involved in the project. The PhD thesis examines how customary law estates are currently being administered post certain judicial and legislative interventions in South Africa. The thesis examines how individuals use a combination of state and non-state law in the administration of estates and identifies factors that promote (hinder) the realisation of rights.
|First Integration Report "Formation and patterns of customary marriage in Zambia: A Socio-Legal Study"