Theory v. Practice: The 1996 Constitution of South Africa: Reconciling Constitutional Jurisdiction with African Customary Law
Open Access
Author:
Gabreski, Lillian Evelyn
Area of Honors:
Political Science (Behrend)
Degree:
Bachelor of Arts
Document Type:
Thesis
Thesis Supervisors:
John King Gamble Jr., Thesis Supervisor Robert W. Speel, Thesis Honors Advisor Robert W. Speel, Faculty Reader
Keywords:
customary law international law south africa republic of south africa constitution
Abstract:
In 1994, when the Republic of South Africa discarded the legal structure of apartheid, it sought a new constitution that would solidify those rights to which its people had been denied based on arbitrary classifications of race since the dawn of its colonization. The result was the 1996 Constitution of the Republic of South Africa, one of the most liberal and comprehensive constitutions in its protection of human rights and socio-political freedoms. However, South Africa is a nation of many different ethnicities and backgrounds, who, under colonization and apartheid, generally were given the right to self-government and self-determination. This paper aims to examine the divisiveness between the protection of the right to culture and the South African Bill of Rights, including its protection of universal human rights and equality. I am applying this particularly to issues of gender discrimination within customary legal courts, primarily in regards to three areas of the law: inheritance, traditional leadership, and the rights of female children. In considering several different proposed solutions to rectifying the divide between common law and customary law in the nation of South Africa, I shall identify ways in which the rights of women and children can be reconciled with the right of traditional communities to practice their culture.
