Exclusion of African law from our jurisprudence a grave mistake

English and Roman-Dutch law evolved from medieval customs, norms and values of European societies.

Against that backdrop, we must ask why African countries are failing to legalise and entrench customary laws in their respective jurisprudential edifices.

For how long should black Africans be prosecuted and convicted on the basis of European legal jurisprudence?

It is mischievous for anyone to infer that European jurisprudence is conceptually superior to African customary law. There is a mountain of documentary evidence to attest that African customary law is the oldest strand of legal science on earth.

The concepts of "legality" and "constitutionalism are, undeniably, the cardinal pillars of European jurisprudence.

But the virtues of equality, liberty, impartiality and justice are core to the judicial principles of African customary law. In comparative terms, African customary law is more humane and experimental than European legal jurisprudence.

The prescription of our constitution is vague and noncommittal when it comes to the application of customary law.

Actually, our constitution does not accord any legal force to the application and enforcement of customary law in our courts. Section 211 of the Constitution is dual-sided when it comes to the role of customary law in our legal jurisprudence.

It recognises the existence of customary law but it fails to inject "legal authority" into it.

That explains why our high courts and the Supreme Court of Appeal (SCA) are explicitly dismissive of practices that are anchored on customary law, as the case of King Buyelekhaya Dalinyebo illustrates.

The drafters of our constitution committed a fatal error of judgement by excluding African customary law from SA's judicial superstructure.

Some would say that parliament is indeed trying to remedy this by seeking to pass the Traditional Courts Bill.

But this bill is contrary to the principles of African jurisprudence based on equality, liberty, impartiality, fairness and non-violence. Instead it seeks to entrench arbitrary rule, patriarchy and oppression of women and children.

Parliament should draft new legislation that shall be known as the Promotion of Traditional Jurisprudence Bill in order to give African customary law its proper place.

This should be done in consultation with communities that continue to make use of customary law, in particular, and broader society, in general.

Our judicial system should be reflective of the historical evolution and conceptual identity of black African communities. European jurisprudence and African customary rules should begin to coexist and complement each other.

Our court judges should desist from treating African customs and traditions with contemptuous colonial indifference. The time has arrived for our judiciary, and all its components, to clinically change and epitomise our history and indigenous heritage.

African customary law must find practical expression in the country's jurisprudence.

The judiciary plays an eminent role in advancing and consolidating our constitutional democracy. But we should never hesitate to pinpoint and rectify loopholes and shortfalls that are inherent in our judiciary.

This should not be misconstrued as an unwarranted attack on the sanctity and edifice of the judiciary.

There is always room for improvement and growth especially in a young democracy such as ours.

- Masoga is political analyst and researcher at the Institute for Dialogue and Policy Analysis