Parliament must tread carefully on customary law

SEPARATE is still not equal. In how many instances and contexts do we have to repeat this statement?

The idea that the enactment of the Traditional Courts Bill recognises and protects customary law institutions, is part of restoring the humanity and dignity that blacks were stripped of by apartheid, is an exercise in falsehood.

The maintenance of a separate legal system for black people is a continuation of a legacy that continues to treat black people as second-class citizens and causes more harm to the continued survival of customary law.

The stated objectives of the Traditional Courts Act are said to be affirming the values of the traditional justice system, based on restorative justice and reconciliation and to align them with the constitution and to affirm the role of the institution of traditional leadership.

It also makes a point about enabling speedy and easy access to justice. These are all things that make it sound like a forum for alternative dispute resolution.

Multiple legal systems are a colonial legacy that continues to bedevil most post-colonial societies throughout the continent. In a different world, it may not be as menacing to have multiple fora where people could have an option of whether they would like to have their dispute adjudicated.

A person could choose to either have religious, customary or common law applied to their dispute. In South Africa, however, this bill raises more questions than it provides answers. For women and other groups that are vulnerable to human rights violations there is an uncomfortable association between customary law and the apartheid legal order.

While customary law was treated with contempt and relegated to an inferior status, it was still able to connive against black women and subject them to double discrimination. On the one hand, there were the racist colonial laws and on the other there were some discriminatory aspects of customary law.

This legacy continues to be highlighted in the ongoing gender discriminatory in the allocation of land and the application of gender stereotypes in the resolution of disputes.

Recent utterances by traditional leaders on the issue of same-sex relationships continue to cast a shadow of doubt on whether the constitution is being understood in some quarters of society.

Granted, some of the gender discriminatory aspects of customary law have been addressed by the constitutional court.

The court has decided that the exclusion of women, girl children and children who are not firstborns from the process of administering deceased estates was incompatible with the constitution.

The court has also decided that to exclude women, who were married before the law, which recognise customary marriages, from sharing equitably in assets, was also not consistent with the constitution.

The solution that the court came with was to harmonise customary law and to make the legal position of people who were subject to it similar to the position that applied to everyone in the country.

The court has also had to decide whether a woman was eligible for the office of traditional leadership.

In this instance the court had to reiterate that gender could not be a bar from inheriting the title of traditional leadership.

In all these instances the offending customary law provisions had to be made invalid. Proponents of the bill misunderstand the objections against the bill.

The application and the use of customary law is not the source of the concern.

The argument is not simply that traditional institutions discriminate against women. This will not be the truth.

The ways in which traditional courts currently operate are as varied as they are complex.

There have been stories of traditional institutions that provide protection and are sensitive to issues of discrimination. These are, however, few and far in between.

The argument is also not one about uniformity that we need to have the same laws apply throughout the country. South Africa is a multicultural society and is capable of embracing a legal system where the law is able to reflect this diversity. The return to "the way we were" before colonialisation will not be achieved by creating another institution for black people.

South Africa is already an African country.

Customary law is part of South African law. The discussion needs to be about how we make customary law an integral part of the legal system instead of continuing to treat it like the proverbial step-child of the South African legal system.

If parliament does not focus on how customary law needs to be developed and infused with the constitution in order to minimise its harmful features, it will be challenged.

If it is found wanting, slowly but surely the courts will declare those discriminatory aspects unconstitutional.

This bill could be one way of further fragmenting customary law with a view to ultimately destroying customary law.

Giving more powers to traditional leaders alone will not "prevent conflict, maintain harmony and resolve disputes where they have occurred, in a manner that promotes restorative justice and reconciliation and in accordance with the norms and standards reflected in the constitution", as the bill says.