Balancing Customary Practices and Human Rights in the Proposed Single Marriage Bill

Rita Ozoemena; George Fordam Otieno Wara; Khupi Ramarumo

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Chapter 4 Balancing Customary Practices and Human Rights in the Proposed Single Marriage Bill

In: Reimagining Legal Pluralism in Africa

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Rita Ozoemena

Rita Ozoemena
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George Fordam Otieno Wara

George Fordam Otieno Wara
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Khupi Ramarumo

Khupi Ramarumo
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Type:: Chapter

Pages:: 93–120

DOI:: https://doi.org/10.1163/9789004696747_005

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Abstract

This chapter analyses two proposed legislative options by the South African Law Reform Commission (SALRC) for a Single Marriage Bill to determine whether the legislative options will strike the correct balance between South Africa’s international human rights obligations and the customary practices of South African communities. The SALRC has proposed a single marriage Bill either unifying a set of requirements and consequences applying to all marriages (the Protected Relationships Bill) or containing different chapters to reflect the current diverse set of legal requirements for civil marriages, civil unions, customary marriages and other marriages that are not accommodated by current legislation (the Recognition and Registration of Marriages and Life Partnerships Bill). Both proposed legislative options seek to ensure the rights to equality, dignity and non-discrimination for everyone as stated in the Bill of Rights and reiterated in the Preambles of both proposals. At the same time, the two proposed legislative options continue to rely on customary practices or culture to define subsisting monogamous or polygynous marriage relationships recognised under the Recognition of Customary Marriages Act 120 of 1998 (RCMA). The SALRC’s goals of promoting rights in the Bill of Rights and rights to culture in the proposed Single Marriage Bill are complicated by the incompatibilities between the Bill of Rights and African customary practices, as will be highlighted by court cases invalidating or developing African customary law. The incompatibilities are rooted in South Africa’s history and context because the Bill of Rights was inspired by written international human rights instruments and “Western” cultural values while African customary practices were originally unwritten, based on social practices and tested by social observations. In addition, the dominant voices that shaped the “official” version of African customary law at the time of drafting the Bill of Rights were members of the ruling racial minority intent on protecting the accumulated inequality of generations of suppression, domination and apartheid. In this chapter, we rely on systems theory (as the sum of interactive and interdependent component parts) to model the African communities as systems, and social dominance theory (the tendency of human societies to structure themselves as systems of group-based social hierarchies) to examine the clash between “Western” values and African customary practices. We also rely on social dominance theory to interrogate the proposed Single Marriage Bill’s attempt to create harmony between an alienating international human rights discourse, dynamic community systems and a failed integration effort through the RCMA.

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Reimagining Legal Pluralism in Africa

Balancing Indigenous, State, and Religious Laws

Series: Developments in International Law, Volume: 80

Cover Reimagining Legal Pluralism in Africa

E-Book ISBN:: 9789004696747

Publisher:: Brill | Nijhoff

Print Publication Date:: 17 May 2024

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Part 1 Succession in African Legal Pluralism

Part 2 Marriage in African Legal Pluralism

Part 3 Islamic and Comparative Law in African Legal Pluralism

Part 4 Theoretical Perspectives on African Legal Pluralism

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Chapter 4 Balancing Customary Practices and Human Rights in the Proposed Single Marriage Bill

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Reimagining Legal Pluralism in Africa

Balancing Indigenous, State, and Religious Laws

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