The Role of the Courts in the Conflict Between African Customary Law and Human RightS

Abstract

The compatibility of African customary law and human rights has been widely debated. The issue has also been the subject of several court decisions in post-1994 South Africa. These judgments are examined in the light of the constitutional obligations of the courts.While the courts have generally taken seriously their role of promoting human rights by showing an increased sensitivity to the rights of marginalised groups such as women and children, the judiciary still has a limited understanding of customary law concepts and refers mainly to a distorted official customary law rather than living customary law. In view of the problems of legislative change of customary law, the courts will continue to play a central role in reforming customary law. With some institutional improvements, however, courts will be in a good position to reconcile customary law with human rights. Important tools for the courts to resolve conflicts between customary law and human rights under the Constitution are applying living customary law in addition to actively developingnew customary law rules in line with the values of both customary law and the Constitution.