Question1
Customary law is essential in the legal frameworks of numerous African nations,
especially in those with colonial backgrounds that resulted in multiple legal systems. In
these systems, customary law coexists with statutory and common law. Nonetheless,
an important distinction has arisen between living customary law and official customary
law, a divergence that significantly impacts the evolution of the legal system, human
rights, and justice in African communities (Thandabantu N et al African customary law in
South Africa Post-Apartheid and living law perspectives 2 Oxford University Press
Southern Africa69). Living customary law denotes the collection of traditions and
practices that a specific community actively observes and acknowledges. It is fluid,
changing, and rooted in the daily encounters and social exchanges of community
members. Its validity arises from the community’s ongoing recognition and adherence to
these norms. In contrast, official customary law refers to the form of customary law that
has been acknowledged, documented, or codified by the state or judicial systems. It
frequently results from colonial or post-colonial initiatives aimed at formalizing and
regulating indigenous legal frameworks. Consequently, official customary law tends to
be unchanging, embodying historical interpretations that might not align with present-
day practices(thandabantu 69 and 78). A prominent example of the conflict between
these two types of customary law is evident in the South African Constitutional Court's
ruling in Bhe v Magistrate, Khayelitsha (2005 (1) SA 580 (CC)). The issue involved the
principle of male primogeniture in inheritance according to customary law, which barred
women and children from receiving property. The court ruled that this regulation was
unconstitutional, as it infringed upon the rights to equality and human dignity.
Significantly, the Court dismissed the use of official customary law—the variant
documented and upheld by courts—and stressed the necessity of implementing living
customary law, which had already developed in certain communities to incorporate
fairer inheritance practices. The Court observed: Customary law does not constitute a
stable set of formally categorized and readily identifiable regulations." Inherent to its
essence, it transforms as the individuals adhering to its principles alter their lifestyles.
This situation underscored a significant issue: official customary law can sustain
antiquated and discriminatory behaviors, whereas living customary law might have
progressed beyond them. The adaptability of living customary law was further
highlighted in Shilubana and Others v Nwamitwa (2009 (2) SA 66 (CC)), where the
Court considered a traditional authority's choice to appoint a woman as chief, departing
from the historic male-only succession. The community had intentionally modified its
regulations to align with changing values concerning gender equality. The Court
determined that communities could legitimately evolve customary law and that this
evolution should be honored, as long as it conforms to constitutional principles. The
ruling upheld the validity of living customary law, asserting: The authentic essence of
customary law resides in its fluid, community-oriented nature. This acknowledgment
Customary law is essential in the legal frameworks of numerous African nations,
especially in those with colonial backgrounds that resulted in multiple legal systems. In
these systems, customary law coexists with statutory and common law. Nonetheless,
an important distinction has arisen between living customary law and official customary
law, a divergence that significantly impacts the evolution of the legal system, human
rights, and justice in African communities (Thandabantu N et al African customary law in
South Africa Post-Apartheid and living law perspectives 2 Oxford University Press
Southern Africa69). Living customary law denotes the collection of traditions and
practices that a specific community actively observes and acknowledges. It is fluid,
changing, and rooted in the daily encounters and social exchanges of community
members. Its validity arises from the community’s ongoing recognition and adherence to
these norms. In contrast, official customary law refers to the form of customary law that
has been acknowledged, documented, or codified by the state or judicial systems. It
frequently results from colonial or post-colonial initiatives aimed at formalizing and
regulating indigenous legal frameworks. Consequently, official customary law tends to
be unchanging, embodying historical interpretations that might not align with present-
day practices(thandabantu 69 and 78). A prominent example of the conflict between
these two types of customary law is evident in the South African Constitutional Court's
ruling in Bhe v Magistrate, Khayelitsha (2005 (1) SA 580 (CC)). The issue involved the
principle of male primogeniture in inheritance according to customary law, which barred
women and children from receiving property. The court ruled that this regulation was
unconstitutional, as it infringed upon the rights to equality and human dignity.
Significantly, the Court dismissed the use of official customary law—the variant
documented and upheld by courts—and stressed the necessity of implementing living
customary law, which had already developed in certain communities to incorporate
fairer inheritance practices. The Court observed: Customary law does not constitute a
stable set of formally categorized and readily identifiable regulations." Inherent to its
essence, it transforms as the individuals adhering to its principles alter their lifestyles.
This situation underscored a significant issue: official customary law can sustain
antiquated and discriminatory behaviors, whereas living customary law might have
progressed beyond them. The adaptability of living customary law was further
highlighted in Shilubana and Others v Nwamitwa (2009 (2) SA 66 (CC)), where the
Court considered a traditional authority's choice to appoint a woman as chief, departing
from the historic male-only succession. The community had intentionally modified its
regulations to align with changing values concerning gender equality. The Court
determined that communities could legitimately evolve customary law and that this
evolution should be honored, as long as it conforms to constitutional principles. The
ruling upheld the validity of living customary law, asserting: The authentic essence of
customary law resides in its fluid, community-oriented nature. This acknowledgment
