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AFRICAN LEGAL THEORY, LAW AND DEVELOPMENT

ALR Online will publish legislation and judgments of the superior courts of African Countries, and superior courts of other countries, on subjects of general interest to African legal scholars, as they are made available. These judgments will be reported in their entirety with short introductory notes, and can be found under the country name, in alphabetical order. Arrangements will be made with the Registrars of the superior courts concerned to submit selected judgments, especially on constitutional law, public law, international law (including humanitarian law), International Commercial Law, African Law and other areas of general legal interest to lawyers in Africa and abroad. This site will also provide references to other sites with complete reports of individual countries, which need not be duplicated. The site also includes a model syllabus and materials for the study of African Law and Development recommended for Universities interested in advancing the study of African Law.

Customary Law
African Law and Development

Supreme Court of Uganda Upholds Bride Price but Nullifies It's Return on Divorce

In upholding the payment of bride price as a constitutional right of bride and bridegroom to choose as a gift to the parents of the bride, the Supreme Court quite correctly upheld a practice deeper in antiquity among many African Tribes. The practice was derided as an exchange of a bride for a fee or bride price in the English language for lack of a proper translation of "lobola" in Southern Africa or "enjugano" in Lunyankole (Uganda). The return of a gift which was always demanded by jilted husbands was also rightly nullified as an unconstitutional denial of woman to leave an abusive marriage.

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SOUTH AFRICAN CONSTITUTIONAL COURT DEFINES THE NATURE AND EXTENT OF APPLICATION OF CUSTOMARY LAW IN A LAND MARK CASE: In the Matter between: MODJADJI FLORAH MAYELANE V. MPHEPHU MARIA NGWENYAMA AND OTHERS. Case CCT 57/12 [2013] ZACC 14.

The Constitutional Court stated that Customary Law is the Law of the land and must be understood on its terms and not in the lens of the common law. The court added:

  • so understood, customary law is nevertheless subject to the Constitution and has to be interpreted in the light of its values;
  • customary law is a system of law that is practised in the community, has its own values and norms, is practised from generation to generation and evolves and develops to meet the changing needs of the community;
  • customary law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life;27
  • customary law will continue to evolve within the context of its values and norms consistently, with the Constitution;
  • the inherent flexibility of customary law provides room for consensus-seeking and the prevention and resolution, in family and clan meetings, of disputes and disagreements; and
  • these aspects provide a setting which contributes to the unity of family structures and the fostering of co-operation, a sense of responsibility and belonging in its members, as well as the nurturing of healthy communitarian traditions like ubuntu.

Mayelane v Ngwenyama Decision

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