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Thursday, July 26, 2012

Inheriting a New Perspective – Women and the Land of South Africa

South Africa’s distressing history of segregation and problematic implementation of Human Rights standards, unfortunately, still peeking its way into the present day. Gender Rights in regards to Land Laws is especially one of the areas of the law in which these violations are being recognized. If South Africa wants to become a country sensitive to International Human Rights Norms, it must be realized by everyone that this is a feat much easier said than done, especially with South African customary law – laws built of customs and practices of the indigenous peoples - being as complicated and intricate as it is. Legal Pluralism is one of South Africa’s biggest obstacles to overcome; colonialism’s brought regulations translated from both Roman-Dutch law and English common law, which had to mix with a huge number of indigenous or customary laws already in place. Integration of these rules was not a smooth process; the settlers of 1652 from Europe, namely the Dutch East India Company that recognized the Roman-Dutch Law as the official law of the land - at first ignored the native laws of the tribes, then tolerated them after the second British occupation in 1806 when it was stated that there should be no interference with the native laws of the country, and eventually recognized them in the Interim Constitution of 1993. If South Africa wants to accomplish a true pluralistic nature to the law, and a multicultural nature of the society, it is necessary for everyone within that society to become more sensitive to the various cultural practices around them and to use a more bottom-up approach for implementing the changes.

Recognizing Customary Law can only be done if it is understood in itself, which is very difficult to do with the vast number of different regulations and customs followed by the different tribes and native communities. Land Tenure alone is two fold; there are the Official Customary Laws, which are the explicit laws about how inheritance of Land occurs and what procedures are to be followed, and the Living Version of Customary Law, which is the way in which the courts have interpreted and applied the provisions in real cases. The problem resides in the fact that there is a great disparity as to how the laws are applied; the lower courts have a tendency to take social practices and changes into account more so than the higher courts, which have a tendency to strictly apply the original customary rules, even though the laws weren’t in fact that strict at all.

Primogeniture – the preference for senior males as heirs to inherit land – is a dominating feature of inheritance and tenure law within the customary system, and is something which many indigenous tribes still follow, regardless of the new laws put in place. It was codified in Article 23 of the very controversial Black Administration Act 1927, a major piece of Apartheid legislation codifying the segregationist character of South African society. The basic idea behind this rule, under Official Customary Law, is that property of a family head, when deceased, is passed onto the heir, usually the oldest of the sons in the first house. In a Zulu household, “power is inherited by men but transmitted through women”; in polygamous marriages, if the husband were to die, then the property is to be distributed accordingly amongst the sons of the houses that are identified by the wives: the first wife of the “great house” (indlunkulu), the right-hand house (qadi) and the left-hand house (ikhohlwa); determining the seniority of the wives is usually on the basis of marriage order. In a Swazi household, the senior wife is chosen by the family, which helps identify who the heir should be – usually her oldest son. In almost every tribal community household, it is very difficult to say that there is no male heir to the deceased’s estate, due to the fact that an heir will eventually be found along the bloodline -  succession passes onto the deceased’s father, or the brothers, or the descendants in order of seniority.  Sometimes, succession will even be passed onto grandchildren, and then if failing the oldest grandchild, will then follow through the second oldest of the family line of males until an heir can be found. In the event that no heir can be found, however, the traditional leader of the community will then take hold of the estate, but is under the duty to use the estate to maintain the surviving dependants – women included. I have simplified these customs as much as I can, but the basic idea is that the heir to the estate is usually always a male – women seem to be avoided completely. However, women are used by many communities as a way in determining the heirs, for it is the women who are the leaders of the households, especially in polygamous marriages.

Thursday, July 5, 2012

Fatou Bensouda New Prosecutor of the ICC

Photo Courtesy of ICC

Fatou Bensouda was officially instated as new Prosecutor of the International Criminal Court on 15th June 2012. She brings to the table her years of national and international experience, first serving as solicitor general of Gambia, and then she broadened her experience internationally by serving as legal advisor and trial attorney at the International Criminal Tribunal for Rwanda (ICTR) and thereafter as Deputy Prosecutor at the International Criminal Court. There are many proponents who say that Bensouda could redeem the muddied reputation of her office left behind by her predecessor especially in the context of the Africa and the African Union. But in a recent interview with Radio Netherlands Worldwide she stressed that she was elected to the position not because she was an African but because of her accomplished track record.

Bensouda doesn’t deny her African heritage and makes clear that she is installed as Prosecutor of the International Criminal Court to fulfill her legal mandate given the speculations that she will be better equipped to deal with the Africans then her predecessor has. She uses the motto: “The ICC for African Victims” and already her strategy is to relate the current prosecutions to African victims. She also places a lot of emphasis on African participation outside and within the Court. She states that Africa is currently the most represented region at the Court, 28% of the judges are African and three African States (Uganda, DRC and CAR) have referred the situations on their territory to the Court. In other words she has highlighted Africa’s commitment to international justice in a more positive manner.

Whether Bensouda will bring change to the strategy adopted by her predecessor, Ocampo, only time will tell. One thing is for certain she does understand African custom, culture and politics more, and is therefore more likely to engage more meaningfully with African leaders and hopefully more sensitively with next prosecution she undertakes in Africa.

For more information on Bensouda’s swearing in ceremony visit:

 Posted By Ingrid Roestenburg-Morgan