sexual health and human rights in the african region - The ICHRP

[36] The assumption is that a customary law norm binds past, present and future
members of the ethnic group from which the law emanates. There was a general
assumption promoted in early colonial jurisprudence that once a customary law
had been established, it remained unchanged. However, in the jurisdictions that
have been surveyed, these assumptions no longer apply rigidly in the sense that
membership of an ethnic group does not automatically mean that the parties are
bound by customary law. Section 3(1) of the Customary Law and Local Courts
Act of 1990 of Zimbabwe provides an illustration. It says:
Subject to this Act and any other enactment, unless the justice of the case otherwise requires-
(a) Customary law shall apply in civil cases where-
(i) the parties have expressly agreed that it should apply;
(ii) regard being had to the nature of the case and the surrounding circumstances it
appears just and proper that it should apply;
(b) The general law shall apply in all other cases.
In determining ‘surrounding circumstances’ the following factors are taken into
account:
• mode of life of the parties;
• subject matter of the case;
• the understanding of the parties of the provision of customary law or the
general law of Zimbabwe as the case may be which apply to the case;
• the relative closeness of the case and the parties to customary law or the
general law of Zimbabwe as the case may be.
The implication is that customary law has diminishing status and that there is an
element of choice in being subjected to the jurisdiction of customary law. The
implication is also that there is an element of choice available to the parties to
litigation. Customary law will not be applied where both parties to the dispute
are unwilling to submit to its jurisdiction and agree to be governed by the
general law. However, even in jurisdictions where customary law may only
apply with the consent of the parties, customary law may be the only realistic
option open to the parties. For example, parties who contract a customary
marriage wish to submit a separate or divorce to adjudication, have no option
than to submit to customary law adjudication of such a marriage. In any event, it
must be highlighted that the poor and the illiterate and mostly women will
frequently be unable to marshal the financial resources and knowledge to access
justice that is dispensed through using general laws such that customary law
becomes in practice the only option available. Minor children also fall into the
class of persons who are not ordinarily able to negotiate the type of law that
should apply, unless there is intervention from outside the family or from the
legal system.
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