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

In respect of the assumption by colonial authorities, especially, that customary
law is fixed, courts have adopted a more flexible view in the postcolonial period.
Courts have, on the whole, accepted that customary law is not fossilized and can
change with changing social and political conditions. An illustration is the
decision of the High Court of Tanzania in Chiku Lidah v Adam Omari where the
Court said:
The judicial role of recognising customary law that has by evaluation been modified by the
society itself is very important. In the past the High Court has not been instrumental in
spearheading this crusade. The courts should be courageous enough to recognize and give effect
to such a change. 146
As part of accepting the changing nature of customary law, some courts have
been receptive to incorporating human rights into the body of customary law or
at least receptive to interpreting customary law subject to human rights. 147
[37] Though largely unwritten, in some jurisdictions, customary law has been
reduced to writing or incorporated into civil codes. 148 The nature of tribunals that
administer customary law depends on the constitutional and political traditions
of the individual jurisdiction. In some jurisdictions, customary law is
administered by the ordinary courts. 149 In some, it is administered by specially
created customary courts 150 and others by traditional authorities. 151
[38] The institution of customary law as part of jurisprudence in the African state has
its origins in the colonial era. Customary laws are generally laws that are
perceived as having indigenous as opposed to colonial origins. At the time of
colonialization, colonial authorities drew a distinction between general laws or
received laws that emanated from the colonial state and would govern all
subjects, and laws that emanated from a particular ethnic group and would only
apply to members of that group, namely customary law. The general approach
was that customary laws only applied to areas that were not governed by general
laws, and that its application was confined to civil cases in the realm of the socalled
personal laws and not to criminal cases. In virtually all African
jurisdictions customary law is subordinate to legislative instrument and can be
overridden by parliamentary legislation.
[39] Customary law has survived into the postcolonial period, but with varied status
across Africa. Today, the ostensible constitutional rationale for the recognition of
customary law in the postcolonial African state is that, a source of law, it serves
146 Chiku Lidah v Adam Omari Civil Appeal No 34 (1991).
147 See the discussion in Chapter 2 of the study.
148 Local Customary Law (Declaration) of 1963 (Tanzania).
149 Magistrates Court Act of 1963 (Tanzania).
150 Customary Law and Local Courts Act of 1990 (Zimbabwe).
151 Administrative Order No 6 of 1998 (Swaziland).
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