Browsing by Author "Himonga, Chuma"

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    An analysis of the process of ascertainment and application of customary law in the formal institutions of adjudication: Nigeria and South Africa
    (2017) Badejogbin, Rebecca Emiene; Himonga, Chuma
    Judges of formal courts in Nigeria and South Africa do not easily have access to the contents of customary law they are required to apply in the course of adjudication and this has been a major challenge. This thesis examines the processes that courts adopt in the ascertainment and application of living customary law in Nigeria and South Africa in order to discover factors that influence the ascertainment and application of customary law. This research is qualitative in nature and utilises both doctrinal and empirical methods to make its findings. It examines the conceptualization of customary law in the context of the research against positivist and pluralist theories and analyses the doctrine of judicial discretion against relevant theories on how it impacts on the ascertainment and application process. The thesis also examines the current laws and procedures that regulate this exercise to discover how it contributes to what is ascertained by the court. For its primary sources, it utilised data obtained from the semistructured interviews conducted, and, records of proceedings of cases on customary law heard by the formal courts in Nigeria and South Africa within a fifteen-year period. The secondary and tertiary sources utilised include text books, journal articles, official reports and publications, and other literature. It identifies factors within the purview of institutional, substantive, procedural, socio-economic and political factors, as well as other factors that influence how judges exercise discretion in the ascertainment and application of living customary law. The thesis states that these factors contribute in varying degrees, to enhance or impede the ascertainment and application of living customary law by these formal courts. It therefore proposes the consideration of these factors in the policies that seek to develop measures that would enhance the ascertainment and application of living customary law by the formal courts in Nigeria and South Africa.
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    Appropriate dispute resolution for women married under customary law in Malawi, with special reference to marital violence
    (2017) Msokera, Chisomo Harvey; Himonga, Chuma
    As a dispute resolution service provider, the justice system ought to provide effective legal remedies to address the justice needs of people. Apart from having the capacity to provide the legal remedies, the system has to be accessible as well. In marital violence disputes, one of the general interests of both the State and the affected individual spouses is to prevent further abuse. Courts offer this remedy, among others, by imposing restraining orders, which are backed up by punitive threats. On the other hand, facilitative mechanisms of dispute resolution such as mediation do not have the power to impose punishment on contemptuous parties. However, facilitative dispute resolution processes encourage joint problem solving, which is desirable in maintaining a workable relationship between spouses. This research argues that in order to ensure optimum access to justice in marital violence disputes there is a need for a dispute resolution system that offers facilitative and advisory mechanisms of dispute resolution alongside court processes. However, in Malawi, rural citizens face the barriers of language and use of English law-orientated procedures when accessing courts. Furthermore, some customary law practices and statutory law provisions encourage the view that mediation in marital violence disputes precludes concurrent access to court remedies. This research explores the challenges which this current approach to marriage dispute resolution poses to women married under customary law. It answers the question whether the justice system, with its English law-orientated procedures and the tenet of mandatory mediation or reconciliation, offers appropriate and effective mechanisms of resolving marital violence disputes to women married under customary law.
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    The constitutional and statutory position of the 'other' wife: a comparative study of constitutional rights and polygamous customary marriages in Commonwealth Africa
    (2018) Cotton, Sonya; Himonga, Chuma
    In the context of a perceived globalisation of human rights, this thesis considers whether constitutional rights to equality and non-discrimination apply to polygynous customary marriages in Commonwealth Africa from a legislative perspective. In other words, I examine whether there is a correlation between constitutional protection of rights and legislation, sensitive to the human rights of women in polygynous customary marriages. It is shown that at a constitutional level, there is often a strong indication that human rights to equality and non-discrimination apply to customary laws, including customary institutions of marriage. This, however, often does not translate to a statutory level, resulting in marriage laws that largely side-line and ignore the possibility of polygyny in a customary marriage and the potential for human rights violations therein. I analyze the discursive mechanisms that facilitate the contradiction that arises when constitutional commitments to protect the rights of women in polygynous marriages are not met at a legislative level. I argue that practices of 'silence' and 'omission' are used to perpetuate the myth that monogamy is the default position of all marriages governed by statute. This effectively constructs polygynous marriages as an aberration to the norm, and further renders invisible the parties in polygynous customary marriages. In failing to provide statutory guidance for the complexities that may arise in polygynous marriages, I argue that women in polygynous marriages are discriminated against in comparison to women in monogamous relationships.
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    Protection of Women's Marital Property Rights upon the Dissolution of a Customary Marriage in South Africa: A View from Inside and Outside the Courts
    (2015) Moore, Elena; Himonga, Chuma
    Based on an empirical study of marital dissolution, this paper examines the effectiveness of the Recognition of Customary Marriages Act 1998 and its enforcing institutions to provide the necessary protection of women's marital property rights when customary marriages end. Drawing on data from court (divorce) files and semi-structured interviews, the paper will examine the effectiveness of the new laws for individuals who seek to regulate marital dissolution through both judicial and extra judicial systems. In doing so, it examines how judicial and extrajudicial systems interact and co-exist. The findings show that both systems of regulation are failing to recognise women's right to an equitable distribution of the marital estate upon divorce. The paper demonstrates the weaknesses inherent in the judicial regulation of divorce combined with the consequences of the continued private regulation of marital dissolution. Resistance to an equal division of marital assets continues and a more dedicated and systematic effort is required to curb financial exploitation upon the dissolution of a customary marriage if the State wants women living under customary law to enjoy their human rights under the Constitution.
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    Same-sex unions and guardianship of children
    (2004) Himonga, Chuma
    This note considers three issues concerning children and same-sex partnerships that have come before the Constitutional Court in recent cases,namely, adoption, the status of children born as a result of artificial insemination, and guardianship.In Du Toit & another v Minister of Welfare and Population Development & others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC) the applicants, partners in a long-standing lesbian relationship, had initially brought an application before the High Court to determine their claim jointly to adopt two children.The High Court challenge impugned the validity of ss 17(a),17(c),and 20(1) of the Child Care Act 74 of 1983,and s 1(2) of the Guardianship Act 192 of 1993, in so far as they provided for the joint adoption and guardianship of children by married couples only. (Because of these legislative restrictions, the second applicant alone had become the adoptive parent.) The court held that the provisions in question violated the applicants’ rights to equality and dignity, and did not give paramount importance to the best interests of the child, as required by s 28(2) of the Constitution of the Republic of South Africa, Act 108 of 1996. To remedy these defects, the court ordered that certain words should be read into the provisions to allow for the joint adoption and guardianship of children by same-sex life partners (see Du Toit & another v Minister of Welfare and Development & others 2001 (12) BCLR 1225 (T)).
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    The status, rights and treatment of persons with disabilities within customary legal frameworks in Uganda: A study of Mukono District
    (2017) Dennison, David Brian; Himonga, Chuma
    This thesis addresses the question: How do customary legal frameworks impact the status, rights and treatment of persons with disabilities? It is motivated by two underlying premises. First, customary legal frameworks are highly consequential in Sub-Saharan contexts. Second, human impairments are likely to impact status, rights and treatment in customary legal scenarios. In addition, the reality of deep legal pluralism and an anthropologically versed conception of customary law inform the research design. Customary legal content is rightly discerned by researching its substance and application within the lived environment. The researcher gathered input and stories of 63 persons with disabilities and conducted interviews of 23 community members with heightened knowledge of cultural matters in order to discern the experiences of persons with disabilities in non-formal legal contexts. In her semi-autonomous social field approach, Sally Falk Moore considers diverse and layered sources of law when determining the normative legal content in lived contexts. However, this research uncovered little in the way of normative principles specially pertaining to persons with disabilities within lived environments. Instead, legally consequential occurrences take place in customary scenarios that are largely autonomous from formal actors and institutions. The perceived normative substance of formal and customary law can influence the outcome of customary scenarios, but the decision makers' working knowledge of this legal content as it pertains to people with human impairments is limited and disparate. Decision-making family, clan and community members take various factors into consideration when determining rights, status and treatment in customary scenarios. Suppositions about the capacity and functionality of persons with disabilities are particularly influential. Thus, human impairments can be consequential factors in these decisions. This thesis demonstrates that customary scenarios are highly significant forums for establishing customary rights and status in the contexts of marital relations, clan leadership, customary guardianship, customary succession and land rights. Moreover, it indicates that effectual social and legal influences in these scenarios are multi-sourced, multi-layered and dynamic. Finally, the thesis offers practical change strategies suggested by the research for those seeking to improve the status, rights and treatment of persons with disabilities in Mukono District and similar settings.
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    Succession in woman-to-women marriages under customary law: a study of the Lobedu Kingdom
    (2017) Maphalle, Kagiso Annette; Himonga, Chuma; Diallo, Fatimata
    This study looks into the ways in which official customary law addresses succession complexities and legitimacy in woman-to-woman marriages. The social, political, cultural and legal background against which these marriages are concluded show the history of succession in woman-to-woman marriages and the position of women and children. The thesis highlights provisions of customary succession laws legislators sought to redress through the Reform of Customary Law of Succession and Related Matters Act 11 of 2009 and the Recognition of Customary Marriages Act 120 of 1998, which affect widowed spouses and certain children in customary marriages. The study uses literature review, case analysis and interviews to investigate the operation and legitimacy of woman-to-woman marriages, the benefits or harmful effects thereof, the background, context and history of the customary law of succession and acceptance of children in Bolobedu, and the application of living customary law. The study finds that woman-to-woman marriages are legitimate customary marriages under Lobedu customary law. It also finds that customary succession laws in such marriages have traces of patriarchy, although the community is under a matriarchal system of governance. It finds that the rule of male primogeniture is still applicable, and that women do not have a right to inherit from their deceased parents except at the discretion of the male heir. It finds that the acceptance of children in woman-to-woman marriages includes the performance of ceremonies symbolising the female husband's acceptance, and the child's use of her surname. It further finds that the application of official customary laws in Bolobedu is negligible, with the living customary law being the applicable law for all succession disputes. A further finding is the general lack of knowledge and understanding of succession rights under official customary laws by the community and their traditional leaders, who are aware only of provisions of the Lobedu living customary law which they readily provide. The study concludes that the legislators, judiciary and policy makers' lack of knowledge and understanding of woman-to-woman marriages and its accompanying succession laws inhibits and limits the adequacy of official customary law to regulate succession complexities. Rural communities' perceptions of their rights and knowledge of customary laws of succession, the practicality of provisions of official customary laws of succession, and their relatability to lived realities of rural communities further add to the inadequacy of official customary law.
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    The administration of customary law estates post the enactment of the reform of customary law of succession act: a case study from rural Eastern Cape, South Africa
    (2019) Osman, Fatima; Himonga, Chuma
    After years of deliberation and judicial activism, the South African legislature in September 2010 brought into force the Reform of Customary law of Succession and Regulation of Related Matters Act 11 of 2009 (the Reform Act). The Act regulates the devolution of property of individuals who live according to customary law and die intestate. The notorious customary law principle of male primogeniture, according to which males inherited to the exclusion of females, has been abolished and replaced with the common law system of intestate succession. It has been nine years since the enactment of the Reform Act. This thesis investigates the implementation of the Act to understand its application by officials and people’s experiences thereof. It is a qualitative study that draws upon doctrinal and empirical research to address its objectives. The theoretical concepts of deep legal pluralism and the semi-autonomous social field are employed as the analytical prism through which the administration of customary law estates is investigated. The findings are based on a comprehensive case study conducted in a rural village in the Eastern Cape of South Africa. Individuals, the traditional leader, the headman and state officials were interviewed to understand how estates are reported and the devolution of benefits. The interviews were augmented by an analysis of a sample of case files drawn from the Master’s Office responsible for the administration of estates. The findings revealed the resilience of living customary law in the administration of estates, particularly in respect of homes situated in rural areas. In this regard, living customary law has evolved to allow women and daughters greater rights to property but it still displays patriarchal overtones as males are considered the true owners of homes. The Reform Act regulates more effectively the devolution of assets found in the formal sector, such as financial assets. The case study found most estates were valued at less than R250 000, with the result that deceased’s surviving spouse and children were the primary beneficiaries of the estate. However, a statutory right of inheritance is no guarantee that beneficiaries enjoy their rights as there is a significant risk of property grabbing. While much has been done to reform the customary law of succession, there is room for improvement in securing the rights of dependents of the deceased, facilitating the reporting of estates and ensuring the implementation of mediated solutions in communities. The thesis thus offers practical recommendations to improve the system of administration. First, the thesis recommends a move towards a functional, fact-based approach to inheritance which extends inheritance rights to individuals supported by the deceased while alive, regardless of whether they constitute a spouse or a descendant as statutorily defined. This addresses the lack of protection for unmarried partners and the broader notions of family found in customary law. Second, it advocates for the greater leveraging of traditional institutions such as chiefs and families in the reporting of estates and resolution of disputes. Third, the dissemination of information through state and non-state institutions is promoted. Fourth, it advocates for the explicit condemnation of corrupt state practices which exploit vulnerable individuals. Finally, the thesis recommends further research into practices such as the existence of family property and administration of estates in urban areas. Understanding the nuanced manner in which administration is experienced is argued to be necessary for successful reform.