Protect SA’s law from mawkish sentimentalism

IN THE Cape Argus ( November 15) respected journalist Michael Morris makes a bold attempt to give credence to Judge Hlophe’s controversial call for the “Africanisation” of the law, but fails. Mindful of the binary Eurocentric-versus-Afrocentric arguments that lead nowhere, he invokes much of the view of Prof Hugh Corder, dean of law at the University of Cape Town, that “it is fundamentally healthy that questions are raised about the values against which the law is interpreted,” but that this issue be separated from the controversy of racism within the judiciary. For him the latter is a managerial matter that should be dealt with in-house, the former has to do with the application of the law and is a valid concern. Both Corder and Morris sympathise with Hlophe’s view that South African law would do well with a good infusion of “African values”. As usual they haul out the hackneyed example of ubuntu, and then sink into the South African sin of “exceptionalism”, claiming that our extraordinary diversity inspired a legal system that has become “something of a prototype … in a developing country not shackled to one particular parent system”. Morris knows he is skating on thin ice, hence all the caveats and the use of Corder’s arguments to give legitimacy to a post-1994 obsession that everything should be Africanised, as though this notion imbues legal practice with a nobler quality. This romantic nonsense is at the heart of slovenly thinking dressed up as deep thought and inspires a populism disrespectful of the rule of law. What does it mean to Africanise the law, or to Americanise or Europeanise it for that matter? These words are used glibly when no one dares to define it, and it is on this score that Morris’ assumptions should be debunked. The flow of the law is no longer unidirectional, from developed to developing countries. Postcolonial societies and globalisation have had profound cultural and political influences on the interpretation of the law, hence the richness of jurisprudence internationally. The US Supreme Court cites cases from South African jurisprudence as they do from many countries across the world. Similarly, South African law draws on seminal judgments from all over the world. Human rights law in particular has had to deal with the challenges thrown up by cultural diversity, customary law, and gender equality in keeping with the demands of modern society. Conceived in patriarchy and racism, Roman Dutch law has undergone radical amendments over decades. Feminists from the Seneca Convention to the British suffragists, and from Amsterdam to Botswana, have contested the sexism and racism implicit in the law. As early as 1791 in France, Olympe De Gouge questioned the French Declaration of the Rights of Man with her Declaration of the Rights of Women, and had her head chopped off. The irony is that while France has moved on, many of its former colonies have remained static, still supporting sections of sharia law and its iniquitous impact on women. “To infuse with African values” assumes that the law will be kinder to the oppressed; it assumes that what is indigenous is kinder. And this is not always so. In the case of Amina Lawal, sharia law was deeply uncivil towards her rights as a woman. Similarly the idolised notion of ubuntu covers a multitude of sins in customary law against the rights of women — with regard to sexuality, marriages, inheritance, divorce, children, circumcision, virginity testing, etc. Throughout history African women have challenged customary laws that discriminate against them. Just to give a thing an African name does not “purify” or ennoble it. Where “African law” has not been codified or documented it can be invoked to mean anything. In the vacuum of definition, restorative justice in the mind of the victim, for example, can mean vigilantism, the necklace, the kangaroo court, etc. On the other hand, scholars such as Thandabantu Nhlapo have pointed to many examples of African customs that would do wonders for family law and the social welfare system, provided the values underlying the African family were properly understood and applied. Finally, the question of equal access to customary law is an aspect very few people have given attention to. Do only certain tribes have rights to customary laws or do we grant Ben Travato his wish to have two wives? Or is this the preserve of the indigene? If so, who is the indigene? We have to be careful what we ask for, or we might fall into the trap Orwell warns of — “that slovenly language and slovenly thinking begin to feed off and reinforce each other: the slovenliness of our language makes it easier for us to have foolish thoughts”. ‖Kadalie is a human rights activist based in Cape Town. http://www.businessday.co.za/articles/opinion.aspx?ID=BD4A117744