Some Activists Want Customary Law Recognised as the Supreme Law

Customary law has evolved over time in Namibia’s many communities, and continues to evolve as people’s habits change.

As community members are aware of how things are typically done, customary law is often not codified.

The fundamental goal of preserving cultural norms is directed and controlled by customary laws.

In terms of Namibia’s Constitution, no legislation must be in conflict with the Constitution, which is regarded as the supreme law. 
In accordance with article 66, common law and customary law are to be regarded equally on all grounds. 

However, the customary law bill is still in the Namibian law reform office’s hands and has not yet been discussed or authorised.

The suppression of many centuries-old customs and behaviour, including polygamy and males engaging in opposite sex marriages as common African practices, is due to this. 

Several social activists are urging the judiciary to proclaim customary rules the nation’s highest law because of these social acts.

THE EAST

Many Eastern nations, including Arab states, frequently regard their customary rules as the ultimate law.

It’s crucial to remember that Eastern nations include a variety of countries, each with its own particular traditions and legal frameworks.

Typically, they are rooted in societal, cultural and religious norms and are passed down through generations.

Family issues, property ownership, conflict settlement, and social behaviour are among issues frequently covered by customary laws.
Japan’s ‘gd-h’ or ‘minkan-h’ customary laws have a lengthy history.

They deal with interpersonal interactions, family issues, inheritance, and property rights and were essentially founded on Confucian ideals.
India is a vast nation with multiple customary rules that differ according to caste, geography and religion.

For one, Hindu personal law, sometimes referred to as ‘Dharmastra’, specifies rules for marriage, divorce, adoption and inheritance.

Confucianism, Taoism, and Buddhism have all had a strong effect on China’s customary rules governing social order, familial ties, property rights and local government.

Although customary laws have mostly been replaced by contemporary legal systems in metropolitan areas, they still have some effect in rural communities.

It is also important to note the significance of natural customs as a tool to eradicate social ills.

Natural laws, also referred to as basic or universal laws, are frequently formed from philosophical or theological precepts thought to have an innate moral or ethical foundation.

They are said to represent fundamental truths and transcend man-made legal systems.

Confucianism, for one, places a strong emphasis on moral and ethical precepts as universal rules that need to govern how people behave.
Social harmony, elder respect, and filial piety are all seen as aspects of the natural order.

THE IMPORTANCE OF LEGITIMACY

It is vital to bear in mind that not all customary rules encourage outlawing same-sex marriages or support polygamous marriages, as customary laws can differ greatly across various cultures and geographical areas. 

However, in some communities certain customary rules may reflect traditional and conservative societal beliefs that may be biased towards same-sex relationships and encourage polygamy.

Customary laws may be biased in nations where same-sex marriage is not commonly recognised because of cultural or religious views.

These regulations may have their origins in conventional marriage and family ideologies that place a high value on heterosexuality and fertility.

Under such customary rules, same-sex relationships and weddings might not be recognised or might even be illegal.

Polygamy, which involves having numerous marriages at once, has historical and cultural origins worldwide.

In certain countries, customary rules may even promote polygamous unions, especially when it is seen as a sign of social standing.

These laws can establish the rights and duties of the people involved and provide polygamous relationships with legal recognition and protection.

Because national or international legal frameworks that uphold human rights and forbid discrimination frequently govern customary rules, the interplay between customary laws and more general legal systems can be complicated.

There is often a drive to amend or change customary rules to conform with the ideals of equality and non-discrimination as societies advance and adopt more inclusive values.

• Brian Ngutjinazo is a law scholar with special emphasis on public laws, and a social activist.