African Customary laws and the new constitution of the post-apartheid South Africa: A case study of the African Traditional marriage system and the civil union act of 2006

Abstract

This article was conceived within the framework of human rights for Lesbians and Gays as stipulated in the  Constitution of the Republic of South Africa and its conflict with African Customary laws. The cornerstone of  the new Constitution of the Republic of South Africa is the Bill of Rights. The Bill of Rights enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The Bill of Rights also states that the state must respect, protect, promote and fulfil the rights in the Bill of Rights, (Constitution of RSA, 1996). In 2006 parliament passed a Civil Union Act regulate the same-sex marriages to allow people of the same sex to be married and put in par with heterosexual marriages. The Civil Union Act however has been seen to be in conflict with African Customary Law with regard to marriage. The purpose of this article within the broader study of Social Policy is to examine how some policies of the state can be seen to be in conflict with values of majority, within the society. In the case of this article, those of the African majority versus various rights of the minorities as guaranteed in the Constitution.

Keywords: Constitution, Bill of Rights, Human Rights, Gays, Lesbian, Civil Union Act, homophobia, Social Policy.