The anatomy of African jurisprudence: A basis for understanding the African socio-legal and political cosmology
Authors Dial Dayana Ndima
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 1, p. 84 – 108
An examination of the anatomy of African jurisprudence reveals a thought system whose institutions relied on the convenience of maleness and manhood in the appointment of functionaries. In the context of an agrarian traditional society, this so-called principle of primogeniture provided much needed benefits associated with accountability, responsibility and maturity in the handling of the affairs of vulnerable members. Unfortunately, this principle was compromised by the essence of maleness, which blighted its efficacy. Virtually all leadership positions, including family headship and traditional leadership, were occupied by senior men. Womanhood was a sufficient disqualifying factor regardless of individual qualities and merit. This reality gave indigenous African law the undeniable label of a patriarchal system. As society changed, the shift towards the application of a non-sexist primogeniture principle developed among many families and communities, living mainly in the countryside. This development gained impetus from the advent of the new constitutional dispensation which provided the courts with the opportunity to nullify the discredited male primogeniture, thus paving the way for the adherents of African culture to appoint women as well, where appropriate. Hence sons and daughters now have equal chances to succeed their predecessors to family and traditional leadership positions in the post-apartheid customary law of succession.