Constitution should reflect national aspirations � expert

Bame Piet | Friday August 11, 2017 15:34

Addressing multitudes of participants at the Southern African Development Community (SADC) Lawyers Association conference yesterday, Justice Zak Yacoob said many African countries inherited Constitutions from their Western colonisers and such documents have demonised African cultures and customs and the customary law.

He said whilst the Constitution is the supreme law, it is unfortunate that many SADC countries have abandoned their customary laws in favour of Western values emphasised in their Constitutions.

“The Constitutions of Namibia, Malawi, Zimbabwe and Botswana emphasise Western oriented individual fundamental rights. They do not emphasise the collective, they do not do anything that ensures that African values are regarded”.

He said this is a problematic approach that has potential to keep Africa in a state of confusion and should be debated.

He said African lawyers should find a way to reconcile the customary law with the Western Constitutions that African governments have adopted. He said that the customary law has for many centuries served Africans since they recognise almost all the fundamental rights that are prescribed in democratic constitutions.

“There is nothing in customary law which is inconsistent with dignity, equality, and freedom.

There is nothing in our customary law which is anti-freedom of speech or association. There is nothing in our Constitution which prevents things being done for the collective and for all,” he said.

Yacoob argued that there are people in Africa who still believe in the customary law, who should not be ignored since they are the same people who vote and put governments in place.

He cited South Africa as a good example where people believe that African customary practices should be applied even in modern democracies, especially when such laws discriminate against others in society. He said that where customary law is inconsistent with the Constitution, then it should not be accepted.

Yacoob said that with the rule of law, the systems of separation of powers are a complex practice that can only apply when the laws of any given country are good and where social, political and economical rights are recognised.

“But the important thing now is that it is not governments alone that decide on issues like health, housing, education and so on.

Our Constitution makes it obligatory for the government to take reasonable legislative measures to ensure progressive realisation of these rights and many decisions have been made in relation to housing, health and other fundamental rights”.

He said Africa has many suffering people, many collapsed systems and governments must be held accountable to ensure humanity is taken into account in decision-making processes.

“Imagine the life of a person who has no food, no shelter, no water – it is impossible to imagine how that person is going to make a good decision in voting, freedom of expression, freedom of religion and other freedoms”.

He urged governments to include social and economic rights in their Constituions.