Inheritance and Disinheritance: African Customary Law and Constitutional Rights

Journal of Religion, Vol. 88, p. 466, 2008

Brooklyn Law School, Legal Studies Paper No. 120

32 Pages Posted: 6 Oct 2008  

Nelson Tebbe

Brooklyn Law School; Cornell Law School

Date Written: October 3, 2008

Abstract

This Article concerns the conflict between African traditional rules of inheritance, which feature a rule of male primogeniture, and the post-apartheid constitution, which contains a strong guarantee of gender equality. While that guarantee must ultimately be enforced by the judiciary, this Article argues that the South African Constitutional Court's recent decision to strike down the central African customary rule for property inheritance carries a greater danger of backlash than has commonly been recognized. That risk is particularly grave under current political conditions, which are seeing a shift toward Africanization. Enduring change might more profitably be achieved by Parliament, by provincial and local governments, and by local communities themselves. A recent decision concerning inheritance of the chieftainship suggests that some African communities are already harmonizing customary law and progressive constitutional values. The Article ends by suggesting an approach that incentivizes localized reform, rather than commanding it in the first instance.

Keywords: South Africa, African customary law, gender equality

Suggested Citation

Tebbe, Nelson, Inheritance and Disinheritance: African Customary Law and Constitutional Rights (October 3, 2008). Journal of Religion, Vol. 88, p. 466, 2008; Brooklyn Law School, Legal Studies Paper No. 120. Available at SSRN: https://ssrn.com/abstract=1278056

Nelson Tebbe (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718.780.7960 (Phone)

Cornell Law School ( email )

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