African Codification

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The basic tenet of black consciousness is that the black man must reject all value systems that seek to make him a foreigner in the country of his birth and reduce his basic human dignity.
Steve Biko

The fundamental aim of this paper will be to provide a discussion on the codification of African Customary Law. To explore the effects of the codification of African customary law, it is important to critically assess it against a number of theories. Firstly, this paper will analyze African Customary Law by providing an insight to the concept, as well as relating it to the concepts of “Post”-Apartheid and codification. Secondly, it will move on to a discussion of the “Post”-Apartheid era by considering the Constitution of South Africa.
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Double consciousness is knowing the history offered up to black people—its many interpretations and echoes of white superiority and black inferiority, of white heroism and black cowardice, and even the temporal and geographical location of history’s beginning as a step off of the African continent—is a falsehood that blacks are forced to treat as truth in so many countless ways. Double consciousness, in other words, is knowing a lie while living its contradiction.” ― Steve Biko, I Write What I Like: Selected Writings.

Codification itself is a problematic term when used in relation to a fluid, unwritten law such as Customary Law. Why states favor the Codification of a Customary Law can be classified into three categories;
Firstly, to clarify the content of Customary Law to promote cooperation (the clarification thesis); secondly to enhance compliance through mechanisms such as monitoring, enforcement, and dispute resolution provisions (the compliance thesis); and thirdly, to define the content of customary rules for a state’s individual benefit (the capture thesis).

This is therefore recognizant to the fact that the reason for codification weighted against the impact that it has on the actual content which it aims to ‘correct’ and interpret are not directly correlated. To codify is to distort and to distort is to draw away from the meaning of the legal
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The codification of African Customary Law is essentially the process of degrading the legal system itself and proves that South Africa is not in fact, “Post”-Apartheid. Codification will be critically analyzed drawing on the insights of Critical Jurisprudence, Black Consciousness and African Philosophy.

The Constitution was the first generalized text which prescribed the rules and regulations for a peaceful “Post”-Apartheid dawn era. However the Constitution is a primarily based Western doctrine which is problematic when referring to it as the Supreme law of our country. Providing recognition for African Customary Law is evident through various sections of the Constitution. However, this forces an African perspective into a Western legal paradigm. The idea of modernity is subsequently quantified by the apparent need to modernize African law into a Western legal system. This ironic contradiction of the Constitution is supported by. It is evident that when looking towards a genuine Post Apartheid, the Constitution should not be merely assessed from the single perspective of a monumental doctrine, but the analysis needs to go deeper based on the premises that the Constitution is deeply rooted in the concept of modernity which is a predominantly Westernized
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