Browsing by Author "Diala, Anthony C."
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Item Balancing emancipatory legal pluralism and cultural relativism(University of the Western Cape, 2022) Gazi, Bonga; Diala, Anthony C.The concept of legal pluralism receives tremendous attention in sub-Saharan Africa. Notably, this attention arises because of the domineering tendency displayed by transplanted European legal orders now known as state laws. By demanding compliance with bills of rights, which are modelled on universalistic human rights that developed in Europe, state laws are steadily eroding the legitimacy of indigenous African laws. As such, a notable aspect of normative interaction in Africa is a struggle between indigenous laws and state laws. These struggles occur alongside socioeconomic transplants, which have steadily affected the normative behaviour of many Africans. Consequently, an assessment of the status of indigenous African laws is necessary.Item Comparative analysis of the legal framework for adoption under African customary law(University of the Western Cape, 2022) Akande, Titilayo Joan; Diala, Anthony C.While there is a comprehensive legal framework for the adoption of children under statutory law in Nigeria, South Africa, and Botswana, there is far less clarity on customary law adoption. This study explored how the legal framework of these countries provide for customary law adoption. It also examined the extent to which the rights of adopted children are protected, as mandated by international and regional human rights instruments. The study reveals that the legislative framework on adoption in the sampled states does not formally accommodate customary law adoption. Many children in these countries live in rural communities practicing customary law, with the majority of them being born in families that struggle with poverty and gender inequality. The violation of fundamental human rights of children adopted under customary law in some Nigerian communities is treated with contempt.Item Implications of patriarchal customs on the enjoyment of human rights by women and children in South Africa(University of the Western Cape, 2023) Ndivhuwo, Mudzwiri; Diala, Anthony C.This study argues that in South Africa, women and children lack sufficient knowledge about their human rights, specifically their cultural rights. Human rights are inherent in everyone simply because they are human. Human rights serve as the foundation on which entitlements and minimum standards for every individual are built. The essence of human rights is to protect each person’s dignity and promote their welfare, including those of women and children. This study focused on the implications of cultural norms on the rights of women and children in South Africa. It validated the findings of scholars on the implications of cultural practices on human rights.Item The shadow of legal pluralism in matrimonial property division outside the courts in Southern Nigeria(University of Pretoria, 2018) Diala, Anthony C.Scholarly interest in the co-existence of normative orders in African social fields tends to focus on conflicts arising from the interaction of customary law with state law. This article takes a different path by revealing the normative influence of state law on actors involved in matrimonial property division outside the courts in Southern Nigeria. Based on individual interviews and focus group discussions with female divorcees, their parents, clergy, traditional leaders, NGOs and social welfare officials, it analyses inequalities in property division under customary law, arguing that these inequalities often lead to ‘dignity takings’. It reveals how the Social Welfare Department, a government agency mandated to champion the interests of women and children, plays a prominent role in the privileging of gender, class and women’s dignity. Spurred by statutes, this department increasingly orders men to divide matrimonial property and/ or to pay compensation to women. Its quasi-judicial orders on marriage gifts, properties bought by women, and child custody potentially contribute to ‘dignity restoration’ for women infantilised by the customary law of matrimonial property. By revealing the driving forces behind shifts in the traditional philosophy of matrimonial property, the article demonstrates how non-judicial dialogue between state law and customary law facilitates a living customary law of marital property division in Southern Nigeria.Item Variations in the adoption of children: African versus Western Jurisprudence(2024) Aplane, Kelebogile Magan; Diala, Anthony C.During the colonial era, South Africa's indigenous normative order was subjugated by European laws, which led to a distortion of indigenous laws and the perception that Western jurisprudence was the supreme law. However, the validity of the imposed European laws is vitiated by the use of violence on indigenous people through colonisation. Indeed, this is the basis on which common law (Roman-Dutch law and Roman law) was imposed on South Africa. As a result, customary law has been subordinated and denigrated through colonial legislation, which relegated it, through the repugnancy clause, to be inferior to the common law.