Chapter 10
Customary practices and HIV/AIDS
For many people, customary law is the most important law in their lives, controlling areas of their lives like their marriages, their property, and their right to inherit.
But some customary laws discriminate and make people vulnerable to HIV and AIDS because, for instance, it traditionally gives women less power than men. Various customary practices have been linked to HIV and AIDS e.g. ritual male circumcision, healing scarification and virginity testing.
Customary law is the written and unwritten rules which have developed from the customs and traditions of communities. They are laws that apply to certain cultures or ethnic groups. The ordinary courts use customary law. For customs and traditions to become law, they must be:
- Known to the community
- Followed by the community
- Enforceable (able to be carried out)
Three important ways that the Constitution and Bill of Rights have changed the way customary law is used:
- Customary law must be in line with the principles in the Bill of Rights. The Bill of Rights protects the right to culture, but it also protects the right to equality and non-discrimination, and the right to dignity
- Identify cultural practices that deserve to be protected because they do not discriminate and those that should be done away with because they discriminate unfairly.
- Customary law should not be used to discriminate