Reconciling Living Customary Law and Democratic Decentralisation to Ensure Women's Land Rights Security

"The recent Constitutional Court judgment rendering the Communal Land Rights Act (CLARA) unconstitutional must not be allowed to throw decentralisation policy making into disarray. Decentralisation holds much potential for lively, participatory democratic law making and enforcement, through which rural women can gain greater power and secure more rights. However, there are many challenges in the often fraught context of decentralized law and power. While the South African Constitution seeks to move South African law away from ‘despotic decentralisation’ towards decentralized democracy, recent government legislation seems to revert to the old model by giving extensive, state-endorsed powers to (usually male) ‘senior traditional leaders’ in rural communities. In this form, decentralization could allow arcane oppressive practices to go undetected, unmonitored and undefeated. Therefore, it is essential that all decentralisation policy be guided by constitutional principles. As the Constitutional Court reiterated in its recent ruling, the democratic process is integral to law making and democracy might be legitimately realised by using non-repressive indigenous law in land reform solutions. In this policy brief, we explore the guiding principles necessary to safeguard democratic decentralisation, and how state law and living customary law can be better woven together so that women can build on existing successes to secure rights and gain access to land."