Cultural values as a source of law: Ubuntu and the South African experience
Serges Djoyou Kamga (University of South Africa)
Paper short abstract:
This paper shows that the African notion of Ubuntu is a source of law in South Africa. It had informed the interim Constitution and then the final Constitution and had been at the centre of the South African jurisprudence
Paper long abstract:
For time immemorial, the cultural value which epitomises togetherness and 'caring for each other' in a community has been the way of life in various African communities including South African. Accordingly one is his/her brother/sister keeper. This philosophy which developed into a way of life has been a reality before the period of Enlightenment in Europe, considered as the beginning of the human rights discourse. In other words, prior to the Enlightenment era, the human rights discourse in the form of caring for one another was a live reality in Africa under the Ubuntu philosophy. The aim of this paper is to examine how the African notion of Ubuntu had been incorporated into the South African national legal system in order to foster respect for 'modern' human rights or to ensure that human rights are culturally embedded within the South African society. The South African model is chosen for a case study for several reasons: The country went through a peaceful transition from Apartheid to democracy for the application of Ubuntu; the latter informs the adoption of the democratic constitution in 1996, and the South African jurisprudence is charactersised by reliance on Ubuntu in numerous judgements. In making its case, the paper will unpack the concept of Ubuntu before examining its application as a source of law in the South African legal context.
Uncovering the merits of African approaches to foster democracy, human rights, and conflicts resolutions in Africa