Customary Law Essay
Then came colonialism and with the introduction of such things as the region law – common law, equity, statues, -they had profound impact on Customary Law. During the colonialism Africans were allowed to keep their customary law then there came integration period, there was a parallel system, where there was customary law and a parallel modern legal system with the courts and police etc. At one point the colonial governments established native tribunals which existed side by side with the modern legal structure.
Towards Independence there was a move towards integration, which was achieved after Independence, where every body of law was a subject to the same system, as we know it today. The question was whether this was prudent and whether we have to have a system of separate laws? We will also examine the reception clause and reception date. Reception clause relegates customary law to secondary position. What was the impact of the Reception of other laws on customary law? This question is asked because customary law is applicable so long as it is not repugnant to justice and morality.
Codification and restatements – because it is not a written body of law and it rests in the breasts of the judge, to establish it you have to prove it through evidence as a fact unlike other bodies of law, you must prove that that custom exists as a fact. In the period before Independence, the judges were the local people speaking the local language, who knew the customs but with integration the judges could be people who are not familiar with particular customs, and thus there was a suggestion that customary law ought to be codified so that it could be referred to by the courts.
The codification was the way forward or the approach adopted mainly by the French, Belgians and German. Restatement is reducing customary law to written form, it is not binding but a direction to the courts which would use it a guide and the debate then was out of two systems which one was effective. In Kenya we went for the restatements that is why we have the restatements by Dr. Cotran. In Tanzania they went for codification, however, the law is very dynamic, it keeps changing when you reduce it in to writing it becomes permanent and its
capacity to change is reduced and there is a danger that what is being enforced as customary law may not be customary law. The debate is whether we ought to restate customary law or codify it or learn about it from evidence. What is the nature of customary law, its limitations, how do you ascertain it and the issue of judicial proof – how do you prove the existence of particular customs? After that we shall consider the internal conflicts of laws.
The argument is that there could be a conflict between two different customary laws and when the conflict arises how do you resolve and what choice of law do you make for the law to apply in a particular case? After internal conflicts we shall look at the application of customary law in Kenya and statutory basis – Evidence Act, Judicature Act, Magistrates Act, Marriage Act, examine various decisions made touching on customary law and lastly we will consider the future of customary law. This will be the scope of the course.
To dissolve the marriage under customary law one may move the court by Plaint under the Magistrates Courts Act. Lecture No 2 Introduction: In most African countries customary law is the law that regulates the life of most people particularly in rural areas. For example, when it comes to matters on succession the law of Succession Act provides that the succession law that governs succession will be the one in the Act. But when someone dies the people follow customary law because succession is a personal matter, same for marriage.
A lot of people marry in church but still pay dowry, as a much as the church ceremony is sufficient to validate a marriage and again it is because marriage is a personal affair, this is because law reflects the values and the norms of a particular community. The fact that customary law is able to survive hand in hand with the statute is indicative that the statute does not reflect the values and the norms of the people that is why they still go back to customary law.
Succession Act was intended to replace customary law but in practice customary law still reigns supreme and that is why customary law of succession still applies to Africans who die without having made a Will. But when it comes to interpretation of customary law the Court of Appeal and the High court on a number of occasions ruled that the applicable law will be the customary law and that made the Act ineffective. That is why even in the case of marriage the Africans still comply with the requirements of customary law because the statute does not reflect the norms and values of people.
In the area of torts, the local people would report the matter to a clan leader then the principles of customary law would be used. The cases that find their ways to courts are mainly traffic accidents because the police is involved and the amount of compensation is lower than the one the courts may award. When it comes to land, which is unregistered, customary law applies and this also applies to the land under the RLA, when it comes to determining the issue of ownership. The question is whether we need the Land Disputes Tribunals Act, because the people who preside over these disputes are not
trained and these tribunals are disbanded. Customary law applies mainly to the poor and that is why many of African elite see these laws mainly as a liability and according to them these laws need to be transcended and replaced with statute law, they say that this law is a draw back to development. Thus the question is should we transcend it or incorporate into a statute and modernize it? The argument has always been that customary law seeks reconciliation and when you go to court you make enemies and that is how we look at it in the African sense.
Our legal system does not have structures that facilitate the development of customary law, the decisions of clans cannot be upheld by the courts because there is statutory provisions for that. Customary law is not what used to happen long time ago but what people customarily do today – you do not need very old people to get that evidence of it. Because what was the custom 10 years ago or yesterday may not be the custom today, because custom always changes but law does not change, you do not need evidence to prove law, but you need evidence to prove a custom.
The definition that was given to customary law by Western jurist is not the proper definition. Note that, the imposed colonial laws generally in Africa – Roman Dutch law in South Africa, Civil law in French Africa and Common law in Common law Africa are considered to be part of the problems in African states. This is because customary laws have been utilized by the political elite in Africa to reinforce their position as the dominant ruling class. Statute law has been imposed on the majority of the citizens of the new states.
The content of most of the statute law is colonial law – imported and transplanted from the colonizing power and most of them have been irrelevant to what the people do and to the factors that determine their life style. The elite in most African countries rely on the imposed law to reinforce their position in the society and they in most cases make a choice where necessary of relying either on the imposed law or customary law as it suits them. Customary law is referred to by a number of names in literature – native law, sometimes as native laws and customs, native customary law,
primitive law. Other times it is referred to as folk law, informal law in the sense it is not provided for under a statute and in most cases applied informally by informal tribunals. Other times as living law because it is the law that people apply on a day to day basis you do not wait for Parliament to pass, no – government law, peoples law, indigenous. The question of nomenclature: There is an ongoing debate among Africans on the conceptual question of nomenclature should we call it native, African indigenous or customary law.
The most common name is the customary law – law based on the customs of the people but what you will call it is based on your own preference. It is related to the family of laws composed of principles of moral philosophy and prescriptions of behavior recognized by the dominant groups within specific society. The dominant group would be the elders. In matrilineal society the elders are women and property passes from female relatives, that enables the female relatives to be dominant in that sort of structure. 04. 49 end
03. 18. p. m. Saturday Lecture No3 Genesis of African Customary law (whether it is indeed law): Customary law is usually defined as a body of customs and traditions which regulates various kinds of relationships between members in community. At various times customary law was defined using different names, the term commonly used by legislation was native law and custom. The person who has written most on customary law in Kenya is Eugene Cotran who feels that the term customary law is the most correct and appropriate.
He feels that native or indigenous law has some connotations, which are objectionable to some people and thus we should stick to the term customary law and not native law and custom. This is because calling it indigenous law and custom will imply that there are customs that do not have the force of law. Effa Okupa – a Nigerian, stationed in South Africa on the other hand prefers the term indigenous law because it is peculiar or indigenous to a particular community.
From studies in East Africa prior to Independence no attempt had been made in statutory law to define customary law and thus throughout colonialism the law just talked about the law and custom. After Independence the law of Uganda tried to give a definition of customary law. Interpretation and general clauses Ordinance of Tanzania gives the following definition: “Any rule or body of rules whereby rights and duties are acquired or imposed established by usage in any Tanganyika African community and accepted by such community in general as having the force of law” The key word is usage.
This means that the custom or usage must have been accepted to the extent that they have acquired the force of law they become firm rules that the members of community do adhere to. Why do you think for example, the payment of dowry is the rule of law? Because of the element of acceptance by the community. The key factors in determination whether the custom has acquired the force of law are usage and acceptance. The Uganda Magistrates Act says: “Customary civil law means the rules of conduct which govern legal relationships as established by custom and usage and not forming part of the common law nor formally enacted by Parliament.
” The Kenyan law does not formally define customary law, the closest to definition is found in the Magistrates Courts Act at section 2, which merely defines what a customary law claim under the Act means. Compare Nigerian legislation in Customary Courts law 1963 with the Ugandan and Tanzanian: “ Rule or body or customary rules regulating rights and imposing correlative duties ; or a customary rule or body of rules which obtain are fortified by established usage and which is appropriate and applicable to any particular
cause, matter, dispute, issue or question. ” Again from this definition we note that customary law means rules established by usage and having the force of law and excludes social and moral customs. A custom may be described as a continuing cause of conduct which by the acquiescence or expressed approval of the community observing it has come to be regarded as fixing a rule or a norm of conduct for the members of the community. For a custom to have the force of law it must be accepted or approved in the community as a rule of conduct.
Custom is seen as that which prevails amongst a set of people as a result of their consensus of opinion. It is said to be the embodiment of those principles, which have commended themselves to the general conscience of the community as principles of truth, justice and public utility. Some commentators have compared customs with the state law and said that law is what the state considers to be good and then enacts it as law, while customs is what is considered to be good for the community and it approves it and considers it as law.
Generally customs is associated with society while law is associated with the state but both of them are defined as what both society and state consider to be good and necessary for them. That is why customary law is called unofficial law because is not pronounced by the state, but by the community. The state may impose the law but somehow the society may find a way of conducting business in ways different from what the law requires. For example, the law of succession prescribes particular rules but the people still operate under their customs. So the customary law and the state law appear to operate parallel to each other.
Customary law is the consensus of the whole community while state law is what the state considers necessary and enacts, which the society may not find necessary and may decide not to comply with it. State law sometimes is not an expression of public opinion, while customary is the consensus of the opinion of the community. However, there are minority and weaker groups of people within certain communities upon whom even customary law is imposed, for example men are stronger in the community and thus they as elders can make law that suits then and may be disadvantageous to the female part of the community.
It has always been the argument that you cannot transplant law, that is why common law did not really take root in African Communities because law is reflective of values of people in respect with their norms and times and that is why we should find a way of incorporating customary law within our legal systems. We need to recognize these institutions in reality so that they exist side by side with the modern institutions instead of killing them.
Sometimes it reaches to the extent that the state is forced to change the law in Both law and custom are the expression and realization of the measure of society’s insight and ability and also of the principles of right and justice. Law embodies these principles as they commend themselves to the organized community (state) in the exercise of its sovereign power, while custom embodies its principles as acknowledged and approved by the public opinion of the society, rather than by the power of the state . When the state begins to evolve out of the society the law of the state is often modeled on the custom of the society.
Customs are usually divided into 2 : Legal custom – binding rule of law, independent of any agreement between the parties. The authority of a legal custom is absolute and for that reason it possesses the full force of law, for example the custom preventing widow remarriage. Are widows allowed to re – marry in the context of customary law? ; If the rules are to the effect that a widow cannot remarry is absolute custom the widow knows that she could not remarry, but in some customs the refund of dowry occurs and this was designed to prevent remarriage.
Conventional custom – operates indirectly through the medium of agreements. Its authority being conditional and agreement by the parties. In England the term custom is used to refer to legal custom the one with the force of law, while conventional custom refers o usage. Custom is seen as a source of law in a sense that customary law is generated by customs. The people in that community start by forming uniform practice and by virtue of uniformity it is referred to as custom then the practice gains the force of law by being stuck in the mind of people, when ..
-The common law is often seen as a child of custom . Traced to its medieval origin quite a lot of common law was custom. Judicial precedents and legislation evolved as new ways of creating new customs. Indeed customary law formed the basis for the emergence of common law system. Remember the common law courts were enforcing the law that was common in particular area and the decisions of those were followed and created precedents. The English legislature did not start as law making body. Its original role was that of an advisory body with some limited judicial functions.
It is role was to declare law – to evaluate and say that this is the law much as what the courts do today, look at the facts and apply the law and declare the law. This is why the House of Lords is both the Parliament and a court of law. In those initial stages the legislative role of Parliament was negligible and later it took over the task of legislating law. Therefore the common law is the product of customary law. Blackstone has described the common law as the common custom of the realm in the 16 th century.
In modern treatment custom has been subordinated to common law especially in England and various tests have been evolved to determine the acceptability of custom in the are of customary law as opposed to conventional custom. One of the tests requires that for a custom to be accepted it must have existed from the time immemorial – it must have antiquity. In England it must go back as far as 1189 but we can’t use this age in determining the custom. 10. 07. 04 Saturday 10. 07. 2004. Lecture No 4 Commencement of class at 03. 28 p. m.
Customary law has extensive general application as the body of law in Kenya. It is the law accustomed to which most people … their personal law matters such as marriages, custody of children, divorcee. During colonial days the view was held that customary laws were special laws, regarded as special category of laws used in governing natives. For that reason customary law was considered unimportant or given inferior status. Customary law was regarded as one applying to natives and was considered unimportant and was given inferior status compared to received English law.
What was ignored and overlooked that this was a law that governed over time the personal every day relations of probably 100% of the local population. In modern Kenya it probably governs 60 – 70 % of the local population with respect to their personal every day relations. Of course we do not have statistics on this subject. If customary law does apply to the greater percentage of the population it would be ridiculous to regard it as a special law and English law as a general law.
This is of particular significance when it is considered that up to 56 % of the local population are absolutely poor at least according to 2002 (56%) according to World Bank figures 56% of Kenyan live below the poverty line, many of these people are not able to take advantage of English laws and formal courts because of poverty and ignorance and almost entirely dependent on customary law. I think we need a lot of field work to support these figures. These figures are just an assumption. Whether African Customary law is really law? There is generally a continuing bias, particularly in Western literature against anything related to Africa.
African laws and African jurisprudence have always been dismissed as non – existent and the modern prescription for all aspects of African existence have tended towards derogation of anything African. There has been this tendency to move away from African Institutions and something that should be discouraged and this is not just limited to African Traditional medicine, but it also includes law. This has been due to the fact that African law had not been written although a lot of it has been reduced to writing in recent years but the bias remains. As soon as the Europeans arrived in Africa Africans were declared to be
unlettered, uncivilized and devoid of any proper legal and political structures. Remember the issue about the white man’s burden to come and civilize the people of Africa and give them a way of live and in their opinion Africa was waiting to subjugated and civilized. We are adopting this approach of examination of customary law in order to appreciate the current state of customary law. …Indeed it is traced in ancient Greece and Rome. A number of leading Western Scholars like Hume and Emmanuel Kant held the view that Africans by virtue of their blackness were precluded from reason and civilization.
Hume is recorded as stated that there is no civilized nation of any complexion other than white. These attitudes that influenced the West perception of African Customary law. Indeed literature refers to the inhabitants of African continent as Savages. Missionaries for example to a large extent are responsible for irrational information about customary law. Western lawyers were late in coming to the study of African customary law with the approach that there was nothing legal for lawyers to study in Africa.
They were more interested in imposing their legal system rather than studying the local system and integrating it into their system. The restatement project started with the view to preparation to the integration of the customary law into the English system for the preparation of the dual legal system. An author by the name Derrett indicates that the earliest scholars of comparative law were not at all interested in African law and did not recognize it as a legal system. Indeed a lot of the work done in African customary law in early 20the century was done not by legal scholars but by anthropologists.
The negative assumptions of the African customary law relate also to the present to the effect that post – colonial Africans have really nothing of worth in terms of religious or cultural traditions to fall back on. We see ourselves more as Christians rather than African Traditionalists and there is not tradition that Africans can rely on as Africans. For that reason it has always been assumed that the only viable way of development was to modernize African and African in more or less along Western lines. We have to copy the paths that the West had followed.
All views that traditional Africans having no proper laws and did not recognize African law as a popular system of laws. Most Western legal scholars were grounded on the positivist legal philosophy, which views law as a command from a sovereign. Most AFRICAN Legal systems were not modeled on the principles of positivism and therefore in the eyes of positivists African legal systems were not proper legal systems. The early visitors to AFRICA found all sorts of legal systems in operation but they did not recognize them as such.
It was not law to them because it was not a recognizable system to them it was a vast jungle of local laws which were not visible as laws or legal system. The laws they found were oral and not dependent on documentation and the same relied on non- legal sources. To these Western Scholars these looked like cultural norms and ethical habits but not laws, because they were not written and documented they appeared to be cultural habits and norms and for Western scholars a law must be written and that us why Islamic law is regarded as superior to African customary law.
Because of these approaches AFRICANS are encouraged to copy Western or Muslim systems of law in order to develop in to civilized world. Okupa argues that Africans had law before the advent of colonialism and justice ruled and that is why there was not anarchy. She quotes records of geographers and historians who visited Africa before the Europeans and who noted that African Kings were renown at the time for their sense of Justice. She concludes that African communities had a way of formulating their own laws and setting out the basic legal principles to meet the communities needs.
Anthony Allott who has done extensive work on African customary law reckons that Western jurist came across African legal systems they found that they did not match Western laws and legal systems and concluded therefore that they were not laws and that the societies they found did not have recognized laws. According to Moore no society is without law, every society has law and all significant social institutions also have a legal aspect, whether we are talking about marriage as an institution or others they all have legal aspects.
Remember that when the Europeans had come to Africa they considered that dowry was primitive customs. Alott concludes that the unwritten nature of African Customary law did not mean that there were no laws in Africa, he states that there were in fact well recognized principles and rules if law and even specialist in legal theory and procedure, he further states that African law was formal, for example, the law relating to marriage, transfer of property , disposal of estate. These were formal laws, clearly discernable laws. He concludes by saying that African customary law was by all means law.
African Customary law under the Reception of English law (because it is the Reception that classifies African Customary law and sets the test of repugnancy) The most common feature of the general legal systems of Common law Africa is that it is largely based on the English legal system. This can be explained by the fact of the respective country’s legal history and in light of the political history of those countries to understand why these legal systems are based mainly on English law. There are 3 main phases of periods in the legal history of Tropical Africa: The pre-colonial period;
Colonial period; Post colonial or independent period. Pre-colonial period: With regard to Pre – colonial period, before the arrival the Europeans indigenous legal institutions were the law. These institutions were for the most part customary in origin and type. There was also to be found a certain amount of legislated law, particularly in the centralized Monarchies (Kingdoms in Uganda, South Africa – the Zulu, Central Africa – where law was handed down by the rulers and also in the Islamic areas, particularly in West Africa)
Indigenous customary laws were not uniform, there were points of similarity, which transected ethnic groupings, but there were also enormous in structure of the laws and contents. These variations were brought about by different stages of economic and political development, different social and kinship systems or different religious believes and different cultural practices of the society. One basic characteristic, which was common among the communities, was that the laws were largely unwritten.
This had important implications on the way the new rulers were to handle the preexisting laws in their colonies. They were mainly subordinated to English and Islamic laws. The hesitating recognition given to customary law and the tendency to separate its administration from that of imported law were mainly due to the unwritten character of customary laws. During much of the colonial period African customary laws were administered by the Native Courts, which were regarded as part of the Provincial administration thus they were not seen as the part of the country’s legal system. Colonial period:
Regarding the colonial period each new power introduced its own legal system or a variant of it as the fundamental or general law of the colony. This clearly meant that of English law was the fundamental law then customary law was reduced to subordinate law. The second thing that occurred during this period is that the colonial power permitted and regulated continuance of African law and African judicial institutions, except where they said that law and institutions run counter to the demands of colonial administration or where they were thought to be repugnant to the civilized ideas of justice and humanity.
This general approach was also the approach adopted by the British colonial government in Kenya. The British in seeking to develop a legal system in Kenya faced the basic problem of developing a legal system that would embrace the whole country. This was compounded by a number of factors: Factors that affected the development of unified legal system in Kenya: The presence of difference races in Kenya and the existence of conflicting ideas amongst them regarding the laws that should apply
The presence of difference races in Kenya and the existence of conflicting ideas amongst them of what ought to constitute the legal system of the country. The Muslim population at the cost wanted their own legal system preserved, while the in-coming British settlers were insistent on being entitled as of right to the English legal system. The Africans had not say and the Muslims had a say because of the arrangement of sale of coastal strip of Zanzibar.
There were also Hindus another Asians. There also existed conflicting policies: The colonial policy at the time was to introduce a legal system of justice that would have a civilizing inference, the thought was that the local population was not civilized. However, there were short of staff, there were not enough European officers on the ground and for that reason the colonial government was forced to maintain and preserve traditional institutions.
That is why it was not possible for them to destroy the existing traditional system of justice and that is how we ended up having dual legal system. End of class 05. 55 p. m. xcv Saturday 24. 07. 2004 SOAS – School of Oriental and African Studies Lecture No 5 African Customary law and the Reception of English law: We are looking at the phases in legal history of Kenya in an effort to explain the status of customary law today. We saw that customary law applied to the people of Kenya and the introduction of colonial law begun to crepe in.
And then we looked at the factors that compounded the implementation of the English law because there were a number of different people living in Kenya and they had their own bodies of law that governed them. The Europeans wanted a system of law that they understood but it was not possible at that time because there were no enough officers on the ground to carry on the system. The conflicts that characterized the advent of colonialism dominated legal developments in Kenya for most of the colonial period and they manifested themselves mainly in 3 ways:
Conflicts that dominated the colonial period of law development: Disputes as to which of the 2 systems should apply to Africans: In the confrontation between the indigenous legal systems and the colonial systems of justice (the intention of the colonial government was to replace African customary law with the English law, this was championed by the judiciary because they were not equipped to apply customary law since they received training in English law and whenever they were called to decide the disputes involving Africans they preferred to apply the English law even though the majority of the population wanted to resolve their disputed in the ordinary courts of law and thus there were disputes which of the 2 systems of law should apply to Africans. Division in the administrative and judicial approach to the administration of justice: There was division in the colonial government regarding the most appropriate approach to the administration of justice. The judiciary was uncomfortable with the system where customary law was applied through administrative structures (because in their opinion there ought to be separation of power but when the law is in the hands of the administrative authorities there was no separation of power).
But the administrative authorities were of the opinion that separation of power was something alien to the Africans and that the court system was assisting them in controlling the population. Their decisions were that the administrators could enforce their decisions by the native tribunals and thus there was a clash of these 2 arms of government in this period. Segregation of the legal system: The conflicts were manifested in the segregation of the legal systems – different systems applied to different races and the institutions that applied the law were also segregated. Reconciliation of colonial and indigenous systems: A clearly definable pattern appeared and the early years of East African Protectorate saw greater preoccupation in reconciling the colonial and the indigenous of the 2 systems. In the middle age of coloni