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Distinction between custom and statutory law

Colonization initiated the process but did not accomplish it!

I invite you all to read my forthcoming book on African law and Developing an African Jurisprudence. This blog story is not to pre-empt the content and discussions in the book but to broaden the academic debates around African Customary Law and the Modern State Law.

Some of the critical African social and economic problems are perfectly related to the legal systems adopted by respective modern states. Almost all the formerly colonized African states adopted and adapted legal systems of their former colonial masters. There is no doubt that former British colonies adopted English Common law in their state laws and legal practice. The same applies to French and Belgium colonies that inherited Roman Civil law legal family without questioning its suitability with the understanding of justice by the African communities. Islamic states have adopted and adapted Islamic law and its roots as part of religion, politics and law. What then can we say about the African jurisprudence? Most of it you will find in my book that is published by Law Africa Publishing found in Nairobi.

It is a fact that many African modern states except South Africa have managed to realize the role of African customary law. In 1993, South African constitution gave African customary law the same valence as English common law. The Republic of Kenya changed its constitution in 2010 and the new book of law has no proper provision for African customary law. The articulation of customary law is only seen in terms of inconsistency of African customary law. There is nothing much about the customs as was seen in the repealed book of law.

Customary law has been regarded by English jurists of the 12th Century as customs and practices from time immemorial. We ought to agree that no one has ever come up with a universally accepted definition of law. Legal scholars have made various attempts to explain what the word law would entail. However, a shared idea about law is its coercive characteristic. Law must have binding effects on its subjects. Customs are also binding but not that all customs are law. Such things like beating the drum in a village to inform the villagers that a member of the community is dead is not law but custom (see Prof. Elias Taslim Olewale – a Nigerian jurist who wrote on the Nature of African Customary law in 1956). Customs function in very special circumstances – and courts apply equity other than finding winners and losers.

In Kenya, lawyers tend to stick to the formal law other than customs. The practice does not mean that customs are not law. Rather, legal realism and practice shows that law is not an abstract construct of mind but a social reality that belongs to cultures. There is no way Kenya legal system can run away from its legal culture and that is what is found under Art. 3 of the Judicature Act of 1967. African customary law is regarded as guiding principle for the High Court on civil litigation but not criminal proceedings. But what is the custom?

Instead of answering this question now, my interest is to reveal why our legal system is weak and why justice apparatus is limited in its operations. The formal law has nothing to do with social, ethical and economic values. It is all about the positive law or the written law and that is all. Justice does not only operate around the confines of the law but it takes into account several facets of human life in a community. The medieval jurists beginning with Francesco Suarez in the 19th Century, custom must have law making power, but this is based on the community. It is the community to decide on which custom binds them and the sanctions that would follow thereafter.

Customs conform behaviour. A member of a given community is bound to respect and obey customary rules. For instance, the behaviour of swindling public funds is not acceptable by the community. A member found taking bribe or swindling public funds would not only be punished by the community but also humiliated and disgraced. Such moral punishments can only be well served by customary law but not the written law. It is also argued that the formal law is adversely corruptible whereas the customary law is more concerned with the community adjudication.

Social values such as families, the value of an individual and his or her entitlement in the community can only be instigated within a given community. Written law insists more on the individual rights other than communal rights. This way of understanding law has only weakened public institutions. It has created a leeway for runaway crimes and making legal practice one of the most lucrative businesses in Kenya. It is in this understanding that some practicing lawyers make quick wealth and engage in corrupt deals with court officials to circumvent justice to favour their client.

Notwithstanding, legal culture has not appropriately taken into account by the legal systems in many African states. This comes with political turmoil and disrespect of constitutions and statutes. In disregard of the legal values found within the African cultures, it is evident that it is not easy to prosecute some crimes in Africa today. The reason is that African customary law which should guide the courts has been ignored to an extent that it has become inconsistent and dormant in the legal practice. However, remember that people still practice and observe their customary principles and laws. There is so much that I invite you to read from my book in order to realize how important the integral legal system is.

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About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

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