THERE HAS NEVER BEEN ONE CIVILIZATION BUT A COMPLEX OF CIVILIZATIONS INCLUDING AFRICAN CIVILIZATION
African customary law debate has been persistent for almost a Century but no clear solution has been found yet by law scholars. It is now the right time to revisit the controversial family of law that seeks to survive. Some authors omit the word African and leave it at “customary law” to avoid many nasty questions from the Anti-African sentiments. This blog has decided to bring to the social media debate the discourse on the future of African customary law.
Why should the former European colonies abandon their own legal history, legal culture, legal philosophy, legal anthropology and legal sociology? Has it done favor to a continent whose identity has been dwindling for almost a century?
I am rather interested in the popular expression used by Dr. Koffi Annan, “African problems require African solutions” during the peace mediation in Kenya in 2008. But what are the African solutions to African problems? How do we come up with African solution when we do not have African jurisprudence? What do we intend by African solution?
African customary law is concerned with the social rules that Africans have been using to ensure law and order before the conquest of the European imperialists and after. Legal culture in the African traditional societies did not cease with the imposition of the received European laws in the continent. Such societies were well organized around their political leaderships. Some were empires, kingdoms, chieftains, clans and families. In such traditional set-ups, Africans had clear knowledge of rights and obligations. The blame of African customary law has been, it is law without legislators, no clear enforcers (police) and no literature. However, the unwritten law has a proper judicial process that many law scholars have recognized as sui generis judicial system. The understanding of justice from the African customary law is built around restorative justice other than retributive justice. Africans believed in the social harmony and law was not meant to divide and split communities but to solidify them around values. Unfortunately, many African lawyers, jurists and practitioners today have no clue about African customary law and how to accommodate it within the new regimes backed by human rights, constitutionalism and the rule of law.
The assumption that only the written version of law is law has been misleading and many law scholars have to some extent agreed that both written and unwritten law do co-exist. This is what makes African legal systems uniquely valid. Almost all African states accommodate plurality of laws that seem to work side by side to ensure the administration of justice. In highly ethnic social set-ups, many Africans still uphold the law they refer to as their own. In Kenya, African customary law survives in communities that are the rightful custodians. Pastoralist communities occupying semi arid and arid lands are faithful to their traditional legal systems. Such communities are strongly united around their elders or community and family and clan leaders. As if this reality does not hold any water in the 21st Century, some communities still stick to their traditional marriages, dispute settlements, and traditional legal practices despite the articulated state formal laws.
The Republic of Uganda went as far as re-instating the ancient regimes such as Buganda, Busoga, and Butoro Kingdoms. The societies that were organized around their chiefs and elders have been recognized as well by the constitution. Such restoration of African legal regimes shall form a basis for developing a strong African jurisprudence that the formal state can always rely on when African solution is needed to solve African problems.
What is now emerging as African interpretation of democracy, human rights, rule of law and economic development is full of sensitive challenges that could not be handled without reconsidering the African input. It is this process that persuades most of us who are interested in the African jurisprudence to do more research on African legal systems.
The new statehood presents to people corrupt leadership and weird way of looking at human life that leave Africans more confused. Dictatorships were not regarded in the African traditional systems. African monarchs were built around concrete value systems that people agreed to. It was not an imposition. Such awkward behavior of a leader to rig votes, stick to power against the will of the people, impose his policies to corrupt citizens are all fruits of the adopted systems. Many African leaders today had experience with the Western conception of democracy and also corruption.
If Africans are to claim any civilization at all, then African ideas must be given priority in the modern systems. The reality on the ground is that the clashing between civilizations has been real in Africa. Yet Africans have not stopped considering themselves as a people with certain values and standards that could be equally considered as solution to African problems.
It is clear that Africans have powerful concepts of human rights that should not be taken for granted. Such systems as the sense of community, extended family, socialization, marriages, and notions built around oneness are not opposed to “humanity”. It is not correct to persuade others to believe that Africans never had any notion of human life, dignity and human rights.
Efforts to revive African customary law shall be the way to come up with strong African solution to African problems. Cultural approach to the understanding of the rule of law and administration of justice is a need whose time has come. It does not mean taking the force away from the formal statehood but to compliment what is already there. Globalization has given us also a period of transformation and innovation that we should not wish away. Cultures are now penetrating various sectors of our global systems and African legal culture should not be underrated.
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