Panel 1:  The Nature and Future of Customary Law 

A Survey of Customary Laws in Africa in Search of Lessons for the Future

Gordon R. Woodman

Emeritus Professor of Comparative Law, Birmingham Law School, University of Birmingham, Birmingham, UK 

Abstract:

In this paper, Gordon Woodman offers a broad survey of customary law in Africa in historical and contemporary times.  From this, he concludes that it is unlikely that the state can totally suppress the observance of customary laws.  Indeed, he asserts, attempts at modification alone are likely only to increase the divergence between state law and observed customary laws.  These customary laws will continue to change, and although some changes will make their content more similar to that of state laws, considerable differences will remain.  Attempts by state legislators or administrators to produce unification, that is, to assimilate customary law to state law will increase the extent of normative conflict (and possibly social conflict also). 

While it may be desired to move towards harmonisation, that is, to reduce the extent of conflict between state laws and customary laws, Woodman points out that the most effective harmonising measure may be a reduction of the application of received state law and state institutions.  Woodman acknowledges common arguments against this approach, referring to the example of gender inequality, which most scholars believe ought to be suppressed by the state.  Woodman advocates for a community-led process of harmonisation as a way forward.  His paper concludes that the desired changes in customary laws are perhaps more likely to be achieved by schemes to influence the course of social development than by a frontal assault through state legislation. 

The Future of Customary Law in Africa

Abdulmumini Oba

Senior Lecturer, Faculty of Law, University of Ilorin, Ilorin, Nigeria 

Abstract:

Abdulmumini Oba traces the historical erosion of the substantive and procedural aspects of customary law and asks “What does the future hold for customary law?”  Oba insists that one must make a distinction between Islamic law and customary law in this regard.  While Islamic law is enjoying a revival across the world and its proponents are committed to the institutionalization of Islamic law as a full fledged legal system, this is not the case with customary law. It is plain that customary law can no longer go back to its pre-colonial status as a full fledged legal system.  Nevertheless, the author identifies three areas of potential relevancy. 

First, some norms of customary law would continue to survive particularly in the realms of family law. Secondly, and more importantly, the author thinks that some norms and concepts under customary law will continue to influence the lives of Africans even if those norms and concepts are not consistent with State laws. These include concepts such as ethnic solidarity, collective responsibility, vicarious liability, and the use of juju oaths in informal dispute resolving processes. Thirdly, customary law norms and concepts could be introduced to the European style laws and court systems that are the dominating features of modern nation states in Africa. These could be reflected in the introduction of Alternative Dispute Resolution (ADR) mechanisms such the creation of family courts and simplified court procedures. Concepts depicting African values such the omoluabi (the well behaved person) concept could also replace tests such as the reasonable man in the law of torts. The African concepts of insult and disgrace would also probably reshape state laws particularly in the treatment of offenders.  The paper concludes with a discussion of challenges to the survival of customary law in the twenty-first century.  According to Oba, the greatest obstacles are westernized Africans at the helms of the affairs of their countries.  
 

The Withering Province of Customary Law in Kenya: A Case of Design or Indifference

George O. Otieno Ochich

Advocate of the High Court of Kenya, Lecturer in Law, Moi University, Kenya 

Abstract:

This paper offers an analysis of the ‘withered place’ that customary law presently occupies in Kenya’s legal system.  The application of customary law in the Kenyan courts has not been without controversy since the colonial times. The colonial government at first disputed the very juridical nature of customary law and perceived it as not being law capable of judicial enforcement. Even when the colonial government had begun to accept its applicability in courts of law, customary law could only be entertained in the very lowest ranks of the judicial system and it was subjected to very strenuous conditions of application. The judicial attitude towards customary law was that it was inferior to English law. So intense was the colonial influence that attempts at restoring the respectability of customary law in Kenya after independence have largely failed. 

The attainment of independence presented an opportune time for the Kenyan government to uplift the status of customary law in the legal system, taking into account the core position of customs in the social life of Kenyans.  Otieno Ochich argues that the government did not go far enough in re-affirming the fundamentality of customary law, instead settling for a modest compromise position. The place which customary law today occupies in Kenya’s legal system is a culmination of a compromise between the centrality of custom in African life on the one hand and the temptation towards a replacement of African customs with western law and ways of life on the other.  That compromise exposed customary law to multifaceted assaults over the years, the consequence of which has been to considerably reduce the scope of customary law in contemporary Kenya.  

How New Statutory Laws Regulating the Family in Sierra Leone Sit Together with Customary Family Law

Lotta Teale

GBV Legal Program Officer, International Rescue Committee, Freetown, Sierra Leone 

Abstract:

Lotta Teale and Amie Kandeh’s paper on family law in Sierra Leone provides a unique policy and implementation perspective on the future of customary law.  In their paper, Teale and Kandeh study and appraise the relationship between customary family law in Sierra Leone and the new ‘gender acts’, namely the Domestic Violence Act, the Registration of Customary Marriage and Divorce Act and the Devolution of Estates Act, all of which were passed by the Sierra Leone Parliament in June 2007 and which starts the process of the domestication of CEDAW, signed and ratified by the Government in 1988. Both authors played a leading role in the passage of the legislation, and are now at the forefront of the implementation process, working closely with government to ensure effective nationwide implementation.  

The paper provides critical analysis of the way that customary law deals with issues which are addressed by the Acts, such as domestic violence, and considers how the statutory and customary laws will sit alongside each other, both procedurally and substantively. In some ways the two complement each other, and the paper considers dynamic attempts that have been made to bring the best out of the two systems, utilizing international human rights principles, to work for individual clients facing family conflicts. In other areas though, confusions of law are already becoming apparent, and the paper highlights some of those challenges and suggest steps that could be taken to work towards addressing discrepancies. While clarifying some issues, this paper raises questions and comments on the implications of such rapid and far-reaching developments. 
 

Panel 2: Traditional Courts, the Application and Codification of Customary Law 

Traditional Courts in the 21st Century

Digby Sqhelo Koyana

Professor, Nelson Mandela School of Law, University of Fort Harere, East London, South Africa 

Abstract:

In this paper, DS Koyana asks, “Is customary law really law?”  He answers in the affirmative and contends that traditional courts run by the custodians of customary law are courts in every sense of the word.  The author considers the jurisdiction of traditional courts during the pre-colonial era and points out the impacts of conquest and colonisation.  Specifically, Koyana addresses the important issue of the recognition of traditional authority courts by the state under the new South African Constitution.  He focuses on the debate surrounding the Traditional Courts Bill presently before Parliament and concludes with a discussion of the future of customary law in South Africa and neighbouring country in light of this legislative development.  

The Quest for Customary Law

Janine Ubink

Senior Lecturer in Law and Governance in Africa, Faculty of Law, Leiden University, Leiden, Netherlands 

Abstract:

This paper discusses the difficulties for an investigator – whether researcher, lawmaker, (national or international) policymaker, or judge – to know, interpret, apply and build on customary norms that are of an unwritten, somewhat flexible character and that are continuously contested by local actors who try to shape them in their own interest. Janine Ubink shows that this is an issue relevant for officials in many African countries. To make these theoretical issues intelligible specific reference is made to a case study of customary land law in peri-urban Kumasi Ghana.  

The 'Code of Lerotholi': Using Custom as an Instrument of Social and Political Control in Lesotho

Laurence Juma

Senior Lecturer, Nelson Mandela School of Law, University of Fort Hare, Alice, South Africa 

Abstract:

The role that customary law has played in Basotho society remains as much debated as its continued relevance in this era of constitutional democracy. This paper, while arguing that the role of custom has not changed despite independence, critically evaluates the propriety of the Laws of Lerotholi, a code of customary law promulgated in 1903 under the tutelage of the British colonial administration and has remained in force today, and examines its influence on human rights as well as constitutional development since 1966. 

Traditional Courts in Malawi

Maureen Kondowe

Associate Partner, Wilson and Morgan, Blantyre, Malawi 

Abstract:

This paper first discusses the historical background that informed the establishment of traditional courts in Malawi. It then considers whether or not the abolition of these traditional courts was a good development in the light of recent calls by the Malawi Law Commission for their re-introduction. Given that the bulk of Malawian customary law is unwritten, this paper then analyzes the extent to which these courts achieved any useful purpose in terms of assisting with the codification of Malawian customary law.  Finally, this paper uses a case study from Tumbuka (a large tribe from Northern Malawi) to critically examine whether or not customary law’s basic principles on marriage, divorce and child custody remain valid in the light of the provisions of the Constitution, the Convention on the Rights of the Child (“CRC”) and the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”). 

Panel 3:  Chieftancy and the Role of Traditional Authority in Developing Customary Law 

Traditional Leadership and Governance in Modern Ghana: Challenges, Problems & Opportunities

Ernest Kofi Abotsi

Lecturer in Law, Faculty of Law, KNUST, Kumasi, Ghana

Paolo Galizzi

Associate Clinical Professor of Law and Director,  Sustainable Development Legal Initiative (SDLI), Leitner Center for International Law and Justice, Fordham University School of Law, New York, USA 

Abstract:

This paper examines the institution of traditional leadership within the context of the emerging constitutional democracy in Ghana. The authors discuss the challenges, problems and opportunities for the “institution” of traditional leadership within the broader agenda of nation building and national development. The paper considers the effect of the constitutional guarantee of the institution of chieftaincy, and evaluates the practical workability of guaranteeing the institution in a constitutional democracy. It offers an analysis of the juridical compatibility of the institution of chieftaincy with the core principles of constitutional democracy such as equality, accountability, good governance and respect for fundamental human rights. In addition, it considers issues dealing with the seeming insularity of the institution from the mainstream political process, and in this context, assesses the policy rationale underlying the effort at detaching the institution from the mainstream politics. Finally, the authors analyze the import of the dual allegiance of the citizenry to chiefs as traditional rulers on the one hand, and the government on the other.   

Demise or Resilience: Customary Law and Chieftainship in Botswana in the 21st Century

Wazha G. Morapedi

Lecturer, History Department, University of Botswana, Gaborone, Botswana 

Abstract:

Using both secondary and oral sources, the author defines customary law and shows how it related to chieftainship in the pre-colonial Tswana societies. The paper discusses the conflicts that arose between Batswana dikgosi and colonial authorities in the past as well as contemporary conflicts between customary and state institutions.  Morapedi argues, because of the adaptability of customary law, the institution of bogosi remained resilient and has continued to play a crucial role in the social and political lives of Batswana. The paper reveals that because of the nature of customary law, the institution of bogosi has been able to adapt to changing circumstances and maintained its relevance in Botswana society. Comparisons are drawn between customary law and the revival of the institution of chieftainship in other African countries such as Mozambique, Zimbabwe and South Africa. 

Traditional Authorities: Custodians of Customary Law Development?

Dr Manfred O Hinz

Professor, Faculty of Law, University of Namibia, Windhoek, Namibia; UNESCO Chair: Human Rights and Democracy 

Abstract:

Current UNESCO Chair of Human Rights and Democracy Dr. Manfred Hinz explains that by the end of this 2008, 17 Namibian traditional communities will complete the process of ‘self-stating’ customary law. Self-stating customary means that the communities explore their respective customary law and transform those parts of the law into writing, which they think should be written for the sake of clarity and certainty. The author’s observations from this project inform his conclusions about the potential of traditional authorities for the development of customary law. 

Customs and HIV/AIDS in South Africa: Engaging the Traditional Leadership as a Prevention Strategy

Amelia Vukeya

Attorney and Legal Researcher, AIDS Law Project, Johannesburg, South Africa 

Abstract:

This paper critically evaluates whether constitutional protection alone can assist in HIV prevention or whether the practical engagement between human rights organizations and traditional leaders is one way (or perhaps the most important way) of assisting developing countries in combating the epidemic. The author posits a number of questions.  Can this collaborative relationship address these issues in a manner that is sensitive and respectful towards cultural communities that can assist in preventing the spread of HIV? What is the role of government, civil society and the courts in ensuring the balance between cultural and constitutional rights? This paper addresses these questions in the South African context.  The author draws on her legal experiences as a lawyer and researcher at the AIDS Law Project.   

Panel 4:  Customary Land, Property Rights and Succession

Entrapment or Freedom: Enforcing Customary Property Rights Regimes in Common Law Africa

Sandra F. Joireman

Associate Professor, Wheaton College, Wheaton, Illinois, USA 

Abstract:

Sandra Joireman analyzes the enforcement processes that exist for customary land law in common law African countries in the post-colonial era.  Building on her previous work, she assesses who gets their customary rights to land enforced and who does not.  This is an unexpectedly complex issue as in various settings she finds NGOs, and gangs as well as traditional leaders involved in the enforcement of land rights and differential enforcement of customary rights to land based on gender.  She also assesses the role of state recognition of customary land law and customary leaders on the mechanisms for enforcement that exist.   Particular focus is given to the problematic impact of customary land holding and customary enforcement regimes on the property rights of women.   

Reform of Customary Law of Succession and Regulation of Related Matters Bill: The Final Nail in the Customary Law of Succession Coffin?

Christa Rautenbach 

Professor of Law, Faculty of Law, North-West University, Potchefstroom, South Africa

Willemien du Plessis

Professor of Law, Faculty of Law, North-West University, Potchefstroom, South Africa 

Abstract:

In this paper, the authors give a brief historical exposition of the development of the African customary law of intestate succession, and then provide an analysis of the decisions of various courts in this regard.  Lastly, they provide a critical analysis of the South African Reform of Customary Law of Succession and Regulation of Related Matters Bill in order to determine whether the Bill is reconcilable with the African customary law position as well as the South African Bill of Rights. 

Law, Gender and Pluralism: Succession Disputes in Kenya

Winifred Kamau 
Lecturer, School of Law, University of Nairobi, Nairobi, Kenya 

Abstract:

The law of succession in Kenya reveals the intricate links between statutory law based on Western notions of family and property, and customary law which embodies traditional family and property norms.  The Law of Succession Act, passed in 1981, aimed at providing a comprehensive and uniform code of succession and also sought to improve the status of women in Kenya.  The Act therefore attempts to secure a largely equal status for men and women, and uses gender-neutral language.  However, traditional notions of property ownership and control have persisted in the modern context of individualized ownership of property.  The complex interplay of tradition and modernity has favored men at the expense of women, and women have lost many of the safeguards that existed under custom.  This paper examines the ways in which decisions of Kenyan courts have perpetuated women’s disenfranchisement from family property while using legislation that is supposedly gender neutral.  The author contends that the courts lack a commitment to gender equality and have accordingly interpreted custom in a rigid way that fails to recognize custom’s dynamism and flexibility. 

Romancing Customary Land Tenure: The Neo-Liberal Suitor Wooing the Shadow

Janet Chikaya-Banda

Chief Law Reform Officer, Law Commission, Lilongwe, Malawi 

Abstract:

The author contributes a critical understanding of the seeming failure of the neo-liberal approach to deliver effective reforms to customary land tenure in sub-Saharan Africa and offers a reason as to why, with all the innovations in land policies over the years, effective customary tenure reform is proving to be elusive.   The paper is based on two founding arguments: The first is that the neo-liberal suitor has been wooing a “shadow” (to use Chanock’s terminology in reference to the “reconstructed customary tenure”) introduced by colonial governments and perpetuated by post-colonial states and the second is the lack of comprehensive analysis of “customary tenure” to expose its potentialities in embracing change, which has resulted in an acceptance of the myth that neo-liberalism and customary tenure are incompatible.  The author emphasizes the damage caused by the abrupt intervention of external forces to the natural evolution of this tenure regime and the resultant consequent of the inability of customary tenure to adapt to new innovations in sub-Saharan Africa. 

Panel 5: Customary Criminal Law 

State Systems of Criminal Justice and Customary Law Crimes

Thomas Bennett

Professor of Public Law, Faculty of Law, University of Cape Town, Cape Town, South Africa 

Abstract:

Criminal law is closely linked to issues of sovereignty and the state’s monopoly on the use of force.  Hence, the question posed in this paper is whether African states should continue to enforce customary-law crimes alongside the general law.  Few, if any, states have a clear policy on the issue.  South Africa is a case in point:  although the criminal justice system is assumed to be governed by the common law, courts of traditional rulers (which are competent to apply only customary law) have criminal jurisdiction, and, in a vague generalisation, s211(3) of the 1996 Constitution provides that:  ‘The courts must apply customary law when that law is applicable ….’ The author investigates the desirability of a dual system of criminal justice.   

Customary Criminal Justice System in Zambia

Matrine B. Chuulu

Regional Coordinator, Women and Law in Southern Africa, Lusaka, Zambia 

Abstract:

Even if the traditional courts are not recognized as part of the formal judiciary system in a country, or even if they exist and are not recognized by statutes, the customary criminal justice system exists and it does make a distinction between crimes and civil wrongs.  This paper contends that the traditional courts in Zambia are working justice systems despite the fact that they lack Constitutional recognition and the backing of the state machinery in enforcing their judgments.  The traditional court system is flourishing and is providing justice to the majority of the people.  The customary criminal justice system is important although it is not recognized.  The author argues that the customary criminal justice system is preferred by the people for a number of reasons ranging from proximity to the people, lack of delays in dispensing justice to being understood by the people.  Its sanctions are better appreciated by the people and it is praised for its reconciliatory aspect. 

Gacaca Courts in Rwanda: Customary Law Inspiring Effective Solutions to Cope with the Crime of Genocide and Crimes Against Humanity 
Elvis Mbembe Binda  
Assistant Lecturer, Faculty of Law, National University of Rwanda, Butare, Rwanda 

Abstract:

This paper offers a short background of the creation of Gacaca Courts in post-Genocide Rwanda.  The author discusses the organization, functioning and jurisdiction of these courts.  The paper includes challenges that Gacaca Courts have faced and continue to struggle with.  Lastly, the author identifies opportunities the courts present for the future development of African customary criminal law.   

Panel 6:  Customary Law and Gender Equality 

A Multi-Scalar Approach to Gender Equality and Customary Law Reform:  The Potential of Regional and Sub-Regional Human Rights Frameworks

Johanna Bond

Associate Professor of Law, Washington & Lee University School of Law, Lexington, VA, United States 

Abstract:

The right to enjoy one’s culture and customs is an important human right, one that is enshrined in the African Charter on Human and Peoples’ Rights and other human rights instruments.  At times, the right to custom and culture conflicts with gender equality rights, presenting a complex problem for human rights advocates who value both the rights to culture and gender equality.  Recognizing the importance of customary law, this paper explores the potential of the human rights framework to reform those aspects of customary law that perpetuate the subordination of women.  The paper takes a multi-scalar approach, including analysis of the transformative potential of human rights law at the international level, the regional level, and the sub-regional level. 

Customary Law and Resource Struggle in Kenya: Implications on Woman to Woman Marriages, 1890-1990

Babere Kerata Chacha

Lecturer, Department of History, Egerton University, Njoro, Kenya  

Abstract:

Literature on gender in Africa tends to view registration and privatization of land as a setback for women in terms of security and access to land, livelihood and resources.  It is often argued that customary land tenure systems were eroded and transformed in ways that were disadvantageous to women. In addition, commercialized agricultural production, privatization of land, land scarcity, urbanization, increased commercialization, and the expansion of non-agricultural incomes have lessened dependency on clan-controlled land and hence negatively affected women.  While it is true that these changes resulted in the expropriation of women’s land, in many cases women have not been total victims but have applied certain strategies to counteract their exclusion from full rights.  In this paper, Babere Kerata Chacha uses the Kuria of western Kenya as a case study to examine the use of custom in invoking same-sex marriages to give women ability to own property and access power. 

From Contemporary African Customary Laws to Indigenous African Law: Going Back Where We Came From

Fatou Kiné Camara

Associate Professor, Faculty of Law, Cheikh Anta Diop University, Dakar, Senegal 

Abstract:

Fatou Kiné Camara proposes a research methodology that enables scholars, tribunals and states to go beyond the apparent diversity of African customary laws in order to identify common indigenous core principles. The first section of the paper addresses the question of how to sift through the great amount of (contradictory) information available about African customary laws, the purpose being to enable researchers to distinguish indigenous laws from rules that were added or distorted through external influence. In the second section, the focus is on the different ways research results can be used to promote culturally meaningful socio-legal reforms. Two examples will showcase that point: female circumcision (removing a little skin without touching any tissue) as opposed to excision (female genital mutilation), and gender-parity in all houses of representatives as opposed to women representation in local and national assemblies being left to “chance” in the name of neutrality.  

Customary Law and Women’s Human Rights in Uganda

Dr. Ben Kiromba Twinomugisha

Senior Lecturer and Deputy Dean, Faculty of Law, Makerere University, Kampala, Uganda 

Abstract:

In spite of novel legislative attempts to promote gender equality, women in Uganda continue to suffer discrimination and human rights violations and abuses. Customary law and practices are used to deny women their human dignity.  The author addresses a number of questions. What is the relationship between customary law and women’s human rights in Uganda? What violations and abuses do women in Uganda face in the name of enforcing customary law? Are there any positive aspects of customary law that can enhance the status and dignity of women in Uganda? How have the courts in Uganda resolved cases involving a conflict between customary law and written law? 

Women's Rights and Customary Law

Noluthando Ntlokwana

Attorney, Women’s Legal Centre, Cape Town, South Africa 

Abstract:

This paper proposes that customary law and women’s rights are not mutually exclusive.  It is feasible for nations to protect both cultural rights and women’s rights.  However, there must be systems in place to address the inevitable problems of implementing conflicting legal goals.  Because customary law differs greatly between and within nations, the paper includes case studies of various nations, while focusing on the ways in which some customary law practices have traditionally discriminated against women overall.