Law in Africa

African customary law is derived from the traditional customs and practices of the various indigenous groups of Africa.[18] Due to the diversity of traditional practices originating from many tribal populations, African customary law is not a uniform set of customs of any given country, rather there are variations between regional areas depending on the ethnic origin.[19]

The establishment of the Native Courts and the formal introduction of customary law was a revolutionary development in Africa; however, the official codification of such unwritten laws occurred after decolonisation.[20] For many years post-independence, the customary law governed personal matters and communal issues such as disputes on land possession and appointing a successive chief.[21]

As the philosophies of customary legislation promote the integration of reconciliation, social justice and restoration of tribal groups,[22] there is rising support for customary law and its capacity to better accommodate for the values of African citizens and their social experience.[23] With the adoption of statutory features, customary law is now becoming better reflected into the formal legal systems of the African states, induced by the need to conserve traditional customs that have been repressed by colonial experiences and the rising advocacy for cultural rights.[24] Subsequently, the mechanisms of customary law are becoming more widely implemented outside of small communities for civil and criminal matters through its traditional justice system.[25]

However, the employment of customary law differs greatly between nations and this is based on conditions for human rights and conflicts with the western laws employed. For example, Kenya has abolished its customary criminal laws, retaining only offenses surrounding marriage relations,[26] due to inconsistencies with the British common law system.[27] Despite this, Kenya has been proficient in the codification of laws from different tribes and local communities, though not to integrate them into their current legal system, but rather enable the possibility of translating cultural customs into a more contemporary form.[28]

Alternatively, a polycentric legal system, called Xeer developed exclusively in the Horn of Africa more than a millennium ago and is still widely used by the Somali people. Under this system, elders serve as judges and help mediate cases using precedents.[29] Xeer is a good example of how customary law can work in lieu of civil law and is a good approximation of what is thought of as natural law. Several scholars have noted that even though Xeer may be centuries old, it has the potential to serve as the legal system of a modern, well-functioning economy.[30] [31] [32] The Xeer also shows how influential a system of laws can be with regard to the development of a culture. According to one report, the Somali nation did not begin with the common use of the Somali language by the Somali clans, but rather with the collective observance of Xeer.

The basis of western law in Africa is characterised by the English common law and continental European civil law. Following colonisation, many foreign governments retained the pre-existing native laws by which Africa’s dual legal system was produced.[33] As the imported laws took precedence, over time, even local courts in the English metropoles employed tax prosecutions and British disciplines surrounding work and labour contracting.[34]

The African common and civil law remains relatively similar to what has been left behind by the colonising powers, though the employment of such laws varies between nations.[35] Currently, the formal courts greatly contribute to how the rule of civil or common law is maintained in each nation.[36]

Derived from Roman traditions, the European systems of justice were characterised by the objective to expand an empire and regulate the citizens via the inquisitorial system.[37] In court, this system requires the judge to actively participate in settling legal matters by gathering evidence and hosting witness testimonies to make an informed conclusion of the truth [38]
Comparatively, the introduction of common law from British colonisers employed the notion of protecting individual rights from the state through an adversarial system of justice.[39] Formal debates take place in the presence of a jury and judge, but unlike the inquisitorial system, the courts established under common law only require the judge to oversee the opposing positions on the case and make an informed decision on the evidence presented to them in court.[40]

A comparative study by Sandra Joireman in 2001 between the two western legal systems in Africa, found that the British common law systems are more effective in providing their rule of law than the European civil law practices.[41] Joireman explains that this difference can be attributed to the differences in economic status between African states, as the gross national product per capita is a strong indicator of a nation’s ability to train its judiciary and by consequence, establish its legal institutions. Additionally, a better colonial experience under British rule and greater native knowledge on their policies have also been identified as plausible explanations for this difference.[42]

The absence of such juridical security prompted the establishment of the organisation for the Harmonization of African Business Laws (OHADA), following a treaty signed between francophone African countries in October 1993. Its objective surrounds the need for a “modern harmonized legal framework in the area of business law in order to promote investment and develop economic growth”.[43] The organisation’s strategy is currently involved in studying the common features between the different legal systems in African and how to overcome barriers to education in poor populations.[44]

Map of Africa that shows the distribution of the major religions across the continent in 2008

Islam, Christianity and African traditional religions are the dominant faiths in Africa with Judaism, Hinduism and Buddhism being exclusive to regions and their populations.[45]
In many tribal societies, religion is perceived as a product of Western colonialism, responsible for the diminution of traditional religious practices.[46] Hence, foreign religions are condemned in native circles and proscribed from the customary laws and institutions that they follow.

During British and European colonisation, Christian laws were introduced by missionaries, until eventually, courts began introducing Christian marriage principles.[47] While the imported constitution was employed in association to Christian belief, most African nations today separate the church and state to best accommodate for the freedom of religion.[48] However, in many circumstances, such as community service, the state and church often collaborate due to common interests.[49]

Islamic law is prevalent in numerous African nations in the form of Sharia Law which follows the teachings of the Quran.[50] The relationship between Islamic law and the formal national legal system, largely depends on the state. In the past, the integration of Islamic Law and national law were deeply rooted, by which the Sharia court appeals were taken to High Courts.[51] Over time, legal reform reduced the involvement of religion in legal matters. In northern Nigeria, a Muslim country, the Islamic criminal laws were abolished in 1960, but some common Islamic offences such as drinking alcohol and unlawful sexual intercourse adultery were retained in the revised system.[52] This was followed by legal reform in Kenya, Tanzania, Ghana, and Uganda where legal matters of marriage, divorce and inheritance were no longer regulated by Islamic practice [53]