Introduction: A Day in Court

A day in August, 2009, Aimable, a friend since my arrival in Rwanda, has asked me to join him to the gacaca where the killers of his family will stand trial. He was not in the country when the genocide started on April 6, 1994. Just a few hours before the airplane of the president was shot down – the catalyst event that started the genocide – he left the country. At the time, he was studying law in Kigali. During the Easter holidays, he and a girlfriend paid his family a visit. His friend had insisted on leaving the country immediately, totally in panic and without any clear reason. His family was angry about him leaving so soon, because they had not seen him for a long time. Three days later, his entire family was dead.

Introduction

The role of customary laws in the twenty-first century, whether in Africa or elsewhere, is of great theoretical interest. It is important, however, that the present discussion makes a contribution to legal development in Africa. I seek here to discern the lessons that can be learned from past experience of customary laws in Africa and that may assist in determining future policies toward customary law.

Introduction

Although the interaction between the western colonizers and the African indigenous populations in the early eighteenth and nineteenth centuries produced responses that were mostly inimical to the development of African customary law, the thrust of the onslaught against its principles was somewhat diminished by political considerations. Undoubtedly, the significance that African customary law acquired during this period was a measure of the purpose that the colonial project found in it. In the British-controlled areas especially, such a purpose was coterminous with the demands of indirect rule that saw the native administrators, mainly the chiefs, being coopted into the colonial civil service, and dualism being entrenched into the legal system. Nonetheless, the colonial project, based on racist and pluralistic foundations, still manifested clear goals of civilizing the “native” and gradually phasing out what it perceived to be “primitive” law. To achieve the dual purpose of civilizing the native and, at the same time, maintaining the political hold on the territories, the colonial project adopted an approach that sought a reinvention of African customary law so that its principles could support the smooth operation of the colonial justice systems. In some countries, this necessitated the codification or restatement of customary laws.

Introduction

One of the major achievements in the development of human rights has been the recognition that women’s rights are human rights and that issues of gender equality should form an integral part of international relations. It is now recognized that women’s human rights are inalienable and an indivisible part of universal human rights, which includes the right to full and equal participation with men in the political, civil, economic, social, and cultural life at all levels. The Convention on the Elimination of all Forms of Discrimination against Women (the Women’s Convention) covers women’s human rights in all aspects of their lives. At the regional level, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa pays special attention to women’s human rights in Africa. These international and regional instruments, to which Uganda is a party, provide a framework for the elimination of gender-based discrimination generally and the protection of women’s right to equality in particular.

Introduction

The importance of land-based resources for developing nations cannot be over-emphasized. Much as development in the global North is mostly associated with free trade, privatization of state enterprises, and security of private property rights, for developing nations, in particular sub-Saharan Africa, the achievement of development depends substantially on access to land and the uses to which such land is put. Security of tenure is therefore central to these ends. By virtue of its potential to attract investment and enhance rural livelihoods, tenure security represents the key ingredient to achieve economic growth and poverty reduction for sub-Saharan Africa.

Introduction

The occasion for writing this chapter is a long-overdue bill that has been proposed by the South African government to reconstitute the country’s system of traditional courts. Under the apartheid regime, the state had given these tribunals its full support, but since the new democratic Constitution of 1996, their status – and, more generally, that of traditional rulers – has been uncertain. Eventually, on April 9, 2008, the government tabled a Traditional Courts Bill, confirming, although in modified terms, the courts’ civil and criminal jurisdiction.

Translations of Setswana terms

Setswana– Language of the people of Botswana. It can also be used to mean the norms, practices and customs of Batswana.

Kgosi– Chief (pl. dikgosi)

Morafe– Tribe (pl. Merafe)

Bogosi– Chieftainship

Kgosikgolo– Paramount Chief

Kgotla– Village Assembly. It can also mean the court where cases are heard.

Introduction

Customary land tenure arrangements in Africa have enlivened and sustained the role of customary leaders and authority patterns in Sub-Saharan Africa long after they would have otherwise faded into disuse. Because the allocation and control of land has meaning that extends beyond the cultural realm and into the economic and political, those who control it are assured an important role in the social and political hierarchy of a community. The role of customary authority in Sub-Saharan Africa is tied to the colonial experience and to the decisions of colonial officials to create separate categories of land rights and authority structures for citizens and subjects. Where colonization did not occur, as in Ethiopia, we do not see the same significant role played by customary leaders in land administration systems or even in conflict resolution. Thus, property rights and authority are intimately connected throughout Sub-Saharan Africa.

Introduction

The existence of plural legal systems in Commonwealth Africa presents both challenges and opportunities for women’s rights activists in the region. Because statutory, customary, and religious laws operate as parallel systems of law in many countries, women enjoy different rights within each system of law. Customary law is dynamic, often unwritten law that governs in some countries in certain areas of law, such as family law matters. In a few cases, customary law has evolved to reflect human rights norms of gender equality. In other cases, courts have invalidated customary laws that discriminated against women. In many other cases, customary law continues to impinge on women’s rights to equality within family law. This chapter will assess the extent to which international and regional human rights treaties may prove useful in the ongoing effort to reform customary law so that it conforms to internationally recognized gender equality norms.

Introduction

This chapter analyzes the evolution, features, function, and future of traditional (or customary law) courts in South Africa. It begins by examining, and ultimately discarding, the critique that traditional courts are not “real” courts of law. It then outlines the main features of traditional courts that differentiate them from common and civil law courts. The third section of the chapter acknowledges and responds to some of the major criticisms of the customary legal system in South Africa. The final part of the chapter is devoted to the future of traditional courts.

Introduction

African customary law was the dominant legal system in much of pre-colonial sub-Saharan Africa. With the advent of colonialism in Africa in the middle of the nineteenth century, customary law gradually lost its primacy to the European-style legal systems and laws brought by the colonizing nations. The common law, civil law, and, to some extent, Roman-Dutch law became the general law and the primary legal system in many African countries in the colonial and post-colonial eras. In addition, Islamic law had emerged as the dominant law in some places in the continent prior to colonialism. Islamic law is different from customary law, even though the British colonial authorities decreed in some of their colonies that Islamic law is a customary law. With these developments, customary law lost and never regained its status as a full-fledged legal system in modern African nation states.

Introduction

Customary law is a distinguishing feature in the landscape of contemporary Africa. In many countries, it continues to regulate people’s access to land, labor, and capital and to form the main normative system for dispute settlement. In recognition of the importance of customary law in the regulation of people’s lives, but also in an attempt to control the customary sphere to a certain extent, many African governments have granted state courts jurisdiction to decide cases on the basis of customary law. It is, however, not easy for a judge to ascertain the customary law applicable to a particular case. This difficulty flows partly from the multiplicity of different customary laws – varying widely from community to community, but also within communities – and partly from the fluid nature of customary law itself.

Pluralism is part of the fabric of legal systems in most, if not all, African countries. The traditional institutions and customary law that regulated ancient civilizations and societies on the African continent have changed over the years to keep pace with historical events and the evolution that the continent has witnessed. Once the sole source of law, customary rules have had to adapt to significant change brought by colonial rule and then decolonization. In addition to customary law, most sub-Saharan African countries are now bound by domestic constitutional law, statutory law, and common law, as well as international and regional human rights treaties.

Introduction: Nailing the Issues

The customary law of succession in South Africa is one area of customary law that has been subject to severe criticism over the years, and even more so since South Africa’s new constitutional dispensation and people’s growing awareness of human rights and freedoms. It should therefore come as no surprise that this area of customary law has lately been subject to various judicial and legislative changes. In fact, there have been so many changes to the customary law of succession that one could easily argue that the contemporary customary law of succession is no longer customary law, but something totally different.