LEGAL PLURALISM AND THE FUTURE OF PERSONAL FAMILY LAWS IN AFRICA (original) (raw)
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An African perspective on family property and customary law
Research Handbook on Family Property and the Law, 2024
In what ways do transformations in indigenous family structures affect the evolution of private property laws? Prior to European colonisation, African political economies were predominantly agrarian, largely devoid of independent income, and strongly influenced by ancestral worship. Customary laws of property revolved on group notions of rights and obligations, which aimed at the welfare of the extended family. This communal setting promoted complementary gender relations, in which proprietary rights were shaped by people’s leadership, religious, and familial roles as eldest sons, senior wives, and unmarried daughters. European colonialism overturned this social setting by introducing radical socioeconomic changes into traditional communities. Notably, it created struggles for control of labour power, as Africans began to acquire wealth independently of family heads. Driven by factors such as capitalism, migrant labour, mechanised agriculture, and solo income, property relations became commodified, with intersectional effects on normativity. This chapter analyses transformations in family property relations under African customary laws. Informed by empirical insight and literature review, it argues that socioeconomic changes arising from globalisation prejudices women, girls, and younger male children and causes conflict between indigenous and state property laws. It shows how colonial assertions of control over political and labour power (re)created customary laws of property. The chapter highlights the significance of this (re)creation for state reforms of family property in conditions of legal pluralism.
Legal Pluralism in Africa: Challenges, Conflicts and Adaptation in a Global Village
Journal of Law Policy and Globalization, 2015
Legal Pluralism in Africa came into being as a result of colonialism, which has impacted all areas of human endeavour. However, the amalgamation of foreign laws with indigenous laws often elicits opportunities for challenges and conflicts in interpretation and enforcement of the laws in many African societies. The paper's focus is limited to British Africa and with a particular reference to Nigeria; the paper will consider the inherent deficiencies in legal pluralism; and it will examine its 'success' in a global village which tries to see law as a unifying tool.
Rethinking the interface between customary law and constitutionalism in sub-Saharan Africa
De Jure, 2019
Constitutionalism in sub-Saharan Africa evolved from imperial European laws, which were imposed on Africa’s agrarian political economies through legal transplants. Being historical continuities of imperial laws, state laws have a rule-obsessed approach to law, with its attendant justice delivery problems. Significantly, colonial legal transplant in Africa was accompanied by radical socioeconomic changes, whose persistent patterns of power, philosophy, and conduct are referred to as coloniality of power. The staggering extent to which coloniality affects the normative behaviours of Africans demands a reassessment of the status of indigenous African laws. This paper argues that most indigenous laws have transformed into customary laws through people’s adaptations to legal, economic, religious, and globalisation-fuelled changes in intersecting social fields. It uses content analyses of 26 African Constitutions to assess the extent to which customary laws are accommodated. Suggesting that these Constitutions are future common laws, the article offers the foundational values of indigenous laws as building blocks of constitutionalism and legal integration in the continent.
MAPPING THE LEGACY OF THE PAST: COLONIAL LAWS AND CUSTOMARY TRADITIONS IN AFRICA
2019
The essay offers a critical survey of how comparative legal studies examine the interrelations between colonial legacies and African legal traditions. By challenging the colonial and ethnocentric attitude of mainstream comparative legal scholars, it reappraises the traditional classification of African law. Anchoring the article there are two critical contentions: firstly, that African law is a composite of different legal traditions; secondly, that critical comparative law must redraw the boundaries between the different geographical areas within which colonial legacies and African law intertwines.
Legal Theory in Africa: Between Legal Centralism and Legal Pluralism
Queen Mary Law Journal, 2017
The African legal universe is difficult to capture through the lens of legal centralism and legal pluralism. While the former excludes the pre-colonial African legal experience, the latter blurs the post-colonial legal dynamics. By employing Joseph Raz’s theory of legal system, this paper argues that there have been centralized legal systems and plural laws in Africa. Customary legal systems, colonial legal systems and constitutional legal systems have existed in pre-colonial, colonial and post-colonial Africa respectively. Plural laws such as diverse customary and religious laws, imperial colonial laws, and statutory laws constituted these legal systems in different time and space. Hence, the quest for African legal theory rests in between legal centralism and legal pluralism.
The existence of a legal order in traditional African societies before colonization is all the more a palpable reality that the existence of a society is impossible without the presence of the rules of conducts that guide the members of society and, Therefore regulate social relations. This legal order can be attributed to the custom which is the result of the manners of society. This custom, which is a corpus of rules of popular practice, guided social relations in ancient African societies. This is to say that custom is a primitive law that produced rules of conduct to which people had to refer for their activities in accordance with these customary rules. This being so, it is necessary to recognize that the advent of modern law from Western has been so important for traditional African societies that it has allowed the introduction of new laws, the peaceful and equitable regulation of social relations , The separation of powers that contributed to the consolidation of the rule of law. In other words, it is clear that the advent of modern law from Western has contributed to the improvement and strengthening of the values of African customary law.
AFRICAN CUSTOMARY LAW: A DYNAMIC DIALECTIC by Bode Osanaiye
The importance of customary law in our civil life is critical to the efficient administration of justice in Africa and a priori Nigeria. It is a very challenging problem, and in deed sometimes most worrisome, that the Nigerian legal system is homologous to the English legal system and that our custom should be distilled in the light of English common law rules. It stands to reason that the application of native law and custom remains adaptable to changing circumstances and it is apposite that the demands of contemporary law is that it should reflect current needs in order to advance the growth and development of the system that is called in question. This paper will examine the fundamental threads that run through every native law and custom and attempt to process the theory that some parts of our customary rules have remained rigidly unchanged, despite the school of thought which posits, from the days of Justice Osborne and Lord Atkin, that custom had been transmogrifying on grounds of barbarousness, repugnancy and incompatibility.
The European Journal of Development Research, 1998
This contribution problematises the role of law in women's development in the light of universalist, culture relativist and pluralist perspectives on human rights. The management of procreative problems among different groups of women within the patrilineal Shona-speaking population in Zimbabwe demonstrates the dilemmas and conflicts that women's identities as individuals and as members of a family group are giving rise to in relation to law reform. A pluralist and processual position, which extends beyond the dichotomous perception of women as individuals versus women as members of a family group inherent in both the universalist and the relativist approach, is pointed out as the way forward. Rather than identifying the legal needs of women in general, the article demonstrates the importance of exploring both the general characteristics and unique features of social and legal relations.
‘Comparative indigenous law’ in M. Siems and P.J. Yap (editors) Cambridge Handbook of Comparative Law [Cambridge University Press], 2024
States in sub-Saharan Africa struggle to manage the multiple legal orders bequeathed by European colonialism. This struggle is partly attributable to poor consideration of indigenous African values by policymakers. Values are useful because they distinguish social habits from the sense of obligation that gives law its normative character. Since the foundational values of indigenous laws reflect the welfare-oriented origins of indigenous laws, they illumine how Africans adjust to modern conditions, as well as the adaptive character of legal pluralism in Africa. However, not much is known about these values in the courts, in contradiction with the prominence that jurists accord to constitutional values. This chapter compares how African legal frameworks reflect the values of indigenous laws in Kenya, Nigeria, Somaliland, and South Africa. It finds that judges and legislators adopt jurispathic approaches to the regulation of indigenous laws, and suggests that reliance on the values of indigenous laws could promote their harmonisation with statutory laws.
Ius Comparatum 2(2022) 197-226 [International Academy of Comparative Law: aidc-iacl.org], 2022
This paper is designed upon a comparative research design set out to investigate socio-legal historical accounts of customs by using case law from different decisions of Uganda’s family courts. The case law precedents used are drawn upon ancestral communities of natives that comprise the Buganda region of Central Uganda in East Africa. Those cases shall aid this discussion by demonstrating how some of the African cultures have for years used and continue to use family law courts as strategic institutions for consolidating the continued promotion and preservation of their cultural norms. The two-family law cases that are furthering the above legal analysis include that of Kabali v Kajubi a court decision made during colonial times and Bruno Kiwuwa v. Ivan Serunkuma and Juliet Namazzi a much latter decision made in the post-colonial context. A case study-based research design is used in choosing Baganda, as one of the Bantu tribe in Uganda. This choice not a symbolic of preferential treatment to Baganda than other Ugandan tribes but it is solely used as an illustrative representation of Afrocentric family law systems.