Introduction:
Customary law is the law of small scale communities which people
living in these communities take for granted as part of their everyday
experience but it excludes outsiders who to get any account of it have to
either be told about it or read about it. (T.W. Bennett 1995)
Whether read about or narrated, customary law is once removed
from the source. Thus the written accounts there are of customary law are not
direct accounts of community practice but the work of informants each of whom,
in recounting a particular rule brings to bear on the subject his/her
preconceptions and biases. It would be easy to understand the ramifications of
customary law if it was only one. However, there as many customary laws as
there are tribal communities and despite the general consensus on certain
fundamental principles, there are nuances in each that only one well versed
with the community’s way of life can identify. (T.W. Bennett 1995)
The hallmark of African customary law is the dominance of older
male members over property and lives of women and their juniors. Allied to this
is the centrality of the family as opposed to the individual and the definition
of the family in expansive terms to include ascendants and descendants and more
than one wife in polygynous unions.
An outsider looking at these societies’ structures may aver that
women have no rights under customary law. It has, however been contended that
women were better off under customary law than they currently are because they were
accorded great protection as mothers and assured of a share of and access to
resources even where they did not exercise political leadership of the
community. (Alice Armstrong, 2003) The women-unfriendly customary law has
gradually developed as African societies have undergone change most of which
can be seen arising from colonization and privatization.
The battle of the sexes at customary law is in one sense
therefore a struggle over scarce resources and power as overlords in the form
of colonial powers and states in modern African states have assumed control
over all aspects of the lives of Africans, prompting the African males to
consolidate the one bastion of their authority, namely customary law. In some
cases, notions of customary law such as the concern for women have been dropped
making women very vulnerable. The removal of protection has not been
accompanied with fewer roles for women within the community. Their roles of
reproduction and production have remained intact (rural women in Africa contribute
substantially to food production.
Customary laws and traditional institutions in Africa constitute
comprehensive legal systems that regulate the entire spectrum of activities
from birth to death. Once the sole source of law, customary rules now exist in
the context of pluralist legal systems with competing bodies of domestic
constitutional law, statutory law, common law and international human rights
treaties.
The African customary law
is recognized in Kenyan law; African customary law may be described
as the law based on the customs of the ethnic groups which constitute Kenya’s
indigenous population. Section 3 (2) of
the Judicature Act 1967 provides that the High Court, the court of Appeal and
all subordinate courts shall be guided by African customary law in civil cases
in which one or more of the parties is subject to it or affected by it, so far
as it is applicable and is not repugnant to justice and morality or
inconsistent with any written law.
These provisions of the Judicature Act
may be explained as follows:-
(a) The
courts are to be ‘guided’ by African customary law. This provision gives a judge discretion
whether to allow a particular rule of customary law to operate or not. The judges is not bound by any rule of
customary law and may therefore refuse to apply it if, for example, he feels
that it is repugnant to justice or morality.
(b) Customary
law is applicable only in civil cases.
The Magistrate’s Court’s Act restricts the civil cases to which African
Customary Law may be applied to claims involving any of the following matter
only:
(i)
Land held under customary tenure
(ii)
Marriage, divorce, maintenance or dowry
(iii)
Seduction or pregnancy of an unmarried
woman or girl.
(iv)
Enactment of, or adultery with a married
woman
(v) Matters
affecting status, particularly the status of women, widows and children,
including guardian-ship, custody, adoption and legitimacy.
(vi) Intestate
succession and administration of intestate estates, so far as it is not
governed by any written law.
In KAMANZA
CHIWAYA vs. TSUMA (unreported High Court Civil Appeal No. 6 of 1970) the
High Court held that the above list of claims under customary law was
exhaustive and excludes claims in tort or contract.
(c) One
of the parties must be subject to it or affected by it. If the plaintiff and the defendant belong to
the same ethnic group, the may be said to be ‘subject’ to the customs of the
ethnic group which could then be applied to settle the dispute. For example, a dispute between Kikuyus
relating to any of the matters listed in (b) above cannot be settled under
Kamba, Luo or any other customary law except Kikuyu customary law. However, if
there is a dispute involving parties from different ethnic groups it may be
determined according to the customs of either party, since the other party
would be ‘affected’ by the custom.
(d) The
customary law will be applied only if it is not repugnant to justice and
morality.
Although
the Act uses the phrase ‘ and’ and relation to ‘justice and morality’, it
appears that ‘or’, rather than ‘and’ was intended.
In
Maria Gisege Angoi Vs. Macella Nyomenda
(see Civil Appeal No. 1 of 1981 being the judgment of Aganyanya J. delivered at
Kisii on 24-5-1982) the High Court held that Kisii customary law which
allows a widow who has no children or who only has female children to enter
into an arrangement with a girl’s parents and take the girl to be her wife and
them to choose a man from amongst her late husband’s clan who will be fathering
children for her (i.e. the widow), was repugnant to justice because it denied
the alleged wife the opportunity of freely choosing her partner.
The
Court refused to follow the custom and declared that there had been no marriage
between the appellant and the respondent.
A rule of customary law that might be declared to be repugnant to
morality is the Maasai custom that a husband returning home and finding an
age-mate’s spear stuck at the entrance to his hut, as a means of informing him
that the owner of the spear is at the moment having an affair with his wife and
he should not interrupt. The husband
cannot take divorce proceedings under Masai customs against his wife for
adultery. In the event of such a
declaration, a Masai man would be able to petition the court for divorce on the
ground of the wife’s adultery at common law.
The current status of
customary law and its future
Three
basic approaches can be identified regarding the place of customary law in the
legal systems of post-independence Africa. The English-speaking countries have
retained much of the dual legal structures created during colonial rule while
attempting to reform and adapt customary law to notions of English law. On
their part, the French- and Portuguese-speaking countries have pursued an
integrationist course by trying to absorb customary law into the general law.
Only in Ethiopia and Tunisia have some radical measures been adopted to abolish
legislatively carefully selected aspects of customary law. However, regardless
of the approach adopted, in no African country is customary law totally
disregarded, or proscribed. It continues to be recognized and enforced, albeit
to a different degree depending on the jurisdiction.
National
constitutions and statutes authorize it as a major source of law to be
determined and applied in legal proceedings when it is raised by the parties.
For instance, the Constitution of the Fourth Republic of Ghana describes the
laws of Ghana to include the ‘common law’ which in turn comprises the rules of
customary law. Under the same constitution, customary law refers to rules of
law that by custom are applicable to particular communities in Ghana. Since it
is part of the national law, customary law will be enforced in judicial
proceedings. This status of customary law is especially useful to folklore,
which essentially is a body of rights derived from customs and practices of
members of a given community. (Constitution of the Fourth Republic of Ghana)
In
our Kenyan context customary law has a place also as long as it is not
repugnant to justice. The constitution hence states that; in article 2 (4) any
law, including customary law, that is inconsistent with this Constitution is
void to the extent of the inconsistency, and any act or omission in
contravention of this Constitution is invalid. This is to infer that for a
customary law to be regarded it must be in tandem with the constitution in
place failure to which it is disregarded. For example the marrying of young
brides in the Samburu customary setting is and has been stopped as it is
repugnant to justice. The article hence begs for the question is there any
future for the customary law? The answer is yes; this is so because regardless
of the British influence in our laws we still regard our customary laws. For
example, in marriage people still get married through the customary law of the
tribe that they belong to. They in turn follow the laws regarding the
pronouncement of their marriage and in case they want to seek a divorce then
reference to the said customary law will have to be made. So the future for
customary law is still there but also the constitution pronounces doom for the
customary laws that are repugnant to justice. This is a way of correcting the
previous societal discrepancies especially with the undermining of women.
In our Kenyan context where there appears a
conflict between the customary law and the said law of the land Article 2(4)
clearly states that the customary law is inconsistent to the level of its
inconsistency. Also in the preamble of our constitution of Kenya the
Constitution is envisaged as the supreme law of the land and hence making it
superior to customary law.
African customary law and Human Rights
African customary law was indeed biased,
mainly it under looked women and children as the idea was that they were to be
seen and not to be heard at all. However with the promulgation of the Constitution
of Kenya 2010 women and children are now afforded a better chance. With the
constitution comes the Bill of rights that is in Chapter 4 with which it
empowers women and children giving them a fighting chance. The Bill of Rights
is an integral part of Kenya’s democratic state and is the framework for
social, economic and cultural policies.
The purpose of recognizing and protecting
human rights and fundamental freedoms is to preserve the dignity of individuals
and communities and to promote social justice and the realization of the
potential of all human beings. The makers of the said constitution I can say
regarded the customary law in place and the injustices it had done and did its
best in correcting the injustices that were there. In Article 27 (3) it specifically
acts to state that women and men are equal
including the right to equal opportunities in
political, economic, cultural and social spheres. Article 27 (4) further
affirms that the State shall not discriminate directly or indirectly against
any person on any ground, including race, sex, pregnancy, marital status,
health status, ethnic or social origin, colour, age, disability, religion,
conscience, belief, culture, dress, language or birth.
Therefore the constitution of Kenya has
played a huge role in the Human rights department thereby edging out the
cultural human rights abuse. However the main challenge lies in the
implementation of the same constitutional Human rights as the people are
adamant to stop these vices. For example the cases of wife inheritance are
still there and going on even with the said constitutional restrictions.
Therefore it all melts down to the individual Kenyan to accept it as a norm
that now there is a new law that calls for the observation of the human rights
of your neighbor.
It
is understandable that there is much nostalgia about African customary law
among African people. Customary law is, after all, part of African identity.
However, we should not ignore the structural limitations to adapt customary
norms to changing circumstances imposed by the nature of the
social-economic and political system that existed under colonial rule and
contributed to the distortion of customary norms. Africans played a very
limited and negligible role in governance and the formulation of laws that
governed them. We must also not forget that equality is related to the right to
dignity. Following the historical experiences of slavery and colonialism that
African people have endured, we should be aware of the fact that discrimination
conveys to the person discriminated against that the person is not of equal
worth. The discrimination against women conveys the message that women are not
equal to men and undermines their dignity.
African Customary Law and Development
African
customary law has seen a paradigm development from its application before the
Europeans, after their coming and after colonization. Kenya has gone a further
step especially when the Constitution of Kenya 2010 was effected.
Customary
law, like any other law, is not static and is always changing to reflect how
people are living today. Like any system of unwritten
law, customary law has a capacity to adapt itself to new and altered facts and
circumstances as well as to changes in the economic, political and social
environment. Thus, it has adjusted to such influences as the introduction of
European and other foreign legal systems in Africa, urbanization and the growth
of a money economy. This dynamism of customary law is illustrated in customary
law rules about land ownership where it is now possible to own land
individually unlike earlier times where land belonged to the family as a group
and no individual could own a piece of land absolutely or sell it. From time
immemorial customary law was the principal system of law in African
communities. However, this exclusivity was broken in the nineteenth century
when European colonialists introduced their own metropolitan law and system of
courts into their colonies, but retained so much of customary law and the
African judicial process that they did not deem contrary to basic justice or
morality. The result of the imposition of colonial rule, therefore, was to
produce a dual or parallel system of courts and laws in African countries. In
the colonies, dualism was reflected on the one hand, by the establishment of
Western type courts presided over by expatriate magistrates and judges whose
jurisdiction extended over all persons in criminal and civil matters. These
courts hereinafter referred to as ‘general courts’, applied European law and
local statutes based on European statutes. A second group of courts was
established composed of either traditional chiefs or local elders. Depending on
the colony the latter courts were referred to as ‘African courts,’ ‘native
courts,’ ‘native authority courts,’ ‘primary courts,’ ‘local courts’ or
‘people’s courts.’ These courts had jurisdiction only over Africans and for the
most part, applied the customary law prevailing in the area of the jurisdiction
of the court. They were supervised by administrative officers, who also had
control over the appointment and dismissal of the court members. Attorneys were
not allowed to appear before these courts or tribunals.
Customary
law in the legal systems of post-independence Africa has not been entirely
neglected. The English-speaking countries have retained much of the dual legal
structures created during colonial rule while attempting to reform and adapt
customary law to notions of English law. On their part, the French- and
Portuguese-speaking countries have pursued an integrationist course by trying
to absorb customary law into the general law. Only in Ethiopia and Tunisia have
some radical measures been adopted to abolish legislatively carefully selected
aspects of customary law. However, regardless of the approach adopted, in no
African country is customary law totally disregarded, or proscribed. It
continues to be recognized and enforced, albeit to a different degree depending
on the jurisdiction.
In
1950 a number of countries gained Independence and the British Colonial office
began to understand and appreciate that time has come for de -colonization and
begun to think about the future of the African customary law and the African
customary courts. The colonial government begun to think about the integrated system
of justice and their concern was how customary law would fair in such
integrated system. This led to series of African law conferences held in
London, Dar and they were attended by law officers from British Africa. The
main theme was the integration of the African Courts into the mainstream
system. In preparation for independence and with it the integration of the
courts led the colonial authorities to consider the question of ascertaining
African Customary law with the objective of making it easier for it to be
applied by the ordinary courts of law. This led to the codification and
restatement projects. These 2 projects entailed the recording and conversion of
African customary law into writing. From 1897 when the modern legal system was
established to the 1950 no one thought of recording African customary law.
Codification: Codification seeks
to produce a unified customary law and entails producing one code for the
entire country. It would be a summarized version of all the people resident in
this country and it would be binding and have the same effect as a statute it
is not a guide it is binding. Codification is criticized because it tends to
crystallize customary law yet it is a very dynamic body of law and when you
reduce it into writing you freeze it, and it is likely to cause injustice to
those relying on it, because it is very dynamic. The danger with this is that
the customary law if codified could be very different from that which is
actually practiced by the people. Tanzania opted for codification where the
government developed a code of customary law for the entire country.
Restatement: Restatement on
the other hand entails the reduction of African customary law into writing in
English rather than in original language. A restatement is not binding like a
code and it’s a mere guide to the court. Kenya decided to go for restatement
with the view to restating the principles of African customary law on an ethnic
basis tribe by tribe following a uniform format.
Therefore
I can say that customary law has played a very big role in the development of
the Kenyan law as the people themselves did not entirely assimilate the
European laws. For a customary law to be applied it has to pass through some
process. Once ascertained, customary law is to be
applied by the courts subject to the following conditions. The first is that
the customary law rule is not repugnant to natural justice, equity and good
conscience; and the second is that it is not incompatible either directly or by
implication with any law for the time being in force. While no detailed
description of the repugnancy clause has been provided, several courts have
taken the position that the clause is intended to invalidate ‘barbarous’ or
uncivilized customs. Thus, in Re Effiong Okon Ata the court held
that a custom whereby the former owner of a slave was entitled to administer
the personal property of the slave after the slave's death failed the
repugnancy test. In applying the repugnancy test, it is not within the province
of the courts to modify an uncivilized custom and apply the modified version of
the custom. The test of incompatibility has generally been limited to laws
specifically enacted by the local legislature but in theory, it could apply to
received Western law as well. A rule of customary law on a subject-matter is
incompatible with a local statute if the statute is manifestly intended to
govern that subject-matter to the exclusion of customary law. There is direct
incompatibility where the statute states expressly its objective to abolish or
modify the customary law rule. However, where the co-existence of a rule of
customary law and the statute is not inconsistent with the manifest object of
the statute, it is clear no issue of incompatibility is raised. But where,
notwithstanding the fact that the statute does not expressly abolish or modify
a customary law rule, the co-existence of both is inconsistent with the
manifest object of the statute, it is plausible to argue against the enforcement of the customary law rule on
grounds of implicit incompatibility.
In every case, it is a question of construction whether a statute
on a particular matter abolishes or modifies the customary law on the matter or
is intended to co-exist with the customary law.
Thus, in proceedings before the general courts or statutory
customary courts, where a right to folklore is at issue, the courts would
ascertain the existence of such a right by calling for proof of the right which
will then be enforced if it is found not to incompatible with statute. In
development customary law has attained a place where it has to be ascertained
that is not repugnant to justice. Such is seen in Article 2(4) of the
constitution of Kenya 2010.
REFERENCES:
T.W Ben net. 1995. Human
Rights and African Customary Law (Human rights and Constitutional law series of
the Community Law Centre.
Alice Armstrong. 2003. The
Nature of African Customary Law. Manchester University Press. Manchester.
The Judicature Act Kenya Chapter 8
The Constitution of Kenya 2010
The
Magistrate’s Court’s Act
Constitution
of the Fourth Republic of Ghana 1992
Maria
Gisege Angoi Vs. Macella Nyomenda (see Civil Appeal No. 1 of 1981 being the
judgment of Aganyanya J. delivered at Kisii on 24-5-1982
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