Chapter
2.3. “INDICATORS” OF LIVING CUSTOMARY LAW’S STATUS AND FUTURE
2.3.1. The Toning Down of the Legal Theoretical Debates about the Idea of Living Customary Law
2.3.2. The Recognition of Living Customary Law
2.3.2.1. The Manifestation of Living Customary Law in Constitutional Law
2.3.2.2. Manifestation of Living Customary Law in South African Court Decisions
2.3.3. Living Customary Law’s Potential to Protect Human Rights
2.4. JUDICIAL ENGAGEMENT WITH THE ASCERTAINMENT AND PROOF OF LIVING CUSTOMARY LAW
2.4.1. The Traditions and Past Practices of the Community Concerned
2.4.2. Respect for the Right of “Customary” Communities to Develop Their Law
2.4.3. Balancing Community Rights with Legal Certainty and Protection of Rights
2.5. CONCLUSION: THE CHALLENGES ARISING FROM THE PROMINENCE OF LIVING CUSTOMARY LAW
3 The Future of Customary Law in Africa
3.2. THE NATURE OF CUSTOMARY LAW
3.3. CUSTOMARY LAW IN THE COLONIAL ERA
3.3.1. Arbitrary Nature of Legal Jurisdictions
3.3.2. Displacement and Relegation of Customary Law
3.3.3. Relegation of Traditional Adjudicating Bodies
3.3.4. Transformation or Invention of Customary Law
3.3.5. Avenues for Opting Out of the Customary Law System
3.4. CUSTOMARY LAW IN THE POST-COLONIAL ERA
3.4.2. State Control over Customary Courts
3.4.3. Attitude of Lawyers/Legal Education
3.4.4. Emergence of Written Constitutions in Most African Countries
3.5. FUNDAMENTAL CHANGES IN AFRICAN SOCIETY AND WORLDVIEWS
3.5.1. Loss of Supremacy of the African Traditional Institutions
3.5.2. Social, Economic, and Political Changes
3.5.3. Changes in the Magico-Religious Belief
3.5.4. The Rise of New African Elites
3.5.5. External Socio-Cultural Influences
3.6. PROSPECTS OF CUSTOMARY LAW
3.6.1. Survival of Some Customary Law Norms as Unofficial Law
3.6.2. Survival of Some Customary Law Norms as Official Law
3.6.3. Introduction of Customary Law Norms and Concepts into Modern Legal Systems
3.6.4. Revival of African Jurisprudence as Supplement to the Official Law
3.6.5. Evolvement of New Customs
PART TWO
Ascertainment, Application, and Codification of Customary Law
4 The Quest for Customary Law in African State Courts
4.2. THE SCHOLARLY DEBATE
4.3. THE CUSTOMARY NORM IN CIRCUMSTANCES OF CHANGE, CONFLICT, AND IMPOSITION
4.4. JUDICIAL ASCERTAINMENT OF CUSTOMARY LAW
4.4.1. Objections to “Knowledge Devices”: Variation, Fluidity, and Reliability of Informants
4.5. THE QUEST FOR CUSTOMARY LAW
5 The Withering Province of Customary Law in Kenya
A Case of Design or Indifference?
5.2. HISTORICAL CONTEXTUALIZATION
5.2.1. Has Independence Brought Any Difference?
5.3. THE PLACE OF CUSTOMARY LAW IN KENYA’S LEGAL SYSTEM TODAY
5.3.1. Confinement to Civil Cases
5.3.2. Repugnancy to Justice and Morality
5.3.3. Customary Law as a Guide
5.3.4. One or More Parties Must be Subject to or Affected by the Customary Law
5.3.5. Consistency with Written Law
5.3.6. Customary Law as Fact, Not Law
5.3.7. The Problem of Conflict and Ranking
5.4. A QUESTION OF DESIGN OR INDIFFERENCE?
6 Putting Old Wine in New Wine Skins
The Customary Code of Lerotholi and Justice Administration in Lesotho
6.2. CUSTOMARY LAW IN A CONTESTED POLITICAL SPACE: A HISTORICAL PERSPECTIVE
6.2.1. Emergence of a Legal System and the Recognition of Customary Law
6.3. THE LAWS OF LEROTHOLI
6.3.1. The Basutoland National Council (Lekhotla La Lesotho La Sechaba)
6.3.2. The Structure of the Code
6.3.3. The Status of the Laws of Lerotholi
6.4. INFLUENCE OF THE LAWS OF LEROTHOLI ON GOVERNACE AND ADMINISTRATION OF JUSTICE
6.4.1. The Institution of Chieftancy – Borena
6.4.2. Response of the Legal System
6.4.3. Customary Law and the Practice of Democracy
7 Traditional Authorities
Custodians of Customary Law Development?
7.2. FROM THE ONGWEDIVA MEETING TO THE NATIONWIDE PROJECT OF SELF-STATING CUSTOMARY LAW
7.2.1. First Developments in Dealing with Customary Law after the Independence of Namibia
7.2.2. The Ascertainment of Customary Law – A Nationwide Project
7.2.3. Preliminary Assessment of the Ascertained Customary Law
8 Engaging Legal Dualism
Paralegal Organizations and Customary Law in Sierra Leone and Liberia
8.2. TIMAP FOR JUSTICE AND SIERRA LEONEAN CUSTOMARY LAW
8.2.1. Legal Dualism in Sierra Leone
8.2.2. Engaging Legal Dualism
8.2.2.1. Engaging Customary Law from Within
8.2.2.2. Using the Formal Legal System as a Check on the Customary System
8.2.2.4. Confronting Gender Bias in Customary Law
8.3. THE JUSTICE AND PEACE COMMISSION AND LIBERIAN CUSTOMARY LAW
8.3.1. Legal Dualism in Liberia
8.3.2. Engaging Legal Dualism
8.3.2.1. Empowering Traditional Authorities with Formal Law
8.3.2.2. Appealing Customary Court Decisions
8.3.2.3. Enforcing Jurisdiction
8.3.2.4. Mediation as a Third Alternative
8.3.2.5. At the Crossroads: Gender Issues
8.4. TOWARD AN ADVOCACY APPROACH TO GENDER-BASED VIOLENCE
9 The Future of Customary Law in Ghana
9.2. SOURCES AND SCOPE OF CUSTOMARY LAW IN GHANA
9.3. THE ROLE OF CUSTOMARY LAW IN THE ADMINISTRATION OF JUSTICE
9.4. ASCERTAINMENT OF CUSTOMARY LAW
9.5. DEVELOPMENT OF CUSTOMARY LAW THROUGH COURT DECISIONS
9.6. OFFICIAL CUSTOMARY LAW VERSUS LIVING CUSTOMARY LAW
9.7. THE FUTURE OF CUSTOMARY LAW AND THE COURTS
PART THREE
The Role and Power of Traditional Authorities
10 Traditional Courts in South Africa in the Twenty-First Century
10.2. ARE TRADITIONAL COURTS REAL COURTS OF LAW?
10.3. MAIN ADVANTAGES OF TRADITIONAL COURTS
10.4. CRITICISMS OF TRADITIONAL COURTS
10.5. THE ISSUE OF LEGAL REPRESENTATION
10.6. RECORDING AND CODIFICATION
10.7. DISTINCTION BETWEEN CIVIL AND CRIMINAL CASES
10.8. RECONCILIATION RATHER THAN RETRIBUTION
10.9. THE FUTURE OF TRADITIONAL COURTS
11 Customary Law and Chieftainship in Twenty-First-Century Botswana
TRANSLATIONS OF SETSWANA TERMS
11.2. CUSTOMARY LAW REGARDING CHIEFTAINSHIP IN BOTSWANA
11.3. THE NATURE OF BOGOSI
11.4. HISTORICAL ANTECEDENTS
11.5. POST-1966 PRESSURES AND SURVIVAL OF BOGOSI
11.6. THE CHIEFTAINSHIP ACT, CUSTOMARY LAW, AND LEGITIMACY
11.7. CUSTOMARY LAW AND THE FUTURE OF BOGOSI
12 Traditional Institutions and Governance in Modern African Democracies: History, Challenges, and Opportunities in Ghana
12.2. ANTHROPOLOGICAL OVERVIEW OF THE MAIN ETHNIC GROUPS IN GHANA
12.3. THE LEGAL REGULATION OF CHIEFTAINCY: A HISTORICAL PERSPECTIVE
12.3.1. Chieftaincy in the Pre-Colonial Era
12.3.2. Chieftaincy during the Colonial Administration in the Gold Coast
12.3.3. Chieftaincy in Post-Colonial Ghana
12.4. SUCCESSION, CONFLICT, AND INSTABILITY: CONTESTS AND CHAOS
12.5. CURRENT PROBLEMS AND CHALLENGES
PART FOUR
Customary Land, Property Rights, and Succession
13.2. CUSTOMARY LAND TENURE IN AFRICA
13.3. CUSTOMARY VERSUS STATUTORY LAW: THE WINNERS AND LOSERS
13.4. EVALUATING SOCIAL WELFARE
13.5. WHITHER TRADITIONAL AUTHORITY STRUCTURES?
Institutional Assessment Rubric
14 Romancing Customary Tenure
Challenges and Prospects for the Neo-Liberal Suitor
14.2. THE SHADOW FACTOR AND ITS IMPLICATIONS
14.2.1. The Communal Paradigm
14.2.2. The Exalted Role of Chiefs in Land Management and Allocation Functions
14.2.3. Altered Land Rights of Women
14.3. THE NEO-LIBERAL APPROACH AND ITS SHORTCOMINGS
14.3.1. Colonial, Post-Colonial, and World Bank Approaches
14.3.2. Contemporary Land Policies: Basis and Principles
14.3.2.1. Formalization of Customary Interests in Land
14.3.2.2. Creation of Land Markets
14.4. TENURE SECURITY: NEO-LIBERAL–CUSTOMARY MODEL CONFLUENCES
14.5. GENERAL CONCLUSIONS
15 Reform of the South African Customary Law of Succession
15.1. INTRODUCTION: NAILING THE ISSUES
15.2. CUSTOMARY LAW OF SUCCESSION
15.2.1. Background: Identifying the Nails
15.2.2. From the First to the Last Nail
15.2.3. Reform of the Customary Law of Succession Act: A New Coffin?
15.3. SUCCESSION TO TRADITIONAL LEADERSHIP
15.3.1. Background: Identifying the Nails
15.3.2. Constitutional Potential: A New Coffin?
15.3.3. Constitutional Court Has Spoken: Nailing Inequality
15.4. CONCLUSION: BURIAL OF THE CUSTOMARY LAW OF SUCCESSION?
PART FIVE
Customary Criminal Law
16 Customary Criminal Law in the South African Legal System
16.2. THE AMBIGUOUS POSITION OF CUSTOMARY CRIMINAL LAW
16.3. PROBLEMS WITH THE RECOGNITION OF CUSTOMARY CRIMES
16.3.1. The State’s Monopoly on the Use of Force
16.3.2. The Principle of Certainty
16.3.3. Guarantees of the Defendant’s Procedural Rights
16.3.3.1. Legal Representation
16.3.3.2. The Presumption of Innocence and the Related Rules
16.4. DISTINGUISHING CRIME
16.5. CONCLUSION: PLURALISM CONSIDERED
17 Gacaca in Rwanda
Customary Law in Case of Genocide
17.1. INTRODUCTION: A DAY IN COURT
17.2. THE TRADITIONAL GACACA
17.3. THE TRANSFORMATION OF THE GACACA
17.4. THE GACACA: LEGAL FRAMEWORK
17.4.1. Constituting Considerations
17.5. SOME IMPORTANT CHARACTERISTICS
17.5.2. Participatory Justice
17.5.3. Reconciliation: Confession, Guilty Plea, Repentance, Apology
17.6. GACACA AS CUSTOMARY LAW
PART SIX
Customary Law, Human Rights, and Gender Equality
18 Customary Law, Gender Equality, and the Family
18.2. INTERNATIONAL LAW REGARDING GENDER EQUALITY
18.3. LEGAL PLURALISM AND GENDER EQUALITY
18.4. REFORM EFFORTS IMPLEMENTING A CHOICE MODEL
18.4.1. Multiple Forms of Marriage in Ghana
18.4.2. Women and Land Ownership in Tanzania
18.4.3. Constrained Choice among Marriage Rules in South Africa
19 African Customary Law and Women’s Human Rights in Uganda
19.2. UNDERSTANDING CUSTOMARY LAW
19.2.1. What Is Customary Law?
19.2.2. The Development of Customary Law in Uganda: A Bird’s Eye View
19.3. WOMEN’S HUMAN RIGHT TO EQUALITY
19.4. CUSTOMARY LAW AND WOMEN’S HUMAN RIGHTS
19.4.1. Women’s Land Rights under Customary Tenure
19.4.2. Female Genital Mutilation (FGM)
19.4.3. Customary Marriages
19.5. RECONCILING CUSTOMARY LAW AND WOMEN’S HUMAN RIGHTS
19.5.1. Legislative Strategies
19.5.2. Judicial Strategies
19.5.3. Learning from Grassroots Women
20 Women’s Rights, Customary Law, and the Promise of the Protocol on the Rights of Women in Africa
20.2. GAPS IN COVERAGE: CEDAW AND THE AFRICAN CHARTER
20.2.1. CEDAW: The Problems of Scope and Reservations
20.2.2. Substantive Shortcomings of the African Charter on Human and Peoples’ Rights
20.3. THE POTENTIAL OF THE PROTOCOL: SUBSTANCE AND PROCESS
20.3.1. Regional Credibility of the Protocol
20.3.2. Substantive Provisions of the Protocol
20.3.3. Benefits of the Protocol’s Procedural Rights
21 From Contemporary African Customary Laws to Indigenous African Law
21.2. THE RESEARCH METHODOLOGY
21.2.1. Returning to African Antiquity and Pre-Colonial Time: Going Beyond the Fracture Points: Islam, the Slave-Trades, and Co
21.2.2. The Identification Process: Tracing Common Features Back to the Earliest African Civilisations
21.2.2.1. The Matriarchal System
21.2.2.2. The Participation of Women in the Political and Decision-Making Processes
21.2.2.3. The Femininisation of Spirituality
21.2.2.4. Circumcision as a Coming-of-Age Ritual
21.3. THE RESEARCH OBJECTIVE: AN AFRICAN RENAISSANCE
21.3.1. Adapting Ancient Law to Modern Context
21.3.1.1. Regulating Male and Female Circumcision
21.3.1.2. Promoting Respect for All Faiths, Including Animism
21.3.2. Justifying Modern Law with Ancient Concepts
21.3.2.1. Gender Parity in Representative Assemblies
The Future of African Customary Law
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