The imminent demise of customary law

By Pravin Bowry

The new Constitution does not mention African Customary Law, and the Judicature Act is the only enactment which acknowledges the existence of the body of largely unwritten laws that have been derived from the tribal social practices regarded as obligatory by the communities concerned.

What is and will be the impact of customary law in modern Kenya?

The Judicature Act states that all our courts shall be guided by African Customary law in civil cases as long as it is not repugnant to justice and morality or inconsistent with any written law. It is absurd that the age-old customary law of the England – dubbed "English Common Law" as propounded by English courts as at 12th August 1897 has greater application and acceptance in Kenya, and the customary laws of the indigenous community applicable only in rare instances.

England has had its customary laws — laws of manors and towns and laws applicable to particular individuals such as churchmen and royalty. The King’s law is said to be ‘common’ in the sense that it was not local or personal but was available and applicable to everyone throughout the realm.

African lawyers and statesmen have not cast their minds to history — and determine and learn from the applicable laws existing, before the advent of the Arabs from Oman who came for ivory and beads and later slaves and thereafter the influence of Portuguese, Indians, Chinese, Germans and English.

For much of the colonial period African Customary Law was treated as unimportant, because, from the Western perspective, it lacked features thought to be the classical ingredients of law — a class of professionals, a source in sovereign commands, and backing of institutionalised mechanisms to enforce laws e.g. courts or the police force. Anthropologists were more educated in African laws than lawyers!

There is in Kenya a hierarchy of applicable laws. The imported English laws with spices from Indian law remain paramount, with customary laws having been relegated both by the colonial rulers and post–Independence law makers to a subordinate category and now almost dead, like the Dodo of Africa.

In the days past, there were the African courts who applied the African customary laws when dealing with the ‘natives’ but these courts were taken over in 1967 by the Magistrates Court Act, and rarely have our courts dealt with or applied customary laws in all its manifestations both criminal and civil matters.

The ascertainment of unwritten African customary laws is a mammoth problem for the workings of the modern day courts in a western legal tradition — where records, precedent, rules of evidence — inherited in Kenya from England, India, Australia and even Nigeria — apply by statutory law. No real attempt has been made to codify the tribal laws, or produce manuals for instructions or for restatements.

The customary law of all tribes relating to marriage and divorce and succession was superbly captured in late sixties in two volumes published by E. Contron who later became a Kenyan Judge, and there ended the restatements of customary laws.

flexible discussion

Today, it would appear, the only truly authentic version of customary law is generally considered to be the ‘living law’ i.e. the law in fact being observed by the old subjects who will shortly and inevitably die and with them will die the African customary law.

The overriding and important philosophy of African customary law remains the family relationship and duty to support kin.

The claims of kinsfolk tended to supersede any individual’s rights to property, so that a person could not be said to ‘own’ food, livestock, or land absolutely. Scholars on the subject conclude that instead of exclusive rights in economically productive property, customary law allowed a number of people to hold different interests concurrently.

The disposal of man’s assets, was of no real and personal concern and instead customary law concentrated on the transmission of support obligations and the control of family estate to suitable laws whose status was predetermined by their positions in the kinship system.

Additionally, commercial contracts were of marginal concern. Promises were taken seriously, ritual pledges or brotherhood had a sacramental aura, age grades created long term bonds of support, sometimes above even family ties.

Bare promises in the absence of appropriate rituals of the conveyance of property hardly enforceable — e.g. a ‘marriage’ without full payment of the dowry. The validity of the union was progressively strengthened as the spouses discharged their duties and children were born.

Disputes resolution entailed arbitration and mediation; impartial application did not apply, no rules existed, with flexible discussion between opposing parties persuaded by the chieftains to accept compromise settlements.

Customary laws are destined to be relegated to history. The Constitution could have given it more meaning; it did not. History one day will pass judgement whether Kenya missed a golden opportunity to ‘Africanise’ her laws! Can African jurisprudence be revived even at this late stage in our history?

The writer is an advocate of the High Court of Kenya.

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