Law in Africa
[2] The efforts to maintain the indigenous practices against the rising Continental European and Great British powers, though unsuccessful, provoked the development of existing customary laws via the establishment of ‘Native Courts’.
[3] While the colonies were governed by the imported legal system and civil codes of the metropoles, the practice of traditional laws continued under supervision, with its jurisdiction restricted to only African citizens.
[11] By the early 1900s, along with the dominant colonial powers of France and Great Britain, Belgium, Germany, Portugal and Italy had gained political control over numerous African nations.
[12] In response to these foreign politics, the African authorities promptly developed their indigenous practices and customs into a formal legal system introduced as customary law, administered by the newly established Native Courts.
However, the British policy enabled the customary laws to operate within local communities under the governance of colonial legislation executed by judges and magistrates; with its jurisdiction restricted to only African citizens.
[15] Germany was one of the first European continental powers to lose its control over Southwest Africa, followed by the retreat of the Italian, Belgium, Portugal, and Spanish forces by 1976.
[22] For many years post-independence, the customary law governed personal matters and communal issues such as disputes on land possession and appointing a successive chief.
[25] With the adoption of statutory features, customary law is now becoming better reflected into the formal legal systems of the African states, induced by the need to conserve traditional customs that have been repressed by colonial experiences and the rising advocacy for cultural rights.
[29] Despite this, Kenya has been proficient in the codification of laws from different tribes and local communities, though not to integrate them into their current legal system, but rather enable the possibility of translating cultural customs into a more contemporary form.
[30] Alternatively, a polycentric legal system, called Xeer developed exclusively in the Horn of Africa more than a millennium ago and is still widely used by the Somali people.
[35] As the imported laws took precedence, over time, even local courts in the English metropoles employed tax prosecutions and British disciplines surrounding work and labour contracting.
[39] In court, this system requires the judge to actively participate in settling legal matters by gathering evidence and hosting witness testimonies to make an informed conclusion of the truth [40]
Comparatively, the introduction of common law from British colonisers employed the notion of protecting individual rights from the state through an adversarial system of justice.
Its objective surrounds the need for a “modern harmonized legal framework in the area of business law in order to promote investment and develop economic growth”.
[45] The organisation's strategy is currently involved in studying the common features between the different legal systems in African and how to overcome barriers to education in poor populations.
[49] While the imported constitution was employed in association to Christian belief, most African nations today separate the church and state to best accommodate for the freedom of religion.
