African Legal Systems

Gordon R Woodman, University of Birmingham, Edgbaston, Birmingham, UK

Ó 2015 Elsevier Ltd. All rights reserved.

Abstract

Many customary and religious legal systems were effective in African societies before colonization. The colonial powers added
legal systems based on their own laws. Both types have continued to be effective since Independence and the introduction of
written constitutions. Post-Independence state laws have been developed to strengthen state institutions and to promote
nation-building. Post-Independence customary laws, observed by populations smaller than those of states but sometimes
stretching across state boundaries, have adapted to modern circumstances. They are widely observed in the fields of family
law, land law, and dispute resolution procedures, and state laws give them varying degrees of recognition.

Terminology interests in land are often vested in lineages or in communities

‘African legal systems’ means, for the purposes of this article,
the bodies of interrelated legal norms and accompanying
institutions of norm-creation, norm-finding, and norm-
enforcement, which have a social existence in Africa. ‘Legal
norms’ are taken to be social norms which are enforced by
relatively strong degrees of coercion.
Customary and Religious (Nonstate) Legal Systems
Customary legal systems exist by virtue of the social observance
of their norms, and not by the creation of their norms through
state institutional processes, such as the enactment of
legislation. Customary legal norms are observed because of
a continuing but usually tacit understanding within a pop-
ulation that the bodies of norms to which they belong are to be
accepted as obligatory. For the present purpose a practice need
not have been observed for a very long period to be
‘customary’.
Religious legal systems are for the present purpose a variety
of customary legal systems, their distinctive feature being their
derivation from systems of religious belief. In Africa the primary
systems of religious law are varieties of Islamic law. In many
communities, especially in North Africa and the Sahel region,
the predominant law is shari’a, sometimes modified under the
influence of other local customary norms (see Islamic Law).
The subjects of an African customary legal system (that is,
the population that observes a customary law) virtually never
coincides with the population that is subject to a particular
state law. The population subject to a state law normally
contains populations or portions of populations which observe
different customary laws, while many groups of subjects of
particular customary laws are divided into subjects of two or
even more state laws.
Nonstate African legal systems vary widely, and almost any
generalization about them is subject to exceptions. Perhaps the
most distinctive feature of African customary legal systems is
the frequency with which the parties to legal relations are
communities of ascribed membership, especially of member-
ship by descent, not individuals or other corporate persons as
in western legal systems. Thus, for example, substantial
comprised of several lineages. Marriage is often contracted by
agreement between the lineages to which the bride and groom
belong, with the consent of the bride and groom themselves,
and creates legal relations between the lineages.
A customary law community often has an individual leader,
instances of which range from the ‘head of family’ of the rela-
tively small lineage to the ‘chief’ or ‘king’ of a large polity, such
as Asante or Buganda, although there are also many acephalous
communities. Leaders are determined according to customary
legal norms. Although in some circumstances a charismatic
leader may temporarily acquire personal authority and wield
discretionary power, generally customary law imposes strict
limits on the powers of leaders: the rule of customary law
prevails widely.
Another common feature of customary legal systems is the
nature of the procedures and principles governing the settle-
ment of conflicts of interests and disputes. These are directed to
the achievement of social peace and harmony within the
community rather than the determination of legal rights.
Dispute processes are less frequently instances of adjudication
than of mediation or negotiation, in which there are social
pressures on the parties to compromise.
State Legal Systems
The modern African state with its governmental and legal insti-
tutions is a product of colonization, with the possible exception
of Ethiopia. The colonizing powers drew up by agreement
between themselves the territorial boundaries of their African
colonies, and these boundaries very frequently divided the
territories occupied by populations observing particular
customary laws. In most parts of Africa there was relatively little
immigration from the colonizing countries, and everywhere the
indigenous inhabitants remained in the majority. Nevertheless
the colonial powers set up systems of government that resem-
bled those of the metropolitan states, except that they did not
provide for extensive popular choice of governments or other
participation in government. The English common law was
imported into the British colonies. Codes largely identical with
those of France and Portugal were enacted in their colonies
(Allott, 1960, 1970; see Sub-Saharan African Legal Traditions).

272 International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 1 http://dx.doi.org/10.1016/B978-0-08-097086-8.10111-4