MZUMBE UNIVERSITY

FACULTY OF LAW

NAME OF STUDENT : NURU HAMADI KALUMUNA

REGISTRATION NUMBER : 1236042/T.21

COURSE : LL. B II

NAME OF THE SUBJECT : LEGAL ETHICS

SUBJECT CODE : LAW 12

NATURE OF THE WORK : INDIVIDUAL ASSIGNMENT.

NAME OF LECTURER : Dr, Mchomvu.

SUBMISSION DATE : 27-JANUARY-2023

Question

As an expert of family law, discuss how the new economic systems and state law have affected
the meaning, organisation and relations of traditional African families.

TABLE OF CONTENT.
SCOPE OF THE QUESTION.

1.0 INTRODUCTION.
. Meaning of family.
. The traditional African Families.
 Polygamy.
 Early marriage and child bearing.
 Extended family structure.
 Womens were voiceless and powerless
 Interconnectedness of spiritual familial life.
2.0 MAIN THEME.
2.1 Changes on the basis of the meaning.
2.2 Changes on the basis of family organisation.
 The introduction of formal laws governing marriage, divorce, and inheritance.
 Family size
 Family structure.
2.3 Family on the bases of family relation.

3.0 CONCLUSION.

REFFERENCES.

SCOPE OF THE QUESTION.

The question call upon the critical discussion on how the new economic systems and state have
affected the meaning, organisation and relations traditional African families has been.

INTRODUCTION.

It is common knowledge that cultures and tradition normally has different types of family
systems. In the African society’s nuclear family, father, mother and the children, appears to
predominate. In almost all of the rest of the world, extended families, the grandparents, father,
mother, children, but also aunts, uncles, cousins, and other kin are considered to be "family." But
the modernization of the world has led to the greatest changes and upheaval in history of family
change as time to time. Family types in Africa has been changing of which is marked with the
increase of nuclear families and the decrease of extended families, and during the past 20 or
more years, with the increase of unmarried families, divorced families, unmarried mothers, and
homosexual families. Nuclear families have also been increasing in all the continents of the
world.

Meaning of family.

The anthropologist George Murdock's definition of the family over fifty years ago was, "The
family is a social group characterized by common residence, economic cooperation, and
reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved
sexual relationship, and one or more children, own or adopted, of the sexually cohabiting adults1

The traditional African families.

The subject of “traditional family patterns in Africa” is so broad that it cannot be adequately
addressed in one chapter. The cultural and physical diversity added with the dramatic social
changes of the last three decades on the continent makes the family pattern situation so
variegated as to defy any sweeping generalizations. This difficulty in generalization bone of
diversity was already apparent to many early scholars of the African traditional family 2. As is
noted the African societies are very complex and diverse, reflecting the rich cultural heritage of
1
Murdock, P. M. (1949). Social structure. New York: Free Press.
2
Lucy P. Mair, “African Marriage and Social Change,” in Survey of African Marriage and Family Life, Edited by
Arthur Phillips, (London: Oxford University Press, 1953) pp.1 – 177.
the African continent, the African families was featured with the various and common features
such as noted as follows.

Features of traditional African families.

Polygamy

Scholars of the African traditional family agree that the one widely known aspect that
distinguishes the African traditional family, say from the European one, is the perversity of
polygamy3. Although polygamy is the act of an individual being married to more than one
spouse at the same time, the more commonly practiced in Africa is polygyny “….the legal
marriage of one man to two or more women concurrently is permitted 4.” This author argues that
because of its perversity, the presence and absence of polygyny was a significant determinant
and indicator of the nature of virtually every African social group; whether tribe, clan, or
extended family, whether matrilineality or patrilineality was practiced, bride price existed, and
how children were raised5.

Polygyny was widely practiced in Africa and it often formed the backbone of the traditional
African family patterns. Thus the polygynous joint family, consisting of a man, his wives, and
their children, is the ideal for most Africans. The Studies conducted from the 1930s to 1950s
indicate that polygyny was common virtually in all regions of Africa6.

Early marriage and child bearing.

Also the traditional African societies was featured by earl marriage and child bearing, In
traditional societies in most sub Saharan African countries, there is a high value accorded to
marriage; this has been marked by the practice of early marriages and childbearing which in
most cases continues till the end of productivity age. At marriage women tend to have lower

3
William J. Good, “Changing Family Patterns: Sub-Saharan Africa,” in World Revolution and Family Patterns.
(New York: The Free Press, 1963.) pp.164-202.
4
Lucy P. Mair, “African Marriage and Social Change,” in Survey of African Marriage and Family Life, edited by
Arthur Phillips, (London: Oxford University Press, 1953) p.1
5
Lucy P. Mair, “African Marriage and Social Change,” in Survey of African Marriage and Family Life, edited by
Arthur Phillips, (London: Oxford University Press, 1953) p.1
6
Lucy P. Mair, “African Marriage and Social Change,” in Survey of African Marriage and Family Life, edited by
Arthur Phillips, (London: Oxford University Press, 1953) p.1
status than all the members of their husband family 7, thus the Polygamous marriages dominated
traditional societies. For instance as is explained that as of 1999, in Nigeria, 32.7 percent of
married women were in polygamous marriages that were made up of two or more wives. This is
characterized by the trend of early marriage; most of the women got married quite young, mostly
to older men. 8

Extended family structure.

In traditional African societies, the traditional families was featured and structured in the
extended families, thus the extended family played a crucial role in the upbringing and support of
children, this includes not only parents and their children but also the grandparents, aunts, uncles
and cousins where the part of the family. For example in Akan culture of Ghana, it is common
for the multiple generation to live together in a compound, sharing resources and
responsibilities, which was samely to the Maasai families, therefore the main reason for this has
been linked to the role that extended family plays as social security in the society 9.

Women’s were voiceless and powerless.

In traditional rural societies in most sub Saharan societies, women were voiceless and powerless.
African societies have experienced slight distortion in the patriarchal tradition, following the
advent of urbanization, as well as due to the drop in the importance attached to land and cattle in
the economy. Male supremacy has also being altered a bit even though it still has a prominent
strong hold in the society. There is the existence of substantial cultural importance attributed to
fertility and lineage continuation, tight patriarchal traditions, wide rate of polygamy prevalence. 10

Interconnectedness of spiritual familial life.

Also, many African cultures, the spiritual and familial realms are deeply interconnected, a noted
example the zulu people of south Africa, where ancestral worship and consultation with spiritual

7
Makinwa-adebusoye, Paulina (2001) sociocultural factors affecting fertility in sub Saharan Africa. The nigerian
institute of social and economic research (NISER)Lagos Malmberg, Bo (2008) Demography and the development
potential of sub saharan african societies.
8
Makinwa-adebusoye, Paulina (2001) sociocultural factors affecting fertility in sub Saharan Africa. The nigerian
institute of social and economic research (NISER)Lagos Malmberg, Bo (2008) Demography and the development
potential of sub saharan African societies.
9
Therborn, Göran(2006) African families in a global context. Research report.No.131
10
Therborn, Göran(2006) African families in a global context. Research report.No.131
leaders are integral to family life and decision making 11. The significant role of having spiritual
in familial life was in maintaining the African traditional moral world include ancestors and
lineage spirits “who operate in specific social contexts where their will is expressed through
misfortunes,” and some other spirits.

2.0 MAIN THEME.

Traditional African family patterns are slowly but progressively being altered as a result of the
process of modernization which is exhibited through trends like urbanization. Family patterns
that were the norm in traditional rural African societies are gradually being altered and
substituted by modern values. Sub Saharan Africa has one of the fastest annual population
growth rate12, the transformation of societies in the sub-continent from rural to urban settings has
immensely contributed in triggering changes in family structure. This has triggered the distortion
of cultural /traditional norms and values that characterized rural communities in the region.
African families are increasingly faced with the challenge and pressure emanating from the
competition prevailing between traditional and modern family values. Hence, Contemporary
family patterns in the region are increasingly subjected to transform and adapt to changing times.

The following is keen examination the new economic systems and state law have affected
the meaning, organisation and relations of traditional African families.

2.1 changes on the basis of the meaning.

The impact of new economic systems and state laws on traditional African families is substantial
and multifaceted, with the adoption of modern economic systems and the influence of state laws,
the traditional structure and functioning of African families have experienced significant
changes. Thus, the modern legal definition of a family puts an emphasis on relationships that
deserve legal support. Scholars argue that in this particular relation, sex orientation, existence of
children or cohabitation are not important. Therefore, a family is only such a type of a relation in
which one person depends on the other. Jonathan Herring supports this particular definition. He
argues that we have to use the term “family” to each social unit in which there is care for each
11
J.A. Barnes, “Marriage in a Changing Society: a Study in Structural Change among the Fort Jameson Ngoni,” The
Rhodes-Livingstone Papers, (Manchester: Manchester University Press, 1951, 1970).
12
Merrick, Thomas (2002) population and poverty: new views on an old controversy:Volume 28, No. 1.
DOI:10.2307/3088274. Page 41-46
other. Such a relation is subject to unfavorable economic circumstances, and this is the main
reason why it should be protected.13

In immigration law, for example, in the Detention Service Order 1/2014 14, an instruction in
picture 2, a family is defined really broadly. In general, it should be considered as any type of
a married or unmarried couple, with or without children, whether homosexual or heterosexual.
Likewise, a family should be considered as any social unit of adults, like fathers, mothers,
grandparents, aunts and uncles, cohabitating with children15.

Fitzpatrick v. Sterling Housing Association Ltd.,16.In this case, which arose around the dispute
over statutory tenancy rights, judges who were resolving the dispute had to answer the question
what the word “family” means in the British legal system? Finally, the decision was reached and
“the meaning of ‘member of a family’ could include a same sex partner who had been involved
in an established monogamous relationship. Such a person could not be a “spouse” within the
meaning of the Act, but the family provision was more widely framed and allowed the court to
take account of changes in society. Thus, a same sex partner could take a succession of
a property from that partner on death on the basis of his being a member of the family. “The
hallmarks of the relationship were essentially that there should be a degree of mutual inter-
dependence, of the sharing of lives, of caring and love, of commitment and support. In respect of
legal relationships, these are presumed, though evidently not always present, as the family law
and criminal courts know only too well. In de facto relationships these are capable, if proved, of
creating membership of the tenant’s family17.”

Therefore, it can be stated that the word “family” in the past traditional African family meant
a legal relationship created by blood, legal ceremony or legal adoption. Through the society
changes which meant the rise of new economic activities and new state laws, the definition and
meaning of the family has also changed and the meaning of a family has broadened. The
milestone was the Supreme Court’s judgment in the Fitzpatrick case were the judges decided that

13
Herring,J, Probert,R, Glimore. s, (2015) Great debates in family law, London, p. 10
14
Home Office, Detention service order 1/2014 (replaced DSO 11/2011).
15
Ibid.
16
Fitzpatrick v. Sterling Housing Association Ltd.,. HL 28 Oct 1999, http://www.
publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/fitz01.htm (09.04.2016).
17
HL 28 Oct 1999, http://www. publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/fitz01.htm
(09.04.2016).
a family must be understood also as relationships other than those based on consanguinity or
affinity. It was clearly marked that a family must be perceived as having a special bond which
connects particular people, and this bond can be either law- or blood- related. This was also
Jonathan Herring’s argumentation, and the British legislature and courts followed his opinion
about the extended understanding of a family.

2.2. Changes on the basis of family organisation.

The introduction of formal laws governing marriage, divorce, and inheritance.

The new economic activities and state laws have also played a critical role in reshaping the
meaning and organization of traditional African families by the introduction of formal laws
governing marriage, divorce, and inheritance has influenced traditional customs and practices. In
many African societies, customary laws and practices existed to regulate marriage, divorce, and
inheritance. However, the introduction of colonial and post-colonial state laws has led to a
complex interplay between formal and customary legal systems, impacting the way traditional
family structures are organized and managed.

For instance noting the introduction of colonial administration in African societies, one
example of these laws was the imposition of Western-style marriage laws that promoted
monogamous marriage as the only legally recognized form. This challenged and changed the
diverse forms of marriage that existed in traditional African societies, such as polygamous
marriages, levirate and sororate marriages, and bride-wealth systems, example the regulation of
kuria marriage payment18. The colonial powers also imposed regulations and restrictions on
divorce, which were often at odds with traditional African practices and increased the
vulnerability of women in marital relationships19.

Also the inheritance laws introduced by colonial governments also disrupted traditional African
practices, often favoring male inheritance and disempowering women from land and property
ownership. Traditional matrilineal and communal systems of inheritance were disregarded in

18
Baker, E.C , The Bakuria of North Mara Tarime, Tanganyika Territory. Manuscript in the library of the East
Africa Institue of Socisl Research, kampala; and at Rhodes House Oxford.
19
Evans-Pritchard, J.J., “Some Aspects of Marriage and the Family among the Nuer,” The Rhodes-Livingstone
Papers, Manchester: Manchester University Press, 1945, 1969.
favor of male-dominated inheritance practices, leading to the exclusion of women from property
and resource ownership20.

Furthermore, the colonial governments introduced legal frameworks that undermined traditional
systems of governance within families and communities, imposing centralized and authoritarian
systems that were alien to traditional African practices. This disrupted the traditional systems of
decision-making and leadership, leading to social tensions and conflicts within communities 21.

Post-colonial societies, Also the post-colonial governments has formed the new laws governing
the marriage, divorce, and inheritance, for example in Tanzania there is the law of marriage Act
of which governs the marriage, inheritance and divorce. The new laws has changed the the
traditional African societies since the Law emphasizes on the monogamy marriage, though the
law provides for the polygamy marriage as is provided under section 10(1) and (2) of the law of
marriage Act 22, of which provides that, Marriages shall be of two kinds, that is to say those that
are monogamous or are intended to be monogamous; and those that are polygamous or are
potentially polygamous. In practice the monogamous marriage is highly emphasized, since the
polygamous marriage has only based to the Islamic religion.

Additionally, the post-colonial era has brought about changes in the legal status of women,
leading to new rights and obligations within the family unit. Women's rights, including property
and inheritance rights, have been a focal point in many African societies. State laws have
intervened to protect women’s rights, remodel inheritance laws, and challenge traditional gender
roles within the family, leading to significant shifts in power dynamics and intra-family
relationships.

Changes on Family Size

The advent of modernity, new economic activities and new state law has inherently fostered a
progressive transformation of African family organization marked by the drift from larger family
size (extended families) to small size households (nuclear families). Demographers often identify
the changes taking place in family patterns such as changes in family size to be a characteristic

20
Cooper, E. (2008). Inheritance practices and the intergenerational transmission of poverty in Africa: A literature
review and annotated bibliography. Chronic poverty Research center. No 116
21
Ibid.
22
Law of Marriage Act [CAP 29 R.E 2019].
of the second demographic transition process23. It is marked by the reorientation of family values
from extended families to smaller family sizes.

The shift in society is inevitable and is 5 part of the process of modernization. One major area
that has encountered or is experiencing alteration is the size of family that is the number of
children that married women give birth to24. Discussion of family size here is made in reference
to the number of children that are born in a family. It is imperative to highlight that family size
discussions in the region is renown to be dominated by the extended family settings whereby a
family is not made up only of a married couple and their children but also include uncles,
aunties, grandparents to name a few. Extended families still has quite a strong hold in Africa
despite the advent of modernization. The main reason for this has been linked to the role that
extended family plays as social security in the society25.

Changes on Family structures

In Africa are experiencing changes which are felt in childbirth rate that is the number of
children, and age at first marriage. John Caldwell and Pat Caldwell emphasized that in order to
comprehend contemporary African fertility, one needs to understand that there has not been any
traditional fertility control in the light of limiting family size, and also that the practice of female
abstinence has been a vital feature of societies in the region 26. This, they identified as been the
reason for the resistance and apprehension mounted by most people in the region to modern
methods of fertility control which were perceived as being unnecessary in the region. The
number of children women in the region are averagely giving birth to is progressively declining
even though the rate is not quite significant. The locus of most traditional African countries is
centered on the perception of large families as an asset especially in rural subsistence agricultural
societies27.

23
Perelli-Harris, Brienna (2006) The path to lowest low fertility in Ukraine. Population studies vol.59 no 24
24
Perelli-Harris, Brienna (2006) The path to lowest low fertility in Ukraine. Population studies vol.59 no 24.
25
Therborn, Göran(2006) African families in a global context. Research report.No.131
26
John and Caldwell, Pat (1987) The cultural context of high fertility in sub-Saharan Africa. Published by
population council. Population and development review, vol.13 No.3
27
Makinwa-adebusoye, Paulina (2001) sociocultural factors affecting fertility in sub Saharan Africa. The nigerian
institute of social and economic research (NISER)Lagos Malmberg, Bo (2008) Demography and the development
potential of sub Saharan african societies.
 The family size in the region stood around 6 to 8 children. There were no interests in reducing
the family size beyond these numbers of births in rural communities. Limiting family sizes to
four or five children was viewed to increase the potential of extinction in the face of high
mortality rates28.

In Nigeria women had as much as twelve children and still had the desire to give birth to more
children. A world fertility survey report on the proportion of women who had on average seven
surviving children and who did not want to have more children, showed that the proportion was
33 percent in Kenya, 10 in Cameroon, 3 percent in Ghana. High fertility was perceived as a
source of joy29.

Widespread availability of economic, education, and health opportunities will continue to have
remarkable influences on the changes in African family structures. What is noteworthy about
these changes is the complexity, adaptability, and flexibility of family forms within their
respective social and cultural contexts. Thus there is a universal consensus that policies that
strengthen such adaptability remain critical to maintaining the intricate balance between
traditional norms and emerging forms of family organization.

2.3 Changes on the basis of family relation.

Also the new economic systems and state laws has led to changes on the bases of relations of
traditional African families, as the notable example in the traditional African societies the
relations between the family was basically very high between the family thus the family was
basically the extended families of which made the relations of the family to be high and also the
relation between families was also a symbol of the African societies of which it was basically for
the purpose to maintain and preserve the morals of the whole society30.

The scholars argues that the “Avoidance”, “segregated relationships”, lack of “love” and
“tenderness” in traditional African marriages and the family has been a common theme among

28
John and Caldwell, Pat (1987) The cultural context of high fertility in sub-Saharan Africa. Published by population
council. Population and development review, vol.13 No.3
29
Mbacke, Cheihk (1994) Family planning programmes and fertility transition in sub Saharan, Population
development review. Vol 1 20 No 1 (publish by population council.
30
Nana Araba Apt. 2002. “Ageing and the Changing Role of the Family and Community: An African Perspective,”
International Social Security Review, vol. 55, no. 2, pp. 39-47
European scholars. These views were expressed before 1930s and as late as 1960s. 31 LeVine40
described some of the customs and patterns that surround interaction in the traditional African
family as “institutionalized restrictions”, “segregated patterns”, and “avoidance patterns”. These
relationships which are described in this way are rituals of respect between a son-in-law and his
mother-in-law, a daughter-in-law and her father-in-law. Similar customs or “rules of restrictions”
in interaction apply between many other kin in a traditional African family 32. These Anglo-Saxon
or Eurocentric descriptions do not help in the fair and accurate perception of the traditional
African family. “The descriptions implicitly portray (to the African and Westerner) African
relationships as being negative, rigid and miserable. Anything described in these terms must
inherently be bad, primitive and, therefore, undesirable.”33

Typical of this Eurocentric characterization of the traditional African family is often not only the
contention that there cannot be genuine love in a polygamous marriage but that even
monogamous ones lack “genuine” love. Some have even gone as far as saying that for the
African husband nothing else matters so long as he impregnates his wife every few years34.

For instance, in the study of the Baganda traditional family cited earlier, the author describes
how children are raised among the Baganda. The author describes the interaction between the
Baganda mother and her baby as unfavorable and lacking any affection or love. 35 “The mother
may hug or caress the child and comfort it when hurt or in distress. However, children are never
kissed – kissing is not known to the Baganda – and the close intimacy of the mother-child
relationship as found in America, for example, is not present. ….. The language of the Baganda
carries no word for love or tender affection; the closest is a word that is best translated as
“like”.”36

3.0 CONCLUSION.

31
Lucy P. Mair, “African Marriage and Social Change,” in Survey of African Marriage and Family Life, edited by
Arthur Phillips, (London: Oxford University Press, 1953)
32
Levine R.A, (1976). Patterns of personality in africa, in responses to change society, Culture nad personality. New
York:D. Van Nostrand.
33
Asante, K.M. (1980), Afrocentricity: The Theory of social Change. Buffalo: Amulefi Publishing Company.
34
Chandoka, A.Y (1988), Traditional Marriages in Zambia: A case study in Cultural history. Mission press: ndola
35
Tembo,S.M. (2016), The Traditional African Family. East lansing, Michigan state University. Unpublished thesis.
36
Chandoka, A.Y (1988), Traditional Marriages in Zambia: A case study in Cultural history. Mission press: ndola
In conclusion, the influence of new economic systems and state law on traditional African
families has brought about significant changes, affecting the organization and dynamics within
these families. As an expert in family law, understanding how these changes have impacted
traditional African families is crucial for effectively addressing legal matters within this cultural
context. It is important to consider the interplay between formal state laws and customary
practices when working with clients to ensure their rights and obligations within the traditional
African family structure are respected and protected.

REFFERENCE

List of Statutes.

Law of Marriage Act [CAP 29 R.E 2019].

Home Office, Detention service order 1/2014 (replaced DSO 11/2011).

List of Books.

Asante, K.M. (1980), Afrocentricity: The Theory of social Change. Buffalo: Amulefi Publishing
Company.

Herring,J, Probert,R, Glimore. s, (2015) Great debates in family law, London.

Levine R.A, (1976). Patterns of personality in africa, in responses to change society, Culture and
personality. New York:D. Van Nostrand.

Murdock, P. M. (1949). Social structure. New York: Free Press.

List of cases.

Fitzpatrick v. Sterling Housing Association Ltd.,. HL 28 Oct 1999, http://www.

publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/fitz01.htm (09.04.2016).

List of Journal Articles.

Baker, E.C , The Bakuria of North Mara Tarime, Tanganyika Territory. Manuscript in the library
of the East Africa Institue of Socisl Research, kampala; and at Rhodes House Oxford.

Cooper, E. (2008). Inheritance practices and the intergenerational transmission of poverty in

Africa: A literature review and annotated bibliography. Chronic poverty Research center. No 116

Evans-Pritchard, J.J., “Some Aspects of Marriage and the Family among the Nuer,” The Rhodes-
Livingstone Papers, Manchester: Manchester University Press, 1945, 1969.

Nana Araba Apt. 2002. “Ageing and the Changing Role of the Family and Community: An
African Perspective,” International Social Security Review, vol. 55, no. 2, pp. 39-47

Lucy P. Mair, “African Marriage and Social Change,” in Survey of African Marriage and Family
Life, edited by Arthur Phillips, (London: Oxford University Press, 1953)

Chandoka, A.Y (1988), Traditional Marriages in Zambia: A case study in Cultural history.
Mission press: ndola
Perelli-Harris, Brienna (2006) The path to lowest low fertility in Ukraine. Population studies
vol.59 no 24

Rist of research.

Tembo,S.M. (2016), The Traditional African Family. East lansing, Michigan state University.
Unpublished thesis.

Therborn, Göran(2006) African families in a global context. Research report.No.131

John and Caldwell, Pat (1987) The cultural context of high fertility in sub-Saharan Africa.
Published by population council. Population and development review, vol.13 No.3

Makinwa-adebusoye, Paulina (2001) sociocultural factors affecting fertility in sub Saharan

Africa. The nigerian institute of social and economic research (NISER)Lagos Malmberg, Bo
(2008) Demography and the development potential of sub saharan African societies.