Laws and Legal Systems
The laws and legal systems of Africa have developed from three distinct legal traditions: traditional or customary African law, Islamic law, and the legal systems of Western Europe. In many cases European or Islamic legal traditions have replaced or significantly modified traditional African ones. Even so, customary law still exerts a strong influence in some areas of African life.
AFRICAN LEGAL TRADITIONS
Customary law, Islamic law, and Western law spring from very different social and cultural sources, and each has a unique view of the relationship of the individual to society. Disagreements about that relationship are at the heart of many of the differences between the three systems.
“Customary law” refers to indigenous and almost always unwritten legal rules, procedures, institutions, and ideas. Before colonial times, most African societies were small groups based on KINSHIP. Many communities had no central authority and maintained order without rulers, courts, or other formal legal institutions. Economic and social relations were regulated by customs upheld by social pressure and by family heads or elders. These traditions made up a system of customary law. With thousands of ethnic groups in Africa, there was no universal body of law that was accepted in all, or even in most, places.
Customary law dealt primarily with issues such as marriage and divorce, inheritance, the use of land, and the righting of personal wrongs. Serious problems that threatened the security or order of the group, such as murder or witchcraft, were dealt with as they arose. The remedy or punishment usually depended on the specific conditions of the situation, rather than on a formal set of rules. Indeed, one of the strengths of customary law was its flexibility and willingness to consider unique circumstances before passing judgment.
Some precolonial African societies were large kingdoms with powerful leaders and extensive bureaucracies. However, most people lived in small groups in which local leaders enforced both customary law and any laws proclaimed by the king. In some kingdoms many different authorities existed simultaneously. Kings, heads of clans, minor chiefs, queen mothers, and other authority figures all had their own courts for settling disputes and enforcing customary laws.
When European colonists brought their written legal systems and traditions to Africa, they did not ban customary law. They rejected only those customs that conflicted with their own system or that they considered offensive to “natural justice, equity, and good conscience.” They left other customary laws in place and allowed traditional authorities to resolve most civil cases involving Africans.
European colonial courts handled most criminal cases, as well as cases involving non-Africans. However, Africans could sometimes choose to have legal issues decided under European law. For example, a will filed by an African under colonial laws might be processed according to European rules of inheritance rather than customary African ones.
When Arabs invaded North Africa in the A.D. 600s, they brought Islam and Islamic law with them. So did Arab merchants, who established trading posts along the coast of eastern African coast. Within a few hundred years Islamic influence had spread to parts of Africa's SAHEL region, and by the year 1000 it had reached West Africa as well. Islamic culture and law took root in some places, especially in North Africa and the East African coast. In other places it influenced local law to a lesser extent.
Islamic law is known as Shari'a, an Arabic term meaning “the path leading to the water”—in other words, the way to the source of life. The Shari'a was originally based on the Qur'an, the holy book of Islam. Later, the Sunna, a collection of the sayings and conduct of the prophet Muhammad, was incorporated in the Shari'a. Over time, the Qur'an and the Sunna became established as the most reliable and complete sources of Islamic law.
Shari'a governs both public and private life. It is highly detailed in some areas, such as the rules of inheritance. In other areas Shari'a provides only a framework for the analysis of legal issues. Islamic judges use this framework as a basis for creating new laws to handle situations not covered by Shari'a. Early Islamic authorities often took local customs into consideration when writing new laws. As a result, Islamic law developed a common legal tradition with regional differences. These differences are reflected in the various schools of Islamic law that exist in Africa and other parts of the Muslim world.
Unlike African traditional law, Shari'a is a written system of law administered by specialists. It emphasizes the rights or obligations of individuals rather than those of kinship groups in matters such as marriage and property. It provides a system of commercial law that encourages long-distance trade. Shari'a also controls political authority through rules that attempt to prevent the abuse of power.
As European colonial powers expanded into Africa, they encountered Islamic legal institutions in several regions. In some places—such as NIGERIA, SUDAN, and ZANZIBAR—they left Islamic legal systems largely untouched. Elsewhere, European authorities generally gave Islamic law the same status as customary law. They allowed Islamic judges to apply Islamic civil and family law to Muslim residents, but European courts tried criminal cases.
After gaining independence in the mid-1900s, a few African countries considered adopting Islamic law as the common law of the land. Most nations decided against this course, however, because Islamic law often favors Muslims over non-Muslims and men over women. Such principles conflict with the ideals of equal rights, which Africans had been denied under colonialism and had struggled so hard to achieve. Today, many of the Islamic legal systems in Africa deal with religious issues and try civil cases, but the scope of their authority is limited.
The legal systems that Europeans introduced into Africa, though similar in many respects, had distinct sources and traditions. French law is based on strictly applied legal codes that do not allow authorities to adjust judgments or sentencing according to individual circumstances. Although modified or updated as needed, these codes always serve as the final word on the law.
English law also relies on certain legal codes, but to a lesser extent than the French system. More important to English law are legal precedents—rulings in earlier cases with similar circumstances. These precedents form the basis for many judicial decisions. English law has developed over time without the need for broad changes in legal codes. Dutch-Roman law, the system of law originally adopted in South Africa, is based on ancient Roman law modified by the rulings of judges.
LAW IN THE COLONIAL PERIOD
European nations followed similar courses in applying their legal systems to the African continent. However, the exact paths they chose varied somewhat, and a colonial power occasionally adopted different methods in its different colonies.
English merchants established outposts in West Africa in the form of castles along the coast. At first English law applied only in the territory occupied by the castles themselves. However, the British soon extended their authority to surrounding lands, establishing colonies and protectorates. Africans living in the colonies were usually subject to English law, while those in protectorates were allowed to follow customary law. Cases involving Europeans were always tried under English law.
The decision to leave most African legal affairs in the hands of Africans was a practical response to the shortage of British legal officials. In places where traditional leaders commanded the respect of local populations, these leaders administered local law under the supervision of British officials. Where no local tradition of central authority existed, the British often set up a chief of their own choosing and gave him the power to enforce customary law for Africans. Colonial officials could change or overturn the decisions of African courts, and Africans were allowed to appeal decisions to higher colonial courts.
The British dealt with Islamic legal systems in their African territories in much the same way. They allowed Islamic courts to decide Muslim civil cases, including marriage, divorce, inheritance, and land rights issues. In some areas, such as ZANZIBAR, British colonial authorities also permitted Islamic courts to handle criminal matters involving Muslims. Non-Muslims were tried under English law.
The French, like the British, developed a dual system for Africans and non-Africans. They appointed traditional authorities to deal with matters involving Africans under customary law. In addition, the French tried to record local laws and codify them so that they could be applied in a consistent manner. These efforts made little headway, though, because of the sheer size of the task, the lack of personnel to accomplish it, and the difficulty of standardizing a body of law that is flexible by nature.
When codified versions of some customary laws were produced, the African laws were altered to reflect French views and legal traditions. These revised versions ignored local standards of conduct and social behavior and so were less effective than the original laws in dealing with local disputes.
Belgium's colonial empire in Africa included the areas that are now RWANDA, BURUNDI, and CONGO (KINSHASA). When Belgians took control of the Congo in the late 1800s, they tried to establish a system of centralized, direct rule in which all authority was in the hands of colonial officials. Africans had no involvement in government. However, the Belgians soon abandoned attempts at direct rule because they were unwilling to devote the money and personnel needed for such a system.
The Belgians placed local government in the hands of administrative units headed by Europeans. Each unit consisted of several small governing bodies run by indigenous leaders. These officials had both administrative and judicial power and dealt with matters involving family relations, property, inheritance, contracts, civil wrongs, and some criminal law. Africans could produce new law only with the approval of Belgian authorities. European officials enforced the laws. The Belgians used the same system when they took control of German East Africa (now Rwanda and Burundi) during World War I.
Portugal introduced a dual legal system in its African colonies, but the separation between European and customary law was greater elsewhere. The French and British allowed Africans to be judged by European law. The Portuguese excluded Africans from the protections of Portuguese law.
From the late 1920s, Portugal denied citizenship to black Africans or the descendants of black Africans. Only Africans who passed a difficult legal test—proving they possessed the same language, professional, and material qualifications as middle-class Portuguese—could become an assimilado, or assimilated citizen. However, the children of assimilados could not inherit citizenship from their parents.
Portuguese colonial law, called the indigenato, was developed to ensure Portuguese power over Africans. Some matters—such as issues dealing with marriage and control over women or children—were left to customary law and indigenous authorities. Portuguese officials rarely interfered unless a matter threatened the social order. The colonial bureaucracy often resolved disputes involving Europeans and Africans, so that colonial courts addressed only European affairs.
Dutch settlers introduced Roman-Dutch law into southern Africa in the 1650s. When the British took control of the Cape Colony in 1806, they kept this legal system and applied it to their other colonies and protectorates in the region. English law became an important secondary authority in these areas.
Under the legal system developed by the British in southern Africa, white “native commissioners” were appointed by the state. They presided over special courts that handled both civil and criminal matters involving Africans. Through this system customary law was limited and also modified to serve the needs of the colonial administration and economy.
When SOUTH AFRICA became an independent state, it continued to follow the Dutch and British legal traditions. Then, in the 1940s, South Africa introduced APARTHEID, a system that established racial segregation and excluded black Africans from the legal protection of the state. Apartheid laws prohibited all sorts of social interactions between blacks and whites, including living in the same neighborhoods, attending the same schools, and intermarriage. In the 1970s the South African government created ten “homeland” states, where many blacks were forced to resettle. The government granted some of these states independence, which simply meant that their residents lost South African citizenship and any rights they had as citizens.
LAW IN POSTCOLONIAL AFRICA
When African nations achieved independence in the 1900s, leaders faced the challenge of building legal systems that suited the needs of developing societies as well as of people living traditional lifestyles. Many countries continued to use the Western systems of law established in colonial times, adapting the systems to include some use of African customary law. Several nations, particularly those in North Africa, based their legal systems on Islamic law.
Western and Customary Legal Systems
Most nations in sub-Saharan Africa have adopted various combinations of English law and African customary law. In ZAMBIA local customary courts decide land and family cases involving Africans. The legal system of GHANA relies heavily on English law—including the use of English precedents—but it uses accepted principles of customary law for dealing with certain matters. In MALAWI traditional courts are part of the main legal system. However, some customary laws have been modified to follow Western laws more closely.
The influence of other European legal systems has varied. Portugal's former colonies abandoned Portuguese law after independence and sought to establish a legal system that treats all citizens equally. Such efforts have had some success but typically only in urban areas. In many rural areas, people rely entirely on customary law. Many former French colonies, on the other hand, have largely abandoned customary law in favor of French or other Western legal systems.
International political pressure forced South Africa to abandon its apartheid laws in the early 1990s. The nation now recognizes equal rights for all citizens, regardless of race. Customary law has regained authority in many areas. All South African courts can apply indigenous laws to cases involving black or non-black Africans, provided that the laws are not “opposed to the principles of public policy or natural justice.”
Islamic Legal Systems
Most countries in North Africa have adopted some form of Islamic law (Shari'a) or use a combination of Islamic and Western law. Because of France's long history in North Africa, French law is more influential in the region than English law. The Egyptian Civil Code is essentially French, but it allows Shari'a as an additional source of law. ALGERIA kept a French-based legal system after independence, but in 1984 it adopted Shari'a as the basis for family law. Both TUNISIA and MOROCCO use a combination of French and Islamic law.
Supporters of Islamic law and of Western law have often clashed in North Africa. LIBYA, which had been an Italian colony, first adopted a legal system similar to EGYPT's. However, in 1969, when Muammar al-QADDAFI took control of the nation, he imposed a very strict version of Islamic law. In the late 1970s and 1980s, other North African nations tried to reverse secular reforms and adopt more traditional forms of Islamic law. However, people in those countries are demanding greater political reform, a justice system that is free from religious or government interference, and greater guarantee of human rights. (See also Colonialism in Africa, Government and Political Systems, Islam in Africa, Kings and Kingship, Land Ownership, North Africa: History and Cultures, Women in Africa.)