Rethinking the interface between customary law and constitutionalism in sub-Saharan Africa

• Record Number: dejure_v52_n2_a12
• Author: Anthony C. Diala,Bethsheba Kangwa
• Published date: 20 August 2019
• Date: 20 August 2019
• DOI: 10.10520/EJC-17a60c4214
• Pages: 189-206

Interface between customary law and constitutionalism in sub-Saharan Africa 189

Rethinking the interface between

customary law and constitutionalism in

sub-Saharan Africa

Anthony C Diala

LLB, PGDip, LLM, PhD

Senior Lecturer, University of the Western Cape, South Africa

Bethsheba Kangwa

LLB, LLM

Doctoral Candidate, University of the Western Cape, South Africa

SUMMARY

Constitutionalism in sub-Saharan Africa evolved from imperial European

laws, which were imposed on Africa’s agrarian political economies through

legal transplants. Being historical continuities of imperial laws, state laws

have a rule-obsessed approach to law, with its attendant justice delivery

problems. Significantly, colonial legal transplant in Africa was

accompanied by radical socioeconomic changes, whose persistent

patterns of power, philosophy, and conduct are referred to as coloniality of

power. The staggering extent to which coloniality affects the normative

behaviours of Africans demands a reassessment of the status of

indigenous African laws. This paper argues that most indigenous laws have

transformed into customary laws through people’s adaptations to legal,

economic, religious, and globalisation-fuelled changes in intersecting social

fields. It uses content analyses of 26 African Constitutions to assess the

extent to which customary laws are accommodated. Suggesting that these

Constitutions are future common laws, the article offers the foundational

values of indigenous laws as building blocks of constitutionalism and legal

integration in the continent.

1Introduction

Constitutionalism is the idea that governmental authority is conferred

and defined by the people through a fundamental law known as the

Constitution.1 In the Global North, the Constitution reflects the

customary laws of citizens, given that these laws had integrated with

state laws through a long coexistence. However, this integrated legal

system is not the case in sub-Saharan Africa, where mostly oral

indigenous laws enjoyed normative monopoly just over a century ago.2

1 For discussion, see Chesterman “Imposed constitutions, imposed

constitutionalism, and ownership” 2004 Connecticut Law Review 947;

Holmes “Constitutions and constitutionalism” in Rosenfeld & Sajó (eds)

Oxford Handbook of Comparative Constitutional Law (2012) 189-214.

2 ‘Indigenous laws’ are also referred to as ‘people’s law, folk law, adat law,

traditional law’ and ‘autochthonous law.’ See generally Allot & Woodman

(eds) People’s Law and state law: The Bellagio papers (1985) 24.

How to cite: Diala & Kangwa ‘Rethinking the interface between customary law and constitutionalism in sub-

Saharan Africa’ 2019 De Jure Law Journal 189-206

http://dx.doi.org/10.17159/2225-7160/2019/v52a12

190 2019 De Jure Law Journal

Here, European laws with industrial backgrounds forcefully displaced

indigenous laws with agrarian backgrounds and entrenched themselves

as the dominant legal order. Significantly, state laws abolished, modified,

and rigidly regulated the application of indigenous laws.3 By so doing, it

coercively changed the normative behaviours of Africans, thereby

birthing what we regard today as customary law. However, the creation

of customary law occurred in the context of dissonance between

indigenous laws and state laws. Nowhere is this dissonance more evident

than in African Constitutions, which, as prime products of imposed

European laws, are the normative faces of state laws. We shall argue that

the creation of customary law resulted from people’s normative

adaptations to the socioeconomic changes brought by colonial rule, of

which the most influential is state laws. We shall demonstrate how these

socioeconomic changes were backed by legislation, stamped by the

courts, and enforced by law enforcement agents. Notably, all these

processes of change were embedded in the phenomenon of legal

transplant.4 Accordingly, to illumine our proposal for rethinking the

interface of customary law and African Constitutions, we need to explain

the significance of legal transplant for the interaction of laws in sub-

Saharan Africa.

Legal transplant, defined here as the movement of rules and legal

institutions from one state to another, may be classified into voluntary,

coercive, and imposed types. It is imposed when the laws and judicial

systems of a foreign state are forced on another state through conquest,

colonialism, and some might add, neo-colonialism.5 Being a product of

conquest, imposed legal transplant is unmindful of differences between

the socio-political environments of the transplanting and recipient states.

Accordingly, it had two consequences for African constitutionalism.

Firstly, it disregarded the free will of African peoples, who were on the

receiving end of European laws and legal systems. Many early

Constitutions in Africa were drafted by elites, who were either influenced

by colonialists, or acquired political power through questionable ways

that need not detain us here.6 Secondly, the invidious ways European

laws displaced African legal orders resemble what Siems described as

“malicious legal transplants.”7 Rather than being an isolated event,

colonial legal transplant in Africa was a comprehensive, self-replicating

phenomenon, which was accompanied by radical socioeconomic

changes that irrevocably affected the education, philosophy, religion,

work, food, and dressing of Africans. In short, it created patterns of

3 Morse & Woodman Indigenous law and the state (1988) 8.

4Watson Legal transplants: An approach to comparative law (1993) 1.

5 Owen “The foreign imposition of domestic institutions” 2002 International

organization 375-409.

6 Even South Africa’s serenaded constitution had little input from the masses.

For debate, see Sparks Tomorrow is another country: The inside story of

South Africa’s negotiated settlement (1995) 63.

7 Siems “Malicious legal transplants” 2018 Legal Studies 105.