Law and society in Africa

President Barack Obama meets with Chief Justice Papa Oumar Sakho and regional judicial leaders at La Cour Suprême in Dakar, Senegal, June 27, 2013. (Official White House Photo by Pete Souza)

Obama’s first stop in Africa was Senegal. While there, he met with several key members of the judiciary from across Africa (pictured above), at which the discussions centered on law in Africa. Obama told the assembled jurists;

… what makes for a strong democracy includes a strong judiciary — one that’s independent from politics; one that operates transparently so that citizens can have confidence that the process is free from undue influences; accountability — because even judges are not above the law.

There’s broad agreement on the need for the ‘rule of law’ to be upheld in African states and of the need to adhere firmly to the ‘separation of powers’. However, what’s often ignored is the nature of law in many African states, which is often markedly different to that found in western legal systems. A characteristic of law in many African states is its plurality—it’s simply inaccurate in some cases to speak of a singular dominate system of law that’s followed and uniformly accepted by all citizens within a state.

This is related to the history of many African states, whereby colonial systems of law were imposed on populations who already had their own indigenous systems.  In most contexts, the colonially imposed systems of law often became synonymous with the ‘official’ legal system and were thus to be enforced by the state. However the pre-existing systems and beliefs about the nature of law didn’t simply disappear, but rather continued to exist in an ‘unofficial’ capacity. In light of the fragile and weak nature of many African states, the official systems aren’t necessarily imposed on the entire population or are deemed illegitimate by groups within the broader population. Thus in some contexts the ‘unofficial’ law existing within a state has more influence on the lives of certain people.

At times indigenous laws and beliefs have been incorporated into the ‘official’ legal systems of states, but their codification often radically changes the very nature of the indigenous laws. A‘conflict of laws’ can arise, in which it’s unclear or contentious as to which law applies to a given situation. In several African states, the population avoids the ‘official’ legal system, especially where the law and its makers are seen as repressive or illegitimate.

At the local level in South Kivu in the Eastern DR Congo, for example, it’s evident that some ethnic communities have their own understandings and systems of laws which they follow. This coexists with the ‘official’ system of law, which the state’s authorities don’t have the capacity to uphold.  Questions over land ownership often relate to the beliefs and unofficial ‘laws’ of specific ethnic groups in the area.  At the local level, land disputes are a significant cause of conflict in communities and have the capacity to escalate into national and regional conflicts.

Another interesting issue is the nature of marriage in many African states. It’s common in many contexts for couples to marry under several different systems; for example, a religious marriage, a traditional marriage and a state marriage. It’s not necessarily always clear as to which system is viewed as the most legitimate form of marriage, which in turn leads to issues over which system of law then applies to divorce, child custody and inheritance.

This discussion is far from being purely academic as it significantly affects the governance of African states and transactions within them. In many areas of law, certainty is needed, with a clear delineation of who’s entitled to what and why. But in other situations, an inherent flexibility and plurality is required for reasons of justice and equality. The study of laws in the African context is intriguing and the issue of how to balance and manage legal pluralism within states is an issue which significantly impacts on security and economic development.

Sabrina Joy Smith is a PhD candidate with the Centre for the Study of the Great Lakes region of Africa at the Institute for Development Studies and Management, Belgium. She is currently based in New South Wales. Image courtesy of The White House.