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Are Africans ready for integrated state and indigenous laws?

In 1956, Doris Stenton published The English Woman in History. According to her, the Norman conquest of 1066 put an end to the egalitarian social status of Anglo-Saxon women and “established in England a military society” that made women ‘essentially unimportant’ (p. 348).

Stenton’s claim is consistent with revisionist literature on the status of African women before European colonization. Her reference to a militarized society also resonates with the revolutionary changes that social life in Africa has brought about through the introduction of European legal systems and the accompanying socio-economic changes.

As a result of this imposition, social fields in Africa are a place of contention between foreign and indigenous legal orders. What can go wrong?

Conflicting values ​​and social institutions

Most indigenous African norms originated in agrarian, close-knit social environments that privileged common rights and responsibilities. Forced by the subsistence and defense needs of their social environments, they developed with group welfare-oriented values. Eventually, colonialism, the imposed European legal systems and other socio-economic forces of globalization radically changed the agrarian social institutions of indigenous African laws. The normative consequences of this change are very serious.

On the one hand, Africans have adopted Western lifestyles in an astonishing way. Clearly, this embrace reflects the cultural onslaught of globalization, especially the flagship event, colonialism. While Africans do not exactly ‘keep up with the Kardashians’, we certainly play an active role in our technologically driven global family. In the legal sphere, our participation in our accession to international treaties, our adoption of liberal constitutions, our divine reverence for bills with universalist principles, and our domineering judicial procedures, whose values ​​are imbued with the best European legal traditions, are evident. Indeed, drunk on the turbulent wine of globalist values, some Africans even condemn their indigenous laws as barbaric or outdated.

On the other hand, many Africans who still adhere to indigenous norms do so in modern, individualistic social environments, usually with a poor awareness of the agrarian origins of these norms and with little regard for the fundamental values ​​of community they support. Unaware of the emerging legal identity of Africa, they oppose legal reforms, strive for tradition and get their threads bad about decolonizing laws.

Furthermore, scholars and policymakers neglect how the dissonance between modern conditions and the agrarian origin of indigenous laws affects the interplay between legal order in Africa. This neglect leads to the emphasis on conflict of laws, to the detriment of the attention paid to dialogue between indigenous African laws and state laws.

An eye for the future

History indicates that the laws imposed on African countries by colonial transplants will eventually merge with their indigenous laws into a common law. So are African countries ready for the integration of their legal orders? The answer, of course, is no. But do they want to integrate their legal orders?

The answer is yes – at least in many parts of the continent. While some African states are in the dark, South Africa has identified legal integration as a goal. For example, the reform efforts in the law have increased with proposed laws such as the Traditional Courts Bill and the Single Marriage Statute. Nevertheless, systematic research on this goal is lacking. This is where universities and research institutes can be useful.

The new Center for Legal Integration in Africa (CLIA) at the University of the Western Cape is pioneering work on dialogue between state laws and indigenous African laws. Its purpose is based on the idea that the interaction of legal order in Africa is essentially imitative.

Why does it matter?

Apart from its economic significance, the future of legal order in sub-Saharan Africa demands attention because state laws are cultural constructions with historical continuities. Consequently, the social space it shares with indigenous African laws must be seen in the way Africans adapt their normative behaviors to socio-economic changes. Policymakers would therefore do well to draw attention to how dialogue between state laws and indigenous laws provides a platform for the integration of legal order in sub-Saharan Africa.

Dr Anthony C. Diala is acting director of the Center for Legal Integration in Africa at the University of the Western Cape, South Africa

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