Africa, Sub-Saharan

Legal Pluralism

Profound normative pluralism characterizes the sociolegal condition of sub-Saharan Africa. Many and varied customary and religious laws have long been observed by the large number of ethnic groups inhabiting the region. European colonial powers established the machinery of government of modern states, introducing laws modeled on those of their own legal systems.

Today the laws of African states consist of the laws received from the colonial powers, bodies of indigenous laws that colonial states recognized, and local colonial and postcolonial legislation. These state laws are relatively ineffective. Much social control results from nonstate customary laws, which differ from the officially recognized customary laws. In this complex condition of deep legal pluralism, there is constant change. Official activity adapts state laws, while general social activity changes practiced customary laws. Sociopolitical development then alters the relationship between state law and practiced customary laws.

Before colonization, the unwritten customary laws of ethnic groups were integral parts of their social orders. They varied in politico-legal type from monarchies with centralized administrations, such as the Asante in West Africa, to acephalous societies with virtually no administrative structures, such as the Igbo of West Africa. Some groups in the northern parts of the region observed versions of Islamic shari'a.

European powers colonized sub-Saharan Africa in the period from 1850 to 1910. For the newly delineated colonial states, they established new systems of public administration, modeled on those of their own countries, with laws founded on their own contemporary laws. Territories colonized by the British received English law as it was at the date on which the new state administration was established, to be administered in courts and other institutions similar to those in Britain. Territories colonized by the French and Portuguese acquired codes and courts based on the contemporary French and Portuguese codes and courts. The forms of public administration and state law thus established have continued in broadly the same form in the half century since African national independence.

These receptions (or implantations, transplants, or diffusion) were effective as receptions of professional legal cultures. They gave rise to legal professions and governmental administrations that in structure, function, and ideology were similar to those of the corresponding systems in the metropolitan states. However, as Lawrence Friedman shows, the receptions have been relatively ineffective in determining general legal cultures, that is, the ideas about and attitudes toward law held by the public. Customary and religious legal cultures have continued to control much social behavior.

Customary Law

Colonial legal systems gave some recognition to these customary and religious laws. In British territories, [Page 41]colonial courts were explicitly required to apply, in addition to English law, “native laws and customs.” Moreover, the dispute-settlement institutions of the indigenous population, such as traditional chiefs' tribunals, were recognized and incorporated into state judicial systems. In French and Portuguese territories, colonial state courts' jurisdiction was limited to governmental activities and the lives of persons with Western lifestyles. Indigenous law was left to operate outside those fields without much interference, recognized by but not part of the state system. Recognition of indigenous law by the state has continued in the independence period, with a tendency in the francophone and lusophone states to make indigenous laws part of the state legal system, as in anglophone states. In all territories, an increasing volume of over-riding legislation has aimed at amending indigenous laws or replacing them with statutory regulation.

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