The Future of African Customary Law

by Edited by Jeanmarie Fenrich , Paolo Galizzi , Tracy E. Higgins

• ISBN13: 9780521118538
• ISBN10: 0521118530
• Format: Hardcover
• Copyright: 2011-07-18
• Publisher: Cambridge University Press

Summary

Customary laws and traditional institutions in Africa constitute comprehensive legal systems that regulate the entire spectrum of activities from birth to death. Once the sole source of law, customary rules now exist in the context of pluralist legal systems with competing bodies of domestic constitutional law, statutory law, common law and international human rights treaties. The book promotes discussion and understanding of customary law and explores its continued relevance in sub-Saharan Africa. This volume considers the characteristics of customary law and efforts to ascertain and codify customary law, and how this body of law differs in content, form and status from legislation and common law. It also addresses a number of substantive areas of customary law including the role and power of traditional authorities; customary criminal law; customary land tenure, property rights and intestate succession; and the relationship between customary law, human rights and gender equality.

Author Biography

Jeanmarie Fenrich is the Director of Special Projects in Africa for the Leitner Center for International Law and Justice at Fordham Law School in New York: She graduated magna cum laude from Fordham Law School, where she served as editor-in-chief of the Fordham Law Review. She has conducted field research and authored publications on issues related to domestic violence, discrimination faced by women with HIV/AIDS, women's property rights, and women in customary-law marriage under domestic and international human rights law. Paolo Galizzi is Clinical Associate Professor of Law and Director of the Sustainable Development Legal1 Initiative (SDLI) at the Leitner Center for International Law and Justice at Fordham Law School. He previously held academic positions at Imperial College London and the Universities of Nottingham, Verona, and Milan. Professor Galizzi's research-interests lie in international law, environmental law, and law of sustainable development, and he has conducted fieldwork in several African countries. Tracy E. Higgins co-founded the Leitner Center for International Law and Justice at Fordham Law School where she is a co-director and a law professor. She is a farmer editor of the Harvard Law Review, a Women's Law and Public Policy Fellow, and an Adjunct Professor at Georgetown University Law Center. Higgins has published numerous academic articles focusing on feminist jurisprudence, international human rights, and constitutional law in many of the nation's leading law journals.

Table of Contents

Notes on Contributors	p. ix
Acknowledgments	p. xvii
Introduction	p. 1
The Nature and Future of Customary Law
A Survey of Customary Laws in Africa in Search of Lessons for the Future	p. 9
The Future of Living Customary Law in African Legal Systems in the Twenty-First Century and Beyond, with Special Reference to South Africa	p. 31
The Future of Customary Law in Africa	p. 58
Ascertainment, Application, and Codification Of Customary Law
The Quest for Customary Law in African State Courts	p. 83
The Withering Province of Customary Law in Kenya: A Case of Design or Indifference?	p. 103
Putting Old Wine in New Wine Skins: The Customary Code of Lerotholi and Justice Administration in Lesotho	p. 129
Traditional Authorities: Custodians of Customary Law Development?	p. 153
Engaging Legal Dualism: Paralegal Organizations and Customary Law in Sierra Leone and Liberia	p. 170
The Future of Customary Law in Ghana	p. 202
The Role and Power of Traditional Authorities
Traditional Courts in South Africa in the Twenty-First Century	p. 227
Customary Law and Chieftainship in Twenty-First-Century Botswana	p. 247
Traditional Institutions and Governance in Modern African Democracies: History, Challenges, and Opportunities in Ghana	p. 266
Customary Land, Property Rights, and Succession
Entrapment or Freedom: Enforcing Customary Property Rights Regimes in Common-Law Africa	p. 295
Romancing Customary Tenure: Challenges and Prospects for the Neo-Liberal Suitor	p. 312
Reform of the South African Customary Law of Succession: Final Nails in the Customary Law Coffin?
Customary Criminal Law
Customary Criminal Law in the South African Legal System	p. 363
Gacaca in Rwanda: Customary Law in Case of Genocide	p. 387
Customary Law, Human Rights, and Gender Equality
Customary Law, Gender Equality, and the Family: The Promise and Limits of a Choice Paradigm	p. 423
African Customary Law and Women's Human Rights in Uganda	p. 446
Women's Rights, Customary Law, and the Promise of the Protocol on the Rights of Women in Africa	p. 467
From Contemporary African Customary Laws to Indigenous African Law: Identifying Ancient African Human Rights and Good Governance Sensitive Principles as a Tool to Promote Culturally Meaningful Socio-Legal Reforms	p. 494
Index	p. 517
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