Reconciling customary law and modern governance : the developmental role of African traditional systems

Abstract

Before the advent of colonialism, African societies were self-contained and self-governing within the framework of traditional systems that ensured development, peace and stability. During the colonial period, these were distorted and relegated to an inferior and informal status, whilst Western laws and systems of governance were imposed to facilitate the essentially selfish, exploitative mission of the colonial powers. Independence in the 1960s offered an opportunity for African leaders to restore these systems and break the inherited patterns of discrimination and marginalisation to which they had been subjected. Unfortunately, many of the new leaders saw traditional systems either as archaic or as dangerous bastions of rival political power that needed to be dismantled or have their authority limited. In spite of this antipathy to traditional systems, the reality today is that the majority of Africans live in rural areas and are still subject to traditional justice systems and governance institutions. The post-1990 wave of democratic revival raised fresh hopes that the important governance role of African traditional systems would be restored in the new constitutional dispensations that emerged. This paper looks at some of the challenges that are faced in trying to reconcile a multiplicity of sometimes contradictory traditional systems with the demands of constitutionalism and democracy in a manner that can help them to play a greater role in fostering national development. The main argument is that African traditional systems have the potential to contribute positively to development but, equally so, the potential to be exploited as a means to oppress the people and perpetuate autocratic rule, thereby promoting underdevelopment and poverty. The paper suggests that, to ensure that the former rather than the latter prevails, what is necessary is a profound rethinking and reorientation of national policies and regulation of traditional systems vis-à-vis the modern state. Although African traditional systems of law have continued to metamorphose and are different from what they were both before and directly after the colonial era, their developmental potential, especially in the light of the modern imperatives of constitutionalism and democracy, has been largely understudied and probably misunderstood. The fact that these systems continue to co-exist with – and complement and reinforce – the inherited Western systems of governance and justice is evidence not only of their resilience but, more importantly, their role in fostering the economic, social, and political development of the continent. This raises the question of how we can reconcile the diverse and sometimes contradictory nature of traditional systems with the demands of constitutionalism and democracy in a manner that could help them play a greater role in national development.