Commentary on Chapter V: THE STUDY, RECORDING AND DEVELOPMENT OF NATIVE CUSTOMARY LAW
| Published date | 01 April 1957 |
| DOI | http://doi.org/10.1002/j.1099-162X.1957.tb01131.x |
| Date | 01 April 1957 |
I.
ell.
v.
STUDY,
RECORDING
AND
DEVELOPMENT
9
jurisdiction to native
customary
law if
they
acquired sufficient knowledge of
English law.
Either
the
native
court system should be restricted, as are kadis'
courts in some countries, to
matters
of family law, or its jurisdiction should be
extended
to include
the
administration
of English law
and
procedure as its
legal competence increases.
The
aim should be
the
transformation of
native
courts into magistrates' courts presided over by persons qualified in English
law
and
versed in
customary
law,
the
latter
being confined mainly to family
law.
Extension
of
jurisdiction to non-Africans (para. 3)
2. Native courts have
the
confidence of
the
majority
of Africans who know
that
they
will be tried in such courts according to
their
customary
ways. On
the
other
hand,
persons, irrespective of race or
country
of origin, who are used
to
the
idea of trial
by
trained
courts,
and
to
the
assistance of advocates,
have
aright to expect to be
treated
accordingly. This principle
has
indeed been
long recognised in
many
territories where provision is to be found for an African,
normally justiciable
by
a
native
court, to be excluded from its jurisdiction on
the
grounds
that
he is removed from
the
customary
way
of life of
the
general
native
community.
When
the
native
court system is changed in
character
from a
tribunal
administering
customary
law by
customary
procedure
into
aprofessionally qualified bench, before which advocates
may
practise,
and
which administers
the
statute
law according to English rules of procedure
and
evidence, in addition to
the
customary
law prevailing in its jurisdiction,
there
can be no valid objection to
the
extension of
the
jurisdiction of
the
native
court to all persons of
whatever
stage of civilisation.
Jurisdiction over statutory offences (para. 6)
3.
When
a
native
court is given jurisdiction in
matters
arising
under
statute,
conflict between
the
statute
and
customary
law is inevitable, especially in
criminal
matters,
unless care is
taken
to prevent it.
The
Conference was of
the opinion
that
in such circumstances
the
native
courts should be
bound
to
adhere to
the
statute
and
disregard
the
customary
law.
Commentary on Chapter V
THE
STUDY,
RECORDING
AND
DEVELOPMENT
OF
NATIVE
CUSTOMARY
LAW
R.ecording
of
customary law (paras. 2and 5)
1.
The
1953 record recognised
that
some form of recording of
customary
law
ｾ｡ｳ
essential in order
that
the
results of
study
might be available to others,
ut
that
recording, and, even more, codification, were regarded with suspicion
as tending to ossify
the
law during a
time
of rapid development
and
evolution.
The present Conference considered
that
recording is still
very
desirable,
parti-
cUlarly where court members
are
aware of
the
distinction between recording
and codification;
and
that
the
danger of codification has perhaps been exag-
gerated, particularly in regard to those branches of
customary
law in which
ｾｨ･
advantages of
certainty
outweigh
the
disadvantages of reduced flexibility.
Ust?rnary
land
tenure
is clearly an example of a
branch
of
the
law which
requires
certainty.
Such codification should
not,
however, be
extended
to
the
aw covering such modern conceptions as
contract
or partnership.
Another
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