LAW ENFORCEMENT BY COMMUNAL ACTION IN SUKUMALAND, TANGANYIKA TERRITORY
| Date | 01 October 1955 |
| Published date | 01 October 1955 |
| DOI | http://doi.org/10.1002/j.1099-162X.1955.tb00107.x |
| Author | R. E. S. Tanner |
THE
FUTURE
OF CUSTOMARY LAW IN AFRICA 159
to Dr. Allott, was
the
awareness of
the
local courts
that
any
attempt
to enforce
the
old rule would be disallowed on appeal.
. This mode of legal
development-i.e.
the
case-law method, whereby
the
Judges are in a limited degree
law-makers-usually
has a special
attraction
for those of us whose training
and
experience
have
been under
the
English
legal system.
It
depends for its efficacy, of course,
not
only on a graded
hierarchy of courts
and
on recognition of
the
binding force of precedent,
but
on
an adequate legal literature, comprising law reports, digests
and
text-books.
So far it is only in
the
Union of South Africa
that
areasonably sufficient body
of case-material
exists;
but
there are encouraging signs of progress elsewhere
(cf., for example, Mr.
Hans
Cory's book
Sukuma
Law and Custom). Writers
on African Law in
the
last 17
years-i.e.
from Professor Schapera's Handbook
of Tswana Law and Custom in 1938to Dr. Howell's Manual of Nuer Law in 1954
-have
catered much more satisfactorily
than
their
predecessors for
the
needs
of those who are concerned with
the
actual administration of customary law.
In
spite of
the
early precedent set
by
the
Natal
Code of Native Law (1878)
the
attitude
of
the
British authorities towards codification of African customary
law has almost always been one of opposition. There have been some instances
of legislation modifying, supplementing or otherwise affecting customary
law;
the
Native Marriages Act, 1950, of Southern Rhodesia is an example.
It
may
?e
that
governments will feel themselves impelled to resort more frequently
III
the
future to legislation of this kind.
But
generally speaking I
think
that
the
necessity for such legislation would in itself be regarded as an indication
that
developments
had
reached apoint
at
which it was no longer appropriate
to regard
the
SUbject-matter as remaining within
the
sphere of customary law.
This is certainly
the
position in regard to most of
the
legalisation concerning
.Christian marriage in British territories, as compared with
the
French degree
of 1951 which (indirectly at
any
rate) recognizes a nouvelle coutume chretienne.
. To sum
up;
it is suggested
that
African customary law, closely related as
It is to
the
conditions of tribal society, is unsuitable for adoption as a territorial
law;
that,
nevertheless, within
the
framework of a system which admits of
,personal laws ' there may continue to be a place for customary law, provided
that
it is confined to
the
sphere of family law, succession,
and
property held
under customary tenure, and provided also
that
it can be satisfactorily
developed
and
adjusted
to modern conditions. The prospects of such develop-
ment
and
adjustment
are, in my judgement, mainly dependent on
the
extent
of
the
metamorphosis of which
the
customary organs of jurisdiction are
susceptible. In effect,
the
future of customary law is bound up with
the
future
of
the
African
courts;
and
this in its
turn
(if I
may
be forgiven
the
iteration)
IS
bound up with
the
supremely
important
issue of legal education.
LAW
ENFORCEMENT
BY COMMUNAL ACTION
IN SUKUMALAND, TANGANYIKA
TERRITORY
By
R. E. S. Tanner, District
Officer,
Tanganyika
PART
I
T
HE
Basukuma
are pastoral agriculturists living in permanent houses on
the
~ultivation
steppe of north-western Tanganyika. Structurally
they
are divided
Into a series of
what
were once independent chiefdoms now sub-divided
into
numbers of permanent parishes containing a
hundred
or more
adult
men,
each of which was governed by an appointee of
the
chief until recently, when
elections were instituted. The parishes are sub-divided again into smaller
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