THE JUDICIAL ASCERTAINMENT OF CUSTOMARY LAW IN BRITISH AFRICA
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb00442.x |
| Published date | 01 May 1957 |
| Author | A. N. Allott |
| Date | 01 May 1957 |
THE JUDICIAL ASCERTAINMENT
OF
CUSTOMARY LAW
IN
BRITISH AFRICA
TaE
ascertainment of usage
or
custom which is to be administered
by the courts presents problems in England; how much greater
is the problem when the way
of
life, and even the language, of
the people concerned are entirely alien
to
the judges and magis-
trates administering the customary law! This is the case in
British Africa, where still-to
a
large extent-the personnel both
of the
superior
courts
and of the subordinate courts other than
native courts’ is British.
It
is
natural that in the course of
time the individual judge, magistrate,
or
administrative officer
should acquire
a
certain knowledge of the political and social
systems, and the customary
law
which expresses those systems,
of
the indigenous African population; but this knowledge
is
unlikely to
be
deep (through transfers
of
the officers between
territories
or
postings within them); and the officer is often legally
debarred from expressly drawing
on
his
own
knowledge
in
the
decision
of
cases involving customary law.
It
is
necemary
to
fall back
on
other means
of
discovering what are the rules of
customary law
on
any particular topic.
A
consideration
of
what
means are open to parties
or
courts is therefore
of
central
imporb
ance to the present-day
administration
of justice in Africa; there
appears
to
have been
no
previous attempt, other than
8
valuable
paper
by
Mr.
J.
Lewin,
to
collate the available statute and case
law
on
the subject.’
This
paper endeavours to remedy the
omission.
The dii%culty experienced by
a
court in Snding out, and
then applying, the customary law applicable
to
a
case before
it
flows partly from the multiplicity of different
tribal
laws (varying
widely from tribe
to
tribe), partly from the uncertainty regarding
the
limits
of
the operation of customary law in competition
or
codid with English
or,
where prevalent,
Islamic
law, and partly
from the
fluid
nature
of
customary law
itself.
The rules
of
customary law were, in the past, generally not
as
certain
as
the
courts would now like them
to
be; the object of many customary
1
via.,
the regional
courts
of appeal (for East and West Africa);
the
SUpreme
or High
Courts
of
the different territories.
a
Constituted
by
professional m@trnty (Dietrict or Resident Magistrates), or
by
adminietrativf, oficere
in
their
mag~stenal capacity.
a
See
J.
Lewin, The Recognition of Native
Law
and
Custom,
in British
Africa,” (1938)
a0
J.Comp.Le (3rd ser.) 16; see
also
a
note
on
Methods
of
Recordink Native Customary
kw,’*
(1960)
1
J.African Admin.
190;
and
(for
the
Pun
ab)
Rattigan,
Digest
of
Cid
Law
for
the
Punjab,
eto.
(18th
ed.),
1968,
ld
et
sq.
244
MAY
1957
CUSTOMARY
LAW
IN
BRITISH AFRICA
245
legal proceedings was negotiation leading to compromise and
reconciliation of the parties, rather than the rigid application of
rules to facts. The
cc
rules
3y
of customary law-e.g., that a wound
should be compensated by the payment of
so
many cattIe-often
only set a standard
or
provided a talking point. The modern
customary law is generally more rigid, through its administration
by British courts
or
by native courts influenced by English legal
ideas; but the rapid change in social and economic life-cash crops,
labour at a wage, education-induces a corresponding fluctuation
in customary law, which renders out of date many past findings
on
its rules.
A
study of judicial decisions shows that the diversity
and flexibility of customary law have sometimes been overlooked
by the British courts.
The primary law of the British courts is “English law.”‘
This inexact phrase covers two types
of
law: the law of England
as at the date of the constitution of the territory in question (Le.,
the rules of common law, the doctrines of equity, and statutes
of
general application), and colonial legislation, whether by ordinance,
proclamation, order,
or
otherwise, made after that date. But
exceptionally,
in
cases to which the parties are
“
natives
”
or
‘c
Africans,” the courts are to
cc
observe
”
or
‘(
be guided by
”
the rules
of
native customary law. Native customary law, how-
ever, is only applied subject to certain conditions
:
-
(1)
It
must be applicable;
i.e.,
the transaction must be
one known to customary law, and there must be rules
of
the
particular customary law available for the decision
of
the
dispute.
(2)
It
must not be repugnant to natural justice, equity,
or
good conscience. This requirement extends as much to the
adjectival as to the substantive law, but in practice
it
is
interpreted liberally.
(a)
It
must not be incompatible with any legislation for
the time being
in
force in the territory. Customary law may
be expressly overridden by statute Iaw (as where customary
criminal law is replaced by a penal code);
or
it
may be in
principle in conflict with
it,
and thus impliedly inappli~able.~
In
many of the British African territories Islamic law is also
applied to a greater
or
less degree, either expressly by statute,
or
in
the guise
of
native customary
A further general difficulty faced by the courts is that of
discriminating between custom having the force of law, and that
which lacks that force though perhaps having a moral
or
religious
sanction. Although some of the ordinances provide for the ad-
ministration
of
‘‘
native law and custom,” others for
“
native IawyYy
and yet others for “native customary law,”
it
is submitted that
4
Except in the High Commission Territories.
5
For
which aee my
“
The Extent
of
the Operation
of
Native Customary Law:
Applicability and Repugnancy,”
(1950)
2
J.African Admin.
4,
and references
therein.
6
For which see J.
N.
D.
Anderson,
Islamic
Law
in
Africa,
1954.
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