Delving deep to understand the relationship between statutory law and indigenous customary law across Africa – Fellows’ seminar by Jan Erk

“In most parts of Africa, traditional leaders and indigenous customary law enjoy a degree of legitimacy, influence and power that analyses using formal indicators miss,” said Jan Erk. “Despite the role this plays in development and democracy at the local level, no comprehensive picture of the relationship between modern and traditional legal systems exists.”

Jan Erk - 1STIAS Fellow Jan Erk in conversation after his seminar presentation on 3 May 2018

Erk was previously the Jan Smuts Fellow at the University of Cambridge and was outlining the research he is currently undertaking at STIAS which is an attempt to map out the different relationships between statutory law and customary law – and the consequences of these relationships.

“I think it’s important to give recognition to something that plays such a huge role in the lives of and influences the day-to-day behaviours of so many Africans,” he said.

Erk pointed to the challenges of studying an area which crosses disciplines and is subject to a lack of data, and difficulties in accessing traditional authorities both physically and due to language constraints.

“It’s a challenge to study things that are not formally registered – vague, uncodified elements that sometimes traditional leaders are hesitant to share,” he said. “It’s also hard to build trust to ensure access especially if you don’t speak the language.”

“It’s also often difficult to determine what the law is and who the traditional authorities are.”

Erk will therefore use informative case studies from the continent to map out the various ways the traditional and modern interact.

“From each country under focus, one ethnic community and one locality is chosen to go in-depth and capture the workings of the complex relationship between modern statutory law and uncodified customary law across time and policy areas. The case-studies – and the relationship they epitomise – are used to build a comprehensive picture. Lessons and insights from these experiences also allow for a reflection on the possibilities for the recognition, incorporation and modernisation of indigenous customary law, in Africa and beyond.”

Erk highlighted that the 1990s in sub-Saharan Africa were marked by large-scale constitutional reforms, often linked with territorial decentralisation.

“One by-product of strengthening the regional and local level has been the exposure of the pervasive influence of traditional structures – especially in rural areas away from the reach of the modern state infrastructure,” he said.

“Decentralisation looked ideal on paper,” he continued, “but in many regions this meant that uncodified entities became visible and that government was brought closer to traditional authorities making them more influential. In effect it led to a resurgence of traditional authorities in many southern African countries.”

“Decentralisation, which was often promoted by international organisations for development, blew new life into these seemingly-dormant entities. Despite fears of tribalism, in many places traditional authorities ended up becoming the collective voice of the local versus the central state and mediated the relationship between formal governance and rural citizenry – regardless of party politics and electoral cycles.”

“Informal accountability, the need to build consensus, long-term horizons, and perceived legitimacy, have often turned traditional authorities into representatives of rural concerns and interests – even among traditional authorities that are hierarchical and hereditary.”

“It’s important to understand how these entities have remained resilience through pre-colonial, colonial, and post-colonial phases of constitutional engineering, development and modernisation.”

Erk provided details on three of the case studies. Botswana, where customary law has been largely integrated resulting in continuity between the past, present and future. Ethiopia, where, until recently, traditional law was officially unrecognised – “it was considered backwards and state authorities were suspicious of any power base” but, in most regions of the country, has survived in unofficial form. And, in South Africa, where the relationship between customary and statutory law has been a fluid and changing one. “Customary law in South Africa gives a sense of continuity and social order but is also sometimes patriarchal and conservative, and tends to prioritise collective rights over individual rights.”

Erk admitted to having more questions than answers at this stage of his work.

One of the big questions is how you deal with customary law in societies ruled by statutory law and whether it is even possible to understand indigenous law through the lens of Western law.

“In many traditional settings who you are matters in how the law works,” he said. “The debate is about consensus, about finding an acceptable solution. This relies on a small-scale social setting and the acceptance of the legitimacy of the elders.”

“Customary law is generally law without state, without police, enforcement or imprisonment,” he added. The traditional leader therefore had to convince the community about precedence and outcome.

“Examining customary law also often raises the problem of individual versus collective rights,” he continued. “With the internationalisation of human rights there is an inherent distrust of anything that looks collective.”

He also believes it is important to avoid creating further separations. “In a country like South Africa you don’t want 11 different versions of the law.”

He pointed out that already people sometimes ‘shop’ between different legal systems choosing the one that gives them the best outcome. “But,” he said, “you can’t force people to accept a legal system with which they don’t agree.”

“Even the words used – like traditional and modern are not ideal. Just because we don’t understand traditional law doesn’t mean it is inferior. We need to keep what is best of the roots and traditions but adjust them to be able to handle contemporary issues.”

“If customary law is put at the level of the state – this takes away the deliberation, convincing, reasoning aspects. Perhaps deliberative democracy needs to come back to the continent where it was born,” he added.

Michelle Galloway: Part-time media officer at STIAS
Photograph: Christoff Pauw

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