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Although African philosophy of Law has its roots in African customary law, it can be seen as an evolving jurisprudential tradition overshadowed by western principles. This opinion is buttressed by the fact that African legal philosophy generally lacks formal recognition in our legal systems. To adequately cover the discussion on the assertion laid out, the discussion will be broken down further into three chapters:
With this introduction as the first, part 2 will examine the concept of customary law as it pertains in Africa. This deals with the development of customarily law in general; specifically looking at the origins of customary law in Ghana, the colonial challenges in view of the Bond of 1844, the formal recognition of customary law in 1874 when the British colonial rule was firmly established, and the case of Angu v Atta where the court held that the traditional customary law is an alien law while the common law is the indigenous law when the Supreme Court Ordinance of 1876 fully established the common law system of adjudication.
Part 3 will discuss how African philosophy of law has been overshadowed by western jurisprudence. A typical example is a customarily law will or Samansiw, which is the traditional testamentary disposition of a deceased property, and the Statutory Wills Act of 1970 (Act 360) which has its root in the English Wills Act of 1837. The Statutory Wills Act has overshadowed the Samansiw; given that, in the case of In Re Okine, the court held that where customary law will is made with a statutory will, the customary law that is inconsistent with the statutory will is invalid. More so, in the case of Edet v Essien, the decision of the court entrenches the position that western jurisprudence has outdone African legal philosophy when the court held that where a traditional law is repugnant to natural justice, reasoning and equity it is invalid, regardless of the customary law rule.
Part 4 will conclude the discussion on the affirmative that African philosophy of law which has its root in African customary law has been overshadowed by western principles.
2. African Customary Law
As earlier noted, the purpose of this discussion is to attempt to trace the growth of customary law as the foundation for African philosophy of law and its survival in spite of the many challenges it has encountered over the centuries. It can hardly be disputed customary law had been limited to the written sources standing in the name of early European writers who only had brief encounters with the people of the then Gold Coast, customary law would have been dismissed by lawyers as primitive because some aspects of the law were presented by the foreign writers in a manner which tended to make them appear ridiculous.
2.1 Origins of African Customary Law
Custom is actually the main sources of African law. Custom in this sense refers to the body of standardized patterns of behaviour that have been established by usages, practices and observances of the people in a given community having the force of law. However, Lord Denning found a fitting description of the variety of laws which prevailed on the continent of Africa with these words :
"It is at the moment a jumble of pieces much like a jig-saw. One group of pieces is founded on the customs of the African peoples, which vary from territory to territory and from tribe to tribe. Another group of pieces is founded on the law of Islam, with all its many schools and sects. Yet another group is founded on the English common law. Another on the Roman-Dutch law. Another on Indian Statutes. And so forth."
On this note, the development of African customary law, although has its origin from different African customs, has been predominantly influenced by western legal philosophy as a result of dominance from the European culture spanning from the era of colonial rule.
2.2 Challenges of African Customary Law
In the case of Ghana, there can be no doubt that British colonialism posed the first challenge to the existence of our customary laws. Colonial rule in this country began in earnest when the inhabitants of the Gold Coast had in these new judicial arrangements, the Fanti chiefs within the sphere of British influence assembled at Cape Coast on 6 March 1844 and executed the "Bond of 1844" whereby they acknowledged the power and jurisdiction of the British Queen.
They also renounced human sacrifices and other barbarous practices. Finally, they agreed that murder, robbery and other crimes should be tried by the Queen's officers whilst moulding the customs of the country to the general principles of British law.
The effect of this is that, upon the coming into force of the Supreme Court Ordinance in 1876 which finally established British system adjudication, African law in Africa was declared foreign law for the convenience of colonial administration which found the administration of justice cumbersome by reason of the vast variations in local and tribal customs. African law had to be proved by experts. But no law can be foreign in its own land and country and African lawyers, particularly in the independent African States, must quickly find a way to reverse this judicial travesty. This was in the case of Angu v Attah.
Even without reading the case, if you think about it, this was not a really sensible assessment of the position. How else were the foreign judges expected to administer law that they did not know? Even today, customary law unless judicial precedent exists must still be proved by calling experts which is understandable. So we can round and come back to the same spot only because the challenge of customary law with western legal philosophy is still eminent.
2.3 Formal Recognition of Customary Law
From the Ghanaian perspective, with the British common law system firmly established, and pursuant to article 11 of the 1992 Constitution, the Court Act 1993 (Act 459) has recognized customary law as a component of common law . For example, in the case of Debrah v The Republic, the verdict of the court was that the accused person’s conduct does not amount to an offence of insult to a chief in view of Chieftaincy Act, 2008, (Act 759), although his conduct is an insult in their custom.
Thus, Act 759 provides the procedure for the declaration or recognition of a customary law rule as law. This entails a draft of the customary law rule by the Regional House of Chiefs to the National House of Chief. The draft is then submitted to the sector Minister with a statement that the customary law rule be given effect to the area concerned. The Minister may by legislative instrument give effect to the customary law rule in consultation with the Attorney-General .
Essentially, a customary law is the rules of law which by custom are applicable to particular communities in Ghana . In effect, this is how customary law is formally recognized in the common law system of Ghana.
3. African Philosophy of Law
The African Philosophy of law is amalgamation of laws that pre-existed colonialism. It is not religious law, although it is sometimes predicated upon supernatural beliefs and ritual practices. It has been at various stages been referred to as “native law”, “native law and custom”, “customary law”, etc. African law differs radically from all other systems of law examined; in that it is not strictly speaking a single system or even one with variant schools, but rather a family of systems which share no traceable common parent.
Since independence, African governments have tried to rid their legal systems of inherited colonial legislation of the negatively ethno-centric attitudes towards indigenous African law. This has usually been done by adopting terminology which seems to diminish the inferior attributes attached to this law during the colonial era.
3.1 Influence of western principles on African philosophy of law
The first common feature is that African law is generally unwritten, largely due to the predominantly ‘illiterate’ environment in which it operates. Indeed, according to Apaloo J.A (as he then was) in the case of Anthony v. UCC, customary law knows no writing. It is mainly due to customary practices and usages that have been solemnly observed by the community in which it operates and have handed down from one generation to another. There is no written legislation, law reports or accounts of juristic analyses. To diminish some of the uncertainty caused by its unwritten nature, there have been attempts in some countries to reduce customary law into writing through codification, but the desirability of this exercise and its effect on some of the inherent qualities of customary law remains a matter of considerable debate.
Secondly, although the legislature has intervened to regulate customary law in most countries, these attempts have been mainly to provide procedures to facilitate the recognition and enforcement of customary law rather than to actually create substantive rules of customary law. For instance, in the case of In Re Okine, the court held that where customary law will is made with a statutory will, the customary law that is inconsistent with the statutory will is invalid. This implies the subservient nature of customary law to the western principle of law.
Thirdly, although customary law varies, sometimes considerably, from tribe to tribe and from country to country, most of its basics structures, precepts, principles, institutions and techniques are fairly similar and have been influence by foreign principles. For example, across the continent, certain practices and usages such as female genital mutilation (FGM) has been abolished in most countries with the adoption of the Universal Declaration of Human Rights (UDHR).
Fourthly, the legal process in customary law are generally localized rather than remote. Disputant and judges are often seen as neighbours. Since the judge is not a remote member of an official order but rather a local person who knows the parties well, this makes it easier for the judge to be influenced. However, in the Ghanaian context, with the coming into force of the western system of adjudication, the traditional is operating in the shadows of the Court system; and the Constitution has established the House of Chief to deal with matters of chieftaincy with the Supreme Court having an appellate jurisdiction.
That notwithstanding, although African philosophy of law has been dominated by western principle, at the heart of the African adjudication process is the notion of reconciliation or the process of harmony through consensus building. This principle has been embraced by the western system of adjudication as Alternative Dispute Resolution (ADR) being an essential part of Court adjudication - to provide for disputing settlement through mediation and arbitration.
It suffices to say that the overall effect of circumstances buttress the claim that African philosophy of law which has its root in African customary law has been overshadowed by western principles. For example, to reiterate, customarily law will or Samansiw is the traditional testamentary disposition of a deceased property, and the Wills Act of 1970 (Act 360) which has its root in the English Wills Act of 1837 is the statutory disposition of a deceased property.
The Statutory Wills Act surpasses the Samansiw, in that, in the case of In Re Okine, the court held that where customary law will is made with a statutory will, the customary law that is inconsistent with the statutory will is invalid. Another case that entrenches the position that western legal principles have outdone African legal philosophy is the case of Edet v Essien, when the court held that where a traditional law is repugnant to natural justice, reasoning and equity it is invalid, regardless of the custom law rule.
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