Lecture 7 | African Legal Culture

Question 1

name one characteristic of Africa what you always should name in a question on the exam about African legal culture?

Answer 1

legal pluralism - traditional law often exists together with other legal systems, like Islamic law or the laws made by the state, creating a complex legal landscape. These legal systems co exist together in these African countries.

Question 2

what are the economic and social impacts of colonial influence?

Answer 2

resourse exploitation: colonial powers took over a lot of African resources -> this made the economy unfair, cause they did not pay for it. those problems are still there nowadays.

forced labor: colonial governments forced people to work.

social disruption: colonial powers drew borders, and groups or people were split up cause of that -> still a problem

Question 3

what are the political and legal impacts of colonial influence?

Answer 3

• Political dominance: colonial governments took over and brought their own governments and legal systems.
• Legal system imposition:
• French colonies: they implemented French law directly through decrees.
• British colonies: focused on indirect law.

Question 4

name 4 bulletpoints about the islamic law

Answer 4

• islam was introduced in 7th century by Muslim merchants (handelaren) and scholars
• Sufism: a dimension of islam that spread teachings across Africa. focused on spiritualism
• sunni islam: the most popular ‘branch’ of islam in Africa, mostly practised in West Afrika
• there is a variability in application across the continent: full implementation / inflences in traditional law / limited application (most in personal status matters)

Question 5

What 2 things are standing against each other with Traditional African law?

Answer 5

• Official customary law: influenced by the state and written down.
  VS
• Living customary law: applied autonomously by traditional actors. Often not written down.

When living customary law is written down it becomes official customary law.

Question 6

What are the 3 characteristics of traditional african law?

Answer 6

• oral tradition: customary law from generation to generation
• flexibility and adaptability: traditional african law changes overtime because of the circumstances
• Legal pluralism: traditional African law often exists together with other legal systems, like Islamic law or the laws made by the state, creating a complex legal landscape

Question 7

what is the impact of traditional african law and which challenges are part of that?

Answer 7

Traditional african law reinforces the structure in community  older men are deciding about everything. According to traditional African law concilation and maintaining social harmony is prioritized over strict legal penalties.  common law or European countries where we focus a lot on penalties. That is not the case with traditional African law  the most important solution is that social harmony and compromised is found.

Question 8

What influence does the colonial times had on traditional african law?

Answer 8

• The colonial times killed a lot of traditional African laws. An important distinction is that there was a difference between France and British impose their law.
  o France: brutal, direct.
  o British: indirect  they left their traditional legal structure, but did not influence it directly.

Question 9

What happened after colonization?

Answer 9

• Two approaches to traditional law during decolonization:
  o Francophone states: mostly stopped using traditional law and chose their own official legal systems.
  o Anglophone African states: kept traditional law and used it together with state law.  British

Question 10

what are the two most important concepts of traditional african law?

Answer 10

• imbizo
• ubuntu

Question 11

What does imbizo mean?

Answer 11

gatherings of older men to make decisions

Question 12

What does ubuntu mean?

Answer 12

main principle of Traditional african law. The main principle is that we should focus on compromise, social harmony, cooperation instead of penalties.

Question 13

What are the problems in african legal culture?

Answer 13

acces to justice  high costs (availability of court is not open for everyone), slow processes, lack of resources (money or staff), complex procedures, not well established democratic institutions, corruption, economic barriers

Question 14

What does the Truth and Reconciliation Commission (TRC) in South Africa mean?

Answer 14

a perfect example of how the Ubuntu concept was applied in practice