The application of customary law in Kenya

The application of customary law in Kenya requires the development of Kenyan legal system. This is necessary because Customary Law was treated differently during different historical time. Then came colonialism and with the introduction of such things as the region law – common law, equity, statues, -they had profound impact on Customary Law.

During the colonialism Africans were allowed to keep their customary law then there came integration period, there was a parallel system, where there was customary law and a parallel modern legal system with the courts and police etc. At one point the colonial governments established native tribunals which existed side by side with the modern legal structure.

Towards Independence there was a move towards integration, which was achieved after Independence, where every body of law was a subject to the same system, as we know it today. The question was whether this was prudent and whether we have to have a system of separate laws?

We will also examine the reception clause and reception date. Reception clause relegates customary law to secondary position. What was the impact of the Reception of other laws on customary law? This question is asked because customary law is applicable so long as it is not repugnant to justice and morality.

Codification and restatements – because it is not a written body of law and it rests in the breasts of the judge, to establish it you have to prove it through evidence as a fact unlike other bodies of law, you must prove that that custom exists as a fact.

In the period before Independence, the judges were the local people speaking the local language, who knew the customs but with integration the judges could be people who are not familiar with particular customs, and thus there was a suggestion that customary law ought to be codified so that it could be referred to by the courts.

The codification was the way forward or the approach adopted mainly by the French, Belgians and German. Restatement is reducing customary law to written form, it is not binding but a direction to the courts which would use it a guide and the debate then was out of two systems which one was effective.

In Kenya we went for the restatements that is why we have the restatements by Dr. Cotran. In Tanzania they went for codification, however, the law is very dynamic, it keeps changing when you reduce it in to writing it becomes permanent and its

capacity to change is reduced and there is a danger that what is being enforced as customary law may not be customary law. The debate is whether we ought to restate customary law or codify it or learn about it from evidence. What is the nature of customary law, its limitations, how do you ascertain it and the issue of judicial proof – how do you prove the existence of particular customs?

After that we shall consider the internal conflicts of laws. The argument is that there could be a conflict between two different customary laws and when the conflict arises how do you resolve and what choice of law do you make for the law to apply in a particular case?

After internal conflicts we shall look at the application of customary law in Kenya and statutory basis – Evidence Act, Judicature Act, Magistrates Act, Marriage Act, examine various decisions made touching on customary law and lastly we will consider the future of customary law. This will be the scope of the course.

To dissolve the marriage under customary law one may move the court by Plaint under the Magistrates Courts Act. Introduction: In most African countries customary law is the law that regulates the life of most people particularly in rural areas. For example, when it comes to matters on succession the law of Succession Act provides that the succession law that governs succession will be the one in the Act. But when someone dies the people follow customary law because succession is a personal matter, same for marriage.

A lot of people marry in church but still pay dowry, as a much as the church ceremony is sufficient to validate a marriage and again it is because marriage is a personal affair, this is because law reflects the values and the norms of a particular community.

The fact that customary law is able to survive hand in hand with the statute is indicative that the statute does not reflect the values and the norms of the people that is why they still go back to customary law.

Succession Act was intended to replace customary law but in practice customary law still reigns supreme and that is why customary law of succession still applies to Africans who die without having made a Will.

But when it comes to interpretation of customary law the Court of Appeal and the High court on a number of occasions ruled that the applicable law will be the customary law and that made the Act ineffective.

That is why even in the case of marriage the Africans still comply with the requirements of customary law because the statute does not reflect the norms and values of people. In the area of torts, the local people would report the matter to a clan leader then the principles of customary law would be used. The cases that find their ways to courts are mainly traffic accidents because the police is involved and the amount of compensation is lower than the one the courts may award.

When it comes to land, which is unregistered, customary law applies and this also applies to the land under the RLA, when it comes to determining the issue of ownership. The question is whether we need the Land Disputes Tribunals Act, because the people who preside over these disputes are not trained and these tribunals are disbanded.

Customary law applies mainly to the poor and that is why many of African elite see these laws mainly as a liability and according to them these laws need to be transcended and replaced with statute law, they say that this law is a draw back to development. Thus the question is should we transcend it or incorporate into a statute and modernize it?

The argument has always been that customary law seeks reconciliation and when you go to court you make enemies and that is how we look at it in the African sense. Our legal system does not have structures that facilitate the development of customary law, the decisions of clans cannot be upheld by the courts because there is statutory provisions for that.

Customary law is not what used to happen long time ago but what people customarily do today - you do not need very old people to get that evidence of it. Because what was the custom 10 years ago or yesterday may not be the custom today, because custom always changes but law does not change, you do not need evidence to prove law, but you need evidence to prove a custom. The definition that was given to customary law by Western jurist is not the proper definition. Note that, the imposed colonial laws generally in Africa – Roman Dutch law in South Africa, Civil law in French Africa and Common law in Common law Africa are considered to be part of the problems in African states. This is because customary laws have been utilized by the political elite in Africa to reinforce their position as the dominant ruling class.

Statute law has been imposed on the majority of the citizens of the new states. The content of most of the statute law is colonial law – imported and transplanted from the colonizing power and most of them have been irrelevant to what the people do and to the factors that determine their life style. The elite in most African countries rely on the imposed law to reinforce their position in the society and they in most cases make a choice where necessary of relying either on the imposed law or customary law as it suits them. Customary law is referred to by a number of names in literature - native law, sometimes as native laws and customs, native customary law,

primitive law. Other times it is referred to as folk law, informal law in the sense it is not

provided for under a statute and in most cases applied informally by informal tribunals. Other times as living law because it is the law that people apply on a day to day basis you do not wait for Parliament to pass, no – government law, peoples law, indigenous.

The question of nomenclature: There is an ongoing debate among Africans on the conceptual question of nomenclature should we call it native, African indigenous or customary law. The most common name is the customary law – law based on the customs of the people but what you will call it is based on your own preference. It is related to the family of laws composed of principles of moral philosophy and prescriptions of behavior recognized by the dominant groups within specific society. The dominant group would be the elders. In matrilineal society the elders are women and property passes from female relatives, that enables the female relatives to be dominant in that sort of structure.

Genesis of African Customary law (whether it is indeed law): Customary law is usually defined as a body of customs and traditions which regulates various kinds of relationships between members in community. At various times customary law was defined using different names, the term commonly used by legislation was native law and custom.

The person who has written most on customary law in Kenya is Eugene Cotran who feels that the term customary law is the most correct and appropriate. He feels that native or indigenous law has some connotations, which are objectionable to some people and thus we should stick to the term customary law and not native law and custom. This is because calling it indigenous law and custom will imply that there are customs that do not have the force of law. Effa Okupa - a Nigerian, stationed in South Africa on the other hand prefers the term indigenous law because it is peculiar or indigenous to a particular community.

From studies in East Africa prior to Independence no attempt had been made in statutory law to define customary law and thus throughout colonialism the law just talked about the law and custom. After Independence the law of Uganda tried to give a definition of customary law. Interpretation and general clauses Ordinance of Tanzania gives the following definition:

“Any rule or body of rules whereby rights and duties are acquired or imposed established by usage in any Tanganyika African community and accepted by such community in general as having the force of law”

The key word is usage. This means that the custom or usage must have been accepted to the extent that they have acquired the force of law they become firm rules that the members of community do adhere to.

Why do you think for example, the payment of dowry is the rule of law? Because of the element of acceptance by the community. The key factors in determination whether the custom has acquired the force of law are usage and acceptance. The Uganda Magistrates Act says: “Customary civil law means the rules of conduct which govern legal relationships as established by custom and usage and not forming part of the common law nor formally enacted by Parliament.” The Kenyan law does not formally define customary law, the closest to definition is found in the Magistrates Courts Act at section 2, which merely defines what a customary law claim under the Act means.

Compare Nigerian legislation in Customary Courts law 1963 with the Ugandan and Tanzanian: “ Rule or body or customary rules regulating rights and imposing correlative duties ; or a customary rule or body of rules which obtain are fortified by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question.”

Again from this definition we note that customary law means rules established by usage and having the force of law and excludes social and moral customs. A custom may be described as a continuing cause of conduct which by the acquiescence or expressed approval of the community observing it has come to be regarded as fixing a rule or a norm of conduct for the members of the community.

For a custom to have the force of law it must be accepted or approved in the community as a rule of conduct. Custom is seen as that which prevails amongst a set of people as a result of their consensus of opinion. It is said to be the embodiment of those principles, which have commended themselves to the general conscience of the community as principles of truth, justice and public utility.

Some commentators have compared customs with the state law and said that law is what the state considers to be good and then enacts it as law, while customs is what is considered to be good for the community and it approves it and considers it as law.

Generally customs is associated with society while law is associated with the state but both of them are defined as what both society and state consider to be good and necessary for them. That is why customary law is called unofficial law because is not pronounced by the state, but by the community. The state may impose the law but somehow the society may find a way of conducting business in ways different from what the law requires. For example, the law of succession prescribes particular rules but the people still operate under their customs. So the customary law and the state law appear to operate parallel to each other.

Customary law is the consensus of the whole community while state law is what the state considers necessary and enacts, which the society may not find necessary and may decide not to comply with it. State law sometimes is not an expression of public opinion, while customary is the consensus of the opinion of the community. However, there are minority and weaker groups of people within certain communities upon whom even customary law is imposed, for example men are stronger in the community and thus they as elders can make law that suits then and may be disadvantageous to the female part of the community.

It has always been the argument that you cannot transplant law, that is why common law did not really take root in African Communities because law is reflective of values of people in respect with their norms and times and that is why we should find a way of incorporating customary law within our legal systems. We need to recognize these institutions in reality so that they exist side by side with the modern institutions instead of killing them. Sometimes it reaches to the extent that the state is forced to change the law in Both law and custom are the expression and realization of the measure of society’s insight and ability and also of the principles of right and justice. Law embodies these principles as they commend themselves to the organized community (state) in the exercise of its sovereign power, while custom embodies its principles as acknowledged and approved by the public opinion of the society, rather than by the power of the state .

When the state begins to evolve out of the society the law of the state is often modeled on the custom of the society. Customs are usually divided into 2 : Legal custom – binding rule of law, independent of any agreement between the parties. The authority of a legal custom is absolute and for that reason it possesses the full force of law, for example the custom preventing widow remarriage. Are widows allowed to re – marry in the context of customary law?; If the rules are to the effect that a widow cannot remarry is absolute custom the widow knows that she could not remarry, but in some customs the refund of dowry occurs and this was designed to prevent remarriage.

Conventional custom – operates indirectly through the medium of agreements. Its authority being conditional and agreement by the parties. In England the term custom is used to refer to legal custom the one with the force of law, while conventional custom refers o usage.

Custom is seen as a source of law in a sense that customary law is generated by customs. The people in that community start by forming uniform practice and by virtue of uniformity it is referred to as custom then the practice gains the force of law by being stuck in the mind of people, when ..-The common law is often seen as a child of custom . Traced to its medieval origin quite a lot of common law was custom. Judicial precedents and legislation evolved as new ways of creating new customs. Indeed customary law formed the basis for the emergence of common law system.

Remember the common law courts were enforcing the law that was common in particular area and the decisions of those were followed and created precedents. The English legislature did not start as law making body. Its original role was that of an advisory body with some limited judicial functions. It is role was to declare law – to evaluate and say that this is the law much as what the courts do today, look at the facts and apply the law and declare the law. This is why the House of Lords is both the Parliament and a court of law. In those initial stages the legislative role of Parliament was negligible and later it took over the task of legislating law.

Therefore the common law is the product of customary law. Blackstone has described the common law as the common custom of the realm in the 16 th century. In modern treatment custom has been subordinated to common law especially in England and various tests have been evolved to determine the acceptability of custom in the are of customary law as opposed to conventional custom.