In this connexion, much can be learned from the Integration Commission that was set up in the Somali Republic in I960 as a result of the unification of the ex-British Protectorate of Somaliland and the ex-Italian Trust Territory of Somalia.
By Eugene Cotran[*]
In examining the question of the unification of laws in East Africa, we must bear in mind that we are faced with two distinct problems: on the one hand, territorial unification of the different types of law prevailing within each territory; and on the other, inter-territorial unification as between the systems of law in Kenya, Uganda, and Tanganyika.
In view of the fact, however, that the three East African territories have basically the same triple strands of law – English-type or general law, customary, and religious – I think it most unwise to tackle unification territorially and then seek inter-territorial unification. A more sensible approach is to plunge straight into the inter-territorial problem and to seek integration first as between the same type or category of law, and then as between the different types or categories. In short, we should approach the problems of unification from a subject-matter angle rather than from a territorial angle.
The three different types of law are clearly distinguishable from one another. Each country – Kenya, Uganda, and Tanganyika – has, first, a general territorial law, which consists of (a) written laws, including Ordinances, Acts of Parliament (as they are called after independence), and subsidiary legislation; (b) Indian enactments, though these are gradually disappearing and are being replaced by local Acts; (c) certain applied Acts of the United Kingdom Parliament, with some exceptions and modifications; and (d), in the absence of (a), (b), and (c), the substance of the common law, doctrines of equity, and statutes of general application in force in England on a particular date.[1] It is, however, provided that the said common law, doctrines of equity, and statutes of general application shall be in force in the territory only so far as the circumstances of the territory and its inhabitants permit, and subject to such qualifications as local circumstances may render necessary.
The second main category is customary law – or, to be more precise, customary laws. The power to apply these is co African/Local/Native courts are concerned, in the establishing such courts. Thus section I7(a) of Ordinance of Kenya provides that:
Subject to the provisions of this Ordinance, an African and enforce –
(a) the native law and custom prevailing in the area of the jurisdiction of the court so far as it is not repugnant to justice or morality o inconsistent with the provisions of any Order of His Majesty in Council or with any Ordinance in force in the Colony.
Similar provisions are contained in the Tanganyika and Uganda Ordinances.
As far as the non-African courts are concerned, there is no provision specifically empowering such courts to apply customary law, but there is a ‘guidance’ provision requiring them to be guided by native law and custom in certain cases. Thus section 9(3) of the Judicature and Application of Laws Ordinance of Tanganyika provides that:
In all cases, civil and criminal, to which persons subject to native law and custom are parties, every court shall be guided by native law and custom so far as it is applicable and is not repugnant to justice or morality or inconsistent with any written law and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.
A similar provision exists in Kenya and a similar provision existed in Uganda until self-government (March 1962), when for some reason – known only to the Government – the guidance provision was left out.
This, in fact, means that there is now no power for the non-African courts of Uganda to apply or even be guided by customary law, and it remains to be seen what law such courts will, in fact, apply in cases involving points of native law and custom.[2]
Thirdly, Islamic law and Hindu law are applied to members of these religions in certain limited personal matters such as marriage and succession. In the three East African territories there are Ordinances to this effect. In Kenya, there are special Kadhis’ Courts that administer Mohammedan law in personal matters only, but there are no such special courts in Uganda or Tanganyika.
UNIFICATION OF GENERAL TERRITORIAL LAWS
There is already a large measure of unity in the general laws of Kenya, Uganda, and Tanganyika. First of all, it must be remembered that there are certain inter-territorial matters concerning which Acts of the East African Common Services Organization (and its predecessor the East Africa High Commission) may be passed. Thus legislation on income tax, customs and excise, inter-territorial research, university matters, meteorology, posts and telegraphs, railways, harbors, and civil aviation is already uniform.
But quite apart from this limited degree of uniformity, there is also a large degree of unity in the substantive general law of Kenya, Uganda, and Tanganyika, and this for several reasons. Since all the three territories were administered by the same colonial power, the written legislation tended to be modeled on English laws. The residual power to apply the common law, doctrines of equity, and statutes of general application, in the absence of any written law, naturally resulted in the application of the same English law in the three territories. Furthermore, the fact that the judiciary was wholly composed of British judges gave rise to the free application of English law and to the following of English case-law, sometimes to the extent of neglecting the all-important proviso that such law should be applied subject to such qualifications as local circumstances might render necessary. Finally, the existence of a common chain of appeal to Her Majesty’s Court of Appeal for Eastern Africa,[3] and thence to the Privy Council,[4] contributed greatly to general uniformity.
Examples of uniformity in the general law can be found on many topics. There is unity in criminal law, and in civil and criminal procedure, since the relevant Codes are almost identical. The Indian Evidence Act applies both in Kenya and Tanganyika, and the Evidence Ordinance of Uganda is modeled on the Indian Evidence Act. The Indian Contract Act applied in all three territories until some two years ago; the position today is that Kenya and Uganda have passed short Acts abolishing the application of the Indian Contract Act and replacing it by the English law relating to contract. In Tanganyika, however, the Indian Act was replaced by a local Act modeled on it. The English law generally applies in tortious matters, since there are only a few relevant local enactments. As regards personal matters, although these are largely governed by customary and religious laws, there are enactments of general application in all three territories, for example, the similar Ordinances regulating marriage and matrimonial causes. In the field of succession, the Indian Succession Act applies in Tanganyika and Kenya, and the Succession Ordinance of Uganda closely follows it.
UNIFICATION OF CUSTOMARY LAWS
With regard to the unification of the numerous customary laws in East Africa, we must distinguish between two questions. First, is there an existing unity? – is there at present a common feature or pattern running through the numerous indigenous tribal legal systems, which together form a generalized East African customary law? Secondly, if such unity does not exist at present, is it desirable and feasible?
Views on the first question vary from one extreme to the other. Some writers claim that customary laws are basically the same, the variations only occurring in minor details. Thus G. M. B. Whitfield says, ‘The fundamental underlying principles of Native law in South Africa may be said to be, for the most part, generally uniform though there may be unimportant differences and modifications in regard to details.’[5] Support for this view can also be found amongst writers on East Africa. Thus Sir Charles Dundas says of the native laws of some Bantu tribes: ‘In all these tribes I observed a similarity in their conceptions of law and practice which suggested to me that certain principles might be common to all Bantu of these countries.’[6] And more recently, A. A. Oldaker has observed of tribal customary land tenure in Tanganyika that ‘the general pattern of the evolution of custom is so uniform that it is safe to state that, in similar physical circumstances, land custom is similar in essentials in different tribal areas.’[7] Supporters of the other extreme view hold that customary laws all differ, often even within the same ethnic group. And finally, there are some who take a middle course, admitting many divergencies in the rules of law but claiming that there are certain common features, ideas, attitudes, and procedures applicable to all. In support of this, they point to its customary nature, to the fact that it is unwritten, and to the community principle of African law, i.e. the role played by political, social, and family groups.
Let us examine this question from a practical angle in relation to East Africa. Here we find some 120 different tribes in Tanganyika, the majority being Bantu but with some non-Bantu minorities such as the Masai, the Arusha, the Iraqw and Gorowa, and the Sandawe and Hadzapi click-speaking peoples; in Uganda, there are some 30 major groups, a mixture of Bantu, Nilotic, Nilo-Hamitic, and Sudanic tribes; and Kenya has some 35 groups – again a mixture of Bantu, Nilotic, Nilo-Hamitic, and Hamitic tribes.
Quite apart from the ethnic differences, we find that they also differ greatly in other respects. Some tribes, for example, have highly organized political authorities, such as the Kings or Rulers of Buganda, Ankole, Toro, and Bunyoro; others have strong traditional chiefs, e.g. the Chagga or Haya of Tanganyika; others, like most of the Kenya tribes, were chiefless societies. There are also differences in mode of life (some settled agriculturists, others pastoralists or nomads), types of land occupied (grassland, forest land, mountainous or flat land), descent systems (the majority patrilineal, but a few matrilineal), religion (pagans, Christians, or Muslims), external administrators (different district commissioners, for example, might have exerted some personal influence), and court personnel (Chiefs presided in Uganda and Tanganyika, whereas in Kenya they performed no judicial functions).
Can there be unity in the customary laws of peoples differing in so many respects? Before I started making detailed investigations into customary law, I was impressed by the argument that such unity was impossible. I must confess, however, that my detailed researches during the last three years amongst the tribes of East Africa, and particularly Kenya, have led me to the opposite conclusion – that there is indeed a unity in African law, even amongst peoples differing ethnically, in their mode of life, and in their organization.
In the past year, I have been engaged in recording the customary law of marriage and divorce of the Kenyan tribes. If we glance at my recordings for three completely different tribes – let us take the Bantu Kikuyu, the Nilotic Luo, and the Nilo-Hamitic or Kalenjin Nandi – we find that even some of the detailed rules are identical. Thus, all three groups recognize a form of regular marriage with the payment of some marriage consideration. They also have irregular forms of marriage, e.g. by elopement, and also certain special institutions resembling marriage, e.g. levirate union and woman-to-woman marriage, the purpose of which is to bring up children for the dead husband of the widow. We find also that the rules of capacity to enter into a marriage are very similar, e.g. the requirement of the consent of the families of the spouses and nowadays legality of polygyny but not of polyandry, and the wide prohibited degrees, extending to persons belonging to the same clan sometimes several generations back. We find in all these groups the essential requirement of tendering some marriage consideration, and even the detailed rules as to its payment, return, and replacement are very similar. And finally, we find a common pattern as to the rarity of divorce, similar grounds in the few cases where it takes place, and similar effects as to the return of the marriage consideration, depending on the existence of children and their number.
Of course, there are differences; for example, the Luo recognize sororate unions – the replacement of a wife by her sister – which are not recognized by the Nandi or Kikuyu. We find differences in the detailed rules for the return of the marriage consideration – with the Luo, depending on the number and sex of the children, but with the Kikuyu, on their existence or otherwise, irrespective of number or sex. Nevertheless, generally speaking, there is unity; and rather than stress the minor differences, we should stress and encourage such unity.
This brings us to the second question, is the unity of African customary laws in East Africa desirable, and is it feasible or attainable, in the fields where it does not exist? I believe here that the answer should be a definite ‘Yes’, for many reasons. It is agreed that many rules of customary law are unacceptable in modern African societies. The unification of customary law, if coupled with reforms to meet modern conditions, will be a most useful step to get away from the antiquated past. The movements of the population and the mixing of peoples of different ethnic groups, particularly in urban areas, require that common rules regulating their affairs should emerge. From an economic viewpoint, it is desirable that many of the obsolete fragments of customary law, especially in the field of land tenure, should disappear, giving way to a unified modern law which should aim at the full exploitation of the economic resources of the country. Finally, the unity of African law is commensurate with the political ideals of modern East Africa. African nationalism will not tolerate loyalty to the tribe, but to the State, and I think this is gradually coming about. Hence the emergence of an African common law is inevitable.
Thus the unification of customary law is certainly desirable. But is it feasible? I think it is, subject to the important proviso that any unified customary law, with the many changes and reforms that it is bound to introduce, must emerge with the assent of the people – that as far as possible the unification should come from the bottom and not from the top.
It is encouraging that steps in this direction are being taken by the Governments of Kenya and Tanganyika. In Kenya, a project was started some two years ago whose aim is to re-state – and, where possible, attempt unification of – the customary law, in collaboration with the Restatement of African Law Project initiated by the School of Oriental and African Studies. The recording and unification of the customary criminal offenses in Kenya with a view to incorporating them into the written law, which I undertook in 1961-2, was achieved with no great difficulty;[8] and despite all the talk of tribalism in Kenya, I found that there was a great willingness amongst the different tribes to come together and sink the detailed differences in their customary laws. In Tanganyika, the late Mr. Hans Cory’s work on the unification of customary law is now being continued.[9]
It is true that the method or approach to unification may be different. For example, Cory favored an approach that plunged straight into unification, whilst we on the Restatement Project believe that we must first record the law of each individual ethnic group and then seek integration. But whatever method is adopted, there is no doubt that the emergence of a unified African law is desirable, feasible, and consonant with the political ideals of modern East Africa.
UNIFICATION OF RELIGIOUS LAWS
Unification between different schools or sects of the same religious law has been undertaken in many countries, and there is no reason why it cannot be achieved in East Africa. In India, a large measure of unity in the Hindu personal law has been effected through codification, and this, so far as marriage is concerned, has been followed in Kenya and Uganda, where the marriage of Hindus is now regulated by the Hindu Marriage and Divorce Ordinances of the two territories, which are almost identical.
As regards Islamic law, guidance may be sought from the Muslim countries of the Middle East, where unity has been achieved through the doctrine of Talfiq (patching), under which rules are chosen from the different schools in order to produce a new codified rule applicable to all. This was done in Kenya as long ago as I900 in the Waqf Commissioners Ordinance, which codified the law relating to Waqfs, producing rules applicable to all Muslims in Kenya. There is no reason why this should not be done on an inter-territorial basis in East Africa for the other fields of Islamic personal law.
UNIFICATION OF THE THREE SYSTEMS OF LAW
We now come to what is probably the most intricate of problems – that is the possibility and desirability of unification as between the different systems of law – general, customary, and religious. Is it possible, in the words of Lord Denning, to fit together ‘this jumble of pieces much like a jigsaw’, in order to produce a single whole to meet modern conditions? This question should be answered with reference to particular subjects in the law, always bearing in mind that unification must be coupled with changes and reform.
Concerning criminal law, the I959-60 London Conference on the Future of Law in Africa recommended that:
The general criminal law (whether mala in se such as murder or theft or mala prohibita such as traffic offenses) should be written and not unwritten: and should be uniformly applicable to persons of all communities within a territory or area having its own separate judicial system.[10]
Plans are going ahead in all three territories to produce a written, unified criminal law on these lines. At present Kenya, Uganda, and Tanganyika all have dual criminal law. In the non-African courts, the criminal law applied is that contained in the Penal Codes and other penal Ordinances. In the African/Local courts, the customary unwritten criminal law is applied, though, in Kenya only, African courts are also empowered to hear certain offenses under the Penal Code. But this situation will soon be remedied.
In Kenya, the Restatement Project was concerned with recording the customary criminal offenses as they are administered in African courts today, i.e. those offenses regarded as criminal by customary law which are not so regarded under statutory law, such as adultery. The offenses, once recorded, were then unified. It is hoped that the offenses will be incorporated into the written law, and when this is done, all the criminal law of Kenya will be written and unified.[11]
In Uganda, section 24(8) of the Constitution provides that: ‘No person shall be convicted of a criminal offense unless that offense is defined and the penalty therefor is prescribed in a written law.’ However, the provision does not come into effect until 9 October 1964, so that the Government has just under two years to define and record the customary offenses. As far as I know, the way in which this is to be done has not yet been determined.
In Tanganyika, the Minister of Justice has outlined government policy with regard to the future three-tier structure of the courts – the High Court, District Courts, and Primary Courts (as the successors of the present Local courts). The substantive criminal law to be applied in the Primary Courts will be written, and customary criminal law will ‘disappear’. It is not clear whether this means that customary law will be abolished, or whether an attempt will be made to incorporate it into the written law.
The traditional customary rules of practice, procedure, and evidence are another feature that has no place in the modern courts of today, especially now that the aim is for full integration of the court systems. Even today, the African/Local courts administer simple rules of practice, procedure, and evidence-based on the general law. In Uganda there is a provision in the African Courts Ordinance to the effect that African Courts must be ‘guided’ by the Criminal and Civil Procedure Codes. In Kenya, The African Courts Handbook contains simple rules of evidence and of criminal and civil procedure, based on the general law, but without the refinements and technicalities; and in Tanganyika, it is envisaged that the future Primary Courts will be required to follow simple rules of procedure and evidence prepared especially for them.
In the law of contracts and in commercial law, customary law plays little part, simply because it does not provide for the modern contracts that now arise as a result of the economic development of the countries of East Africa. For example, the numerous cases of debt in the African courts of today always appear to be decided on what the court thinks just and equitable without any reference to customary legal principles. Here, therefore, no complex problems of integration arise.
This is not so, however, in the law of torts, where most customary laws have well-defined principles for which compensation – normally fixed – is awarded for wrongs. These include wrongs against the person, e.g. homicide, assault, insult; against property, e.g. trespass, unlawful taking; and injuries to interpersonal relations, e.g. adultery, seduction, impregnation. This customary law of tort is mainly administered in the African/Local courts and runs side by side with the general law of torts, based on English law. There is much scope for integration in this sphere on the lines advocated by the London Conference, as follows:
The general law of torts or wrongs, and of restitution of money had and received, should be uniformly applicable to persons of all communities. In spheres where native law and custom has evolved rules of its own and these rules are uniformly applicable over a wide area, the general law should incorporate the principles common to native law and custom and English law, with such additions (either derived from one of the systems or representing a compromise between them) as might seem appropriate. Where native law and custom has evolved no rules, or its rules are manifestly inadequate in the conditions of today, the general law should, as a rule, follow the principles of English law on the matter, but without the refinements peculiar to it.[12]
Turning to land law, we find a generally held opinion that this should be based on a system encouraging the exploitation of the land and its resources. Now it is evident that neither of the systems of land tenure existing in East Africa today is suitable to achieve this purpose. The English law is complex and irrelevant to African conditions, whilst customary systems of tenure, characterized by rights of control vested in political or social groups, and by restrictions on alienation, obviously hinder full economic use of the land. Moreover, neither system is satisfactory for the purposes of ascertaining quickly the title to land.
It is evident that the answer to the land problem is the introduction of a simple system of registration, which has worked very satisfactorily in many territories outside Africa, and in the Sudan. This solution was advocated as far back as 1955 by the East Africa Royal Commission 1953-1955 Report, and again by the I959-60 London Conference. Such a system has already been introduced in some parts of Kenya and is gradually being extended to cover many parts of the country; but I believe that this is a problem which can and should be tackled on an inter-territorial basis because it affects the whole development of East Africa as a single economic unit. The aim should clearly be the individualization of land tenure by the introduction of a system of registration throughout East Africa, subject to the important proviso that the system should have full regard to the social and human needs of the population.
Perhaps the personal law relating to marriage, divorce, family relations, and succession is the most likely to raise conflicts between the general law and the customary law. Is it possible or desirable to produce laws on these matters, containing elements of the general and the customary law, and apply them to everyone? I believe that whilst it is possible – and is, in fact, being done in Ghana – it is undesirable at this stage in East Africa. The reason is that should the new law depart too much from the customary law, it is unlikely to be followed. A glaring example is to be found in the three East African Marriage Ordinances, each of which contains a provision forbidding Africans from marrying under native law and custom if they had previously contracted a marriage under the Ordinance. It is no secret that in fact the majority do so marry again and are never prosecuted. Another example from Kenya is that, despite provisions to the contrary in the registered land areas, succession under native law and custom still takes place.
I am, therefore, of the opinion that the customary law in personal matters must continue to apply for some time to come. On the other hand, whilst full-scale unification with the general law is unworkable, there is room for codification in certain basic matters. For example, it might be possible to have a Marriage Ordinance laying down conditions of marriage acceptable both to the general law and to all customary laws. The Ordinance could, for instance, lay down a minimum age; it could also require the consent of the spouses and their parents, the payment of marriage consideration – if payable by the personal law of the parties – and the observance of the ‘prohibited degrees’ according to the personal law of the parties. The Ordinance would also contain the procedure for solemnization of the marriage. The Ordinance would thus regularize the procedural rules of marriage for all persons, but not meddle with the personal law of the parties, whether customary or general.
To summarize the problem of unification as a whole, I think we can put forward the following propositions. (I) It is desirable, especially if there is to be an East African Federation or any form of closer association, that the basic legal systems of Uganda, Kenya, and Tanganyika should be uniform. (2) There is already a large degree of unity in the general written laws of the territories, and hence full integration should not prove difficult. (3) The unification of customary law is desirable and inevitable, in view of the political trends in East Africa, and the attempts at unification on the lines adopted in Kenya and Tanganyika should be encouraged and carried to interterritorial level. (4) The problem of unification and codification of the religious laws should be tackled on the lines adopted in the Middle Eastern countries for Islamic law, and in India for Hindu law. (5) There is much scope for unification as between the different systems or types of law – general, customary, and religious – in such fields as the criminal law, the law of contract, tort, and commercial law. In the field of personal law, customary and religious laws must continue to apply, always bearing in mind the possibilities of reform and codification of basic matters.
Finally, I believe that it is futile simply to make proposals or recommendations. These problems must be tackled from a practical point of view. The most expedient way to achieve legal unity in East Africa is for the Common Services Organization (and perhaps later a Federal Government of East Africa) to set up a commission for legal integration, whose task would be to examine the different systems of law obtaining in the three territories and recommend measures for their unification. In this connexion, much can be learnt from the Integration Commission that was set up in the Somali Republic in I960 as a result of the unification of the ex-British Protectorate of Somaliland and the ex-Italian Trust Territory of Somalia. There, the Commission was faced with the problem – much more difficult than that obtaining in East Africa – of integrating basically English law, as applied in the British Protectorate, and basically Italian law, as applied in the Trust Territory. Nevertheless, the Commission has already done much, and it is expected that it will complete its objective by the end of this year.
FOOTNOTES
[*] Lecturer in African Law, School of Oriental and African Studies, University of London. This article is based upon a public lecture given at the University College, Dar es Salaam, in February 1963.
[1] The dates are: Kenya, 12 August 1897; Uganda, 11 August I902; Tanganyika, 22 July 1920.
[2] See E. Cotran, ‘Recent Changes in the Uganda Legal System’, in Journal of African Law, VI, 3 (London, 1962).
[3] This Court has now been abolished, and replaced by the Court of Appeal for Eastern Africa, set up under an Act of the East African Common Services Organization (no. 13 of I962).
[4] Appeals to the Privy Council from the courts of Tanganyika were abolished as from 9 December I962.
[5] G. M. B. Whitfield, South African Native Law (Capetown, 2nd edn., I948), p. 4.
[6] C. Dundas, ‘Native Laws of some Bantu Tribes of East Africa’, in Journal of the Royal Anthropological Institute, LI (London, 1921), p. 217.
[7] A. A. Oldaker, ‘Tribal Customary Land Tenure in Tanganyika’, in Tanganyika Notes and Records, no. 47-8 (Dar es Salaam, 1957), p. 117.
[8] See E. Cotran, Report on Customary Criminal Offences in Kenya (Nairobi, I963).
[9] For details of this work, see E. Cotran, ‘Some Recent Developments in the Tanganyika Judicial System’, in Journal of African Law, VI, I (London, 1962).
[10] The Future of Law in Africa, a record of the conference edited by A. N. Allott (London, I960), p. 37.
[11] For further details, see Report on Customary Criminal Offences in Kenya.
[12] The Future of Law in Africa, p. 40.
