The movement towards the unification of laws in Africa is the expression and the measure in legal terms of this reintegration.
By A. N. Allott *
The subject that I have chosen to discuss in this paper – the unification of laws in Africa – embraces or implies many of the most pressing legal and political problems which face the African States at the present time. Dealing as I shall be doing with unification both at the national and international level, I shall have to consider the legal consequences of such permanently important events in African history as the arrival and termination of colonial rule; the reception or importation of Western legal systems into Africa; the evolution of law in societies whose members are rapidly passing from a pre-literate culture and life at subsistence level to the benefits of universal education and life in an industrial economy; the struggle for African unity; and “nation-building” in new States.
Some aspects of this subject have already been the concern of a number of conferences (e.g., the London Conference on the Future of Law in Africa, 1959-60; the Colloquium on African Law at the School of Oriental and African Studies in London in June 1963; the Dar-es-Salaam Conference on Local Courts and Customary Law in Africa, September 1963; the Venice conference on “From a Traditional to a Modern Law in Africa” of October 1963; the Ife University conference at Ibadan in August 1964, on the integration of customary and modern laws in Africa). Equally, in some African countries practical work is proceeding or has already been accomplished which promotes the unification of laws (and I shall be reporting on some of this work in the course of this paper). It might seem that there is little new that is left to be said. Unfortunately, this conclusion would be far from the truth. Many aspects of the problem have been barely mentioned, let alone worked out in detail as yet. Where there is practical work in progress, it is possible that it has been inspired and conducted without sufficient regard for the daunting theoretical and practical difficulties which confront any unifier of laws. I hope that this paper will give both an opportunity for reconsideration of the broader issues involved in the unification of laws and will offer some practical suggestions for future action, whether by African governments or by those – wherever they may be – who interested themselves in these problems.
There is nothing novel in the conception of the unification of laws, at least within the political framework created by a State or empire. The history of Roman law is, in large measure, the history of the extension of the tribal law of a tiny Italian community to all the citizens of a mighty empire. In the post-classical period, at least, the new Roman law synthesized and incorporated elements of Greek and other laws, so that it was not just a question of the blanket application of an unmodified law to more and more citizens. Medieval England, republican France, and British India, all exemplify in their different ways the elaboration and extension of a universal or general law to regions which were formerly legally diverse.
Nor indeed is the conception of international unification of laws something new out of Africa. The drive and the machinery for the unification of private law long antedate the emergence of Pan-Africanism on the politico-legal stage. What is new about the problems of unification of laws in Africa is, first, the urgency of the task, and secondly its complexity.
The task is urgent, especially at the national level, because the new rulers of African States are not willing to wait or tarry in their pursuit of nation-building. If the successor States left by the departure of the colonial rulers, often endowed with completely artificial boundaries and containing within those boundaries communities which may be suspicious, and indeed sometimes even positively hostile, one towards another, are to have any chance of survival, those frontiers must be reinforced and consolidated. The law, the legal system, is one of the strongest cohesive forces in any society; it is not surprising, therefore, that the African government’s turn for help to this instrument of social change.
Were it not for the suddenness of the double transformation which African populations and communities have had to undergo, first from traditional life to colonial rule, and then again to independent statehood, it might have been possible to let legal unity evolve or emerge as the result of the interplay of social and political forces over the centuries – this is in large measure the way in which such unity came to many of the countries of modern Europe. But the underlying stability and coherence were not present in most of the African States at the moment of independence; their continuance could not be left at the mercy of history and the slow growth of the concept of nationhood. Direct intervention by governments was called for to eliminate or minimize the factors of disunity. What those factors are or where I shall be indicating shortly; but it is well to remind ourselves, before we list the types of legal diversity that exist in African countries, that these often mirror social, cultural, religious, or ethnic differences between the communities who compose these countries.
It is this conflict of cultures and legal systems at such very different stages of development that explains the complexity of the task of unifying or reconciling the laws in Africa. On the one hand, one has legal systems of a non-formalized kind, whose rules have never up till now been the subject of juristic study or elaboration; with them, one finds a legal system (that of Islam) whose rules are thought to emanate directly or indirectly from the command of God, and which have been closely worked upon over the centuries by jurists of great sophistication. These indigenous systems, the one of little juridical formality, the other highly formalized, now confront legal systems evolved in a completely different continent, with formalized rules which are the product of judicial, legislative, and scholarly labors over the centuries, but resting on a secular, liberal, industrial and welfare-state basis.
The existence of variety or difference in African legal systems is partly attributable to an indigenous (i.e., pre-colonial) origin, and partly to innovations which were imported or imposed by the colonial powers.
Before the arrival of those powers, the different societies of the African continent were subject to a variety of legal systems. Some of these were customary in character that is, drawing their rules from the habitual practices of those subject to them; others were religious in character, more particularly where the Islamic religion had taken a political hold and had thereby come to provide the dominant legal system as well. Quite often in this latter case, the law actually observed by the people was a mixture or harmonization of Islamic and customary principles, the Islamic law being rarely applied in all its rigor; tensions and difficulties could obviously arise in such instances, especially where Muslim rulers ruled over a predominantly pagan population.
Every autonomous indigenous society had its own legal system. The extent of legal variation was not, of course, as great as this statement might suggest, as many of the customary laws were either uniform or closely related in those macro-ethnic groups which shared similar laws. There were many resemblances to be found in the legal systems, even as between societies having a different language, history or culture.
Imported or imposed variations
The variations which have been imported into, or imposed upon, African legal systems (as a result mainly of the colonial experience) are of two kinds: those which obtain within a single State or territory, and those which are found between different States or territories.
(a) National or intra-State variations. Intra-State variations in law are attributable in the main to the artificial character of the colonial frontiers. Only in a relatively few instances, e.g., Lesotho or Basutoland, does a national frontier more or less correspond with a legal or cultural one. The colonial frontiers united peoples who were widely different in culture or law and divided those who were closely related. The boundaries of modern Ghana – on the west with the Ivory Coast, on the north with Haute Volta, on the east with Togo – illustrate both these points. Such internal variations in indigenous law enormously impede the evolution of a common or general national law, at least by way of the synthesis of common customary law.
In pre-colonial times a number of African States or kingdoms, which were equally polyethnic in composition, had to deal with similar problems. Where a dominant group conquered neighboring peoples, as did the Ashanti Empire in the eighteenth and nineteenth centuries, it left for the most part the pre-existing local laws in operation. Even within the homeland – the Ashanti Confederation itself – the laws of the different confederated Ashanti States were not necessarily uniform, although a conscious effort was made to build up the concept of Ashanti nationality. Such local intra-State variations were being steadily eroded, however, by the extension of the central power and the submergence of local particularisms.
The colonial powers, at least the British, were not committed to a policy of unification of customary law. On the contrary, policies such as that of “Indirect Rule ” implied that each people should be left free to develop in its own way, at its own pace, and in the direction chosen by the people or their traditional rulers. The hidden forces of educational and economic advance were, of course, at work during this period, as was the inclination of the judges and others who came into official contact with the customary law to emphasize the similarities and overlook the differences between customary legal systems. It is, however, only since the termination of the colonial period, and with the emergence of countrywide political parties, that those in authority have become consciously aware of and concerned by diversity in customary laws, and that direct action, in conformity with the prevailing political objectives, has been initiated to deal with it.
A second kind of internal differentiation of legal systems has already been briefly mentioned: it is that between the indigenous and the imported laws. The colonial power introduced its own metropolitan law, or a variant of it, into its newly acquired African territory. The general or territorial legal system thus created usually applied throughout the territory and to all its inhabitants; but there were very substantial exceptions, at least in the British territories, in favor of the indigenous populations, who, by the relevant legislation, remained largely subjected to their own local and customary laws. This was especially true in those areas of life where the most direct conflict could otherwise arise between imported and indigenous law, for example, in the law of the family, of marriage and divorce, the law of property and succession, and the law of civil and criminal wrongs. Nor was this all: the British also recognized, and made official instruments of their colonial rule, the indigenous tribunals which administered justice to the African populations. The institution or recognition of a native courts system in parallel with the system of territorial or western-law courts obviously did an enormous amount to build in and maintain the dualism of laws.
As time has passed, the extent of the application of customary laws has been cut down in various ways. A typical example is provided by the partial or total disappearance in many countries of indigenous criminal laws. The people subject to the customary laws have themselves, by their voluntary choice, adopted more and more the Western-type law with which to regulate their legal relations (as with the spread of monogamous marriage, transfers, and tenure of property under Western law, and the conclusion of contracts by the general law). But the dualism in laws (often in truth a plurality consisting of imported and locally made laws of Western type; customary laws; and religious laws where applicable) has continued in existence up till and after the moment of independence.
A third type of national diversity of laws is the consequence of the creation of federations. This variation differs from the preceding, in that it is not a difference between types of law – western and customary – but between different sub-types of laws belonging to the same major family. Sometimes such federations, as with Nigeria, have created differences in what was formerly a unitary system; in other instances, the problem arises from the combination of countries that were formerly entirely separate – as with the Somali Republic and Cameroun. Regional variations in law are also found in countries which are not strictly federations; thus in both Ghana and Uganda at independence, the statute laws of different parts of the country were not the same.
(b) International or inter-State variations. Legal variations between countries in Africa might seem no more important than those which exist in other parts of the world, and the problems that such variations pose might seem amenable to the same solutions as find favor elsewhere (as with the attempt to unify the rules of private international law and the laws regulating commercial transactions). The universalist solutions worked out elsewhere are not to be rejected out of hand as possible answers to Africa’s legal problems; but it is worth pointing out that the special problems faced by African countries in the international unification of laws, and the special concern that their governments are beginning to show about such problems, differ in degree from those experienced in other continents.
The inter-African divisions introduced by colonial frontiers have already been mentioned. These frontiers might and often did divide peoples of similar cultures from each other. Divisions at the customary law level might well have been considered unimportant by African governments, especially those of a modernizing frame of mind. But the utterly arbitrary political divisions between States could not be so easily ignored. African resentment at them has given rise to the movement, stronger in some quarters than in others, for inter-African unity, or at least a closer association. The unwanted legacy of colonial rule is not limited to the political fragmentation and the artificial boundaries which define it; linguistic barriers, between French-speaking and English-speaking Africa particularly, now exist. Anyone who has attended an international conference in Africa will know the frustrations to which this linguistic barrier gives rise.
The legal diversity of Europe, and particularly of the powers with colonial interests in Africa, was imported (like its religious diversity) into Africa. The French legal influence was, of course, dominant in those parts of north, west, and central Africa under French rule. Fortunately, the other continental European colonial powers possessed legal systems closely related to the French. Belgian, Italian, Portuguese, and Spanish law form, along with French law, the civil law camp or group in Africa. The Germanic legal contribution, which might have been substantially different from the Latin, largely ceased to be of relevance with Germany’s loss of her African empire; nevertheless, German law has still remained of some importance, especially in the sphere of land rights, in Tanganyika and South West Africa.
The common law contribution to Africa was just as important, and in some ways just as varied. Three main sources have contributed: they are the legal systems of England, of British (and now of independent) India, and of the United States. In British West Africa it was English law that predominated and supplied the basis of the legal systems. In East-Central Africa the British borrowed at first, not from England, but from the law of British India. The originally humble residual role that the law of England enjoyed in the legal systems of East-Central Africa has, over the last few decades, been progressively enlarged; but some Indian influence is still discernible in East African law. Liberia (founded as an independent settlement in the nineteenth century) took its general legal system from the common law, equity, and statutes of England and the United States; the affiliation of the Liberian system is now more uniformly American than the early legislators would appear to have envisaged.
A third great (though less extensive) legal family is to be found south of the Zambezi. The law of the Dutch colonists at the Cape – now known as Roman-Dutch law – has spread out from its original planting at the southern tip of the continent to embrace the High Commission Territories of Basutoland, Bechuanaland, and Swaziland, as well as the self-governing colony of (Southern) Rhodesia, even though all of these were under the jurisdiction of the Crown in Britain. The mixture of Roman law principles with the Germanic customary law of the Dutch has received, in southern Africa, another powerful modification with the intrusion of principles of the English statute and common law. The resulting hybrid, which could more exactly be described as “Anglo-Roman-Dutch law,” is in many ways a bridge between the common and the civil law worlds.
These European legal systems of different types and origins have not continued to exist in complete isolation after their implanting in the continent. Apart from their continued connections with the laws of the metropolitan countries, they have in some areas conflicted or competed with, or at least mutually influenced, each other. By far the most fascinating corner of Africa from this legal point of view is North-Eastern Africa, i.e., the Horn of Africa and its immediate neighbors. The conflict between legal systems in this area has sprung from competition, eclecticism or synthesis.
As an example of competition, one may cite the Sudan. Sudan, with its pivotal geographical and political position in Africa, finds itself at the center of legal cross-currents. The conflict between Islamic law and customary law, for instance, largely reflects the uneasy relationship between the Arab-inclined north and southward-looking south. The paper condominium between Egypt and Britain was not reflected in Sudan’s choice of the territorial legal system, which derived mainly from that of British India and hence ultimately from the common law of England. It was these laws which the Faculty of Law in the University of Khartoum taught, and which were imbibed by judges and practitioners. Egyptian penetration in the legal sphere has, however, been of growing importance in recent years; and I understand that the Khartoum branch of the University of Cairo in fact turns out more Sudanese graduates (in Egyptian law) than the University of Khartoum does of those qualified in Sudanese (that is, British-type) law. The competition between the civil law system of Egypt and the common law system currently in force in Sudan is just about to be joined; no one can yet say what the eventual outcome will be.
Sudan’s neighbor, Ethiopia, provides another and even more fascinating example of legal systems in conflict. The program for the replacement of Ethiopia’s heterogeneous assemblage of written and unwritten religious, customary, and statutory laws by a unified system of codified law has made great progress in the last ten years. Here the choice between competing systems is not left to popular forces or even to the balance of forces in the legal profession; the eclecticism which has inspired the new legislative program is the consequence of the desire of His Majesty the Emperor and his advisers to draw on as wide a variety of laws as is reasonably possible in the making of the new Ethiopian legal system. Thus the Penal Code, drafted by an eminent Swiss jurist, and the Civil Code, drafted by a leading French professor of comparative law, both inevitably reflect the nationalities of their draftsmen. The scales as between civil and common law are balanced, however, by handing over responsibility for instruction in the new codes to a faculty of law at the university in Addis Ababa, a faculty where the medium of instruction is English and where the teaching staff are predominantly American lawyers.
Our third example from the Horn of Africa illustrates yet a third type of conflict. The Somali Republic, born in 1960 of the marriage of former British and former Italian Somaliland, at first found itself divided into two law areas, in one of which (the northern regions) British law prevailed, whilst in the other Italian law prevailed. Islamic personal law and Somali customary law contributed to the complexity of the legal situation. It is possible for a country to continue in existence with different portions subjected to different criminal and civil laws: Scotland, Quebec, and Louisiana will all testify to this point. But, as I remarked earlier, it is dubious how far an African country which has just attained independence can afford to institutionalize gross regional differences; the Somali Government has accordingly set in train the integration of the laws in the Republic. We shall be seeing in a moment how it, and other countries which find themselves in the same position, have been tackling this problem.
II. POLICIES AND TYPES OF UNIFICATION
From problems let us turn to solutions. Before discussing in detail the agencies and methods of unification, I should like to say a few words about the types or levels of unification that are now under consideration and the policies of the African governments in respect of them.
1. Policies and Forces for Unity
I have already mentioned the forces that are working for unity, and hence for unification, of laws, at the national and international levels. These forces, at least in some of the African States, are the expression of governmental policies which have been formally promulgated. This is so, at the national level, in Tanzania, Ghana, Malawi, Zambia, and in many of the francophonic States (such as Senegal, the Ivory Coast, and Madagascar); and at the international level in Ghana. Federation in East Africa has been mooted, closely discussed, and left in temporary abeyance; other regional associations, perhaps of a less formal or more limited kind (as with Zambia and Tanzania, or with the projected customs union between Sierra Leone and some of its neighbors), are being discussed or arranged.
The rapid appearance and strengthening of African cooperation through the medium of the OAU, with its creation of a specialist Commission of Jurists and the facilities which it may be able to offer for international harmonization of laws, is the most conspicuous testimony to the pan-Africanist spirit in action.
On the other hand, African countries are now much more wary than they were of federations (the East and Central African experience has not been encouraging); and inter-State cooperation is being placed on a more realistic, and hence less far-reaching, basis than the more ardent advocates of undiluted African unity would wish. Sources of disunity as well as of unity make themselves felt. The stresses and strains to which the Federation of Nigeria is currently exposed, the apparently incompatible national interests and philosophies of neighboring African States, the re-emergence of the ” tribal ” factor in national politics-all in their different ways warn African governments that the road to unity, whether nationally or internationally, is unlikely to be a smooth one.
2. Types and Levels of Unification
With the problems which are posed by the multiplicity of laws in Africa in mind, and with a brief reminder of the political limits to the trend towards unity in Africa, we may now turn to an examination of current progress in unification of laws.
(i) Unification of customary laws. The first kind of unification on which we must remark occurs within the national framework. It is that of the unification of customary laws. Often this appears to be viewed as the first step on the road to the development of a single national law, which will embrace or replace all the existing competing or co-existing systems-statutory, customary, and religious. The more cautious (and in my opinion better advised) African States see the unification of customary laws as depending on a prior ascertainment and restatement of their existing customary legal systems. That is, they believe that it is impossible – or at the least highly risky and unscientific – to try to unify diverse legal systems without knowing what each of those systems is or contains.
Indeed, some of these countries, such as Kenya, have entered into no commitment beyond the systematic restatement, according to a scientific plan and in a standard form, of their customary laws. The less cautious African governments – once they have interested themselves in the problems posed by multiple customary laws – try to take the shortcut to complete the unification of laws in a single step. This would appear to be the position in a number of French-speaking States. Other countries, such as Tanzania, occupy an intermediate position.
The most notable exponent so far of the unification of customary laws (at least in English-speaking Africa) is Tanzania. The then Tanganyika Government’s scheme for the unification of customary law began in 1961. The progress of the work was intended to be by stages, of which the first was to divide the tribal communities of Tanganyika into a small number of homeonomic groups. The patrilineal Bantu-speaking peoples of north-western Tanganyika (including such important groups as the Sukuma, the Nyamwezi and the Gogo) constituted the first and most important of the groups. The matrilineal Bantu-speaking peoples constituted a second such group; and the coastal, wholly or partially islamicised, groups a third. Research began, under the direction of Mr. Hans Cory, the government sociologist, and investigator of Sukuma and Haya law, into the patrilineal Bantu laws. Again, the original intention was first to find out the content of each of the customary systems, by means of oral inquiry from selected groups of expert elders, and then to attempt to prepare a unified statement of customary law which would conform to the laws so investigated. Where the proposed unified draft differed from an existing system, the intention was to discuss the proposed changes with district representatives and to get their assent to them. Failing that assent, either the unified draft would not be applied in that area, or a modified version of the general draft would be adopted.
This was the original plan. In practice, it has undergone some modification. The extent to which prolonged and patient attempts have been made to ascertain the different customary laws before formulating a general synthetic law has steadily decreased. The later stages of the scheme seem to be more concerned with “selling” an agreed draft to ethnic groups which have not been investigated, rather than with total ascertainment of customary laws before the attempt at synthesis. This would appear to be a weakness due to the urgency imposed by the government on the completion of the scheme. Once the unifying approach has been extended to the matrilineal peoples, the risk is greatly increased that the new unified law may do violence to the essence of the existing laws and the people’s true wishes in the matter of their development.
Ghana’s way to the unification of customary laws is, first, by providing statutory machinery by which a rule of customary law which is believed to be of general application throughout Ghana may be formally declared to be ” assimilated ” to the common law, that is, to the general law of Ghana; and, secondly, by judicial decisions of the superior courts, where the judges themselves fail to remark, or positively play down, local and ethnic variations between customary laws in the interests of the emergence of more general customary law. The first method has not yet, I believe, been put into operation; the second (which is the result neither of governmental initiative nor of conscious plan on the part of the judges) has been in operation for a number of years, though the judicial tendency towards unification has recently been emphasized.
(ii) Harmonization, integration or unification of customary, statutory and other laws. I adopt first the definitions which I put before the Ife Conference of these three terms, which describe stages in the unification of laws in a particular country.
“By harmonization is meant the removal of discord, the reconciliation of contradictory elements, between the rules and effects of two legal systems which continue in force as self-sufficient bodies of law.” Such harmonization, which can obtain either at the national or international level, presupposes the maintenance in force of the existing legal systems, but that incompatible results of applying one or other of two co-existing systems are eliminated, as is doubt as to which system is to apply in a particular case.
“By integration is meant the making of a new legal system by the combining of separate legal systems into a self-consistent whole. The legal systems thus combined may still retain a life of their own as sources of rules, but they cease to be self-sufficient autonomous systems.”
One might argue that such integration occurred with the “fusion” of law and equity in England in 1873. It is a much more advanced stage than mere harmonization and will need legislation for its implementation. Typical of an integrated system will be an outline law which regulates all transactions or relations of a specific type, e.g., marriage, but which permits the continued existence, within that framework, of different species of marriage, e.g., under customary law, under statutory law, under Islamic law.
“By unification is meant the creation of a new, uniform, legal system entirely replacing the pre-existing legal systems, which no longer exist, either as self-sufficient systems or as bodies of rules incorporated in the larger whole; although the unified law may well draw its rules from any of the component legal systems which it has replaced.” One can argue that harmonization of laws, as between “English” and customary law particularly, was well advanced during the colonial era in the British territories; though in most instances this had not gone as far as the enactment of a single controlling law, which would have ushered in the integration of the laws. There were proposals, even during the pre-independence period, for integration or even unification of some branches of the law, which in some instances were translated into actuality. Thus in Kenya, there were discussions about the possibility of making an integrated outline law of succession; in Northern Nigeria, a practically unified law of crimes was enacted in 1959 with the new Penal Code; this was integrative merely to the very limited extent that it did not completely abolish the customary and Islamic laws of crime, at least as far as illicit sex relations and the drinking of alcohol were concerned. Similarly, there were proposals, partly inspired by the Colonial Office in London, for the creation of a uniform system of land registration, covering interests under customary law just as much as under English-type law, which would be capable of application in the African territories. Something of the sort has in fact now been enacted in Kenya.
But on the whole, the move towards integration or unification of laws has been a consequence of independence, of the desire to build a nation, to guide the different communities with their different laws to a common destiny. An example of this policy, as applied to a section of the personal law, is provided by the abortive Marriage, Divorce, and Inheritance Bill of Ghana. This Bill sought to overcome the disadvantages and discriminations which were believed to flow from the recognition of three distinct kinds of marriage in Ghana-monogamous statutory; customary; and Islamic. These different kinds of marriage were not eliminated, but many of their discordant legal effects were removed. Thus a common procedure for dissolution of marriage was proposed; and the scheme of succession applicable to married persons would not vary according to whether they had entered into a monogamous or other form of marriage. The Bill, which shows signs of having been hastily drafted without sufficient consultation with those concerned (almost all the population of Ghana, in one capacity or another) – it attracted the criticism of the then Dean of the Faculty of Law at Legon that it was “the nadir of the draftsman’s art” – has been subjected to further processes of consultation and redrafting. No action appears to be being taken on it at present.
A far more revolutionary process of unification of laws took place in Ethiopia with the passing in 1960 of the Ethiopian Civil Code. This code, at least in theory, entirely replaces the pre-existing written, customary, and religious laws, though in some ways continued recognition is accorded to such laws. Thus in the law of marriage, there is only one type of marriage recognized – monogamous marriage – with a single set of consequences and a single procedure for dissolution; but persons may choose to marry by either civil, religious or customary form. This ambitious piece of legislation has not, I understand, met with complete acceptance, either by the people subject to it, or by the authorities; and it has now been authoritatively stated that it is not intended to set out the present applicable law in all its rigor, but is rather an ideal or a program towards which the people will progress by stages. Failure to conform to the code, either by the citizens or by the courts, will therefore apparently be tolerated for some time to come. The perils of too hasty unification could not be more clearly indicated than by the history of the Ethiopian and Ghanaian legislation we have just been discussing. I shall have more to say about this in a later part of this paper.
(i) Inter-legal federations. By this term, I refer to those federations where the legal systems of the component parts belonged or belong to substantially different law families. In one sense the resulting problems of conflict and reconciliation take place within the framework of a single State, but in another sense, this may be viewed as an example of inter-State conflict. Very often such a federation has been constructed by the union of formerly separate territories; and the inter-legal problems might well be, as with Gambia and Senegal, one reason why the possibility of federation might be very carefully considered before it occurs. Apart from the now departed Federation of Rhodesia and Nyasaland, which combined two northern territories governed by English law with one (Southern Rhodesia) governed by Roman-Dutch law, the Cameroun and Somali Republics are to date the only other examples of such federations in Africa. The union between Gambia and Senegal is being discussed; and there are always possibilities, both in East and West Africa that further such federations may be created in the future: e.g., an association of Nigeria with Niger or Dahomey, or of Burundi with Tanzania. These federations are of special fascination from the point of view of the comparative lawyer, because of the problems which he habitually discusses at the theoretical level, such as the reconciliation of differing legal concepts or the contrast in the approach of common and civil law to the interpretation of statutes, have to be met and answered at the practical level. It would be possible – and, failing any other action, this is likely to happen to leave the legal systems of the component regions of the new federation to function as before. It might not even be necessary to unite them by a common court of appeal. But, in the African countries affected so far, the governments have not been content with this sort of solution, except as a stop-gap. While not destroying the pre-existing laws, both Somalia and Cameroun have established commissions whose task it is to draft new unified laws for the whole of each country; and, even before this difficult job has been accomplished, the judicial systems have been united at the top by the creation of a supreme court of appeal.
By what law is this Supreme Court to be governed? Normally by the law of the region from which the appeal has come. What procedure is this Supreme Court to follow? This is a more difficult question and one which the Federal Supreme Court in Salisbury was just beginning to tackle before it was dissolved. In the Somali Supreme Court, the practice up till now seems to have been to follow the procedure, at least as far as the interpretation of statutes and style of judgments are concerned, appropriate to the substantive legal system governing the case.
I should now like to describe in greater detail the work that has been accomplished so far, and the obstacles which have appeared, in the unification of laws in these inter-legal federations:
Somali Republic. We begin with the Somali Republic, which was constituted on July 1, 1960, out of the previously dependent territories of the British Somaliland Protectorate and the Trust Territory of Somalia under the Italian administration. As already noted, a single Supreme Court was constituted for the whole country; but the general law in the northern regions continued to be that established by the British (viz., a mixture of Indian, English, and locally enacted laws), while that in the southern regions was basically Italian law with some local variations.
By presidential decree of October 11, 1960, a Consultative Commission for Integration of the Laws was established, having a membership of jurists trained in Anglo-American, Italian, Islamic, and customary law respectively. It is under the presidency of Dr. P. Contini, United Nations Legal Adviser to the Somali Government.
It might have been thought that, even if the northern and southern halves of the country were divided by differences in the general law, yet they were united by a common subjection to the Sharia and to Somali customary law, and that these indigenous laws would accordingly provide the basis of a national law. This has not been done. The dualism in types of law – as between Western and indigenous laws – remains. Although the separate Kadis’ courts have now been suppressed, problems in choice of law, as between statutory and indigenous, may still arise. It is interesting to note that much of the work of the Integration Commission has been concerned with the drafting of unified administrative and regulatory laws, rather than with tackling the broad problems posed by the co-existence of two kinds of civil law, Italian and English. Thus among the earlier and more fundamental laws were ones dealing with the organization of the government and local administration. Other new laws regulate the police, legislature, judiciary, currency, taxation, and finance. Studies are currently in progress of the customary laws of land tenure but, apart from this, customary law has not been brought into the codification picture.
One of the more ambitious pieces of legislation, and the most interesting for our present purposes, is the new Somali Penal Code. This code at least had the advantage of replacing penal laws that were already codified, viz., the Italian and Indian Penal Codes. It has been enacted in Italian and English, the two languages of government, but undoubtedly the new code borrows more from Italian than British traditions and ideas. In the Code of Criminal Procedure, on the other hand, English or Indian influence has been more pronounced. Thus the rules of evidence are mainly taken from the Indian Evidence Act, and the writ of habeas corpus now applies throughout the country. This contrast in the influence of British legal ideas between substantive criminal law and procedure respectively reflects a not uncommon judgment in the legally eclectic countries of Africa that there are substantial advantages in the English, as compared with the continental European, kind of criminal procedure.
Cameroun. The Federal Republic of Cameroun was constituted on October 1, 1961, from the territory of the Republic of Cameroun (formerly a trust territory under French administration) and the Southern Cameroons, formerly under British administration, and which had been administered as a more or less integral part of Nigeria. East Cameroun was thus endowed with a typical French colonial legal system, West Cameroun with a typically British colonial system, its laws being basically those of Nigeria, and thus ultimately those of England as on January 1, 1900, with later additions. Unlike in the case of the Somali Republic, there is no bond of a common language, a common culture, a common religion, a common ethnic origin, or a common customary law between the two component states of the federation: the strength of the impulse towards political unity was also much weaker.
In the result, the obstacles in the path of legal unity are clearly much more serious. There has been and continues to be, a feeling in some circles in West Cameroun that it should not be swamped by French culture and influence coming from the dominant eastern side. Possession by the West of an English-type legal system is one of the most obvious and prized marks of difference between the two states. The drive for legal integration has not therefore been as wholehearted and well-supported as it might have been. Nevertheless, the policy of the Federal Government is clear: the eventual establishment of a uniform system of law in both East and West Cameroun. This program is greatly assisted by the distribution of powers ordained by the Constitution. Under Article 6, most of the civil and criminal law is declared to be within the federal jurisdiction, notably the law of persons and property and of civil and commercial obligations and contracts, the administration of justice (excluding customary courts in West Cameroun), criminal law, etc. Under Article 6 (2), the Federated States may continue to legislate on these subjects until the Federal National Assembly or the President have determined to exercise their jurisdiction under this article.
This the President has now begun to do. By Federal Decree of February 29, 1964, the President established two commissions of legislative reform. The first, entitled “Commission Federale de L6gislation civile et coutumibre” is charged with the responsibility of preparing draft Bills providing for a civil code, a code of civil and commercial obligations, and a code of civil procedure. Similarly, the second commission, entitled “Commission F6d6rale de Legislation p6nale,” is to prepare Bills for a penal code and code of criminal procedure. The membership of the civil law commission includes federal and state representatives, as well as five traditional chiefs (of whom one is from West Cameroun) and three representatives of the religious authorities.
The penal law commission has a much more straightforward task. The method so far adopted has been to set the Nigerian Criminal Code and the French Penal Code side by side, to compare their provisions on a particular matter, and to attempt to produce a draft which reconciles the two codes. Sometimes this is impossible, and an election must be made for the French or the English approach. Sometimes neither law has been exactly followed, and modern improvements have been introduced. The preliminary draft of the first part of the Penal Code has already been prepared.
Whilst customary criminal offenses are of little moment in the drafting of the new Penal Code, and it is unlikely that the code’s provisions will reflect customary laws and conditions in Cameroun to any great extent, the position is quite different in the civil field, where various kinds of customary law, and Islamic personal law in some areas, are of considerable importance. The Civil Code will therefore have – at least in theory – to reconcile not only French and English law, but also the rules of the different customary and other indigenous systems. I do not know what plan has been definitively adopted to cope with these problems, but it is possible that primary reliance may be placed on the questionnaire method of ascertaining the different customary laws, as has been done in other francophonic African states. There are grave scientific objections to this particular method of inquiry; but money, time, and expert staff are scarce, and this method may have to be adopted faute de mieux.
Both in Somalia and in Cameroun the two kinds of western law which have now to be unified do not start from a basis of equality. The legal profession in the Somali Republic is mainly of Italian formation or extraction, the dominant political influence is that of the Italian-speaking section, and the codified law, notably the Penal Code, inevitably inclines to the Italian way of doing things. This is exemplified by the Constitution and the legislative machinery themselves. Thus there are no Acts or Orders, but laws, legislative decrees, decree-laws, decrees, and regulations.
The position is similar in Cameroun. The legislative structure is French in type, and French-speaking East Cameroun is the dominant partner. At the Federal University in Yaounde the law taught at the Faculty of Law is almost exclusively French law, though the picture is changing a little with the introduction of some instruction in English law.
It might be thought that the subordinate position occupied by the common law system in each of our two examples should simplify the process of elaborating a new unified codified law since the concept of an all-embracing civil code is much more familiar to those trained in the civil law tradition. There is substance in this belief, but the point must not be pressed too far. Indian influence on the law of British Somaliland firmly established both the idea and the practice of codified law there; and both in Somalia and in Cameroun the British-type criminal law is codified.
(ii) Regional associations. There is much less to be said about other types of unification of laws between African countries since much less has as yet been achieved. The first possible framework within which unification, or at least harmonization, of laws, may occur is in regional associations, especially those set up for economic purposes. Whether customs unions of various kinds will spread (they exist already, of course – for example between Kenya, Uganda, and Tanzania), and whether they will form the basis for a more intense economic association (perhaps along the lines set by the EEC) is not yet certain, though many voices have advocated such associations, either for their own sake or as the prelude to political unity.
(iii) Associations within law-families. Legal linking within members of the same law-family is another possibility. This need not be confined to States within the same geographical region. If harmonization or integration of laws is wanted, it is much easier to produce within the same law-family, of course. The colonial system developed many such links, by the creation of common courts of appeal, the interchange of legal and judicial staff, the employment of model laws originated in the metropolitan country, and so on. Some of these links still survive. Others, like the defunct West African Court of Appeal, which served what are now the Gambia, Sierra Leone, Ghana, and Nigeria, might be revived (and there has been some discussion, especially in professional and judicial circles in West Africa, of the possibility of such a revival). The Court of Appeal for Eastern Africa still links a number of countries and territories in East Africa or within the Indian Ocean region. The link with the Privy Council in London (now dwindling in importance) and the link with the Commonwealth are other factors of significance in common-law Africa.
The monolithic uniformity of legal systems in ex-French Africa has always been greater than in ex-British Africa. Even with the appearance of local law faculties and schools in francophonic Africa, legal education still seems to be closely tied to that of France. On the other hand, the enactment of local codes, to replace the imported French ones, leads to divergence in what were formerly more or less uniform legal systems. This has alarmed some observers. Thus Professor Ren6 David, of the University of Paris, has put forward the idea of an inter-African commission for the drafting of model laws for application in member-States.
(iv) Continental associations. What are the possibilities of continental harmonization or integration of laws; and in what fields is it likely to take place? Up till recently, the possibilities – except in matters of universal concern, such as copyright law, or of general African concern, such as the preservation of wild-life – would have seemed small. The picture is rapidly changing now. First, the United Nations Economic Commission for Africa, located in Addis Ababa, should promote both the collective study of common economic problems in Africa and joint action to deal with them. New laws may well flow from cooperation in this sphere. And, secondly, the OAU now provides a political umbrella for closer association and concerted action between African States. The recently constituted Commission of African Jurists has now been adopted by the OAU and may provide a means by which legal problems of common concern to African countries will be discussed and resolved. The Commission is only in its infancy; it is not yet possible to predict how far it will be able to achieve substantial results, or in what fields. But the machinery at least is there now or in the process of creation.
III. THE THEORETICAL PROBLEMS
I should like to close with a brief discussion of some of the more important theoretical problems which flow from any attempt to unify or integrate laws, whether at the customary law level, nationally, or internationally.
One basic problem is that of choice of method. Is one to choose legislation as one’s instrument of unification, or leave unification to the operation of time? Undirected, spontaneous legal change is going on all the time. The common exposure of those subject to different laws to uniform external factors (such as education, western patterns of life, the demands of economic development) must tend to establish common legal patterns as well. Movements of population, the mixing of peoples, is the most obvious way in which cultural changes can be diffused and differences in customs or manners worn away. Men from many different tribes or communities rub shoulders in the anonymity of the city. The city, the characteristic feature and consequence of Western industrial civilization, is a social laboratory. It is also a legal laboratory, at least so far as customary law is concerned. The development of a kind of urban customary law can be observed in the towns of the Zambian Copperbelt, for instance. What is superfluous, what is expendable, what relates solely to a rural and traditional environment that is now disappearing, will be stripped away from the customary laws in the city environment. The self-sufficient local communities of former times, upon which the community law was based, no longer exist.
It is the same, though to a less acute degree, at the international level. In the past, the mixing of African 6lites took place outside Africa – in Paris, London or New York. The range of these contacts was largely confined to those of the same (western) tongue; contact between English speakers and French speakers was minimal. Inter-territorial migration of labor did and does take place between African countries; although this may diffuse new social habits, it is doubtful whether it has contributed to any substantial alterations in legal systems. In the last eight years, the picture has entirely changed. Inter-African elite contacts on African soil multiply every year. Pan-African organizations of many different kinds and functions mushroom all over the place. Communications facilities reflect these new forms of contact. Whereas in the past it might have been necessary to route a telephone call through Paris or London in order to speak from one African capital to the next or to fly up to Rome in order to get from East to West Africa, today direct facilities are being established. Exchanges of experts of all kinds are going on. One of the more significant ones – from our point of view – is the exportation of West African lawyers (especially Nigerians and Ghanaians) to serve as judges and magistrates in the under-staffed countries of East and Central Africa. A Nigerian touch is brought to the Uganda High Court; Ghanaian and Nigerian judicial experience is invoked in the Court of Appeal for Eastern Africa.
Harmonization, integration or even unification of laws may also be brought about by the judges, at least in common-law Africa. This might well be described as a semi-directed mode of bringing the laws more closely together. Equally, there is a common tendency for legal draftsmen in less well-endowed States to borrow legal ideas from other more fortunate jurisdictions. African borrowing was, in the past, mainly from European models. This is no longer the case. Tanganyika’s constitution and some of its other legislation reflect an awareness of and reliance upon the new laws made in Ghana (though in this instance there have been interesting divergencies from the model where it was felt to be inadequate or unsuitable – e.g., in the nature of the presidential system introduced into Tanganyika, and in the provisions controlling the application of customary law under the Magistrates’ Courts Act, 1963). Tanganyika’s legislation, for example in the field of local courts, has been used as a model in Malawi. It is less easy to cite instances of legislative borrowings between law-families, though some might say that Ghana’s republican constitution is based on the French Gaullist pattern, or at least on this pattern as it is expressed in the legislation of French-speaking West African States, rather than on that established in other common-law countries in Africa or outside.
Directed change in the laws so as to promote legal uniformity requires the intervention of the legislator. Such change may be brought about by consultation leading to unification: two examples are the Tanganyika unification of customary law scheme, and the consultation between East African law officers so as to ensure uniformity in commercial legislation. Or it may be brought about by purely legislative means: examples of the use of legislation for this purpose, both at the national and international levels, have already been cited.
From the technical legal point of view, the main problem is the reconciliation of juridical concepts, rules, and institutions, which vary enormously from system to system. It is not just a question of finding a via media between two European systems-as is being done in Cameroun and Somalia; it is a question of finding an alternative new law which reconciles and unifies the old, when they are as various as unwritten pastoral customary law on the one hand, and a sophisticated learned industrial written law on the other.
Many African countries – especially in the French-speaking sphere – are talking of or carrying out the unification of the diverse customary laws within their frontiers. This may pose nearly as great problems as the reconciliation of Western and indigenous ideas. If, as some commentators assert, all these customary laws are basically the same, the work of unification hardly seems worthwhile; if they are as distinct as others believe, unification must mean a fundamental departure from the rules of many or most of these systems. In the latter case, it would hardly be meaningful to assert that the new law was a continuation of the old.
Faced with these theoretical objections, some jurists or governments feel that the only way out is through the wholesale elimination of the conflicting systems, and their replacement by a new codified law which must inevitably be Western in character. This, after all, was the solution of Kemal Ataturk in Turkey. Such a law would be an imposed law and not one which had evolved naturally from the social environment.
Proposals for uniformity of laws, whether by reconciliation and merger or by suppression and replacement, of existing systems, unavoidably pose the question of how far it is possible to impose and operate a unified law on a society which is fragmented and diverse. Gross diversities of race – as with African, Arab, European, and Asian elements in East Africa – are found in some States, but are relatively unimportant numerically. The more subtle diversities are those between local ethnic groups or communities, which may be divided by different laws, languages, cultures, and economics. Religions, notably those of Christianity and Islam, may also separate one group or community from the next. Educational and class stratification has also appeared, especially that which divides the older illiterate generation from the younger western-educated one.
A legal system is inevitably a compromise. In England too there are diversities of class and behavior, but we do not directly legislate for them. The real question is whether the differences in African countries are too great to be dealt with in the same way. An imposed uniform law, I suggest, can only work in the long run if it has a measure of popular understanding and acceptance. The Ethiopian Civil Code, to take one stark example, would appear at present to enjoy neither. Its draftsmen suggest that the code is to operate more as an ideal law or as a program for social change, than as a system of rules actually and categorically in effect. It is perfectly true that the trend of social change in Africa makes eventual acceptance of a unified law likelier, as the forces of education, economic development, and social mixing get to work; but is it good enough for the present period – that is for the next ten to fifteen years – to have a law which is not effectively wanted or applied? When one remembers all the other upheavals taking place in Africa today – the political revolutions, the educational explosion, the development of industry – can society support such a grave disturbance of the system which regulates it and the relations of its members? Law, as we know, can be the promoter and not the consequence of social change; but use of the legal weapon in this former sense implies a risk to the stability of law and order which may be unacceptable.
It is not enough to formulate a policy for the unification of laws. Someone must carry it out. Who are the technicians who are competent to draft these laws? A great deal is demanded of them: they must be familiar with the rules of the existing laws which they wish to harmonize or unify; they must understand the problems of conflict and the methods of reconciling them between disparate legal systems; they must appreciate how the new law which they are preparing will fit into the society for which it is being drafted – in other words, the social and economic repercussions of the new law. And they must be highly skilled draftsmen, whether they are operating within the English or the French legal tradition. In other words, the draftsmen must be learned in the existing laws (especially difficult where customary laws are involved), they must understand the problems and methods of comparative law, they must understand the workings of socio-legal dynamics, they must be trained in the techniques of drafting laws. Sir Edgar Unsworth is, I know, doing something to rectify the shortage of legal draftsmen in African countries; but more than this is, I believe, needed. At the School of Oriental and African Studies, we are making a special study of the unification of laws and drafting problems in Africa, and our Restatement of African Law Project has been conducting research on and giving advice about the investigation and harmonization of customary laws, and of customary law with the general law. The International African Law Association, which unites scholars and practicing lawyers from different backgrounds and countries who share an interest in African law, has constituted a special expert panel to advise on the technical problems arising from international integration or unification of laws in Africa. The British Institute, under whose auspices this paper was first presented, obviously has a major part to play in forwarding comparative and collaborative work of this nature. But a great deal still remains to be done. There is work for all, both local experts and scholars from overseas.
Is there a danger – such as is manifesting itself in other areas of activity – that Africa will be too inward–looking in its search for greater uniformity of laws? What will be the impact of African unification on the connections between African and other legal systems? Does this sort of African initiative mean that African countries are opting out of world unification projects? The danger of severance of juristic relations between Africa and the outside world is less imminent than one might conclude. Bilateral ties with named legal systems overseas may be weakened, but multi-lateral ties are being strengthened (compare the increasing influence of American and Commonwealth thinking on legal development in common-law Africa). The shortage of scholars and “superdraftsmen” means that African countries have to turn to others – such as this one – for help. African countries have not opted out of discussions on world unification of laws – quite the contrary; I am sure that they wish to be more closely and directly involved in such discussions in the future than they have been in the past. I am not too pessimistic for the future, therefore, or fear that African isolationism will spread to the legal field.
In pre-colonial Africa the traditional societies, though in continuous evolution, were integrated societies. There was an intimate connection in each society between its religion, moral code and system of thought, its social manners and conventions, its modes of economic activity, its family or social structure, and its legal system. This integration was damaged and eventually shattered, by the arrival of colonial rule and the imposition of colonial law, followed by the penetration of European ideas, activities, and institutions. This disintegration within the local indigenous society was repeated higher up the scale, at the territorial level: there was little or no real unity of thought or purpose between those who happened to find themselves within the same territorial boundaries.
In the post-colonial period, in the period of independence which has just begun, African countries are trying to establish and assert their unity at the national level, to pull their peoples together into nations and to ensure that the new national legal systems mirror the fact of national unity and the aspirations of the nation. We thus witness today the reintegration of society and the reintegration of society with its law in African countries. The movement towards the unification of laws in Africa is the expression and the measure in legal terms of this reintegration.
* Professor of African Law, School of Oriental and African Studies, University of London. This paper was originally delivered as a lecture at the British Institute of International and Comparative Law on December 9, 1964, at a meeting under the chairmanship of Sir Edgar Unsworth, C.M.G.
Source: The International and Comparative Law Quarterly, Vol. 14, No. 2 (Apr., 1965), pp. 366-389
Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law
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