INTRODUCTION
For diverse reasons, African countries decided to retain the legal systems imposed on them at independence. In the last three decades, the continent has been undergoing a paradigmatic transition that has affected every aspect of its social, economic and political life, including these inherited legal systems. Increasing interdependence and globalization have made closer collaboration between the different African countries imperative if they are to reap the benefits of the continent's abundant natural and human resources. However, the diversity of legal systems, many of which are based on increasingly outdated and often contradictory laws inherited from the colonial period, has been a major obstacle to intra-African trade and has worked to the advantage of non-African trade partners.Footnote 1 It is an irony that while Africa has taken tremendous strides in regional integration, the legal measures that are crucial to cementing economic and political integration have, by and large, not figured prominently on the agenda.
Several decades after independence, there is little sign among African countries that inherited legal systems will be replaced any time soon in spite of the considerable efforts made to modernize, especially since the 1990s. The diversity of legal systems has made it difficult for African countries not only to trade with each other but to adopt common, coherent and consistent positions vis-à-vis other countries or regional blocs in the world when dealing with shared problems. Overcoming this difficulty requires a better understanding of, and close collaboration and continuous dialogue between, the different legal systems on the continent, particularly in regard to the two dominant ones, the common law and civil law systems. This is especially important because in the overall global legal dialogue, the terms of the conversation are dictated by the global north while the global south, Africa in particular, is regularly sidelined.Footnote 2 The impression is given that African legal systems are but a poor replica of those in the global north.
The main contention of this article is that there is a need to deconstruct the myth that because of the diversity of its inherited legal systems, Africa has little to contribute to the global legal dialogue. For Africa to contribute meaningfully to the on-going global legal dialogue, there is a need for serious intra-African legal dialogue. Such a dialogue is an integral part of the general quest to decolonize and Africanize the law in order to adapt it to the African context. The focus of the article is on countries in sub-Saharan Africa.Footnote 3
To set the scene, the article provides an overview, in section 2, of the numerous legal traditions that were imposed on African countries at independence – indeed, the legal map of Africa is a microcosm of the legal traditions of the world. Section 3 looks at the global legal dialogue, in which African and other countries in the global south are marginalized. Section 4 discusses the ways in which an intra-African trans-systemic dialogue can be promoted. In doing so, it examines the different ways in which such a dialogue can be promoted, and emphasizes the need to both decolonize and Africanize the curriculum of African law faculties in an increasingly legally migratory world. This, it is argued, should take into account and balance the local and global context in which the law operates. For this to happen, the African Union (AU) and regional economic communities (RECs) have to play a greater and more proactive role than they have done so far.
The main argument of the article is that an intra-African trans-systemic legal dialogue is an essential part of the project to decolonize and Africanize the law. Only legal modernization premised on such a dialogue is likely to provide the critical understanding necessary to pave the way for closer collaboration between African countries in their efforts to develop legal values, principles and institutions that are better suited to addressing the continent's complex and multifaceted problems than continuous over-reliance on inherited ones.
THE COLONIAL LEGACY
An overview of the diversity of legal systems in Africa is important for appreciating the challenges of a cross-systemic legal dialogue on the continent and the collaboration that is needed in dealing both with the global north and with other non-African countries in the global south.
With the exception of Ethiopia and Liberia, all African countries were occupied by European imperial powers in the 19th century. The main colonial powers in sub-Saharan Africa were Belgium, France, Germany, Great Britain, Italy, the Netherlands, Portugal and Spain; Germany, however, lost its colonial territories (Cameroon, Namibia, Tanzania and Togo) after the First World War.Footnote 4 Each of the colonial powers transplanted their administrative and legal systems to the territories they occupied. The three main legal systems during this period were the civil law, the common law and a combination of the two usually referred to as a mixed system.Footnote 5 The civil law system was developed during the Roman Republic by praetorian edicts. It spread throughout Europe, becoming the basis of many countries’ legal systems, and was transplanted to their colonies during the colonial period.Footnote 6 By contrast, the common law system originated in England and was exported by the British to their colonies in sub-Saharan Africa. The civil law and common law systems became the dominant legal systems, except in those colonies where the British and French were preceded by another European power.Footnote 7
France and Britain, together with the Netherlands, also contributed to those mixed systems that exist, which fall into two groups.Footnote 8 The larger of the two groups consists of countries with a mixed common law and Roman-Dutch legal heritage. These countries make up what was referred to as the South Africa Law Association,Footnote 9 namely Botswana, Eswatini, Lesotho, Namibia, South Africa and Zimbabwe. The “reception”Footnote 10 of the common law and Roman-Dutch law in these southern African states, with the exception of South Africa, was different from the way in which the common law and the civil law was received in the rest of Africa. Whereas South Africa received this mixed system directly from the Dutch and later the British, the other countries in the region generally received it indirectly, from South Africa.Footnote 11 In the other category are Mauritius and Seychelles, which have a mixture of the common law and French civil law. Finally, there are two anomalous cases that do not fit into the threefold classification of sub-Saharan African countries according to their inherited legal traditions. The first is Cameroon, which purports to be a bi-jural jurisdiction in which the common law (applied in the two English-speaking regions) and the French civil law (applied in the eight French-speaking regions) coexist. However, the reality is that since independence and the reunification of the English- and French-speaking regions in 1961, legal reforms have been implemented, designed to replace the common law with the civil law in the anglophone regions.Footnote 12
The second anomaly is Somalia, which has a similar history. Formed from a union of the former British Somaliland and Italian Somaliland in 1960, this “unity of two parts” came to an end in 1991 when the dictatorship of its former president, Siad Barre, was toppled. Thereafter, the former British part unilaterally seceded from the rest of the country to form the Republic of Somaliland, which is still largely unrecognized. Another part of the country which seceded declared its independence in 1998 as the Republic of Puntland. The rest of Somalia has remained in a protracted civil war, in spite of numerous efforts by the international community and the UN to broker a peace between the warring clans. The turmoil in the country has brought to an end a brave experiment in integrating the common law and the civil law into one system of law applicable to the whole country.
It was, and remains, a surprise that African countries retained a colonial administrative and legal system that had come to symbolize subordination, exploitation, repression and violence against their people. Three main reasons may explain why the new ruling African elites retained legal systems which had been imposed on their countries after independence. First, the extreme hasteFootnote 13 with which many European powers withdrew from the continent and their lack of advance planning for political transition left the new leaders with no alternative but to retain the legal system with which they had some familiarity, however superficial. Secondly, retaining the inherited system was all the more imperative given the urgent need to focus on issues such as economic development, the maintenance of public order, the regulation of commerce and ensuring the proper functioning of the administrative and judicial services.
Moreover, the departing colonial powers did not entirely rupture their links and allow the new ruling elites a free hand. The key instruments of statehood, namely the independence constitutions, were drafted by these powers, in the main, and were again based on their legal traditions. The foundations for African countries’ continued dependence, and the ex-colonial powers’ interference in the future affairs of the newly independent states, were laid in arrangements such as the Commonwealth of Nations and Francophonie that grouped together the former British or French colonies. This was reinforced by monetary unions that, in the case of France, continue to this day.Footnote 14 In short, unequal power relationships and the economic and political dependence of the newly independent states limited the ability of their leaders to undertake a change as radical as replacing the legal systems of the former metropoles.
As a result of these factors, colonial inheritances have made it almost impossible to disengage the colonial from the post- and the neo-colonial. This is particularly so with respect to the two dominant legal systems that operate side by side and divide Africa – the civil and the common law systems – and continually impact on legal developments on the continent both at national and continental level.
THE MARGINALIZATION OF AFRICA IN THE GLOBAL LEGAL DIALOGUE
It is necessary to preface this section with a brief explanation of the concept of legal dialogue. Ordinarily, the term “dialogue” denotes the exchange of arguments, a conversation, discussion or similar discourse aimed at reaching some form of agreement or understanding. Most of the legal literature on dialogue focuses on judicial dialogue or, as some call it, transnational judicial dialogue.Footnote 15 It is a dialogue in the sense that judges from different countries, whether formally obliged to do so or not, draw upon each other's reasoning in their judgments and incorporate it in their own rulings. This is usually significant where reference is made to the decision of a court in a different legal system: the ultimate goal is to promote the cross-fertilization of legal principles and values among courts of different jurisdictions and across different legal systems. Such judicial dialogue occurs at three levels: between domestic courts, between international courts and between domestic and international courts. For it to be constructive, judicial dialogue involves what Eduardo Ferrer Mac-Gregor refers to as “reciprocal deference”.Footnote 16 This allows for a free and lively interaction among courts that respects their differences and acknowledges the rules applicable in a given court's jurisdiction as well as the varying spheres of competence as defined by domestic law and a country's unique cultural identity.
By contrast, the concept of legal dialogue, which is the focus of this article, is broader in scope. It includes not just judicial dialogue but a wider trans-systemic dialogue that involves judges as well as legal scholars (especially comparatists and legal historians), policymakers (especially those involved in law reform), legal practitioners, students and researchers. Like judicial dialogue, it entails a willingness to engage regularly in conversation about modernizing law in order to address contemporary challenges. Besides involving courts at all levels, it involves legal stakeholders at the national, regional and international levels, and includes, or should include, interaction not only between the global north and global south but within each of these two regions.Footnote 17 At the heart of this article is a concern with the absence of serious legal dialogue between the global north and global south, more specifically Africa, and, even more seriously, the absence of intra-African dialogue. These absences are especially problematic because, in spite of more than half a century of independence, the colonial juristic mindset survives. In fact, the legacy of colonialism continues to have an impact on the power relations between the global north and global south, particularly since most of the contemporary frameworks for global legal and economic collaboration were determined before most of the countries in the global south gained their independence.
The colonial jural inheritance left Africa with a predominantly Euro-American epistemic heritage embedded with practices of exclusion. In spite of the diversity of legal systems in the world, the global legal dialogue so far has been reduced to discussion about Euro-American legal systems; there is little interest in looking beyond the borders of the global north. As Daniel Bonilla puts it, Africa is regarded as a “young and naïve participant in the Anglo-American or civil law tradition”.Footnote 18 The assumption is that there is little to be gained from engaging with legal developments and scholarship on the continent because, it is tacitly believed, these lack originality and academic rigour. Even leading legal scholars such as Jürgen Habermas, John Rawls, Noam Chomsky and Ronald Dworkin expound legal theories in a manner which suggests that the global south does not exist or is irrelevant.Footnote 19 It is a flawed assumption that is reinforced by the absence of any serious effort to promote a trans-systemic legal dialogue within Africa. If the African legal voice that has been silenced for so long is to be heard, it must speak up; it can speak up only when it breaks out of the mental bondage in which it finds itself. To escape the clutches of this legal epistemicide, Africans, irrespective of the legal system within which they are operating, must start talking to one another across these artificial divides.
There are a number of reasons which make this imperative. Globalization, combined with the dramatic scientific and technological revolution of the last three decades, has led to greater interaction between states, increased trade in goods and services, and the free flow of information across borders, resulting in jurisdictional boundaries losing significance and the emergence of a new internationalized, globalized and post-regulatory environment. The emerging global legal institutions, doctrines and processes are dominated by Euro-American legal thinking, with fairly little contribution from Africa. In other words, the increasing globalization of the law hardly reflects the pluralistic world in which we live nor the peculiar developmental needs of the global south, particularly Africa. It is therefore no surprise when Jacques Attali opines that Africa will be the lost continent in this unfolding new world order.Footnote 20
Colonialism seems to have brought with it not only Euro-American legal principles but also the idea that Africa's role is limited to applying those principles regardless of local circumstances. Perhaps the best example of this dismal failure to capture and theorize the African reality is the Organisation for the Harmonization of Business Law in Africa (OHADA).Footnote 21 Created on 17 October 1993 in Port Louis, Mauritius, it is made up of 17 mostly francophone countries in West and Central Africa. However, it includes Comoros, which is from outside the region, Guinea Bissau, which is lusophone, Equatorial Guinea, which is hispanophone, and Cameroon, which has, at least in principle, a bi-jural system.Footnote 22 The objective of OHADA, according to article 1 of its founding treaty, is to harmonize business laws in the contracting states through the elaboration and adoption of simple, modern, common rules adapted to their economies, which is to be accomplished by setting up appropriate judicial procedures and by encouraging arbitration for the settlement of disputes. Nine Uniform Acts have been adopted.Footnote 23
A close examination of the OHADA regime reveals the strong influence of the Euro-American legacy in the form of French civil law. This raises a number of questions. The first is the issue of OHADA's legitimacy, which relates not only to how it originated but how it operates and the nature of its goals. Although a number of international institutions and countries were instrumental in its creation, the main actor was France; the French provided not only most of the funds but most of the ideas. Unsurprisingly, the most significant influence on the OHADA acts is French law. Possibly to disguise the fact that it was a top-down, French-led reform, a distinguished African legal scholar and former vice-president of the International Court of Justice, the late Judge Kéba Mbaye, was given the responsibility for driving the process that led to the establishment of the organization. The early drafts of both the main treaty and the Uniform Acts were prepared in France by French experts, while African “partners” were required only to comment on the drafts.
Secondly, as Hans-Werner Wabnitz rightly points out, many of the Uniform Acts are perfect technical legal texts, at least in France, yet several of the provisions have turned out to be unsuitable for catering to the development needs of the OHADA countries.Footnote 24 During OHADA's early years, Ghana and Nigeria wanted to become part of it, but met with a stumbling block: the fact that it was unapologetically crafted by the French for mainly francophone Africa, rather than by Africans for all of Africa, and thus could not accommodate anglophone African countries.
In spite of the growing need for intra-African trade, the multiplicity of inherited legal systems remains an obstacle to effective regional cooperation and integration, as the OHADA regime shows. This is largely due to the lack of mutual familiarity across legal systems and the absence of a trans-systemic legal dialogue between African countries along the lines of what is taking place in the European Union (EU). This aside, it has been in the interests of France, through its policy of françafrique, to retain overall control and dominance of its former colonies and promote a mono-legal provincialism to ensure the continued use of the inherited French civil law system.Footnote 25 Given that this situation has made dialogue between civil and common law countries in Africa difficult, the question is how such a trans-systemic legal dialogue can be promoted.
TOWARDS AN INTRA-AFRICAN TRANS-SYSTEMIC LEGAL DIALOGUE
In spite of the fundamental differences between the common law and the civil law,Footnote 26 the two dominant legal systems not only in Africa but throughout the world, the EU has provided an institutionalized framework for its successful trans-systemic legal dialogue within Europe.Footnote 27 This is reflected not only in the legislation of member states but also in EU law and, beyond it, in the curricula of legal studies in the global north. For example, Sjef van Erp argues that a law programme that “combines intra-systemic, trans-systemic and supra-systemic legal teaching” in our increasingly complex globalized economic environment is a conditio sine qua non for becoming a reliable lawyer.Footnote 28 Nagy and Perkumiené point out that in almost every law school in Europe there are courses in comparative law that consist of a general introduction to the major legal systems of the world; the law schools go as far as inviting foreign scholars to teach or co-teach courses in order to introduce students to other legal worlds.Footnote 29 Moreover, the literature on trans-systemic legal studies in the global north is expanding,Footnote 30 and this plays an important role in promoting the legal dialogue within the north. The challenge Africa faces is to be able to respond to the local while remaining relevant and engaged with these global developments.
The trans-systemic legal dialogue taking place in the global north has two main features. One is the close legal collaboration between countries in the north, the best example of which are the developments within the EU. The other is the modernization of the curricula of law schools to take account of the imperatives of globalization and increasing economic integration, the best example of this being the famous pioneering trans-systemic legal education programme at McGill University in Canada.Footnote 31 As a result of this trend, some law schools now refer to themselves as global law schools based on a global curriculum, taught by a global faculty in global partnership with foreign institutions.Footnote 32
Although several measures are needed in Africa to provide a basis for sustainable intra-African trans-systemic dialogue, two are of critical importance. The first, at the national level, is the modernization of the curriculum in law schools and faculties – the campaign over the last few years for the decolonization and Africanization of the curriculum in tertiary institutions has provided an excellent opportunity for this. The second measure, at the supranational level, relates to the proactive role the AU and its RECs can play. It is to these two issues that we now turn our attention.
At the national level: Curriculum modernization
Two contemporary imperatives should have made trans-systemic legal studies in African law faculties inevitable. The first is the fact that jurisdictional boundaries are losing significance in an increasingly internationalized and globalized world. As a result of increasing globalization, regional integration and cooperation, the true framework in which modern law is developing has ceased to be only national law and now also extends to supranational law. This means that a mono-legal-epistemic programme which assumes that national law is the foundation for everything will no longer suffice; instead, law students must be prepared for the transnational challenges that are inherent in an increasingly legally pluralistic world. If we take South Africa as an example, it is to be noted that many of the students in its law faculties are immigrants from civil law countries such as Angola, DR Congo and Mozambique. In addition, many of its large firms have a strong presence across the continent,Footnote 33 where they operate under different legal systems – some knowledge of foreign legal systems would therefore be useful.
The second issue that has been lingering since independence was put firmly on the agenda by the “Rhodes Must Fall” (#RhodesMustFall) student protests of 2015 in South Africa and the campaign for the decolonization of academic curricula. This appears to have been a watershed moment not only for South African universities but those all over the continent.Footnote 34 Building on the ideas of critical post-colonial scholars, the campaign to decolonize and Africanize university curricula marked a tectonic shift in the university system by seeking to arrest the process of simply copying and pasting scholarly approaches from the global north without due regard to Africa's laws, history, politics, society and challenges.Footnote 35 This raises the question of whether the law curricula in African universities reflect the continent's pluralistic context, history, political economy, development needs and options, and whether they take into account Africa's place within the global legal dialogue brought about by internationalization and globalization.
We can gain some insight into this by looking not at how the legal curriculum is changing in African universities generally, but rather at whether it is evolving in a manner that paves the way for a trans-systemic intra-African legal dialogue. Promoting an interest in the study of the diverse legal systems in operation on the continent as a foundation for encouraging cross-systemic legal dialogue depends to a large extent on the content and scope of the curricula of law faculties in the different countries. Law curricula, especially those of the first generation of post-independence universities, were designed by the colonial powers and simply replicated their academic programmes. Although there have been changes, the basic philosophy of these inherited curricula has been retained, along with many of its anomalies.Footnote 36 The mono-systemic and parochial nature of the programmes did not provide much scope for learning about legal traditions other than those of the previous colonial rulers.
A number of previous studies have revealed the weaknesses and anomalies of many of the law curricula in African law faculties.Footnote 37 To gain some insight into recent developments, I conducted a survey of several law faculties on the continent to see to what extent some of the changes that have been or are being introduced are likely to prepare the law students of today for a globalized working environment in which knowledge of African realities will be critical. Three preliminary points need to be made. First, trans-systemic study is conceptualized in this article in a narrower way than it was when developed in the law faculty of McGill University. Rather than advocating for a McGill-style trans-systemic legal education, this article argues for a curriculum that will expose students to, and provide them with knowledge of, the diverse legal systems in the world but with an African focus. While the overriding objective must be to enable them to develop a pluralistic legal mind, the aim should be to pave the way for creative and original thinking about transforming the colonial and Eurocentric heritage of universities. The major weakness of the Europeanized legal curricula that were adopted shortly after independence in many African countries (and that have not substantially changed over the decades) is that they provide little space for studying and understanding the legal systems of other African countries and therefore make intra-African trans-systemic legal dialogue difficult. The effect is that there might not be much difference between an African student who does his or her legal studies in London or Paris and one who studies in Lagos or Dakar. While the student who studies in Africa would inevitably have an African focus, the westernized nature of the programme is still manifest wherever the student studied.
The second point to note is that the emphasis in this article is on those modules within a law curriculum that enable the student to develop a pluralistic mind as well as which create an understanding of global diversity and form the basis for a meaningful and constructive engagement with otherness. Narrow mono-systemic learning and thinking have been the main reasons that African legal scholars trained in one or the other of the two dominant legal systems talk past each other rather than engaging in constructive debate aimed at developing legal solutions for Africa's distinctive problems.
Thirdly, the Rhodes Must Fall campaign provided the impetus for reviewing university programmes to see to what extent they reflect and strive to address Africa's realities. In this respect, decolonization has become a buzzword for advocates of reform. Although the concept of decoloniality has been defined in diverse and sometimes controversial ways, for our purposes here the decolonization of legal education in Africa is conceptualized from the broad perspective of democratizing legal knowledge and ensuring its de-hegemonization and de-westernization.Footnote 38 It is premised on a recognition of ontological legal pluralism as a reality. At the heart of decolonizing legal education is the need to eradicate a system that has socialized Africans into hating what is produced in Africa and blindly accepting and adopting everything that is produced in Europe and America.
It is contended that the pluralistic mindset that is needed to facilitate a serious trans-systemic legal dialogue among Africans, especially its university academics, judges and legal advisers, depends on the legal education they receive. The development and modernization of law in Africa can no longer depend merely on hanging onto ready-made western laws that, given their mono-systemic form, often have not been adjusted to address local circumstances.
Going by the literature on trans-systemic and transnational legal studies, at least two courses can be considered crucial for the intellectual and cultural foundation needed to achieve this development. These are comparative law and legal history; to emphasize the African perspective, customary law is equally important. A law student is unlikely to gain any insight into the diverse legal systems of the world, how they differ from each other and what their underlying philosophies are without studying either comparative law, legal history or both. Aspects of these may be studied in other courses, such as an introduction to law and legal methods or legal research.
Customary law as a source and form of law in Africa is unlikely to develop or survive without it being taught formally. This is of especial importance not only because it was marginalized in the colonial period but because certain post-independence governments tried to abolish it.Footnote 39 In Ethiopia, Professor René David, the drafter of the Ethiopian Civil Code, recommended that customary law be abolished because it varied too much from area to area, was unstable and, in his opinion, often lacked true juridical characteristics.Footnote 40 He, like some European scholars, argued that it impeded development and was responsible for the undeveloped nature of African society.Footnote 41
To gain some insight into the status of these key courses in the curricula of African law faculties today, I prepared and administered a questionnaire for ten universities in anglophone Africa,Footnote 42 six in francophone AfricaFootnote 43 and in two other countries.Footnote 44 The findings serve merely as an indication of current trends; a more detailed empirical study is needed before any firm conclusions can be drawn. Such a future study should undertake a comparative analysis and evaluation of the breadth of coverage provided in the law curriculum to the three courses or closely related courses highlighted above with a pluri-systemic approach. It should also make a clear distinction between instances where any of these courses or related courses deal with issues of legal diversity in a superficial or incidental manner or where it is given a prominent place in the curriculum, for example by being made a compulsory course.
Comparative law is critical to fostering an intra-African trans-systemic legal dialogue because it usually introduces students to the different legal cultures in the world. From the survey, only four of the ten anglophone universities offer comparative law as a course. With the exception of the University of Botswana, it is available only as an elective course. In francophone Africa, only two of the six universities offer comparative law on their programme, and this is a compulsory course for all students. It does not feature in the curricula of the four universities in DR Congo and Ethiopia covered in the study. An equally important course that was investigated is the teaching of legal history. Only two of the ten anglophone universities offer legal history, as compared to five of the six francophone universities. All four of the universities in DR Congo and Ethiopia offer this course.
As far as the teaching of comparative law and legal history in these institutions is concerned, two points need to be noted. First, aspects of both comparative law and legal history are covered in some of the other courses taught in these universities, such as introductions to law and legal methods and courses on contemporary legal systems and institutions. Second, the status of comparative law and legal history in these programmes – whether as stand-alone courses, in the few instances where this is the case, or as part of other courses – strongly suggests that it is unlikely that the African perspective in this course is emphasized. In fact, most of the standard textbooks, even recent ones, barely mention Africa and African law; when they do, the topic is viewed through an essentially western prism as incidental and unimportant. This underlines the need for an African legal system course in the curricula of African law faculties.Footnote 45
In contrast to comparative law and legal history, the status of customary law in the curriculum of African law faculties today is baffling. In an era where decolonization and the Africanization of law in Africa have become mantras, the future of customary law, the only original source and form of law that pre-dates the intrusion of the colonial interregnum, remains uncertain. It is taught as a compulsory course in only three of the ten universities in anglophone Africa; in the other universities, it is taught either as an elective or as an aspect of other courses, such as introduction to law, law of succession and family law. By contrast, it is taught as a compulsory course in four of the six universities in francophone Africa. In the DR Congolese and Ethiopian universities covered in the survey, it is taught as a compulsory course.
A closer analysis shows that even where customary law is a compulsory course, it usually has lower credits than most other courses. Customary law not only reflects the daily realities of the millions of people who live in rural areas but also regulates their lives. It has the potential to advance social justice in a manner consistent with decolonization and, more than anything else, is one common cord of justice that unites all Africans. Arguably, customary law's growth was truncated because colonialism cut short the possibility of its intellectual development. Efforts to marginalize it by western scholars have not ended; for example, two eminent and erudite contemporary comparatists, Basil Markesinis and his collaborator Jörg Fedtke, not only dismiss customary law in strong, derogatory language reminiscent of the colonial architects of the imposition of western laws and culture in Africa but go further to argue that it belongs to a “primitive” system and should more appropriately be left to anthropologists and sociologists rather than lawyers.Footnote 46 It is clear that unless customary law is taught in every law faculty as a compulsory course, it is likely to die. As Cowen rightly points out, no legal system can survive unless it is taught scientifically.Footnote 47
Apart from curricular reforms designed to develop a pluralistic mindset geared towards legal modernization, the AU could play a role in paving the way for an intra-African legal dialogue.
At the continental level: The AU, RECs, and the promotion of an intra-African trans-systemic legal dialogue
The AU and its RECs could play a role in fostering the mobility and compatibility of the diverse legal systems on the continent. This would not only enhance unity and understanding between countries belonging to the two dominant legal traditions but would also facilitate the process of negotiating and adopting AU legal instruments, such as declarations, treaties and conventions, given that it is in this process that the conflicting approaches of the two legal traditions usually come to the fore.Footnote 48 The AU could take note of the strides made by the EU in developing a legal lingua franca in Europe, even if this is mainly due to its more advanced supranational framework. In this regard, the EU is an exemplar of what is happening in other regions in the world.Footnote 49
Although the AU Constitutive Act of 2002 has as one of its objectives the establishment of the “necessary conditions which enable the continent to play its rightful role in the global economy and in international negotiations”, the organization and its RECs have not taken any direct steps to promote an intra-continental trans-systemic legal dialogue. Even Agenda 2063: The Africa We Want, which contains the blueprint and master plan for transforming Africa into the global powerhouse of the future, does not say anything about promoting better understanding and interaction between different legal traditions.Footnote 50 Arguably, this would provide a means of accomplishing Agenda 2063's aim of promoting inclusive and sustainable development and of concretizing the pan-African drive for unity, self-determination, freedom, progress and collective prosperity pursued in the name of pan-Africanism and the African Renaissance.
Nevertheless, two of Agenda 2063's flagship programmes – the creation of the Pan-African E-University and the Pan-African Virtual University – may provide an opportunity, inter alia, for introducing innovative legal studies programmes of a trans-systemic nature that offer a medium for better understanding of the diverse legal systems on the continent and also facilitate research on the Africanization of laws. This would depend, however, on the AU recognizing the importance of promoting intra-systemic legal dialogue by creating opportunities for it to take place.
One way of doing this is suggested by the OHADA project, which harmonizes the business laws of a number of African countries. Harmonized laws would not only promote intra-African trade by reducing the costs of doing business – costs which are increased by the diversity of legal rules among different countries – but would also unlock the continent's potential for economic growth. However, as noted, OHADA perpetuates the inherited Eurocentric legal tradition, so it is unsurprising that it has done little to facilitate African cross-systemic engagement.Footnote 51 Some recent developments, though, may well pave the way for this.
Since 2013, the African Court on Human and Peoples’ Rights has organized biennial judicial dialogues, under the auspices of the AU, bringing together chief justices and presidents of supreme and constitutional courts, as well as representatives of regional and international judicial bodies and other relevant stakeholders from the 55 AU member states. The fourth such dialogue took place in Uganda in 2019 and brought together more than 300 delegates. The objectives of the dialogue are to improve networking among judicial officers and to provide a forum for exchanges of information on best practices and the administration of justice.Footnote 52
The dialogues usually discuss issues relevant to promoting a cross-systemic judicial conversation in Africa. For example, during the third African Judicial Dialogue, held in Arusha, Tanzania, in 2017 on the theme of “Improving judicial efficiency in Africa”, some of the key issues discussed dealt with the state of judicial education in Africa, proposals to launch an online human rights course for judiciaries, and proposals for setting up an African judicial network and an African centre for judicial excellence. Although the focus is on improving the judiciary, and therefore concerns mainly judicial personnel and bureaucrats, the dialogue is an important starting point for bringing together judicial officials from the different legal traditions to work towards enhancing the quality of justice on the continent. Such transnational dialogue could also enable judges to learn more about these varied legal traditions. However, the AU and the African Court could do more to make these dialogues more productive.
In spite of their narrow mandate, the biennial African judicial dialogues could still facilitate an intra-African cross-systemic conversation in two ways. The first has a vertical structure, with the African Court on Human and Peoples’ Rights at the summit of the hierarchy, followed by the different regional courts in the middleFootnote 53 and ending with the national courts at the bottom. Through this, there could be a cross-systemic fertilization of principles and values in areas of common interest where there are continental standards, such as on issues of constitutionalism, the rule of law, good governance and human rights. Second, more horizontally, national courts in different jurisdictions making decisions on similar issues could borrow from each other. In this way, judges across the common law / civil law divide in Africa could draw freely upon each other's experiences.Footnote 54
Judicial cross-systemic dialogue, in both these ways, could persuade national courts to take account of domestic interpretation and application of AU and REC treaties, charters and other similar instruments in a manner that prevents variance in interpretation as well as paving the way towards greater convergence in legal rules, concepts and principles in the continent. There is no reason why an African legal system cannot eventually emerge from the present interaction between the diverse legal systems. This has already happened with the imposed languages: the emergence of an Afrikaans language in South Africa distinct from European languages represents one of the most successful decolonizing initiatives on the African continent.Footnote 55 The same can be said of Swahili spoken in East Africa and, to a lesser extent, pidgin English spoken in West Africa.
However, the absence of any specialized institutional arrangements within the AU or the RECs to coordinate and facilitate discussions on law reform is a drawback. As Africa's premier institution for promoting socio-economic integration and economic development, the AU should take the lead in facilitating trans-systemic legal dialogue. The only AU organ that could conceivably do this is the AU Commission on International Law (AUCIL). Although its mandate appears to be focused on strengthening and consolidating common approaches to international legal developments, article 4(d) of its statute allows it to “conduct studies on legal matters of interest to the Union and its Member States”.Footnote 56 This provides it with some powers to do what the African Court on Human and Peoples’ Rights is now doing with its biennial judicial dialogues. It may be time for the AU to widen the scope of this dialogue by bringing together the AUCIL and other stakeholders such as academics and legal researchers. There is no better time than now for the AU and the RECs to take steps to cast off the yoke of the colonialist legacy that continues to retard the collaboration and cooperation that are needed to facilitate Africa's development.
CONCLUSION
Unshackling the colonialist legal inheritance does not necessarily mean that the colonial legal edifice must be dismantled and abandoned, nor does the decolonization and Africanization of the law imply such an outcome: there is no pure legal system. As Roscoe Pound once put it, “History of a system of law is largely a history of borrowings of legal materials from other legal systems and of assimilation of materials from outside of the law.”Footnote 57 The problem in Africa is caused not merely by the inheritance of the Euro-American-centric laws and traditions but by the fact that these have been allowed to dictate holus-bolus the patterns of life and development on the continent, regardless of their suitability, relevance and context. Little effort has been made to adapt and adjust these laws to address the continent's contemporary challenges. Africa would be in a better position to solve its problems if the experiences of the last seven decades of independence were understood, analysed and used as a basis for crafting the solutions needed to address its present governance problems.
The inherited legal systems that could have served as a basis for creative change have been left to become dysfunctional. Trapped in the mono-legal system culture of the past, Africans now need to catch up with the pluri-legal system culture rapidly emerging as a result of increasing internationalization and regional integration. If we work from the fact that the true framework within which modern law is developing has ceased to be a single jurisdiction and that the sources of legal rules are increasingly multinational and trans-systemic in nature, then the future of progressive legal development in Africa depends on how efforts in this regard can strive to harvest the best of the continent's diverse inherited legal traditions and combine it with its indigenous customary laws. From this perspective, it is argued that the legal foundation for training Africa's jurists, whether they be academics, judges, lawyers or legal advisers, must have a broader frame of reference from which to work.
Colonialism appears to have brought not only the theory that scholarship from the West was the best but also the assumption that Africans should limit themselves to applying such scholarship. To explode the myth of the inherent superiority of what comes from the West, and to effectively decolonize and Africanize the law, African scholars not only need to start learning more about what is happening in their own neighbourhood but also need to invest resources in developing academic units that can study, conduct research in and teach non-western legal traditions, especially African customary law.
Over the years, as this research into the curricula of some African universities has shown, there has been a progressive marginalization within mainstream law curricula of critically important courses such as comparative law, legal history and customary law. These are courses that are necessary for creating a better understanding of the legal systems on the continent and facilitating an intra-African trans-systemic dialogue that could position the continent to play a better role in the general global legal dialogue. It is from the perspective of the increasing need to theorize African realities that the argument for curriculum change has been made. If African legal experts from the different countries have to understand each other and have to engage in constructive trans-systemic dialogue, all of which would enable them to craft common solutions for common problems, then the foundation for this must be laid in law faculties on the continent. Students must be made to know not only that there are different legal systems with different approaches to dealing with similar problems but also the historical, social, economic and political contexts in which these systems developed and, importantly, how they evolved over time by borrowing from elsewhere.
Similarly, if inherited legal systems have to be modernized and Africanized, then Africans, regardless of legal background, must work together. To do so with the depth of understanding that is necessary to advance the law on the continent, it is no longer adequate to limit oneself to one or the other of the main legal traditions on the continent.Footnote 58 Adjusting legal education programmes in Africa will not only prepare students for the changing market for legal services but will also create the mental disposition and open-mindedness needed to prepare them for the trans-systemic legal dialogue that is necessary to move the legal modernization process forward both at national and continental level. It will also enable graduates from African law faculties to perform in an optimally competent, effective and responsible manner in the diverse roles they are required to play in society.
