Are specific types of legal institutions responsible for influencing the efficiency of the rule of law? While some view the common law as being superior to civil law in protecting the citizens’ rights, other lawyers argue that civil law judicial systems are more efficient than ordinary ones, which are viewed as being fickle and unsystematic. This assignment is based on reviewing legal systems in Africa before and after colonization, and the extent to which colonialism affected the efficiency of these systems.
Africa before colonialism
Before colonialism, most of the African nations had a customary legal system that was structured according to communities, local boundaries, and ethnic groups. Africans derived their laws mostly from traditional religion and other avenues such as superstitions, customary practices, and community elders. These elders were the protectors and enforcers of the law and acted as judges, mediators, and advisors. This position required wise, knowledgeable, and experienced people thus it was left to the elderly in the society. The African traditional customary legal system served to punish offenders, ensure harmony among members of the community, and to solve land and family disputes. Most punishments were communal or enforced in the presence of other members mostly as a way to deter others from committing similar offenses. In the case of a new offense, the elders would select the punishment they saw fit to exert on the offender. Most of the decisions such as banishment were irreversible and non-negotiable (Abel, 1971).
The family setting was the main avenue through which laws were passed from one generation to another through life teachings, religion, and imitation. The man who acts as the head of the house was responsible for ensuring that his household including his wife, children, and servants was conversant with the laws. In some unique cases, the man would be held responsible for actions of his family and punished along with the offender.
The Sharia law system was also present before colonization, only that it was restricted to Muslims in various countries. The majority of the Muslims lived together and intermarried from the Islam community thus making it difficult to apply their laws to other people. Most African countries had the same customary legal system structure, but it varied across various communities (Abbink, Bruijn & Hesseling, 2011). However, England, France, Belgium, and Spain disrupted their structures at the onset of colonialism. Using Kenya as an example, the assignment will further demonstrate the influence that colonialism had on legal systems in Africa.
Kenyan legal system
Kenya was declared a British Protectorate, thus being under England’s rule in 1895. The British exerted their authority for over six decades, with the country gaining independence in late 1963. Before being colonized, the Kenyans practiced customary law characterized by religious and customary laws, enforced by elders, and restricted to societal settings and ethnicities. In some cultures, they preferred to appoint a group of people as the headmen who oversaw administrative and legal duties. The entry of the British saw England mandate the Imperial British East African Company to carry out their obligation under any treaty made with another country. Their rule over Kenya saw them impose several structures on the country including their legal structure that formed the foundation of the nation’s present system. They exercised the 1987 East Africa Order in Council, the Supreme Court jurisdiction, and the Kenyan subordinate courts. According to this Order, the British had the power to apply universal laws and doctrine of equity on its inhabitants. They also introduced the English Common Law through local Ordinances that were duplicated correspondences of English Acts referenced by the English Law. They established Supreme and subordinate courts and imported foreign lawyers from the United Kingdom as the Supreme Court judges and Resident Magistrates (Franceschi, Ritho & Strathmore University, 2005).
Even though their law stressed on the doctrine of equity, it only benefited the British settlers while totally disregarding the existing customary law or practices. During this era, the Kenyans were allowed to practice their customary law as long as they did not infringe on any of the white man’s rules. The settlers considered the natives as being too primitive to comprehend the delicacy of their law. Other cultures such as Hindu, Arabic, and Islam was also allowed to practice their customary laws with the same conditions.
To ease the process of administration, the British introduced the three branches of government namely judiciary, legislature, and executive. The legislature makes laws while the executive branch executes them. The judiciary’s role in the courts was to settle disputes arising between individuals and those between people and the state. This system has been adapted till date and it defines Kenya’s administration and legal structure. The country derives its laws through the Constitution, Parliament Acts, English Statutes of General Application, and the Substance of Common Law. They also partly derive their rules from Acts of the Indian and U.K parliament, international law, and the existing customary laws. The Kenyan system shifted from being the main one to a reference point in civil cases that apply to various ethnicities within the statutory rules. The more the British spread their rule, the more the people abandoned their customary laws. The fact that most of them were unwritten made it even harder for these statutes to be adopted in the Constitution even after independence. The existing customary courts were also abolished and replaced with magistrate courts in 1967.
Kenya after independence
By then, the country had been in full practice of the English law, but started making reforms after independence in 1963. They first abolished the Prime Minister post in 1964 and got rid of provincial assemblies. This was followed by dissolving the Senate and merging it with the House of Representatives to form the National Assembly. In 1969, they came up with a new constitution that strengthened the president’s powers and made another significant change by making the country a single party state in 1982. The rule was revoked in 1991 when the country reinstalled a multi-party system state, and in 2000 a commission was set up to head the country’s first major constitutional reform process. Kenya finally got a new constitution in 2010 after several deliberations. As much as the people pride in having a new constitution, a larger percentage are not aware of most of its details and requirements. The citizens align themselves with the views or opinions of famous politicians or interpret the rules that directly affect or interest them such as property rights, marriage, and consequences for breaking the law. Some of the positive changes include strengthening of women’s rights, increasing the ease to access land or property, and increased benefits for parliament representatives. They also increased districts from 7 to 47, made abortion illegal, and upheld the death penalty in an attempt to make the country legally independent. However, most of their constitution still emulates the British one (Franceschi, Ritho & Strathmore University, 2005).
Comparison between Kenyan and American legal systems
In essence, this section will be a comparison between the U.K and the U.S legal systems because Kenya still mostly borrows from the English law structure, popularly known as the common law. Both countries have similar court systems in which magistrates handle small offenses and civil disputes whereas the federal and state courts handle cases that are more severe. The court system is divided into a three-court hierarchy from the lower court to the District Court and Supreme Court level. Just like the U.K, Kenya developed a tribunal system to handle special cases while the U.S appoints various courts for the same. Both countries also rely on past judicial verdicts as sources of authority in solving cases. While the courts allow for juries to try cases, the Kenyan law only mandates the court judges to give judgments on cases (Abel, 1971).
Kenya has attempted to emulate the American style of devolution in governance. They introduced the county government administration to devolve power and increased their province count to 47. A Governor who oversees the county’s operations and the Senator who is junior to the governor's head each county. They have the authority to run the county’s administration and financial affairs and report to the Executive. Kenya has slightly shifted from the U’K’s centralized system of governance. They also allocate different representatives from counties to the parliament, with each county being represented by a female to ensure equality. The Kenyan constitution also states that women should constitute a third of all positions held in parliament.
The inefficiencies of the Kenyan legal system
The Kenyan legal structure has failed to serve its purpose due to several reasons. First, the country is plagued with corruption in all fronts. The media has reported several cases of corruption in the police force, courts, and the government. These bodies are charged with the responsibility of protecting and upholding the rights of its citizens, and enforcing the law, yet they are the same ones who break the law. Due to corruption and greed, ordinary citizens fail to benefit from the country’s legal resources such as affordable lawyers, efficient police service, and access to public amenities and infrastructure (Franceschi, Ritho & Strathmore University, 2005).
Secondly, just as during the colonization period, the citizens are not aware of how their constitution works or the policies it presents. They get little information from the opinion of others or from the people they support without enquiring for clarification. In the colonial period, the Africans never bothered to understand how the British law works because they focused on customary law. Therefore, lawyers and government officials have the upper hand in taking advantage of other citizens who are oblivious to the law.
The Kenyans are practicing a legislation structure that they do not understand because of their affiliation to traditional legal systems. The government has failed to integrate both laws as the Constitution still borrows heavily from their colonial masters England. Instead of adopting a law that is familiar to its people, they further separate themselves from the customary law by introducing or emulating aspects of the U.S legal structure. They have also failed to educate Kenyans on the new Constitution and how to interpret the law.
The majority of the Kenyans are located in rural regions with only a few located in urban areas. The larger group still actively practices the Kenyan customary laws. The government should take advantage of the order and use these structures to maintain law and order in the society.
Abbink, J., Bruijn, M. ., & Hesseling, G. (2011). Land, law and politics in Africa: Mediating conflict and reshaping the state. Leiden: Brill.
Abel, R. L. (1971). The development of a modern African legal system: A case study of Kenya. New Haven: Yale Law School.
English, E. P., Henault, G.-M., & International Development Research Centre (Canada). (1995). Agents of change: Studies on the policy environment for small enterprise in Africa. Ottawa: International Development Research Centre in association with Intermediate Technology Publications.
Ethics Conference, Franceschi, L. G., Ritho, A. M., & Strathmore University. (2005). Legal ethics and jurisprudence in nation building. Nairobi: Strathmore University Press.
International Conference on Constitution-Building in Africa, In De, V. J., In Steytler, N. C., In Powell, D., In Durojaye, E., & University of the Western Cape. (2015). Constitution-building in Africa.
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