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Published online by Cambridge University Press: 04 February 2022
The contention of this article is that there is a need to debunk the myth that the diversity of Africa's inherited legal systems means that the continent has little to contribute to the global legal dialogue. For Africa to make an effective contribution to global legal dialogue, there is a need for serious intra-African legal dialogue. The article focuses on sub-Saharan countries and provides an overview of the numerous legal traditions that were imposed on them at independence. It then looks at the global legal dialogue within which the global south is marginalized. Thereafter, the article discusses the ways in which an intra-African trans-systemic dialogue can be promoted. The main argument of the article is that 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.
Licence en Droit (University of Yaounde), LLM, PhD (University of London). Director, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria.
1 As S Fazio The Harmonization of International Commercial Law (2007, Kluwer Law International) at 8 points out, in the globalized and liberalized world economy of today, economic actors decide where to invest and locate their activities depending upon conditions such as low labour costs, environmental rules and rules for the settlement of disputes.
2 The concepts of the global north and global south are discussed below.
3 Sub-Saharan Africa is defined, geographically and ethnoculturally, as the area that lies south of the Sahara. This consists of 46 of Africa's 54 countries and excludes Algeria, Djibouti, Egypt, Libya, Morocco, Somalia, Sudan and Tunisia.
4 These territories were seized by the Allied forces during the First World War and confiscated under the Treaty of Versailles of 1919.
5 One could include Islamic law among the transplanted laws. However, although Islam arrived in Africa as early as the seventh century, Islamic law has not influenced the legal systems of sub-Saharan Africa to the same extent as the other, later transplants. One reason is that Muslim communities are a minority, apart from in a few countries in the region such as Nigeria and Sudan. The main reason, though, is that, as with indigenous African customary law, the application of Islamic law was severely restricted during the colonial period and consequently today regulates only certain aspects of personal life such as marriage and succession. Furthermore, in most countries in this region, Islamic law has been largely indigenized, to the extent that it is often classified as a type of indigenous African customary law.
6 The countries in sub-Saharan Africa that inherited the civil law system from Belgium are the DR Congo, Burundi and Rwanda. Those that inherited it from France are Togo, Gabon, Republic of Congo, Central African Republic, Comoros Island, Madagascar, Mauritania, Cameroon, Ivory Coast, Burkina Faso, Niger, Benin, Burundi, Guinea, Chad, Rwanda, Mali, the Seychelles, Djibouti and Senegal. Eritrea and, to a limited extent, Ethiopia inherited their civil law systems from Italy, while Equatorial Guinea's system is based on the Spanish civil law tradition. Finally, the legal systems of Angola, Cape Verde, Mozambique and Guinea Bissau are based on the Portuguese civil law system.
7 The common law jurisdictions in sub-Saharan Africa are the Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Sudan, Tanzania, Uganda and Zambia.
8 Although the concept of mixed systems is widely debated, the best definition is that of Vernon Palmer, according to whom a mixed system must have at least three characteristics. The first concerns the specificity of the mixture and requires that the system should be built upon the dual foundations of common law and civil law materials. This therefore excludes a range of mixtures in sub-Saharan Africa, such as those between either the civil law or the common law on the one hand, and religious law (mainly Islamic law) and indigenous customary laws on the other. The second characteristic is quantitative and psychological, and requires a significant mixture of both. Hence, the occasional borrowing or transplantation of some elements from one system to another would not on its own transform that system into a mixed jurisdiction. The final characteristic is structural. As Palmer puts it, “in every case the civil law will be cordoned off within the field of private law, thus creating the distinction between private continental law and public Anglo-American law”. In other words, a pattern has emerged in such systems where the common law predominates in the public sphere and the civil law in the private sphere. See V Palmer Mixed Jurisdictions Worldwide: The Third Legal Family (2012, Cambridge University Press) at 7.
9 See Justice Schreiner in Annah Lokudzinga Mathenjwa v R [1970–76] SLR 25 at 29.
10 In this era of increasing sensitivity to the grave injustices of colonialism, the word “reception” is used in this chapter with reservation. There is no evidence to suggest that there was any willing acceptance of these European legal systems by Africans or that the process was anything less than a manifestation of cultural imperialism by the powerful colonial nations. See further Schmidhauser, JR “Legal imperialism: Its enduring impact on colonial and post-colonial judicial systems” (1992) 13/2 International Political Science Review 321CrossRefGoogle Scholar.
11 The Dutch initially settled in large parts of what eventually became South Africa and introduced Roman-Dutch law in the mid-17th century; when the British took over the colony in 1806, they retained this law while also introducing the common law. Because the British eventually took control over the other countries in the region and administered them from South Africa, they simply extended to them the mixed common law and Roman-Dutch law that was already in place in South Africa. See in general JPain, H “The reception of English and Roman-Dutch law in Africa with reference to Botswana, Lesotho and Swaziland” (1978) 9 CILSA 137Google Scholar; Sanders, AJGM “Legal dualism in Lesotho, Botswana, Swaziland: A general survey” (1985) 1 Lesotho Law Journal 51Google Scholar; and E Fagan “Roman-Dutch law in its South African historical context” in R Zimmermann and D Visser (eds) Southern Cross: Civil Law and Common Law in South Africa (1996, Clarendon Press) 33.
12 See further CM Fombad “Managing legal diversity: Cameroonian bijuralism at a critical crossroads” in V Palmer, M Mattar and A Koppel (eds) Mixed Legal Systems, East and West (2017, Ashgate Publishing) 187; and CM Fombad “An experiment in legal pluralism: The Cameroonian bi-jural/uni-jural imbroglio” (1997) University of Tasmania Law Review 209.
13 In some cases, such as Algeria, this was so because the colonial power was forced out after a war of independence, and in others, such as Guinea, because the French left abruptly after trying to destroy every remnant of their presence when the Guineans would not accept independence on French terms.
14 For example, the impact of the British Sterling Area in 1972 was limited because it came to an end in 1972. By contrast, the CFA (African Financial Community) franc, comprising all 11 francophone countries in West and Central Africa, has been used by the French Treasury to exercise direct control of the monetary policies of these countries. See further I Coulibaly “Costs and benefits of the CFA franc”, available at: <https://worldpolicy.org/2017/02/28/costs-and-benefits-of-the-cfa-franc/> (last accessed 13 January 2022); and NS Sylla “The CFA franc: French monetary imperialism in Africa”, available at: <https://bit.ly/2KGMHBR> (last accessed 13 January 2022).
15 See K Littlepage “Transnational judicial dialogue and evolving jurisprudence in the process of European legal integration”, available at: <http://aei.pitt.edu/52924/1/LITTLEPAGE.pdf> (last accessed 13 January 2022).
16 See Mac-Gregor, EF “What do we mean when we talk about judicial dialogue? Reflections of a judge of the Inter-American Court of Human Rights” (2017) 30 Harvard Human Rights Journal 89Google Scholar at 91.
17 The controversial terms “global south” and “global north” have become popular in fields such as law, political science, international relations and development studies in the last three decades. These terms replace other equally controversial terms such as “Third World” and the “developed”, “developing” or “developed world”. “Global south” can be understood in at least two senses, one apparently neutral and geographical and the other critical and indicative of the social status of a group of countries. In the geographical sense, the global south refers to the regions of Latin America, Asia, Africa and Oceania (excluding Australia and New Zealand), which are outside of Europe and North America. In the second sense, “global south” could be regarded as a euphemism to replace the manifestly objectionable terms previously used to refer to these same regions, the “Third World” and the “underdeveloped world”, terms that emphasized the developmental and cultural differences between “developed” and “Third World” countries. The term is generally understood today in its geographical sense. See further P Dann “The global south in comparative constitutional law”, available at: <https://voelkerrechtsblog.org/the-global-south-in-comparative-constitutional-law/> (last accessed 13 January 2022); and N Dados and R Connell “The global south”, available at: <https://journals.sagepub.com/doi/full/10.1177/1536504212436479> (last accessed 13 January 2022).
18 In “Toward a constitutionalism of the global south”, available at: <https://www.palermo.edu/Archivos_content/derecho/pdf/Session%201%20-%20Bonillla.pdf> (last accessed 13 January 2022).
19 See U Baxi “The colonialist heritage” in P Legrand and R Munday (eds) Comparative Legal Studies: Traditions and Traditions (2003, Cambridge University Press) 46 at 53; Santos, BS “Three metaphors for a new conception of law: The frontier, the baroque, and the south” (1995) 29 Law and Society Review 569Google Scholar.
20 In Millennium: Winners and Losers in the Coming World Order (1991, Times Books). The dangers of globalization are aptly captured in U Baxi's ICES Annual Lecture of 1992, “Globalization: A world without alternatives”, available at: <https://www.academia.edu/8155940/1992_Globalisation_A_world_without_alternatives> (last accessed 13 January 2022).
21 OHADA, a French acronym, stands for Organisation pour l'Harmonisation en Afrique du Droit des Affaires.
22 The other countries are Benin, Burkina Faso, Central African Republic, Congo, Ivory Coast, DR Congo, Gabon, Guinea, Mali, Niger, Senegal, Chad and Togo.
23 See OHADA Uniform Acts, available at: <https://www.ohada.org/en/uniform-acts> (last accessed 13 January 2022).
24 See “Reforming legal reform in Francophone Africa: World Bank project experience” (Research Paper Series 08-12), available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1093028> (last accessed 13 January 2022).
25 The expression La Françafrique was first used by the first Ivorian president, Félix Houphouët-Boigny, in 1955 to define the wish of some members of the African elite to maintain special relations with France after independence. Since then, however, it has acquired a pejorative meaning to describe French neo-colonial dominance in Africa. It now reflects a relationship that symbolizes a confiscated and perverted sense of francophone-African self-identification. The contemporary understanding of Françafrique is usually associated with François-Xavier Verschave, a French anti-neo-colonial activist who investigated practices by de Gaulle and subsequent French regimes to sustain French presence and control in francophone Africa, mainly by supporting dictatorships and pillaging resources in the different countries. See T Korkmaz “‘La Françafrique’: The special relationship between France and its former colonies in Africa” (INSAMER English, 2 August 2019), available at <https://en.insamer.com/la-francafrique-the-special-relationship-between-france-and-its-former-colonies-in-africa_2307.html> (last accessed 13 January 2022); F Verschave La Françafrique: Le plus long scandale de la République (1998, Stock) at 21.
26 See, for example, Dainow, J “The civil law and the common law: Some points of comparison” (1966–67) 15/3 American Journal of Comparative Law 419CrossRefGoogle Scholar.
27 See Littlepage “Transnational judicial dialogue”, above at note 15.
28 See S van Erp “Teaching law in Europe: From an intra-systemic, via a trans-systemic to a supra-systemic approach” (Maastricht Faculty of Law Working Paper No 2011/10), available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1776085> (last accessed 13 January 2022).
29 See Z Nagy and D Perkumiené “Principles of harmonization of legal education in the European Union”, available at: <https://cyberleninka.ru/article/n/principles-of-harmonization-of-legal-education-in-the-european-union> (last accessed 13 January 2022). The same is happening in the Americas. In this regard, see Strauss, P “Transsystemia – Are we approaching a new Langdellian moment? Is McGill leading the way?” (2006) 56 Journal of Legal Education 161Google Scholar; and C Menkel-Meadow “Why and how to study ‘transnational’ law” (Legal Studies Research Paper Series No 2011-19), available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1851634> (last accessed 13 January 2022).
30 Many of these can be found at “Selected scholarly writing about trans-systemic legal education”, available at: <https://www.mcgill.ca/centre-crepeau/projects/transsystemic/articles> (last accessed 13 January 2022).
31 See Dedek, H and Mestral, A “Born to be wild: The ‘trans-systemic’ programme at McGill and the de-nationalization of legal education” (2009) 10/6–7 German Law Journal 889CrossRefGoogle Scholar.
32 See Arthurs, H “Law and learning in an era of globalization” (2009) 10/7 German Law Journal 630CrossRefGoogle Scholar.
33 An example is one of its biggest law firms, Adams and Adams Attorney, which portrays itself as a leading and internationally recognized African law firm that specializes in providing intellectual property and commercial services, with branches and associate offices in a number of African countries. See https://www.adams.africa/ (last accessed 13 January 2022).
34 See AK Ahmed “The rise of fallism: #RhodesMustFall and the movement to decolonize the university” (PhD dissertation, Columbia University, 2019), available at: <https://academiccommons.columbia.edu/doi/10.7916/d8-n7n3-e372> (last accessed 13 January 2022); R Chantiluke, B Kuoba and A Nkopo Rhodes Must Fall: The Struggle to Decolonise the Racist Heart of Empire (2018, Zed Books); and A Mbembe “Decolonising knowledge and the question of the archive”, available at: <https://wiser.wits.ac.za/system/files/Achille%20Mbembe%20-%20Decolonizing%20Knowledge%20and%20the%20Question%20of%20the%20Archive.pdf > (last accessed 13 January 2022).
35 See J Muldoon “Academics: It's time to get behind decolonizing the curriculum”, available at: <https://www.theguardian.com/education/2019/mar/20/academics-its-time-to-get-behind-decolonising-the-curriculum> (last accessed 13 January 2022); R Werbner and T Ranger (eds) Postcolonial Identities in Africa (1996, Zed Books); and R Oelofsen “Decolonisation of the African mind and intellectual landscape”, available at: <http://www.scielo.org.za/pdf/phronimon/v16n2/08.pdf> (last accessed 13 January 2022).
36 Savo Heleta, commenting on the situation in South Africa in 2016, wrote: “Since the end of the oppressive and racist apartheid system in 1994, epistemologies and knowledge systems at most South African universities have not considerably changed; they remain rooted in colonial, apartheid and Western worldviews and epistemological traditions. The curriculum remains largely Eurocentric and continues to reinforce white and Western dominance and privilege.” See “Decolonisation of higher education: Dismantling epistemic violence and Eurocentrism in South Africa”, available at: <https://files.eric.ed.gov/fulltext/EJ1187109.pdf> (last accessed 13 January 2022).
37 See, for example, Fombad, CM “Africanisation of legal education programmes: The need for comparative African legal studies” (2014) 49/4 Journal of Asian and African Studies 383CrossRefGoogle Scholar; Himonga, C and Diallo, F “Decolonisation and teaching law in Africa with special reference to living customary law” (2017) Potchefstroom Electronic Law JournalCrossRefGoogle Scholar, available at: <http://www.saflii.org/za/journals/PER/2017/51.pdf> (last accessed 13 January 2022); and AE Tshivhase, LG Mpedi and M Reddi Decolonisation and Africanisation of Legal Education in South Africa (2019, Juta & Co).
38 For a general discussion of views on decoloniality, see Ndlovu-Gatsheni, S “Decoloniality as the future of Africa” (2015) 13/10 History Compass 485CrossRefGoogle Scholar.
39 See T Verhelst “Safeguarding African customary law: Judicial and legislative processes for its adaptation and integration”, available at: <https://bit.ly/3oOJ2UZ> (last accessed 13 January 2022).
40 “La refonte du code civil dans les états africaines” (1962) 72/692 Révue de Droit des Pays d'Afrique 352.
41 Verhelst, “Safeguarding African customary law”, above at note 39 at 5. In this 1968 paper, the author puts it thus: “A number of statesmen and legal scholars entertain a deliberately negative approach to customary law. Customs are viewed as hindrances to development and their replacement by modern legislation or modern common law, on western patterns, is urged as a prerequisite to economic and social development.”
42 Responses to the questionnaire were obtained from colleagues in the law faculties of the following universities: University of Eswatini; University of The Gambia; University of Nairobi and Riara Law School, Kenya; University of Namibia; University of Enugu and University of Ilorin, Nigeria; University of South Africa (UNISA); Moshi Co-operative University, Tanzania; and University of Botswana.
43 Information was obtained from colleagues at the University of Joseph Ki-Zerbo, Burkina Faso; University of Nazi Boni de Bobo-Dioulasso, Burkina Faso; University of Djibouti; University of Gabon; University of Saint Louis, Senegal; and University of Abdou Moumouni Niamey, Niger.
44 Besides universities in anglophone and francophone Africa, information was obtained from colleagues at the Wollo and Bahir Dar universities, Ethiopia and the universities of Lubumbashi and Goma of the DR Congo.
45 See Fombad “Africanisation”, above at note 37.
46 See BS Markesinis and J Fedtke Engaging with Foreign Law (2009, Hart Publishing) at 48. They reduce the whole issue to this question: “Is our life span so long and are our library resources so unlimited to allow us the luxury suddenly to shift direction and start studying, say, African law, Native American law, or religious law as a first priority?” If authors of such repute can express such absurd and archaic views about African law, in spite of the fact that one of the authors was born in Tanzania and studied and worked in South Africa, it underscores the need to revive research into customary law.
47 See Cowen, D “Early years of aspiration to the 1920s” in Cowen, D and Visser, D (eds) The University of Cape Town Law Faculty: A History 1859–2004 (2004, Siber Ink) 8Google Scholar.
48 See “It's Shakespeare vs Molière in the African Union” (ISS/PSC Report), available at: <https://issafrica.org/pscreport/psc-insights/its-shakespeare-vs-moliere-in-the-african-union> (last accessed 13 January 2022).
49 See Dedek and Mestral “Born to be wild”, above at note 31 at 892.
50 See Agenda 2063: The Africa We Want, available at: <https://au.int/en/agenda2063/overview> (last accessed 13 January 2022).
51 These problems will not go away as a result of the Agreement Establishing the African Free Trade Area of 2018 coming into effect. Article 30 of its Protocol on Rules and Procedures on the Settlement of Disputes only deals with disputes concerning the interpretation of the Agreement, meaning that disputes between individual business persons and entities will still be subject to the vagaries of national law.
52 See “4th African Judicial Dialogue opens in Kampala”, available at: <https://au.int/en/pressreleases/20191030/4th-africa-judicial-dialogue-opens-kampala> (last accessed 13 January 2022).
53 Examples of the regional courts are the East African Court of Justice, the Southern African Court of Justice and the Court of Justice for the Economic Community of West African States.
54 As A Buyse rightly points out, courts may have a greater inclination to make use of external jurisprudence for inspiration when they themselves do not yet possess a large corpus of case law, when they have been trained in law schools in other legal systems or when they are well versed in legal comparativism; “Tacit citing: The scarcity of judicial dialogue between the global and the regional human rights mechanisms in freedom of expression cases” in T McGonagle and Y Donders (eds) The United Nations and Freedom of Expression and Information: Critical Perspectives (2015, Cambridge University Press) 443.
55 See P Mbude “Decolonising education: Lessons from the Afrikaans language”, available at: <https://www.news24.com/citypress/news/decolonising-education-lessons-from-the-afrikaans-language-20180517> (last accessed 13 January 2022).
56 See Statute of the African Union Commission on International Law, available at: <https://bit.ly/3niCn5p> (last accessed 13 January 2022).
57 In The Formative Era of American Law (1938, Brown & Co.) at 94.
58 Mutual suspicion and differences of opinion among legal experts from anglophone and francophone Africa have often played out during the drafting of AU treaties, and in many cases, the compromises made have diluted the treaties of their effectiveness. An excellent example of this is the African Charter on the Values and Principles of Decentralisation, Local Governance and Local Development 2014. To accommodate the civil-law traditional approach to decentralization, it set standards that were too low to make it a “catalyst” and “cornerstone” for decentralization, as its designers intended. See further Fombad, CM “Regional and continental frameworks for decentralization in Africa: The African Charter on Decentralisation” in Fombad, CM and Steytler, N (eds) Decentralisation and Constitutionalism in Africa (2019, Oxford University Press) 70Google Scholar.