35 - Comparative Indigenous Law

Summary

States in sub-Saharan Africa struggle to manage the multiple legal orders bequeathed by European colonialism. This struggle is partly attributable to poor consideration of indigenous African values by policymakers. Values are useful because they distinguish social habits from the sense of obligation that gives law its normative character. Since the foundational values of indigenous laws reflect the welfare-oriented origins of indigenous laws, they illumine how Africans adjust to modern conditions, as well as the adaptive character of legal pluralism in Africa. However, not much is known about these values in the courts, in contradiction with the prominence that jurists accord to constitutional values. This chapter compares how African legal frameworks reflect the values of indigenous laws in Kenya, Nigeria, Somaliland, and South Africa. It finds that judges and legislators adopt jurispathic approaches to the regulation of indigenous laws, and suggests that reliance on the values of indigenous laws could promote their harmonisation with statutory laws.