At independence in 1968, the monarchy in Swaziland did not suffer the fate of traditional rulers in most of independent Africa whose powers were severely curtailed and subordinated to those of the nationalist leaders. In Swaziland, the King's pre-eminence as the head of the ruling Dlamini clan was constitutionally enshrined within the overall set-up of a constitutional monarchy. The monarchy's control over the strategic resources of the country such as land and mineral resources was also entrenched in the Constitution. Furthermore, the domination of the political scene by the royalist party, the Imbokodvo National Movement, consolidated the King's political powers far beyond what was possibly intended under the dispensation of a constitutional monarchy. As soon as the opposition gained three seats in Parliament, this was seen as a challenge to the power, prestige and authority of the King. It then became easy for the 1968 Independence Constitution to be targeted as a colonial imposition lacking authority as a source of legitimate governance in the country.

In 1967 the Malawi Parliament passed a set of statutes which were intended to provide a new legal framework for rural agrarian change. The President, Dr. Banda, emphasised during the proceedings that existing customs for holding and tilling land were outdated, wasteful and totally unsuitable for the development of a country with agriculture as the basis of the economy. He suggested that the main problem was the absence of individual titles:

“No one is responsible & for the uneconomic and wasted use of land because no one holds land as an individual. Land is held in common & and everybody's baby is nobody's baby at all.”

He argued that the existing laws and customs discouraged individuals and institutions from providing loans for the development of land. New laws were therefore required to ameliorate the situation:

These remarks were not completely novel; they echoed and repeated recommendations in the reports of the East Africa Royal Commission, 1953–55, and the Conference on African Land Tenure in East and Central Africa held in Arusha, Tanzania, in 1956. The defects of customary land tenure pertaining to shifting cultivation and the preponderance of group control over land holding and use which the Malawi President particularized were not the only justifications for reform. The reports suggested that tenure reforms were necessary where population explosion and shortage of land contributed to the uncontrolled emergence of land dealings; where unfixed and uncertain customary land boundaries contributed to excessive land litigation; and where succession rules led to excessive fragmentation and sub-division of holdings.

The participation of local communities in the management of Cameroon's huge forest resources appears to be one of the most imponderable and enigmatic issues confronting contemporary policy-makers. This is because forest resource access and tenure policies in Cameroon have, since the colonial period, generally been hegemonic in character. This situation was further accentuated with the advent of national governments. On the eve of independence and even beyond, African governments were so concerned with political rights that they did not give much thought to any other rightscertainly not to what has become known as the right of local communities to participate in natural resource management. It was quite easy for Africans to conceive of rights solely in terms of the political rights of individuals. There was thus an alleged incompatibility between riparian community rights to participate in forest management and respect for individual rights.

Traditional oaths play decisive roles in customary law arbitration and are recognized and accorded due respect by the courts. This position is now threatened by four emerging factors. First, all customary law arbitrations (including those based on juju oaths) are now subjected to stringent conditions before the courts will enforce them. Secondly, there are discordant voices in the Supreme Court on the legal relevance and juristic value of traditional oaths. Thirdly, in August 2005, the gruesome activities of some shrines where juju oaths are administered in some Igbo communities were exposed in the mass media. This exposure has given traditional oaths a bad image. Lastly, the onslaught of Islam and Christianity is taking its toil on traditional oaths. There is the need to protect traditional oaths from these threats.

A new opportunity for international human rights litigation in West Africa was presented in 2005 when the Economic Community of West African States adopted a protocol to empower its judicial organ, the ECOWAS Community Court of Justice, to determine cases of human rights violation that occur in ECOWAS member states. Since then, several human rights claims have been brought before the court. However, critical questions concerning the legality of the new mandate and the suitability of the court to exercise a human rights jurisdiction have lingered. Beginning with an inquiry into the foundation within ECOWAS for the exercise of a human rights jurisdiction, this article analyses the legitimacy of the human rights mandate of the ECOWAS court and interrogates crucial issues relevant to the effectiveness of the mandate. The article suggests ways to enhance execution of the mandate and concludes with a call for careful judicial navigation in the exercise of the court's expanded jurisdiction.

Departing from the fact that climate change poses localized effects, this article critically considers from a legal perspective the role of local authorities in the South African government's response to climate change. A brief review of the relevance of climate mitigation and adaptation is followed by an explanation of what these concepts mean for local government. The article then discusses the extent to which the country's environmental and local government law and policy framework provides for municipalities' participation and involvement in climate governance. The article identifies strengths and weaknesses in relation to the local sphere of government's formal involvement in climate governance vis-à-vis authorities in the provincial and national spheres. It concludes that, as a result of their proximity to the effects of climate change, municipalities have a critically important role to play in the climate governance effort, despite the patchwork of environmental and local government laws and lack of explicit, consolidated policy and legal arrangements to this effect.

A close relationship holds between the goals of development planning and the notions that planners have of what already exists. Hand in hand with certain goals go appropriate notions of the status quo. Aiming to “modernise” for the sake of increased productivity, conservation of natural resources, and a fairer distribution of wealth, planners presuppose the existence of the “traditional” as the negative condition that has to be changed. It might be thought that an understanding of the status quo or the traditional condition comes first, before the choice of goals. But that is not always so. Information is often fundamentally incomplete or ignored when decisions about policy have to be made by planners. Hence they rely on their goals to guide their thinking about what already exists. In such circumstances, modernising planners reinvent the traditional as a negative stereotype; they derive it from their goals, rather than the other way round. The difficulty is, however, that their plans, when implemented, encounter the cultural realities of the continuing social arrangements. Unintended consequences result, or worse still, radically unacceptable ones. The overall pattern is familiar in nationally planned development: the reform designed by planners at the centre gets subverted by people at the periphery, and a gross disjunction arises between the policy as it is officially formulated and the policy as it can effectively be applied.

The ways in which local normative systems and processes of decision-making in Third World states have been interpreted and transformed by colonial and postcolonial lawyers, administrators and social scientists have received much scholarly attention. During the past 15 years in particular, the “creation of traditional law” in Africa and the “myth of adapt” in Indonesia have became a special topic in the writing of legal anthropologists, largely influenced by scholars such as Asad arid Said. In recent years analyses have increasingly focussed upon the economic and political forces and purposes behind the transformations and on their consequences rather than on their underlying ethnocentric conceptual biases.

In his paper “Traditionalism and Traditional Law” in this volume Peter Fitzpatrick presents an elegant, sophisticated and critical account of the main strands of analysis in the discussions about the creation of customary or traditional law. In my comment upon his views and those of other authors which he discusses I am not so much concerned with a critique; I would rather like to expand and amend these views by enlarging the analytical framework in which they should be seen. My concern is with the selectivity of these analyses. Firstly, I think that they usually tend to generalize from a limited (set of) context(s) in which the creation of customary law has been observed, such as adjudication in colonial courts or academic writing and teaching in colonial law.

“First of all, the idea of multi-parties is not a new one in Africa. Here in Uganda, we had multi-parties between 1962 and 1966. The generals took over power all over Africa because the multi-parties had failed: this is a historical fact. Their failure was, however, not surprising because we are talking about systems from completely different societies. In Africa, we still have pre-industrial societies without any significant level of social stratification [and] therefore, we are still dealing mainly with tribal groups. Political pluralism will come to Africa, no doubt, but not at a forced pace.”

Rapid population and urban growth in Africa pose severe challenges to development planning and management. This article argues that weak urban governance in Kenya results from the colonial legal order's shaping of urban form. Kenya's colonial laws, drawing from those in other British colonies (especially South Africa) and British statute law on local government, public health, housing and town planning, controlled African labour and movement, and Africans' relation to towns. These laws included ordinances on registration, “master and servant” and vagrancy, while detailed township rules enforced racial segregation and exclusion; the Feetham Commission (1926) led to a hierarchy of local authorities, with no African representation until the 1950s. The dual mandate ideology resulted in different land tenure in the white-settled areas and trust lands; the late introduction of individual land ownership in the trust lands created problems of peri-urban, unplanned development outside the old township boundaries.

“We the people of South Africa declare that … there is a need to create a new order in which all South Africans will be entitled to … enjoy and exercise their fundamental rights and freedoms.” (Preamble to the Constitution of the Republic of South Africa)

Just over a decade after the 1994 genocide, over 1,000 accused languish in Rwandan prisons. The International Criminal Tribunal for Rwanda and the nation's domestic courts have struggled to bring them to trial. In response, the Rwandan government has embarked on an experiment in mass justice: the gacaca courts. The new courts are inspired by traditional dispute resolution mechanisms. The judges are elected by popular vote in their cells to hear cases such as murder, assault and property offences. The system permits appeals (except for property crimes), though not to the domestic courts. The setting is less formal than criminal courts and promotes confessions from perpetrators and forgiveness from survivors. Coupled with this process are two related schemes for victim compensation and community service for those convicted. This article examines these courts from the perspectives of retributive and restorative justice, within the Rwandan context. In practice, the gacaca courts embody both principles, as well as their tension. The judges are lay persons, yet are engaged in complex legal adjudication. The accused have no right to legal representation, nor an appeal to the domestic courts. More importantly, survivors are marginalized by the process as the practical and political pressures on the Rwandan government have made them opt for expediency (more and faster trials) over reconciliation (survivor compensation and manifest regret by the perpetrators). The gacaca courts hold out much promise of reconciling a deeply divided society, but redressing the needs of victims must become a priority.

Decolonization in Africa brought political independence to former colonies but it did not, as a rule, change the underlying social and economic structures of their societies. It passed political power to groups which had only a weak base in the economy (which was dominated by multinational capital, immigrant communities or traditional elites) and a limited stake in the prevailing social systems. It was obvious that in these circumstances political power would be used to bring about fundamental changes in economic and social structures. This tendency was reinforced by popular demands for greater social justice and economic opportunities. Anti-colonial struggles were inspired by a longing for greater human dignity and improved standards of living. Thus development inscribed itself large on the agenda for the future. This raised the question of the modalities for change. More and improved systems of education, agricultural reform, incentives for industrialization and enhanced administrative capacity would be necessary. However, it was an underlying assumption that all these changes would be affected within the framework of the constitution and the law. There were various reasons for this assumption. Despite its authoritarianism, the colonial state was a legally constituted and administered state. The metropolitan notions of legality underlay strategies for decolonization. The more complex the problems of ethnicity, especially the protection of the interests of the settlers, or of the balance between the traditional and new elites, the greater was the reliance on the law as a means of both providing the framework for and controlling public power.

John Berger tells the story of the peasant Lucie Cabrol in terms of her “three lives” because she lived and lived on in three different ways. Readers of the story in Lucie Cabrol's village say she now has four lives. The fourth is in her story. My theme to-day is that representations of knowledge give a life to that knowledge. This life shapes the object of the knowledge. That may appear an intensely academic concern and it is. But I will show that it is, in the same moment, an indispensible practical and political concern.

I start in good company with that body of revisionist scholarship which shows that traditional law or customary law was a creation of the colonial period. For an initial instance, I will depart once only in this lecture from Africa for Oceania. I use this instance because it is compact, irresistible and needs to be better known to legal science. In colonial Fiji, British officials, for the purpose of what the British called good government, sought “to seize … the spirit in which native institutions have been framed”. In the Native Regulations they erected, as one anthropologist put it, “the first code of Fijian custom set down in writing after discussion by representatives from all parts of the Colony and, generally speaking, the great body of custom that it contains has been understood for generations; and so it was not something new and therefore suspect to the Fijians to whom it was applied”.

This article analyses the domestication of human rights treaties in Nigeria. It points out the shortcomings of the present dualist model under the 1999 constitution of the Federal Republic of Nigeria and makes suggestions for reform. It also examines the effect of beliefs and cultural values on the effective application of human rights treaties in Nigeria.

This article examines the Ugandan Land Act, 1998, which seeks to transform land relations throughout the country both by settling once and for all the vexed question as to the relative rights of “owners” and “tenants” of mailo land, and by providing procedures whereby persons may apply either for certificates of customary ownership or for freehold titles to their land. While the Act recognizes that in some areas it may be more appropriate for land to be held communally, it is the long-term aim that most land should be held on individual freehold title. However, the negotiability of such a title is undermined by a variety of provisions designed to protect customary rights.

The heads of state and government of the East African sub-region established a forum known as the Inter-Governmental Authority on Development (IGAD) for expanded cooperation in 1996. The conclusion of the treaty by which IGAD was created was the beginning, not the end, of commitment to IGAD through the principle of pacta sunt servanda [agreements are binding and must be implemented in good faith]. In spite of the great hopes, optimism and aspirations placed on the creation of IGAD, the challenge then become IGAD members' commitment to the treaty establishing IGAD. If member states are unable to grant powers to IGAD and cooperate to enable IGAD to execute its objectives, IGAD cannot work as was intended, hence it remains open to questions. This article discusses IGAD's fundamental features and the institutional progress it has achieved, as well as the challenges it faces as an international legal body.

Nigeria is on the verge of comprehensively reviewing its oil and gas laws. The review is aimed at, among other things, addressing the conflicts associated with the management of the resources and, especially, the affect on the people of the oil producing region of the country who have been vigorously protesting about their alienation from the resources. Drawing on the international law of public participation in natural resource management, this article seeks to develop a viable legislative framework for public participation in oil and gas decision-making that Nigeria can adopt. A viable legislative framework must take into account the various factors that shape the effectiveness of participation and the elements that promote the objectives of participation. It is premised on the ground that looking to international prescriptions might help to elucidate gaps in domestic laws, as well as alternatives to overcome them.

Each right has a corresponding duty. The African Children's Charter,under article 31, imposes a range of duties on children. Understandably, itcould become contentious when an instrument on the rights and welfare ofchildren expressly imposes duties on them. After setting the platform fordiscussion by highlighting international experiences and outlining the Africanconcept of human rights, this article critically examines and attempts toclarify the precise meaning, content, conditions of compliance and applicationof those duties for children. By way of conclusion, it suggests that article 31represents a valuable addition to the international human rights agenda, andthat a purposeful interpretation of its constituent parts reveals that childrenshould be required to play a role at family, community, national and continentallevels, in accordance with their age and maturity as they grow up, as part andparcel of their heritage, empowerment and developing citizenship.

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.