Abstract

DIALA, Anthony C  and  KANGWA, Bethsheba. Rethinking the interface between customary law and constitutionalism in sub-Saharan Africa. De Jure (Pretoria) [online]. 2019, vol.52, n.1, pp.189-206. ISSN 2225-7160.  http://dx.doi.org/10.17159/2225-7160/2019/v52a12.

Constitutionalism in sub-Saharan Africa evolved from imperial European laws, which were imposed on Africa's agrarian political economies through legal transplants. Being historical continuities of imperial laws, state laws have a rule-obsessed approach to law, with its attendant justice delivery problems. Significantly, colonial legal transplant in Africa was accompanied by radical socioeconomic changes, whose persistent patterns of power, philosophy, and conduct are referred to as coloniality of power. The staggering extent to which coloniality affects the normative behaviours of Africans demands a reassessment of the status of indigenous African laws. This paper argues that most indigenous laws have transformed into customary laws through people's adaptations to legal, economic, religious, and globalisation-fuelled changes in intersecting social fields. It uses content analyses of 26 African Constitutions to assess the extent to which customary laws are accommodated. Suggesting that these Constitutions are future common laws, the article offers the foundational values of indigenous laws as building blocks of constitutionalism and legal integration in the continent.

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