Chapter 2 - Some characteristics of African costmary law

Question 1

Name the characteristics of African Customary Law.

Answer 1

Originally, African customary law was not recorded in written legal sources, such as statutes, law reports or textbooks. Court procedures were conducted orally, and the law was also transmitted orally from one generation to the next. This process of legal transmission was furthered by the public participation of adult men in the administration of justice. To a large extent, important legal principles are expressed by means of legal maxims.

Question 2

What is the customary nature of African customary law?

Answer 2

Formal administration of justice was also known, but the indigenous court’s functions were limited to the application and not the creation of law. Furthermore, a system according to which indigenous courts were bound by their previous decisions or the decisions of a higher court was unknown to indigenous African law.

Question 3

Explain customary law as an expression of community values.

Answer 3

Public participation in the process of adjudication resulted in the laws giving expression to the prevalent values or the general moral behavioral code of the community. The administration of justice did not concern legal justice but the reconciliation of people.

Question 4

Explain the role of magico-religious conceptions in African customary law.

Answer 4

The belief in ancestral spirits means that after death, a person continues to live in a spiritual world, more or less in the same way as he or she did on earth. Relations that existed on earth, so it is believed, are continued in the spiritual world. From the spiritual world, the ancestral spirits maintain contact with their living relatives on earth.

Question 5

What are important factors in the observance of rules for living in African customary law?

Answer 5

1. The religious or sacral element of the law.
2. Public opinion
3. The knowledge that if a person is harmed, that person will endeavor to get compensation.
4. The fact that everybody in the community has a broad general knowledge of the law.
5. Fear of punishment
6. The influence of indigenous leaders in the community.

Question 6

What are the sources of customary law?

Answer 6

1. Customs and usages
2. legislation
3. Judicial precedent
4. Scholarly and other writings

Question 7

Discuss the relationship between African customary law and magico-religious conceptions.

Answer 7

African customary law gives expression to the values of the community. In many instances, these values are based on conceptions of the supernatural world. In Africa, the belief in ancestral spirits and the belief in sorcery are very important.