law in east africa || customary law in east africa

Customary Law in East AfricaAuthor(s): A. N. AllottSource: Africa Spectrum, Vol. 4, No. 3, Law in East Africa (1969), pp. 12-22Published by: Institute of African Affairs at GIGA, Hamburg/GermanyStable URL: http://www.jstor.org/stable/40173502 .

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Customary Law in East Africa

I should begin by seconding the remarks of Mr. Sawyerr in expressing our gratitude at being invited here. I am most pleased to be here. I am going to talk about customary law in East Africa and it is difficult to know where to begin. But I thought it would be helpful to begin by discussing customary law as it was in East Africa in the colonial period and the way in which it was then administered, and then go on to look at plans and possibilities for the future of customary law, because I assume that, unless you are very dedicated researchers into the traditional customary laws, you will be more interested in the future-orientated question, "what happens now to customary law?".

Customary Law before Colonial Rule

We start then with the law as it was before colonial rule arrived and as it was treated during colonial times. It is hardly necessary to remark that the customary laws in East Africa were no different in their general characteristics from those in other parts of Africa. The remarks I shall be making about customary law are therefore generally applicable to the customary laws in East Africa in pre-colonial times.

The first point to underline is the great multiplicity of these laws. This multiplicity of laws reflected the numerous different types of indigenous society in which these laws flourished. There is an assumption, which it is very easy and common to make, that there is something that one may call "customary law" in general. Perhaps the basis of this assumption is that one may think an entity has been established by the mere fact of giving a name to it. Thus the legislation in the British territories always used to refer to "customary law" or "native law and custom" in the singular; this undoubtedly encouraged the supposition that this was a single species of law, whereas in reality it was a genus with very many species. May I therefore stress once more the very varying types of society in which the customary laws flourished? It would be a mistake to think that this is merely a historical point without relevance to the present day. If one is trying to achieve, as many African governments are trying at the present time, a greater degree of uniformity in the law, one has to take account, not only of the laws, but of the societies of which they are the expression and way of life. The Masai in Tanzania are an obvious example of the problem, as are some of the less developed peoples of Northern Kenya. Some of the traditional East African societies had (and have) centralized authority systems, some had none. This

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caused administrative problems for the British in the early years of colonial rule (who were they to deal with?) and later on also, when the policy of Indirect Rule was in full operation.

It is impossible to express in a few words the general spirit and approach of the customary laws, but there are one or two aspects of those laws which seem particularly important at the present day. First of all, they mostly relied on a very different approach to adjudication and the settlement of disputes from that adopted by Western laws, notably in the pre-eminence accorded to the concepts of arbitration and conciliation. Secondly, the law was integrated with the way of life and beliefs of the society; indeed, the law was a reflection of that way of life. Thirdly, there was what one may loosely call a conservative spirit in these laws. I say loosely because one may easily exaggerate the un- changeability of the customary laws. Customary law does change, it can change, and it has changed, even in the pre-colonial period. Fourthly, there is the kinship basis of the customary laws, that is, in the private sphere the laws were or-

ganized around the family (i.e. lineages and households) and family relation-

ships. It would, however, be erroneous to think that there was a pure collectivism in the traditional laws. When we come to look at the land law in detail, we

may examine more closely exactly how collectivist the customary laws are and how this affects the policies of the governments at the present time. Lastly, customary laws were built around status differentiation, in other words, the

conception that everyone is not born equal; there was differentiation by rank

(one may be a chief or a commoner), by sex (there are normally only two choices there!), and by age (one is an elder or a junior). If we are concentrating on the customary laws in East Africa, we must also mention the role of Islam and Islamic law. I did say in opening that there is nothing special about East Africa so far as customary laws are concerned, but the penetration of Islam and Islamic legal principles in certain areas, especially along the coast, led to

changes in or distortions of the customary laws. The Islamic factor in the local laws is yet another source of contemporary legal difficulty.

British Rule and Customary Law

The effect of British rule on these customary laws was, to begin with, minimal. The most important point here is that the British did not abolish these laws; they preserved them. They recognized the native tribunals, which, later on, were

redesignated as native courts; they recognized Islamic courts in various areas. The British only gradually altered the characteristics of these indigenous courts, both as regards their staff, their procedure, and the law that they applied. For a long time, they recognized these institutions which administered the customary law. This was the first essential precondition for the survival of the customary laws, that the institutions expert in them should survive and continue to apply those laws. Where the practice in East Africa differed from that in other parts of British Africa was in the creation of a parallel or dual system of courts (about which you have already heard). On the one side, there were the traditional native tribunals supervised by administrative officers, some with legal qualifi- cations but most without; and, on the other side and having practically no con-

tact with the first type of court, the judicial, professional, English-orientated system of courts. This meant that up to very recently the customary laws in

East Africa were not adjudicated on by what we might loosely call regular pro-

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fessional courts of law. One only has to take down the law reports of West Africa and compare them with the law reports of East Africa to see the enormous difference. The law reports of Ghana or Nigeria are full of decisions on customary laws; but East Africa has to catch up in this regard, as Mr. Sawyerr pointed out. The courts in East Africa are now integrated, which means, as he correctly said, that in future there will be many more superior court decisions on the customary laws. Side by side with the recognition of the native courts there was the recognition of the customary laws, concerning which the legislation, to begin with, provided that all courts were to be guided by customary law where natives or Africans were parties. Again (and here again I entirely agree with Mr. Sawyerr), one does not precisely know what these words mean; but they were not applied so frequently in practice. It did not matter much what the words meant; what was important was that the recognition of customary law was subject to the repugnancy clause - that only that customary law which was not repugnant to justice and morality was to be enforced. It is a sensible question to pose, "Whose justice and whose morality?" The answer given by the courts was basically, British justice and British morality, but adapted British morality if not adapted British justice; for example, polygamy and marriage by payment and so on were recognized, even though not so recognized in England. Another interesting feature of the recognition of

customary laws in the colonial period in East Africa was that not only did the British administrations recognize the private law, i.e. the civil law, but they recognized the criminal customary laws as well. Up till recent times the custom-

ary criminal laws survived, at least in part, side by side with the Penal Codes and other Western-type criminal legislation.

During the colonial period the customary laws as they had originally been were subjected to constant modification. There were three main agents of modification or change involved. First of all, there was the guidance given by the administrators and superior court judges from above, what we may call judicial control. As I have already mentioned, this was mainly by administrative officers and not by the judges of the High or Supreme Courts. Secondly, there was modification by legislation, which was minimal in the earlier part of the period, there

being very little legislation affecting customary law directly. And, lastly, there was modification by the people themselves.

Let me interject a parenthesis at this point. Customary legal historians are

gradually appearing; in other words, not the ordinary sort of lawyer who says, "This is what the law is", but the more interesting kind of lawyer who says, "This is what the law was, this is what it is, and that is why what was has become what is". He seeks the reasons for the changes. There is ample scope for

anyone of a research turn of mind to undertake a piece of investigation into

customary legal history in East Africa as in any other part of Africa, because there have been enormous changes in the customary laws in this century, in

response mainly to the economic and social transformation of the continent, for example, in the fields of agriculture, education, and labour at a wage. Nor, to mention one hobby-horse of mine, should one forget taxation as an agent of

legal change. These changes have occurred partly through the permeation of

customary law by Western legal notions - leakage, osmosis, or whatever one likes to call it - and partly by the people themselves taking advantage of the

parallel opportunities provided by the general law, for example, to marry mono-

gamously rather than potentially polygamously.

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Customary Law after Independence

It would be possible to describe these changes In customary law in the colonial period in detail, but I am more anxious to get on to a discussion of the recent period and the future. So let us move on out of the colonial period and see what is now being done about customary law, what could be done and what effect it is all having. The first thing that could be done about customary law is to do nothing in particular. This is almost always the most attractive policy, it in- volves no expenditure and no effort; indeed, it was a policy which was ex- tensively followed by the British during the colonial period for one reason or another; thus causing a good deal of trouble at the present time. If we sav that the British did nothing about the customary laws, we mean, for instance, that they did not find out what these laws were. One would have thought that the very first requirement, if one is applying a novel system of law, is to find out what the law is, so that one can apply it properly. There are various ways by which one can ascertain the customary laws. During the later colonial period in Tanganyika, as it then was, the government emploved government sociologists, one of whose tasks was the investigation of the different customary laws. The late Hans Cory was very prominent in these investigations, as was my present colleague, Professor Philip Gulliver and they, with the other government sociologists, did good work in investigating customary law, though basically from a non-legal or non-juristic point of view.

In the past, then, it was largely left to anthropologists and administrators who had time to spare to find out what the law was and in some cases to write it down. There was, as I have already noted, very little recording bv the

superior courts of what the customary law was, because thev rarely had a chance to express an opinion on it. Today the position is very different, in that there have been a number of systematic attempts to investigate, record and restate the customary laws. The first reason for doing this is purely academic^ I do not mean this in a derogatory sense; from the scientific point of view it is Justifiable to find out what these laws are. Fortunately this academic investigation can have practical consequences and value; at the least it enables those who want to change or abolish the law to find out what they are changing or abolishing, in other words, it can be the prelude to legislation. This is what appears to have

happened in Kenya. My colleague, Mr. E. Cotran, who was seconded to the

Kenya government to record the customary laws of marriage and succession, completed his task shortly before the government produced its proposals for abolition or reform of these customary laws of marriage and succession. The Restatement of African Law Project in London has been partly concerned with this task in Kenya. In Tanganyika (and later, Tanzania) there has been an official government project for the restatement, unification, and in effect codification of the customary laws. I have no recent information on the progress of this project, but earlier on a good deal of investigation, mainly of the traditional laws of societies not influenced by Islam, was carried out. The effect of the

resulting declarations was a transmogrification of the customary laws; that is, it was more than just a recording. Uganda has been very badkward in this

particular respect, not because there was no one who knew anything about

customary law but because it was official government policy during later colonial times not to investigate or record the customary law. The basis of this

policy seems to have been that if one did not investigate the law, people would

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soon forget what it was, it would consequently disappear, and so one could come back to the pure English law, which was felt to be more suitable for the people of Uganda. Now that was a typical narrow-minded expatriate approach to customary law, but strangely enough it was an approach that was also followed by the independent Uganda government for a while. This continuity of policy is most surprising; but I must add that recently there has been a switch of policy so far as the Uganda government is concerned, and that they are now again seriously interested in the investigation of the customary laws. But this means that the government has now got to catch up on a great deal of wasted time.

I should mention that, during the earlier German period in German East Africa, there were considerable efforts by various bodies and authorities to investigate and collect laws in what later became Tanzania; for example, Das Eingeborenenrecht of Ankermann, and Gutmann's work on Das Recht der Dschagga, and so on. But I imagine that this is all somewhat inadequate by present-day standards, or if not inadequate certainly out of date; so there is still plenty of work to do and the question is how and why to do it, and will it be too late. I have already mentioned for Kenya the problem of finding out what the laws are just before they get abolished, but Uganda is perhaps an even more difficult caSe, because, as I see it, there they abolish the law first and then investigate it afterwards. Since, fortunately, legislation in Africa is not as effi- cacious and immediately applicable as it might be, there is always time to spare; I should, to be fair, point out that in Kenya they have not yet applied the new laws which would in large measure abolish the customary laws of marriage and succession, and perhaps, because of political difficulties, now they never will put the new proposals into effect. If this assumption is correct, then there is still time to investigate the customary laws.

The Future of Customary Law

Putting recording of customary laws on one side, one may pose the question of what else can or should be done with the customary laws. There is, for example, the problem of unification. I have mentioned already the Tanzanian attempt to record and reshape the customary laws, basically through local co-

operation but with central initiative. The Kenya approach has been through restatement, again as an official government exercise, which has in practice produced a very substantial degree of uniformity in the laws as restated, coupled with reform. In Uganda, the policy was, as I have explained, to begin with one of abolition. Policy at the moment appears to be fluctuating. Some of the

objectives behind the unification drive, notably nation-building, have already been sufficiently discussed. If one does not wish to use such a grandiose expression as nation-building; the problems of tribalism and how one reduces the tensions caused by it are a sufficient justification for any attempt to reduce cultural or legal variations between communities or groups. Codification in the strict sense is probably not going to be adopted so far as customary law is concerned, unless one describes the Tanzanian restatements or declarations as codi- fications, which indeed they are in part. One must realize in this context the inhibitions caused by a common-law background and mentality. Those of us who are trained in the common-law tradition are not too enthusiastic about

having Napoleonic codes and all that sort of thing. I do not know if the French

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themselves are so enthusiastic about such codes these days, but we certainly are not, and this attitude has spread into the countries in Africa for which the Bri- tish were once responsible. There is the further point that some of the ambitious codes recently introduced into African countries have not been applied in practice to the extent that they might have been.

The last alternative policy for customary law is replacement; in other words, one says straight off that all this customary law stuff is out of date and the sooner we get rid of it the better. Those who say that tend to be those who do not know too much about it, who certainly do not waste their time studying it, and who are perhaps not representative of the nation as a whole. There is the same acute problem in Africa as in England that we are governed by an £lite, and, whatever Harold Wilson may say, an unrepresentative elite.

I must now turn my attention from customary law in general, and say a few words about some of the different branches of the law. In doing this, I shall be

obliged to be brief, but I hope to have enough time to indicate one or two

practical points that arise. The best way to proceed, I think, is to run through some of the major brandies of the law and offer some comments at each place on what future, if any, there seems for the customary law in them.

Criminal Law

Firstly, the criminal law. At the moment customary criminal laws have been abolished in East Africa; one might therefore conclude that there is no place for

customary law in this field. But perhaps this is now the time to begin thinking seriously, not specifically about introducing customary law ideas or principles or offences, but about localizing the Penal Codes, indigenizing them, making them more responsive to the present feeling of what is right and what is wrong in the countries were they apply that may be the case at the moment. One can still build customary principles into the Penal Codes by, for example, adopting offences which customary law said were wrong but English law did not: adultery is one example which has been inserted in the Penal Code of Uganda. Or one

may adopt a different philosophy and try to localize procedure, criminal procedure, by which I mean not only what is done in court but the whole approach to the detection and treatment of crime. Or, lastly, one may try to follow local ideas on punishment. Should one cite the retention of corporal punishment in East Africa or the Minimum Sentences Act in Tanzania or public hangings in

Congo-Kinshasa as examples of localization of punishment? I do not know. But what one can say about the criminal law in East Africa is that there is a very strong impulse towards uniformity, the idea that what is an offence so far as one person is concerned should be an offence for everyone. This means that, whatever system of law is adopted, it has in fact to be an amalgam of the laws or views of different sections of the community.

Torts or civil wrongs

A similar argument could be directed to the next branch of the law, the law of torts or civil wrongs. There was a case recently in Zambia about an African who worked for a butcher and was delivering meat at a European's house.

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He was bitten by the European's dog, and the question arose whether there was any liability for the bite of the dog or not. The problem here is that under English law the owner of the dog has to be shown to know that the dog is dangerous, that it has a propensity to bite, whereas under the local customary laws that was apparently not required and liability for a dog is strict. Without going into the details of the case you can see the problem. Where parties to a case come from different communities, and each of their laws has a different rule on this very important question, namely, whether one is responsible for a dog that bites someone else, which law is the court to apply? In this case the choice was between the European's law and the African customary law, but a similar case of conflict could also arise between different customary laws. A case of this kind puts into issue the whole question of whether one should have one law for Africans and one for non- Africans so far as torts are concerned. If the answer, as a matter of policy, is negative, then one has to produce a unified code or law of torts. In London at the School of Oriental and African Studies we have tried over the years to think out what such a code could contain. One of the interesting things we discovered was that there has been a marked convergence of customary ideas and common-law ideas about tortious liability. This is the result, I am sure, of the many years of influence over the customary law exerted by the forces that I mentioned earlier in this talk. If this is so, it may be not as difficult as one once thought to achieve a unified law of torts which would replace but not abolish the customary principles.

Contracts

Next, contracts. The theory of the law of contract is that the parties make their own law so far as the legal system permits. A study made by Professor Ghai of some customary contracts in Kenya showed that indigenous Kenyans have been very busy making their own laws and adapting them to modern circum- stances. This again is expressive of the adaptability of the customary laws to modern problems and needs. If one proposes to borrow some of the philosophy of the customary law and apply it to the general-law contract, the first thing one should do is to borrow their informal approach to agreements. The conse- quence might be, for example, that one would lose the law relating to consideration. (This, which is one of the glories of the English law, is generally required for the validity of a contract in English law.) There are many other ways in which one could have a less formal law of contract by borrowing, inter alia, from African notions on the subject, but there is no time to explore this point now.

Family Law and Marriage

Now we come to family law and marriage. I propose to tackle this branch of the law in a different manner, by looking specifically at the reports of two recent Kenya Commissions on the law of marriage and the law of succession respectively, to find out how far those reports advocated the abolition of customary law and how far they proposed its retention and in what respects, and to see what we can learn from this about attitudes to customary law and indeed the viability of customary law at the present time. In 1967 the Kenya

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government set up two Commissions broadly representative of various interests in the society to look into the possibilities of producing unified laws dealing with marriage and divorce on the one hand and succession to property on the other hand. These Commissions both reported in 1968. Their reports not only offer a commentary in extenso on the problems but also put forward draft bills as possible solutions. The Report on Marriage proposed the imposition of an extensive degree of uniformity on the laws as they previously were in regard to a number of topics. To take one example, prohibited degrees. Can I marry my wife's sister or my third cousin in the male line? Traditional African society is built on its kinship system, and the rules about prohibited degrees are an essential part of that kinship system. Once statute lays down a standard list of relatives who may or may not marry and that list is not a customary law list, imme-

diately the whole rationale of the kinship system as it was is gravely weakened.

Consequently the insertion of a small paragraph saying that prohibited degrees shall be this rather than that means in practice saying good-bye to much of the

customary law relating to family relationships. One might be inclined to think that we have already said farewell to traditional African relationship systems, because over the last 50 years African kinship structures have been progressively attenuated by being stripped of those features and refinements which differentiate them from the relationship systems with which we are familiar in modern Western society. So perhaps this Kenya proposal merely consolidates a process that has already gone on. The Kenya Commission on Marriage proposed a uniform minimum age for marriage; and a single definition of marriage as a

voluntary union for life (though subject to the usual qualification that you can always get rid of your partner earlier if you don't like him or her), the definition apparently representing a considerable change from the previous customary law position. Again, however, I must challenge the assumption that this is a substantial change; the truth is that the customary laws have been modified and have modified themselves during this century, so that in effect

practically everywhere marriage is now a voluntary union. The previous custom-

ary-law situation when children might be married by their parents against the children's wishes no longer obtains. An equally important change proposed by the Kenya Commission on Marriage seeks to impose uniformity on the property consequences of the marriage.

There are a number of other major innovations projected by the Commission,

e.g. regarding registration of marriage, breach of promise, the duty of the hus- band to maintain the wife and vice versa, the procedure and the grounds for divorce. It is not possible to give a full commentary on each of these points here, but it is a very extensive list, and their cumulative effect is to suppress many features of customary law which one would have thought to be vital. A certain measure of non-uniformity is left, however. Thus the Commission took a half-

way position between monogamy and polygamy or potential polygamy by saying that spouses might choose either form, provided that a spouse made his or her choice categorically at the appropriate time. The effect of this provision would be to preserve a system of monogamous marriage side by side with a

system of polygamous or potentially polygamous marriage. The Commission

preserved the customary law ceremonies for getting married, even though the

effect of getting married is now to be uniform. Many of the features which the

Commission now proposes should be uniform are borrowed in part from custom-

ary notions. For example, the procedure for divorce, the role of conciliation,

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the fact that there is going to be no set of grounds for divorce as there are at present but only one basic ground of irretrievable breakdown of marriage - all these innovations would take the law closer to customary notions than to the old English law. Among other proposed alterations in the customary law of marriage are: (i) that the wives of a polygamist should be ranked equally; (ii) that the payment of marriage consideration (bride-price or "dowry") shall no longer be an essential requirement for a valid marriage (a substantial change indeed); (iii) that a wife should be given the right to sue the other woman for adultery (an unheard of privilege in the eyes of the customary law); and (iv) that marriage shall end with death, i.e. the death of the spouses. One may briefly comment, without going into a full discussion of the customary law, that each of these proposals represents a rather substantial change. We may finally note that by proposing the making of marriage payments non-essential, the Commission would effectively reduce the legal significance of customary family participation in the process of marrying, such family participation being one of the outstanding features, of course, of the traditional law of marriage.

Law of succession

So much, then, for the Kenya proposals on the law of marriage. Now let us turn to the law of succession. The Kenya Commission on the law of succession also reported in 1968; it was faced with equally profound choices between one law and another and it came out with some equally radical solutions. Let us start with the example of testation. It would be wrong to say that customary laws have no rules about wills at all. It as possible in many of them to influence the way in which an estate is divided, although certainly they do not generally recognize an unrestricted power of testation by written will. The Kenya Commission recommend the introduction of a general power of testation, of making wills, for everyone. This would have a profound impact on the customary laws because it would mean that anyone who was dissatisfied with the intestate law could opt out of it at his will. The second major change put forward by the Commission was to make the surviving spouse (whom we may assume would most frequently be the wife) the main sharer in, and the main disposer of, the estate. This again is flatly contrary to the traditional customary law. The succession proposals favour the immediate relatives of the deceased as against those more distantly related - this ties up with the rules about prohibited degrees of marriage, which I have already referred to.

In its Report the Commission picked out some of the weaknesses of the customary laws of succession as the Commission saw them.

(i) The fact that the law was unwritten: we have already dealt with that.

(ii) There was no free power of testation: this I have already briefly discussed.

(iii) The limited right of widows and females generally. (iv) The inequality of shares in the estate in a polygamous household.

(v) The inapplicability of customary law to modern forms of property, such as bank accounts, motorcars, houses in towns, etc.: we have not yet discussed this last point at all, but it is of over-riding importance, as I see it, because it is the crux of the problem. If the customary law works satisfactorily in a rural environment but won't work in Nairobi, that is a very important fact, because

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the only solution is either to be satisfied to have one law for Nairobi and another for the country, or to change the law.

(vi) Lastly, the Commission picked out the weaknesses in the customary system of administration of estates: this is a matter of opinion, upon which I might be tempted to disagree with the Commission's assessment.

I should like to return, if I may, to two of the points that the Commission especially mentioned. Inequality of shares in a polygamous household was the first one. Now here the Commission in fact proposed a major concession in favour of customary law, because they opted out of the fixed share approach to a division of an estate. This means, of course, opting out of the Muslim notion of succession but equally it implies opting out of other developed systems of law operating a fixed share system in favour of a system where there are no fixed shares in the estate but the surviving spouse has a power of appointment or distribution. This is closer to customary principles of succession, notably that the family should be able to say who among deceased's relatives should get what shares, rather than that a person should be entitled as of right to a prescribed share under the law. The main change from the customary position is that the distribution is now to be placed in the hands of the surviving spouse (widower or widow). The Commission propose the introduction of certain rules to deal with this problem of the inequality of shares. They adopt the

customary notion of a primary division between the different houses or sub- units in a polygamous household before making a subsidiary division within each house. (As you may understand, in a polygamous household each wife and her children can constitute a separate sub-unit.) They also provide that one shall be able by will to opt into as well as out of the customary law. It would thus be possible for a testator, when this law is introduced, to make a will

saying, "I leave all my property by customary law". Normally we think of a will as a means of evading the personal law, but here it could be a way of

getting into the personal law. The inapplicability of customary law to modern forms of property is dealt with by the Commission by making provision for the

non-application of the rules of intestate succession in certain backward areas of the country and to certain forms of property, notably agricultural property and livestock. To deal with the less developed areas of the country it would be

possible for the minister to order that the new law shall not apply to them so far as intestate succession is concerned. This is an interesting way of mitigating the inapplicability of the law to some societies within Kenya, by exempting certain areas from the new law for the time being on the ground that they are not yet ready for it.

Another new development proposed by the Commission is the introduction of family provision on the English model. Under the current English law, a testator can make a will leaving all his property to anyone that he pleases, but the court can then come along later and unmake his will up to a certain extent so as to provide for testator's dependants whom he left without anything after his death. The Commission has basically adopted the English approach to family provision.

Conclusion

Time is rapidly running out, but I just have time to underline one paradoxical point before I close. I have already mentioned the fact that the Kenya Com-

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mission on Succession proposed the introduction of the English idea of family provision. In the marriage field its sister Commission proposed that the only ground for divorce should be irretrievable breakdown of the marriage. Here the Commissions effectively intend to imitate or incorporate some of the ideas of traditional African law. All they have succeeded in doing, however, is to keep pace with modern legal thinking in England, because in England the Law Commission proposed, and it will soon be the law, that irretrievable breakdown of marriage shall be the only ground for divorce. Previously, up to the end of the colonial period and beyond, African countries borrowed much of their law from England, and that law was very different from the local customary laws. Today, if an African country borrows a law, especially in the family law field, from England, what it receives may well be a law whidi is much closer to traditional African law than the received English law which it had previously borrowed. Or, to put it another way, if an African country tries today to introduce more customary features into its statutory law, the result may well be to bring its law more, and not less, into line with the most developed legal systems outside Africa. This paradox of the future contribution of customary legal principles to modern law is the final thought with which I should like to leave the conference.

A. N. Allott

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law in east africa || customary law in east africa

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