Lines of development in the past have, however, demonstrated the potentialities of African customary law for the future. While economic development would be fostered if brought under one unified general system of law for a country, the law established should have full regard for the traditions, family and personal law of the society concerned. Questions of family relations, marriage, divorce, and succession are so essentially personal that they must, in a large part, continue to be governed by the customary law of the community. It may therefore be stated that the third possibility – fusion of indigenous and non-indigenous laws – should be the guiding policy, expressed or unexpressed, for most African states.
It is, however, impossible to exaggerate, that the urgent need for law reform and development in Africa cannot be met by a series of national efforts however praiseworthy each of these may be. The artificiality of existing national boundaries, their lack of rational relation to significant ethnic groups or to viable economic units and also their very intransigence, all strongly suggest that national efforts toward law development at the national level need to be supplemented by transnational programmes. The argument for uniformity or at least harmonisation of laws is compelling and some measure of success in this direction might also provide some impetus for the creation or recreation of transnational courts and the better coordination of criminal justice systems across national boundaries.
Almost by definition, Africa is a region of new nations which must tackle and accomplish several urgent tasks all at once. The compelling goal is modernisation with its many pathways some obvious, others baffling and obscure. The more obvious ones are education, health, economic development and improvement of communication.
These have received and are receiving much scientific and institutional provision. Less obvious, more baffling and even more challenging are those pathways leading to the establishment of that stable legal and political order within which the desired and needed modernisation to cope with the minimum standards and norms of the United Nations and/or the African Union can take place.
This is the province of law, and in this province it is urgent that a radical transformation should occur both in the provision for research and in the consequent output of systematic and constructive thinking. Far more than the developed and established nations, African states require the services of the most skilled, perceptive and sophisticated machinery of law reform and law development that can be contrived. For we on the Africa continent, have less time in which to achieve comparable viability in our institutions of law and government. We have a greater need to avoid unnecessary mistakes, being less able to afford them. Like the advanced nations from which we have inherited dominant features of our legal systems, we are confronted with the problem of keeping the law abreast with the time. And our adolescent need for stability and national unity faces us with many additional problems of institution building and law development.
Somehow, therefore, massive scientific help must be brought to bear on the problems of institution building and law development in Africa. An urgent need exists for achieving the capacity to point more assuredly toward the acceptable solution of pressing political problems; for speaking helpfully, persuasively, and effectively to the emotions, passions and reasons of the leadership of Africa.
There is therefore an urgent need for the establishment of an International Centre on African Legal Research or a Law Commission for Africa, constituted on lines similar to those of the United Nations Economic Commission for Africa, and working closely with it and supplied with full time staff specifically devoted to this task. Ideally, such a Law Commission for Africa would be served by three or four Regional Research Institutes, themselves based on smaller institutes of legal research in each state. Tasks awaiting such a Law Commission include:
1. Undertaking the promotion of systematic research into the many common legal problems that confront most African states, not least of which is the establishment of viable constitutions.
2. Acting as the technical agency for any future organisation that may be set up to promote uniformity of laws as between states in matters where uniformity is desirable and practicable and assisting generally with the work for modification and restatement that is under way in some countries.
3. Serving as a coordinating centre and clearing house of information regarding law reform activities in different countries, how particular problems have been solved in foreign legal systems, and providing facilities and assistance for projects for reform in particular countries.
The thrust of my argument is the strongest possible plea for collaboration in the establishment of some such Law Commission for Africa. Massive and concerted work by legal scholars on the intangible infrastructure has been urgently needed since days before independence. In the field where many common problems challenge combined thinking and action, it remains true to say that most of the ongoing work proceeds in isolation and does not measure up to need. For the most part, we have yet to take the necessary steps away from the starting point, inherited from the colonising power, on the road to integrated national legal systems and to international harmonisation in appropriate spheres.
In justification of this plea we need only to remember the impressionistic profile of the colonial legal impact and legacy in Africa raising questions and indicating areas that demand thoughtful action based on systematic research. In a paper presented at the International Conference on Human Rights: The African Concept held at the University of Port Harcourt, Nigeria in 1987, Professor Claude Ake observed: “African society is a network of relations and of mutual obligations which impose responsibilities based on duty, trust and sense of community. There must therefore be a unique direction in which human rights laws ought to go in Africa; that human rights laws in Africa must be built on principles quite different from those existing elsewhere; that human rights laws in Africa must be built on African principles.”
It is argued elsewhere, however, that human rights as understood imply a society which is atomised, individualised; a society based on permanent conflicting interests. The individual is conscious of his separateness and wishes to maintain it, while society, on the other hand promises to uphold this separateness.
Such values are alien to African society. We Africans lay emphasis on the collective rather than the individual, and the individual claim is not usually allowed to override that of society. African society promotes harmony rather than competing interests and the individual tends to consider obligations to others as having a higher status than his own claims against them.
In recent years, serious strides have been made to enact human rights laws in Africa, the most remarkable being the African Charter on Human and Peoples’ Rights, 1981 (popularly known as the Banjul Charter) which came in force in 1987.While the Charter follows the usual pattern on human rights enactments, especially the European Convention on Human Rights, it contains major innovations. The concept of duties is introduced for the first time. The whole of Part One (Articles 1-19) deals with “rights and duties”. There is a “right to develop” in Article 22(1) and a “right to international peace and security” in Article (23(1). I find it fascinating and African the duties imposed on the individual to his family, to society, the state, to Africa and to the international community in Articles 27 to 29. The impact of the Charter on African states including the question whether the socio-political and economic climate in Africa is favourable for the implementation of the Charter is still being discussed and studied by eminent scholars and jurists both in and outside Africa. In practical terms, however, we now have the ECOWAS Court in Abuja, Nigeria, and the African Court on Human and People’s Rights in Arusha, Tanzania.
The African concept of human rights should therefore go beyond the concept that “every person is free or has the right to dine at the Paradise Suites Hotel”. This makes sense only to those who can afford to do so. And freedom of expression does not include the freedom to shout “fire!” in a crowded hall. Or as my friends would say, “the freedom to swing your hand stops at the end of my nose.”
Therefore and particularly because for most of Africa the inheritance from the colonial legal system is so substantial, we need to watch out for myths of legal homogeneity, to be on guard against a psychology of legal dependency, to be mindful and proud of our inheritance, including those from within our own societies, and to be certain of the intrinsic worth of an outward looking philosophy of legal development.
A famous 18th century jurist once declared: “It was the boast of Augustus…that he found Rome of brick, and left it of marble… but how much nobler will be the sovereign’s boast when he shall have it to say that he found law dear, and left it cheap; found it a sealed book, left it a living letter; found it the patrimony of the rich…. Left it the inheritance of the poor; found it the two-edged sword of craft and oppression… left it the staff of honesty and the shield of innocence.”
If we can achieve the programme of law reform and development envisaged in the successful establishment of a Law Commission for Africa, it will be the boast of us all and even much more of the generation of Africans yet to come, that shall have it to say that we found Africa of brick, left it of marble, found law dear, left it cheap, found it a sealed book, left it a living letter; found it the patrimony of colonial craft and oppression, left it not only the inheritance of the poor, not only the staff of honesty, not only the shield of innocence, not only the dynamic spirit of the sovereign republican aspirations of our peoples but also the renaissance of Africa and its contribution to the civilisation of the universal – a vision of a new Africa with a glorious and historic past rising up again to the challenges of our times – a vision of a mighty continent emerging from the great schemes of the past with love of freedom in its sinews to suffer wrong no more and to rewrite the history of our ancestors.
The author FaFa Edrissa M’Bai, CRG, is a renowned lawyer with multiple honours and postgraduate degrees from the Universities of Keele and London, and has some forty years experience as a distinguished legal practitioner. He has twice served as Attorney General and Minister of Justice of the Republic of The Gambia. He is an erudite scholar the author of many books.