Abstract
Historically, African customary law has occupied the lower rungs of the legal ladder, often being set aside for more formal laws. This is primarily due to the introduction of western and religious legal systems through the exploration of western nations into Africa, missionary activity and, subsequently, colonisation. However, African countries – including Kenya – are making an effort to give due recognition to customary law. This paper discusses the steady degradation of customary law from the colonial period to the promulgation of the Constitution of Kenya 2010 where there are attempts to resuscitate its application, it also discusses the challenges that the courts may face in this application of customary law today and possible solutions to these challenges.
Highlights
In traditional African society, men from the same geographical area came together and formed tribes
African customary law has occupied the lower rungs of the legal ladder, often being set aside for more formal laws
African countries – including Kenya – are making an effort to give due recognition to customary law.This paper discusses the steady degradation of customary law from the colonial period to the promulgation of the Constitution of Kenya 2010 where there are attempts to resuscitate its application, it discusses the challenges that the courts may face in this application of customary law today and possible solutions to these challenges
Summary
In traditional African society, men from the same geographical area came together and formed tribes. Restorative justice can be defined as ‘processes whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications in the future.’[2] It was fundamental as people did not exist as individuals but more as part of a community Their entire lives were built on a web of societal relationships which had to be maintained as they formed part of that community.[3] African customary law always emphasised the welfare of the community over the individual and the individual was forced to make decisions for the betterment of the community. Part II discusses the challenges that the courts and the legal system have faced in the application of customary law and Part III will provide possible solutions to these problems
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