Integration of African Customary Legal Concepts into Modern Law: Restorative Justice: A Kenyan Example

Buluma Bwire

doi:10.3390/soc9010017

Abstract

African societies have been governed according to known norms, customs, and practices that together constitute African customary law. These societies have placed emphasis on communal as opposed to individual identity, and this has extended to their justice systems. African customary law therefore has placed emphasis on the concept of restorative justice based on the understanding of restoring the societal balance that has been disrupted by crime. This has fostered offender accountability, reparation to the victim, and full participation by the affected community members. This essay examines the resurgence of African legal philosophy and its subsequent integration into modern African formal legal systems. In particular, it interrogates the recent Kenyan example of integrating traditional dispute resolution mechanisms as one of the guiding principles for the exercise of judicial authority by Kenyan courts under the 2010 Constitution. It argues for the development of structures to properly utilize such mechanisms within the Kenyan context.

Highlights

The notion of the non-existence of an African philosophy of law is premised on the non-existence of written records about such law
It is a misnomer to talk about written records when referring to the history of African societies since it is well documented that in such societies the oral tradition was the method in which history, stories, folktales, and religious beliefs were passed on from generation to generation [2]
The philosophy of reconciliation is a major part of daily African life

Summary

Introduction

The notion of the non-existence of an African philosophy of law is premised on the non-existence of written records about such law. Drawing from the various African customs we can extract an African philosophy of law This African legal philosophy should have a pride of place in the upper echelons of African legal systems. It has as its strongest pillar the fact that it provides a medium for society to protect certain values. African societies can ensure the preservation of some of the better African customs and cultural practices by conferring upon them legal validity. This would in turn make African legal systems truly African since they would incorporate African customs and beliefs

The Underlying Legal Philosophy in Traditional African Customs

Integration of Restorative Justice into the Modern Kenyan Legal System

Findings

Conclusions