Abstract

The modern African judge will be the first to acknowledge that, in many senses, the problems faced by British judges in colonial Africa have not vanished. Almost one hundred percent of the African judiciary is now African. But even though there is no longer the gross disparity of national origin between a judge and his community, a judge often does not come from the particular locality whose ethnic law he is administering. A part from this ethnic question, there is an enormous educational and cultural gap between a senior judge with a western education and the ordinary families he may deal with. Thus, the judicial system may have moved from a problem of race and ethnicity to one of class.

Highlights

  • Introduction and contextA ‘religious cult’ emerged in Kenya during the colonial epoch (1930s) which preached that indigenous Africans might never reclaim their heritage as long as Western values dominated the socio-political milieu

  • The modern African judge will be the first to acknowledge that, in many senses, the problems faced by British judges in colonial Africa have not vanished.Almost one hundred percent of the African judiciary is African

  • We argue that apart from the Christian faith, customs, laws and values consistent with it, any other religion or custom is certain to find the Kenyan legal system not very hospitable

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Summary

Introduction and context

A ‘religious cult’ emerged in Kenya during the colonial epoch (1930s) which (religion) preached that indigenous Africans might never reclaim their heritage as long as Western values dominated the socio-political milieu. In a recent interview with journalists, its current leader lamented: “just the way Masinde was frustrated and harassed by the Government during the colonial days and after independence, we have not been spared.”[4] have successive governments troubled this religious group, and, its principal pillar – the reinstatement of African customary law – has faced consistent yet subtle onslaughts from amongst others, the State itself. This investigation concerns this important pillar of the proscribed faith of Dini ya Musambwa. For an in depth appreciation of this development, we discuss African customary law first through its historical phases – the pre-colonial period; the colonial period; and the post-colonial period – before alluding to the limitations it currently faces by dint of the Constitution of Kenya 2010, Acts of Parliament, international law, case law and common law

African customary law before colonialism
African customary law and systems before visitation
African customary systems after visitation
Traditional African customary law during the colonial epoch
The Constitution
The human rights discourse
Case law
In lieu of conclusion
Full Text
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