Africanisation of Legal Education Programmes: The need for Comparative African Legal Studies

Moving away from the Euro-American centrism of African legal education programmes

Most undergraduate students in a typical African law school will go through a programme that primarily focuses on national law. The only opportunity to go beyond national law is in those institutions where either comparative law, legal history, international law or, occasionally, private international law are taught whether as compulsory or elective courses. However, strictly speaking, it is only where comparative law and/or legal history ⁶ are taught that the students go beyond studying national law. ⁷ A number of significant observations can be made at this stage.

First, that there are a fair number of law schools in Africa where comparative law is either not taught or is offered only as an elective. ⁸ In some of the institutions where it is offered as an elective, the course hardly ever attracts enough students for it to be actually taught. Second, a critical look at the course description of the comparative law courses or legal history courses in most African law schools reveals that these have been and continue to be substantially influenced by the Euro-American centrism that has dominated comparative law from its early beginnings, particularly after 1900 (Zweigert and Kötz, 1998: 2). ⁹

Like most standard western textbooks that provide an introduction to comparative law, the focus of courses, besides introducing the students to the functions and methodologies of comparative law, is on the major legal systems of the world. Little attention is paid to African legal systems. More often, the little time and opportunity allocated to anything African is taken up with teaching African customary law. This reflects and reinforces the marginalisation of African legal studies manifested not only in the early textbooks but even more recent standard textbooks on introduction to comparative law. Of the two popular introductory books which are widely used in African law schools, one of them, Major Legal Systems in the World Today: An Introduction to the Comparative Study of the Law (David and Brierly, 1985), devotes a small section of part 4, entitled ‘Other conceptions of law and social order’, to discussing ‘laws of Africa and Malagasy’: 547–576. The other book, An Introduction to Comparative Law (Zweigert and Kötz, 1998), does not mention African legal systems at all. Two more recent books do the same. De Crux’s 512-page Comparative Law in a Changing World (1999) devotes half a page to what he describes as ‘the African situation’. The highly acclaimed and award-winning book by Glenn (2004), Legal Traditions of the World, has nothing on Africa.

It is unfortunate that the present course content of comparative law courses in many African law schools reinforces and perpetuates the myth that African law and African legal systems do not deserve anything more than a passing mention. The programme and blueprint for comparative law studies and research that have been developed in Europe and America in the last two decades often contain little of much relevance to the needs of comparative law students and scholars in Africa. The fact is that traditional comparative law as a university course has still not shaken off the ‘civilising mission’ agenda that some of the great comparatists such as R. David and Tony Jolowicz saw as its main purpose (Markesinis and Fedtke, 2009: 6). ¹⁰ A number of comparatists such as Menski (2006) ¹¹ and Mattei (1997) have been critical of the self-conceitedness and bigotry of many western comparatists who, on the assumption of the superiority of western legal systems as the only legal models that have a universal character and content, ignore other evolving legal systems, particularly those in Africa and Asia. Many of these comparatists consider African law as irrelevant, irrational and pre-modern.

The difficulties that modern comparative law has with freeing itself from the inbuilt biases of the past are underlined by one of the most eminent and erudite contemporary comparatists, Basil Markesinis and his collaborator, Fedtke (2009:48). He not only dismisses the Eurocentrism criticism, but also questions the relevance of African law in strong derogatory language reminiscent of the colonial architects of the imposition of western laws and culture in Africa. He argues that, with the exception of South Africa, African law belongs to a ‘primitive’ system and should more appropriately be left to anthropologists and sociologists rather than lawyers. ¹² It is this mixture of bigotry and misplaced prejudice, combined with ignorance by western scholars who have refused to recognise the fact that African systems can adapt to changing circumstances and develop, which makes it imperative for African scholars to ensure that African legal developments are not sidelined by using imposed agendas from abroad. There are also some xenophilic African legal scholars who neglect or downplay African law under the misguided belief that the only way to gain recognition as a comparatist is to study and extol the virtues of western laws. For example, some of them feel that a course on Roman law is more important than one on African customary law.

The point being made here is not that western legal systems are no longer relevant or should not be studied. They are and will continue to remain, for better or worse, a permanent birthmark on our legal systems that cannot be excised. They provide the essential background against which we can study our legal developments and understand the challenges we face today. However, African legal systems and the trends and developments in them since the 1960s cannot be ignored in any modern serious scholarly work on modern comparative law. Moving away from exclusively focusing on and discussing only developments in the West gives the wrong impression that other legal systems have remained frozen in time and have nothing to offer.

An excellent example of an African legal development that shows that western models have no monopoly over how best to regulate society is the South African constitution of 1996. It would be an illusion for any serious scholarly work on comparative constitutional law today to ignore the contribution to constitutional law theory and jurisprudence that has emerged since this constitution was adopted in 1994. Again, although it is trite that the South African legal system is mixed, based on its dual Roman–Dutch and English common law heritage, it is clear from numerous studies that have been conducted that it has now mutated and developed its own distinct characteristics. This may warrant it not merely being classified as a conventional mixed jurisdiction, but also one that may soon mature into a distinct South African legal system (Fombad, 2010). These are experiences to which an African legal studies programme should draw students’ attention. Comparative law must now afford fair discursive dignity to non-western legal traditions. What appears to be emerging so far is an attempt, in which many South African comparatists are complicit, to limit all discussions of African law, in a somewhat paternalistic and condescending manner, to developments in South Africa. ¹³ They are more significant, but what is happening in other parts of Africa is equally significant and should only be ignored by those who in their indolence or bigotry still see African law as ‘primitive’ or supremely irrelevant. Besides this, the need for studying comparative law with an African focus also arises from the changing nature of national laws.

As pointed out above, there are some schools in Africa where comparative law is not taught or is merely an elective course. It is therefore not surprising that in a Nigerian study, six out of seven judges interviewed admitted that they were not aware of comparative law or had only encountered aspects of it at international conferences or in journal articles (Okeke, 2009: 35–36). It is doubtful whether a law graduate who has not studied comparative law, especially where such a graduate ends up in practice or is appointed to the bench, can perform optimally. Many well-educated lawyers have admitted that the lack of sufficient insights into legal systems other than the one in which they function places them at a disadvantage (Menski, 2006: 45). In common law countries, it is a normal practice that decided cases from other common law jurisdictions are often cited, with judges being invited to consider them in arriving at a correct decision on the basis that these decisions constitute persuasive authority. The scope for abuse and enormous damage that can be caused, especially where judges are not trained in the techniques of comparative law, are enormous and have been widely discussed in the literature of this topic (Saunders, 2006). It will therefore suffice to point out that without a sound grounding in comparative law, a judge runs the risk of misunderstanding and misapplying foreign law when called upon to do so in the normal course of adjudication. ¹⁴ The need for studying comparative law with an African focus arises from the changing nature of national laws.

The changing nature of national laws and the growing influence of African sources

The contents of African legal education programmes and the way they are taught must reflect the fact that, today, unlike a few decades ago, the contents of many national laws are being influenced by legal developments in Africa itself. As a result, it no longer makes sense to design programmes that assume that most of the laws are of foreign ancestry. The progressive Africanisation of national laws is manifested in many ways.

In some areas such as constitutional law, human rights law, international law and international trade, the African Union (AU) and its predecessor, the Organisation of African Unity (OAU) have over the years adopted a number of conventions, declarations, protocols, model laws and other agreements which contain principles that have had a tremendous impact on most national laws. The main area in which this has had an impact is in constitutional law. ¹⁵ An example of these are the four main instruments that make up the AU’s democracy and good governance agenda, namely the principles in the Constitutive Act, the Declaration on the Framework for an AU response to unconstitutional changes of government, the declaration governing democratic elections in Africa and the declaration on election observation and monitoring. (Available at: http://www.au.int/en/treaties). The important point to note is that these instruments have laid down fundamental principles of good governance, respect for human rights, free and fair elections and transparency which member states are bound to comply with (Fombad, 2012). As with other aspects of national life governed by the AU, and increasingly also the conventions, protocols and other agreements adopted by the different regional economic communities (RECs), ¹⁶ any meaningful comparative law study must necessarily consider what is happening in other African countries rather than what is obtaining in Europe. Hence a comparative constitutional law course in any African law school programme will only make sense if it involves a comparison of what the different countries on the continent are doing within the framework of the agreed standards of good governance they have committed themselves to uphold. Future lawyers and judges need to be taught domestic law against this background of the increasing Africanisation of national law.

Another manifestation of the progressive Africanisation of national laws is reflected in the attempts by some African countries to harmonise their business laws. The main rationale behind this is the economic argument that harmonisation of business laws will reduce the costs of doing business which are increased by the diversity in legal rules in the different countries. It is widely acknowledged that increased trade between African countries themselves is the key to unlocking the continent’s economic growth potential. According to Jeremy Stevens, only about 10% of African trade is within the continent and this is the lowest level in the world. In comparison, 40% of trade in North America is within the region, while intra-regional trade in Europe stands at 60% (Bizcommunity.com, 2011). Intra-African trade has remained low despite trade reforms, better macroeconomic management, investments in infrastructure and more constructive trade partnerships.

The first major effort to pull down these barriers was made when the Organisation for the Harmonisation of Business Laws in Africa (OHADA) ¹⁷ was created on 17 October 1993 in Port Louis, Mauritius. ¹⁸ The organisation comprises 17 mostly Francophone countries in West and Central Africa. ¹⁹ The objective of OHADA, according to article 1 of the treaty, is the ‘harmonisation of business laws in the contracting states by the elaboration and adoption of simple modern common rules adapted to their economies, by setting up appropriate judicial procedures, and by encouraging arbitration for the settlement of disputes.’ ²⁰ The scope of business laws to be covered by the Uniform Acts is defined in article 2, but the Council of Ministers is given the powers to include any other matters falling within the definition of business laws. Thus far, nine Uniform Acts have been adopted. ²¹

Although there have been some criticisms of the OHADA system, the Uniform Acts are designed to displace and supersede the national laws of the member states on the subject concerned, and for the first time, attempt to introduce business laws adapted to the needs and circumstances of the member states (Dickerson, 2005; Kalm, 2011). For Africa to be fully integrated into the global economy and lay a solid foundation for economic recovery and growth on the continent, it needs to quickly catch up with the process of harmonisation of international business law. OHADA currently represents the best effort that has been made. Any comparative study in Africa today must necessarily take account of the tremendous changes effected by OHADA in introducing uniform and harmonised laws that apply in several African countries and lay the foundation for a possible harmonised business law regime applicable to all countries on the continent. This makes it imperative that a study of commercial law must take account of developments, especially in terms of cases decided by courts in other countries that are members of the OHADA system.

As noted earlier, a number of introductory works on comparative law, in making their passing references to Africa, usually limit their discussions to African customary law (David and Brierly, 1985). Although there are such a wondrous mosaic and diversity of customary laws, not only in Africa but within the different African countries, they have many common features. Customary courts and the informal justice system that they provide have generally been neglected. ²² Yet a recent study has indicated that they constitute a ‘cornerstone of dispute resolution and access to justice for the majority of the populations in developing countries because they usually resolve between 80 to 90% of disputes’ (Wojkowska, 2006: 5). For example, in Malawi it is estimated that between 80 and 90% of disputes are processed through customary courts, and in the case of Burundi, the figure is about 80%, which go through its Bashingantahe institution as a first or sometimes only instance (Wojkowska, 2006: 5). Customary law is therefore not simply some sentimental ‘primitive’ relic of the past which should be of interest only to sociologists and anthropologists, but a living law that still has to recover from the relentless attack against it during the colonial period. ²³ Despite this, most African governments have in different ways perpetuated the marginalisation of customary courts that started during the colonial period. The universities have been complicit in the relegation of customary law to a subordinate position where it is either not on the law programme or merely an elective (Nicholson, 2004; Van Niekerk, 1998).

With little codification, few written records, the dearth of serious research and the passing away of many of the older generation of Africans who lived in villages and were supposed to be repositories of customary law, its future is in doubt. How can African customary law survive if it is not taught in law schools or stored in books and rests mainly in the minds of people living it in rural areas and in their daily actions, which makes research of it challenging? Furthermore, how can judges, who often deal with appeals from customary courts, properly adjudicate such matters when they were hardly taught the fundamentals of customary law in schools? And perhaps more significantly, how can customary law ever reach the global stage and attract anything more than cynical remarks from western comparatists when African scholars and legislatures on the continent sideline it. It can be argued that serious comparative studies on the operation of customary laws in the different African countries may provide the best way not only to adjust and adapt customary law to contemporary standards of justice, but more importantly, will enable experiences on how to maintain and sustain it to be shared. Customary law may be sidelined, but it will remain a vital component of a modern African legal system. Despite its defects, it cannot be wished away, but needs to be modernised.

Many recent African constitutions expressly or implicitly authorise the courts when interpreting its provisions to, inter alia, consider foreign law. This is explicitly authorised in Section 39(1)(c) of the South African constitution, 1996. It has also been persuasively argued that in interpreting the constitution, constitutional stipulations, which require the courts to promote the values which underlie an open and democratic society based on freedom and equality (see, Section 39(1)(a) of the South African Constitution, 1996 and Article 20(4) of the Kenyan Constitution, 2010) ²⁴ in an implicit manner, also allow for comparative reflections through the use of foreign laws (Markesinis and Fedtke, 2006: 26). Even if this has not been explicitly authorised, the universality of certain principles and standards, especially in the area of constitutional law and human rights, often leads counsel to cite and rely on some foreign laws to interpret national laws. In the case of South Africa, where the constitution expressly sanctions this, during its early years, the Constitutional Court relied extensively on foreign jurisprudence. Hardly any of this was from other African jurisdictions (Lollini, 2007; Udombana, 2005). So far there is little evidence of an intra-African dialogue, either in terms of cross-fertilisation, borrowing or migration of constitutional ideas from one African constitution to another or through the use by judges of jurisprudence from other African jurisdictions. Current comparative law studies on the continent and African judges continue to work under the assumption that what needs to be studied or copied can only come from the legal systems of the former colonial powers or other western systems. Unfortunately, the practice of the South African Constitutional Court may seem to perpetuate this myth. ²⁵ There might, however, be practical challenges such as knowledge of and availability of material on other African courts and the legal system within which they operate. These challenges are now being addressed.

As a result of the rapid advances in information and communication technology in the last two decades, not only judgments, but also an extraordinary amount of constitutional material from different jurisdictions, are now available. For example, access to some of the latest and most important decisions of African national constitutional courts and regional courts is merely a mouse click away. ²⁶ The benefits of this will be completely lost if African legal scholars and judges are too xenophilic, unbending and stuck in the past to see the benefits of learning from what is happening elsewhere on the continent. ²⁷ Moreover, as noted earlier, the progressive nature of the 1996 South African constitution and high quality of the judgments delivered by its Constitutional Court, which in certain areas of the law (such as socio-economic rights) has laid down principles that are copied the world over, suggests that we do not need to continue to look out of the continent for and copy western constitutional models. We can only become aware of these developments if there is a dedicated course on African legal systems. However, there are also several practical imperatives for the introduction of such a course.

Practical African realities

A number of practical imperatives compel a rethinking and refocusing of African legal education in general and comparative law in particular in order to rid it of its present western bias in focus, orientation and content, and the misconceived notion that African legal developments are an irrelevance that deserves nothing but passing mention. A new kind of comparative law programme that reflects and responds to Africa’s peculiar challenges and its practical needs and realities is needed. In this regard, four important points need to be noted.

The first is the practical reality resulting from the similarity of the experiences that African countries have gone through from colonialism and its aftermath to the challenges of dealing with ethnic, cultural and religious diversity, which means that they can learn from each other’s experiences. This does not mean that they should blindly copy from each other but that they can learn invaluable lessons and draw inspiration from their dynamic and rich jurisprudence. Legal systems continue to innovate, experiment and adopt new solutions to the new problems that arise each day and from which others can learn. The socio-economic and political conditions as well as the general context in which African countries operate are so similar that a solution adopted to address certain legal problems in one African country is more likely to be successful in solving similar problems in another African country than solutions imported from abroad.

The second point has to do with the forces of globalisation which appear to have unleashed the prospects of ‘nothing short of a cultural bombardment on the developing countries by western modernity – capitalism, industrialism and the nation-state system’ (Doshi, 2003: 352), or, in the words of Menski (2006: 37), a ‘remodelled version of earlier colonial domination, now in the garb of attractive trade deals and development programmes’. He goes further to point out that ‘much of the current debate on globalisation seems still inspired by the theme of “civilising mission,” now in the name of universalism and human rights’ (Menski, 2006: 11). Nevertheless, the optimistic theme of his book is that globalisation is much more than a single phenomenon and is not actually moving the world in the direction of uniformity. This is certainly an argument made more in hope and expectation than as a reflection of practical reality. ²⁸ For, as he correctly adds, ‘if globalisation means increasing hybridisation in locality-coloured and culture-specific forms worldwide, rather than uniformising homogenisation, lawyers need to be better equipped to understand the manifold pluralities within and between legal systems as complex entities with ragged boundaries’ (Markesinis and Fedtke, 2009: 25). The only way that African and other non-western legal cultures can cope with the spreading wings of globalisation is not to resist it but rather to assert themselves from within it. This will require the active participation of a new generation of African scholars imbued with knowledge of legal developments in Africa and ready to take on and influence global legal developments. Although this is a process which requires an overall overhaul of the Euro- and American-centric approach to comparative law, a better understanding and acceptance of diversity and recognition of the potential role of African law in general can only start when African scholars as well as its legislatures and judges take the lead. All or most of the arguments that can be made in favour of studying western legal systems to enable students to gain at an early stage of their legal education an awareness that problems can be solved by different answers and also that a global legal perspective in today’s global village is necessary, can be made with even more force for studying other African legal systems. It is ultimately a question of adapting to a new and fast-changing world – a world in which, unlike in the past, African law and African legal principles must be taken into account in shaping the future direction of global legal developments.

Finally, the multiplication of legal sources through the processes of Africanisation and internationalisation of national law must logically be reflected in legal scholarship. Comparative law in most African countries, with perhaps the exception of South Africa, is still being taught from western textbooks. Refocusing the comparative law course with an emphasis on African legal studies would certainly encourage more research and publications on African law. In this way, academics could actively promote the use of foreign law from other African jurisdictions. However, the success of this will depend on how the restructuring of the law programme is approached and the scope it allows for the study of African law. This raises a vital question that we will now turn to.