UNIVERSITY OF NAIROBI
LEGAL RESEARCH AND WRITING ASSIGNMENT
GROUP 9
NAME
Toroitich Kipkenei Eliezer
Hassan Kennedy
Ezra Prince Situma
Cindy Wangechi
Omondi Loreen Achieng
Otedo Tajianah Alice
Njau David Kihu
Sherlynight Natalia
Githui Alloisio Kimondo
Mbugua Owen Gichuki
Pauline Mughewa Kyalo
REGISTRATION NUMBER
GPR3/4306/2024
GPR3/4334/2024
GPR3/4270/2024
GPR3/3922/2024
GPR3/4331/2024
GPR3/3859/2024
GPR3/4291/2024
GPR3/4316/2024
GPR3/4278/2024
GPR3/3824/2024
GPR3/2466/2024
INTRODUCTION
Thesis
Despite the early conceptualisation of African legal systems on a traditional/customary basis, the
African legal system has evolved and adapted to address contemporary issues more effectively.
That said, it is of vital essence to analyse the evolution of legal systems in Africa in order to predict
the future of law in Africa.
The Evolution of African Legal Systems
Introduction
There is a significant distinction between the legal systems and methods in place in Africa during
the pre-colonial period, the colonial era, and the present day. These distinctions are manifested in
the structures of governance, the units or arms of government in place, and the roles of institutions.
These distinctions demonstrate how far African legal systems have come and their potential to
develop and advance by leaps and bounds.
Pre-Colonial Era
Before the colonization of Africa by European powers, African legal systems were based on the
culture and customs of specific ethnic groups. Despite the diversity, some similarities existed in
the governance systems. These systems included either centralized or decentralized governance. 1
In centralized systems, there was one ruler, commonly a monarch,2 as seen in the communities of
the Baganda in Uganda and the Mandinka in present-day West Africa. Decentralized systems, on
the other hand, involved councils of elders with no single leader3. There was minimal
differentiation of institutions. The concept of separation of powers was not in effect, and
governance was integrated, with leaders or councils performing legislative, executive, and judicial
functions.4 Additionally, African traditional religion was highly intertwined with governance, with
leaders or councils performing religious rituals and customs.5
Colonial Era
During the colonial period, African legal systems were significantly altered by European powers
through three main methods: direct rule, indirect rule, and assimilation.6
1. Direct Rule: Implemented in areas without a centralized governance system.
2. Indirect Rule: Applied in regions with established centralized governance.
Eghosa O Ekhator, "Pre-colonial Legal System in Africa: An Assessment of Indigenous Laws of Benin Kingdom
Before 1897," Umewaen: Journal of Benin and Edo Studies, 2020.
2
Ibid.
3
Ibid.
4
Ibid.
5
Ibid.
6
Richard Roberts, "Law, Crime, and Punishment in Colonial Africa," The Oxford Handbook of Modern African
History, Oxford Academic, 2013.
1
3. Assimilation: Involved integrating Africans into the colonizer's systems.
During this period, the concepts and principles of separation of powers were introduced. 7
Government functions were divided into legislative (to make laws), executive (to implement laws
and policies), and judicial (to resolve disputes). However, these branches were controlled by
European powers, with Africans having little or no influence over their operations.
Post-Colonial Era
This period was marked by the gaining of independence by African countries. Post-colonial
governments adopted governance systems similar to their colonizers, leading to the establishment
of independent governments under full African control. Many countries enshrined democratic
principles such as the rule of law, human rights, separation of powers, and constitutionalism.8
The constitutions of many African countries recognized the applicability of other laws in local
realities, such as tort law and contracts, but also allowed for the application of customary laws and
African religious laws. Independent governments were structured into distinct legislative,
executive, and judicial institutions. The significant difference in post-colonial times was that these
governments were, or ought to have been, under full African control and free from colonial
influence.
Evolution of African Legal Systems
The evolution of African legal systems from an ethnic outlook to one reflecting the modern state9
is evident. In pre-colonial times, governance was combined into a single entity performing all
functions. This lack of checks and balances could result in an unchecked government. The concept
of separation of powers has since evolved to ensure governments perform their duties with
accountability.
Present-day African states have largely harmonized and integrated their legal systems, fostering
economic and juridical development. This integration is manifested by regional blocks such as the
African Union (AU)10, which fosters unity and cooperation among African states, especially in
legal systems. Other measures include the African Charter on Human and People's Rights of 1981,
established to promote the observance of human rights in Africa11. Judicial and human rights
institutions such as the African Court of Justice and Human Rights12 and the East African Court
of Justice13 have helped harmonize African legal systems across different regions.
Abdulkareem Azeez, "Introducing the Teaching of African Legal Jurisprudence in the 21st Century: The KIU
Approach," Kampala International University, 2020.
8
Ibid.
9
Montevideo Convention on the Rights and Duties of States 1933.
10
Sirte Declaration of 1999.
11
African Charter on Human and People's Rights of 1981.
12
Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on
Human and Peoples' Right.
13
Article 9 of Treaty for the Establishment of the East African Community.
7
Impact on Development and Conflict Resolution
The evolution of African laws has tailored legal systems to address emerging trends and issues.
Consistency of African Laws with the African Charter on Human and People's Rights has helped
correct gender imbalances and ethnic disparities, fostering development in all spheres of life. The
integration of African legal systems has provided a recognized framework for resolving conflicts,
mitigating disputes among different African states, and promoting peaceful resolution of disputes.
For instance, The African Union in tandem with Economic Community of West African States
(ECOWAS) played a significant role in restoring order in Mali by facilitating negotiations between
the Mali government and the rebels. This led to the signing of the Algiers Peace Agreement in
2015 which ended the Mali Crisis.14
However, there are certain limitations that make the initial thesis rebuttable:
CHALLENGES FACED BY CURRENT AFRICAN LEGAL SYSTEMS AND
OPPORTUNITIES ARISING FROM A NEED TO ADDRESS THESE CHALLENGES
African legal systems, like other legal systems in the world, face a variety of challenges, including
access to justice, judicial independence, and the ethical implications of technology. However, these
challenges also present opportunities for necessary reforms.
Challenges Facing African Legal Systems
1.Access to Justice
Many African nations face significant barriers to the provision of justice, including high costs,
complex legal procedures, and limited legal literacy among the citizens. For instance, in Nigeria,
legal services are often inaccessible to the average citizen due to high costs and low legal literacy
levels.
Corruption within judicial systems, such as bribery and favouritism, undermines public trust. In
Kenya, reports of judicial corruption persist despite reforms, discouraging citizens from seeking
justice.
2.Judicial Independence and Governance
Political interference in judicial processes remains a critical issue. For example, in some countries,
the judiciary's independence is compromised by executive influence, leading to delays and biased
rulings.
Military coups in regions like the Sahel region within the Sahara Desert have further weakened
civilian judicial systems, replacing them with military-led governance structures that erode the rule
of law.
3.Infrastructure Gaps
14
A Handbook on Mali's 2012-2013 Crisis
While technology offers transformative potential in the legal space, inadequate digital
infrastructure in rural and marginalized areas limits its effectiveness. For instance, in Tanzania and
the Democratic Republic of Congo, poor internet connectivity and low digital literacy hinder the
adoption of digital legal tools like virtual courtrooms. The lack of investment in modernizing legal
systems promotes inefficiencies, with many courts still relying on outdated processes and manual
record-keeping.
4.Ethical Criticisms in regard to Technology
The integration of AI and other technologies raises ethical concerns, such as algorithmic bias and
data privacy. For example, AI tools trained on biased historical data could promote inequalities.
Opportunities for Legal Innovation and Reform
1.Leveraging Technology for Access to Justice
AI-powered tools like virtual legal assistants and chatbots are bridging gaps in access to justice by
providing low-cost legal guidance in local languages. For example, Nigeria’s Case Radar offers
legal assistance to underserved populations, empowering them to understand their rights and
navigate legal processes.
Mobile courts and online case management systems in countries like Kenya have reduced delays
and increased transparency, particularly in rural areas.
2.Digital Transformation
Blockchain technology offers secure and transparent solutions for managing legal records, such as
property deeds and contracts. This innovation can streamline processes, reduce fraud, and enhance
trust in legal systems. Online dispute resolution platforms are emerging as tools to simulate
courtroom environments and resolve conflicts efficiently, reducing reliance on traditional
litigation.
3.Judicial Reforms
African nations are increasingly focusing on judicial reforms to enhance transparency and
efficiency. For instance, Kenya has implemented notable reforms to promote judicial
independence and accountability, although challenges are still present.
Training programs for legal professionals on emerging technologies, are fostering a culture of
adaptability and innovation within the judiciary.
4 Regional and International Collaboration
Frameworks like the African Union’s Malabo Convention on data protection and the AU’s Digital
Transformation Strategy provide a foundation for harmonizing legal and technological reforms
across the continent.
Partnerships with international organizations and civil society groups are helping to address
systemic issues, such as corruption and resource gaps, while promoting inclusive legal systems.
In conclusion, by leveraging technology, fostering regional collaboration, and addressing systemic
issues like corruption, African nations can modernize their legal systems to be more inclusive,
efficient, and equitable.
CONCLUSION
Law in Africa has made impactful changes that have led to its growth and evolution. In the case
that the development of law in Africa maintains a similar trajectory, while addressing the
challenges in its way, the future of law in Africa is very promising.
Bibliography
1. African Union’s Malabo Convention on data protection.
2. African Union Digital Transformation Strategy.
3. The Rule of Law in Africa: A Reappraisal.
4. African Union High-Level Panel on Emerging Technologies (APET).
5. African Charter on Human and People's Rights of 1981.
6. Sirte Declaration of 1999.
7. Montevideo Convention on the Rights and Duties of States 1933.
8. Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an
African Court on Human and Peoples' Right.
9. Treaty for the Establishment of the East African Community.
10. Eghosa O Ekhator, "Pre-colonial Legal System in Africa: An Assessment of Indigenous
Laws of Benin Kingdom Before 1897," Umewaen: Journal of Benin and Edo Studies, 2020.
11. Richard Roberts, "Law, Crime, and Punishment in Colonial Africa," The Oxford Handbook
of Modern African History, Oxford Academic, 2013.
12. Abdulkareem Azeez, "Introducing the Teaching of African Legal Jurisprudence in the 21st
Century: The KIU Approach," Kampala International University, 2020.
13. A Handbook on Mali's 2012-2013 Crisis