(because it is the Reception that classifies African Customary law and sets the test of repugnancy)
The most common feature of the general legal systems of Common law Africa is that it is largely based on the English legal system.
This can be explained by the fact of the respective country’s legal history and in light of the political history of those countries to understand why these legal systems are based mainly on English law.
There are 3 main phases of periods in the legal history of Tropical Africa:
1) The pre-colonial period;
2) Colonial period;
3) Post colonial or independent period.
With regard to Pre – colonial period, before the arrival the Europeans indigenous legal institutions were the law.
These institutions were for the most part customary in origin and type. There was also to be found a certain amount of legislated law, particularly in the centralized Monarchies (Kingdoms in Uganda, South Africa – the Zulu, Central Africa – where law was handed down by the rulers and also in the Islamic areas, particularly in West Africa)
Indigenous customary laws were not uniform, there were points of similarity, which transected ethnic groupings, but there were also enormous in structure of the laws and contents.
These variations were brought about by different stages of economic and political development, different social and kinship systems or different religious believes and different cultural practices of the society.
One basic characteristic, which was common among the communities, was that the laws were largely unwritten. This had important implications on the way the new rulers were to handle the preexisting laws in their colonies. They were mainly subordinated to English and Islamic laws.
The hesitating recognition given to customary law and the tendency to separate its administration from that of imported law were mainly due to the unwritten character of customary laws. During much of the colonial period African customary laws were administered by the Native Courts, which were regarded as part of the Provincial administration thus they were not seen as the part of the country’s legal system.
Regarding the colonial period each new power introduced its own legal system or a variant of it as the fundamental or general law of the colony. This clearly meant that of English law was the fundamental law then customary law was reduced to subordinate law.
The second thing that occurred during this period is that the colonial power permitted and regulated continuance of African law and African judicial institutions, except where they said that law and institutions run counter to the demands of colonial administration or where they were thought to be repugnant to the civilized ideas of justice and humanity.
This general approach was also the approach adopted by the British colonial government in Kenya.
The British in seeking to develop a legal system in Kenya faced the basic problem of developing a legal system that would embrace the whole country. This was compounded by a number of factors:
Factors that affected the development of unified legal system in Kenya:
1) The presence of difference races in Kenya and the existence of conflicting ideas amongst them regarding the laws that should apply
The presence of difference races in Kenya and the existence of conflicting ideas amongst them of what ought to constitute the legal system of the country. The Muslim population at the cost wanted their own legal system preserved, while the in-coming British settlers were insistent on being entitled as of right to the English legal system. The Africans had not say and the Muslims had a say because of the arrangement of sale of coastal strip of Zanzibar. There were also Hindus another Asians.
2) There also existed conflicting policies:
The colonial policy at the time was to introduce a legal system of justice that would have a civilizing inference, the thought was that the local population was not civilized. However, there were short of staff, there were not enough European officers on the ground and for that reason the colonial government was forced to maintain and preserve traditional institutions. That is why it was not possible for them to destroy the existing traditional system of justice and that is how we ended up having dual legal system.