In most African countries customary law is the law that regulates the life of most people particularly in rural areas. For example, when it comes to matters on succession the law of Succession Act provides that the succession law that governs succession will be the one in the Act. But when someone dies the people follow customary law because succession is a personal matter, same for marriage.
A lot of people marry in church but still pay dowry, as a much as the church ceremony is sufficient to validate a marriage and again it is because marriage is a personal affair, this is because law reflects the values and the norms of a particular community.
The fact that customary law is able to survive hand in hand with the statute is indicative that the statute does not reflect the values and the norms of the people that is why they still go back to customary law.
Succession Act was intended to replace customary law but in practice customary law still reigns supreme and that is why customary law of succession still applies to Africans who die without having made a Will.
But when it comes to interpretation of customary law the Court of Appeal and the High court on a number of occasions ruled that the applicable law will be the customary law and that made the Act ineffective.
That is why even in the case of marriage the Africans still comply with the requirements of customary law because the statute does not reflect the norms and values of people.
In the area of torts, the local people would report the matter to a clan leader then the principles of customary law would be used. The cases that find their ways to courts are mainly traffic accidents because the police is involved and the amount of compensation is lower than the one the courts may award.
When it comes to land, which is unregistered, customary law applies and this also applies to the land under the RLA, when it comes to determining the issue of ownership. The question is whether we need the Land Disputes Tribunals Act, because the people who preside over these disputes are not trained and these tribunals are disbanded.
Customary law applies mainly to the poor and that is why many of African elite see these laws mainly as a liability and according to them these laws need to be transcended and replaced with statute law, they say that this law is a draw back to development. Thus the question is should we transcend it or incorporate into a statute and modernize it?
The argument has always been that customary law seeks reconciliation and when you go to court you make enemies and that is how we look at it in the African sense. Our legal system does not have structures that facilitate the development of customary law, the decisions of clans cannot be upheld by the courts because there is statutory provisions for that.
Customary law is not what used to happen long time ago but what people customarily do today - you do not need very old people to get that evidence of it. Because what was the custom 10 years ago or yesterday may not be the custom today, because custom always changes but law does not change, you do not need evidence to prove law, but you need evidence to prove a custom. The definition that was given to customary law by Western jurist is not the proper definition.
Note that, the imposed colonial laws generally in Africa – Roman Dutch law in South Africa, Civil law in French Africa and Common law in Common law Africa are considered to be part of the problems in African states. This is because customary laws have been utilized by the political elite in Africa to reinforce their position as the dominant ruling class.
Statute law has been imposed on the majority of the citizens of the new states. The content of most of the statute law is colonial law – imported and transplanted from the colonizing power and most of them have been irrelevant to what the people do and to the factors that determine their life style.
The elite in most African countries rely on the imposed law to reinforce their position in the society and they in most cases make a choice where necessary of relying either on the imposed law or customary law as it suits them.
Customary law is referred to by a number of names in literature - native law, sometimes as native laws and customs, native customary law, primitive law. Other times it is referred to as folk law, informal law in the sense it is not provided for under a statute and in most cases applied informally by informal tribunals. Other times as living law because it is the law that people apply on a day to day basis you do not wait for Parliament to pass, no – government law, peoples law, indigenous.
The question of nomenclature:
There is an ongoing debate among Africans on the conceptual question of nomenclature should we call it native, African indigenous or customary law. The most common name is the customary law – law based on the customs of the people but what you will call it is based on your own preference.
It is related to the family of laws composed of principles of moral philosophy and prescriptions of behavior recognized by the dominant groups within specific society. The dominant group would be the elders. In matrilineal society the elders are women and property passes from female relatives, that enables the female relatives to be dominant in that sort of structure.