Customary law is usually defined as a body of customs and traditions which regulates various kinds of relationships between members in community.
At various times customary law was defined using different names, the term commonly used by legislation was native law and custom.
The person who has written most on customary law in Kenya is Eugene Cotran who feels that the term customary law is the most correct and appropriate. He feels that native or indigenous law has some connotations, which are objectionable to some people and thus we should stick to the term customary law and not native law and custom. This is because calling it indigenous law and custom will imply that there are customs that do not have the force of law.
Effa Okupa - a Nigerian, stationed in South Africa on the other hand prefers the term indigenous law because it is peculiar or indigenous to a particular community.
From studies in East Africa prior to Independence no attempt had been made in statutory law to define customary law and thus throughout colonialism the law just talked about the law and custom.
After Independence the law of Uganda tried to give a definition of customary law. Interpretation and general clauses Ordinance of Tanzania gives the following definition:
“Any rule or body of rules whereby rights and duties are acquired or imposed established by usage in any Tanganyika African community and accepted by such community in general as having the force of law”
The key word is usage. This means that the custom or usage must have been accepted to the extent that they have acquired the force of law they become firm rules that the members of community do adhere to.
Why do you think for example, the payment of dowry is the rule of law? Because of the element of acceptance by the community.
The key factors in determination whether the custom has acquired the force of law are usage and acceptance.
The Uganda Magistrates Act says:
“Customary civil law means the rules of conduct which govern legal relationships as established by custom and usage and not forming part of the common law nor formally enacted by Parliament.”
The Kenyan law does not formally define customary law, the closest to definition is found in the Magistrates Courts Act at section 2, which merely defines what a customary law claim under the Act means.
Compare Nigerian legislation in Customary Courts law 1963 with the Ugandan and Tanzanian:
“ Rule or body or customary rules regulating rights and imposing correlative duties ; or a customary rule or body of rules which obtain are fortified by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question.”
Again from this definition we note that customary law means rules established by usage and having the force of law and excludes social and moral customs.
A custom may be described as a continuing cause of conduct which by the acquiescence or expressed approval of the community observing it has come to be regarded as fixing a rule or a norm of conduct for the members of the community.
For a custom to have the force of law it must be accepted or approved in the community as a rule of conduct.
Custom is seen as that which prevails amongst a set of people as a result of their consensus of opinion. It is said to be the embodiment of those principles, which have commended themselves to the general conscience of the community as principles of truth, justice and public utility.
Some commentators have compared customs with the state law and said that law is what the state considers to be good and then enacts it as law, while customs is what is considered to be good for the community and it approves it and considers it as law.
Generally customs is associated with society while law is associated with the state but both of them are defined as what both society and state consider to be good and necessary for them. That is why customary law is called unofficial law because is not pronounced by the state, but by the community.
The state may impose the law but somehow the society may find a way of conducting business in ways different from what the law requires. For example, the law of succession prescribes particular rules but the people still operate under their customs. So the customary law and the state law appear to operate parallel to each other. Customary law is the consensus of the whole community while state law is what the state considers necessary and enacts, which the society may not find necessary and may decide not to comply with it. State law sometimes is not an expression of public opinion, while customary is the consensus of the opinion of the community. However, there are minority and weaker groups of people within certain communities upon whom even customary law is imposed, for example men are stronger in the community and thus they as elders can make law that suits then and may be disadvantageous to the female part of the community.
It has always been the argument that you cannot transplant law, that is why common law did not really take root in African Communities because law is reflective of values of people in respect with their norms and times and that is why we should find a way of incorporating customary law within our legal systems. We need to recognize these institutions in reality so that they exist side by side with the modern institutions instead of killing them.
Sometimes it reaches to the extent that the state is forced to change the law in
Both law and custom are the expression and realization of the measure of society’s insight and ability and also of the principles of right and justice. Law embodies these principles as they commend themselves to the organized community (state) in the exercise of its sovereign power, while custom embodies its principles as acknowledged and approved by the public opinion of the society, rather than by the power of the state .
When the state begins to evolve out of the society the law of the state is often modeled on the custom of the society.
Customs are usually divided into two:
1) Legal custom – binding rule of law, independent of any agreement between the parties. The authority of a legal custom is absolute and for that reason it possesses the full force of law, for example the custom preventing widow re-marriage. Are widows allowed to re – marry in the context of customary law?; If the rules are to the effect that a widow cannot remarry is absolute custom the widow knows that she could not remarry, but in some customs the refund of dowry occurs and this was designed to prevent remarriage.
2) Conventional custom – operates indirectly through the medium of agreements. Its authority being conditional and agreement by the parties. In England the term custom is used to refer to legal custom the one with the force of law, while conventional custom refers o usage.
Custom is seen as a source of law in a sense that customary law is generated by customs. The people in that community start by forming uniform practice and by virtue of uniformity it is referred to as custom then the practice gains the force of law by being stuck in the mind of people.
The common law is often seen as a child of custom. Traced to its medieval origin quite a lot of common law was custom. Judicial precedents and legislation evolved as new ways of creating new customs. Indeed customary law formed the basis for the emergence of common law system.
Remember the common law courts were enforcing the law that was common in particular area and the decisions of those were followed and created precedents.
The English legislature did not start as law making body. Its original role was that of an advisory body with some limited judicial functions. It is role was to declare law – to evaluate and say that this is the law much as what the courts do today, look at the facts and apply the law and declare the law. This is why the House of Lords is both the Parliament and a court of law. In those initial stages the legislative role of Parliament was negligible and later it took over the task of legislating law. Therefore the common law is the product of customary law.
Blackstone has described the common law as the common custom of the realm in the 16th century. In modern treatment custom has been subordinated to common law especially in England and various tests have been evolved to determine the acceptability of custom in the are of customary law as opposed to conventional custom.
One of the tests requires that for a custom to be accepted it must have existed from the time immemorial – it must have antiquity. In England it must go back as far as 1189 but we can’t use this age in determining the custom.
Customary law has extensive general application as the body of law in Kenya.
It is the law accustomed to which most people … their personal law matters such as marriages, custody of children, divorcee.
During colonial days the view was held that customary laws were special laws, regarded as special category of laws used in governing natives. For that reason customary law was considered unimportant or given inferior status.
Customary law was regarded as one applying to natives and was considered unimportant and was given inferior status compared to received English law. What was ignored and overlooked that this was a law that governed over time the personal every day relations of probably 100% of the local population. In modern Kenya it probably governs 60 – 70 % of the local population with respect to their personal every day relations.