Conflicts of law
The courts are very often called upon to choose which law to apply and since customary law operates alongside other laws there are many occasions when conflict of law applies. Conflict of laws is generated because of the status of customary law vis-a-vis other laws: Which one is to be applied?
Conflict of laws deals with the way judges attempt to resolve dispute when faced with a situation where they have to decide on the what laws to apply. In other words, when faced with a conflict of laws, the courts have to make a choice of which laws to apply.
The internal conflict of laws in Kenya arise from our colonial heritage. Our legal system is plural in nature, in the sense that various distinct bodies of law apply. And very often they apply concurrently. And when they apply concurrently the parties themselves and the courts have to decided which laws to apply.
There are different levels of conflict. There could be conflicts between the statute themselves, i.e. one statute conflicting with another, and especially between general statutes and specific statutes. Where such conflicts arise, the latest in time criteria is used.
It may also arise between African customary law and English common law, particularly where certain matters are not covered by statutes.
There may also be a conflict between different African customary laws.
When does customary law apply? Section 3 of the Judicature Act is the law governing conflict of law and choice of laws in Kenya. But the provision is vague when it comes to guiding.
Section 3(1) lists the laws in the order of superiority:
- Common law and equity
Section 3(2): customary law shall guide the court so long as it is not inconsistent with the written law or repugnant to justice and morality.
It is not clear what “guided” means. No court decisions seems to have defined “guided”.
It is also not clear if customary law should be applied in all cases where one or two of the parties are subject to it.
It is also not clear if he courts should consider and bear in bear in mind African customary law when choosing which law to apply to a particular dispute.
Factors which would determine the choice of law:
1. Ethnic origin.
The basic principle is that African customary law is the basic law of Africans. This was particularly so during colonialism, when African customary law applied to people of African origin only. The definition of Africans during colonialism excluded Ethiopians, Somalis, Comorians, Malagasies who are Baluchis (at the cost). In 1956 this definition was changed, and the modern definition is General Interpretation and General Provisions Act which provides that African does not include any person who on his own motion proves that he is partly of non-African descent and that he is not living among members of any African tribe or community in accordance with the community’s mode of life.
Many rules of African customary law developed from religious customs and beliefs. This would mean that a person who practices African religion would be subject to African customary law. With respect to Christianity, conversion to Christianity during colonialism was often taken to mean a change in the family law system, especially in matters of marriage. See Cole v Cole. The fact that you are a Christian would be irrelevant.
With respect to Islam, Islam has mingled with the African customary law in some places in Kenya, particularly in the northeast province and at the coast. The African communities in these areas have not totally adopted Islam. They are subject to both Islamic law and their own customary laws. In these communities in resolving disputes of a personal nature the courts tend to apply Islamic law over African customary law. And has something to do with the fact that Islamic law is regarded as written law and therefore superior.
3. Choice of remedy
One can opt for either African customary law remedy or statutory law remedy where this is applicable or possible. For example, in case of defilement you can seek damages under African law or statutory punishment. In the case of Mwaura son Kamau of v Gatoto son of Mwangi (196), the father sought compensation in court under the Fatal Accidents Ordinance for damages over the death of his son. But he had already claimed in a local African court and was awarded compensation of 106 sheep and 10 lambs. The court ruled that the court case was incompetent because the plaintiff had already sought a remedy in the African court . See also Nyokabu v Public Trustee (1965) EA 530.
4. Limitation of actions
African customary law does not have limitation period. There is limitation in statutory law. We should note that the courts have generally discouraged customary law claims where time has elapsed mainly on repugnancy grounds. See the case of Chaemba v Khwatenge (1953) vol 1 of the Court of Review, page 3.
5. Nature of the claim, relationship or transaction
Where parties are Africans, that will be prima facie evidence that the claim etc is governed by African customary law, especially if the subject is not governed by statute. Where the parties are non-Africans there is a presumption that the same is subject to other laws, other than customary law. In most bilateral relations parties can only opt for one law. For example in the case of marriage parties can choose between customary law and statutes.