There is generally a continuing bias, particularly in Western literature against anything related to Africa. African laws and African jurisprudence have always been dismissed as non – existent and the modern prescription for all aspects of African existence have tended towards derogation of anything African. There has been this tendency to move away from African Institutions and something that should be discouraged and this is not just limited to African Traditional medicine, but it also includes law. This has been due to the fact that African law had not been written although a lot of it has been reduced to writing in recent years but the bias remains.
As soon as the Europeans arrived in Africa Africans were declared to be unlettered, uncivilized and devoid of any proper legal and political structures. Remember the issue about the white man’s burden to come and civilize the people of Africa and give them a way of live and in their opinion Africa was waiting to subjugated and civilized. We are adopting this approach of examination of customary law in order to appreciate the current state of customary law.
…Indeed it is traced in ancient Greece and Rome. A number of leading Western Scholars like Hume and Emmanuel Kant held the view that Africans by virtue of their blackness were precluded from reason and civilization. Hume is recorded as stated that there is no civilized nation of any complexion other than white. These attitudes that influenced the West perception of African Customary law. Indeed literature refers to the inhabitants of African continent as Savages. Missionaries for example to a large extent are responsible for irrational information about customary law.
Western lawyers were late in coming to the study of African customary law with the approach that there was nothing legal for lawyers to study in Africa. They were more interested in imposing their legal system rather than studying the local system and integrating it into their system.
The restatement project started with the view to preparation to the integration of the customary law into the English system for the preparation of the dual legal system.
An author by the name Derrett indicates that the earliest scholars of comparative law were not at all interested in African law and did not recognize it as a legal system. Indeed a lot of the work done in African customary law in early 20the century was done not by legal scholars but by anthropologists. The negative assumptions of the African customary law relate also to the present to the effect that post – colonial Africans have really nothing of worth in terms of religious or cultural traditions to fall back on. We see ourselves more as Christians rather than African Traditionalists and there is not tradition that Africans can rely on as Africans. For that reason it has always been assumed that the only viable way of development was to modernize African and African in more or less along Western lines. We have to copy the paths that the West had followed. All views that traditional Africans having no proper laws and did not recognize African law as a popular system of laws.
Most Western legal scholars were grounded on the positivist legal philosophy, which views law as a command from a sovereign. Most AFRICAN Legal systems were not modeled on the principles of positivism and therefore in the eyes of positivists African legal systems were not proper legal systems. The early visitors to AFRICA found all sorts of legal systems in operation but they did not recognize them as such. It was not law to them because it was not a recognizable system to them it was a vast jungle of local laws which were not visible as laws or legal system.
The laws they found were oral and not dependent on documentation and the same relied on non- legal sources. To these Western Scholars these looked like cultural norms and ethical habits but not laws, because they were not written and documented they appeared to be cultural habits and norms and for Western scholars a law must be written and that us why Islamic law is regarded as superior to African customary law.
Because of these approaches AFRICANS are encouraged to copy Western or Muslim systems of law in order to develop in to civilized world.
Okupa argues that Africans had law before the advent of colonialism and justice ruled and that is why there was not anarchy. She quotes records of geographers and historians who visited Africa before the Europeans and who noted that African Kings were renown at the time for their sense of Justice.
She concludes that African communities had a way of formulating their own laws and setting out the basic legal principles to meet the communities needs.
Anthony Allott who has done extensive work on African customary law reckons that Western jurist came across African legal systems they found that they did not match Western laws and legal systems and concluded therefore that they were not laws and that the societies they found did not have recognized laws.
According to Moore no society is without law, every society has law and all significant social institutions also have a legal aspect, whether we are talking about marriage as an institution or others they all have legal aspects. Remember that when the Europeans had come to Africa they considered that dowry was primitive customs.
Alott concludes that the unwritten nature of African Customary law did not mean that there were no laws in Africa, he states that there were in fact well recognized principles and rules if law and even specialist in legal theory and procedure, he further states that African law was formal, for example, the law relating to marriage, transfer of property, disposal of estate. These were formal laws, clearly discernable laws. He concludes by saying that African customary law was by all means law.