The Nature of African Customary Law

By T. Olawale Elias | Go to book overview

CHAPTER XII
THE CUSTOMARY JUDICIAL PROCESS

THERE are a few popular fallacies that must be disposed of here if a true picture of the customary judicial process is to emerge. As we have seen 1 some writers deny that African law is law and, therefore, that the traditional tribunals are courts; others, again, while they are inclined to grant the name of law to African law, insist that there is no conception in the latter analogous to the modern distinction made in English law between civil and criminal, although a group of these writers would admit a possible distinction between public and private law. We have already shown the thinness of either view 2 and would not have mentioned it again here but for its immediate relevance to the problem of methods of customary adjudication of disputes. For, the all too common assumption that African judicial process recognises only arbitration, but no judgment, may be traced to both these erroneous attitudes to African law.

When it is said that arbitration is the essence of the customary judicial process, it is not usually clear what meaning is to be attached to the word in the context of African law. Is it arbitration according to the English common law and the Arbitration Act, 1889, where parties to a dispute agree at the outset to be bound by the award of the chosen adjudicator(s)? Or, is it one of the many African customary modes of referring a dispute to the family head or an elder of the community for a compromise solution based upon subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point? A third sense, which is really a hotchpotch of these two, is that which has been developed by, for example, the Supreme Court of the Gold Coast and called 'arbitration according to native customary law'; the essence of this is the prior agreement of the parties to be bound by the award, followed by its publication -- both being elements of an English common law arbitration.

____________________
1
See Chs. III and IV.
2
See Ch. VII.

-212-

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