Francophone African constitutions generally make provision for fundamental rights. In criminal proceedings, the principle nulla poena sine lege is expressly incorporated in some, but not all, the constitutions. All the constitutions legislate against arbitrary arrest and detention; some legislate against brutality and torture. But these rights are subject to numerous exceptions and limitations.

African countries generally distinguish between constitutional provisions and ordinary laws; the former are supreme, and may only be amended by special procedures. Constitutionality of legislation is generally judged in the francophone states by the Supreme Court or a special tribunal (this procedure differs from that in the parent French and Belgian constitutions). Within each Supreme Court there are normally several chambers or divisions: judicial review of the constitutionality of legislation is generally the business of a constitutional chamber of the Supreme Court. There is often a political element in the nomination of the persons to serve on such a special constitutional court.

Many books and learned articles have been written on African Law within the last two or three decades. Almost every one of them has attempted a definition of law, custom and customary law, as a basis for its particular object. Among these definitions is Elias's adaptation of Goodhart's definition of law; this definition appeals to us as it serves many purposes. That adaptive definition is: “ ‘The law of a given community is the body of rules which are recognised as obligatory…’ This recognition must be in accordance with the principles of their social imperative, because operating in every community is a dynamic of social conduct, an accepted norm of behaviour which the vast majority of its members regard as absolutely necessary for the common weal. This determinant of the ethos of the community is its social imperative.” We would not of course include within the concept of law forms of social conduct which are concerned with the less important aspects of social life, which though well-established, yet pertain only to the sphere of social formalities and when violated, merely excite the displeasure or contempt of society; we are concerned with those norms the violation of which calls for the employment of “sanctions directly affecting the liberty, property, or status of the offender (such as imprisonment, fines or loss of civil rights)”. But we would include also those “concerned with serious business of society, the work that must be accomplished in order to secure and guarantee satisfactory conditions for collective life,” which Edgar Bodenheimer classifies as “customary law”.

Although the broader purpose of this paper is to review some of the major aspects of current penal policy in Africa, I wish to emphasize the desirability of seeking new approaches to the perennial problem of how to deal with deviants generally, and criminal offenders in particular. The main thrust of penal policy in Africa today—and, indeed, in the world generally—ought, in my view, to be directed toward developing what I will call “alternatives to imprisonment”. I use “imprisonment” here as a short-hand expression to denote the entire process of criminal justice as it works in most countries, in the majority of cases, i.e., from an arrest to a court sentence to prison. Thus I am putting the question: towards what kind of penal system, in its widest sense, ought we to be working? I will suggest that the answer is: towards new and alternative means of dealing with deviance, i.e., any method of treating a person who engages in deviant behaviour other than by sending him through the complete criminal process into prison. Thus this paper will range over a wide area, including the kinds of deviant behaviour to be dealt with, the nature of the process by which the deviant is dealt with and the nature of the sanctions available to deal with deviancy.

The rights of the individual in the society have been conceived as natural rights—which in the modern state have no more than a moral force. In the context of a modern state which asserts absolute powers within its borders, it appears idle to suggest as in the traditional natural law theories that there is anything like a law of nature existing independently of and overriding positive law.

The change taking place in the social structure of the developing countries reflects itself quite obviously in their laws. The legal profession is no exception to this process of change. Uganda had its first African advocate entered on the Roll of Advocates in 1953, and by the time of independence in October, 1962, there were 16 African lawyers out of a total of 170 lawyers. Today there are 96 African lawyers out of a total of approximately 250 in the profession. Although the private bar is still mainly dominated by the Asian lawyers, this situation will drastically change in the next few years. Many Asian lawyers who are non-citizens are leaving the country. Others who are citizens are also planning to leave so as to find a more secure future for their families. Finally very few Asian lawyers are coming into the profession.