Rwanda, since the genocide of 1994, has had immense difficulty in dealing with the past. It has pursued the model of prosecutions without being able to bring many of the alleged perpetrators before the courts. The article examines why this is so, as well as the political situation in Rwanda in the context of the country's human rights record, to determine whether sufficient weight is being given to truth, reconciliation, peace and stability. The proposed new gacaca community courts are examined to determine whether the stated government intention of using these structures to deal with genocide cases outweighs the potential problems they may cause. The article suggests that as so many years have elapsed since the genocide of 1994 that the authorities cannot, and should not, seek to prosecute all those accused of participating in the slaughter because attempting to prosecute all those in detention may cause more harm than good.

Twenty-four years ago Henry Morris and Jim Read, in Indirect Rule and the Search for Justice, provided a wealth of illuminating information about the history of the legal systems of the East African colonial states. But an even greater merit of their book than its detailed data is its coherence and depth of analysis. These result from their adherence to a constant reference point, the “search for justice”. This concept may still be useful in the study of law in Africa today.

When the State of Emergency was declared in 1952, most Africans in Kenya were living on the land in tribal reserves known as Native Land Units. Land rights within the Land Units were governed by native law and custom, though the demand for individual titles was strong, particularly in the Kikuyu Land Unit. However, administrators were divided about the desirability of hastening the demise of traditional institutions and concentrated their efforts on promoting agricultural development by taking measures against soil erosion and encouraging farmers to consolidate their holdings. It was only when large-scale compulsory land consolidation schemes were initiated in the mid-fifties among the Kikuyu that serious consideration was given to the nature of the title which the owner of a consolidated holding would acquire. Many people saw customary law as an obstacle to agricultural development (after all, the customary law relating to the allocation and inheritance of land was largely responsible for the considerable fragmentation of holdings that had occurred) and recommended that it be replaced by a system based on the registration of individual titles.

This article discusses the phenomenon of forced evictions in Africa and the implications for land rights and human development. It argues that the “public interest“ justification often proffered for forced evictions by African governments is a myth. The article proposes three alternative explanations for forced evictions: (a) antiquated and inappropriate planning laws of colonial origin; (b) corruption; and (c) failure of development and land reforms. The escalating urban and rural land crises in Africa, the article argues, violate human rights with grave implications for human development and regional security. The article concludes by proposing a new policy direction based on participatory and more inclusive principles.

The phenomenon of ethnicity is being declared by many to be the cause of all the problems of Africa, especially those of violent conflict. Some salient examples are Rwanda, Burundi and Kenya. While in many cases ethnicity and ethnic-based antagonisms have indeed been a factor in conflicts and have often been suppressed within the structures of the post-colonial states (with their seemingly sacrosanct boundaries), the political relevance of the phenomenon has varied widely. In the political system and the laws of an African country, however, ethnicity seldom received official recognition.

The article considers the impact of the public/private divide on the lives of African women. It discusses how the “protection” of the private from legal and other scrutiny helps to conceal the burden of caring for family which is borne almost exclusively by women. Moreover, the devaluation and non-recognition of women's labour in “private” family enterprises is reinforced by the inequitable division and enjoyment of property, not least land. Indeed, often women's access to resources is, like their access to political fora, severely curtailed, thus calling into question the notion that women are full citizens. The paper calls for a transformation of gender relations on the continent. It argues that there needs to be a reconceptualization of African citizenship to embrace women's experiences and that this can only be done by addressing the socio-structural inequalities which hamper women's participation in society.

This essay is an attempt to explain the persistence of high bridewealth in Lesotho. I argue that the structural conditions of its persistence have changed over time and I develop a macro-economic perspective in which to apprehend its contemporary significance. This approach exposes the weakness of the anthropologist's traditional paradigm of discovering functional consistencies between variables of kinship structure within a relatively homogeneous “society”. For an understanding of social systems on the rural periphery of southern Africa critically depends on assumptions about the way in which these are articulated with the larger political and economic system of the region as a whole. From a methodological point of view the essay may be seen as an attempt to work out systematically the implications of a view that Isaac Schapera has argued in essence throughout his professional life: that piece-meal ethnography can only make sense within its full political, economic and social context.

There is a general perception that home jurisdictions in vulnerable areas are powerless when it comes to the control of multinational corporations. While this assertion is largely correct, this article argues that there cannot be effective control of multinational corporations (“MNCs”) at international, regional or private level without the corresponding development of an effective minimum institutional framework at the domestic level. This article examines the Nigerian legal framework for the regulation of MNCs with a view to underlining the weaknesses in the domestic forum, and also examines the prospects for enhancing the capacity of a domestic framework for the effective control of MNCs. The article argues that, while corporate social responsibility practice by MNCs is becoming well entrenched, this development cannot replace the need for effective host state regulation. The article focuses on company law and human rights law and suggests viable possibilities within the local context that may enhance the control of MNCs.

In paying tribute to the pioneering work of Isaac Schapera on Tswana law we return to one of his earliest and possibly least quoted studies, “Premarital Pregnancy and Native Opinion: A Note on Social Change-”, and explore the recent transformations which have characterised the perception and management of extra-marital sexuality among the Kgatla. We shall suggest that these transformations are the product of a wider process: namely, the spread of monogamy within a society organised in terms of the assumption of polygyny. In doing so we shall seek to demonstrate that the analysis of one substantive problem in the field of legal anthropology may illuminate a number of fundamental social principles.

Many areas in Africa facing land shortage and competition witness increasingly restricted and insecure access to land for the poor majority. Mounting evidence of reduced tenure security shows that customary systems are often unable to evolve equitably. In contrast with this crisis in customary land administration, current international land policy is witnessing renewed interest in customary tenure systems. Ghana's current land policy resonates with this international trend. This article focuses on peri-urban Kumasi, Ghana, to acquire an insight into struggles and negotiations over customary land tenure in a rapidly urbanizing area. It then tries to explain why policymakers, in Ghana and in general, do not yet seem to have reflected the crisis in customary land management in their policies. The article concludes with some recommendations as to how policymakers could respond.

Nigeria's Land Use Act, promulgated in 1978, is perhaps the most controversial legislation in the country. The Act, originally promulgated as a decree and annexed to the country's constitution, was ostensibly made to nationalize landholding in the country. However, the peculiar impact of the Act on the inhabitants of the Niger Delta region that hosts upstream activities of the oil industry has led to assertions that the Act was made specifically to deprive those inhabitants of the right to participate actively in the oil industry. This article examines the impact of the Act on the right of inhabitants to access justice. It argues that the Act obstructs their rights to environmental justice and is a fundamental cause of the violent conflicts that pervade the region.

There has been a significant rise in litigation between oil companies and those affected by oil operations in Nigerian courts. In the period 1981–86, 24 compensation claims against Shell went to court in Nigeria. In early 1998, Shell was reportedly involved in over 500 pending court cases in Nigeria, out of which 70 per cent, or roughly 350 cases, dealt with oil spills, the other 30 per cent, or 150 cases, dealt mostly with other types of damage from oil operations, contracts, employment and taxation. In the whole of the 1980s, Chevron reportedly had only up to c. 50 court cases in Nigeria. In early 1998, Chevron was involved in over 200 cases, of which 80–90 per cent, or roughly 160–180 cases, dealt with oil spills, other types of damage from oil operations or land acquisition for oil operations. This substantial increase cannot be solely ascribed to expanding oil operations. There are various indications that an increase in the quantity of oil-related litigation was accompanied by legal change. In the 1990s, a number of high profile cases have been won by the local people in the oil-producing areas, notably Shell v. Farah, in which c. 4.6 million Naira (c. US$210,000 according to the official exchange rate) was awarded as damages to the plaintiffs.

During the past 50 years, the study of African customary law has been enthusiastically pursued. The growing awareness of this subject has, at the same time, stimulated a critical awareness of the problem of its place in the legal system of an African state. With the attitudes of modern African nations, the place of customary law is necessarily an ambiguous one. Because the colonial governments' application of customary law and European law was determined, primarily, by the race of the litigants, this was frequently perceived as discriminatory and, hence, antithetical to the views of African nationalism. On the other hand, it is true that customary law, the law of the African people, reflects the traditional African culture, whereas the imported systems of Western European law reflect European values and attitudes. At an even more fundamental level, customary law is regarded as representing the old social order. As such, it is often perceived to be in opposition to the new social order represented by the European legal systems. The latter are usually more in keeping with the demands of modern society, particularly in the public and commercial sphere, whereas customary law is suited, rather, to the simple, face-to-face societies of the eighteenth and nineteenth centuries.

Benjamin Disraeli took a calculated “leap in the dark” in 1867, when he extended the right to vote to almost all British men. With hindsight, his leap can be seen to have been a necessary (but not sufficient) means of defusing discontent and promoting democratization. Ethiopia seems poised for an even bigger constitutional leap into a murkier realm, into an ethnicized attempt at democratization. To gain acceptance, a new constitution like Ethiopia's must seem to be all things to all people and, in Ethiopia and elsewhere, the end of the Cold War has seen an explosion of ethnic nationalisms similar to the one occurring in Europe late in the 19th century. Without benefit of hindsight one can only make informed guesses about the effects of a new Ethiopian “constitutionalism” on events which are largely beyond the drafters’ control. I will argue that there are grounds for a guarded optimism over Ethiopia's leap.

This article is a survey of the process whereby codes of criminal law and procedure, having their origin in English law, were introduced into the British colonies and protectorates lying between the Sahara and the Zambesi. Such a survey, covering so large an area and period of time, must needs here be brief, but certain salient points emerge clearly from it. A codified body of criminal law and procedure, replacing the English common law and statutes of general application (as modified piecemeal by local Ordinances), had a great appeal to administrators, government law officers, judges and magistrates, and, whatever their differing views as to the respective merits of codes on the Indian, or more purely English, model, they were virtually all agreed that the introduction of such codes was an essential measure of reform. This is hardly surprising in view of the difficulties experienced by judicial officers, of whom the majority were the lay magistrates of the administrative service, in applying the uncodified English law without an adequate supply of text-books or English law reports.

The entry into force of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 2003 on 25 November, 2005, marked the culmination of years of lobbying for a document which would promote and protect the human rights of the continent's women by African women's rights advocates. This commentary provides a brief historical overview of the process leading up to the adoption of the Protocol by the African Union in Maputo in July 2003 before moving on to consider its substantive provisions.

What I should like to do today is to examine the evolution of customary law in English-speaking Africa over the last three decades. I have chosen my starting date of 1950 with a clear intention in view; because the developments that we observe currently taking place often find their origins in the colonial period. They do this in two ways. First, the laws which the African countries inherited at independence had been crucially shaped by the colonial experience; and secondly, some of the projects of law reform which have either taken place or are now under discussion trace back to initiatives and discussions which occurred during the latter part of colonial rule. There is a further factor: quite apart from conscious efforts to analyse and change the laws, the laws themselves, of whatever kind, have been exposed to the forces of economic, political and social change, which are continually working away below the surface, sapping the foundations of the existing legal systems.

My own qualifications for this task I do not feel that I should dwell on. However, it is worth remarking, as symptomatic of the profound upheavals which have occurred within the period, that I was appointed to the first post in Britain of lecturer in African law in 1948. This was the period of the immediate post-war reconstruction of the British colonial empire in Africa. Things were not the same as they had been up to the Allied victory in 1945.

In 1967 the Malawi Parliament passed a set of statutes which were intended to provide a new legal framework for rural agrarian change. The President, Dr. Banda, emphasised during the proceedings that existing customs for holding and tilling land were outdated, wasteful and totally unsuitable for the development of a country with agriculture as the basis of the economy. He suggested that the main problem was the absence of individual titles:

“No one is responsible & for the uneconomic and wasted use of land because no one holds land as an individual. Land is held in common & and everybody's baby is nobody's baby at all.”

He argued that the existing laws and customs discouraged individuals and institutions from providing loans for the development of land. New laws were therefore required to ameliorate the situation:

These remarks were not completely novel; they echoed and repeated recommendations in the reports of the East Africa Royal Commission, 1953–55, and the Conference on African Land Tenure in East and Central Africa held in Arusha, Tanzania, in 1956. The defects of customary land tenure pertaining to shifting cultivation and the preponderance of group control over land holding and use which the Malawi President particularized were not the only justifications for reform. The reports suggested that tenure reforms were necessary where population explosion and shortage of land contributed to the uncontrolled emergence of land dealings; where unfixed and uncertain customary land boundaries contributed to excessive land litigation; and where succession rules led to excessive fragmentation and sub-division of holdings.

A close relationship holds between the goals of development planning and the notions that planners have of what already exists. Hand in hand with certain goals go appropriate notions of the status quo. Aiming to “modernise” for the sake of increased productivity, conservation of natural resources, and a fairer distribution of wealth, planners presuppose the existence of the “traditional” as the negative condition that has to be changed. It might be thought that an understanding of the status quo or the traditional condition comes first, before the choice of goals. But that is not always so. Information is often fundamentally incomplete or ignored when decisions about policy have to be made by planners. Hence they rely on their goals to guide their thinking about what already exists. In such circumstances, modernising planners reinvent the traditional as a negative stereotype; they derive it from their goals, rather than the other way round. The difficulty is, however, that their plans, when implemented, encounter the cultural realities of the continuing social arrangements. Unintended consequences result, or worse still, radically unacceptable ones. The overall pattern is familiar in nationally planned development: the reform designed by planners at the centre gets subverted by people at the periphery, and a gross disjunction arises between the policy as it is officially formulated and the policy as it can effectively be applied.