It is entirely appropriate that this Special Volume, completing the thirtieth year of publication of the Journal of African Law, should acclaim the rich and many-sided contributions of the founding Editor of the Journal, Professor A. N. (Tony) Allott. His name has been inseparable from the study of African law throughout the existence of the Journal. The present writer was privileged to share in the excitement when the page proofs for the first issue arrived from Butterworths, the original publishers, in 1957. In the years that have followed the Journal has continued to offer its characteristically varied but always rewarding diet of articles, notes, case reports and reviews under a title which at first prompted sceptical reaction: “African law?” Could a field of true scholarship be given such a broad and essentially territorial designation? Should it not more aptly be titled the Journal of African Laws? Such carping comments are no longer heard. It is perhaps the greatest testimony to Tony Allott's achievement that, having started his academic career at a time when any notion of “African law”” was completely novel, he has by his creative industry and breadth of vision made a unique contribution not merely to the development of his subject but to its emergence and recognition as an important and distinctive field of legal scholarship.

In 1959 I had just completed my Diploma in International Law at Cambridge under the supervision of Eli Lauterpacht, who was assisting me in finding a post in the international law field. One day; he said that he had been approached by the School of Oriental and African Studies to find a Research Officer in “African Law”—would I be interested? I asked him what on earth “African Law” was. He wasn't sure, but suggested that I go and discuss things with a Dr. Allott at SOAS.

Tony Allott was full of enthusiasm about a new comprehensive research scheme, the Restatement of African Law Project (RALP), set up at SOAS with substantial financial assistance from the Nuffield Foundation. The object was to facilitate, undertake and assist in the recording of customary laws in Commonwealth African countries in a systematic legal fashion (the choice of the term “restatement” having been influenced by the restatements of American common law). Tony said that two Research Officers had just been appointed: W. C. (Bill) Ekow Daniels of Ghana would deal with West Africa; Bill McClain (an American) would deal with Central/Southern Africa and, if I took the job, East Africa would be assigned to me.

I told Tony that this sounded all very exciting, but I knew nothing about Africa or African law, let alone customary law. How could I begin to restate something of which I knew nothing? Tony was not deterred.

In 1961 Tony Allott, then a rather young elder statesman of African law, helped to foster my interest in that subject, and my subsequent work in Ethiopia. He and several other distinguished colleagues in London also encouraged other American initiatives to assist the development of legal education and research in Africa, efforts which began in 1962, burgeoned during the ensuing decade, and then withered rapidly.

The activities of the early 60s helped to generate an extraordinary number of different kinds of projects: the temporary placement of over 150 Americans in law teaching positions in African institutions; a large and wide variety of research and writing; the founding of law reporters, law journals and university institutes of African law, both within Africa and elsewhere; the flow of a substantial number of Africans to graduate legal studies in U.S. and U.K. universities; new kinds of interactions between African, British and American scholars. These activities also contributed to the emergence (notably in North America) of that amorphous, contentious field of scholarship which came to be called “law and development”, and, then, in the latter 70s, to acrimonious critiques and agonising reappraisals of much of all this effort.

Tony Allott participated in, or observed, much of this history, as anyone familiar with his career and bibliography will know. I hope that this brief account of some of these past activities may be of some interest to him, and to others interested in law and social change in Africa.

Si on accepte que la source de droit est le mode de formulation de l'abstraction que constitue le droit, la tentation est grande d'abord de l'ignorer totalement au seul bénéfice de son contenu; le droit lui-même (ou plutôt l'image qu'elle nous en donne). Qu'importe en effet la bouteille; ce qui compte c'est le vin. C'est pourquoi sans doute l'étude des sources du droit est relativement négligée par rapport á celle du droit. A supposer toutefois que l'attention du juriste soit retenue par la source, il est facilement enclin á ne la considérer que dans sa forme (est-elle d'ailleurs autre chose qu'une forme?) comme un objet détaché des éléments justificatifs de sa naissance et, parmi ceux-ci, de son auteur. Existeraient ainsi des coutumes, des lois, des décisions de jurisprudence ou des ouvrages de doctrine, objets matériels reflétant l'alchimie complexe du processus aboutissant au phenomene juridique. Certes la genése de ces objets obéit elle-même á des régies de droit permettant le plus souvent d'en assurer la validité dans un ordre juridiqué déterminé. Nous demeurons ainsi dans le domaine du droit et, frèquemment, l'investigation s'arrête la. L'univers qui sous-tend la source formelle est ignore. Dé meme sont négligés les acteurs de la lutte pour la maîtrise du paysage juridique: le peuple, le prince, le juge ou le savant. Ce sont précisément ces acteurs et ce paysage qui constituent l'essentiel de mon propos. Quant à son cadre géographique, il est forme de l'Afrique non-islamisée contemporaine d'une part, de la France medievale et moderne de l'autre.

It was in August 1980 that Professor Allott visited Southern Africa for the first time, and I am proud that it was the Institute to which I am attached which arranged the visit. In October 1981 we had the pleasure of welcoming Professor Allott to our region again. This time the happy occasion had been arranged by the University of Swaziland. All of us took an instant liking to Professor Allott. (As for our visitor, I got the distinct impression that he, too, enjoyed the encounter!) The way in which he was able to keep our discussions on track and lend perspective to them made a great impression. Hitherto, we had known him as a learned author on African law and the “internal conflict of laws”. “In the flesh”, he proved to be a man of the people and a teacher par excellence—concerned but never patronising, incisive in his criticisms but never disparaging. This impression is confirmed in his publication, The Limits of Law, which has become a source of constant reference in the Southern African region, and which inspired this essay.

For reasons Professor Allott will understand, my contribution to his Festschrift has taken the form of a cri de coeur from a troubled part of the world which, only too aware of the limits and the excesses of law, continues to put its faith in law as a social directive.

The Systematic study of African customary law and of the establishment of its role in the legal systems of African states was initiated, above all, by works of A. N. Allott. The scholar gives unflagging attention to the local legal schools which laid a serious basis for the present-day comparative study both of customary law and of national legal systems, for clarifying the possible ways of their development, and for a search for optimal legal forms which would take due account of the interests of small ethnic groups. The formation of national legal systems of African states has aroused a major interest in the customary law of ethnic groups. A. N. Allott correctly observed that it was necessary to pay heed, in particular, to the historical aspect of customary law.

The most vivid example of the high level of development of autochthonous legal institutions and of their study by local legal scholars is furnished by the legal school of the ethnolinguistic group known as Akan (the Gold Coast, later Ghana).

Present day Ghana in the pre-colonial period formed the states of the Akan peoples—Fanti and Ashanti—and of the inhabitants of the Birim-Volta river region—Akim and Akuapem. Screened by a tropical forest from the north and facing the Gulf of Guinea, the region remained isolated from external influences for many long epochs, creating specific systems of state law. The types and forms of their customary law mechanism characterize the level of development and specific features of appropriate societies.

In October 1974 I attended a court session in Sandema, capital of the Bulsa District in the Upper Region of Ghana.1 Before the Paramount Chief of the Bulsa, Mr. Azantinlow, had appeared two men from Kanjaga, another Bulsa village. One of them complained that some of his donkeys had gone astray and had been illegally appropriated by his neighbour. The latter denied these charges, stating that the donkeys in his compound were his own and not identical with the lost donkeys of the complainant.

The case had been brought previously before the chief of Kanjaga who had advised them to consult a diviner (baano), who by means of his divining practices should find out to whom the donkeys belonged. The diviner, consulted by the complainant's father, came to a conclusion in his favour, yet the defendant did not believe what the complainant told him about the outcome of the divining, but accused him of telling lies. In addition the defendant asked: “In our land (i.e. according to our customs), if you consult a diviner, don't you also offer sacrifices to a bogluk?”2 This the complainant's father apparently had failed to do.

The case was finally brought before the Paramount Chief in Sandema. He refused to judge the case, but referred it back to the elders of the village: they should “talk the case” (biisi bììka) before it was brought to the Chief again, if necessary.

On 1976, Ghana celebrated the centenary of the establishment of its Supreme Court. But this was more than a centenary of a supreme court. It was in fact the celebration of a hundred years of a national legal system. During the past century, Ghana has operated a pluralistic legal system encompassing English and other Western juristic ideas and procedures on the one hand, and Ghana's own indigenous laws on the other. The burden of this paper is to undertake an appraisal of the efficacy of this legal heritage and to consider the challenge which this legacy poses. The emphasis is not so much on the historical or analytical description of the nation's legal heritage as on a functional review of the totality of Ghana's legal experience in the light of the prevailing social and economic conditions. More precisely, to what extent have the Ghanaian courts and legislative bodies succeeded in moulding both the received law and the indigenous customary law to respond to the pressing social and economic needs of the country? Is there in fact a peculiarly Ghanaian legal tradition?

The first Supreme Court was established in 1853, but its jurisdiction was confined to the coastal settlements and it could not pretend to be a national institution. The modern Ghanaian legal system was inaugurated by the Supreme Court Ordinance, 1876, which not only established a national judicial system but also prescribed the law and procedure to be applied in this court system.

On 14 June, 1985, the Provisional National Defence Council of Ghana promulgated a series of laws designed to give better security for widows and their children, provide an effective machinery for the registration of customary marriage and divorce and render heads of family statutorily accountable to their members. They are: Intestate Succession Law, Customary Marriage and Divorce Registration Law and Head of Family (Accountability) Law. There is no doubt that the enactment of these laws marks a significant turning point and a new concept of family property law, even though the impact of the laws is yet to permeate into the social fabric of the Ghanaian community as a whole.

By a decree, the Head of Family (Accountability) Law, 1985, it has now been statutorily established that, in Ghana, whatever may have been the doubts in the past on the issue, the Head of Family is accountable for any family property entrusted to him. The relevant provisions of the Law are:

Section 2 of the Law provides for an application by motion to the court for accounts by “any member of the family to which such property belongs who has or claims to have any beneficial interest in the property]. The only proviso is that such an application may not be entertained unless the court is satisfied that a settlement within the family has been attempted without success. The obvious reasons for this procedural requirement are to encourage the resolution out of court of family disputes relating to family property, and to conserve judicial resources.

Perhaps ex abundanti cautela the new legislation makes accountable not only the head of family but also any other person who has possession, control or custody of family property. It has never been doubted that a person other than a head of family who has possession, control or custody of family property is fully accountable for the property. The problem, such as there was, related to the question of accountability for family property by the head of family.

Professor Antony Allott's first studies of law in Africa were of Ghanaian land law. From an early date he has discussed issues of land title registration in Africa. It is therefore fitting in this celebratory number to note that Ghana, after many years of debate and delays, recently enacted a statute providing for the registration of interests in land throughout the country. It is planned that the Land Title Registration Law, 1986 (P.N.D.C.L. 152) (hereafter “the Law”) will be brought into operation in stages as areas are successively designated “registration districts”. It is expected to begin with Accra “and designated agricultural areas”, according to the Memorandum to the Law. When an area is so designated, the Chief Registrar of Lands will be obliged forthwith to call upon all persons claiming interests in land therein to present their claims. Those proven, after adjudication if necessary, will be registered, and the register will be conclusive. All subsequent changes in the holding of interests are to be effectuated through changes in the register. The Land Title Registration Regulations, 1986 (L.I. 1341) have already been made to provide in more detail for the procedures to be followed.

This contribution attempts to provide a brief, critical summary of the central features of the Law. It considers these in the context of the historical development of Ghanaian land law, and contrasts them with features of certain other schemes which have been implemented or proposed.

Tony Allott made a breakthrough in legal scholarship when he opted out of the English Legal System familiar from his Oxford training for a legal virgin soil in a continent that was still a barren field for legal literature, at any rate on its West and East Coasts then forming part of the British Colonial Empire. He embarked on research first into the land law of the then Gold Coast and later spread his untiring zeal into other areas of the laws of dependencies in the Sub-Saharan Region. His sustained energy maintained the same momentum through independent Africa. He examined aspects of the legal systems of many countries within the region ranging over matters such as the constitution, the family and the land; he propounded his ideas first in lectures, then in articles for journals and at symposia, compiling some of them in the Essays, and he finally reflected philosophically on his own concept of law in The Limits of Law.

Professor Allott can be described as a pioneer in the study and research of African Law as an academic discipline. That he succeeded Colonial Administrative Officers is a moot point but it is submitted that the effort of his predecessors was geared towards gaining a knowledge of the ways, the customs and lives of the peoples whom they governed and they were not motivated by a scientific urge for the discovery of organized legal systems because to many, if not all, Africa was a continent so dark that it was inconceivable for law to exist within it.

In the closing paragraph of his inaugural lecture Law and Language, Professor Allott referred to what he termed “a daunting obstacle” to the intensive study of African legal systems.

That obstacle is the rapid disappearance, before our very eyes, of the traditional systems that we have proposed to study. A generation ago there would not have been that difficulty; but today the traditional tribunals have vanished in many African countries where their place has been taken by statutory local courts. Even where the traditional courts appear to have survived, at least in name, they are usually affected by the impact of western law and institutions and of central government control.

Those words were written in 1965. How true and necessary they were is shown by the fact that more than fifty years previously—even more than “a generation ago”—the impact of “western” influences upon the Tswana peoples of the Bechuanaland Protectorate (now the Republic of Botswana) had already led to many changes in the indigenous legal system, although, at that time, the “traditional courts” still survived virtually intact and not merely “in name”.

The nature and extent of those changes can be readily ascertained by the fortunate chance that, there are still available the records of approximately 470 cases tried, over a period of six and a half years, in the highest traditional court of the Ngwaketse, a major Tswana chiefdom.

Professor Allott observed nearly a quarter of century ago:

“There can be no justification (other than inertia) for the continued application of the unreformed English law of torts in modern African countries”.

There is no doubt that he was right; there is equally no doubt that it is still substantially the unreformed law which is applied. Certainly there has been very little in the way of legislative change. This paper is not concerned mainly with this question, but with what uses African litigants and their lawyers have found for this exotic field of law, and also, to some extent, with the further question of how far the law has proved fitted for the tasks.

A glance at legal periodicals in the United Kingdom and even more so in the USA indicates that there is something of a ferment in tort scholarship. We find writers asking questions like “Does tort have a future?” While at the same time others demand that tort take on new roles. By way of complete contrast, it might appear from African legal literature that the law of tort is of virtually no significance. There are very few books and journal articles are relatively rare. It attracts even less attention from those who write on law and development.

It has been said of the Antipodean law of tort that it “does not, in general, reflect the Australian outback and its pastoral economy, nor New Zealand's earthquakes, volcanoes and glaciers, nor exemplify an Australian or New Zealand ethos”.

I chose the topic of land and land policy as my contribution to this collection of essays in honour of Tony Allott because it seemed to me that there are certain parallels between the role of land in society and the role of Tony Allott in the development of the study of African Law and indeed of the study of the law of pre-literate societies by lawyers in the United Kingdom. Land is central to the workings of any society, but especially is this so in respect of pre-literate societies and societies subjected to the impact of colonialism. So too has Tony's work been central to the growth of our understanding of the workings of customary law in African society and the manifold problems created by the impact of received law i.e. for the most part Western Europe law brought by the colonial powers, on customary law and society. Those of us who began our careers of law teaching and legal scholarship in Africa owe a great debt to Tony for his pioneering work in the field and for his tireless efforts to promote African legal scholarship. In going beyond Africa as I do in this essay, I am once again following in Tony's path for he long ago realised that law in Africa is a part only of the great family of law in the developing world and one can no more isolate African legal scholarship from that world than one can isolate land from the society of which it is a part. It is to this that I now turn.

Although there are no reliable, detailed official figures as to the present ethnic composition of the population of Great Britain, a recent survey by the Office of Population Censuses and Surveys has estimated that the number of Africans settled here is just over 100,000. Many more, of course, arrive in Britain each year as students or visitors. Indeed, in 1986 the volume of visitors from Nigeria and Ghana was considered by the British Government to be placing such burdens on immigration officials at the ports of entry that it was felt necessary to alter the immigration rules; people coming from those two countries now have to be in possession of visas before they arrive in the United Kingdom.

The presence of a significant number of Africans in England today is nothing new. There were at least 10,000 here in the late eighteenth century and possibly as many as 30,000, at a time when the total population of the country was only about a sixth of what it is today. West African slaves were brought to England from the 1570s onward. Most of them were used as household servants, often by the aristocracy, and some were employed as court entertainers. Indeed, at the beginning of the sixteenth century Henry VII had a black trumpeter (of uncertain origin) in his retinue. Much earlier, Africans served as soldiers in the Roman legions which occupied Britain during the first four centuries A.D.