In many states, more developed or less developed, the general populace does not seek redress through the court system, does not have access to legal interpretation of constitutional provisions, and is little affected by juridical decisions concerning human rights, To the majority in the Third World, dispute resolution through customary law may be of more relevance, and what matters most to the average person is how she or he is affected by the planning and daily practice of government and other bureaucratic institutions. This paper will review some aspects of political and economic development in Tanzania and Kenya since their attainment of independence from Britain, and will attempt to relate their experience to international agreements for the promotion of human rights.

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.

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.

This article is a condensed version of a much longer paper,* the purpose of which was to explore the viability of the approach to legal care which has been adopted by Nigeria within the cultural background and the prevailing social and economic conditions. In the original, therefore, there were additional sections devoted to: (a) the concept of legal care, including a brief examination of the role of the lawyer in developing countries, (b) the social and economic background, and (c) the difficulties experienced by accused persons within a plurality of cultural, language and legal systems. It is not possible to deal with these topics adequately within the space of a short article, and the main focus will, therefore, be the legal aid scheme itself, except for some brief background remarks in the introduction.

In a recent book on the economics of pastoralism in Africa, Konczacki argues that “the present pattern of land use” by pastoralists, “results in the over-exploitation of pastures and precludes the application of rational methods of range movement”. He applies his argument to sub-Sahara Africa in general and maintains that an improvement in the pastoral sector is possible only if the damaging results of “mismanagement” can be prevented and “a scientifically controlled approach” to range management can be introduced. Konczacki is aware that pastoral societies are slow to change and even oppose changes which are imposed upon them, but despite this he claims that “socio-psychological traits alone cannot provide sufficient explanation of their resistance to change”. It is true that a rapid growth of livestock population may lead to an over-exploitation of grazing grounds, and thus will focus the attention of government officials and planners on patterns of land use, so that a policy and a number of measures become necessary to prevent a deterioration of pastures. However, one gets the impression from Konczacki's argument that the existing land tenure system of pastoralists poses a problem at a merely technical level (of “mismanagement”) which can be separated from the “socio-psychological traits” of pastoralists, and solved if the people are only shown how to manage livestock properly and “wisely”. Nor is Konczacki alone in his technical and split view of pastoralists.

A central problem for a national programme of land reform is the selective response of local communities. The plans are often grand, simple and homogeneous; the communities, small, complex and diverse. Moreover, locally a received reform may be re-interpreted—indeed, re-invented—in quite fundamental ways in the light of a locally understood history of introduced change and outside intervention. There may be a deliberately defensive response, due to the high value people put on their community's autonomy or due to the perceived bias of the reform in relation to longstanding oppositions within a community. Sometimes, also there may be an attempt to seize an opportunity, perhaps unintended by the reform's planners, for a further encroachment by some at the expense of others, within the community itself.

Consider these apparently simple facts: in 1968, the Government of Botswana introduced its Tribal Land Act, which promulgated new institutional and tenurial arrangements for the rural communities; in the period thereafter land regulations in Barolong, a small chiefdom in the south-eastern corner of the country, underwent dramatic changes. Most obvious among these were a rapid rise in the value of cultivable acreages, a marked shift in the ideology of property rights, and an intense politicisation of the processes surrounding the distribution and negotiation of arable holdings. Given the historical coincidence of these events, it might seem perfectly reasonable to infer a causal link between them. And, indeed, the direct attribution of rural transformations of this kind to the effects of state intervention is common enough in analyses of “social change” and “development”. But, tempting as this mode of explanation might be, it leads inexorably to oversimplification. Worse still, it is often predicated upon the patently false assumption that the temporal conjunction of such decontextualised events may alone represent a sufficient condition for hypothesising causal connections between them.

The uncertainties which surround any attempt to modify social behaviour through legislation are well recognised. So too is the probability that such uncertainties will multiply in a “plural” context; where, for example, national legislation is imposed upon formerly autonomous groups in the period following their incorporation. But even if we take it for granted that desired behavioural changes are unlikely to appear as direct, matching results of legislative action, we should equally avoid the assumption that law made at the centre will have no impact on the periphery. Even in the absence of efforts towards enforcement, knowledge of an enactment (however slight or incorrect) is likely to be utilised and thus carried over into the sphere of action with results not necessarily foreseen by the legislator. Some response is all the more probable in a case like that of the Tswana, for whom the idea of legislation being used to introduce desired changes was entrenched long before the coming of the Bechuanaland Protectorate (see Schapera, 1943a: 1970).

The introduction of a quasi-judicial agency into a new nation in Africa brings with it many of the predicaments, dilemmas and contradictions that keep such agencies busy in Western countries. The power struggles, the encroachment on the rights of citizens, the problems of indeterminacy, apparent arbitrariness and uncertainty, all call to mind Western parallels, or rather, prototypes (cf. Handelman and Leyton 1978; Wraith and Hutcheson 1973; Bell 1969; Wade 1967, 1949; Allen 1956; Hewart 1929). But unlike their Western prototypes, the transplanted agencies have to displace non-Western alternatives, such as tribal courts, which reached their earlier phases of development under colonial rule. Usually, people with experience of such an alternative try to make sense of the new form of administration by reference to the old. Moreover, sometimes the displacement is partial, and old and new develop further in competition with each other. Hence the agencies transplanted in developing countries come to be politicised and problematic in ways of their own.

Problems of entrepreneurship and petty trade have largely been ignored in planning to reform land tenure and land use in Botswana. Yet the administrative agencies regulating land use are also involved in the licensing of trade, and the need to reform the trading regulations and traditions inherited from the colonial state are no less pressing than the need for land reform. There is a pattern which is gradually coming to be recognised in other parts of Africa as well. The inherited trading regulations, often phrased or explained as intended to protect consumers, constitute a formidable barrier to the development of new forms of competition in trade. If applied strictly, and effectively, they would block the expansion of petty entrepreneurship and the entry into trade of a new category of entrepreneurs. In effect, the regulations favour the continued dominance in trade of the larger-scale traders, often aliens, who were established in their businesses before independence. Moreover, the continued dominance of the old trading establishment is somewhat masked by the apparently large increase in the number of officially registered traders. Such numbers conceal the fact that the inherited rules generate constraints which make it harder for new traders to penetrate into the highly profitable trade sectors hitherto monopolised, with few exceptions, by aliens or non-Africans. Thus in Botswana, the continued dominance of trade and commerce by Europeans and Asians since Independence has been bolstered by a series of archaic and complex licensing regulations which, in effect, eliminate any advantages petty entrepreneurs might have in competing with large-scale, established enterprises.