The Relationship between Traditional Laws and Modern Law in Africa : A Comparative Study of the Tswana, Xhosa, and Oromo

Abstract

The main scholarly goal of this thesis is to identify the different types of relationship indigenous traditional laws and traditional governance structures have with the laws and institutions of the modern state in Africa. The aim is to distil lessons, insights, and observations which have comparative relevance for the study of (non-Western) constitutions and constitutionalism. The case-studies from Botswana, South Africa, and Ethiopia are part of this search for potentially generalisable patterns which hold across both time and place. The investigation is thus, both a) a comparison across three case-studies and b) a historic comparison across time. That is, each case-study contains a comparison of the different legal and political mechanisms managing the relationship between the traditional and the modern during the different constitutional phases spanning precolonial, colonial, and post-colonial periods. For each case-study investigation starts with the international and regional levels of analysis and then moves down to the national and local levels. After examining nation-wide constitutional and political factors, the focus is directed on the traditional laws and governance structures in three select locations: i) the Bakgatla Batswana of Botswana; ii) the Transkei amaXhosa of the Eastern Cape; and iii) the Guji/Borana Oromo of Ethiopia. The three case-studies epitomise three different paths to empowering indigenous African constitutionalism. In Botswana we see early recognition, domestication, and continuity; in South historical distortion, manipulation, followed by democratic rebirth; and in Ethiopia we see how an idealised version of indigenous Oromo constitutionalism is in resurgence after its near extinction in recent history.