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”.

This paper examines what topics are dealt with in matrimonial cases before the local courts in Zambia and, to some extent, what topics in customary law relating to marriage are not dealt with in such cases. It does not explore the conceptual limits of a definition of customary law, nor does it imply that the adjudications of local courts are the only source from which to establish customary law relating to marriage. The scope of matrimonial cases is here taken to include the formation, duration and termination of marriage, but to exclude succession after the death of a spouse. Quantified data are derived from all cases heard in the local courts of Zambia during the year 1968, or from samples drawn from them. Approximately 32,000 matrimonial cases as here defined were heard by these local courts in 1968. Local courts are the courts established under the Local Courts Act of 1966, which replaced the former native courts.

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.

This article offers some perspectives on the concept of “custom” in Lesotho, more particularly in the Court of the Judicial Commissioner on the one hand, and in the Basotho Courts on the other. The period reviewed is that from 1944 to 1968. The history and structure of the courts in Lesotho are not rehearsed, since good accounts exist in accessible publications.

There are two aspects to this subject. On the one hand, one may investigate the background of the students for whom this teaching is intended. Some persons think that one must be concerned with courses aimed principally at Africans who are unable to attend university in their countries of origin; others think that such courses should be open to all who are interested in comparative law and should place African legal systems on the same level as those of the common law countries or Soviet law.

On the other hand, experts in this field are divided on the question of the place which African law should occupy in the general structure of university curricula; in some people's view it is useful to distinguish the traditional law from the modern law, associating the former with the social sciences and the latter with law proper. Other specialists think that it is not possible to teach African law without first giving the student a solid grounding in the sociology, politics, and economics of the African continent.

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.

The courts in Ghana and Nigeria apply indigenous customary law in a large proportion of cases, particularly those involving family relationships or land. During the past century the courts have done much to clarify this law and adapt it to rapidly changing social conditions. One such adaptation is the subject of this article. The English doctrine of acquiescence has been imported to fill what appeared in new circumstances to be a deficiency in the customary land law. The doctrine had been used to perform functions different from those which it has performed and is performing in English land law. This article seeks to compare the different characteristics the doctrine has assumed in the three countries, and to draw some conclusions from the experience of Ghana and Nigeria.

A realistic assessment of the part customary law can be expected to play in the developing legal system of an African state must depend upon the availability of detailed information as to the way in which this body of law is now responding to the problems associated with changing social and economic conditions. Information of this kind can only be obtained through the study of actual disputes and the procedures followed in their settlement. Curiously, lawyers interested in customary law have on the whole neglected such an approach, concentrating their energies upon the discovery and systematic organisation of abstract rules purporting to constitute the legal norms of the society under investigation. Moreover, the method of research followed in most instances has been to question groups of informants assumed, to be knowledgeable about customary law, rather than to search for norms directly in the raw materials provided by the law in action, and this approach has inevitably insulated the investigator still further from actual disputes and the agencies involved in their settlement. Had the only means of finding out how disputes were actually settled been to sit and watch them in progress, lawyers might have been excused for leaving that to the anthropologists. But such information is widely available through other means: informants can be persuaded to reconstruct actual disputes from memory instead of racking their brains for abstract rules, and accounts of such disputes canbe found in the written records kept by many customary courts. This latter source, particularly, seems to merit more serious attention than lawyers have been prepared to give it in the past, and it is with it that this article is concerned. Drawing upon customary court records, it is hoped to illustrate both what this source consists of and the manner in which the customary family law of a single Tswana tribe is developing.

For sociologists and lawyers Somalia presents a fascinating observation ground.

Most of this long and narrow strip of land straddling the Horn of Africa is a dry savannah punctuated by graceful acacias spreading out their thorny leaves like giant umbrellas. Most of the inhabitants are nomadic herdsmen whose principal measure of wealth is the camel and whose main occupation and preoccupation is combating the ever-recurrent droughts by periodic treks in search of water and grazing.