We cannot discuss international law and its possible evolution towards a new international law of development without briefly reminding ourselves of what law is and how it emerges. What makes law, in other words? Law, a legal system, first of all presupposes a community. In the international case this is a community of autonomous states. Next—to achieve an effective system—there must be consensus on both the means and the ends of regulation of relations within that community or an authority with power to execute the rules of that system. At the end of the day the international community has depended, and continues to depend, on a blend of consensus and authority. Next, there must be structure, an organised network of institutions for the determination of rules (“sources”), for the resolution of conflicts and for the carrying into effect of decisions on those rules and conflicts. Thus law cannot exist without purpose; the law embodies goals which may be limited or extensive in their reach—the law is for something, some end. Lastly, of course, there must be rules which specify how the system is to work, and the actual content of the relations prescribed. In the evolution which we have witnessed since the Second World War international law has moved in all these respects; and this movement is quite vital for the theme of international law and development.

In February, 1981, the Customary Law and Primary Courts Bill was “celebrated” into law by the Parliament of Zimbabwe. It was swept into being with the reforming fervour which the new government brought to an independent Zimbabwe. The debating chambers, and loudspeakers at country-wide mass rallies, echoed with condemnations of the previous customary court structures and with the promise of popular justice and people's courts. Whether the legislation was “revolutionary” is arguable, but the atmosphere of its birth is an important indicator of its nature—a people's government was providing for a people's law. This article is mainly concerned with the changes in court structure and jurisdiction brought about by the Customary Law and Primary Courts Act. However, some observations on the early life of the primary courts, and on other matters of law reform in Zimbabwe, are necessary in order to breathe life into the legislative discussion. Many of these observations are personal—gleaned from field research into the primary courts in Zimbabwe between April, 1982, and February, 1983.

My approach in introducing the discussion must be that of the “necessary hostility” of the practitioner who sees the client privately and tries to raise the real difficulties so that these are tackled constructively before the opposition is let loose on the client. Thus the tactic is that of constructive criticism, asking the tough questions. It is well known that multinationals and other interested parties are well served by international lawyers who will not neglect the tough technical problems.

No doubt methodology can be over-emphasised. It is clear that many lawyers have long and successful careers probably without once stopping to worry about methodology. In contrast are the linguistic philosophers who are rather like the gardener who spends his entire career in the tool shed and seed store but never gets out and grows any vegetables. Whilst the problems can be exaggerated, nonetheless there are problems and in a sense I want to raise questions without having firm views about the answers. I think this is exactly the forum in which we can exchange our views and impressions.

In my opinion the New International Economic Order presents problems of sources of a magnitude which is greater than the problems which have to be faced even when one is dealing with relatively old established parts of customary international law. In the first place we look at the nature of the sources. There is an incredible variety of sources, using the term “sources” in a rather question-begging way.

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.

What is the connection between international law and economic development? The answer will very likely be different according to whether the question is asked in a developed country or in one of the 120 less-developed countries. Consequently the answer can only be found in international law itself.

Criticism has been levelled against the International Law Commission on the ground that its work only deals with the traditional topics which constitute the core of international law. Such criticism implies that the Commission has failed to perceive the need for developing international law adequately to encompass new areas.

Of course this assertion could be disputed. However, the General Secretary of the United Nations, in a Survey of International Law published in April, 1971, clearly points to a number of newly emerging areas of concern, including the law relating to economic development which comprises the following headings:

1. international legal rules and measures concerning regulation and coordination of the economic activities of states;

2. international trade;

3. economic and technical assistance.

In order to assess the full implication of this question, it should be appreciated that the activities of the U.N. and of a growing number of international economic institutions are now devoted increasingly to development. The numerous relevant publications issued especially, but not only, by Third World lawyers show how this matter is becoming of fundamental importance. Indeed, there can be little doubt that Foreign Office legal advisers would readily admit that much of their daily work involves questions of international economic law. Nevertheless, if one looks at the role allocated to this subject by what may loosely be called the established international law, one must recognise that this is, indeed, a very modest role.

The right to freedom of religion and belief is closely linked with the rights to free expression of opinion, to peaceable assembly and freedom of association. In particular, they share the common purpose of assuring to an individual freedom of choice. Moreover, to be effective, each normally requires the use of one or other of the means of dissemination of knowledge and information, which include newspapers, books, pamphlets, petitions, posters, radio, television and motion pictures. Likewise, to be effective, the rights to freedom of religion and free expression of opinion must be linked to freedom of association in the sense of the right to form and to join organisations for the advancement of particular views and interests. This is particularly true of cities and other densely populated areas. Indeed, the essential similarity between these rights was reflected in their embodiment in a single article in earlier Sudan constitutions. A consequence of these similarities is that the denial or infringement of any one of them has further ramifications on the other rights apparently left intact. Accordingly, the present study, while focusing on freedom of religion, will make brief excursions into the related rights of free expression of opinion, assembly and association. Before considering problems raised by freedom of religion, reference must first be made to its necessity.

The long-standing Western Sahara dispute which has plagued the OAU finally came to a head in August, 1982, when, as a consequence of the admission of the Saharan Arab Democratic Republic to the Organization earlier in the year, the Nineteenth Summit Conference due to have been held in Tripoli was postponed sine die. Following a Moroccan-inspired boycott, an insufficient quorum existed to allow the meeting to proceed. The Western Sahara dispute has emphasised some of the shortcomings of the OAU. Although it may have been initially assumed that the OAU was better suited to handle this dispute, it was handicapped by the intransigent attitudes of the parties to the dispute. Threats to cancel membership of the Organization if the SADR was ever admitted were repeatedly made by Morocco and some of her allies. The SADR secured membership of the OAU in February, 1982, and the worst fears appear to have been confirmed. The question therefore arises as to what the future holds for the OAU, but first it is necessary to examine how the SADR was admitted to the OAU.

While the demand for economic development by underdeveloped countries has a long history, two landmarks call for brief comment: 1960, when a massinflux of newly-independent underdeveloped countries lent political strength to their clamours; and 1973, when the spectacular rise in oil prices became a potential weapon of the developing countries. The chief political forum of the latter has been the General Assembly of the United Nations, but battle has also been done in the General Agreement on Tariffs and Trade (GATT), chief forum on international trade. Some concessions have been wrested from the developed countries, but progress in the two chief fora of public international finance, the International Monetary Fund and the World Bank, has been slow. Both of these international institutions have become the focus of manoeuvre between the developing and the developed countries.

The Matrimonial Causes Act, 1 of 1973 (Cap. 29:07 of the Laws of Botswana) was passed by the National Assembly on 27 October, 1972. It was assented to by the then President of Botswana, the late Sir Seretse Khama, on 2 February, 1973, and entered into force a week later on 9 February, 1973. The Act applies to civil marriages only, i.e. marriages concluded in terms of the Marriage Act (Cap. 29:01); customary law marriages have been excluded from its operation. As its short title indicates, the Act deals with matrimonial causes, that is to say divorce, judicial separation and the annulment of marriages and matters incidental thereto such as the property rights of spouses, custody, guardianship, maintenance and the jurisdiction of the courts.

During its first 10 years of existence the Act has been the subject-matter of many a decision of the High Court and provisions of it have been considered also by the Court of Appeal. Most of these decisions deal with divorce. In academic circles, too, the Act received attention, witness the review by Chris Himsworth in the Journal of African Law. This review was written immediately after the Act came into force. An updated account is therefore appropriate. As I intend to approach the Act from a broader historical and jurisprudential angle, I will deal with it afresh rather than use Himsworth's penetrating but positivistic analysis as a frame of reference.

The scarcity of resources and time limit the scope of ideas and the framework of deliberations in all human activities. Thus time and resources equally place limits upon any attempt to theorise and conceptualise, whether in science or in teaching. This limitation bears equally upon the choices of method and substance. Thus in the study of international law today the question is posed, what are the priorities with regard to basic questions and to their systematic presentation on the one hand, and then how to proceed (of necessity selectively) for the purposes of teaching on the other?

Contemporary legal education consists in what has been called “modern, rational, legal university education”. As a result of the rational-systematic transfer of legal ideas and techniques, the legal mind so formed can release itself from the concern with everyday needs of those who are the “consumers” of law, which Max Weber has described as follows:

“The rational-systematic pattern of legal thought may induce the legal mind to dissociate itself largely from the everyday needs of those who are most affected by the law, and so does a lack of its concrete substantiation. The power of the unleashed dictates of pure logic in legal theory and a legal practice dominated by it can to a large extent eliminate considerations of practical needs as the driving force for the formation of law.”

The United Nations is entering the third development decade designated by a resolution which is part of the series now consisting of three texts which have guided the efforts of the United Nations over the last 20 years. The present document took a long time to produce and was the object of particular care and attention. The General Assembly resolution of 17 December, 1977, provided that:

— all negotiations should be conducted within the framework of U.N. institutions

— an extraordinary session of the General Assembly should be held in 1980 to assess and to identify the new strategy for development

— a plenary committee should be established, open to all member states, to prepare for the meeting of the Extraordinary Session in 1980.

On the one hand the third decade was to open “global negotiation” and the plenary committee was to prepare the ground for these negotiations; on the other hand, a committee was to devise the new strategy and to present it to the Eleventh Special Session. Those were the two aims; and the Group of 77 were determined to link them in a single ten-year-plan, in what is called in the U.N. terminology a ten years strategy. Three of these strategies have been adopted so far. The General Assembly in its resolutions A/1710 (XVI) and A/1715 (XVI), 19 December, 1961, declared the period 1960–70 the first U.N. Decade of development: a period in which special efforts should be made by all, in favour of those who live in the less developed countries.

At the beginning of the 1980s the North–South dialogue seems to have lost much of its momentum. The prevalent feeling is characterised by frustration about the dialogue's practical achievements, by growing cynicism as to its possibilities and by little hope in regard to new initiatives. The reasons for this view are manifold: the failure of major international conferences, the set-back in the negotiations on new international instruments, the standstill at the global level because of the hesitation of some countries, in particular the United States, which is reconsidering its development policy, and the deterioration of the social and economic situation in most developing countries. Given the growing economic difficulties in many industrialised states, the international climate for the necessary restructuring of the international economic order seems to have gradually worsened. This situation led the Brandt Commission to include in its report a proposal for a North–South summit conference of a limited number of heads of states or governments so as to create a new political impetus. This proposal materialised in the summit conference at Cancun, Mexico, convened by the Austrian Chancellor Bruno Kreisky and the Mexican President Lopes Portillo. One of the hoped-for results of the Cancun summit was to reach consensus on the opening of a “global round of negotiations”, which would provide the framework for a comprehensive effort within the United Nations towards a New International Economic Order (N.I.E.O.).