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Return of customary law often a let-down for local people

Traditional leaders in many African countries have regained some of their former powers. Politicians and companies in some of these countries manage to gain access to valuable land via these leaders, at the cost of the local population. This is the message of Professor of Law, Administration and Development Janine Ubink in her inaugural lecture on 25 January.

How come the power of traditional chiefs has grown?

‘Many of the world's valuable areas, such as mining, agricultural and forest lands, are being governed by traditional leaders, some of whom have inherited their positions. These chiefs often rule over poor communities. Democratically elected administrations want to exercise more control over the local population by forging closer links with the chiefs, thus legitimising the state and making it more effective. Politicians, for example, want to win votes via these local chiefs and gain access to natural resources such as precious metals (gold and platinum) and farming land. Land rights are an important part of the unwritten customary law that falls under the chiefs.' 

A woman working on the land in Namibia. Photo: Benjamin de Rooij.

To what extent is customary law written in stone?

‘Customary law is legally binding as long as it doesn't conflict with national laws. In the course of time, successive authorities have changed the old local legal systems. After decolonisation, many governments tried to limit the power of traditional chiefs, which was based on customary law. They regarded the old legal systems as remnants of the colonial era that divided their land rigidly into ethnic tribes. That was a barrier to nation building and modernisation.' 

‘Many people thought that customary law would slowly but surely be replaced. However, since the 90s, the old systems have undergone a revival and they now existside by side with modern legal systems. A number of African countries formalised and strengthened the position of the traditional chiefs and kingdoms in their legislation. But the checks and balances in these systems, such as citizens' right to have a say in how the chiefs rule, have often been ignored.' 

Mining in South Africa. Photo: Fifty/Wikimedia

What's the reaction from the local people?

‘In some African countries, such as South Africa and Ghana, a heated debate has been going on for some years because the local population have little say and, for example, they have little or no say when companies open up mines on their land. In South Africa, where I'm currently doing research, there is a lot of dissatisfaction. During apartheid,  many groups were divided into what were called countries of origin and placed under chiefs whom they didn't regard as their leader. Now they also don't accept the successors of these chiefs, but these chiefs are making deals about their land.' 

How do you do your research?

‘I mainly do a lot of fieldwork because customary law is largely unwritten law. In the last few years I have spent longer periods in South Africa, Ghana, Malawi and Namibia. I have contact with the chiefs, of course, and with other groups such as government officials, judges, policy-makers and companies. I also liaise closely with local organisations that are working hard for democracy and development. My research is very interdisciplinary, including legal, anthropological and public administration elements. Right now I'm writing a proposal for an ERC grant because I want to expand my comparative research further in South Africa and Ghana.' 

Banner photo: Mining in Congo. Photo: David Dyet
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