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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:African Customary Law and Human Rights in Kenya: In Search of a Viable Framework for Coexistence
Author:Juma, LaurenceISNI
Year:2002
Periodical:East African Journal of Peace and Human Rights (ISSN 1021-8858)
Volume:8
Issue:1
Pages:53-82
Language:English
Notes:biblio. refs.
Geographic terms:Kenya
Africa
Subjects:customary law
human rights
Law, Human Rights and Violence
Peoples of Africa (Ethnic Groups)
law
Penal sanctions
Civil law
Cultural values
Abstract:Recently there has been an upsurge of interest in African customary law. There are two antithetical views: (1) that it is 'empty' and no longer relevant and (2) that an in-depth study of institutions born of African customs and traditions would bear the promise of fostering the development of human rights. In the case of the latter it is important to bear in mind that customary law is not static but is constantly changing and adapting. In this article the author gives a detailed study of the way African customary law is employed in present-day Kenya. His conclusion is that it is unlikely to wither away in the foreseeable future and its resilience stems from a host of factors. Not least of these is that the majority of the African population is still rural but most economic development has taken place among the urban minority. He hastens to stress that this economic disparity is not the result of the application of customary law nor of the imposition of the ideas propounded by neo-traditionalism. The OAU charter embodies the idea of human rights for all African people, set down in the Banjul Charter. In its preamble this implies that African traditional values, and by extension customary law, are keys to the realization of human rights. The author feels that the renewed recognition of customary rights is going to reveal a whole new series of challenges. Among useful tools could be a remodelling of agrarian policies to take account of prevailing practices and the adoption of traditional conflict resolution strategies. The author further cautions that the place of African customary law in the legal system will have to be unambiguously defined and its antecedents cleverly re-interpreted to set the stage for a more progressive utilization of its principles. Notes, ref. [ASC Leiden abstract]
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