In modern time custom has been subordinated to common law especially in England. Instead, the customary system only went underground where it continued to grow despite the overlay of statutory law that was designed to replace it. Land Act 2012, Kenya s 5 2. Secular Laws emphasised responsibilities and rights. Formally, Kenya has progressive laws in place which are capable of being used to combat discrimination and inequality against women in land ownership.
During the colonial days customary laws were regarded as a special category of laws used in governing natives. The international community was built on centuries of traditions, actions and lessons learned. Instead, they remained merely as guides to native chiefs and court officials. These customs from the basis of what is applicable and what is not and also stipulates the punishment for doing what is wrong. The Timoguns: A Murut Tribe of the Interior, North Borneo Native Affairs Bulletin No. Since customs are made by human actions, they are laws made by people that require a longer time to codify Scott 2010, 78.
However, there are minority and weaker groups of people within certain communities upon whom even customary law is imposed, for example men are stronger in the community and thus they as elders can make law that suits then and may be disadvantageous to the female part of the community. Custom therefore is seen as a source of law in a sense that customary law is generated by customs. Aboriginal customary laws were developed and based on the aboriginal relationship to the land as well as the view that property land and individual belongings were owned by the community as a whole. Another act governing African customary law is The Magistrates Act. Subsequent to the promulgation of the Constitution of Kenya 2010, a number of Land Acts were repealed and replaced with 3 operative Acts of Parliament. Common law is to a great extent the child of custom.
The High Court went on to hold that the applicable African customary law was discriminatory on the grounds of sex. It provides excellent grounding for the early study of legal history. African customary law is therefore a source of law to the extent in which it applies. At the same time, it also questions the thesis that as societies become more modern, they also become less religious. They were customary in origin and type.
The people in a community start by forming uniform practice and by virtue of uniformity it is referred to as custom then the practice gains the force of law by being stuck in the mind of people. Its original role was that of an advisory body with limited judicial functions. Aboriginal law had lasted for hundreds of years before white settlement of Australia in 1788. What was ignored and overlooked that this was a law that governed over time the personal every day relations of probably 100% of the local population. That resilience and persistence is evident in several ways; for example, available literature indicates that many communities in Kenya continue to implement customary law in a way that indicates that customary tenure provides better solution to societal problems than the western statute laws.
This is because the common law courts were enforcing the law that is common in a particular area and the decisions of those were followed thereby creating precedents. Towards Independence there was a move towards integration, which was achieved after Independence, where every body of law was a subject to the same system, as we know it today. The book reviews the legal status of customary law and its relationship with positive and natural law from the time of Plato up to the present. The Repealed Acts The following Acts have been repealed: The Indian Transfer of Property Act, 1882 The Government Lands Act The Registration of Titles Act The Land Titles Act The Registered Land Act The Way leaves Act; and The Land Acquisition Act Chapter 5 of the Constitution of Kenya 2010 gave effect to a radically different land regime in Kenya. Law embodies these principles in the exercise of its sovereign power while custom embodies its principles as acknowledged and approved by the public opinion of the society rather than by the power of the state. Blackstone describes the common law as the common custom of the realm in the 16th century.
When the state begins to evolve out of the society, the law of the state is often modeled on the custom of the society. Customary laws are said to be applicable to the extent that they are not repugnant to justice, morality or any other written law. Custom has an important place as a source of law. The English legislature did not start as a law making body. The 7 Natives Affairs Bulletins published by the North Borneo Company, 1936 —1939 1.
He is currently teaching Social Foundations of Law, Customary Law, International Public Law and International Relations at the University of Nairobi and he is a part-time lecturer at St. The authority of a legal custom is absolute and for that reason it possesses the full force of law, for example the custom preventing widow re-marriage. African customary law is used as a guide in civil cases affecting people of the same ethnic group so long as this does not conflict with statutory law. The variations were brought about by different stages of economic and political development, different social and kinship systems, different religious beliefs and different cultural practices of the society. In England it must go back as far as 1189 although we cannot use this age in determining the custom. The paper concludes that customary tenure still provides the only meaningful framework for the organization of social and economic livelihoods in Africa; and should therefore not be extinguished but instead be restructured to fit into modern economic regimes of the 21st Century.
These customary practices had become adat customs that governed indigenous communities in Sabah and Sarawak for generations, existed only in oral form. In England the term custom is used to refer to legal custom with force of the law while conventional custom refers to usage. This paper therefore examines the current status of customary tenure among the Kenyan communities and how it performs visa vi vis the western-based tenure systems. In England, customary law formed the basis for the emergence of common law system. Its role was to evaluate and state that this is law much as what the courts do today.
This is because the common law courts were enforcing the law that is common in a particular area and the decisions of those were followed thereby creating precedents. Among all, only the efforts of George Cathcart Woolley Commissioner of Lands, North Borneo Company have successfully printed the compiled customs as codes. This was despite the fact that customary law governed the local population. Custom and customary law Custom is an established pattern of behavior that can be objectively verified within a particular social setting. Okumu: a dispute arose as to the custody of a four year old illegitimate girl.