Preserving African Traditional Legal Systems: Self-Statement of Customary Law, Study notes of Law

Download Preserving African Traditional Legal Systems: Self-Statement of Customary Law and more Study notes Law in PDF only on Docsity! Oñati International Institute for the Sociology of Law Antigua Universidad s/n - Apdo.28 20560 Oñati - Gipuzkoa – Spain Tel. (+34) 943 783064 / Fax (+34) 943 783147 E: opo@iisj.es Oñati Socio-Legal Series, v. 2, n. 7 (2012) – Investigaciones – Investigations – Ikerlanak ISSN: 2079-5971 The ascertainment of customary law: What is ascertainment of customary law and what is it for? The experience of the Customary Law Ascertainment Project in Namibia MANFRED O. HINZ∗ Hinz, M.O., 2012. The ascertainment of customary law: What is ascertainment of customary law and what is it for? The experience of the Customary Law Ascertainment Project in Namibia. Oñati Socio-legal Series [online], 2 (7), 85-105. Available from: http://ssrn.com/abstract=2100337 Abstract Traditional communities are no longer homogeneous. Before, basically everybody knew what the law of the community was. There is a growing understanding that the legal complexity experienced in urban settlements where various customary laws apply needs attention. There is also a growing acceptance that the verdict of the chief is not necessarily the last word: dissatisfied parties may take that verdict on appeal to a state court whose judges will not necessarily know what the customary law applied by the court a quo. The Namibian approach to ascertaining customary law has become known as the self-statement of customary law. Self-stating customary law refers to a process of ascertaining customary law by the owners of the law to be ascertained, namely the people and the traditional leaders as the custodians of customary law. The most important element in self-stating is that the end result will be a product created in the community that is required to follow and apply the law concerned. The fact that the author of this paper - based on his experience with customary law in Namibia - had the opportunity to work for the then Ministry of Legal Affairs and Constitutional Development of the Government of Southern Sudan and the United Nations Development Programme in the development of a customary law strategy for Southern Sudan adds special value to the Namibian experience and its analysis. Key words African customary law; ascertainment of customary law; codification; restatement and self-statement of customary law. Article resulting from the paper presented at the workshop Legal Pluralism and Democracy. When does Legal Pluralism enhance, when does it erode Legitimacy of and Trust in Democratic Institutions?, held in the International Institute for the Sociology of Law, Oñati, Spain, 9-11 June 2011. The author thanks the reviewer of this paper for suggestions that have assisted in preparing it for publication. ∗ Manfred O. Hinz is Professor of Law, Faculties of Law of the University of Namibia and the University of Bremen; he is responsible for the Customary Law Ascertainment Project of the Human Rights and Documentation Centre in the University of Namibia’s Faculty of Law. He also assists the Government of South Sudan in its work on customary law. Auf dem Heidberg 10d. D – 27251 Neuenkirhen im Sulinger Land. Germany. okavango@mweb.com.na W: http://opo.iisj.net 85 Manfred O. Hinz The ascertainment of customary law… Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 86 Resumen Las comunidades tradicionales ya no son homogéneas. Antes todo el mundo conocía cuál era la ley de la comunidad. Sin embargo, cada vez se asume más que hay que prestar atención a la complejidad legal existente en asentamientos urbanos en los que se aplican diferentes derechos consuetudinarios. También hay una creciente aceptación de que el veredicto del jefe no es necesariamente la última palabra: las partes descontentas pueden recurrir el veredicto ante un tribunal estatal, cuyos jueces puede que no conozcan el derecho consuetudinario aplicado por el tribunal a quo. El enfoque de Namibia para determinar el derecho consuetudinario se conoce como la auto-afirmación del derecho consuetudinario. Por auto-afirmación se entiende el proceso de establecer el derecho consuetudinario por los propietarios del derecho que se va a determinar, concretamente el pueblo y los líderes tradicionales, como conservadores del derecho consuetudinario. El elemento más importante en la auto-afirmación es que el resultado final será un producto creado dentro de la comunidad que está obligada a cumplir y aplicar la ley en cuestión. El hecho de que el autor de este artículo –basado en su experiencia con el derecho consuetudinario en Namibia– tuviera la oportunidad de trabajar para el entonces Ministerio de Asuntos Jurídicos y Desarrollo Constitucional del Gobierno de Sudán del Sur y el Programa de las Naciones Unidas para el Desarrollo, en el desarrollo de una estrategia de derecho consuetudinario para Sudán del Sur, ofrece un valor añadido a la experiencia de Namibia y su análisis. Palabras clave Derecho consuetudinario en África; determinación del derecho consuetudinario; codificación; confirmación escrita y auto-afirmación del derecho consuetudinario. Manfred O. Hinz The ascertainment of customary law… Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 89 of the now independent African states achieved their political autonomy! (Hinz 2011b). If one looks more closely, it becomes obvious that many Western-educated lawyers from Europe and Africa not only did not consider the practical and theoretical concerns behind the different avenues of law in the West, they also did not take it upon themselves to enquire about the nature of African law.5 For them, African customary law was very different from the law learned at their education institutions, which meant that customary law had to be changed in order to resemble the mainstream of law they had been taught. Indeed, African customary laws do differ from Western law: each is based on different concepts of justice, and each has its own procedural rules geared towards achieving those concepts. Against this background, and also in view of there having been no administration of justice in Africa that was comparable to the administration of common law that produced volumes of generally referable precedents, the call for codification appeared to be the easiest way to ‘uplift’ African customary laws to the so-called standard of real law. The fact that African customary laws would lose their flexibility to be applied by the communities concerned in the interests of restoring peace and harmony among themselves was of no concern to the proponents of codification, however. Lawyers in French- or Portuguese-speaking African countries even employed more radical positions towards customary law, as their respective European systems of reference did not provide much space for customary law and traditional African legal systems (Camara 2010, pp. 73 ff, Guerra 2003, 155 ff). Thus, in former franco- or lusophone countries in Africa, still today we see that African customary law lacks recognition and has remained second-class law – if it is acknowledged as law at all.6 3. What does ascertainment mean and what is it good for? In view of this, and in order to facilitate an understanding of the Namibian experience with regard to customary law and its ascertainment, the following sections will explore the meaning of ascertaining customary law, and discuss some methodological aspects related to ascertainment.7 For example, what do we refer to when we talk about the ascertainment of customary law? What do we expect when we suggest ascertaining customary law? The Community Courts Act8 in Namibia, influenced by similar legislative practice in many former British colonies (Hinz 1995a), deals with the ascertainment of customary law in its section 13. The section prescribes the procedures to be applied by courts in case of doubt “as to the existence or content of a rule of customary law”. In such cases, courts have the power to “ascertain” customary law by consulting “cases, text books and other sources” or by calling for “oral or written opinions”. In other words, in a legal context, ascertainment of customary law means more than simply having customary law recorded in some way. From the said legal perspective, one can hold that the act of ascertainment legally qualifies the ascertained version of customary law. Mere academic records of customary law based on questionnaires, court observations, analyses of casebooks of traditional courts,9 collections of cases and case-complementary information from parties thereto cannot be considered as an 5 In regard to this and the following, see Menski (2006b, pp. 380 ff). 6 The contributions by Camara (2010) and Guerra (2003) illustrate efforts to change the position in Angola and Senegal, respectively. 7 This paper, therefore, does not set out to give a detailed account of the discussion on the ascertainment of customary law in general terms or on its codification or restatement in particular, being the two common ways of ascertaining customary law. 8 No. 10 of 2003. 9 While we were conducting research into customary law in Namibia, my team and I found that many traditional communities kept case books in which they recorded information on cases they had heard. Manfred O. Hinz The ascertainment of customary law… Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 90 ascertainment of customary law, however. As useful as records of this nature may be, and as much as they may potentially contribute to the ascertainment of customary law in the said legal sense as evidence on which a court may rely, at best they remain aids for possible subsequent ascertainment in the aforementioned legal sense. Namibia’s Traditional Authorities Act10 supports the above definition of ascertainment. According to the Act, ascertainment can be defined as any kind of authoritative transfer of orally transmitted customary law into a written form. According to section 3(1) of the Act, one of the duties vesting in Traditional Authorities is – … to ascertain the customary law applicable in that traditional authority after consultations with the members of that community, and assist in its codification ... From the language in the Traditional Authorities Act, it is clear that ascertainment is not identical to codification. Indeed, the Act implies that codification is a very specific form of ascertaining customary law: it transforms customary law into an Act of Parliament. With this, customary law ceases to be owned by the communities in which it developed, and can only be changed by an amending Act of Parliament. Although the call for codification is still being heard today,11 there is not much codification of customary law to which we could refer. Notably, in addition to what has been said above for Africa in general terms, the plea to codify Namibian customary law (UNIN 1986, p. 963)12 has not been able to produce one piece of codification since Independence in 1990. To this author’s best knowledge, and despite the calls for codification of customary law in Africa as a whole, it is only the law of the Zulu in South Africa and the law of some groups in Southern Sudan that have been codified.13 There are important lessons which legal anthropological research has developed over the years, and which have been acknowledged by courts of law. These lessons support those voices today who speak against the codification of customary law, because codification will destroy one of the most important qualities of such law: its openness to accommodate reconciliatory solutions to problems, instead of allowing the law to win over the parties. Customary law is particularly open to negotiations: not only those required to achieve solutions acceptable to all the parties to a case, but also those that navigate between the application of different laws (Menski 2006a). South African courts support the vote against codification.14 These courts were faced with the situation where the law lived in communities had developed away from the law as it was offered in old records of customary law. It was found that the living law (Eugen Ehrlich) was the customary law to be accepted by courts, and not the so-called official laws of the books. This really challenging jurisprudential development accepts – as promoted by legal pluralism – that customary law as the 10 No. 25 of 2000. 11 This refers to many discussions on various occasions in Namibia in which the author of this paper has participated over the years. 12 Namibia’s Law Reform and Development Commission Act, 1991 (No. 29 of 1991) does not specifically call for the codification of customary law. The Act only refers to codification in general terms as a possible means by which “any branch of the law” can be made more readily accessible. As regards customary law, in its section 6 the Act emphasises, as one of the Commission’s objectives, the need to “integrate and harmonize customary law with common and statutory law”. 13 For the Zulu Code, see Bennett (2004, pp. 46 f); for the codification of customary law in Southern Sudan, see my above-quoted report on customary law there (Hinz 2009c). A special case are the Laws of Lerotholi (the customary law of the Basotho in Lesotho), the first part of which was put into writing by the Basutoland Council in 1903. The legal status of the Laws of Lerotholi is still a matter of debate (Duncan 2006). 14 Mthembu v Letsela 1997 (2) SA 936 (T); Hlohe v Mahlalela 1998 (1) SA 449 (T); Mabena v Letsoalo 1998 (2) SA 1068 (T). Manfred O. Hinz The ascertainment of customary law… Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 91 local law of the people would lose its quality of being the people’s law if it were to be codified into a statutory type of document. Apart from codification, we can also speak of the ascertainment of customary law, which occurs when customary law is transferred into what has become known as the restatement of customary law. The reference is here to the restatement project conducted by the School of Oriental and African Studies (SOAS) of the University of London under Antony Allott. Allott defines the restatement approach – “borrowed”, as he admits, from the American Restatements – as follows: Restatements – (Allott 1996, p. 33). … were authoritative, comprehensive, careful and systematic statements of common-law rules in such fields as torts, contracts and property. Necessarily cast in semi-codified form, they were still not codes, as they lacked the force of legislated law. Instead they were the most accurate and precise statements of what those producing them had concluded were the main principles and rules as evolved by the courts, and, as such, courts and practitioners alike could turn to them as guides. Customary law restatements were achieved in several African countries in the 1970s. However, the restatement approach fell into disuse for various reasons, one being that the restatement of customary law made today will not necessarily reflect the customary of tomorrow.15 Finally, we can also speak of ascertainment of customary law when traditional communities produce their own versions of their customary law in writing: versions of customary law for which, in the Namibian context, the term self-statement of customary law has been accepted (Hinz 2010d). Self-stating customary law refers to a process of ascertaining customary law by the owners of the law to be ascertained, namely the people – or, rather, the community to which the people belong – and the traditional leaders as the custodians of customary law. Self-stating also refers to what the Traditional Authorities Act stipulates in section 3(3)(c), namely that a Traditional Authority, as part of the performance of its duties and functions under the Act, may – … make customary law. Although the procedures of self-stating may differ from community to community, the most important element in self-stating is that the end result will be a product created in the community that is required to follow and apply the law concerned. Moreover, instead of injecting into the communities what the law ought to be, it is left to the community to decide what part of their law is to be consolidated in writing, as the community and community stakeholders will know best what their law is, and where certainty through writing is needed. The result of self-stating is binding to the community as part of their customary law. However, it is important to note that the binding quality of the self-stated laws is neither an implicit repeal of the orally transmitted full body of customary law, nor will it prevent the community from amending their law as the need arises.16 It is part of the philosophy behind the approach to leave the ascertainment of customary law to the communities themselves to decide what part of customary law they wish to have in writing, and how they wish the content of the self- 15 Bennett (2004, p. 48) notes the Law Commission of South Africa’s response to the possible restatement of customary law in South Africa, namely that “the facilities for such a project were not available in South Africa, and that, unless regularly updated, the restatement would fall behind social practice to become yet another ‘official’ version” of customary law, i.e. a version that would not be in line with the law lived by the communities. – What was said about the codification of customary law applies to its restatement as well; however, this paper is not the place to give an account of the debate on restating customary law. 16 D’Engelbronner-Kolff (1997, pp. 149ff) shows how traditional courts of the Shambyu community navigate between the self-stated version of their law and the legal principles behind such statement – thus allowing decisions appropriate to the cases to be made. Manfred O. Hinz The ascertainment of customary law… Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 94 It is important that all who will make use of this publication understand it as a work in progress, i.e. a further step along the path of improving and developing the customary law of the various Namibian communities. Looking back to developments in self-stating customary laws in Namibia, one sees very specific features that can be expected to influence further steps down the road in this process. Early versions of self-sated laws concentrated on fines for the usual catalogue of wrongs found in any textbook on criminal law or the law of delict.24 Later versions have added wrongs specifically relating to environmental law. These later versions have also paid attention to constitutional matters relevant to traditional governance, meaning that there is a growing awareness to consider rule-of-law principles in the application of customary law. The profiles which introduce the laws of the various communities and were compiled by the members themselves illustrate a growing awareness of the community’s foundation, including the philosophies on which their laws are built. Some years ago, some of us working on the Project were criticised when we spoke at meetings with certain communities about the self-stated laws of other communities that we had already collected. We were said to have violated customary law by circulating documents which were somehow regarded as secret. We objected to this, and our objection has since been borne out: it is obvious that quite a number of communities took note of what others were doing, and even integrated rules developed by other communities into their own laws. Today, some drafts of self-stated documents even contain references to scholarly work. This is encouraging, although one also has to note that some of the drafts show the handwriting of knowledgeable local personalities, and this handwriting might not always be in agreement with the aspirations of the members of the community concerned.25 As time passes, it will certainly be important to observe what the perception of the self-stated laws will be not only within the communities in question, but also among the wider legal and non-legal public, when more and more references to customary laws can be expected. References of this nature may even challenge communities to reconsider their approaches to certain laws. 5. The customary law strategy for Southern Sudan26 “... to develop the customary law into the common law of the Sudan ...” in the title of the Southern Sudan customary law strategy was taken from the Introduction section to the publication Customary law of the Dinka people by John Wuol Makec, President (Chief Justice) of the Supreme Court of Southern Sudan (Makec 1988, p. 18). This quotation was chosen to refer to the political interest in Southern Sudan to have its legal order founded in the customary laws of the various communities in the country, as opposed to the imported Islamic law imposed by the Khartoum Government. Customary law is a vibrant reality in all parts of Southern Sudan. Customary law basically affects all people: people of all communities (or tribes, as they are known in Southern Sudan). Customary law is applied by the courts in towns, including Juba, the capital of Southern Sudan. Customary law is also applied outside the city. In the cities and less remote parts of the territory under the jurisdiction of the Government of Southern Sudan, state and non-state courts complement each other. In many parts of the country, non-state courts are the only accessible judicial structures. 24 That is, tort in English common law. 25 An assessment of the processes involved in self-stating customary law would be very useful. 26 The following summary refers to the strategy’s Executive Summary, see Hinz (2009c, pp. 5ff). Manfred O. Hinz The ascertainment of customary law… Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 95 The Interim Constitution of Southern Sudan of 2005 contains several articles of relevance to customary law and traditional authority. For example, Article 174 says the following: (1) The institution, status and role of traditional authority, according to customary law, are recognised under this Constitution. (2) Traditional authority shall function in accordance with this Constitution and the law. (3) The courts shall apply customary law subject to this Constitution and the law. The terms of reference of the work that led to the customary law strategy for Southern Sudan emphasised as its main function – (Hinz 2009a, p. 22). … to develop a customary law strategy to inform the linkages between customary and statutory systems for more effective, accessible, affordable, and equitable justice. In its methodological approach, the report relies on the combination of legal anthropology and comparative law and is, thus, strongly related to the interpretation of law based on the concept of legal pluralism. Legal pluralism, unlike legal centralism, takes note of and respects that the law of the state, be it case law or statutory law, is only one side of a society’s legal coin. The other side which complements the law of the state, albeit to a varying degree, is what Ehrlich, one of the leading promoters of legal pluralism, called the living law. The evaluation of the state of affairs pertaining to customary law in Southern Sudan traverses several fields. I will deal with only two here. One deals with legislation that is relevant to customary law, while another covers the latter’s ascertainment. In respect of legislation that is relevant to customary law, the first evaluation analyses the law with respect to traditional authority and customary law under British colonial rule, regulations enacted by the Government of Sudan (the Government in Khartoum), Acts that became law during the war of liberation, and Acts that the Government of Southern Sudan enacted after the conclusion of the Comprehensive Peace Agreement in 2005. Traditional leaders, customary law, and how to deal with them have been on the political agenda since the process of reconstructing the civil administration began in the liberated areas of Southern Sudan. The reconstruction of a new local government system was guided by the desire to have a framework that could integrate local government and traditional authority. The second evaluation of the state of affairs regarding customary law in Southern Sudan gives an account of three major attempts to ascertain such law: the Bahr El Ghazal Project, the Equatoria Project, and the Upper Nile Project: The Bahr El Ghazal Project ascertained the customary laws of three communities in Bahr El Ghazal, namely the Dinka, the Luo, and the Fertit. These efforts eventually led to an act of codification that was passed by the then Regional Legislative Assembly of Bahr El Ghazal in 1984.27 The Equatoria Project resulted in a ‘code’ of the customary law of various communities in Equatoria. This code was completed in 1994 under the auspices of the Southern People’s Liberation Movement in charge of this area. The very last section of the document provides for its amendment. The requirement for amendment is a two-thirds majority of all chiefs of the communities involved, or “judicial circular or subsequent national legislation”. This is a remarkable provision: although it accepts the national competence to amend customary law, it also underlines that the code is seen to be owned by the communities involved in its making. 27 Annexed to Makec (1988). Manfred O. Hinz The ascertainment of customary law… Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 96 The Upper Nile Project produced an ascertainment of the law of the Upper Nile Dinka in 1998.28 The suggested customary law strategy proposes action in five areas: (1) The ascertainment of customary law; (2) The ascertainment of customary law will not necessarily respond to the needs of change and development. It is therefore that the change and the development of customary law must be addressed; (3) The legal and social environment for the operation of customary law is essential for the function of both and urges to be addressed in respective enactments; (4) The need for research on the said legal and social environment has to be identified and implemented; and (5) Observations on co-ordinating are necessary. As to the ascertainment of customary law, a ten-step model is proposed in the strategy, based on the Namibian experience. This is expected to encourage the various traditional communities to self-state (self-codify) their laws and, by doing so, to retain ownership of their legal traditions. The ten-step model calls for – (1) identifying the target community (2) background legal research with respect to the community (3) the drafting of policy on the ascertainment of customary law (4) the development of a comprehensive enquiry guide (5) agreement among the community on the ascertainment process and structure (6) recruiting and training ascertainment assistants (7) conducting or supervising the ascertainment project (8) conducting complementary research in identified the community (9) promoting the compilation of the ascertainment texts, and (10) preparation of publications in at least two languages – the community’s vernacular and English. With respect to the amendment and development of customary law, the strategy opts for using the potential for change inherent in customary law systems.29 Practice and legal anthropological research have shown that the customary law of today is not the customary law of yesterday. These have also shown that people do indeed change their customary law, and that they adapt it to changing circumstances. Basically all publications on customary law in Southern Sudan, particularly the more recent among them, report on changes in customary law. For this change from within, the strategy refers to certain institutions which Southern Sudan’s Local Government Act of 2009 anticipates, e.g. the Customary Law Councils,30 as well as the Councils of Traditional Affairs Leaders to be established under separate laws (Hinz 2009a, pp. 46f). These can be used to challenge the stakeholders of customary law to amend such law in order to accommodate modern – including human rights – needs. However, experience from other African countries shows that statutory enactments with respect to customary 28 The Equatoria and the Upper Nile documents are on file with MO Hinz. 29 See here the list of contributions by the author on this topic in respect of Namibian customary law in Footnote 1 above. 30 See sections 22 and 93ff of the Local Government Act of 2009. Manfred O. Hinz The ascertainment of customary law… Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 99 The evidence we have from the application of the self-statement approach in Namibia is clearly that the traditional stakeholders that apply the law will not be prepared to sacrifice the flexibility and negotiability of customary law merely because customary law has been self-stated. As explained above, what is self- stated remains negotiable; it remains flexible; and it will eventually not be more than the wording of principles which are very open to interpretation in the negotiated adjudication of cases. This is because self-statements do not lead to the replacement of otherwise orally transmitted customary law (normative guides, principles); rather, they leave these parts of customary law as underlying codes from which the adjudicators can obtain help in resolving cases. Communities in Namibia meet regularly to discuss their customary law. For example, some have decided to avoid concrete figures in their self-stated laws when it comes to fines such as ten head of cattle for a given wrong. They have developed rules that allow for fines to be adjusted in accordance with inflation, etc. They have also discussed how to deal with a person being killed by another’s negligent driving. In other words, this means that the self-stating approach leads to interaction and discussion in communities, and creates awareness in terms of human rights and rule-of-law expectations. Ascertainment by self-stating is a process. This statement is not a mere academic interpretation, but mirrors practice. What happens in processes to self-state these laws is in line with approaching democracy as being a system of communication. One might say this is an idealistic, utopian view, unrelated to practice, but it is not. We are fully aware that power-hungry, old, conservative, or male persons might try their best to manipulate the self-statement processes. However, we have also learnt that people – only some at first, but many after some time – in the various communities are not prepared to accept what some ‘would-be kings’ try to do. The traditional communities in Namibia and in Southern Sudan live in worlds of change and pressure, which also force them to think about their own values and cultures, and the laws built on those values and cultures. Change is inevitable – and this is obliged to include the imperative to question the underlying principles of customary law! This last remark leads to a number of theoretical observations: not only observations related to the discourse on legal pluralism, but also general jurisprudential observations.36 For example, what does it mean to refer to the negotiation of law? What is negotiation of law in a customary law discourse, and what is it in a ‘modern’ discourse? Are there limits to negotiating the law? Are there limits to navigating between various laws? What is law when negotiations about it are possible? Is there a difference in the scope of negotiations when law is written or ‘only’ orally transmitted? What is the oral transmission of law? Is orally transmitted law less institutionalised than written law? All of these questions reach beyond the scope of this paper, but deserve to be answered.37 Bibliography Allott, A., 1996. International development in customary law: The restatement of African law project and thereafter. In: T.W, Bennett, and M. Rünger, edtrs. The ascertainment of customary law and the methodological aspects of this paper. The same applies to the first two concerns (see section 6), namely the logistical side of the self-statement project, and the fear about the exacerbation of ethnic differences (this would also require going into the right to culture and its practical implementation). 35 The concluding remarks also take note of the review of Customary law ascertained by Horn (2011). 36 In particular, see Menski (2006b, pp. 3ff, 380ff). 37 The author will deal with these in a forthcoming publication provisionally entitled Since time immemorial: Traditional governance and customary law. A southern African perspective. Manfred O. Hinz The ascertainment of customary law… research into customary law: Proceedings of workshop, February/March 1995. Windhoek: Law Reform and Development Commission. Bennett, T.W., 2004. Customary law in South Africa. Cape Town: Juta. Camara, F.K., 2010. La justice au Sénégal: Des tentatives pour remédier à l’opposition netre modèles autochtones et importés. In: M.O. Hinz, edtr. (in cooperation with C. Mapaure). In search of justice and peace: Traditional and informal justice systems in Africa. Windhoek: Namibia Scientific Society, 93- 114. D’Engelbronner-Kolff, F.M., 1997. Dispute resolution processes amongst the Sambyu of Northern Namibia. Maastricht: Shaker Publications. Duncan, P., 2006 [reprint of the 1960 ed.]. Sotho laws and customs. Morija: Morija Museum and Archives. Guerra, J.M., 2003. Em defensa do direito consuetudinário angolano. In: Ministério da Administração do Território, edtr. 1. Encontro nacional sobre a autoridade tradicional em Angola. Luanda: Nzila, 155-162. Hinz, M.O., 1995a. Customary law in Namibia: Development and perspective. Documentation. Windhoek: Centre for Applied Social Sciences. Hinz, M.O. edtr. (assisted by S. Joas), 1995b. Developing customary law: Self- stated laws of Namibian communities and customary law consultative meetings with traditional leaders. Windhoek: Centre for Applied Social Sciences. Hinz, M.O., 1997. Law reform from within: Improving the legal status of women in Northern Namibia. Journal of Legal Pluralism and Unofficial Law, 39, 69-79. Hinz, M.O., 2009a. More administrative justice in Namibia? A comment on the initiative to reform administrative law by statutory enactment. Namibia Law Journal, 1(1), 81-89. Hinz, M.O., 2009b. Part 1 of the Namibian Ascertainment of Customary Law Project to be completed soon. Namibia Law Journal [online], 1 (2), 109-119. Available from: http://www.kas.de/upload/auslandshomepages/namibia/ Namibia_Law_Journal/09-7/NLJ_section_10.pdf [Accessed 10 July 2012]. Hinz, M.O., 2009c. … to develop the customary law into the common law of the Sudan …. Customary law in Southern Sudan: A strategy to strengthen Southern Sudanese law as a source of law in an autonomous legal system. Windhoek/Juba: United Nations Development Programme & Ministry of Legal Affairs and Constitutional Development. Hinz, M.O., edtr. (assisted by N.E. Namwoonde), 2010a. Customary law ascertained, Volume I: The customary law of the Owambo, Kavango and Caprivi communities of Namibia. Windhoek: Namibia Scientific Society. Hinz, M.O., edtr. (in cooperation with C, Mapaure), 2010b. In search of justice and peace: Traditional and informal justice systems in Africa. Windhoek: Namibia Scientific Society. Hinz, M.O., 2010c. Justice for justice and justice for peace. In: M.O. Hinz, edtr. (in cooperation with C. Mapaure). In search of justice and peace: Traditional and informal justice systems in Africa. Windhoek: Namibia Scientific Society, 3-23. Hinz, M.O., 2010d. The ascertainment of customary law: What is ascertainment of customary law and what is it for?. In: M.O. Hinz, edtr. (assisted by N.E. Namwoonde). Customary law ascertained, Volume I: The customary law of the Owambo, Kavango and Caprivi communities of Namibia. Windhoek: Namibia Scientific Society, 3-11. Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 100 Manfred O. Hinz The ascertainment of customary law… Oñati Socio-Legal Series, v. 2, n. 7 (2012), 85-105 ISSN: 2079-5971 101 Hinz, M.O., 2011a. Traditional authorities: Custodians of customary law development? In: J. Fenrich, P. Galizzi and T.E. Higgins, edtrs. The future of African customary law. Cambridge University Press, 153-169. Hinz, M.O., 2011b. African customary law: Its place in law and legal education. Journal (Namibia Scientific Society), 59, 83-99. Horn, N., 2011. Review of Customary law ascertained. Namibia Law Journal [online], 3 (1), 133-140. Available from: http://www.kas.de/upload/auslandshomepages/namibia/Namibia_Law_Journal /11-1/NLJ_section_11.pdf [Accessed 10 July 2012]. Leonardi, C., et al., 2010. Local justice in Southern Sudan. Washington: United States Institute of Peace. Makec, W., 1988. The customary law of the Dinka people of Sudan. In comparison with aspects of Western and Islamic laws. London: Afroworld Publishing. Menski, W., 2006a. Cherrypicking customs: On what happens when custom is not taught. In M.O. Hinz, edtr. (in collaboration with H.K. Patemann). The shade of new leaves: Governance in traditional authority. A southern African perspective. Berlin: Lit Verlag. Menski, W., 2006b. Comparative law in a global context: The legal systems of Asia and Africa. 2nd ed. Cambridge University Press. Okupa, E., 2010. Is African customary law just? In: M.O. Hinz, edtr. (in cooperation with C. Mapaure). In search of justice and peace: Traditional and informal justice systems in Africa. Windhoek: Namibia Scientific Society, 341-350. Ruppel, O.C., 2010. The Namibian customary law ascertainment project and the Human Rights and Documentation Centre. In: M.O. Hinz, edtr. (assisted by N.E. Namwoonde). Customary law ascertained, Volume I: The customary law of the Owambo, Kavango and Caprivi communities of Namibia. Windhoek: Namibia Scientific Society, iii-vii. UNIN/United Nations Institute for Namibia, 1986. Perspectives for national reconstruction and development. Lusaka: UNIN. Manfred O. Hinz The ascertainment of customary law… if representatives of the community are self-stating customary law and reviewing it periodically in order to assure that the change of customs is reflected? Do these dynamics already exist? The author briefly addresses this issue in his concluding remarks (Section 7), but it would have been exciting to learn more about it in detail. 2.2. Comments / questions (1) It is not entirely clear how the author understands the term codification. On the one hand, he defines codification of customary law quite narrowly as transforming customary law into an Act of Parliament (p. 6). In the Namibian context, Acts of Parliament are exclusively acts of the national legislature. On p. 8, the author explains that “self-statement may be regarded as resembling codification, the former is not codification by organs of the state, as it is usually the case”. Here, the term codification is understood broader, encompassing all organs of the state, including those at sub-national level. In this case, one wonders whether regulations made by local authorities (see Art. 111 of the Constitution of Namibia) do qualify as codification as well? Again on p. 8 the author then elaborates that “such community-effected codification leaves the law subject to amendment by the community […]”. Thus, does this mean that codification also refers to laws of communities? Are therefore regulations at the local level that might authoritatively transform customary law into a statutory type of document are “codifications”? And at what stage institutions in Namibia are considered to be state institutions? Is it sufficient that they are mentioned in the Constitution? Do they need to be paid by the state? Some clarification in this respect would have helped to understand the arguments of the author against “codification” in a better way. (2) The customary law strategy suggests action in five areas, beginning with the ascertainment of customary law, which itself is based on a ten-step model following the Namibian experience. What is missing is a pre-assessment whether the Namibian model fits in the Southern Sudanese context in general and with regard to the different regions. What had been the pre-conditions in Namibia to make the project a success? The merits and challenges of importing foreign ideas and concepts into another legal setting are widely debated, especially in the area of constitution building. With regard to customary law, the issue is even more sensitive due to its higher dependency on specific contexts. Or, as M. Damaška (1997) put it: ‘The music of the law changes, so to speak, when the musical instruments and the players are no longer the same.’ Thus, had there been any kind of pre-assessment whether and in how far relevant parameters that has been available in Namibia are also present in Southern Sudan? Are the needs the same? Considering the ascertainment of customary law as a means to support processes of transformation (see above), is the need for transformation similar? According to C. Leonardi et al. (2010, p. 81) “[w]ritten documents have an authority in themselves in Southern Sudan, making the distinction between code and statement largely irrelevant in practice”. Did the project look into that issue as well? If yes, how did it influence the methodology of the project and the project of ascertainment? (3) At p. 13 the author introduces some findings of a report in the frame of the project suggesting to, i.a., regulate traditional courts and traditional authorities. Considering the flexibility of customary law, is it possible to regulate the institutional setting without undermining the concept as such? (4) The flexibility and negotiability are considered the strength of customary law. It would be helpful for the reader to know what kind of flexibility / negotiability the author refers to. The adjustment of fines according to inflation and context (see page 15) is something very familiar to other legal systems as well. Also the 104 Manfred O. Hinz The ascertainment of customary law… 105 negotiability is not alien to other systems. For example most cases in German labour law disputes are reconciled in front of a judge instead of settled by a judgement. Thus, in order to better understand the uniqueness of customary law in this respect, some information would be helpful. Bibliography Leonardi, C., et al., 2010. Local Justice in Southern Sudan. Washington: United States Institute of Peace. Damaška, M., 1997. The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments. The American Journal of Comparative Law, 45, 839-852 (840). Available from: http://digitalcommons.law.yale.edu/fss_papers/1576/ [Accessed 17 July 2012].