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NCJ Number: 78543 Find in a Library
Title: Role of the Contemporary Judiciary in the New States of Africa South of the Sahara
Journal: International Journal of Comparative and Applied Criminal Justice  Volume:5  Issue:1  Dated:(Spring 1981)  Pages:99-105
Author(s): J S E Opolot
Date Published: 1981
Page Count: 7
Format: Document
Language: English
Country: United States of America
Annotation: To further the integration of African criminological studies within a broad comparative and culture-bound framework, this paper summarizes the precolonial, colonial, and postcolonial judicial policies and practices of countries south of the Sahara that were former colonies of England, France, Belgium, Portugal, Italy, Germany, and Holland.
Abstract: Prior to European intrusion, criminal justice was dispensed in the native societies according to two distinct systems -- the Islamic Sharia, applicable to the Muslim Arabs, and the customary rules of the various Berber tribes. Among the latter, small-scale societies had legislative and enforcement powers vested in the person of the chieftain, while large-scale kingdoms such as Uganda, Nigeria, and Ghana delegated law enforcement to functionaries responsible to the ruler. Following colonization, the legal institutions of the indigenous societies were replaced officially either by civil (Roman) law or common (English) law, depending on the legal traditions of the colonizing power. Roman law relies on extensive prescribed codes and even common law, despite its reliance on custom and precedent, is bound by superimposed legislative law. Thus, both traditions separate the legislative and judicial functions in contrast to indigenous practices. All the colonial powers introduced dual court systems with separate courts for the native population and for the nationals of the colonizing power. The colonial administrators faced problems such as lack of qualified personnel and cultural conflict. These problems precluded common understanding of European concepts such as 'reasonable doubt,' 'presumption of innocence,' 'punishment,' and 'imprisonment,' as well as the African ones of 'cleansing,' 'ritual murder,' 'compromise,' 'collective responsibility,' and 'restitution.' Postcolonial changes, contrary to expectations, brought few innovations to judicial practices, apart from Africanization (the replacement of expatriate with native officials). Currently, most of the court systems have little autonomy, respect of the population, or integrity. The people's attitude toward the judicial system reflects their traditional proclivity for normative rather than prescriptive law. The paper concludes that African leaders should make more use of social scientists for information on the lifestyles of their populations for policymaking purposes. Seventeen footnotes are included.
Index Term(s): Africa; Common law; Court structure; Cultural influences; Political influences; Social change; Socioculture; Tribal court system
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=78543

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