THE ROLE OF THE LAWYER

I turn now to consider the role of the lawyer. The promotion of economic growth in the countries of Africa necessarily entails, as we have seen, revision of the laws of those countries, not merely as the consequence of economic change, but in some cases as a pre-condition for it.

The legal and economic changes we have been discussing are likely to have grave social repercussions. This is most obviously so with reform of land tenure, but it is equally the case where a right of testamentary disposition is introduced or the status of women altered, or the procedure for recovery of debts made more effective. Many of these changes involve major alterations in, or supersession of, the customary law.

Thus if we require the co-operation of lawyers for any purpose more ambitious than that of merely writing down in legal language what the economists and administrators have already decided on— and I believe most strongly that we do need more than this—we shall have to look for lawyers of a new type. The practitioner (or even the academic expert) whose legal knowledge is confined to a single system of European-type law is unfortunately not good enough; we need a person with such knowledge, but coupled with an intimate under-

standing of customary law and an appreciation of what I hope you will allow me to christen ‘sociolegal dynamics’.

Nor is it much use consulting legal experts of this type (practitioners in sociolegal dynamics!) only in the closing stages of an enquiry; they must be associated with the examination of the existing law, and the exploration of new legal structures to replace it, right from the very beginning.

What do we find in practice? So far as I can discover, none of the economic missions or commissions has had a legal member, still less one qualified in the way I suggest; from East Africa and Tanganyika to the High Commission Territories and Nigeria, it is the same story: the missions include bankers, economists, agricultural experts, technical experts, administrators, geographers—but the lawyers are strangely absent.¹

It is to this reason that I attribute some of the deficiencies (which I mentioned earlier) in the reports of these missions and commissions. The basic, correct and relevant legal information has not been presented to the mission; or, if duly presented, the inter-relations between it and the social and economic context have not been correctly appreciated and analysed. From these strictures I would except the two reports I have already referred to, both from Ghana, the one relating to company law and the other to insolvency legislation. Both strike me as being models of the way in which the historical, sociological and legal factors should be handled in any study of law reform in Africa. (I have already noted the careful way in which the Insolvency Commission attempted to dovetail its recommendations in with the customary law; equally Professor Gower in his report was much concerned with the connexion between the life of small private businesses and the custom­ary system of intestate succession by the family.) Both reports embodied relevant research into these factors, some original, some already carried out for other purposes.

It is not only the aid of specially qualified legal experts that is necessary; there must also be made available the necessary research, both into the existing law, statutory and customary, and into the specific inter-relations between that law and social and economic organization. And here I should like to quote some words of Professor Dudley Stamp.

* Apart from references already given, see: The economic development of Tanganyika (Baltimore, 1961); The economic development of Nigeria (Baltimore, >955)-

land to the best possible use, but what he says applies to legal develop­ment for economic purposes in Africa as well. There ought really to be three stages, he said:*

‘There ought first to be the stage of survey, the recording of the present position; secondly, the stage of analysis, seeking to understand the reasons for that position and of seeing what are the existing trends in development; and then, thirdly, the actual planning for the future, which must take the present and the present trends into full considera­tion. Unfortunately this concept of land-use planning is far from being universally accepted. There is an idea that surely there must be a short cut, that one can ignore the past, one can ignore the present, and go straight on to say what should be done for the future. Speaking personally I regard this as an extremely dangerous point of view....’

President Nkrumah, in a recent speech¹ at the opening of the Ghana Law School, drew special attention to the need for such research, and particularly into ‘the basic concepts of African law*. We hope that here at this School we are contributing to this fundamental research into African laws. We are also beginning, in collaboration with experts in economics, sociology and politics, to institute a series of special studies and seminars devoted to the second kind of research that I have just mentioned. In these studies we hope to explore the social, economic, political and historical factors determining or affecting the shape of the legal systems in Africa; and we have already made a start with a pilot study of the evolution and future of land law in Tanganyika. As President Nkrumah put it in the same speech:

‘The law should be the legal expression of the political, economic, and social conditions of the people and of their aims for progress.*

It is to contribute to this incarnation in legal form of the economic and social aspirations of African peoples that we are developing our own interdisciplinary studies in this new, exciting, and growing intellectual field, which we consider to be of the highest significance for the economic development of Africa today.

‘ L. Dudley Stamp, Applied geography (London, 1961), pp. 37-8.

² January 4th, 1962; reported in Journal of African Law at [1962] J.A.L. 103.