Colonial and post-colonial distortions to traditional rule

Colonial interaction and interference with traditional rule systems

Traditional rule systems in pre-colonial societies varied widely, but usually, the power of chiefs was circumscribed by a council of elders, representing the major factions ofthe community, whose support the chief needed to make important decisions.

While careful not to conjure up an imaginary past of equitable, well- balanced, inclusive traditional communities—a version of history convincingly refuted for instance in McCaskie's oeuvre (including McCaskie 1992, 1995, and 2000) about the Ashanti Kingdom—it is undisputed that colonial rule watered down the existing checks and balances. Chiefs' positions became dependent on colonial recognition. As a result, the local attachment of the chief and his final accountability to his community gave way to his responsibilities and loyalties towards the government. Colonial governments also distorted the traditional checks and balances in other ways. A case in point is the abolition of the position of Nkwankwahene, the elected representative ‘chief' of the commoners, by the Ashanti Confederacy Council—supported by the British—in the 1940s in the Gold Coast (present-day Ghana).

While under colonial rule traditional leaders lost their independence and found some of their powers circumscribed—prominently among those their ‘judicial’ powers—they also became more powerful vis-a-vis their subjects. They were given new tasks by the colonial governments regarding labour (the recruitment of contract labourers in countries with white settlers and the organisation of communal labour for infrastructural and other projects), taxation, compulsory crop cultivation, and/or recruitment for the army. Such delegated tasks made the chiefs unpopular and negatively impacted their local legitimacy (Crowder 1978). For instance, in South-West Africa (present-day Namibia), the German occupiers concluded treaties with traditional leaders in the north of the country for the recruitment of contract labour for German-owned mines and commercial farms. This brought enormous material benefits to the chiefs “who employed their absolute authority to maximize their profits” (Keulder 1998, 39-40). Contract labour also contributed to the breaking down of traditional norms and authority because returned labourers, influenced by the European life and with money in their pockets, increasingly questioned the local political, social, and economic order in their home communities (Soiri 1996, 40-42). In the last stages of colonialism, during the height of the struggle for independence in Africa, traditional authorities were mobilised to oppose full independence and the educated African elite fighting for it, which again diminished their local standing and legitimacy.

Another consequence of colonial interference was the marginalisation of women in traditional rule. The colonial rulers’ gender ideology was not in consonance with the existence of powerful women. Further, they perceived a strong need to maintain the authority of male elders over women and youth to ensure social order and stability (Merry 1991). This extended to the colonial governments’ relations with traditional leaders. Becker (2006, 178) describes how in the Owambo kingdom of Ongadjera (present-day Namibia), colonial tribal authority “evolved into all-male domains,” when women leaders were all but purged from the local traditional arena and women were largely excluded from participation in traditional courts.

Post-colonial interaction and interference with traditional rule systems

Recognition

The above makes abundantly clear that colonial rule had a considerable impact on non-state normative orderings. Also in post-colonial Africa, the regulation of traditional authority structures and customary justice systems is intertwined with questions of political power and state sovereignty, control and subjugation, and integration and exclusion. The increased recognition of customary norms and traditional institutions is informed by political interests. It provides governments with an opportunity to consolidate local power and mobilise votes, to form or strengthen alliances with strategic local actors, and to increase the reach, relevance, and popularity of the state through linkages with the traditional rule system. State recognition of non-state normative orderings never entails a wholesale acceptance of these systems without conditions or exceptions. It is usually partial, conditional, and meant to make the customary order governable, subordinate, and in line with certain normative values of the state. Particularly in weak states, a role for the state in the recognition of chiefs and the determination of the ‘real’ chiefs can be an important part of the production of the state as a legitimate authority (see, for instance, Buur and Kyed 2005, 19; Kyed 2018; Seidel 2018; Leonardi et al. 2011).

Recognition is not without dangers to the traditional institutions, as alignment with states with limited legitimacy may impact negatively on them, and a role for the state in the determination of the rightful traditional leaders may diminish the flexibility of the position (Buur and Kyed 2005, 26; Ubink 2018b). Nevertheless, non-state actors are often interested in policies of recognition and the forging of stronger ties with the state, which they aim to use to consolidate and expand their power. Opportunities to do so manifest themselves when no attention is given in the recognition process to local checks and balances, i.e., to regulating the relationship between the traditional leaders and the community members. For example, when Mozambique introduced legislation in 2000 (Degree 15/2000) that recognised local leaders as community authorities with a wide range of tasks—including administrative and governmental outreach, nation-building, rural development, civic education, and upholding local customs and cultural values—the Decree stated these tasks should be carried out with participation from community members, but omitted any mention of the terms for the relationship between chiefs and community members. Buur and Kyed (2005, 15) condemn such oversight as “[b]ased on a social ontology of unproblematic group ties”. Another example can be found in the Traditional and Khoi-San Leadership Bill in South Africa. This Bill proposes to give traditional councils wide powers to enter into partnerships with “any person, body or institution” (including mining companies) with no obligation to obtain the consent of, or even to consult, the people whose land rights and lives are the subjects of such partnerships.

The neutral term recognition—which implies wholesale acceptance of existing norms and structures—thus masks state intervention, regulation, and reform, and will inevitably entail a reordering and transformation of authority and power (Buur and Kyed 2005, 15; Kyed 2009, 89; Ubink 2018a; Weilenmann 2005, 5).

Donor engagement with non-state normative systems

We described above how legal development cooperation is increasingly focused on customary justice systems. This engagement, however, often profoundly affects the nature and functioning of these systems. Approaches and expectations of donors and development agencies do not often allow for the amount of research required to gain in­depth knowledge of unwritten customary justice systems, with their geographical variation and local contestation, and local power relations (Harper 2011). Furthermore, development agencies' imperatives of measurable outcomes, quality control, and working at scale leave little leeway for differentiation on the basis of variances in local contexts and their inherent complexities (Sage and Woolcock 2006, 4-9). In addition, donor and development agencies often lack knowledge about the different versions of customary law, the negotiable nature of customary justice, and the power differentials involved in defining customary law (Ubink 2018a). With local ownership seen as an important prerequisite for local legitimacy and acceptance, development programming often works through local actors. Uncritical acceptance of traditional authorities as community representatives and custodians of customary law, however, overlooks contested versions of customary law in the locality and may lead to the adoption of a male-elderly elite representation of customary law (Ubink and Van Rooij 2011). For example, the heavily donor-sponsored Land Administration Programme in Ghana was designed to provide greater certainty of customary land rights for ordinary users (World Bank 2003). However, the programme's focus on chiefs as the administrators of land provided chiefs opportunities to centralise land transactions management and the recording ofland rights. In the end, the programme “sanctioned] their ability to generate substantial profits from the disposal of land, over which the original land users exert legitimate claims.

Also in the field of transitional justice, reality has proven complicated, and programming that aimed to include customary justice mechanisms has received heavy criticism for operating from a myth of community consensus and ignoring, and as such entrenching and reproducing power differences within communities. Branch (2014) coins the term ‘ethnojustice' for this phenomenon when describing the donor and government-sponsored retraditionalisation that took place in northern Uganda through the imposition of a male-dominated version of customary justice.

‘Traditional’ institutions in present-day society

Several African countries envision a continued role in their contemporary nation-states for traditional authorities and customary law. States' interest in formalising traditional leadership may stem from ideas of state efficiency and legitimacy; from political considerations regarding a class of sometimes quite powerful actors possibly with influence over the rural vote; and from economic considerations about traditional leaders' access to natural resources. Arguments often include that rural inhabitants have little access to state courts and bureaucracy and will thus benefit from a recognition by the government of their local leaders, dispute settlement institutions, and normative systems.

However, as this article describes, traditional authority and customary justice systems originally functioned in a pre-capitalist, pre-nation state era, and have been severely changed and distorted during the colonial and post-colonial eras, and lost much of their legitimacy as a result. This implies that a central role for such institutions in contemporary Africa is not straightforward. The following two subsections analyse two contemporary contextual factors that impact the functioning of traditional justice institutions: capitalism and democracy. This next section studies how customary justice systems respond to large-scale economic opportunities in capitalist countries; the section that follows explores how inclusive democracy relates to traditional authority systems with elderly male leadership based on ascription.