Conclusion: a research agenda
In this article, we have discussed the implications of the resurgence of traditional authority and customary law and how a role for these institutions in the governance of contemporary democratic, capitalist societies in Africa is not straightforward.
First, these systems have been severely distorted during colonial and post-colonial eras, with consequences for their legitimacy and their accountability vis-a-vis their people. Second, the context of huge money-making opportunities resulting from control of the customary system, particularly over the natural resources of the traditional community, asks for new, clear, and strong checks and balances on traditional authorities. Lastly, the context of democracy poses challenges regarding inclusivity of traditional rule and customary entitlements, and the relationship between elected and non-elected structures.While this article has described the background and some important context factors of traditional governance in modern society, it poses more questions than it answers. The challenge is to devise a system with new and operative checks and balances on its leaders. Leaders who used to be constrained in their conduct by people's mobility, now have to function in an era in which mobility is restricted and land is a scarce good. This article, therefore, ends with a plea for more attention to this question, and a research agenda that thoroughly explores what role traditional authorities play and can play in the provision of real legal certainty in contemporary democratic, capitalist societies in Africa and elsewhere. Since interactions between traditional authority and the state lead to complicated two-way reconfigurations, such research needs to pay as much attention to the state as to the traditional authorities. On the one hand, the revival and resilience of traditional institutions are very much dependent on the changing social, economic and political environment and their own responses to these changes.
On the other hand, the resurgence of chieftaincy in most cases also reconfigures that context, particularly the state, whether by its incorporation in the state, its challenge of the state, or the disengagement of some groups from the state (Englebert 2002, 61-2).Notes
1 Professor of Law, Governance and Development at the Van Vollenhoven Institute for Law, Governance and Society, Leiden Law School, Leiden University, the Netherlands, j.m.ubink@law.leidenuniv.nl.
2 Englebert (2002, 59) also notes that when traditional structures were part of the state before the changes, democratisation was likely to weaken their position.
3 A ‘Trilogy of Corruption’ Is Tearing a Community Apart; Independent Online, April 08, 2017, at http://pulitzercenter.org/reporting/trilogy-corruption-tearing-community- apart-south-africa-platinum, last visited on 12 Oct 2017. Cf. CALS (2017, 32).
4 Among some groups there is an evolution towards more ‘gender-inclusive’ traditional authority, see for instance Ubink (2011a) about the Ovambo in northern Namibia, but most traditional authority structures still have an overwhelmingly male bias. Similarly, some communities have introduced elections for traditional leaders. Van Rouveroy van Nieuwaal already shows general elections for traditional leadership positions in north Togo in a 1977 documentary (Sherea, Vorstenrechtspraak in Sansanne-Mango [Noord-Togo], Afrika-Studiecentrum/Stichting voor Wetenschappelijk Onderzoek van de Tropen).