Introduction

J.M. Ubink¹

After independence, many African governments tried to curtail the power of traditional leaders ruling on the basis of customary justice systems. They saw them as remnants of colonial rule, dividing their country into ethnic tribes, and thus as impediments to modernisation and nation­building (Kyed and Buur 2007, 1).

Traditional authority and customary justice systems originated in the pre-colonial era when land abundance and mobility formed a check on the behaviour of chiefs, whose power depended on the number of their followers. Dissatisfied groups or individuals could break away from a

chief and move elsewhere. In the colonial period, these systems have been heavily distorted, largely due to their inclusion in direct and indirect forms of colonial rule. In contemporary Africa, the recent wave of recognition of traditional leadership has led to new “processes of reordering and transformation” (Buur and Kyed 2005, 15) and donor engagement with customary justice systems has been critiqued for increasing inequality through the imposition of elite versions of customary justice.

It is now quite commonly accepted that customary law and traditional rulers are here to stay. In fact, in many countries, they are the main providers of access to justice, and thus of real legal certainty (Otto 2000a) for their citizens. However, traditional authority and customary justice systems now function in very different contexts, characterised by capitalist economies instead of subsistence economies, as part of broader nation states with democratically elected leaders and often democratically elected local government. They are committed to inclusiveness, such as regarding women. They function in a strongly globalised world. This confluence of tradition and modernity leads to all kinds of pertinent questions: How do non-elected traditional authority structures relate to and coexist with elected, decentralised local government structures? Can male-elderly leadership based on ethnicity—which is still the norm in most traditional rule systems—be reconciled with the idea of inclusive democracy? How do customary justice systems that used to regulate communal resources in pre-capitalist societies operate in capitalist societies where access to land and natural resources provide huge money­making opportunities? What role do international entities and norms play in the regulation of customary justice systems? One can think here for instance of the influence of large foreign mining or biofuel companies on land relations, but also of corporate social responsibility norms and international human rights norms on local processes and negotiations.

This article aims to analyse these questions through a study of the continuing relevance and even resurgence of traditional authority structures and customary justice systems in capitalist, liberal democracies in Africa. It is organised as follows. In the next section, the article describes the resurgence of tradition that took place in Africa since the 1990s. It then provides an overview of colonial and post-colonial distortions to traditional rule, the latter resulting from both governmental recognition and donor engagement. Then the article turns to the present-day context in which these ‘traditional’ institutions are to function, focusing on democracy and capitalism. In its conclusion, the article appeals for a research agenda to more thoroughly explore what role traditional authorities can play in contemporary democratic, capitalist societies.