A resurgence of traditional authority and customary law
Since the 1990s, traditional authority in Africa has experienced a resurgence. Numerous African countries have enhanced or formalised the position of traditional leaders in constitutions and legislation, past kingdoms have been restored, and Councils or Houses of Chiefs have been created.
Englebert (2002, 54) sees in these and other unionlike structures—that have also forged international links amongst themselves—“the rise of chiefs as a class.”The resurgence of chieftaincy has sometimes been connected to weak or failing states, with traditional leaders seen as “the only remaining and functioning form of social organization” (Lutz and Linder 2004, 4). In reality, however, the level of resurgence of tradition seems to be quite low in weak states. Rather, it is relatively strong states with a functioning state apparatus that have witnessed some of the furthest-reaching restorations, alongside democratic local government institutions (Englebert 2002, 568; Kyed and Buur 2007, 5-8). Governments may decide to formalise or enhance chieftaincy for various reasons: (i) to expand and improve the chiefs' role in local service delivery and execution of administrative and governmental tasks; (ii) to better reach the local populace via the chiefs' intermediate position between the government and the local population, and to use its mobilising potential for developmental and democratic projects; (iii) to prevent resistance against state measures from reluctant or antagonistic chiefs; and (iv) to strengthen government by integrating tradition into the space of governmental power as a symbolic, legitimising discourse. In sum, the restoration or enhancement of chieftaincy is hoped to make the state more relevant, legitimate, and effective (Ubink 2008b, 13-15). In addition to these rather benign motives, governments (and political parties) may also pursue chiefs for more political and economic motives (i.e., hoping for help with bringing in the rural vote and gaining access to local natural resources via the position of the chief).
The resurgence of chieftaincy has been aided by democratisation, decentralisation, and liberalisation. These processes have opened up new public spaces for traditional leaders and their involvement in law enforcement, dispute settlement, service provisioning, and development programming. In addition, these processes distanced the state from the people, which facilitated the resurgence of tradition as an alternative mode of identification (Buur and Kyed 2007; Englebert 2002, 58-60; Ubink 2008b, 14). In some cases, democratisation rather threatened chiefly rule, because ofchiefs' ascribed positions and through competition with elected local government. Even then, chiefs' responses to these challenges may raise their salience, as Englebert (2002, 58) shows for Kwazulu-Natal.2
Foreign aid was a leading factor in the push for democratisation, decentralisation, and liberalisation. In addition, donor organisations and international institutions started to display a renewed interest in traditional leaders, whom they saw as suitable, legitimate local counterparts with the capacity to mobilise their population. This is visible from the increasing interaction between donors and chiefs, the attention to traditional authorities at donor-sponsored conferences, as well as the actual involvement of chiefs in development programming and the provision of grants directly to traditional funds (Englebert 2002, 60; Ubink 2008b, 11).
A resurgence of traditional rule implies a recognition of customary law, as the normative system upon which chiefs base their administration and dispute settlement. In the 21st century, we also see an increased interest in customary law in legal development cooperation. In the early 1990s, law regained an important role in development cooperation. Rule of law programming first largely focused on state legislation and formal institutions such as the judiciary, courts, prosecutors, and police (Carothers 2006; Trubek and Santos 2006).
When it became increasingly clear that interventions in this “rule of law orthodoxy” (Upham 2002, 75) had limited impact on development, the blame was laid, inter alia, on the top-down character of law reform projects, their minimal consideration of local contexts, and donors' focus on state institutions and norms (Van Rooij 2012). Responding to these critiques, legal development cooperation then shifted course and aimed to base rule of law programming on the poor's needs and preferences. This included a focus on the users of justice systems rather than legal institutions—embodied in terms such as ‘access to justice' and ‘legal empowerment'—as well as an increasing interest in working with customary justice systems.In the field of transitional justice, we see a similar evolution. Transitional justice interventions are increasingly critiqued for their top-down, externally driven approach, detached from local realities and with limited impact on local populations. This resulted in a search for more participatory, bottom-up strategies responsive to local needs and perceptions (Horne 2014; Lundy and McGovern 2008; Robins 2012; Sharp 2013; Ubink and Rea 2017; Waldorf 2006). This new approach emphasises that the legitimacy and effectiveness of transitional justice mechanisms rest on their embeddedness in and resonance with local norms, values, and rituals (Baines 2010; Oomen 2007). As a result, it advocates the inclusion of customary justice mechanisms in transitional justice approaches.
The above shows that there is an increased realisation among African governments as well as international donors that traditional leaders and customary justice systems will remain relevant in contemporary African states, with a role in both local governance and national politics, as well as rule of law and transitional justice programming. But these systems, which have their origins in the pre-colonial period, have been heavily distorted in the colonial and post-colonial era, and now function in very different contexts, The following two sections will discuss these aspects. The next section describes the way traditional rule was distorted during the colonial and post-colonial period. The section that follows describes the impact of the context of present-day democratic, capitalist states on the position and functioning of traditional rule.