Challenge Of Judicial Practice
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Sub-Saharan Africa is not unique in the fact that many countries in the region are ex colonial possessions. In keeping with the history of countries such as South Africa, Botswana, Namibia and Zimbabwe there has been an overt reliance on the structures and norms that were established under colonial rule – at least as far as the judiciary is concerned.
For countries like South Africa for instance the influence of settler countries such as the Dutch and English has resulted in the country relying on a foundation of Roman Dutch law, for other countries in the region the same applies. Countries like Lesotho, Swaziland, Namibia, Botswana and Zimbabwe also base their legal system on the same foundations.
The question must be asked: should Roman Dutch law continue to be the basis of the legal framework given that these countries have experienced independence from colonial powers?
The answer is complex – but at its root must lie the question – does sub-Saharan Africa need, or even want the legal frameworks set in place by colonial powers that have very little knowledge of the current social and political drivers that shape the region?
The answer is both yes and no. Roman Dutch law has proven to be a robust basis for legal action and the protection of human rights.
Would these countries be best served by developing their own legal frameworks? The answer, according to many legal experts is no. The frameworks supplied by colonial powers do contribute significantly to fair and equitable judicial practice.
However – that is not to say that these frameworks should not evolve to suite the unique requirements of sub-Saharan Africa.
The uniquely multicultural nature of the societies in the countries in Sub-Saharan Africa mean that judicial practice must evolve to suit a new environment.
Societies and individuals within these countries have unique requirements – many of them with a foundation in cultural, customary and traditional law.
Several of these countries have taken this into account and included aspects of traditional law into their judicial practice. The power of traditional leaders and religious / cultural beliefs must, of necessity become part of the judicial practice of these countries. Without this approach the judiciary may fall foul of an accusation of ‘elitism’ and at the same time risk alienating many of the citizens it is sworn to protect.
However, at the same time it should be realized that there is a need for balance.
The principles enshrined in Roman Dutch law have stood the test of time. The results of judgments under this framework are accepted in most jurisdictions across the globe.
There is a delicate balancing act that must be performed. On the one hand a judiciary that adheres to proven (accepted) Western ideals of judicial judgement and on the other hand the absolute requirement to align traditional forms of judgement within a uniquely African environment.
The future of the judiciary in sub-Saharan Africa is one which will require careful navigation.