Transformative constitutionalism: Courts’ role in bridging the public-private divide of law and transforming African customary law

Gayoye, Martha

Abstract

African customary law (ACL) is an important legal system that regulates the lives of many people. The colonial origins of this body of law meant that it hasn’t always served the justice needs of Africans. Coloniality and Upendra Baxi’s postcolonial legalities are useful to make sense of ACL, particularly settler colonialism. This paper is focused on the gendered implications of ACL, particularly male primogeniture. The paper examines the application of repugnancy clauses, and the treatment of male primogeniture in seven former British settler colonialisms in Southern, Eastern and West Africa – namely Zimbabwe, South Africa, Kenya, Uganda, Tanzania, Ghana and Nigeria. The various cases discussed show the historical gendered implications of ACL, the contradictory or absurd applications of repugnancy clauses, and its evolution under new constitutional orders and judicial reforms in the last two decades.

Citation

Gayoye, M. (in press). Transformative constitutionalism: Courts’ role in bridging the public-private divide of law and transforming African customary law. Oñati Socio-Legal Series, https://doi.org/10.35295/osls.iisl.1976

• Journal Article Type: Article
• Acceptance Date: Jan 15, 2025
• Online Publication Date: Jan 20, 2025
• Deposit Date: Jan 31, 2025
• Journal: Oñati Socio-Legal Series
• Print ISSN: 2079-5971
• Publisher: Oñati International Institute for the Sociology of Law Foundation
• Peer Reviewed: Peer Reviewed
• Series ISSN: 2079-5791
• DOI: https://doi.org/10.35295/osls.iisl.1976
• Public URL: https://keele-repository.worktribe.com/output/1053471
• Publisher URL: https://opo.iisj.net/index.php/osls/article/view/1976