Family Law in Pre-‐colonial Kenya
• Various communiGes had fairly sophisGcated forms of family law
• The family law of various communiGes (pre-‐colonial social formaGons)
• These customs form the basis of Customary Law sGll applied to date
As we were minding our own business…
• European capitalism and imperialism interrupts pre-‐colonial social formaGons
• Change in character of the arriving Europeans – Missionaries (Livingstone, Krapf, etc) – Explorers (Speke, Grant) – Traders (Mackinnon, Cecil Rhodes, etc) – …and finally, imperialists (Carl Peters, Johnston, etc)
• Or was it really a change?
What led to the Scramble?
• Unrest and reorganizaGon in conGnental Europe • Industrial RevoluGon • German empire is formed, defeats France & takes some of its territory… France then turns to Africa
• Aber 1880, Germany and France threaten GB’s commercial lead (France and Germany were taking up colonies in Africa…)
• Racist ideology couched in the “Civilizing Mission” policy
• All this culminated in the the Berlin Conference
• The Berlin Conference (1884-‐5) systemizes the Scramble
• A Grade of treaGes follow that in effect draw up the borders of various states
• EvoluGon of interests: Spheres of influence protectorate colony…
• On 15 June 1895, Britain declares a protectorate over this territory and calls it BriGsh East Africa
Post Berlin…
Governing BriGsh East Africa
• How do you govern new territory? • East Africa Order in Council of 12th August 1897 – Recep.on Clause in the EA OIC “received”:
• The substance of English Common Law • Doctrines of equity • Statutes of General ApplicaGon in force in England as at 12 August 1897 (Recep.on Date)
– The clause was later incorporated into Kenyan Law vide s3(1) of the Judicature Act
S3(1) Judicature Act: LegiGmizing Colonialism?
(1) The jurisdicGon of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with— … (c) subject thereto and so far as those wrimen laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general applica.on in force in England on the 12th August, 1897, and the procedure and prac.ce observed in courts of jus.ce in England at that date:
Provided that the said…shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualificaGons as those circumstances may render necessary.
Sources of Law Judicature Act Sources – ConsGtuGon – All other wrimen laws – Substance of common law, Doctrines of equity, Statutes of general applicaGon, Court pracGce & procedures
– African Customary Law
ConsGtuGonal Sources – InternaGonal Law (ArGcle 2(5) and (6) – Islamic Law (ArGcle 170(5))
(1) The jurisdicGon of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with— (2) The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parGes is subject to it or affected by it, so far as it is applicable and is not repugnant to jus.ce and morality or inconsistent with any wriJen law, and shall decide all such cases according to substanGal jusGce without undue regard to technicaliGes of procedure and without undue delay.
Sources of Law: The SubjugaGon of ACL
ArGcle 170 (5) ConsGtuGon of Kenya 2010
Sources of Law: Islamic Law
(5) The jurisdicGon of a Kadhis’ court shall be limited to the determinaGon of quesGons of Muslim law relaGng to personal status, marriage, divorce or inheritance in proceedings in which all the par.es profess the Muslim religion and submit to the jurisdic.on of the Kadhi’s courts.
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