Reforming the African Union
Since its founding, the African Union has conducted its activities behind closed doors and remains an elite club of undemocratic rulers and handpicked bureaucrats with no accountability to the people in whose name the continental organization was established. This is an unelected bureaucracy.
In accordance with Article 4 of the Constitutive Act, which grants the African people participatory power in the African Union, this initiative seeks to:
1) Transform the Pan-African Parliament into a democratic African Parliament whose members are directly elected by the African people from each AU state,
2) Make the AU Commission an African Commission headed by a chief executive and key officials vetted, elected and overseen by the African Parliament,
3) Expand the jurisdiction of the African Court of Justice to include crimes against humanity, economic crimes and other high crimes AU state governments are unable or unwilling to prosecute, and
4) Establish an African military vetted and overseen by an elected African Parliament to restore and maintain security or avert imminent danger to the public in any part of Africa where a state government is unable or unwilling to protect and defend its people.
African customary law
That may occur through "normative recognition" in which state institutions recognize substantive customary and, or, religious laws as law, and/or through "institutional recognition" in which the actions of customary institutions are considered enforceable. This form of legal pluralism, the origins of which are traced to 1772 British India, arrived in Africa with European colonialism.Prior to that, customary laws governed all affairs of the people of Africa.
Customary laws are local in nature and jurisdiction over such laws and the institutions that administer them were historically ascertained on the basis of membership in a group.This meant that the affairs of the over eight hundred ethnic or linguistic groups on the continent were governed by an equal number of different customary rites. With the arrival of the Europeans, various groups were combined within territories formed along arbitrary lines and subjected to laws and institutions that operated along the lines of these newly created territories. Although not completely eliminated, the reach of customary laws and institutions was greatly diminished as their application was relegated to instances where the formal state-sanctioned laws allowed.
This gave rise to laws defining the occasions and manner in which customary laws would be applied. For instance, in Nigeria, this was first done through the Supreme Court Ordinance of 1876 of the Colony of Lagos. This law did two things: (1) it addressed the standard problems that resulted from having more than one law applying in a given jurisdiction; and (2) it defined the parties and subject matter that would be governed by customary laws. Significantly, it introduced a test (widely known as the repugnancy test) for the application of customary law, which provides as follows:
Nothing in this Ordinance shall deprive the Supreme Court of the right to observe and enforce the observance, or shall deprive any person of the benefit, of any law or custom existing in the said Colony and Territories subject to its jurisdiction, such law or custom not being repugnant to natural justice, equity and good consciousness, nor incompatible either directly or by necessary implication with any enactment of the Colonial Legislature existing at the commencement of this Ordinance, or which may afterwards come into operation.
After independence, African countries by and large continued the limitations imposed on the application of customary laws. For instance the Judicature Act of Kenya, the law governing the application of customary laws, states:
"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 parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law . . . ."
Nigeria's Federal Evidence Act and Supreme Court Act as well as state laws impose similar limitations. Although their application is limited, customary laws and institutions continue to play a significant role in the lives of large segments of the population in African countries.
This is because the limited subject matter areas they govern (including matters of personal status, property, and traditional authority) are those that impact greatly the day-to-day lives of the people. Significantly, for large segments of the African population, especially in rural areas, customary laws and institutions are the only available means of conflict resolution. Library of CongressImported and imposed law
Memar Ayalew Demeke, Addis Ababa Science and Technology University
International Journal of Political Science and Development
Postcolonial Africa has experienced three generations of constitutions since independence. These founding documents were imposed by, or copied from, former colonial powers. They were detached from African cultures, values and traditional political institutions. In addition, ordinary citizens were not widely involved in the making processes.
As a result, the constitutions lacked legitimacy and became a centre of political contradictions and causes for intra-state conflicts by dividing and polarizing the society apart than consolidating peace and stability.
Historical sources indicate that since time immemorial and human origin, there were rules and practices, written or unwritten, which governed the behavior of individuals within their communities for the sole purpose of promoting and maintaining peace and social harmony. In modern times, every “state”, being democratic or authoritarian in nature, has adopted rules and principles expressed in the form of a constitution to guarantee the rights and impose the obligations of their citizens as well as to determine the organizational structure and roles of political institutions.
Postcolonial Africa has seen three generation of constitutions (Shivji, 2009). These constitutions were mainly imposed by external powers at the time of independence. In addition, the African society was not actively participated in the various stages of constitutional making processes. Like colonial and post-colonial states, these constitutions were totally, if not partly detached from the historical realities of the African continent (Clapham, 2000); rather they imposed western liberal values on the body of African politics.
More importantly, the adoption and execution of these imported constitutions by African leaders was not primarily to benefit the African society and to ensure sustainable economic development; but they were used as an instrument to consolidate power and legitimacy (Olown, 1994). Besides, African leaders used them as a foreign currency to purchase international support to be labelled as democratic and progressive leaders.
Hence, it created a polarized state-society relationship; and opening rooms for the emergence and outbreak of civil wars across the continent. In fact, intra-state conflicts have been the defining feature of many African countries following the collapse of the Cold-War bipolar international system.
More importantly, the imported post-independence generations of constitutions have deepened social fragmentation by instituting antagonistic power relations within the society. Therefore, this paper makes an attempt to demonstrate their role in generating and promoting intra-state conflicts in Africa. Google+.