Customary and Islamic Law and its Development in Africa

This article looks at the comparative positions of Customary and Islamic law in seven countries on the African&ampnbspcontinent embracing the different influences that have affected the countries concerned. It presents a picture,&ampnbspsave perhaps in the case of Namibia and South Africa, of Customary law being outflanked by modern legal development&ampnbspbut on the other hand identifies the consistent growth and role of Islamic law. In each case, the impact&ampnbspof the constitution on the practice of Customary and Islamic law is reviewed and in each jurisdiction cases are&ampnbspidentified which highlight how national laws and legal practice absorb the impact of Customary law. Whilst both&ampnbspCustomary law and Shari’a have an influence beyond their more narrowly defined area of personal status law,&ampnbsptheir respective futures are quite different. Shari’a, as a reflection of the Islamic faith, will continue to grow and&ampnbspdevelop its position on the continent with few countries untouched by its impact. On the other hand, save in&ampnbspSouth Africa, where there has been a considerable body of diligent research, writing and codification, Customary&ampnbsplaw faces an uncertain future. The article provokes a debate as to what that future may be.