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PART I. INTRODUCTION

 

 

URBAN NORMATIVE FIELDS IN

AFRICA TODAY

 

 

 

Marie-Claire Foblets

and Filip Reyntjens

 

 

 

Many African cities are at grips with one of the most challen­ging changes in their demographic and cultural history. The increasingly heterogenous character of populations settled in urban centres has become a structural reality of the African city: important hubs of rural civilisation have been drained towards the urban centres. As a consequence of the implanta­tion of hundreds of thousands of inhabitants originating in diverse cultures and ethnic groups in the cities, as well as of the profound transformation such a move brings about in the nature of their social relations, government and judicial authorities have over the last few years been forced to recon­sider their policies in terms of a previously unknown plura­lism of disparate ethnic traditions and civilizations, a view which is better adapted to the sociological realities of the African city.

 

In 1995 approximately one third of all Africans lived in cities against a figure of 27% in 1980. The urban population saw an average increase of around 4.3% per year in the second half of the decade, a rate which far surpasses that of population growth for the continent on the whole: 2.7% for the same period. This trend allows us to project that within fifteen years one out of every two Africans will be living in a (sub)urban context. This phenomenon clearly represents a challenge to legal anthropolo­gy. As a discipline whose roots are rural, it appears to have difficulty in accommodating itself to this new situation, which nevertheless is as critical from the scientific as from the practical and political points of view. The astonishing scientific vacuum with regard to legal pluralism in the urban African context impressed itself upon us [page 2] during the preparation of the Leuven colloquium (see below).

 

The explosive heterogenisation of the urban population in Africa raises many questions regarding legal practice which have largely been ignored by the contemporary history of law in Africa. The successive waves of immigration bring together expressions of profoundly divergent and often incompatible legal cultures and therefore render the quest for an appropriate and applicable law an extremely delicate and complex process.

 

The question of the correlation between disputes linked to urban immigration and the relevant body of law is anything but simple. The available legal instruments (such as the means for dealing with conflicts of laws, the distinction between public and private law, and so forth) which normally allow one unambiguously to identify the law to be applied in situations of competition and contradiction between different legal systems are often rather weak. This is especially the case when lawsuits involve aspects touching on an established core of one or more competing legal cultures.

 

This volume presents a series of analyses supported by numerous illustrations borrowed from both state and non-state justice from across the African continent - from both Francophone and Anglophone sub-Saharan Africa as well as Arab countries such as Egypt - all bearing on the complex question of the choice of normative systems to be applied in problematic situations. The illustrations provided seek to highlight some of the specific difficulties linked, for example, to the fact that the parties to a lawsuit, whether men or women, often have a plurality of means at their disposal - depending on their access to power and the extent of their knowledge and abilities in handling such situations, in order to win their case.

 

The authors contributing to this volume have sought, each within his or her own field of expertise, to review a range of ‘trouble cases’ and to demonstrate that a consensus among disputants is, in the final analysis, the condition of the viability of the solution to the litigation. Certain authors put forward negotiated mechanisms. Here, the solution consists of leaving the choice of the legal system to be applied to the parties. The electio juris - well-known in the field of conflicts of law and jurisdicti­on - or, as the case may be, the negotiation of a right, when clearly stated, might be even better placed directly to indicate the appropriate law which in turn guarantees a greater legitimacy to the outcome. On the anthropological level, these solutions bear on the very structure of African society which produces rules of management that are both closer and more familiar to the groups in question. The present evolution of law in African cities has meant a multiplication of legal cases implying a conflict between a number of normative systems which are all potentially applicable.

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There has been no attempt in the present work to cover all the possible facets of competition between systems of law(s) in the urban context, but rather to sift out those which, in relation to the issue of legal pluralism, might constitute a significant step forward in social regulation in the contemporary African context.

 

The volume is the fruit of a collective effort initiated by the Faculty of Law of the Catholic University of Leuven in the context of the colloquium held May 26 and 27, 1995, in Leuven, Belgium, and entitled “Urban Normative Fields in Africa Today/Champs normatifs urbains en Afrique contemporaine”.

 

The colloquium was held in memory of our colleague Professor Johan Pauwels who held for many years (1971-1985) the chair in African Law at the Faculty of Law in Leuven. His doctoral thesis Rechtskeuze en wording van een eenvormige stadsgewoonte in de inlandse rechtbanken te Leopoldville (Kinshasa), 1926-1940 [The choice of applicable law and the genesis of a uniform urban custom in the customary courts of Leopoldville (Kinshasa), 1926-1940] was published in the Annales of the Royal Museum for Central Africa in Tervuren, Belgium, in 1967. This work is the result of thorough research on the origins of urban customary law in the Congolese capital Leopoldville and its suburbs under the Belgian colonial administra­tion. The study demonstrates how the rules, based on a common foundation of customary law, have been able to resist the influence of colonial law in order finally to form a complex juridical system. The origins of the urban custom are studied from two angles: from the perspective of the institutions which have created the laws, on the one hand, and, on the other, from the perspective of the factors which actually influence those who possess the power to elaborate legal rules.

 

The type of research carried out by Johan Pauwels remains fully relevant today. Johan Pauwels was a pioneer in his field. He had very quickly seen that the ever-expanding urban societies in Africa were destined to become pluralistic; time has shown how correct he was. The material sources from which law has developed over the years are also multiplying: the internationalisation and influence of Western law, intercustomary acculturation, urbanisation and the creation of new rules - to cite only a few of the possible examples - constitute as many factors which compound the problem of the diversity of laws and conflicts between them (choice of applicable law, unification of law, juridical acculturation, and so on). The relevance of Johan Pauwels’s work today lies as much with the working method he adopted as with the choice of his subject for research. His thesis was based essentially on the case law of the customary tribunals over a period of thirteen years of judicial activity from 1926 to 1940, and covers approxima­tely 3000 unpublished judgments. He describes in detail the reaction of the courts to the complex problems of the diversity of customs and the ensuing legal conflicts in a pluri-ethnic urban context which constitute [page 4] the genesis of a veritable urban customary law.

 

Considered from both from the theoretical and ethnographic points of view, the work of Johan Pauwels contains a large amount of rich data which continue to be relevant for the study of contemporary urban pluralism in Africa. One can today once again read with new interest the observations made by the author regarding the manner in which particular solutions adopted by the uniform custom in Leopoldville necessitated the development of an adequate response to both the demands of urban life as well as the problem of divergence between different customs. We reproduce, as the first text in the present volume, an article in which Johan Pauwels summarises, in French, several of the main arguments of his thesis which, unfortunately, has never been translated from the original Dutch.

 

Only circumstances quite outside our control have prevented us from publishing the proceedings of the colloquium more rapidly. The reader is now invited to (re)read here the various contributions presented at the meeting. In view of our continued interest in the subject at hand, we should be very grateful to learn if any readers of this work who might be involved in related research, or who have particularly interesting data at their disposal, might be interested in participating in our work or having their data published.

 

Finally, we have the agreeable duty of thanking the Belgian Administration for Development Cooperation (ABOS-AGCD) and the Foundation for Scientific Research (FWO) for its financial support of the Leuven colloquium. The FWO has also graciously provided a subsidy for the publication of the proceedings we present here.

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CHAMPS NORMATIFS URBAINS EN

AFRIQUE CONTEMPORAINE

 

 

Marie-Claire Foblets

et Filip Reyntjens

 

Nombreuses sont aujourd’hui les villes africaines qui se trouvent aux prises avec l’un des événements les plus bouleversants de son histoire démographique et culturelle. L’hétérogénéisation croissante de la population stabilisée dans les centres urbains est devenue une réalité structurelle de la ville africaine: des noyaux importants de civilisations rurales ont été drainés vers les centres urbains et industrialisés. En raison de l’implantation en ville de dizaine de milliers de ressortissants liés à des cultures et ethnies éparses et de la profonde transformation de la nature des relations sociales que cette implantation en ville entraîne, les pouvoirs en place et les autorités judiciaires, pour autant que ces dernières soient instrumentées, sont acculés depuis quelques années à revoir leurs politiques dans le sens d’un pluralisme inédit, de traditions et de civilisations ethniques éparses, mieux adapté aux nouvelles réalités sociologiques de la ville africaine.

 

Cette hétérogénéisation explosive de la population urbaine en Afrique, sur le plan du droit, soulève des questions d’un intérêt encore largement ignoré de la litérature sur l’histoire contemporaine du droit en Afrique. Les vagues successives d’immigration mettent en présence des expressions de civilisations juridiques profondément divergentes et souvent incompatibles entre elles et qui rendent extrêmement délicate et complexe la recherche du droit à leur appliquer.