The Codification OfAfrican Law: Customary Laws in Kenya
As noted in the earlier section on pre-colonial oathing, Africans had their
own laws prior to the arrival of the Europeans. However, in most societies these
laws were not written but were fluid and situational. These laws were not static
constructs but responses that were variable and conditional. Nevertheless, these
laws, called customary laws, were codified by the British during colonialism as a
means of control, intrusion, and invention.20 Although the customary laws were
designed to provide a colonial snapshot and recording of African law, the laws
were influx. Max Gluckman points out that "not only are customary laws
changing today but also they were subject to constant change in the pre-colonial
past.”21 The dynamic nature of these laws was also noted by other scholars on
the topic. On the history of customary law, Martin Chanock views customary laws
during colonialism as “a dialogue between the colonial state and its African
subjects.”22
Although the process of colonial law in Kenya was more interactive with
many in the colonial administration attempting to work within the perceived
subordinate African laws, the reality was that the overall process was still a
structure under colonial authority and control. The Supreme Court and the
Appeal process were all a system of the colonial administration with their own
political, social, and economic agendas.23 Some of these agendas included
20 See for example DJ Penwill, Notes on Kαmbα Customary Law, Machako District. August, 1950. Film
2804 Roll 9.
21 Gluckman, Ideas and Procedures in Africa, 9.
22 Mann and Roberts, Law in Colonial Africa, 62.
23 The legal foundations and application of the British law in Kenya during the colonial period and even
decades later is lodged in a complex structure and development that is outside of the scope of this work.
Also see Anderson, Policing the Empire, 188-189.
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