The name is absent

removing and replacing aspects of African law practices. For example, African
pre-colonial laws involving certain ordeals were considered primitive; these
ordeals included practices such as using a hot knife to determine guilt.²⁴ As a
result, there was an effort to phase out these less civilized practices from African
law under colonialism.

This treatment of pre-colonial African law raises questions about the role
racism played in colonial law making. Various scholars have had interpretations
on this dimension. Mahmood Mamdani holds that:

“...Ethnicities were in dire need of being civilized....The colonial state divided
the population into two: races and ethnicities. Each lived in a different legal
universe. Races were governed through civil law. They were considered as
members, actually or potentially, of civil society. Civil society excluded
ethnicities. If we understand civil society not as an idealized prescription but
as a historical construct, we will recognize that the original sin of civil society
Undercolonialismwasracism. Ethnicities were governed through customary
laws. While civil law spoke the language of rights, customary law spoke the
language of tradition, of authenticity. These were different languages with
different effects, even opposite effects...The language of custom, in contrast,
did not circumscribe power, for custom was enforced. The language of
custom enabled power instead of checking it by drawing boundaries around
it.”²⁵

Mamdani’s comments add layers of complexity while showing the limitations of
the law. African law during colonialism was a battleground for new constructions
that involved Europeans, Africans, and also Indians. The legal system, although
imposed on the Africans, was a system that they participated in to satisfy their
own aspirations. For example, throughout colonial Kenya, gender was contested,
reconstructed and negotiated; the body, actions, and movement of women were
an area of constant debate. As a result, there were many related laws and court

²⁴ Mann and Roberts, Law in Colonial Africa, 33. See Lindblom on The Akamba, sections on Ordeals.

²⁵ Mahmood Mamdani, “Beyond Settler and Native as Political Identities: Overcoming the Political Legacy
of Colonialism,” Comparative Studies in Society and History 43.4 (2001): 651-664, 655.

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