CUSTOMAR LAW FORMULATION IN TANZANIA AND ELSEWHERE

Posted here on 1st October, 2012.

Comments from Professor Khan on the question of changing, repealing and/or amending customary laws anywhere in the world

 

CUSTOMARY  LAW   FILE

(Advice from Prof Abdul  Rayees  Khan on changing/modifying customary laws)

Basing on MANEKA GANDHI v UNION OF INDIA (1978) 2 SCR  621  compared toTanzania’s  ELIZABETH STEPHEN  & ANOR. v A.G., HCT (DSM) 2005 (Unreported).

1.       Is the court right in refusing to enforce the Customary Laws of Tanzania because of a few human rights conventions (judgments of foreign courts?)

2.       Who is the proper person/authority to change a customary law (the people themselves/community in a certain area).

3.       Juristic idea of a custom is a practice of usage/habit of the people and assumes the force of law when recognized and enforced by the courts. As was the case with the common law of England.

4.       At the international level, customary law is one of the components of international law and is evidence of the rules of law.  It emanates from habits of the states.

5.       In certain jurisdictions, customary laws are recognized in respect of various sections of the society e.g. the courts have customary laws known as Conventions of the Judiciary.  Merchants have their own customary laws (The Law Merchant).  The various societies, associations, organizations have customary laws which regulate their discipline of various sections.

6.       As far as the question of amending or repealing a customary law is concerned, it all depends upon the legal character of the society, e.g. in Britain there is Rule of Parliamentary Supremacy because of which it is possible for the British Parliament to do away with any custom, a habit of any section of the society.

7.       Of course Customary Law is at the mercy of a sovereign legislature.

8.       At the time there is a dispute whether to apply the existing customary law or not, it is not proper for the court to refuse to enforce it and suggest that the local authority has to make a law like the customary law because no customary law is made by a local authority.  It is made by the people/the inhabitants themselves, the users.

9.       Any local authority is a statutory body; therefore a political body.  It gets elected to power and can be removed by the electorate.