Include African law to 'decolonise' LLB degree

‘As calls for the decolonisation of law grow louder and the country’s LLB curriculums fall under heightened scrutiny, the SA legal academy would do well to acknowledge that without a deliberate effort made to include African conceptions of law in legal education, we will fail to preserve and promote that law, and by extension, fail to cultivate legal practitioners suited to do the hard work of law in Africa.’ Gloria Chikaonda – who holds a LLB and LLM in Comparative Law in Africa from UCT, and is pursuing a PhD focusing on African legal theory, legal pluralism and customary law – notes that the question of whether there exists an African legal theory, or an African jurisprudence, has been debated for some time. In an analysis on the Daily Maverick site, she questions why the concept of law as conceived by early Africans is absent from the curriculum, and why the point of departure of African legal history is colonialism – whose very objective was to smother out any trace of so-called ‘native’ laws that did not serve the project of the control and subjugation of black people – in preference to its own legal systems. Chikaonda adds the LLB curriculum fails to trace for students how the law on the continent was used and perceived as a tool for social, economic and political cohesion. While accepting that the learning outcomes of the LLB are determined by the required skills for practise of law in SA courts, she says: ‘The disconnect that is constantly highlighted between African people and the law that is supposed to govern them stems not only from a difference found in practise and on paper, but also in the incongruence in foundational values and understandings of the definitions and role of law between the people and the state. Teaching those foundational values of African jurisprudence to future legal practitioners and legislators could be one way to help to close that gap, and help the practice and creation of law that is more reflective of African needs and the priorities of African people.’ Customary law, she says, governs the majority of African people’s private lives. Furthermore, section 211(3) of the Constitution as wells as Constitutional Court cases have recognised living customary law as a source of law for South African people. Chikaonda asks: ‘How then can we justify the neglect of African legal theory which is the basis of African customary practice (also disproportionately de-emphasised) in our legal education?’