Legal Pluralism in Post-Colonial Africa: Linking Statutory and Customary Adjudication in Mozambique

Abstract

Legal pluralism - defined as a situation in which "more than one legal system operate(s) in a single political unit" - is a practical reality in a large number of countries in the world, most notably in the post-colonial states of Africa. These newly-independent states are grappling with how to preserve the cultural heritage reflected in their customary law and institutions, even as they attempt to function as modern constitutional regimes.' Many of their constitutions preserve a role for customary law or recognize the inevitability of legal pluralism in the state. But few have found a functional and effective way of implementing legal pluralism or, more specifically, defining the relationships between the pluralistic institutions. This Article attempts to define the challenges and opportunities associated with linking statutory and customary adjudication. In order to assess the various approaches to the problem, it is necessary to evaluate the appropriate goals and purposes of legal pluralism, distinguishing the motivations of many who have exploited pluralistic systems for their own self-interest. It is also necessary to recognize and preserve the virtues inherent in customary systems, which have been historically undervalued as "primitive," and remain under attack by those who see them as a threat to the protection of human rights. Striking these balances to implement legal pluralism in Mozambique presents serious, but by no means unique, challenges. Mozambique's current situation serves as a case in point for application of the principles developed in this Article.