LEGAL SYSTEM AND CONSTITUTIONAL LAW

IN EAST AFRICA I
COURSE CODE; LAW 100
Part B
LLB 1 CUoM Handouts
Prepared
By
Madam Elizabeth R. Kaunda
 Topic 1
Part B; Legal systems of East Africa
Introduction; Meaning of Legal system
There is no single definition of the term legal system, few have define it;
LONGMAN BUSINESS DICTIONARY;
Legal System; Is the structure of the laws and the institutions and the people that
make them work in a particular country.
• ROOSEVELT BRACKLON; In his book Legal system and its classification in
the world defined Legal system to mean; ; is the structure of the government
showing which organ is powerful to the other, it stipulates how the people and
institutions are composed, the law making process and the rule of law,
interpretation and implementation of the laws.
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BLACKS LAW DICTIONARY; Legal system is; Is the jurisdiction
basis of applying the law either the Constitution oral or written, primary
legislations, traditional practices upheld by the courts applying the existing
legal structures such as civil, common law, religious, or other code of law
as source of such principles of practices.
CAMBRIDGE DICTIONARY; Legal system; Is the systems of laws
and the way they work in a particular country.
 Elements of legal system
• This provides for the criteria determining the kind of legal system applicable in that
country. These elements are;
1. Structure of the government
2. Sources of law applicable in that country
3. Structure of the judiciary (adversarial or inquisitorial and court tire system)
4. Historical perspectives of the country (its colonial features, development of such
legal system in the country)
 Classification/types of legal systems
• There are six types of legal systems in the world which are;
1. Common law legal system
2. Civil law Legal system
3. Socialist legal system
4. Customary law legal system
5. Religious legal system (Islamic and Christianity)
6. Mixed legal system/ Hybrid legal system/Prularistic
 the most practiced legal systems are Civil law legal system, Common law legal system, Socialist
legal system and Religious legal system
 Common law legal system
• The Common law legal system is commonly known as the English Law
Legal system or the Anglo-Germanic legal system. It operates in England,
Wales and some of countries in Continental Europe, also in most of
countries colonized by Britain also applies or have adopted the features of
Common law legal system.
 Historical Background
• The origin of common law legal system is from the Anglo – Saxon customary rules
in medieval period after the Norman Conquest in 1066. Before coming of the
Emperor William the Conqueror in 1066 in England, the primitive legal system in
England existed where the laws nurtured were mainly customary rules and written
laws which were codes of laws compiled by the Anglo Saxon Kings.
• The country was divided into shires and hundreds where into such divisions of
country had their communal courts. The courts employed or applied the customary
rules and written laws which were established by the Anglo-Saxon kings.
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• In 1066, William of Normandy conquered England establishing feudalism and a
strong central government legal system. At first William and his Co-Norman Kings
ruled England using the existing local courts and other institutions. But later
William began to change his administration and started to send the administrative
officers and royal officials throughout the country to discharge administrative and
judicial functions.
• Such new system of ruling enabled William the Conqueror to control the country
better because the royal officers sent in the shires and hundreds to try or hear cases
by using better methods compared to the communal courts. Due to such new
methods employed by royal officials the communal courts demised a natural death.
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• Later on King Henry II in the period of 14th -15th Century applied the
development made by William the Conqueror to consolidate powers and
establish new institutions with royal authority and justice. New orders in
form of writs (laws were enacted and documented).
• Started to operate in other courts established by the King, such laws enacted
was the result of gathering all the customs and norms of every community
and which were agreed to be binding and having legal force. Though such
laws were effectively but they were so strict and thus made the Kings and
courts to establish the laws of equity.
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• The doctrine of equity or the laws of equity developed in early 15th C which come
to harmonize the hard laws of common law.
• Later in 19th Centuries it was the growth of judicial precedents in common law
England, whereas the Kings established the supreme courts with hierarchy powers
to make decisions binding the subordinate courts.
• The judges in such period introduced precedents with purposes to decide cases
having similar nature or similar facts with similar ratio decidend. Eventually judges
came to regard themselves bound with such decisions rather than persuasive.
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• Establishment of doctrine of Stare Decisis or precedents in common law
was to ensure consistency and predictability and hence was coincided with
development of advent and reliable reporting of judicial decisions and the
establishment of hierarchy of courts.
• Generally in concluding, common law legal system reflects;
 Features or Characteristics of Common
Law Legal System
1. It is bound with doctrine of precedent; the English or Common law
legal system it is the judge made law legal system. Case laws is the main
source of law to be applicable.
2. The legal proceedings are adversarial; under common law legal system,
they apply adversarial system whereby the judge stands as the neutral part
to the case, the parties are the one leading the proceeding. in adversarial, the
judge does not take investigations to find the truth but they stand to ensure
that the aspects of procedures are respected by all parties to the case.
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3. The Doctrine of Equity is the fundamental body of laws applied in court
4. It has the basis of customs and norms; the itinerant judges who travelled in
circuits resolved disputes or cases basing on the accepted customs and norms of such
community or by application of customs prevalent in a particular locality.
5. There is parliamentary supremacy (as the main body in making laws) and
principal legislations becomes binding but legislations once are inconsistence with
natural justice of the constitution, the court may declare them to be void.
 Civil law legal system
• Civil law is the most widespread system of law in the world. It is also sometimes
known as Continental European law or The Roman-Germanic law.
• The central source of law that is recognized as authoritative are codifications in a
constitution or statute passed by legislature.
• It is a legal system inspired by Roman law, the primary feature of which is that laws
are written into a collection, codified, and not determined, as in common law, by
judges.
• The principle of this system is to provide all citizens with an accessible and written
collection of the laws which apply to them and which judges must follow.
 Historical development of Civil Law legal
system
• First phase development; Long before the Roman republic was established in 509
BCE the early Romans lived by the laws they developed through centuries of
custom. This customary laws were handed down through generations and were
considered by the Romans to be an inherited aspect of their society as it had
evolved from its earliest days.
• However it can be termed that the beginning of civil law dates back to 450 BC
in ancient Rome when the first system of dispute resolution was put in writing
through the “law of twelve tables” . The law of twelve tables can be described as
the first attempt to create general code encompassing public and private issues, as it
consolidated earlier traditions into a set of laws.
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• Before the existence of the twelve tables there were no such codification in
the legal history of Rome. Customs and Royal laws with a strong religious
character represented the legal regime at that time which had a great deal of
vagueness and imprecision.
• The existence of the law of Twelve tables sanctioned the authority of the
codification which superseded the use of customs and favoured a more
elaborated set of rules with rights better assured to all and not to a limited
few.
 How Did The Law Of Twelve Table
Emerged
• It existed to wave away the fight between the plebeians (ordinary people) and reduce
undue influence or incriminating of individual rights of the aristocrats (patricians)
and priests.
• The committee was established by such a ruler to gather laws with instances of
plebeians who felt their legal rights were hampered by the fact that court judgments
were rendered according to unwritten custom preserved only within a small group
of learned patricians.
• Although not perhaps a fully codified system, the twelve tables was a first step
which would allow protection of the rights of all citizens and permit wrongs to be
redressed through precisely worded written laws known to everybody.
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• The twelve tables were not a reform or liberalizing of old custom rather they
recognized the prerogative of the patrician class (upper class) and of the
patriarchal family (male family).
• These twelve table laws were;
1. Procedure for courts and trials
2. Criminal offences and civil rights
3. Execution of judgments
 Twelve tables continues…
4. Rights of familial heads
5. Legal guardianship and inheritance laws
6. Acquisition and possession of properties
7. Land rights
8. Tort and delicts (laws of injury)
9. Public law
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10. Sacred law
11. Supplement I (Marriage between classes) A person of a certain class shall
not partake in marriage with a person of a lower class
12. Supplement II (binding into law) if a slave shall have committed theft or
done damage with his master’s knowledge, the action for damages is in the
slave’s name.
 Second phase of development of Civil law
legal system
• Was further developed in the 6TH C A.D, Civil law systems mainly derive from the
Roman Empire, and more particularly, the Corpus Juris Civile or the Romans laws
issued or codified by the Emperor Justinian ca. 529AD. This was an extensive
reform of the law in the Byzantine Empire, bringing it together into codified
documents. Such code of Justinian were composed of four compilations that
includes;
1. The Digest, (these were the results of selected passages on a variety of legal
topics extracted from the works of best Roman Legal writers).
2. The Institutes, (these were textbooks of introduction to the law summarized in
the digest.
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3. The Code (these contained the constitutions which were laws, decrees and
written answers of Roman emperors to a legal inquiry that had been issued by
the previous emperors).
4. The Novels (these were compilation constitutions promulgated by Justinian.
After the fall of Emperor Justinian in which the Roman Empire demised and
whereas the Roman laws as complied by Justinian ceased to apply and instead
the primitive legal system based on tribal or clan laws arise from their prior
demise.
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• That to mean, the Universality of laws built by Emperor Justinian was torn
apart during this period which later came to be known as dark ages of
Western Europe. The dark ages survived until the end of 11th -12th Century.
So, the mix of Roman law and customary (local) law ceased to exist, and the
road opened for law codification, which could contribute to the aims of the
above mentioned political ideal.
• After such demise, for about five centuries until the 17th C, the system was
dominated by the writings of jurists in which in second phase paved ways on
third phase of legislations or written laws or codification process.
 Third phase of development of Civil law
legal system
• After having the centralized institution and initiation of various universities and
government agencies, the Roman legal system was reinvented and introduced.
Gradually the state recognized the written laws as supremacy source of law,
efforts were made to have a strong legislature and subgroups in enacting laws.
• The concept of codification was further developed during the 17th and 18th C as an
expression of both Natural Law and the ideas of the Enlightenment. The political
ideal of that era was expressed by the concepts of democracy, protection of
property and the rule of law. That ideal required the creation of certainty of law,
through the recording of law and through its uniformity. Eg; The French
Napoleonic Code of 1804, Austrian civil code of 1811 and the German civil code
of 1900 were the most influential national civil codes.
 Fourth phase of development of Civil law
legal system
• Expansion of Civil law legal system in other countries. It is the period of
legislative and modern expansion period, whereas the numerous laws were
enacted to govern different aspects of the law field and gradually got spread
in African countries colonized by Belgium including Rwanda and Burundi.
And later to other countries like Japan etc.
• However, since continental European traditions are by no means uniform,
scholars of comparative law usually subdivide civil law into four distinct
groups:
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• These groups were;
1. French civil law – in France, Belgium, Luxembourg, Quebec (Canada), Louisiana
(USA), Italy, Spain and former colonies of those countries.
2. German civil law – in Germany, Switzerland, Brazil, Portugal, Turkey, Japan, South
Korea, China and former colonies of those countries.
3. Austrian civil law – in Austria, Czech republic, Slovakia, Greece, Serbia, Romania
4. Scandinavian civil law – in Sweden, Denmark, Finland, Iceland, Norway
 Features/characteristics of Civil law legal
system
1. It natures or developed from codification or written laws or legislations being the
source of law; written laws or legislation attains the supremacy of the laws
2. The court proceedings are based on Inquisitorial procedures; whereas in such
proceedings the judge is not impartial and he or she assumes a mere dominant role in
questioning or eliciting information from the parties to the case. Also the duty of the
court to produce evidence during the hearing of a case.
3. Writings of prominent authors are substantive sources of law; Civil law systems rely
less on judges and more on academic legal experts to make legal interpretations. In a civil
law system, the judge’s role is to establish the facts of the case and to analyze and apply
the legislature’s written laws. Because of this, legislators and legal scholars who draft and
interpret the codes are important in civil law legal systems.
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4. Case laws are been applied as secondary source of law; under the civil
law legal system, judges have capacity to make laws through the doctrine of
precedent but they are not bound to adhered to the previous decisions and
hence the subordinate courts or the current judges may supersede on the
previous higher courts decisions. The doctrine of precedent is a mere
persuasive source of law in civil law legal system.
5. It evolved as an essentially, private law. It has been natured to protect the
private rights of individuals rather than public rights
 Religious legal system
• Religious law refers to the notion of a religious system or document being used as a
legal source. Such countries binding law is the religious law and not another law.
• A religious legal system is a legal system based on the sacred texts and moral codes
of a religion.
• The main kinds of religious law are;
• Sharia in Islam,
• Halakha in Judaism, and
• Canon law in some Christian groups, eg Italy-Rome etc
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• Religious law systems are used in some countries for all or part of their laws.
For example, Israel uses religious courts for some family law cases, but the
secular court system handles all other matters such as administrative matters
for administrative tribunals for specific topics.
• For example, religious courts in Israel include Jewish rabbinical courts,
Islamic sharia courts, Druze religious courts, and ecclesiastical courts of the
10 recognized Christian communities. In Israel, these courts are limited to
some specific issues of family law.
characteristics of religious law systems
1. Religious law systems often cover all aspects of life as a part of religious
obligations.
2. Religious law systems do not use juries. (judges or panel of adjudicators)
3. In criminal trials, religious law systems may not present defensive evidence to the
same extent as other legal systems.
4. Judges in religious law systems are specialists in the religious text and make their
own interpretations of the law.
5. Certain religious leaders may be able to overrule government acts, including court
decisions, on religious grounds.
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• Example of Religious Law Countries include; Afghanistan, Bangladesh, Iran,
Libya, Mauritania, Morocco, Oman, Saudi Arabia, Sudan, Yemen, Roma.
• In countries exercising Islamic faith, they use fiqh (deep understanding,
discernment), which refers to the inferences drawn by scholars, and sharia,
which refers to the principles that lie behind the fiqh.
 4. Socialist legal system
• The Socialist law or Soviet law denotes a general type of legal system which has been
and continues to be used in socialist countries and formerly socialist states. It is based on
the civil law system (having features of Romano- Germanic laws) with major
modifications and additions from Marxist-Leninist ideology.

• Countries following or practicing socialist legal system were USSR, People Republic of
Europe, Holand, Bulgaria, Romani, Asia, Mongolia and DRC in Africa. But current states
exercising socialist legal system are China, DRC
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• This legal system was built in the notion that; the state rather than private
individuals, should own most of the property within its jurisdiction. That
to mean, products or properties should be used and own communally.
• The Socialist legal system developed in Russia after the communist
seizure of power in 1917 and imposed through out the soviet union in the
1920’s. It was a period when Russian isolated itself from the Western
world states and started building a new society based on Marxism theory
on state and law.
 origin/evolution and development of
Socialist legal system
• Its history on development has been divided into four phases;

1) The 1st phase Pre 1917

2) The 2nd phase of 1917-1921

3) The 3rd phase 1921-1928

4) The 4th phase 1928-1936 and contemporary

 1st Phase
• Before the Russian revolution in 1917, the soviet countries were governed
with the Russian laws and their customary laws. In 1917 it was the period of
conversion of the Russian race to Christianity laws with the necessity to
reduce customs and norms in writings.
• It was during the reign of King Czar where his orders as the King or the
rulers of the community were regarded as Russian laws. During the
transformation of Russian laws to Christianity laws in the 19th C efforts were
made to modernize and codify the Russian laws and they were known as Vod
Zovonow.
 2nd phase the period of 1917-1921

• The second phase was the period after the Russian Revolution in 1917, during this
phase was introduced by the Bolsheviks and their main task was not to establish and
govern a state but to fight back their enemies and remain in power.

• Whereas under their regime immediately after the revolution they placed themselves
above the law and gave the head of communist party powers similar to those
enjoyed for centuries by the tsars.
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• The new government replaced elected officials with its own leaders; it
decreed that the suspected enemies of the revolution should be eliminated
without trials; it expropriated land, banks, insurance companies and large
factories.
• The ideology of Karl Marx in socialist legal system believed that, the state
and all its institutions would wither away after the communist revolution and
also the new regime of capitalist destroyed the legal structure of the market
economy which existed prior the revolution in Russian.
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• It was also the period where the rights of the people to organize themselves
and declaration of rights of the exploited people were proclaimed .
• Also under this phase the church and state were separated, no church laws
were employed to settle disputes of the government. it was also the period
were nationalization or public ownership or communal ownership emerged.
Thus to mean all important industries were nationalized, private ownership
were highly prohibited.
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• New courts were also established but they did not employ the formal
procedure of the courts in settling the dispute, but they employed the
informal procedures and justice was administered according to socialist
ideology.
• Furthermore in such a period, jurists and legal scholars shifting Russian laws
into Christianity were removed or incarcerated. and political ideologies
emerged by establishing strong communal political parties.
 3rd phase 1921-1928
• Under this phase the new Soviet Communist leader Vladimir Lenin
introduced the New Economic Policy. The purpose to establish this new
policy was desire on developing the socialist economic in every sphere earlier
after the end of the WWI.
• He further developed administration of justice were he emphasized that for
the new economic policy to stand there must be a legal basis for the
economy to function as he ordered the civil procedure code, family code and
criminal procedure code from western European civil law be drafted and
enacted.
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• The code allowed the formation of contract, business entities and protected
basic contract and property rights. other legislations established a court
system to enforce these rights and to try criminal cases.
• Later the new economic policy was abandoned after 7 years of its
introduction, and hence the principle of socialist legality was introduced by
the Prokuraturas. The Prokuraturas conception of the new-economic policy
was similar to the ideas of Fredrick Engels, that if the economic is
supersede the law, there is no importance of legal study.
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• The Socialist Legality; the said principle means that, the soviet law is
mandatory in nature and every citizen has a strict obligation to obey the law.
The law under Socialist state exist on the interest of all and not of a
particular privilege class.
• They reject the concept of natural law and recognized law as the element of
coercion for implementing, also law is authoritative in nature and it is meant
to achieve disciplining the rulers and the ruled.
 4th phase 1928-1936
• The New Economic Policy was ended by after Joseph Stalin became the
leader of the Soviet Union (The Prokuraturas) and asserted total central
control over the economy.
• The Soviet government nationalized the remaining private businesses and
forced peasants into party-controlled collective farms such it was called the
Collectivation of the rular economy.
• They developed a new role as an instrument for the implementation of party
policy and national economic planning.
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• Although political repression had begun immediately after the revolution and
continued afterward, it returned on an extensive scale in 1930s when a large
numbers of suspected political opponents and peasants who resisted forced grain
requisition and farm collectivization were executed or sent to forced labour camps.
• Some of this repression or domination were accomplished through regular courts
but much of it occurred through the state security apparatus which had authority to
imprison anyone without trial. Joseph Stalin abandoned the Marxist Ideology on
existence of socialist legal system. As Joseph Stalin announced that, the strong
soviet state and legal system were necessary by having a strong constitution as the
legal basis to govern the society or community in general equally.
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• As in 1936 he promulgated a new constitution and proclaimed a new ideology
portraying soviet law as a just system that would bring about orderly transformation
of a society to a communist and also prohibited freedom of speech.
• After the death of Joseph Stalin in 1953 there was a new leader of the soviet society
known as Nikita Khrrushchev whereby he set out to rectify some of the stalins
features and rehabilitated people who ere condemned to labour camps, also allowed
freedom of speech and decentralized regulation of the economy. Despite such
development they fired editors of liberal publications.
Sources of law in Socialist legal system
• Development of socialist legal system established the sources of law or
practiced the following sources of law;
1. Legislations
2. Judicial decisions
3. Customs
4. Doctrinal writings
• The judicial system of the socialist legal system is the Inquisitorial system.
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• Legislation; This was the main source in the Soviet law, as it expresses the will of
the people represented by the deputies in supreme soviet.
• Judicial decisions; Judges in Soviet society their main task is to interpret the law
existing and not to create a new law or rules. Though judges play a vital role in
bringing defect of the system but the task to enact the law is vested to the Supreme
Soviet or the parliament.
• Their decisions are mere persuasive rather than binding in nature; they give or aid to
such interpretation of the case but the judge may depart from such interpretation.
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• In theoretical fixture judicial decisions are recognized as source of Soviet
legal system but in practical sense they do not exist or applicable.
• Customs; In the Soviet Union or the communist state, customs plays a vital
role in interpreting and understanding the law. This was predicted with
attainment of the socialist objective of the withering away of state and law as
most of jurist recommended that when the state and law demise, then the
customs and norms will gain its importance's.
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• Most of the enacted statutes in Soviet Union depends on morals or customs
interpretation. To mean; laws should abide the customs or norms of particular
community or state in the Soviet Union. Also customs and norms should be
considered in making of state legislations.
• Doctrinal Writings; This does not only confine on treaties on law and related
subjects but also the doctrines or writings of Marxism-Leninism on ideologies of
state and law in Soviet legal system
• Marxist-Leninist and Fredrick Engels on their ideologies helped on the
interpretation of laws especially on private ownership of property in the Socialist
Legal system.
Characteristics of Socialist legal system
1. It is revolutionary in nature (not static), the primary objective of the
socialist jurists is to overturn the society and create a new social order
where the concept of law and state will disappear
2. Source of law is legislation; the legislation expresses popularity interest
of the whole community.
3. the scope of private laws is narrowed and public law is dominant to foster
driving of communal ownership
Mixed/Hybrid/Pluralistic legal system
• Mixed legal systems are mostly defined as the combination of civil law and common
law. However, such pluralistic legal systems sometimes include others systems like
Religious legal system. eg Nigeria, South Africa, Israel, etc
• Israel's legal system combines English common law, civil law, and Jewish law
• Legal enclaves – territories surrounded by different legal culture
• Countries should not be construed restrictively, as certain authors have done. Thus
this category includes political entities where two or more systems apply
cumulatively or interactively, but also entities where there is a juxtaposition of
systems as a result of more or less clearly defined fields of application.
 Read on your own the kind and
development of legal system adopted in
Tanzania mainland (by then Tanganyika)
END OF TOPIC 1