Effect of the Repugnancy Clause under Section 3(2) of The Judicature Act and The Supremacy Clause Under Article 2(4) of The Constitution on African Customary Laws

1.      What does Article 2(4) of the Constitution provide?

Article 2(4) of the Constitution of Kenya provides that, any law, including customary, that is inconsistent with the Constitution of Kenya is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. In essence Article 2(4) of the Constitution provides for the supremacy clause initially provided for under Section 3 of the Constitution of Kenya (Repealed).

Consequently the effect of Article 2(4) of the Constitution is that that any act or omission in contravention of the constitution is invalid. Therefore before a court of law applies Customary Law or any other law, in any particular case, the court must be sure that the particular rule of custom is not contrary to any provision of the Constitution. The court must therefore, consider all acts of a customs and ensure that they are not contrary to the provisions of the Constitution.

In addition, Article 2(4) gives African Customary Law in Kenya the force of law same as the any other sources of law. In Kenya, the Constitution supersedes any other law[1]; supremacy means that a constitution is a fundamental law that ranks above and higher than all other laws, it is a higher norm supreme over all other norms[2]. In a nutshell, the constitution is constitutive and is a source of a higher judicial norm in the state and as such is the fundamental law of the land thus any act/omission in contravention of the Constitution shall be void to the extent of the inconsistency.

2.      What is “African Customary law” as provided for under statute?

Customary law on the other hand is generally understood to be the rules of law derived from the customs and usages of different communities. It is the norm, habit or usage by a given community that has lasted over time and has its roots in wisdom, need and character of a ‘particular community. It is the law governing people by referring to their ethnic groups or affiliations. Customary law therefore, is not a single body of law but a body of various customs of the various ethnic groups that exist in Kenya. Reference is made to customs and rules that have acquired the binding force of law within the community. African Customary law may thus be defined as rules that existed from time immemorial and which have acquired acceptance within the community within which they exist.

Customary laws in Kenya ideally were different and varied from community to community; however they had some points of similarities such as the institution of chiefs and elders[4] and the fact that the society was generally patriarchal.

During colonialism, each colonizing power, once having established its rule in a new territory, introduced its own legal system or a variant of it as the fundamental law or general law of its territory.  Secondly it tolerated traditional African law and judicial institutions so long as these customary traditions did not interfere with the colonial administration of the state and where they interfered they were branded as repugnant to justice and morality of the civilized people.[5]

Statutorily Application of African customary law is provided for under Article 2(4) of the Constitution of Kenya the Judicature Act, Cap 8 Laws of Kenya and the Magistrate’s Act, Cap 10 Laws of Kenya.

Section 9 of the Magistrate’s Act defines customary law as the law that may be applied only to civil cases. The matters regarded under customary law include land held under customary tenure; marriage, divorce, maintenance or dowry; enticement of or adultery with a married woman; seduction or pregnancy of an unmarried woman or girl; matters affecting the status of widows and children including custody, adoption, guardianship and legitimacy; intestate succession and the administration of intestate estate. The law further provided that customary law is only applicable where one or more parties are subject to or affected by it. For instance in the case of Virginia Wambui Otieno v Joash Ochieng Ougo & Others.

3.      What is the place of African Customary Law in Kenya?

Prior to the enactment of the Constitution in August, 2010, the application of Customary Law in Kenya was governed by Section 3(2) of the Judicature Act.[6] It provides that ‘African customary law’ shall govern in ‘civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law…’ This can be said was the main provision in law that listed down customary law as source of law in Kenya. In addition, African Customary Law is recognized as being lower in hierarchy than other laws.

The provision under Section 3(2) of the Judicature Act is generally referred to as the on the repugnancy clause. Historically, the repugnancy clause represented the view of colonialists who considered that African customary law was a lesser law than their own[7]. They saw Africans as not capable of understanding legal technicalities and procedures and as requiring a simple procedure which they can understand. In addition, the variance of the African Customary law from community to community, and the fact that there was no documentation of these laws prior to colonialism, also contributed to African Customary law falling lower in hierarchy compared to other laws subscribed to.

4.      Consistency of African Customary Law with the Constitution.

As earlier stated, Section 3(2) of the Judicature Act, generally represented the colonialist view that African Customary laws were lesser than their own. That the Constitution of Kenya (repealed) further aggravated this situation is an open secret. As a matter of fact prior to the enactment of the Constitution of Kenya 2010, there were no laudable policy and legislative programs in practical terms aimed at ensuring gender equity and social justice in the ownership, management and control of property whether within marriage or under conditions closely related to the state of matrimony.[8] For instance, Section 82 of the Constitution of Kenya (Repealed) permitted discrimination on the basis of sex in matters regarding succession in terms of devolution of property on death or other matters of personal law. In addition section 82(4) (b) negated any measure aimed at achieving justice in the distribution of property.

Further the dichotomy or continuum between traditional African & Western approaches to the law succession has to a large extent affected the application of African Customary law. Mainstream Western Jurisprudence locates matrimonial property within the narrow confines of the family; the family being defined in terms of reminiscent of Hyde v Hyde 1861 ALL ER 175 to consist of man and one wife and children of the marriage.

Customary law and practice on the other hand has always defined and regarded family in more expansive terms. Property is managed and controlled in a manner that benefits the extended family. The divergence and dichotomy between African and western approaches is so obvious to the extent of attracting emphasis and attention. Consequently traditional African practices on succession are always referred to in terms that suggest that they are desuetude.

Whereas western family and succession laws and practices have been entrenched in practice and through legislation, traditional African practices have persisted in certain areas and in the process given rise to a continuum rather than a dichotomy. For instance while many Kenyans undergo civil or Christian marriages which are monogamous and in which subsequent women and children begotten outside that marriage would be concubines and illegitimate respectively, the problem has been resolved by section 3(5) of the Law of Succession Act.

Needless to say, customary laws of various ethnic groups in Kenya oppose and do not practice the principle of equal inheritance as per the succession laws and as such courts have rejected acts, omissions and laws that are often inconsistent or contradictory to the provisions of the constitution.

In the case of Rono v Rono (2008) 1 KLR (G&F) 803 the court determined whether the gender of the deceased’s children was relevant in distribution of the deceased’s property and whether children of the female gender should be denied inheritance in anticipation of their getting married. The court was tasked with a duty to determine whether such a consideration was discriminatory and contrary to the rules of international laws and international treaties. The court held inter alia; that the fact that the girls would one day get married was not a determining factor when it came to the distribution of the net estate of the deceased. The court had a duty to exercise its discretion judiciously when it came to distributing the estate. The deceased treated all his children equally and therefore the court should have done the same. 

In a study on land rights in western Kenya it was found that individual women’s specific qualities are perceived to be significant to women’s vulnerability to land expropriation.[9]  For example, a childless widow, and more specifically a widow who does not have a son or sons, is locally perceived as particularly vulnerable in retaining a claim to family land under customary law.  Article 60(1) f of the Constitution provides for the principles of land policy and that land shall be managed in a manner and purposes, among others, elimination of gender discrimination in law, customs and practices related to land and property in land. This provision is likely to eliminate customs that are discriminatory. 

 The Constitution, under Article 159(3) provides that traditional dispute resolution mechanisms shall not be used in a way that: (a) contravenes the Bill of Rights; (b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or (c) is inconsistent with this Constitution or any written law. this therefore means that, every customary law that is applied in any particular case and does not conforms with the Bill of Rights, is repugnant to justice and morality and contravenes the Constitution shall be deemed to be void.

The Kenyan government’s 2006 report to the Committee on Economic, Social and Cultural Rights states that, ‘Under the customary law of most ethnic groups in Kenya a woman cannot inherit land, and must live on the land as a guest of male relatives by blood or marriage’[10] . The popular understanding among many different groups is that daughters will marry into other families and therefore gain a home and access to land and property through their membership in the husband’s family.

The Constitution criminalizes any form of discrimination on any ground. It provides that provides that every person is equal before the law and has the right to equal protection and benefit of the law.[11] It also provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres[12]. This Article is crucial in enhancing equal inheritance mainly among women and girls.

No one shall be forced to take part in any cultural activity that he or she does not want to.  The Constitution, under Article 44(1) provides that every person has the right to use the language, and to participate in the cultural life, of the person’s choice.

In the case of Virginia Otieno versus Ougo & another {1987} KLR, 371 , H.C, the court directed that, the deceased be buried in accordance with the customs of his Luo clan and stated that there is no way in which an African citizen can divest himself of the association with the tribe of his father. Mr. Otieno, having been born and bred a Luo remained a member of Luo tribe and subject to the customary law of the Luo people. It appears that Article 44(1) of the Constitution renders S.M Otieno’s case a bad law since one cannot be forced to take part in a cultural life that he or she is against it.

The Succession Act was amended in 1990 to exclude Muslims from the substantive provisions of the Act. Therefore, the estate of the deceased Muslim is inherited according to Islamic law whereby a widow receives one quarter of a husband’s estate and sons receive double portions to daughters of their father’s property. This is an inconsistency clause. The Constitution under Article 170 (5) provides that the jurisdiction of a Kadhi’s’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts. It would appear that with regards to this particular matter the Constitution allows discrimination against widow Muslim women in terms of inheritance.

The Constitution, under Article 2(5) and 2(6) provides that international laws ratified by Kenya form part of laws under the Constitution. In Rono v Rono case was based on international law treaties on discrimination against women/girls, however the provisions of these international treaties have now been codified under Article 27 of the Constitution and since the Constitution is the supreme law any other law, including customary law, that attempts to bar women from inheriting is void.

 Conclusion:

The Constitution seems to broaden customary law applications. It recognizes the pre-eminence of Customary Law and this will continue to diversify inheritance practices.

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[1] Article 2(1) of the Constitution of Kenya, 2010, provides that the Constitution is the supreme law of the Republic and binds all persons and all State organs.

[2] Leonard W. Levy, Original Intent and the Framers’ Constitution, 1998, Macmillan, New York. Scholar examines ‘’original intend’’ doctrine and its alternatives.

[4] Oldiwuor Kelly, Sources of Kenya Laws, accessed from http://www.oakadvocates.co.ke/userfiles/SOURCES%20OF%20KENYA%20LAWSMODIFIED%20FOR%20CCM%20ON%2026_04_2011%281%29.pdf

[5] Patricia K. Mbote, The Law of Succession in Kenya: Gender Perspective in Property Management Control, Women & Law in East Africa, 1995

[6] Cap 8 of the Laws of Kenya.

[7] Patricia K. Mbote, The Law of Succession in Kenya: Gender Perspective in Property Management Control, Women & Law in East Africa, 1995

[8] Patricia K. Mbote, The Law of Succession in Kenya: Gender Perspective in Property Management Control, Women & Law in East Africa, 1995

[9] Henrysson, E. and Joireman. S. (2009). ‘On the Edge of the Law: Women’s Property Rights and Dispute Resolution in Kisii’. Kenya, Law & Society Review, 43(1): 39-60.

[10] Government of Kenya (GOK) (2006) Initial Report of States Parties to the Committee on Economic, Social and Cultural Rights (2007), U.N. Doc. E/C.12/KEN/1 (Sept. 7, 2006).

[11] Article 27(1).

[12] Article 27(3)