Customary Law of Succession and the Influence of Colonialism: The case of Kenya, Uganda, and Tanzania, compared to the English Law of Succession

Abstract

In the context of the Western legal system, inheritance, and succession are legal areas governing the distribution of a deceased person's assets after their death. However, in African customary law, these terms have distinct meanings. In African customary law, inheritance involves bequeathing a deceased person's property to their heirs, either in accordance with a will (testate) or common laws when no will exists (intestate succession). In contrast, succession primarily involves assuming the deceased's social role and power over the people and possessions they ruled. Customary succession laws outline rules for handling the property, titles, and succession of the deceased, typically the family head. African countries often have multiple legal systems, including indigenous/customary laws, religious laws, and received laws introduced by colonizers. Indigenous laws are rooted in the customs and traditions of native populations and vary among ethnic groups. These laws predominantly govern personal matters like marriage, succession, and traditional leadership. However, customary laws have faced criticism for discriminating against women, as they often favor men and consider women as property. Many African nations have enacted constitutions guaranteeing equality before the law and prohibiting discrimination. The study focuses on the impact of English laws on customary intestate succession in Kenya, Uganda, and Tanzania, and women's rights in these systems. The research objectives include: a) Investigating customary and intestate succession rules in each country. b) Assessing the role of courts and government bodies in interpreting customary laws in line with constitutional principles. c) Analyzing how the written constitutions of these countries have influenced customary laws, particularly in intestate succession. d) Examining the potential for existing laws to eliminate discrimination in succession. e) Evaluating the influence of English and colonial laws on East African customary succession laws. The research scope is limited to these three East African countries due to their colonial history, legal pluralism, and constitutional guarantees of equality. The study does not delve into specific tribal laws but focuses on customs generally. The legal framework for this research includes the Constitution, legislation, common law, case law, and customary law. Customary law, influenced by custom and tradition, played a significant role in pre-colonial African societies and is recognized in the constitutions of these countries. However, it must align with constitutional and written laws to be valid. Customary law is characterized by its oral nature, community-based practices, and role in expressing communal values. It evolves over time and aims to maintain social order and harmony within communities. In summary, this research explores the impact of colonialism and English law on customary intestate succession in East African countries and examines women's rights within these legal systems. It delves into the legal framework, sources of law, and attributes of customary law in these nations.