A Call to Codify Aspects of African Traditional Law Relating to Children's Rights: Proposed Methodology and Procedure

Zambia has dual system of Law namely Civil and Customary law. Civil law is that which is based on the inherited British system left over from the colonial era. Civil law is codified and clearly articulated, periodically it is amended or repealed by Parliament. United Nations Conventions are domesticated into this set of laws and the Criminal Justice system exclusively enforces only this set of laws.

Customary law mainly guides traditional matters but can be used to insitute legally recognizable marriages and such other customary institutions. It also guides Traditional Governance structures such the Tribal Chiefdoms and Village headmen. Much of Zambia's land is under the control of Traditional Leaders and therefore Customary law will also guide land distribution issues in such tribal areas. Customary law also plays a role in informing the enactment of Civil law. Mores, norms and values held collectively by Zambians will influence the enactment of civil law in Parliament. Infact it is not unusual in Zambia that Traditional Leaders are consulted when critical laws have to be passed in the National Assembly. It is also important to note that there is a House of Chiefs established under Zambian Civil law to look into Customary matters through the Chiefs and to act as an interface between National Government and traditional leaders. The House of Chiefs passes rulings in support of National Legislation but does not legislate itself. The Chiefs may also withstand new legislation through debate and opinion. 

Customary law is powerful at a social level, it guides families and even enters the decision making processes of the Local Court System. Traditional marriages can be divorced at a Local Court using traditional wisdom even if they were instituted at family level. Civil law would term these as Common Law marriages. 

The challenge is to have consistency and harmony in Customary law. Because this law is not codified it is open to abuse to the detriment of weak parties such as children. Customary law needs to be standardised within each tribe, harmonised across tribal lines and harmonised with Civil law. In this way Customary law will also be harmonised with the provisions of the UN and National Bill of Rights and Conventions such as the UN CRC which protect children;s rights. As International Law is Domesticated into Civil Law Customary law appears to fall further and further behind. Chiefs do not partcipate in UN debates or in debates at the Parliamentary level, hence they often have to play catch-up on the new provisions. This causes  value-laden conflicts between traditional leaders and Civil Governance systems. Laws are passed in an effort to harmonise with International Law but Customary law law remains static. Customary law has greater social influence on Zambians regardless of their educational background. Marriage, Birth and death are all guided by Customary law to a large extent. All else is mere legal expediency making Customary considerations extremely powerful in Zambian socciety.

Standardisation, Harmonisation and codification of Customary law are important so that Traditional cognitive knowledge passed on orally may became apparent to all so that Tradition can inform the Civil and the Civil may also reciprocate. Through this procedure what is beneficial from Custom will be kept and re-inforced through Civil Law and what may be harmful can be rectified. Harmonisation will make Civil law more responsive to the inner values of the Zambian people and standardisation will assist in the passing of consistent decisions from tribe to tribe and location to location. Codification will preserve what is good about Zambian Customary law and forever continue to guide citizens and foreigners alike. Of greater importance to the process is the idea that Children's rights will be formally protected at the Customary as well as the Civil level hence avoiding disputes. 

Value sources for the codification of  traditional law are instruments such as proverbs, sayings, initiation ceremonies, past decisions of leaders and the arts. The procedure would be to initially condense all these into writ, harmonise the common features and codify into draft. The House of Chiefs could then study the material and approve, amend or add. Other traditional bodies could also study the material. Final documents would be harmonised with aspects of Civil law and final documentation made. The codified set of laws would then become public and utilised in the Local Court system and in families.