A critical analysis of codification: Analysing the value of family preservation in African Law
Author Gloria Paidamoyo Chikaonda
Affiliations: BA LLB LLM; PhD candidate and researcher, University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 63 – 92
The laws and practices of African people have often been regarded as repugnant, and in many cases have been completely ignored. During the colonial period, African laws were denied. In this context the important questions surrounding the preservation and development of a legal theory that is distinctly African arises. I will argue that the codification of African customary law values is one way of ensuring the survival of African law and, in furtherance of that aim, I will examine the value of preserving the family. With reference to South African and Zimbabwean legislation and jurisprudence and an overview of the Namibian approach to dealing with the recognition of customary law, I propose that in place of the codification of customary laws and practices, consolidating – in textual format – the underlying values, such as the preservation of the family, will be an effective way of laying the foundation for an African legal theory. This will preserve African law, while maintaining the dynamism and fluidity of customs and practices.