Conquest, Clientage, and Land Law Among the Luo of Kenya

Abstract

In the process of nation building, the new African nations are confronted with the need to establish legal systems which would perpetuate some selected traditions while, at the same time, are appropriate enough to solve the current untraditional problems. Under colonial rule. Western legal concepts dominated some areas of life while customary laws dominated the other spheres. Criminal law, the law of torts, contracts, administrative laws, taxation, company law, road traffic and copyright laws, were dominated by Western legal concepts. Customary legal concepts were operative in the fields of land tenure, marriage, divorce, succession and guardianship. The dual legal system served respectively the colonial and the native social order. With the demise of colonial rule, African legal systems now suffer from a schizophrenic posture, torn between tradition and modernity. The schizophrenia is more painful now that the new indigenous rulers, raised in the traditional ways, use modern, often colonial government structures to govern a population still tradition-directed. In this process of governing, the dictates of a modern state often clash with tradition. One such clash occurred in April 1968, when Kenya law makers used a modern legislature to pass a Limitation of Action Act (Kenya Gazette Supplement Acts, No. 34, 1968: 310), an act which proved unpopular despite the convincing arguments in its favor. This paper explores the conflicts between modernity and tradition engendered by the passage of the Act and exemplified by the effects of the Act on the Luo social structure, especially with regard to land ownership and status relationships. The question posed is: How appropriate is law as an instrument of social change, especially in a traditional cultural milieu? Can the nation state rely on law to change its tradition-oriented rural localities? Evidence elsewhere (Massell, 1968: 179) reveals that the law as an instrument of change often yields unintended and unpleasant consequences.

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