The Laws of Lerotholi: Role and Status of Codified Rules of Custom in the Kingdom of Lesotho

Abstract

The Laws of Lerotholi: 93 providing systems of justice that could overcome the tension between the traditional social structure and so-called ‗modern' or ‗western' legality, in which justice is equated to law, is far from settled.The reason could be that African customary law scholars have been preoccupied with finding points of convergence between two divergent paradigms instead of seeking to develop African customary law as a distinct legal tradition that espouses rules and supports institutions of its own kind.3 Arising from the push by post-colonial governments towards unified legal systems, scholars have seen their role as that of sanitizing customary law and redefining its principles to fit modes of western legal tradition-an approach that has rendered African customary law even more precarious.4 This anomaly is explicit in the struggle by the judicial systems of most African countries to find the relevance of customary law within structures of the modern state.And yet, throughout the continent, emerging jurisprudence has more than confirmed the dissonance of these two paradigms and has critically appraised the shortfall of customary law in meeting the positive legal aspirations of modern society.5 In South Africa, for example, a series of startling, even mind boggling, decisions by the Constitutional court, 6 has set fermenting the debate on the future of African customary law in the face of the ever expanding regimes of in-3 Martin Chanock, Neo-traditionalism and Customary Law in Malawi, 16 AFR.L. STUD.80, 81 (1978); see Peter Fitzpatrick, Traditionalism and Traditional Law, 28 J. AFR.L. 20, 21 (1984) (advancing the view that African custom loses substantive identity when subordinated to imported law).4 Inspired by the demands for equality for all peoples, African governments deemed the separation of courts and law based on race to be inimical to the values that had informed the liberation and independence movements.It was somewhat contradictory that, at the same time, the leaders sought to ‗Africanize' the law and legal systems in general so as to diminish the influence of colonial, European law.Another problem was that elites in many of the newly independent African states had already become used to working with European law during the struggle for independence and were wary of traditional systems that would not further the interests of ‗modern' development.See Sandra F. Joireman, Inherited Legal Systems and Effective Rule of Law: Africa and the Colonial Legacy, 39 J. MODERN AFR.STUD.571, 577 (2001).5 Laurence Juma, Reconciling African Customary Law and Human Rights in Kenya: Making a Case for Institutional Reformation and Revitalization of Customary Adjudication Processes, 9 ST.THOMAS L. REV.459, 461-62 (2002); Simon Coldham, The Status of Women in Zimbabwe: Veneria Magaya v Nakayi Shonhiwa Magaya (SG 210/98) 43 J. AFR.L. 248 (discussing the implications of the judgment on gender equality); Dikgang Moseneke, Transformative Adjudication in Post-Apartheid South Africa-Taking Stock after a Decade, 1 SPECULUM JURIS 2, 8 (2007) (discussing the role of the South African Constitutional Court in enforcing the Bill of rights).6 Gumede v. President of S. Afr.2009 (3) SA 152 (CC).See also Bhe v. Khayelitsha 2005 (1) BCLR 1 (CC); Mthembu v. Letsela 2000 (3) SA 219 (A).

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