It will not escape the notice of the attentive reader of the three articles in this number of the Journal that they all relate or refer, in one way or another, to the codification of the law in Africa. Mr. Kerr, writing of the law of Southern Africa, notes that the Cape Commission of 1883 had suggested the preparation of a code of criminal law and procedure, although reluctant to codify the civil law. He also examines the construction and working of the Natal Code of Native Law, and the value of this Code as a guide to future codifiers of the customary law. Mr. Hannigan, writing of the difficulties experienced in Ghana in the judicial ascertainment of the applicable customary law in any particular case, considers “codification of the general principles of native custom” as one possible solution to the problems which arise, especially the problem of uncertainty and of local variation. Mr. Hannigan on the whole appears to favour a case-study of the judgments of English-type and native courts as a preferable alternative solution to the problem. Lastly, Professor Konvitz, as the Director of the Liberian Codification Project, writes with authority of the objects, working procedures, and difficulties of that Project. The experience of Liberia in codifying its laws will doubtless be valuable to other African countries who may be contemplating a similar step.

On 13 Jumādā I, 1377 (6 December, 1957), the Arabic edition of the Official Bulletin of Morocco2 published a Zahīr3 of 28 Rabi’ II, 1377 (22 November, 1957), which not only announced that a series of books covering matters of personal status and inheritance would be published (to constitute, when complete, a “Code of Personal Status and Inheritance” ), but that the first two books in this series—which were attached to the Zahīr and which covered the law of marriage and its dissolution, respectively —were to be brought into force throughout the Kingdom from 1 January, 1958.

The problems of reception and codification discussed by Dr. A. N. Allott in his article on “The Authority of English Decisions in Colonial Courts” in [1957] 1 J.A.L. 23 et seq. have also been encountered in Southern Africa and something of interest and value may be found in an account of experience of the problems in this area.2

In Tanganyika, Uganda, and Zanzibar all trials in the High Court take place with the aid of Assessors. The same rule applies in Kenya, except in the case of Europeans, when the trial is before a judge and jury. In trials with the aid of Assessors, as in the case of trial by jury, at the conclusion of the evidence and the addresses on behalf of the prosecution and the defence the Judge may sum up to the Assessors the evidence for the prosecution and the defence. In the relevant section in all four Criminal Procedure Codes the word preceding the words “sum up” is “may”. That is to say, there is no statutory obligation on the trial Judge to sum up the evidence, but, as said in Washington v. R. (1954), 21 E.A.C.A. 392, it is a very sound practice which is almost invariably followed by Judges in East African territories except in the very simplest cases. Furthermore, as held in R. v. Lute (1934), 1 E.A.C.A. 106, in all but the clearest cases, it is desirable that the Judge should make a note of the points put to the Assessors in such summing up, and the evidence which he has stated as supporting or otherwise each point.

A heartening impetus has been given in recent years to the study of the “reception” into the dependent and formerly dependent territories of English legal concepts and institutions. One such institution, the “reception” of which appears, so far, to have received little academic attention, is the English jury system.

The early reports which Northern Nigeria's first High Commissioner, Sir Frederick Lugard, made to Mr. Chamberlain, then Colonial Secretary, contain several unflattering references to “the hostility of the Munshi tribe” (1900–1 report) “who occupy about 4,000 square miles south of the Benue” (1904), “use poisoned arrows of a very deadly kind, and are a constant source of trouble, firing at canoes proceeding up the river” (1900–1), and arresting the construction of the important 200-mile telegraph line from Lokoja, the first capital, to the Niger Company's station up river at Ibi. Their physical dispersion in small groups over wide areas of thick bush, combined with the dispersal of authority over a number of petty “chiefs”, no doubt presented in some ways a more difficult problem than the centralised Emirates further north, the submission or capture of whose capital, combined with the appointment of a friendly-disposed Emir, could be the key to the immediate pacification of a wide area. It was not until 1907–8 that Lugard's successor could report “the inauguration of peaceful penetration and occupation of … the hitherto impenetrable Munshi country”.

The rules respecting custom in Ghana (the Gold Coast) are found in the law reports, the statements of chiefs and elders, the works of textbook writers, both lawyers and anthropologists, and in the unreported decisions of the courts. It is important, however, to distinguish between the rules which have the force of law and those which have not. Here it is proposed to outline the mode of proof required before custom can be recognised as law, bearing in mind that an English judicial system has been imposed upon Ghana, working through a system of case law with its attendant precedents. It is further hoped to point the way to a possible method of ensuring the preservation of the indigenous customs, which is believed to be desirable in order to ensure their natural development.

Although the study of comparative law, or rather the study of foreign legal systems in a comparative manner, is in general of academic rather than practical value, except in so far as it gives us insights into the ideas, attitudes and procedures of our own legal system, yet for those who are concerned, as practitioner, judge or student, with certain types of legal system the position is radically different; I refer to legal systems in which internal conflicts of law arise. In such systems the judge is faced, constantly or even daily, with situations which require him, not merely to choose between one system and another as the appropriate one for the decision of the instant case, but to perform a running comparative interpretation, classification or analysis of the institutions of two or more legal systems, which must somehow be brought into harmony (one might aptly use the metaphor of meshing gears here). The part that a rule or a feature of one legal system plays in its functioning total legal complex must be understood, and the rule or feature must be properly characterised so as to permit it to be translated into another legal system which is administered concurrently with the first.