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37 Geo. Wash. Int'l L. Rev. 949 (2005)
Property-Grabbing under African Customary Law: Repugnant to Natural Justice, Equity, and Good Conscience, Yet a Troubling Reality

handle is hein.journals/gwilr37 and id is 959 raw text is: PROPERTY-GRABBING UNDER AFRICAN CUSTOMARY LAW: REPUGNANT TO NATURAL JUSTICE, EQUITY, AND GOOD CONSCIENCE, YET A TROUBLING REALITY KENNETH K. MWENDA* JUDGE FLORENCE N.M. MUMBA** JUDITH MVULA-MWENDA*** I. INTRODUCTION In many of the world's common law jurisdictions, including those of several African countries, a will is a public document that can be inspected by members of the public.' However, under Afri- can customary law,2 formal wills do not exist. This leaves claims of intestate succession open to manipulation and abuse by members * Senior Counsel, The World Bank, Washington, D.C. Advocate, High Court of Zambia and former Lecturer in Law, University of Warwick. LL.B. University of Zambia; B.C.L./M.Ph. Oxford University; MBA University of Hull, United Kingdom; Ph.D. Univer- sity of Warwick, United Kingdom; Fellow of the Institute of Commerce of England; Fellow of the Royal Society of Arts of England. The authors are indebted to colleagues who read through early drafts of the Article and provided useful comments. The interpretations and conclusions expressed in the Article are, however, entirely those of the authors. They do not represent the views of the World Bank, its Executive Directors, or the countries they represent. Similarly, the interpretations and conclusions do not represent the views of the Appeals Chamber, the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), or the Supreme Court of Zambia. ** Judge of the Appeals Chamber, ICTY and ICTR; Member of the Supreme Court of Zambia. Former Vice-President, ICTY; Vice-President, 101 Board; Vice-Chairman, Uni- versity of Zambia Council; Member, United Nations Commission on the Status of Women; Commissioner, International Commission of Jurists. *** BS Human Biology (BScHB) University of Zambia; Bachelor of Medicine and Sur- gery (MBcHB) University of Zambia; MBA University of Leicester, United Kingdom. 1. See DJ. HAYrON, THE LAW OF TRUSTS 37 (1989). 2. Contemporary African customary law includes elements of traditional African cus- toms, imported colonial common and civil law notions, and religious concepts from Chris- tianity, Islam, and traditional African religions. Fitnat Naa-Adjeley Adjetey, Reclaiming the African Woman's Individuality: The Struggle Between Women's Reproductive Autonomy and African Society and Culture, 44 Am. U. L. REv. 1351, 1351, 1365 (1995). Some authors attribute the deviation of judicial interpretation of custom from traditional African practice to factors such as a lack of homogeneity among African societies and differing social institutions both among tribes and among the various ethnic groups within tribes. See id. at 1368; see gener- ally T.W. BENNETT, THE APPLICATION OF CUSTOMARY LAw IN SOUTHERN AFRICA (1985) (pro- viding an overview of the nature and application of African customary laws through various country-specific case studies); ALEXANDER NKAM, EXPERIENCES IN AFRICAN CUSTOMARY LAw, (1966) (describing African customary law from a Western observer's perspective).

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