Customary law and the State in Africa

“The State and the Paradox of Customary Law in Africa” is a new book edited by Olaf Zenker and Markus Höhne (Routledge, 2018), which tackles a question that is frequently overlooked in debates about the state in Africa: how traditional customs and laws influence the everyday practices and self-perceptions of state officials. In the vast literature on Africa states, there has either been a tendency to focus on state fragility or collapse or to analyze the ways in which colonial and post-colonial state formation processes change or erode customary laws and practices. Drawing on a collection of rich empirical case studies across Sub-Saharan Africa (South Africa, South Sudan, Guinea, Tanzania, Mozambique, and Somaliland), the book analyses how the interactions between state and non-state normative orders have shaped the everyday practices of the state. It argues that, in their daily work, state officials are confronted with a paradox of customary law: operating under politico-legal pluralism and limited state capacity, bureaucrats must often, paradoxically deal with custom in order to do their state work, even though the logic of customary rules are often at odds with state logics.

The chapter by DIIS senior researcher, Helene Maria Kyed (State Police and Tradition in Post-War Mozambique) deals particularly with the state police and how police officers are continuously drawn into dealing with custom, including beliefs in evil spirits and witchcraft. This co-exists with efforts by the police to consolidate state law and superior authority in a former war-zone, following sixteen years of civil war. However, to constitute state sovereignty it is necessary for the police to relate to and deal with customary beliefs and practices, as they compete with traditional chiefs and former rebel leaders, who are strong actors within the field of spiritual powers. The result for all actors is a precarious form of authority where accommodation of popular justice beliefs co-exists with different forms of state violence.