Accommodation and Assimilation in Kenya’s Pluralist Context: Contrasting the Normative Qualifications Supplied to Islamic Law and African Customary Law’s ‘Defects’ in Personal Law Matters

Khalil, Badbess
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Strathmore University
It is said that one of the enduring legacies of colonialism in Africa is the fact of legal pluralism. This fact has arisen from the maintenance of received European laws after colonialism and of the pre-colonial laws that continued subsisting even after colonialism. Kenya, one such state, has had similar experiences. In this regard, two subsisting pre- colonial systems are of note: Islamic law and African customary law. In this study, it is argued that in their application to matters of personal law, African customary law is differentiated from Islamic law by the greater level of normative qualifications applied to it.
Legal pluralism is defined as ‘a situation where more than one legal system exists within a single political unit’. 1 It has been called a central characteristic of many post-colonial African states. 2 The existence of pre-colonial law in these states is ‘the genesis of legal pluralism’ in Africa. 3 At colonialism, European laws were imported which introduced new norms and further defined the normative scope of existing pre-colonial laws. 4 When the newly- independent African states set up legal systems of their own, they maintained both the European laws and pre-colonial laws, often in the scope in which both applied during colonialism. After all, many of these states were administrative continuations of their colonial predecessors.