All the laws are usually judicially noticed such as statutes - in other words you don’t have to prove them. Customary law has to be ascertained and proved in court as a matter of fact and evidence which means that it has to be treated differently from other legislations and common law and equity. From colonial days if you are relying on customary law you have to prove it as a matter of fact by evidence that it actually exists.
There are a number of reasons or explanations why customary law has to be proved as a matter of fact instead of judicial notice.
Reasons for proof of customary law as a matter of fact by evidence:
1) Throughout colonialism judges and magistrates were expatriates and thus they had little knowledge and little exposure of African Customary law. And at the time there were very few records of customary law and thus these people had nothing to fall back on for reference and therefore for them to apply customary law they needed the same to be ascertained and proved. They needed the ascertainment by evidence to prove that the customs exists before they can apply it.
2) The courts were organized on parallel basis – there was a dual system.
The expatriate judges mainly applied the statute law and the common law and to a very limited extent applied customary law.
The judges in the Native courts and tribunals who were very well vast in customary law applied customary law. Because of this duality the formal courts did not deal with customary law on regular basis and thus they did not develop a body of judicial precedent they could rely on when it came to dealing with customary law disputes. They simply had not case law to rely on and thus customary had to be proved.
3) Coming of Independence led to Africanization of the bench. However this was very slow and the Bench was truly Africanized only in 80’s and this did not stop the ascertainment of African customary law , because many of these African judges were not Kenyan and thus were not familiar with the local customary law. They also had not proper materials upon which they could rely.
4) The dynamism of African customary law was also the other reason and because it keeps on changing all the time and thus we have to keep on ascertaining it all the time and thus we cannot rely on what it was say 1- years ago.
5) Then the social differences between the litigants and the judicial officers because they are quite removed from the customary law and thus they need to prove the custom before they can apply it.
In England any local custom must be proved by the party alleging it. During colonialism African customs were treated similarly to English customs any one relying on it had to prove the custom and the argument was the customary law derogates from the general law and it was regarded as an exception to the general law.
To and extent it was regarded as foreign law because the general law was the ………..
To the indigenous it was not a variant from general law. Indeed in the Native Tribunals where the judges were conversant with the law there was no requirement of ascertainment because it was said to be in the breasts of the judges. To the natives it was not necessary to borrow from English law the rules for ascertaining African customary law where it became necessary. And it was on this basis the English test of Antiquity was abandoned ( the test of existence of customary law – where a custom was applicable if it dates from 1100 AD)
Since the law was unwritten it is subject to the following rules:
1) It must be specifically pleaded in Pleading if you want to rely on it;
2) It must be proved by witnesses
There is no express legislation on this requirement but this is a standard requirement of civil procedure where you are relying on a fact or where you intend to rely on a fact you have to plead it and since customary law has to be proved as a fact and ascertained as a fact then it is a matter of procedure that you must plead it otherwise you have not basis to lead evidence on existence of customary law.
The law relating to prove of customary law of witnesses was stated by the Privy Council in the West African case of Angu v. Attah (1916 P.C. @43).
The rule was laid as follows:
“ As is the case with all customary law it has to be proved in the first instance by calling witnesses aquatinted with the native customs until the particular customs have by frequent prove in the courts become so notorious that the courts will take judicial notice of them.”
This statement envisages ascertainment of customary law in 3 ways:
1) Through evidence or through prove by witnesses;
2) Judicial precedence;
3) By way of judicial notice.
The position stated in the above case was adopted in many African countries including Kenya.
The Court of Appeal in the case of Kimani v. Gikanga (1965) E. A L. R @745 stated in the majority judgment that because of the lack of the authoritative text books on customary law and also because of the lack of case law on customary law it is necessary that a party relying on African customary law will have to call evidence to prove the African customary law as he would prove any other relevant fact in his case.
The majority judges were of the opinion that the position in Angu V. Attah is still the law in Kenya. The dissenting judgment stated that the case is not the legal position in Kenya by virtue of section 59 and 60 of the Kenyan Evidence Act ( the provisions dealing with judicial notice). The position stated in Kimani V. Gikanga is still the position of customary law in Kenya where it must be proved as a matter of fact.
Customary law can be ascertained in a number of ways:
1) Through witnesses;
2) Through Assessors;
3) Through Referees.
The Kenyan practice is to rely on witness evidence and the other two are not so common.
The system of relying on Assessors was only used in criminal procedure and was hardly used in civil law or civil practice. The device of Referees is not used in Kenya but is commonly used in countries like Tanzania.
The statutory basis for prove of customary law through witnesses is section 51 of the Evidence Act , which requires that evidence concerning opinions relating to customs can be adduced by persons who are likely to know of the existence of the customs.
Section 51 does not envisage expert evidence or testimony and therefore witnesses giving evidence on customary law need not be experts on customary law.
Indeed section 48 of the Act which deals with the Experts evidence does not cover evidence on African customary law.
Basically expert evidence is not necessary to establish African customary law and witnesses on African customary law need not even be Africans or Africans of that custom. All you need is the person who knows the customs.
Two types are envisaged by the Evidence Act:
1) Witnesses who are likely to know the fact
(Witnesses of fact – persons to testify that on such and such occasions in the past a particular thing was done in a particular way in other words persons who can testify that this was a customs in the past or a tradition in the past)
Professors of law who have written on such matters.
2) Witnesses of opinion – those who can express opinion on their previous experiences or expert knowledge as to what a rule of constitution of customary law may be – they should be members of that community because they are persons relating to the practices of that custom in the past as a matter of fact
In both cases we are talking about previous experience and which may imply that witnesses must be people who are elderly but you should note that there is at present an increasing difficulty at determining who are likely to be knowledgeable in customary law , thus suitable witnesses on matters of customary law.
Three factors can explain this difficulty:
1) Modern education – people lack the necessary knowledge of African Customary law and the tendency these days to appoint witnesses who are elderly but they may not be able to provide necessary information. They are appointed simply because they are elderly’
2) The dynamist of customary law – it is difficult to know the right custom because it is changing so often and there may be a tendency to reproduce old customs or old customary law which is no longer in force. Some commentators say that the customary law on the ground is a step ahead than the law in the books when you call a witness he is likely to say that this was the custom rather than this is the custom;
3) The written authority of text book , reports and the restatements – these are quite useful but their adequacy and accuracy is questioned. This is because they may be biased and not accurate.
4) Assessors may ascertain customary law and legislation often provides for it. Assessors are not witnesses and they sit with the judge and they are kin to Jurors or to a Jury in Western jurisprudence.
There is no provision for Referees under Kenyan law. In some African countries provision is made for reference on some point of the law to Referees , these are usually traditional Chiefs or other persons or bodies with special knowledge on African customary law. When you are faced with an issue instead of solving it yourself you refer it to Referees. In Tanzania there is a provision for referring the matter on African Customary law to a panel of Chiefs
In some cases
a) Judicial notice;
b) Judicial precedence;
c) Reliance on text books and other sources:
With respect to judicial notice that in common law AFRICA was stated in the rule in the case of Angu V. Attah , where particular customs have frequently been proved in court to the extent of becoming notorious the court should thereafter take judicial notice of them. This rule is the main basis upon which customary law is notice in Kenya ,. The Kenya Evidence Act does provide for judicial notice , section 60 of the Act provides that court should take judicial notice of all written laws , all other laws , rules and principles written and unwritten having the force of law in any part of Kenya. The reference to unwritten law in section 60 implies that the courts may take judicial notice of African Customary law.
Judicial precedence however on the other hand and in particular the Court of Appeal in the case of Kimani v. Gikanga takes the view that the rule in Angu V. Attah applies and that African customary law cannot be judicially noticed unless it has become notorious ( frequently enforced by the court). This judgement had a dissenting judgment based on the section 60 of the Kenya Evidence Act. Reliance on Kimani and Angu is the basis for ascertainment of African Customary law as law rather than fact.
With respect to text books and other written material you will observe that where the same are treated as binding or conclusive then the book is an authority and the court administers African Customary law as law. If the book or restatement or whatever written matter is treated as evidence rather than law of what African customary law is then the material should be treated as establishing African customary law as a fact and would not be of binding effect , and is treated as an opinion giving the court discretion as to whether to treat customary law as law or not.
Section 33 , 41 , 60 are the provisions for ascertaining African Customary law as a matter of judicial notice. Where there is no express legislation for use of documentary sources then one falls back on the general rules of English evidence law , and where one relies on English law of evidence there are two options:
1) To call an expert witness of customary law who may then produce to court books of authority on which his opinion is grounded (when such books are produced by expert witness the authority will not be binding but just as a question of fact
2) Where the judge is entitled to take judicial notice of a fact that he may be aquatinted with but referring to any document ( articles , official declarations of African customary law and restatement , published and unpublished reports , reported and unreported cases text books and son on) for reference and guidance. Of course as an advocate you will urge the court to take judicial notice of the fact that this was the custom at this particular time