SOAS Research Online

Abstract

No branch of jurisprudence is more important than the law of succession, as it constitutes that part of any corpus juris which is the idiomatic and most distinct, and at the same time of most frequent use and extensive application. The complex and fluid nature of Central African laws of succession has long led responsible opinion to attempt an exposition of them, but at the same time that complexity and fluidity have discouraged such a project. Apart from the material gathered by anthropologists, there has been up till now no legal study solely or even partly devoted to the laws of succession in Central Africa. This is the first attempt to synthesise the existing customary laws and to bring to light their conflicts with the "English law" which is everywhere applied as the "General law" of the territory. This thesis endeavours neither to expound the ancient customary laws nor to give a definitive restatement of contemporary laws - and that for three main reasons: (a) the laws of succession in Central Africa are laws in rapid transition; (b) the customary laws do not seem to have achieved such a stage of elaboration which would justify their detailed restatement; and (c) alongside of time-honoured categories of property, new classes of chattels and new forms of immovables are now the subject of ownership and devolution mortis causa, and the customary laws have not yet provided clear and definite rules regarding their transmission upon death. The law described here is the present customary law as established in practice and recognised by the courts, together with modifications from English legal ideas, from the impact of Western culture and from the economic revolution current in Central Africa. The increased emphasis on freedom of the individual as against the ties of the family group, and the emancipation of the elementary family from the bond of the large kindred group have been the main social trends in contemporary Africa. As a result the law of succession is in a state of rapid flux: many rules which provided the substructure of large bodies of kindred are on trial; the matri-lineal bias of succession is under fire, and there is a wide clamour for the legalisation of written wills. The entire body of the law of succession is in a state of convulsion. In the Introduction the nature of the laws of succession in Central Africa has been described. Chapter I deals with the plural system of laws and jurisdiction in Northern Rhodesia and Nyasaland, the laws applicable to the succession Africans and the jurisdiction of the different types of courts in this matter is studied. Chapters II to Ware devoted to the customary laws of succession of the Plateau Tonga, Yao and Cewa, Bemba, Ngoni and Nyakyusa. These peoples are the representatives of the main clusters of society in Northern Rhodesia and Nyasaland. Chapter VII deals with the applicability of the Wills Act 1837, to Africans, and the internal conflicts of laws which this application provokes concerning the powers of the testator to dispose of his property. Chapter VIII provides a detailed analysis of the African Wills and Succession Ordinance of Nyasaland. This is an important statute which has provided for the testate succession of Africans by means of written wills and has introduced some rules regarding intestate succession to land. The conflicts which may arise between the provisions of that Ordinance and the existing customary laws have been discussed and an interpretation is attempted in order to make the Statute more serviceable to the present needs of Africans.