CUSTOMARY LEGAL SYSTEM

This is the legal system that originated from norms, culture, customs and practices over specific
community and punishments are provided for protection of morals on the said community as
provided under section 11 of Judicature and Application of Laws Act. Customary legal system
involve methods and procedures of customary disputes resolutions.
Laws involves under customary legal system.
I.Customs
II.Traditions
III.Norms
Law makers are the council of elders.
Institution;The council of elders
Its procedures; involve suiting the claim to the council elders, then to the internal moot hence
legally found. And thus practiced through;
MEDIATION
Basing KADUMES CASE, the kadume dispute concerned land, it was a dispute between
Kadume-Makaras son and Soine-Makara’s half-brother, both Kadume and Soine took advantage
of the inner lineage Mesuji. They therefore aimed at restoring the agnatic cooperation
established by Mesuji. Kadumes case was a grieved by the decision made by the inner lineage
then they went to the inter-moot.
• The procedure used is orally because everyone presented the dispute through speaking to the
elders. However the law the law used in this method based on customs and norms of a
particular society. Also the institution used were concealing boards and mediators were the
elders.
DRUMING THE SCANDAL
This was a method of dispute resolution where by the disputants were exchanging hash words
inform of songs and dances. Referring to the case of Tongindi V Mtsweni [1950] under this
dispute both were of the lineage contained with MbaDuku. Mtsweni who was a secondary
marriage guardian of the wife of Torgindi’s son, was accused of highhanded tactics which
caused the marriage to fall through. Mtsweni refused to act as intermediary to get Togindi’s
bride wealth refunded. Torgindi and Mtsweni therefore exchanged harsh words. Both parties
were given chance to sing and dance and both parties concurred in the judgement as Mbatarev
announced the winner where by Torgindi worn the case while Mtsweni had better songs.
•The procedure used determined the winner through songs although both parties were
awarded zero winner, the laws used based on customs and norms of a particular society and
also the institution used were the elders.
TRIAL BY ORDEAL.
This was an ancient practice by which the guilt or Innocence of the accused was determined by
subjecting them into painful or at least unpleasant, usually dangerous experience. Basing on the
case of REX V PALAMBA s/o FUNDIKILA 14 E.A.C.A 96 [1947] This was a trial by ordeal to
discover who had caused the death of eleven children of the first appellant in this case. The two
appellants went to a traditional medicine man (juju man) a six hour journey to get a traditional
medicine called by a witness “MWAVI”, this is a traditional medicine used by witches if a person
takes it and has done something wrong will die but if a person has not done something wrong
will survive but only he/she vomits only. Four women of the family of the appellant were
compelled to take the medicine but two of them died from the medicine but two of them
vomited only and survived.
•The procedure used under trial by ordeal was to give medicine to the suspects in order to
know who did wrong. The laws based on the customs and norms of the particular society and
also the institution used were the witch doctors.
History of the Customary Law .
Customary law is also referred to as” primitive law,” “unwritten law,” “indigenous law,” The
earliest systems of law in human society were customary, and usually developed in small
agrarian and hunter-gatherer communities. As the term implies, customary law is based upon
the customs of a community. Common attributes of customary legal systems are that they are
seldom written down, they embody an organized set of rules regulating social relations, and
they are agreed upon by members of the community. It’s mostly used in Africa over more than
42 countries approximatel include Tanzania.