Magister Philosophiae - MPhil / This research examines the ways in which the rapid commoditisation of land in Ghana’s peri-urban areas is transforming local customary tenure systems. The research focuses on two selected research sites in Ghana’s peri-urban Kumasi, namely Aburaso and Kromoase. Rapid urbanisation has resulted in an increase in demand for housing land. Consequently, wealthy migrants are moving to peri-urban areas in search of relatively affordable residential land. This has accelerated the commoditisation of customary land in most peri-urban areas of Ghana. Customary forms of tenure are increasingly being converted into individual or private systems of land ownership. Evidence from this study shows that traditional authorities are increasingly alienating customary land without the consent of their subjects. The commoditisation of customary land in Aburaso and Kromoase has resulted in the decline of agrarian production as agricultural land is parcelled out to wealthy outsiders.

The thesis interrogates how the political dynamics that emerged in the formulation of the 2016 land legislation in Malawi influenced the gendered outcomes. It highlights the complexity of the policymaking process that was shaped by divergent interests and power dynamics of the stakeholders. It argues that although the interests and agenda complicated the process, their discourses were framed and justified their positions within the development and gender equality framework. It highlights the progressive nature of the socio-legal provisions in the legislation by significantly recognising and promoting women’s land rights. It contends that advances in legal institutions are essential; however, for inclusive transformation to be sustainable, changes in social and cultural practices and norms are imperative. This is because Malawian women continue to face exclusion in owning, controlling and accessing land albeit being the major agricultural producers. This is owed to the persistence of patriarchal attitudes in institutions that perpetuate contestation in the public and private spheres of women’s rights to access, own and control over land. Such is persistent particularly within customary laws which remain sites of struggle between traditional leaders’ claims and women’s societal positions. Hence, creating enabling environments for women will allow them to articulate their political voices and agenda and as such influence policy and legal formulation. Through a multi-faceted approach encompassing of legal pluralism, feminist perspectives on gender and development, and the theory of change, the paper discusses the complexity of policymaking that has been shaped by interests and power. For instance, most chiefs contested against their limited powers and the inclusion of women in land administration issues as stipulated in the new Land Laws, while CSOs advocated for the laws to be people-centred, gender-sensitive and responsive to women’s needs. Also, International organisations were interested in ensuring that there is improved land governance framework and its implementation is in line with VGGT. Thus, apparent realities emerge from the analysis of these political dynamics within the adoption of the 2016 Land Laws: the differing stakeholders’ agenda and how they all pressed on advancing their agenda. Nonetheless, gender equality and development discourse was an aspect that was apparent in the debates.

Magister Artium (Child and Family Studies) - MA(CFS) / An indigenous cultural practice among the many ethnic groups of South Africa, lobola has changed immensely, especially in highly urbanised towns. It has also been the subject of several interpretations in academia, the media, and popular opinion. These have included ethnographic scholarship that focuses on its cultural significance and its centrality to reciprocal relationships between groups. Other academic and activist views criticize how lobola, as a form of bride wealth, instrumentalises women in patriarchal society. In addition, other interpretive strand acknowledges lobola's patriarchal impacts while also recognizing the agencies and choices of women who embrace it. The work demonstrates that women are neither consistent agents nor constant victims of lobola, but that they experience it in different ways. As a result, the study explores how young women‘s situated knowledge helps us understand lobola‘s complex and ambiguous meanings that might assist in comprehending the current connotations of lobola, which are presently complicated and confusing. The current study is concerned with mapping out and analysing the complexities of standpoint knowledge-making that is typically side-lined in the numerous scholarly and activist studies of lobola by selecting a diverse range of young women respondents as well as commentators in the public sphere.

Doctor Legum - LLD / Traditional justice systems (TJS), which apply African customary law (ACL), play a significant role in the regulation of various cultural, social, and economic spheres of individual lives in society. It is estimated that 90% of African countries use TJS in dispute resolution. Succession matters form one of the areas in which TJS are applied. In Kenya, it is estimated that the majority of succession matters are addressed through TJS given that only 36% of cases are taken to the formal justice system (FJS) for determination. This indicates the presence of legal pluralism where formal law co-exists with African customary law. However, the application of customary succession laws and their enforcement by the FJS encounter impediments which curtail the integration of ACL within the FJS. Therefore, the purpose of this study is to determine the interface between African customary laws of succession in the TJS and the FJS. In order to achieve this objective the study applies the Historical School of Jurisprudence as its theoretical framework and applies document analysis as the research methodology. The major findings of the study indicated that though progressive recognition, application and enforcement of ACL in Kenya has been realised, there are several impediments to the integration and enforcement of customary succession decisions within the FJS. These include non-complimentary legal provisions, lack of in-depth knowledge on ACL by the FJS, and more importantly, lack of a policy guideline on the integration of ACL within the FJS. Based on these findings, this study finds it necessary to develop a guideline that will enhance the integration and enforcement of customary succession decisions by the FJS.

The Constitution stipulates that its value-commitments are to inform the interpretation of statutes and the development of the common law and customary law. Legislative construction and law-application generally are therefore to be perceived as involving an axiological dimension. Three hermeneutical traditions are dealt with to the end of clarifying the approaches to be adopted in everyday legal• argumentation. The study culminates in the adduction of leads for substantive !juridical argument in the process of statutory interpretation and in handling common-law and customary-law sources. These leads are shown to be functional byi way of a critical discussion of recent case law and a conspectus of contemporary t~ought bearing on the nature of customary law. The social dimension of the legal process is throughout underscored as a factor of significance. Concomitantly, it is rcigistered that the jurisprudence of formalism, so marked an attitude of a previous time, should be abjured to the extent that it is disdainful of value-commitment. Conformably, literalist and literalist-cumintentionalist perceptions as well as kindred stances are berated. The penultimate chapter of this thesis suggests an encompassing approach to the interpretation of statutes, comprised of a systematic tabulation of insights previously garnered. The fmal chapter postulates that common law and customary law are not to be dealt with upon an interchangeable basis, inasmuch as the sources go out from radically divergent premises. It then proceeds to elaborate a conceptual framework for dealing respectively with each of these sources. / Law / LL.D.

In many ways, coastal marine resources have provided an important source of protein, income and even employment for coastal rural Solomon Islands communities. Fishing, for instance, has always played a very important role in these communities' culture and tradition. Subsistence fishing is traditional in most rural coastal communities. Small-scale fishing is also wide-spread. Traditionally marine areas and resources were managed by the custodians of the adjacent land and the traditional leaders in some local communities. While small-scale fisheries are managed by the Government, much of the enforcement responsibility is in the hands of the community leaders, given the realities of what that Government can provide. This research has explored the interaction between rural coastal livelihoods and marine resource management under Customary Marine Tenure (CMT) in one area of Temotu Province, Solomon Islands. Specifically the research seeks to explore, explain and describe how the livelihoods of the rural coastal villagers influence the use, access and management of marine resources and vice versa. Particular attention has been given to: first exploring the traditional marine resource management under CMT and livelihoods in the three villages; second, how the changes in the villagers' livelihoods system affects the customary marine resource management in the three case study villages; third, how changes in customary marine resource management influences the livelihoods of the villagers and finally the nature of the relationship between livelihoods and customary marine resource management is described for the first time for this part of the Solomon Islands. The research results showed that villagers' livelihoods have changed over the past decade and much of these changes have affected the customary marine resource management in the three case study villages. Consequently, customary marine resource management under CMT is no longer effective. The changes in customary marine resource also have implications on the villagers' livelihoods. For this reason the study argues that when trying to understand the factors affecting customary marine resource, the entire livelihoods system of the people should be considered. The study states that the nature of the interactions between livelihoods and customary marine resource management is a two-way relationship, dynamic and very complex. Should there be further marine resource development, the study suggests that understanding the livelihoods of the people concerned is important for better management.

The Constitution stipulates that its value-commitments are to inform the interpretation of statutes and the development of the common law and customary law. Legislative construction and law-application generally are therefore to be perceived as involving an axiological dimension. Three hermeneutical traditions are dealt with to the end of clarifying the approaches to be adopted in everyday legal• argumentation. The study culminates in the adduction of leads for substantive !juridical argument in the process of statutory interpretation and in handling common-law and customary-law sources. These leads are shown to be functional byi way of a critical discussion of recent case law and a conspectus of contemporary t~ought bearing on the nature of customary law. The social dimension of the legal process is throughout underscored as a factor of significance. Concomitantly, it is rcigistered that the jurisprudence of formalism, so marked an attitude of a previous time, should be abjured to the extent that it is disdainful of value-commitment. Conformably, literalist and literalist-cumintentionalist perceptions as well as kindred stances are berated. The penultimate chapter of this thesis suggests an encompassing approach to the interpretation of statutes, comprised of a systematic tabulation of insights previously garnered. The fmal chapter postulates that common law and customary law are not to be dealt with upon an interchangeable basis, inasmuch as the sources go out from radically divergent premises. It then proceeds to elaborate a conceptual framework for dealing respectively with each of these sources. / Law / LL.D.

LLM / Department of Public Law

Indiana University-Purdue University Indianapolis (IUPUI) / This study examines the history of Indian-settler legal relations in Indiana, from the state’s pre-territorial period to the late-nineteenth century. Through a variety of interdisciplinary sources and methods, the author constructs a broad narrative on the evolution and co-existence of Native and non-Native customary legal systems in the region, focusing on matters related to marriage, property rights, and testimony. The primary thesis—which emphasizes reciprocally formative relations, rather than persistent conflict—suggests that Indiana’s pre-modern legal past involved an ad hoc yet highly effective process of cultural brokerage, reciprocity and inter-personal accommodation. That the American Indians lost much of their self-governing status following the period of contact is clear; however, a closer look at the ways in which nations historically defined, exercised, asserted, and shared jurisdiction, reveals a more intricate story of influence, authority, and concession. During the French and British colonial and American territorial periods, settler society adjusted to and often accommodated Native concepts of law and justice. Through a complex order of social obligations and community-based enforcement mechanisms, a shared set of rules and jurisdictional practices merged, forming a hybrid system of Indian-settler norms that bound these individuals across the cultural divide. When Indiana entered the Union in 1816, legal pluralism defined jurisdictional practice. However, with the nineteenth-century rise of legal positivism—the idea of law as the sole command of the nation-state, a sovereign entity vested with exclusive authority—territorial jurisdiction and legal uniformity became guiding principles. Many jurists viewed the informal, pre-existing custom-based regulatory structures with contempt. With the shift to a state-centered legal order, lawmakers established strict standards for recognizing the law of the “other,” ultimately rejecting the status of the tribes as equal sovereigns and forcing them to concede jurisdiction to the settler polity.

No abstract available / Thesis (DPHil)--PU vir CHO, 1982