THE INTERACTION OF WESTERN AND AFRICAN TRADITIONAL SYSTEMS OF JUSTICE: THE PROBLEM OF INTEGRATION. (A CASE STUDY OF THE GAMBIA)

Since the expansion of Islam around the 11th Century and the 19th Century infiltration of European imperialism in West Africa, the societies in that part of the world have been impelled to accomodate two other cultural orders, in addition to their own: Islamic and Western. With specific reference to legal systems, the situation has given rise to a triangular interaction of African traditional, Islamic and Western judicial ideas, concepts and principles. Although the three judicial systems occasionally accommodate each other, inevitably the interaction is frequently plagued with conflict. In addition to areas of judicial philosophy and procedure, the conflict often stems from differences in the definitions of and concepts of crime and criminal situations. Thus, the dynamics of legal development and criminological research are impeded. This dissertation aims at revealing the details of the contradictions and the conflicts among the principles, concepts and organizations of the various legal systems. It is hoped that this analysis will facilitate the formulation of strategies to which individuals and groups may resort to minimize discordances, conflicts of interest, incompatibilities, etc. By means of literature search and field work, the methodology involved the examination of the Gambian society at two levels: the superficial level, represented by the official structures; and the deeper level where the fundamental relationships and practices are revealed. The research was conducted, therefore, from the retrospective and the present points of reference; that is, an examination of the society both before and after the advent of Western and Islamic judicial systems. In addition, in order to isolate the general areas of conflict and accommodation, the general principles and concepts of the various legal orders are compared. As a result of this examination, it has been concluded that a uniform, consistent and more harmonious legal system may be achieved with the proper adaptation of Islamic and Western judicial elements to local conditions. This conclusion, however, does not suggest a return to the archaic forms of the indigenous judicial system which would be irrelevant within the contemporary situation. The dissertation concludes with some recommendations towards a policy of legal reform