The article examines how to address the report of the African Union Commission of Inquiry on South Sudan, which accuses the Government of South Sudan and the rebels of committing “crimes against humanity” and violating “international humanitarian law” in the war of December 2013. The Commission recommends “an Africa-led, Africa-owned, Africa-resourced legal mechanism, under the aegis of the African Union and with support from the United Nations, to bring those with the greatest responsibility at the highest level to accountability” in a court. Second, the Agreement on the Resolution of the Conflict in the Republic of South Sudan asked for establishing a hybrid court in South Sudan to investigate and prosecute the perpetrators of “genocide, crimes against humanity and war crimes”. The Cabinet of South Sudan approved, in its resolution on 29 January 2021, the establishment of the court. On the other hand, the Government of South Sudan rejected accountability for the perpetrators of international crimes in its resolution at the Transition Justice Conference and recommended “amnesty” for those admitting the commission of international crimes in Juba, Malakal, Bor and Bentiu. The research findings show that amnesty threatens peace and security because customary law rejects amnesty. Its implementation generates systematic vengeance from the clan of those killed. The research recommends the establishment of a hybrid court that adopts the complementarity principle in compatibility with the African customary law of blood compensation. The authoritative national criminal courts in South Sudan omit capital punishment on the grounds that (a) killer(s) pay(s) blood compensation, apok or cot, to the survivors of (a) killed person(s) with 51 cattle. The payment changes the penalties of life imprisonment, which international criminal law imposes on the perpetrators of international crimes and the death penalty, which African criminal law imposes on the confirmed killer(s). Finally, the tribunal imposes 10-year terms of imprisonment on the confirmed perpetrators of international crimes.

Traditional knowledge forms the fabric of indigenous communities’ social and economic life. Its attempted protection through intellectual property law has been dismal. There is now wide consensus that sui generis regimes should be employed for this purpose, and that customary laws are conceivable as an integral part of such protection. This article finds that the expressed legislative intent to protect traditional knowledge through customary law in Kenya is ill-fated. Sustained inclusive subordination of the latter will obstruct any meaningful efforts to protect the former. This finding is reached by an examination of the historical application of African customary law in personal law regimes that have it as the defining legal regimen. This history is one of subtle subordination, and such subtlety remains embedded even in Kenya's law on traditional knowledge. The unpleasant effects of this phenomenon as observed in personal law regimes are likely to recur for traditional knowledge.

Woman-to-woman marriage is a form of customary marriage between two women, predominantly found in Africa. These customary marriages have been and to some extent still are conducted by various communities across Africa, including in Kenya. Communities such as the Kamba, Kisii, Nandi, Kikuyu and Kuria practise woman-to-woman marriages for a variety of reasons. The legal status of woman-to-woman marriages in Kenya is uncertain due to the provisions of article 45(2) of Kenya's Constitution of 2010 and section 3(1) of the Marriage Act of 2014, which stipulate that adults only have the right to marry persons of the opposite sex. However, a holistic and purposive reading of the constitution, taking into consideration its recognition of culture and the protection of children as important values in Kenyan society, and considering the historical context within which the provisions concerning same-sex marriages were included, leads to the conclusion that these provisions were not intended to proscribe the cultural practice of woman-to-woman marriage in Kenya. The constitutional validity of woman-to-woman marriage opens the door to a more expansive and fluid understanding of “family” in Kenya.

Taslim Elias's scholarship on the impact of English common law on the growth of African customary law illustrates the intersectionality negotiated between ‘centre’ and ‘periphery’, universal and subaltern laws. His intellectual portrait is also useful as a heuristic device to excise the doctrines, strategies, imageries, and narratives of progress elaborated about ‘Africa’ and ‘law’. Elias decried the contempt and ignorance exhibited by colonial masters towards native customs and laws; he also vilified judicially crafted ‘repugnancy’ and ‘public policy’ doctrines as instruments of colonial policy to prevent British justice from looking both ways, by ensuring that British standards were the ‘objective’ criteria of abrogation and change. Yet he nonetheless saw these doctrines and English law as a unifying force in the emergence of a unified Nigerian legal system. This article argues that this paradox in Elias's work and his struggle against the asserted dualism between English law and African customary law must be situated in the context of the rise of an African legal consciousness or juridical Negritude, home to various political projects of nation-building, African cultural liberation, and development which strategically intersected in their unstable relationship to law and Western culture. This signals a turn to ‘hybridity’ in legal discourse and Elias's professional trajectory seeking to develop a uniform common law for Nigeria as a way to explicate the workings of this relationship, and how African law is inscribed in the interplay of cultural forces constantly (re)negotiating the boundaries of their engagement with one another. This, in turn, reveals a complex picture of mediating between the simultaneous participation of Third World intellectuals in various struggles and personal or ideological projects within African humanism, which an analysis structured around the stability of centres/peripheries conventionally distorts.