Introduction

Institutions represent an enduring collection of formal laws and informal rules, customs, codes of conduct, and organized practices that shape human behavior and interaction. Three layers of institutions characterize most African countries. One layer represents the formal institutions (laws) of the state. Another layer represents the societal norms and customs that differ along various cultural traits. A third layer lies between the other two layers and is referred to in this article as “traditional” institutions. Many African countries, Ghana and Uganda, for example, have, like all other states, formal institutions of the state and informal institutions (societal norms, customs, and practices). In addition, they have traditional institutions of governance of various national entities, including those surrounding the Asantehene of the Ashanti in Ghana and the Kabaka of the Buganda in Uganda. Many other countries have non-centralized elder-based traditional institutions. This layer of institutions is the subject of inquiry of this article.

Before delving into the inquiry, clarification of some issues would be helpful in avoiding confusion. One is the controversy over what constitutes traditional institutions and if the African institutions referred to as “traditional” in this inquiry are truly indigenous traditions, since colonialism as well as the postcolonial state have altered them notably, as Zack-Williams (2002) and Kilson (1966) observe. There is little doubt that colonial occupation and the ensuing restructuring of African political entities and socioeconomic systems altered African traditional institutions of governance. The colonial state, for example, invented chiefs where there were no centralized authority systems and imposed them on the decentralized traditional systems, as among the Ibo of Eastern Nigeria, the Tonga in Zambia, various communities in Kenya, and the communities in Somalia. In the centralized systems also, traditional leaders of various titles were reduced to “chiefs” and the colonial state modified notably the relations between the chiefs and their communities by making the chiefs accountable to the colonial state rather than to their communities (Coplan & Quinlan, 1997).

However, institutions are rarely static and they undergo changes induced by internal transformations of broader socioeconomic systems or by external influences or imposition, and in some cases by a combination of the two forces. Despite undergoing changes, present-day African traditional institutions, namely the customary laws, the judicial systems and conflict resolution mechanisms, and the property rights and resource allocation practices, largely originate from formal institutions of governance that existed under precolonial African political systems. The introduction of alien economic and political systems by the colonial state relegated Africa’s precolonial formal institutions to the sphere of informality, although they continued to operate in modified forms, in part due to the indirect rule system of colonialism and other forms of reliance by colonial states on African institutions of governance to govern their colonies.

Traditional institutions have continued to metamorphose under the postcolonial state, as Africa’s socioeconomic systems continue to evolve. Despite such changes, these institutions are referred to as traditional not because they continue to exist in an unadulterated form as they did in Africa’s precolonial past but because they are largely born of the precolonial political systems and are adhered to principally, although not exclusively, by the population in the traditional (subsistent) sectors of the economy. Subsequent to the colonial experience, traditional institutions may be considered to be informal institutions in the sense that they are often not sanctioned by the state. However, they are not merely customs and norms; rather they are systems of governance, which were formal in precolonial times and continue to exist in a semiformal manner in some countries and in an informal manner in others.¹

Another issue that needs some clarification is the neglect by the literature of the traditional institutions of the political systems without centralized authority structures. With the exceptions of a few works, such as Legesse (1973), the institutions of the decentralized political systems, which are often elder-based with group leadership, have received little attention, even though these systems are widespread and have the institutions of judicial systems and mechanisms of conflict resolution and allocation of resources, like the institutions of the centralized systems. This article contends that postcolonial African traditional institutions lie in a continuum between the highly decentralized to the centralized systems and they all have resource allocation practices, conflict resolution and judicial systems, and decision-making practices, which are distinct from those of the state.

The article has three principal objectives and is organized into four parts. The first three parts deal with the principal objectives of the article. The fourth part draws a conclusion with a tentative proposal on how the traditional institutions might be reconciled with the formal institutions to address the problem of institutional incoherence. The first objective of the article is to shed light on the socioeconomic foundations for the resilience of Africa’s traditional institutions. A second objective is to draw a tentative typology of the different authority systems of Africa’s traditional institutions. A third objective is to examine the relevance of traditional institutions.

Why African Traditional Institutions Endure

African traditional institutions continue to exist in most African countries, albeit at different levels of adherence by the populations of the continent. Their endurance and coexistence with the institutions of the state has created an institutional dichotomy in much of Africa. The origins of this institutional duality, the implications of which are discussed in “Relevance and Paradox of Traditional Institutions,” are largely traceable to the colonial state, as it introduced new economic and political systems and superimposed corresponding institutional systems upon the colonies without eradicating the existed traditional economic, political, and institutional systems. The end of colonialism, however, did not end institutional dichotomy, despite attempts by some postcolonial African states to abolish the traditional system, especially the chieftaincy-based authority systems. Why traditional institutional systems endure, how large the adherents to them is, and why populations, especially in rural areas, continue to rely on traditional institutions, even when an alternative system is provided by the state, and what the implications of institutional dichotomy is are questions that have not yet received adequate attention in the literature.

This short article does not attempt to provide answers to all these questions, which require extensive empirical study. The scope of the article is limited to an attempt to explain how the endurance of African traditional institutions is related to the continent’s economic systems and to shed light on the implications of fragmented institutional systems. Institutional systems emanate from the broader economic and political systems, although they also affect the performance of the economic and political systems. Changes in economic and political systems trigger the need for new institutional systems to manage the new economic and political systems, while endurance of economic and political systems foster durability of existing institutional systems. Africa’s economic systems range from a modestly advanced capitalist system, symbolized by modern banking and stock markets, to traditional economic systems, represented by subsistent peasant and pastoral systems. These different economic systems have corresponding institutional systems with divergent property rights laws and resource allocation mechanisms, disparate decision-making systems, and distinct judicial systems and conflict resolution mechanisms. Pastoral economic systems, for example, foster communal land tenure systems that allow unhindered mobility of livestock, while a capitalist economic system requires a private land ownership system that excludes access to others and allows long-term investments on land. Land privatization is, thus, unworkable in pastoral communities, as communal land ownership would be unworkable in a capitalist economy.

A look at the economic systems of the adherents of the two institutional systems also gives a good indication of the relations between economic and institutional systems. Africa’s rural communities, which largely operate under subsistent economic systems, overwhelmingly adhere to the traditional institutional systems while urban communities essentially follow the formal institutional systems, although there are people who negotiate the two institutional systems in their daily lives. The reasons why rural communities adhere to the traditional institutions are many (Logan, 2011; Mengisteab & Hagg, 2017). Some live in remote areas beyond the reach of some of the institutions of the state, such as courts. Others choose the traditional institutions, for example, in settling disputes because of lower transactional costs. Some trust traditional leaders more than they trust state authorities. Many others choose the customary laws and conflict resolution mechanisms because they correspond better to their way of life.

Extensive survey research is required to estimate the size of adherents to traditional institutions. Evidence from case studies, however, suggests that the size of adherents varies from country to country. Roughly 80% of rural populations in selected research sites in Ethiopia, for example, say that they rely on traditional institutions to settle disputes, while the figure is around 65% in research sites in Kenya (Mengisteab & Hagg, 2017). A key factor in the size of adherents of rural institutions, however, seems to depend on the ratio of the population in the traditional economic systems to the total population. Comparing Ethiopia and Kenya, for example, shows that adherents to the traditional institutional system is greater in Ethiopia than in Kenya, where the ratio of the population operating in the traditional economic system is smaller and the penetration of the capitalist economic system in rural areas is deeper.

Institutional dichotomy also seems to be a characteristic of transitional societies, which are between modes of production. As noted, African countries have experienced the rise of the modern (capitalist) economic system along with its corresponding institutional systems. However, the traditional modes of production and the institutional systems associated with them also remain entrenched among large segments of the population. The size and intensity of adherence to the traditional economic and institutional systems, however, vary from country to country. In other words, the transition from traditional modes of production to a capitalist economic system has advanced more in some countries than in others. According to this analysis, Africa’s traditional institutional systems are likely to endure as long as the traditional subsistent economic systems continue to exist.

Authority Systems of Africa’s Traditional Institutions

The structures of leadership of African traditional institutions are diverse and they have yet to be mapped out comprehensively. It is also challenging to map them out without specifying their time frame. This is in part because the role of traditional leaders has changed over time. The colonial state modified their precolonial roles. It assigned them new roles while stripping away some of their traditional roles. In the postcolonial era, their roles changed again. The roles assigned to them by the colonial state came to an end, and the new state imposed its own modifications of their roles. As a result, it becomes highly complex to analyze their roles and structures without specifying the time frame. Analysis here is thus limited to traditional authority systems under the postcolonial experience. Based on existing evidence, the authority systems in postcolonial Africa lie in a continuum between two polar points. On the one side, there are the centralized systems where leaders command near absolute power. On the opposite side are the decentralized systems, led by a council of elders, that command little formal power. Within this spectrum, some eight types of leadership structures can be identified. They include:

As noted, there are notable differences in the authority systems of African traditional institutions. The differences are in terms of how leaders come to assume their positions, how much power they command, and how accountable they are to their communities. How these differences in leadership structures impinge on the broader institutions of resources allocation patterns, judicial systems, and decision-making and conflict resolution mechanisms is still understudied. Indications are, however, that the more centralized the system is, the lower the accountability and popular participation in decision making. However, at the lower level of the hierarchy of the centralized system, the difference between the centralized and decentralized systems tends to narrow notably.

Relevance and Paradox of Traditional Institutions

Following decolonization, several African countries attempted to abolish aspects of the traditional institutional systems. Countries such as Burkina Faso, Guinea, Tanzania, Uganda, Zambia, and Zimbabwe, for example, attempted to strip chiefs of most of their authority or even abolish chieftaincy altogether. There were several reasons for such measures. One is that the leaders of the postcolonial state saw traditional institutions and their leadership as archaic vestiges of the past that no longer had a place in Africa’s modern system of governance. Another reason is that African leaders of the postcolonial state, who wanted to consolidate their power, did not want other points of power that would compromise their control. There are also various arguments in the literature against traditional institutions.² One argument is that chieftaincy impedes the pace of development as it reduces the relevance of the state in the area of social services (Tom Mboya in Osaghae, 1989). A second argument is that traditional institutions are hindrances to the development of democratic governance (Mamdani, 1996; Ntsebeza, 2005). A third argument claims that chieftaincy heightens primordial loyalties, as chiefs constitute the foci of ethnic identities (Simwinga quoted in van Binsberger, 1987, p. 156). A more recent argument is that traditional institutions are incompatible with economic, social, and civil rights (Chirayath, Sage, & Woolcock, 2005).

The abolishment of chieftaincy does not eradicate the system’s broader underlying features, such as customary law, decision-making systems, and conflict resolution practices. It is also highly unlikely that such broader aspects of traditional institutions can be eliminated without transforming the traditional modes of production that foster them. Thus, despite abolition efforts by postcolonial states and the arguments against the traditional institutions in the literature, the systems endure and remain rather indispensable for the communities in traditional economic systems. Most of the states that had attempted to abolish chieftaincy have retracted the abolitionist decrees and reinstated chiefs.

A partial explanation as to why the traditional systems endure was given in the section “Why African Traditional Institutions Endure.” The argument in that section was that they endure primarily because they are compatible with traditional economic systems, under which large segments of the African population still operate. Table 1 shows the proportion of the population that operates under traditional economic systems in selected African countries. This section grapples with the questions of whether traditional institutions are relevant in the governance of contemporary Africa and what implications their endurance has on Africa’s socioeconomic development.

The endurance of traditional institutions entails complex and paradoxical implications for contemporary Africa’s governance. On the one hand, traditional institutions are highly relevant and indispensable, although there are arguments to the contrary (see Mengisteab & Hagg [2017] for a summary of such arguments). They are already governing much of rural Africa. On the other hand, their endurance creates institutional fragmentation that has adverse impacts on Africa’s governance and socioeconomic transformation. To complicate matters further, the role of traditional institutions is likely to be critical in addressing the problem of institutional fragmentation. This section attempts to explain these seemingly contradictory implications of traditional institutions.

With respect to their relevance, traditional institutions remain indispensable for several reasons. Chief among them is that they remain key players in governing and providing various types of service in the traditional sector of the economy because of their compatibility with that economic system. They are the key players in providing judicial service and in conflict management in much of rural Africa. As a United Nations Economic Commission for Africa (UNECA) study (2007) notes, traditional leaders often operate as custodians of customary law and communal assets, especially land. They dispense justice, resolve conflicts, and enforce contracts, even though such services are conducted in different ways in different authority systems. They also serve as guardians and symbols of cultural values and practices. In addition, according to Chirayath et al. (2005), customary systems operating outside of the state regime are often the dominant form of regulation and dispute resolution, covering up to 90% of the population in parts of Africa. In Sierra Leone, for example, approximately 85% of the population falls under the jurisdiction of customary law, defined under the constitution as “the rules of law” which, by custom, are applicable to particular communities in Sierra Leone. Customary law also manages land tenure and land allocation patterns. While comprehensive empirical studies on the magnitude of adherence to traditional institutions are lacking, some studies point out that most people in rural areas prefer the judicial service provided by traditional institutions to those of the state, for a variety of reasons (Logan, 2011; Mengisteab & Hagg, 2017).

A related reason for their relevance is that traditional institutions, unlike the state, provide rural communities the platform to participate directly in their own governance. Decision making is generally participatory and often consensus-based. Similarly, the process of conflict resolution is undertaken in an open assembly and is intended to reconcile parties in conflict rather than to merely punish offenders. Allocation of resources, such as land, is also much more egalitarian under the traditional system than it is under the private ownership system in the formal state system. Additionally, the transaction costs for services provided by the traditional institutions are much lower than the services provided by the state. Settling a case in an official court, for example, may involve long-distance travel for villagers and it may require lawyers, translators, a long wait, and court fees, while a traditional court rarely involves such costs and inconveniences.

Beyond the traditional sector, traditional institutions also have important attributes that can benefit formal institutions. Among the attributes of the traditional system with such potential is the system’s transparent and participatory process of resolving conflicts, which takes place in open public meetings. Such a consensus-building mechanism can help resolve many of the conflicts related to diversity management and nation-building. A second attribute is the participatory decision-making system. While this attribute of the traditional system may not be practical at the national level, it can be viable at local levels and help promote democratic values. The guiding principle behind these two attributes is that conflict is a societal problem and that resolving conflict requires societal engagement. In addition, resolution needs to be acceptable to all parties. This principle is particularly relevant for diversity management, nation-building, and democratization in contemporary Africa.

The participatory and consensus-based system of conflict resolution can also govern inter-party politics and curtail the frequent post-election conflicts that erupt in many African countries. Under conditions where nation-building is in a formative stage, the retribution-seeking judicial system and the “winner-take-all” multiparty election systems often lead to combustible conditions, which undermine the democratization process. Basing key political decisions on broad societal and inter-party consensus may help to de-escalate cutthroat competition that often leads to violent conflicts. Such adjustments, however, may require contextualization of the institutions of democracy by adjusting these institutions to reflect African realities.

While traditional institutions remain indispensable for the communities operating under traditional economic systems, they also represent institutional fragmentation, although the underlying factor for fragmentation is the prevailing dichotomy of economic systems. Regardless, fragmentation of institutional systems poses a number of serious challenges to Africa’s governance and economic development. Among the key challenges associated with institutional fragmentation are the following:

Policy incoherence: Fragmented economies and institutions represent dichotomous socioeconomic spaces, which makes it highly challenging for policy to address equitably the interests of the populations in these separate socioeconomic spaces. Given its institutional disconnect with the state, the traditional sector and the communities that operate under it invariably face marginalization in influencing policy as well as in access to economic resources throughout the continent. Uneven access to public services, such as educational, health, and communication services, and the disproportionately high poverty rates in the traditional sector are manifestations of the sector’s marginalization. Its marginalization, in turn, impedes the transformation of the traditional sector, thus extending the fragmentation of institutions.

Judicial marginalization: Another challenge posed by institutional fragmentation relates to marginalization of the traditional system within the formal legal system. While empirical data are rather scanty, indications are that the traditional judicial system serves the overwhelming majority of rural communities (Mengisteab & Hagg, 2017). In some countries, such as Botswana, customary courts are estimated to handle approximately 80% of criminal cases and 90% of civil cases (Sharma, 2004). Yet, the traditional judicial system in most cases operates outside of the state’s institutional framework. As a result, customary law, which often is not recognized by the state or is recognized only when it does not contradict the constitution, does not protect communities from possible transgressions by the state. Customary law, for example, does not protect communities from violations of their customary land rights through land-taking by the state. The traditional justice system, thus, does not have the power to grant any rights beyond the local level.

Societal conflicts: Institutional dichotomy often entails incompatibility between the systems. As institutional scholars state, institutional incompatibility leads to societal conflicts by projecting different laws governing societal interactions (Eisenstadt, 1968; Helmke & Levitsky, 2004; March & Olsen, 1984; North, 1990; Olsen, 2007). Different property rights laws are a notable source of conflict in many African countries. Competing land rights laws, for instance, often lead to appropriations by the state of land customarily held by communities, triggering various land-related conflicts in much of Africa, especially in areas where population growth and environmental degradation have led to land scarcity.

Poor state–society relations and weak state legitimacy: Another critical outcome of institutional fragmentation and institutional detachment of the state from the overwhelming majority of the population is weak legitimacy of the state (Englebert, 2000). Any insurrection by a segment of the population has the potential to bring about not only the downfall of governments but also the collapse of the entire apparatus of the state because the popular foundation of the African state is weak.

Poor gender relations: Traditional institutions share some common weaknesses. Perhaps one of the most serious shared weakness relates to gender relations. Although considerable differences exist among the various systems, opportunities for women to participate in decision making in most traditional systems are generally limited. Often women are excluded from participation in decision making, especially in patrilineal social systems. Women’s access to property rights is also limited, as they are often denied the right of access to inheritance as well as equal division of property in cases of divorce. In some cases, they are also denied child custody rights. Women’s inequality in the traditional system is related, at least in part, to age- and gender-based divisions of labor characterizing traditional economic systems. Safeguarding women’s rights thus becomes hard without transforming the economic system under which they operate.

Obstruction of nation-building: Nation-building entails a process of integrating different segments of the citizenry to form a community of citizens under shared institutions. This process becomes difficult when citizens are divided into parallel socioeconomic spaces with different judicial systems, property rights laws, and resource allocation mechanisms, which often may conflict with each other.

Hindrance to democratization: Perhaps among the most important challenges institutional fragmentation poses is to the process of democratization. The same factors that hinder nation-building hinder democratization. Additionally, inequalities between parallel socioeconomic spaces, especially with respect to influence on policy, hinder a democratic system, which requires equitable representation and inclusive participation. No doubt rural communities participate in elections, although they are hardly represented in national assemblies by people from their own socioeconomic space. However, their participation in the electoral process has not enabled them to influence policy, protect their customary land rights, and secure access to public services that would help them overcome their deprivation. The Oxford Poverty and Human Development Initiative (Alkire, Chatterjee, Conconi, Seth, & Vaz, 2014) estimates that the share of rural poverty to total poverty in sub-Saharan Africa is about 73.8%. The population in the traditional system thus faces a vicious cycle of deprivation. Its ability to influence policy is limited in large part because of its institutional detachment from the state and because of its poverty and lack of capacity to participate in the political process. Its lack of influence on policy also leads to its marginalization in accessing resources and public services, resulting in poverty, poor knowledge, and a poor information base, which, in turn, limits its ability to exert influence on policy.

To sum up, traditional institutions provide vital governance services to communities that operate under traditional socioeconomic spaces. As a result, they are not dispensable as long as the traditional economic systems endure. However, their endurance, along with that of traditional economic systems, have fostered institutional fragmentation, which has serious adverse effects on Africa’s governance and economic development. Unfortunately, little attention by African governments has been given to this paradoxical aspect of traditional institutions.

Conclusion

The analysis presented here suggests that traditional institutions are relevant in a number of areas while they are indispensable for the governance of Africa’s traditional economic sector, which lies on the fringes of formal state institutions. At the same time, traditional institutions represent institutional fragmentation, which has detrimental effects on Africa’s governance and economic transformation. Since institutional fragmentation is a major obstacle to nation-building and democratization, it is imperative that African countries address it and forge institutional harmony. It is unlikely, however, that such harmony can be brought about by measures that aim to abolish the traditional system, as was attempted by some countries in the aftermath of decolonization. This fragmentation is also unlikely to go away anytime soon on its own.

An alternative strategy of bringing about institutional harmony would be to transform the traditional economic systems into an exchange-based economy that would be compatible with the formal institutions of the state. Such a transformation would render traditional institutions dispensable. Unfortunately, transforming the traditional sector is not an easy undertaking and cannot be achieved in a reasonably short time. Transforming the traditional economic system is also likely to require embracing and utilizing the traditional institutional systems as vehicles for the provision of public services.

Perhaps a more realistic transitional approach would be to reconcile the parallel institutions while simultaneously pursuing policies that transform traditional economic systems. Reconciling the parallel institutional systems is also unlikely to deliver the intended results in a short time; however, there may not be any better alternatives. Most African countries have yet to develop carefully considered strategies of how to reconcile their fragmented institutional systems. However, three countries, Botswana, Somaliland, and South Africa, have undertaken differing measures with varying levels of success. South Africa’s strategy revolves around recognition of customary law when it does not conflict with the constitution and involves traditional authorities in local governance. Botswana’s strategy has largely revolved around integrating parallel judicial systems. Somaliland’s strategy has brought traditional leaders into an active role in the country’s formal governance by creating an upper house in parliament, the Guurti, where traditional leaders exercise the power of approving all bills drafted by the lower house of parliament. Additionally, the Guurti is charged with resolving conflicts in the country using traditional conflict resolution mechanisms.

The three countries have pursued rather different strategies of reconciling their institutional systems and it remains to be seen if any of their strategies will deliver the expected results, although all three countries have already registered some progress in reducing conflicts and in advancing the democratization process relative to countries around them. Despite apparent differences, the strategies of the three countries have some common features as well that may inform other counties about the measures institutional reconciliation may entail.

One common feature is recognition of customary property rights laws, especially that of land. It is imperative that customary land rights are recognized and respected so that communities in the traditional economic system exercise control of land and other resources under their customary ownership, at least until alternative sources of employment are developed to absorb those who might be displaced. Violating customary property rights, especially land takings, without adequate compensation impedes institutional reconciliation by impoverishing rather than transforming communities operating in the traditional economic system.

Another common feature is the involvement of traditional authorities in the governance process, at least at the local level. Communities in the traditional socioeconomic space are hardly represented in any of the organizations of the state, such as the parliament, where they can influence policy and the legal system to reflect their interests. Under the circumstances, it becomes critical that traditional leaders are directly involved in local governance so that they protect the interests of their communities. Traditional leaders would also be able to use local governance as a platform for exerting some influence on national policymaking.

Another measure is recognition of customary law and traditional judicial systems by the state. Traditional institutions already adjudicate undisclosed but large proportions of rural disputes. In this respect, they complement official courts that are often unable to provide court services to all their rural communities. However, the traditional judicial system has some weaknesses, especially with respect to gender equality. States would be more effective in reforming the traditional judicial system if they recognized them rather than neglecting them, as often is the case.

In addition to these measures, reconciling fragmented institutions would be more successful when governments invest more resources in transforming the traditional socioeconomic space. Greater access to public services and to productivity-enhancing technology would also help in enhancing the transformation of the subsistence sector.