The influence of European models of law in African and Asian legal systems.
The legal systems of many African and Asian countries have been shaped by the history of colonialism and European powers. Colonial law was a method of imposing a particular set of patterns and norms on acquired territory or subordinate peoples. These laws were often used by colonizers to deal with land disputes visa via the colonized peoples. After decolonization, and rise of modern nations states on these continents the vestiges of formal colonial structures largely remained intact. The difference in Europeans legal systems can be viewed on their impact on colonized countries. The British Empire introduced the common law and judge based system of legal jurisprudence. While the French, Dutch and Portuguese Empires introduced a Civil Code of laws which applied comprehensive governance to every area of the citizen’s life.
The Nigerian, Ghanaian, Singaporean and Indian Legal systems are all based on the British Common Law system. The common law system relies on the presumption of innocence in criminal cases. The prosecution and defense at trial both present their cases to the Jury or Judge. All arguments between the two, and the examination of witnesses, are conducted in open court, and reviewed by a judge. The winning party is decided by who presents the best case. The right to be tried by a jury of ordinary citizens is an important by of the case. In only a select number of cases will the Judge be the decider of the case. In most former colonies the common law system has been modified slightly. For example in Nigeria and India there is no automatic right to a Jury, the decider of the case is generally the Judge. Jury trials were abolished in India in 1960 as they were deemed to be susceptible to outside influences. However, trial by Jury in Ghana for most criminal cases is still mandated.
In comparison the Ivory Coast inherited the civil code system from France. The inquisitorial French system of justice relies heavily on the powers of the magistrate. The presumption of innocence is not as strong in Inquisitorial system as in the common law system. The independent magistrate is empowered to investigate all the evidence, both incriminating and exculpating, before a case goes to court. The magistrate is independent of the government and the prosecution service, but works with the police. Large portions of the finding and trial of the evidence is done in secret or without public knowledge. This includes questioning of witnesses, DNA testing, recreation of scenes and other evidence gathering. The final report of the investigating magistrate is supposed to contain all the evidence favorable to both defense and prosecution.
European models have also transferred the same endemic problems from their own systems to their former colonies. The French Civil Code system relies heavily on procedures which can be viewed as archaic and slow to change. As changing the code would require an act of parliament and introduction of new statutes.
This can be seen quite clearly in the African context where governments are heavily bureaucratic and the enactment of new laws can take decades. Secondly, the power of the magistrate to investigate crimes is only as far reaching as the resources available. The sole reliance on the magistrate to collect and gather information can lead to ineffective law enforcement in African countries with poorly resourced magistrate offices. Conversely, the foreign English common law systems have also imported similar weaknesses of African countries where inadequate legal representation and evidencing gather based on the individual ability to pay leads to poor governance.
Since decolonization there have been significant changes and an impetus to localize legal systems. For example Singapore has an English law judge based common law system. In some cases judges will still refer to English law cases where they overlap with Singaporeans law. However, the Singaporean English law system should not be viewed in isolation. The judiciary reviews English based law from other commonwealth jurisdictions such Australia and Canada especially if there is a differing approaches. This shows a growth of knowledge within the judiciary in global awareness, legal thought and ideas. In conclusion, most foreign common law systems have adapted and amended their systems to implement local content and broader based jurisprudence.