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NUMÉRO SPÉCIAL AFRIQUE
their civilisation mission, made no secret of what they thought about customary
systems of dispute settlement. According to Ernest Roume, a governor general in
West Africa in the early twentieth century, " to institute a fair and humane system
of justice and guarantee the rule of law, it was necessary for colonizers to wield
ultimate power to settle disputes. " 15
So, while the French established new courts,
which would respect African customs, their officials soon set about modifying
customary laws so that they would conform with the natural law as understood
by them. 16
In tandem, they imposed French laws in the territories they controlled,
including through the Napoleonic Code of Civil Procedure. The extension of French
law to its African territories had a twist. The arbitration-related provisions of the
code of civil procedure were not extended to the French colonies in Africa. 17
This
was despite the extension of a French commercial law in 1925, which recognised
arbitration agreements in commercial matters. 18
In Mauritius, a French colony in
the nineteenth century, then known as Isle de France, before becoming a British
one, the legal regime for arbitration was governed by the Code Napoléon. 19
When
the Isle de France fell to the British, the Capitulation Treaty stated that citizens
could maintain their laws. The Napoleonic Code remains applicable in presentday
Mauritius, but as we will see later in this paper, the arbitration regime in
Mauritius has evolved to include the UNCITRAL Model Law.
The British, who were somewhat more circumspect about their intentions in
Africa, may have approached the colonisation project differently, but its effect was
the same. British officials were indefatigable in their quest to ensure that 'natural
justice' was respected in their protectorates and colonies. So, even though they,
like the French, set up a system of native courts which applied customary law, they
were frustrated by their inability to create order in a context of perceived disorder.
The native courts, which were colonial structures, consolidated the authority of
local chiefs to resolve disputes using customary law. Ultimately, by indirectly
exercising authority over the natives using colonial structures - a hallmark of
British indirect rule 20
- the British shaped the development of customary law.
While Britain was acquiring protectorates and colonies in Africa and extending its
laws to far-flung territories, England had a long-established statutory framework for
international arbitration. 21
The Arbitration Act of 1698 was enacted to supplement
the common law on international arbitration. It was modified at least once before
the United Kingdom acquired its territories in East Africa. For example, Kenya,
which became a British protectorate in 1895, had a general law that included the
English Arbitration Act 1889. 22
Empire's Children: Race, Filiation and Citizenship in the French Colonies, University of Chicago
Press (2012).
15. Fernanda Pirie, The Rule of Laws: A 4000-Year Quest to Order the World, p. 358.
16. Fernanda Pirie, The Rule of Laws: A 4000-Year Quest to Order the World, p. 359.
17. Roland Amoussou-Guenou, The Evolution of Arbitration Laws in Francophone Africa,
Arbitration: The International Journal of Arbitration, Mediation, and Dispute Management, p. 62.
18. Ibid.
19. Mauritian International Legislation Handbook (2014), p. 11.
20. For an example of the indirect rule, and analysis of customary law by Europeans, see Max
Gluckman, The Judicial Process among the Barotse of Northern Rhodesia, Manchester University
Press (1955), pp. 15-24.
21. Arbitration Act 1698, also known as the Locke Act named after John Locke, who drafted it.
22. Government Publications relating to Kenya (including the East Africa High Commission and
East Africa Common Services Organisation) 1897-1963, Publication no. R96995.
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Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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