1.1 Contextual background

Governments in postcolonial Africa found that they had to co-exist alongside local and traditional institutions, including tribes and indigenous communities. Modern institutions and the modern urban elite at the national level often coexist with conventional structures at the local level. In many cases, traditional structures survived the colonial period and remained an essential part, or even the central reference point, for large parts of the population after independence (El-Battahani & Gadkarim, 2017). Recent decentralization efforts have shifted the focus to existing social and political structures at the local level. Without considering traditional African structures, any postcolonial constitutional arrangements, which entailed social and political engineering, will likely fail at the national level.

The colonial powers used chiefs and traditional administrators to maintain control over local communities and, by implication, the indigenous people. The South African government has since manipulated the tribal system to fit its ideology of apartheid. Such a colonial approach was applied in different ways in some British colonies, such as Sudan (Bekker, 1993).

Understanding the importance of traditional institutes, leaders, and community-based organizations, as the colonial system did, makes it crucial to review the current African constitutional documents to evaluate the possibility of accommodating those traditional institutions in the governance system (Bekker, 1993). Kofi Annan’s mediation during the 2007-2008 political crisis in Kenya underscores the urgent need for comprehensive political reform to promote national cohesion over tribal loyalties (Nyong’o & Karugu, 2023).

Any separation between traditional authorities as apolitical, non-state entities and the modern state is a misleading approach. Traditional authorities whose legitimacy derives exclusively from the local community are part and parcel of modern African states’ social and political networks. Both have historically been intertwined. Part of the practical legitimacy of traditional authorities derives from state recognition (Chlouba, 2019).

The value of traditional authorities, at least for democratic decentralization, remains unclear (Nyati-Ramahobo, 2008). Nyati-Ramahobo asserted that tribes have essential roles to play as effective powers among the local communities on the ground (2008). Yet the democratic application of traditional authorities in developing communities is questionable as it is hard to trace democratic growth in such a context (Nyati-Ramahobo, 2008). Usually, institutions of traditional authority exclude women, youth, and sometimes the poor. Their selection is not subject to universal adult suffrage, and their terms of office are not limited. This poses noticeable challenges to the establishment of a modern democratic system. While all citizens should enjoy equal rights, those subject to traditional authorities and customary law, with only conditional citizenship, cannot hold their representatives accountable, unlike those who can regularly elect their representatives (Flaherty, 2016).

Democracy, federalism, and decentralization occur in constitutional documents when communities at the lower level are given the power to make decisions and follow the rules by several different institutions and community representatives (El-Battahani & Gadkarim, 2017). A democratic constitutional system in Africa, in which societal institutions are fairly represented, cannot be built without finding a synthesis to integrate tribes as one of Africa’s most prominent societal institutions.

1.2 Objectives

This study aims to sketch the social and political situation of traditional authorities in modern African constitutional arrangements and evaluate the role envisaged for them within the constitutions and local government laws using a comparative approach, with a special focus on the Sudanese experience.

The paper is guided by the following research questions:

• Is tribal administration necessary to provide a minimum of social and political stability and order?
• Do African tribes impede the development of democracy and modern state structures?
• Can integrating traditional authorities into government architecture pave the way to an innovative democracy that is sensible in a specific social and political context?
• If integrating traditional institutes in the governance system helps a country’s democratic growth, how best can that be applied to the constitution?

1.3 Basic framework of analysis

For this study, the term “Tribe” is defined as a traditional social institution that reflects individuals’ identities, particularly in the context of Africa. The proposal to constitutionalize the tribal system in Africa is a model for expanding political participation, where democratic values are not just applied but upheld, and African traditions are considered in administering peace, security, and political and social stability.

This research delineates how an analytical examination of the African setting and an awareness of political and social conflict necessitate the establishment of a constitutionally suitable methodology for Africa. It emphasizes the unique dynamics of social relations among communities in Africa, which are a key factor in the incompatibility of the Western model. These dynamics, along with the interactions between individuals and social institutions, as well as the economic development and its ramifications for social and political advancement, highlight the complexity and richness of the African context.

1.4 Research structure

The paper starts with contextual background and examines the engagement of tribes in the modern administration in Africa (Section1). It takes a comprehensive look at the constitutional and legal frameworks for tribal authorities (Section 2). Then, it provides a concise overview of the colonial experience in administering the traditional societal authorities in pre-independence era (Section 3). The paper meticulously analyzes tribal institutions in the African context to address legal framework and politics, tribes’ roles in war and peace in Africa, and the application of native administration and other methods in African legal system (Section 4). There are concrete examples from other African countries which the research will analyze and discuss best practices (Section 5).

The paper concludes in Chapter 6. The paper is based exclusively on a literature review.

2. Tribes in international legal framework

The international legal framework for regulating the role of tribes in the domestic legal system includes the Declaration on the Right to Development; the Universal Declaration of Human Rights (Universal Declaration, 1948); the International Covenant on Economic, Social, and Cultural Rights (ICESCR,1966); and the International Covenant on Civil and Political Rights (ICCPR,1966). Minority Rights Group International (MRG) has presented a lawsuit to the African Commission on Human and Peoples’ Rights, citing violations of the African Charter on Human and Peoples’ Rights, grounded in the Wayeyi ruling (MRG, 2008). These encompass infringements of the right to engage freely in governance (Article 13); the right to participate freely in the cultural life of a society (Article 17); and the right to equality (Article 19).

The ILO’s enduring commitment to the plight of indigenous and tribal peoples culminated in the landmark adoption of the first-ever international instrument exclusively dedicated to the rights of indigenous and tribal peoples in 1957. This momentous occasion launched the Indigenous and Tribal Populations Convention (Convention No. 107, 1957) . In the 1980s, this Convention underwent a transformation and emerged in a new format in 1989 as the Indigenous and Tribal Peoples Convention (Convention No. 169,1989).

The principles of participation and consultation, enshrined in the Indigenous and Tribal Peoples Convention , are the bedrock of its existence. Equally significant is the Role of the 1992 United Nations Minorities Declaration, which defines minorities as groups identified by national or ethnic, cultural, religious, and linguistic characteristics. This Declaration mandates that states must ensure the survival of these groups. While there are numerous interpretations of what constitutes a minority, the core attributes across these interpretations remain largely unchanged.

Article 8-2 of the Declaration on the Right to Development 1986 (DRTD, 1986), underscores the pivotal role of states in fostering widespread engagement across all sectors. The populace’s active involvement is not just a key element in development but also a fundamental aspect in the comprehensive realization of all human rights, including those of indigenous and tribal peoples.

Most African nations have not accepted the Indigenous and Tribal Peoples in Independent Countries Convention. Botswana and Namibia have both ratified the Convention. While Namibia also endorsed adopting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), it is not a signatory to International Labour Organization, 1989 (Convention No. 169, 1989) on Indigenous and Tribal Peoples in Independent Countries, although the government is contemplating ratification of this instrument. Botswana endorsed the UNDRIP but did not sign the International Labour Organization Convention for Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169) (Convention No. 169,1989).

3. Tribes and the colonial constitutionalism in Africa

In a 1993 paper, Yash Ghai, a distinguished Kenyan constitutional scholar, examines the differences between the backgrounds of Western and African state construction (Ghai, 1993). His principal assertion is that Western constitutions, predicated on stable political and economic situations and a widespread consensus on social norms, do not accurately represent the realities of emerging African republics (Ghai, 1993). Fundamentally, Western constitutions were crafted for a predominantly homogeneous society characterized by peace, security, and stability. Upon transplantation to the many African nations, these European model constitutions were inadequate in addressing diversity management and promoting peace among conflicting factions. Instead, they frequently intensified pre-existing identity conflicts (Ghai, 1993). Consequently, in post-independence Africa, constitutionalism usually epitomized the ascendancy of particular groups and classes, wins that were often attained via bloodshed, exploitation, and oppression.

This should not be interpreted to imply that Europe has consistently been homogeneous or devoid of the crises and violence currently impacting developing nations. Conversely, the extent of violence that characterized the history of state formation and nation-building in Europe was arguably more pronounced than that experienced in Africa. Ghai does not assert that the identity difficulties underlying African conflicts are insurmountable. He posits that implementing principles of inclusivity and tolerance towards differences can effectively mitigate these crises (Ghai, 1993). It might be contended that colonial actions disrupted the indigenous, natural processes of identity unification.

To mitigate the adverse effects of colonial policy, constitutionalism in independent African governments must confront the challenges presented by the plurality inherent in the African state. According to Ghai (1993), constitutions in developing nations were anticipated to bear significant responsibilities: they needed to cultivate a new nationalism; forge national unity from varied ethnic, tribal, and religious groups; avert oppression; encourage equitable development; instill practices of tolerance and democracy; and guarantee administrative capacity.

The historical performance of African governance indicates a failure to adhere to the normative norms of Indigenous cultures, while numerous African governments have also neglected the fundamental spirit and principles of the constitutions inherited from Western nations. The historical failures stem not from the inability to identify a suitable constitutional model for the body politic, but from fundamental social issues, indicating a lack of vital elements of constitutionalism. Francis M. Deng asserts (2008) that numerous African constitutions are largely inconsequential, they fail to authentically embody the objectives or operational tenets of any substantial interest groups and are regarded as irrelevant to constitutional frameworks, existing merely because it is perceived that, akin to national anthems, coats of arms, and flags, constitutions and development plans serve a ceremonial and formal symbolic function that states are obliged to maintain.

3.1 Contextual differences between Europe and Africa

In his book Identity, Diversity, and Constitutionalism in Africa, Francis Deng emphasized the essential requirement for a distinctive African constitutional framework. He contended that the inability to understand the contextual disparities between Europe and Africa significantly influenced constitutional development in Africa (Deng, 2008). Deng’s viewpoint emphasizes that the constitution in Europe was created and evolved through a protracted political process culminating in the sixteenth century. Consequently, the postcolonial Constitution-making in Africa must address the continent’s distinct requirements. A comprehensive analysis of the African context reveals insights that effectively tackle challenges and offer solutions to assist Africans in constructing their political system in a manner conducive to continental development, rather than adhering to the European model (Deng, 2008). Deng asserts that the European model fails to accommodate the African context and neglects the management of diversity and suitable method for political representation in the formulation of the democratic process. It also failed to consider conflicts over power and resources among African social groups. The African constitutions have failed on two aspects: firstly, they did not incorporate the African ethos into postcolonial frameworks, and secondly, they inadequately implemented constitutional values in their Western format inside the African political setting (Deng, 2008). The deficiency lay not in identifying an appropriate constitutional framework for governance, but in failing to achieve the optimal constitutional solution that address African concerns.

3.2 Trajectories forwards local government during the colonial period

When British colonialism came to Sudan at the end of the nineteenth century, it socially and administratively distributed into areas of tribal influence. Turkish colonialism had begun to organize the relations between tribal sheikhs and Turkish government institutions by assigning tribal sheikhs administrative, judicial and financial tasks in their areas of influence. British colonialism began to benefit from tribal leaders and their geographical spread. In 1932, Courts Act was issued, under which tribal leaders had broad judicial tasks, and these courts applied local customs and principles of justice and virtue (Eleiw, 2015). As Mohamed Eisa Eleiw states in his book on Native Administration in Sudan (2015), this law was a development of the Sheikhs’ Powers Act of 1928, which was repealed with the issuance of the 1932 Act.

In a later development, the colonial administration organized the role of tribal leaders in local administrations for the first time by issuing the Municipalities, Cities and Rural Areas Act in 1937. This act was the first step towards establishing local government law in Sudan (Lienhardt,1982). This law was a good opportunity for improving the representation of tribal leaders and native administration in the local government system. The British colonialists later issued the 1951 Act, in which the powers of native administration were slightly reduced. This was a preliminary step towards transferring power to the Sudanese before the British left Sudan (El-Battahani & Gadkarim, 2017). The 1951 Act was established to make room for intellectuals, graduates, and political parties to participate in the field of governance and administration alongside native administration (Eleiw, 2015). When Sudanese political parties began to form in early 1948, tribal leaders rushed to form the Socialist Republican Party to ensure their presence in the political arena after the departure of the colonizer.

The idea of ​​expanding local government by expanding the involvement of traditional leaders in government institutions was the result of political and legal discussions within the British Colonial Office in 1947 and 1948 (Lienhardt,1982). Godfrey Lienhardt agrees in his journal article (1982), that in light of these discussions the British Colonial Marshall Report of 1949 indicated the advantages and disadvantages of native administration based on its experience. Among the advantages of native administration that he mentioned was that it is a local institution based on the capabilities of the tribal leaders and their social influence. It is linked to the citizens and enjoys their appreciation and respect. Citizens within the tribal community enjoy a sense of solidarity and a strong and loyal affiliation with the tribe and its leadership. Dr. Marshall’s report identified several negatives, including that the institution’s success depends on the administrative, political, and legal skills of the tribal leaders (Badal,1977). Some of the leaders were less capable than others, and therefore these successes and failures were not previously monitored. Consequently, it was an institution that lacked technical expertise in all aspects of management (Badal,1977). The administration’s reliance on the application of tribal customs and local traditions made it inflexible and not easily responsive to changes and developments in the field of governance, administration and the application of the rule of law. Finally, among the disadvantages, is the weakness of the principle of accountability (Eleiw, 2015).

4. Tribes and politics in African context

4.1 Tribes and politics

​African history delves into the significant and multifaceted impact of ethnic and tribal identities on the political landscape of Africa.​ A clear example is the engagement of Zulu in power struggle in South Africa 1994. Zulu were represented in the two political parties of the black community in the African National Congress (ANC). One such party was the Inkatha Freedom Party (IFP), the IFP supported the National Party (NP) or the Whites against the ANC (Choi, 2008). Another recent example is the role of the Dinka tribes in establishing the Sudan People Liberation Movement/ Army (SPLM/A) and later in leading the new government in South Sudan after independence in 2011 (Pinaud, 2021). History shows us that these identities often serve as barriers to national unity and social cohesion. While tribal affiliations can provide a sense of belonging and community among individuals, they frequently give rise to polarization and strife within the broader political context. Omowumi Odesomi argued in his recent article (2023), that the African experience illustrates how political dynamics shaped by these identities can contribute to the entrenchment of a tribal system, a force that not only hinders democratic processes but also exacerbates societal inequalities. This realization should raise concern and awareness about the need for a transformative approach emphasizing inclusivity and diversity to bolster nation-building efforts (Odesomi, 2023).

Kenya has a notable experience in relation between tribes and politics. Tribes in Kenya’s political landscape are deeply rooted in a historical context of ethnic divisions that were exacerbated by colonial rule and the challenges of nation-building post-independence (Nyong’o & Karugu, 2023). This historical context is crucial to understanding the current situation. For instance, during the conflict of 2007 – 2008, the Kikuyus, the ethnic tribe of President Kibaki, and the Luos, the tribe of the opposition leader Odinga’s tribe and its allies, played a profound role in threatening political stability in Kenya (Nyong’o & Karugu, 2023). Kenyan leaders have discussed various theoretical frameworks for addressing tribes, including consensus democracy and pluralism, while emphasizing the interplay between institutional structures and societal attitudes in fostering or hindering unity (Nyong’o & Karugu, 2023).

Understanding that the tribal system is not regularized within the African legal framework, Calestous Juma declared in his report to BBC that we can easily realize that tribal system undermines democracy in Africa (2012). He particularly highlighted Kenya’s post-2007 election violence as a manifestation of ethnic tensions (Juma, 2012). The real challenge to African democracy is not merely the legacy of autocratic rule but the manipulation of tribal identities for political gain. Establishing genuine political parties based on developmental ideas rather than tribal affiliations is crucial to countering the negative impact of tribes on democracy (Juma, 2012).

4.2 Tribes and civil wars in Africa

Tribal governance was dominant in pre-colonial Africa, where a wide diversity of politics and government existed, all related to the type of social system. Tribes centralized mid-sized kingdoms and widely scattered chiefdoms (Taylor, 2018). In some African areas, local tribes have engaged in politics on several occasions. These include the struggle against the colonial system, such as the Zulu experiences in South Africa against the apartheid system long before 1994. Another instance was the establishment of a guerrilla movement against the authoritarian central government, such as the Anya-Nya Insurgency in 1963 in South Sudan. This struggle continued until the independence of South Sudan in 2011 (Rolandsen, 2011). Tribes in Ethiopia and Darfur have significant experiences of fighting against the central government. In Darfur, tribes have campaigned since 2003, during President Omer Al-Bashir’s reign, calling for a fair representation and equality. During this time, three indigenous ethnic groups, the Fur, Zaghawa, and the Masalit, also took a step in their political engagement. They established the Sudan Liberation Army (SLA), a rebel group that fought against the regime. In 2021, in Ethiopia, the Tigray People’s Liberation Front (TPLF), mainly composed of people from the Tigray tribe, led fights against the central government of Ethiopia. The cases in Darfur and Ethiopia, as in some other circumstances, are still ongoing.

As outlined above, Africa has a long history, from before colonial systems to post-independence, of tribes’ engagement in governance and issues of peace and security on the continent (Taylor, 2018). Tribes are key in most of the continent’s civil wars either as part of the liberation movement, or because their chiefs take the lead in the struggle against the central governments (Venter, 2015).

It is crucial for Africans to examine the tribal system from democracy and peacebuilding perspectives. Tribes were part of most African armed conflicts. Therefore, the smooth future political transition towards peace and democracy on the continent requires deep political, economic, and social analysis. Engaging tribes in the constitution and governance system might assist in fostering peace and democracy in Africa by expanding people representation as named by Immanuel Kant as ‘republicanism’ (Koch & Nag, 2023). Koch and Nag (2023) cited that Thomas Paine and Immanuel Kant explored interesting philosophical concepts of democracy, peace, and governance.​ Kant advocates for republicanism and law as pathways to lasting peace, while Paine emphasizes representative government and the protection of natural rights (Koch & Nag, 2023). By reflecting on their thoughts on the role of tribes in political and social stability, both thinkers stress the importance of moral principles in political systems, with Paine envisioning a federation of free states to achieve universal peace. This emphasis on moral principles should inspire us in our quest for a peaceful governance system in Africa, guiding us as we reevaluate Paine’s insights in the context of contemporary discussions on peace and the necessary economic and political reforms for its realization.

5. The legal arrangement for tribal participation in African governance

5.1 Promoting tribes in African governance framework

Tribes are a historical cornerstone of African societies and continue to exert a significant influence on politics in Africa’s modern states (Nabudere, n.d.). While it is not inherently incompatible with democracy, tribal allegiances often take precedence over national ones, thereby hindering the effectiveness and trust in politics (Lloyd, 2019). The robust loyalty to tribes, which remains unwavering even in the face of modern governmental structures, underscores the enduring strength of these allegiances in the African political landscape (Lloyd, 2019).

The interaction between traditional and modern political systems in contemporary Africa emphasizes the historical context in which traditional governance evolved alongside colonial and post-colonial political structures (Nabudere, n.d.). It highlights the complex dynamics of how traditional institutions were either suppressed or co-opted by colonial authorities, leading to a resurgence of these institutions in recent years as a response to the failures of the post-colonial state (Nabudere, n.d.). A reimagining of African governance that incorporates traditional political forms to address ethnic divisions and build more inclusive and sustainable democracies (Lloyd, 2019).

The potential of African tribes to contribute to democratic institutions is a multifaceted issue with diverse viewpoints. Some proponents argue that traditional tribal structures, with their emphasis on consensus and community participation, could serve as a solid foundation for democratic governance. This perspective instills a sense of hope and optimism about the future of African governance (Nabudere, n.d.). On the other hand, there are those who believe that these structures, often characterized by hierarchy and exclusivity, could impede the development of inclusive democratic institutions.

The success of democratic transitions in Africa is a complex and multifaceted issue. Some countries have managed to establish stable democracies, while others continue to grapple with instability and authoritarianism. It is important to understand that factors such as economic development, political will, and social cohesion all play a crucial role in determining the success or failure of democratic reforms (Lloyd, 2019). This emphasis on the multifaceted nature of democratic transitions will help the audience feel more informed and aware of the complexities involved (Nabudere, n.d.).

The question of whether traditional institutions, including tribes, can transform into part of the institutions of democratic governance in Africa will require a broader effort than this study. It is a question that will occupy those interested in political stability until they find a constitutional formula that addresses this dilemma. Below, I’ll try to study how democratic countries in Africa have dealt with the issue of tribes in their constitutions and laws. The purpose of this is to ascertain to what extent the organization of the issue of tribes in the constitution and in the government contributes to the implementation of democracy and the achievement of peace, coexistence and political stability.

It is widely accepted that traditional local institutions still enjoy community support in rural areas and play a significant role in the lives of tribal communities (Abdeljalil, 1985). Bearing this in mind, one may suggest relevant constitutional arrangements for the future role of the tribal chiefs and other local community leaders. The modern constitutional applications, the federal constitution system in African context was designed based on the existing tribal practices (Constitution of Ethiopian, 1995).

The Native Administration Act 2002 in Darfur Region stipulated three jurisdictions for tribal chiefs, judicial, administrative, and developmental jurisdiction. Thus, from African constitutional experiences the following are the most used arrangements for engaging tribes in public authorities and governance system: native administration in Sudan, legislative authorities of native administration, judicial powers, traditional authorities act in Namibia, and the house of chiefs in Botswana. Each will be examined in more depth below.

5.1.1. Native administration in Sudan

The concept of Native Administration was applied by the British colonials such in South Africa and Sudan. The concept initiated in Sudan through the Milner Mission Report of 1920 (Raphael, 1977), and in South Africa through the Native Administration Act, 1927 which was subsequently renamed the Bantu Administration Act, 1927 and the Black Administration Act, 1927 (Bekker, 1991). Native administration encourages the use of chiefs and tribal authorities as administrative organs to effectively perform administrative functions and provide them with the necessary infrastructure, organization, staff, and financial resources (Bekker, 1991). However, this comprehensive approach is currently absent from African society and relevant and innovative legal framework is required to apply constitutional transitional arrangements and maintain peace and stability in postcolonial communities.

In 1971, President Jaafar Nimeiri of Sudan enacted the People’s Local Government Act, which segmented the territory into regional, district, and locality councils. This local administration supplanted the native administration and annulled the jurisdiction and administrative power of the tribal leaders. Certain literature indicates that this reconfiguration was the primary catalyst for extensive tribal clashes in Darfur (Abdu- Jalil, et al, 2007). For instance, in southern Darfur province, sixteen distinct rural council border disputes arose shortly after the enactment of this legislation. This action allowed one tribe to dominate a territory belonging to another. The government consequently fostered tribal competition. The fundamental flaw in modernizing administration was the shift of focus from its former judicial function of upholding law and order to its contemporary administrative one, which has recently incorporated political mobilization. Moreover, the establishment of rural police stations without the provision of essential resources for their effective operation was a significant issue in the new administrative framework (Abdu-Jalil et al, 2007).

In practice, despite the absence of a legal framework, tribal leaders remain recognized as the chiefs of their groups, and the tribe serves as a political foundation for advancing its members to prominent roles in local councils (Perham,1936), as well as in regional and national assemblies. The political influence of local tribes has been considerably enhanced under the new local administration system in Sudan. Prior to the abolition of native government, the Nimeiri regime had already disbanded all political parties in Sudan. The vacuum was occupied by a burgeoning social and political force, with the Sudanese Socialist Union as the sole acknowledged political party steering the political landscape. Both the political party and the newly established local government structures were dominated by the rural elite, leading to the rise of new leadership in the regions. Upon the enactment of the Regional Governance Act in 1980, the newly appointed leadership was assigned duties for regional services without sufficient funding (Abdul-Jalil, et al. (2007).

Following the popular uprising in April 1995 and during the democratic period, the government reinstated the Native Administration in 1987. However, prior to the implementation and structuring the decentralized system, the National Islamic Front assumed power in June 1989. Since then, the indigenous administration has undergone structural and obligatory modifications to align with the state’s Islamic ideology. In 1995, the function of native administrators was revised to serve as religious leaders for each identity group, guiding them in prayer and, more significantly, preparing the youth for jihad in the south during that period (Abdul-Jalil, et al., 2007).
Sudan, more than many African nations, has authorized many forms of local governance. The phenomenon is mostly related to the central government’s inclination to manipulate the system for the political objectives of incumbent administrations, rather than a sincere intention to serve the needs of local populations.

Following the signing of the Juba Peace Agreement in Sudan in October 2020, it was agreed to establish a special region for Darfur, within the federal system. The Governor of the Darfur Region reestablished the Nation Administration as part of the regional governance structure and passed the Native Administration Act in 2022. Article 8 of the Act of the Native Administration in Darfur Region 2022 (NALDR, 2022) stipulates the mandate of the native administrators in their respective geographic jurisdictions.

5.1.2. Legislative authorities of the native administration

The federal system is the best constitutional approach for accomodating traditional institutions, tribal chiefs, and the local community’s representatives in the governance system. A creative constitutional design would ensure the broad participation of tribal leaders in legislative bodies at the federal governance levels.

Initially, the colonial government established advisory councils and district councils in Sudan in 1944, to organize the affairs of the districts by detailing their laws. Native administration had the upper hand in chairing these councils and occupying most of their seats (El-Battahani & Gadkarim, 2017). This was an initial step towards involving the Sudanese in governing their country. In 1948, the Legislative Assembly was formed. The formation of the Legislative Assembly coincided with the emergence of political parties and their expansion in the political arena. The idea of ​​the Legislative Assembly came to fill the gap that appeared during the implementation of the idea of ​​the Advisory Council, in which the Native Administration had a stronger representation (El-Battahani & Gadkarim, 2017). The Legislative Assembly came in 1948 to make room for new graduates and educated people from outside the Native Administration leadership to be part of the state’s governing institutions. The formation of the Legislative Assembly was the first institution for formulating public policies in the state led entirely by Sudanese figures. The Legislative Assembly was the first expression of Sudan’s national independence and was an indication of Sudan’s independence from Egypt. Consequently, the Legislative Assembly was the meeting place of Sudanese rulers and politicians, and a symbol of their nascent sovereignty. In 1950, the Legislative Assembly had 90 members, and the tribal chiefs’ seats accounted for 20 of the total seats in the Legislative Assembly (Eleiw, 2015).

5.1.3. Judicial powers – popular courts

Ancient Athens had one of the most prominent global experiences in integrating traditional and customary judiciary and employing tribal leaders to adjudicate cases between individuals or between community groups (Abdul-Jalil,1985). Athens established a system for popular courts, where the popular courts seemed more likely to favor the interests of ordinary citizens. Some argue that the concept of popular courts is connected to Athenian democracy and the political functions of judges to promote democracy in the country (Cammack, 2022).

Article 68 of the Sudanese Criminal Procedure Act of 1991 stipulates the powers of the members of the Native Administration. In the Article, the Native Administration enjoys the same powers as the police, including the arrest of suspects, without an order from the Public Prosecutor. This is a dangerous jurisdiction that carries clear risks to the rights of individuals. The law stipulates the powers of the Native Administration member to conduct criminal investigations in murder cases or in the event of finding the body of a dead person and in cases of suspected suicide (Article 52). Despite the carnality of the Article, in practice, we note that the Native Administration member does not conduct criminal investigations in urban areas (El Nur, n.d.).

In Sudan, the Regulations of Urban and Rural Courts 2004 issued by the Judicial Authority in 2004 defined rural courts those established in rural areas or other local residential areas lower than cities (El Nur, n.d.). The conditions for members of the rural courts include being a person of good conduct, literate, a resident of the concerned area, influencing the residents of the rural area, and familiar with the customs and traditions of the residents (Article 5). However, the conditions for appointing members of rural courts did not stipulate any competencies, technical or academic qualifications, or experience related to the courts and justice (Articles 5 and 6). This lack of necessary qualifications for rural court members underscores the need for professional standards in the legal system (Abdul-Jalil, 1985). The regulation stipulates extensive jurisdiction for rural courts, which includes the application of criminal law, except cases exempted by law, as well as the application of civil law and any other law (Article 13)—assigning these native courts to address criminal cases and pass imprisonment decisions for three years. Such articles require critical review and amendment. It would have been better to exclude criminal cases from civil courts’ jurisdiction in Sudan and assign them only to some family cases, land disputes, and reconciliation measures before litigation (Abdul-Jalil, 1985).

The Theory of Native Administration had been applied in many countries in African postcolonial setting. One of those experiences was deeply discussed by Margery Perham, a British historian of, and writer on, African affairs, who examines in her article “Native Administration in Nigeria” the role of traditional leaders in Nigerian post-colonial governance of indirect rule, highlighting its strengths, advantages, and limitations. She emphasizes the importance of understanding native institutions, fostering responsible local self-government, and balancing European guidance with native autonomy to develop a cohesive and progressive political structure (Perham,1936).

5.1.2. Traditional authorities act in Namibia

The Republic of Namibia has a stable democratic governance system under the Namibia Constitution 1990 (rev. 2014) (Constitution of Namibia, 1990). However, engaging tribal Indigenous groups in the national governance participation system has been challenging due to their smaller populations. As stated in the Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, Namibia’s political landscape is dominated by the Southwest Africa People’s Organization, which is perceived as favouring the “Owambo” ethnic group, which comprises a significant portion of the population (2013).

The Namibian legislators have established a significant legal framework for the regulation of tribal and indigenous groups through the ‘Traditional Authorities Act, 2000’ (Act No. 25 of 2000). This act enables tribal communities to seek state recognition for their traditional leadership, thereby formalizing their role in the national governance system. ‘Traditional Communities’ are defined as groups sharing common ancestry, language, and culture and inhabiting the same area (Chlouba, 2019).

Under the Traditional Authorities Act, tribes are recognized as traditional authorities, responsible for administering their communities and territories, applying customary laws, and receiving government funding (Chlouba, 2019). The leaders of these authorities are accountable to the Minister for Regional and Local Government, who wields significant discretion in monitoring and evaluating their activities. This broad discretion has raised questions about the legitimacy of recognized leaders, particularly those aligned with the ruling political party (Chlouba, 2019).

Despite not being a party to International Labour Organization Convention No. 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries, Namibia has voted to adopt the United Nations Declaration on the Rights of Indigenous Peoples. In his report, the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya stated that, the government’s consideration of ratifying this treaty further demonstrates its commitment to upholding the rights of Indigenous and Tribal Peoples (2013).

5.1.3. The house of chiefs in Botswana

The Botswana 1966 (rev. 2016) Constitution (Botswana Constitution, 1966), a product of its time, provides all citizens, irrespective of tribal affiliation, the right to vote and engage in political processes. However, socio-economic factors and historical marginalization, deeply rooted in the country’s past, hinder non-dominant indigenous groups from participating in district governance (Flaherty, 2016).

The Constitution of Botswana provides for a House of Chiefs, a body that advises the National Assembly and executive authorities on issues related to Botswana’s tribes. The House of Chiefs plays a significant role in the governance of the country (Lydia, 2008), particularly in matters that concern the various tribes and their traditional systems (Flaherty, 2016).

Sections 77-79 of the 1966 Constitution, provide constitutional rights of various ethnic tribes in Botswana, highlighting that while the Constitution guarantees individual rights, it disproportionately favors the eight Setswana-speaking tribes.​ The San (Bushmen), along with other minority groups, are afforded limited representation and unique restrictions are placed on their movement aimed at protecting their well-being. Recent efforts to amend the Constitution aim to address these inequities by proposing a more neutral tribal framework (Lydia, 2008). Botswana adopted the United Nations Declaration on the Rights of Indigenous Peoples. Botswana is not a party to the International Labour Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169) (Flaherty, 2016).

Conclusion

The tribal systems in various African countries have demonstrated remarkable resilience, persisting and defying discreditation. Despite being tasked with resolving minor disputes and conducting local heritage roles, they have been marginalized in national constitutional frameworks and the fabric of local governance structure.

Tribal leaders are not just important, they are imperative and must be recognized. Traditional tribal chiefs play a crucial role in rural communities by promoting community development and fostering involvement in development initiatives. It is imperative that traditional authorities be acknowledged in the Constitution in a manner akin to local authorities, promoting cooperation between tradition and local governance while preventing conflicting obligations, and ultimately serving societal interests.

The role of traditional authorities is dynamic and evolving, particularly during colonial and post-colonial periods. In the African experiences examined in this article, traditional authority persists as a legitimate source of organization in rural areas, adapting its functions to the varying government policies of different countries. Native Administration was an attempt to modernize the role of traditional institutes in the post-colonial governance system. While acknowledging the Native Administrator’s achievements, Scholars like Margery Perham warns against over-regulation, superficial administration, and the uneven development of educated elites, stressing the need for long-term vision and cautious, human-centered policy to ensure Nigeria’s eventual unity and democratic progress (Perham, 1936).

Traditional tribal leaders are essential in African communities. As El-Battahani & Gadkarim confirmed that (2017), the decentralization of power, as it appears in constitutional texts, empowers lower-level communities to make decisions and adhere to regulations. This process is about the active involvement of various institutions and community representatives. Their role is crucial in ensuring that the decentralization process is effective and beneficial for all. Therefore, a democratic constitutional framework in Africa, with equitable representation of societal institutions, cannot be achieved without their active participation.

Tribes were directly or indirectly involved in most of Africa’s civil wars. A smooth future political transition towards peace and democracy on the continent requires deep political, economic, and social analysis. Engaging tribes in democratic constitutionalism is necessary to foster peace and political stability in Africa by expanding people’s representation.

Francis Deng (2008) confirmed that, an exhaustive examination of the African setting uncovers ideas that adeptly address difficulties and provide solutions to Africans in developing their political system conducive to continental advancement, rather than conforming to the European model. Deng contends that the European model inadequately addresses the African environment and overlooks the management of diversity and appropriate methods for political representation in the development of the democratic process.

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