Legal pluralism, culture and human rights: an African socio-legal framework

Legal pluralism has long been recognized as a defining feature of African legal systems. Rather than operating as unified and centralized orders, African states typically function within environments of normative multiplicity, where state law coexists with customary, religious and community-based normative regimes. Early African legal scholarship rejected the idea that customary law was merely residual or informal, emphasizing instead its continuing authority in regulating everyday social relations, particularly in rural contexts. Okoth-Ogendo described this condition as one of “normative plurality”, in which state law represents only one among several coexisting systems of social regulation.Footnote ¹

Subsequent scholarship reinforced this insight by demonstrating that customary law in Africa is neither static nor archaic. Allott’s work showed that African customary law evolves in response to social change and should be understood as a living system rather than a fossilized tradition.Footnote ² Bennett similarly observed that for most Africans, customary law remains the primary source of legal ordering in matters such as land, family relations and local dispute resolution, regardless of the formal reach of state institutions.Footnote ³ More recent comparative work has confirmed that legal pluralism is not a transitional phase on the path toward legal centralism, but a durable feature of African legal landscapes.Footnote ⁴

Griffiths’ concept of “deep legal pluralism” is particularly instructive in this regard. He distinguished between weak forms of pluralism, in which the state merely tolerates non-state norms, and deep pluralism, where multiple semi-autonomous social fields generate and enforce their own legal norms independently of state recognition.Footnote ⁵ Customary oath-taking practices in Sierra Leone exemplify this condition. Their authority derives not from statutory enactment but from shared belief, communal enforcement and spiritual sanction. Even where such practices lack full incorporation into state law, they continue to function as legally authoritative within their social contexts.

This reality complicates simplistic reform agendas that seek either to eliminate customary practices or to fully codify them within state law. Attempts to impose uniform regulation on culturally embedded practices risk undermining their legitimacy and misunderstanding the nature of plural legal authority. At the same time, uncritical acceptance of all customary practices raises serious concerns where such practices intersect with coercion, inequality or harm.

These tensions are most visible when legal pluralism intersects with human rights. Debates between cultural relativism and universalism have long shaped discussions of customary justice in Africa. Cultural relativist approaches emphasize respect for indigenous values and epistemologies, cautioning against the imposition of external norms. Universalist approaches, by contrast, warn that appeals to culture can be used to justify discrimination or abuse. African socio-legal scholars have increasingly rejected this binary framing.

Nyamu-Musembi has argued persuasively that human rights should be understood as socially embedded and negotiated within local contexts rather than imposed as abstract norms detached from lived experience.Footnote ⁶ From this perspective, culture and rights are not oppositional but relational. Himonga similarly cautions against both romanticising customary law and dismissing it as inherently incompatible with rights, particularly in contexts involving gender and power.Footnote ⁷ What is required, she argues, is critical engagement with custom that recognizes its legitimacy while subjecting it to normative scrutiny.

This middle position is especially relevant to the regulation of oath-taking in Sierra Leone. Customary oaths often enjoy strong local legitimacy and may be perceived as more effective than statutory oaths in securing truthful testimony. Yet the same practices can generate fear-based compliance, silence vulnerable participants or reinforce existing hierarchies. A rights-informed approach must therefore avoid both legal centralism and unregulated customary autonomy.

This article adopts a contextual and African-centred understanding of legal pluralism. It treats oath-taking as a culturally embedded practice whose legitimacy cannot be assessed solely by reference to statutory criteria, while insisting that minimum procedural safeguards are necessary to protect participants from coercion and harm. Rather than seeking uniformity, the analysis advances a pluralist model that establishes a procedural floor within which diverse oath-taking practices can continue to operate. This approach aligns with broader African scholarship that views legal pluralism not as a problem to be solved, but as a condition to be governed with sensitivity, restraint and respect for lived legal realities.Footnote ⁸

Oath-taking under statutory law: colonial legacies and partial hybridization

The statutory regulation of oath-taking in Sierra Leone remains shaped by colonial legal assumptions about religion, truth and authority. The principal statute governing the administration of oaths in formal judicial proceedings is the Oaths and Affirmations Act. Enacted during the colonial period, the Act reflects a narrow and hierarchical conception of belief, recognizing only certain religious traditions as legally valid foundations for oath-taking.

Sections 2 and 3 of the Oaths and Affirmations Act provide for the administration of oaths to Christians and Jews using the Bible, while section 4 makes specific provision for what the statute describes as “Mohamedans”, permitting the taking of an oath or affirmation on the Qur’an. The Act also allows for solemn affirmation as an alternative to religious oath-taking. While these provisions appear to accommodate religious diversity, their scope is limited. African traditional belief systems, which predate colonial rule and continue to inform moral reasoning and truth-telling for large segments of the population, are entirely absent from the statutory framework.Footnote ⁹

This statutory silence is not accidental. It reflects a broader colonial tendency to privilege Abrahamic religions introduced or institutionalized under colonial administration, while marginalizing indigenous cosmologies as legally irrelevant or extra-judicial. The result is a formal legal framework that recognizes religious pluralism only within tightly circumscribed boundaries, leaving no space for culturally grounded oaths rooted in African traditional religion. In a legally plural society such as Sierra Leone, this exclusion creates a disjuncture between state law and lived legal consciousness.

The consequences of this exclusion become more pronounced when read together with the Perjury Act. The Perjury Act criminalizes false testimony given under oath in judicial proceedings, attaching penal consequences to dishonesty where an oath or affirmation recognized by law has been administered.Footnote ¹⁰ However, because the Perjury Act is anchored to the statutory conception of oath-taking found in the Oaths and Affirmations Act, it implicitly excludes customary oaths from its scope. False testimony sworn under a traditional oath administered in a customary forum attracts no equivalent statutory sanction, relying instead on social or spiritual enforcement mechanisms.

This legal architecture reinforces a hierarchy of truth declarations. Statutory oaths, grounded in colonial-era religious categories, are treated as legally consequential, while customary oaths – despite their perceived moral seriousness and local legitimacy – are rendered legally invisible at the level of criminal accountability. This hierarchy does not reflect the social realities of justice-seeking in Sierra Leone, where customary oaths often carry greater credibility and deterrent force than their statutory counterparts.

The enactment of the Local Courts Act 2011 marked an important, though incomplete, departure from this colonial framework. By formally incorporating local courts into the national judiciary, the Local Courts Act recognized the continued relevance of customary law in the administration of justice. The Act does not expressly provide for traditional oaths or for the use of them in the local courts however it can be inferred as the Act provides expressly for the use and application of customary law in the local courts (with local custom, alongside religious oaths recognized under existing law).Footnote ¹¹ This inference constitutes a significant acknowledgment of indigenous normative authority within the formal judicial structure. Although a reform where customary oaths will be recognized expressly in the Local Courts Act could be desirable.

However, the Local Courts Act does not amend or displace the Oaths and Affirmations Act or the Perjury Act. As a result, a fragmented statutory regime emerges. Local courts administer traditional oaths, yet those oaths remain only partially integrated into the broader legal system. False testimony under a traditional oath administered by a local court does not clearly fall within the ambit of the Perjury Act, nor does the Oaths and Affirmations Act provide guidance on the legal status of such oaths.

This fragmentation should not be understood simply as legislative oversight. It reflects the deeper condition of legal pluralism in which multiple normative orders coexist without full doctrinal harmonization. From this perspective, the absence of uniform statutory regulation of customary oaths can be seen as an expression of deep legal pluralism rather than a failure of legal drafting. The state has recognized customary authority to a degree, while refraining from prescribing the internal content of indigenous practices.

At the same time, this partial hybridization generates uncertainty and uneven protection. The lack of statutory clarity creates space for inconsistency in practice and leaves participants in customary proceedings without clear legal recourse where oath-taking becomes coercive or harmful. The challenge, therefore, is not whether customary oaths should be standardized or subsumed under state law, but whether the statutory framework can establish minimum procedural safeguards without undermining cultural diversity.

This section demonstrates that Sierra Leone’s statutory approach to oath-taking remains suspended between colonial inheritance and postcolonial accommodation. The Oaths and Affirmations Act and the Perjury Act continue to reflect a narrow, colonial conception of legally valid oaths, while the Local Courts Act gestures toward pluralism without fully resolving its implications. The resulting legal landscape provides the backdrop against which empirical practices of oath-taking, and their human rights consequences, must be understood.

Customary oath-taking in practice: authority, fear and legitimacy

In customary justice forums across Sierra Leone, oath-taking functions as a central mechanism through which truth is elicited, authority asserted and disputes resolved. Unlike statutory oaths, whose force derives from the coercive power of the state, customary oaths draw their legitimacy from shared belief in spiritual sanction, ancestral authority and communal accountability. Their effectiveness lies not in formal enforcement but in their embeddedness within local cosmologies and social relations.

Empirical evidence from fieldwork indicates that many participants regard customary oaths as more compelling than statutory oaths. Witnesses and disputants frequently described traditional oaths as carrying immediate and unavoidable consequences for dishonesty, including illness, misfortune or death. Whether or not such outcomes can be empirically verified is beside the point. What matters socio-legally is that these beliefs are widely held and shape behaviour in concrete ways. The perceived certainty of supernatural sanction often produces a level of compliance and truth-telling that participants do not associate with formal legal processes.

At the same time, the authority of customary oath-taking is inseparable from local power structures. Oaths are typically administered by chiefs, elders or local court officials who occupy positions of social and moral authority. In such settings, refusal to take an oath may be interpreted as an admission of guilt or as disrespect toward communal authority. As a result, consent to oath-taking is not always freely given, even where it is formally presented as voluntary.

Fear plays a significant role in this dynamic. Many participants described oath-taking as a profoundly intimidating experience, particularly where the ritual invoked ancestral punishment or spiritual harm. This fear can operate as both a truth-enforcing mechanism and a tool of social control. While it may deter false testimony, it can also silence individuals who are vulnerable, marginalized or fearful of retaliation. In this sense, customary oath-taking simultaneously enhances and constrains access to justice.

Gendered power relations are especially pronounced in this context. In male-dominated customary forums, women often occupy a structurally weaker position. Empirical accounts revealed that women may feel pressured to comply with oath-taking rituals even when they experience fear, discomfort or uncertainty. In some cases, the presence of male elders and community leaders during oath administration creates an environment that inhibits full disclosure, particularly in disputes involving family relations, sexual violence or property rights. These dynamics do not render customary oath-taking inherently unjust, but they do expose the ways in which cultural legitimacy can coexist with inequality.

Customary oath-taking also carries psychological consequences that are rarely acknowledged in formal legal discourse. Participants reported lingering anxiety, social withdrawal and persistent fear following oath-taking, particularly where the oath was believed to bind the individual beyond the immediate dispute. In some cases, witnesses expressed concern that inadvertent mistakes or later misfortune might be interpreted as evidence of oath-breaking. Such experiences underscore the depth of belief attached to customary oaths and the lasting impact they may have on individuals’ well-being.

Variation across communities further complicates the picture. Oath-taking practices differ by chiefdom, ethnic group and local tradition. The objects used, the language employed, the rituals performed and the perceived consequences of breach all vary. This diversity is not a weakness of customary justice but a defining feature of legal pluralism. It reflects the fact that customary law is locally generated and socially grounded rather than centrally prescribed.

This variability, however, poses challenges for integration within a national justice framework. Where customary oaths are recognized without accompanying procedural guidance, there is a risk that practices may become arbitrary or susceptible to abuse. Yet attempts to standardize or codify these practices would undermine their cultural meaning and legitimacy. The empirical evidence therefore supports a cautious approach: one that recognizes the authority and effectiveness of customary oath-taking while remaining attentive to its potential to produce fear, coercion and exclusion.

Customary oath-taking in Sierra Leone cannot be understood simply as a residual or informal practice. It is a living institution that continues to shape justice outcomes for large segments of the population. Any serious engagement with access to justice, legal reform or human rights in Sierra Leone must therefore take customary oath-taking seriously, not as a problem to be eliminated, but as a practice whose power must be understood, respected and carefully governed.

Oath-taking, human rights and the cultural relativism–universalism debate

The regulation and practice of oath-taking in Sierra Leone raise fundamental questions at the intersection of legal pluralism and human rights. These questions are often framed through the longstanding debate between cultural relativism and universalism, particularly in postcolonial African contexts where indigenous normative systems continue to structure everyday justice. Oath-taking provides a useful lens through which to examine these tensions because it implicates belief, coercion, dignity and consent in ways that are both culturally embedded and normatively charged.

Universalist approaches to human rights tend to emphasize formal equality, individual autonomy and freedom from coercion. From this perspective, oath-taking practices that rely on fear of spiritual punishment or communal pressure may be viewed as inherently problematic. Concerns arise where individuals feel compelled to participate in rituals they do not fully accept, or where the consequences of refusal are social exclusion or reputational harm. These concerns are particularly acute for women and marginalized persons whose ability to refuse or challenge customary authority may be limited.

At the same time, a strictly universalist critique risks misunderstanding the social meaning of oath-taking in customary contexts. For many Sierra Leoneans, customary oaths are not experienced as arbitrary impositions but as morally intelligible practices grounded in shared belief systems. Truth-telling under oath is understood not merely as a legal obligation but as a moral commitment to the community and to ancestral authority. To dismiss such practices as inherently incompatible with human rights is to privilege a narrow, state-centric conception of legality that fails to engage with lived legal realities.

Cultural relativist perspectives respond to this concern by emphasizing respect for indigenous norms and epistemologies. From this standpoint, customary oath-taking derives legitimacy precisely because it reflects local values and cosmologies. External intervention, particularly through state law or international human rights discourse, is viewed with suspicion, as it may reproduce colonial patterns of domination and legal centralism. This critique carries particular weight in Sierra Leone, where colonial law historically displaced and delegitimized indigenous systems of justice.

Yet cultural relativism, taken to its extreme, presents its own difficulties. Uncritical deference to custom can obscure power asymmetries within communities and shield harmful practices from scrutiny. Empirical evidence from customary forums in Sierra Leone demonstrates that oath-taking can operate as a mechanism of intimidation, particularly where fear of spiritual sanction is mobilized against vulnerable participants. In such cases, appeals to cultural legitimacy risk normalizing coercion rather than protecting autonomy.

African socio-legal scholarship has increasingly moved beyond this binary framing. Rather than treating culture and rights as mutually exclusive, scholars have emphasized the need for contextual engagement that recognizes both the legitimacy of indigenous practices and the necessity of normative limits. Human rights, from this perspective, are not static or externally imposed standards but principles that acquire meaning through social negotiation and institutional practice.

Applied to oath-taking, this approach suggests that the relevant question is not whether customary oaths should be permitted or prohibited, but how they should be governed. The objective is not to eradicate fear or belief from customary justice – both are intrinsic to its operation – but to ensure that participation in oath-taking is not compelled through abuse of authority, discrimination or threats of harm. Voluntariness, informed consent and protection against degrading treatment emerge as minimum requirements rather than culturally alien impositions.

This framing is consistent with the logic of legal pluralism. Deep legal pluralism recognizes that normative authority does not flow exclusively from the state, but it does not require the state to abdicate responsibility for protecting individuals from harm. The challenge lies in articulating a regulatory approach that respects the autonomy of customary systems while establishing a procedural floor that reflects shared commitments to dignity and fairness.

In the context of Sierra Leone, such an approach aligns with the partial accommodation embodied in the Local Courts Act. The Act recognizes the legitimacy of traditional oaths without prescribing their content. What it does not do, however, is articulate safeguards to address the human rights risks associated with oath-taking. This omission does not invalidate customary practice, but it underscores the need for a more deliberate engagement with the conditions under which such practices are administered.

This article therefore advances a contextual, rights-informed pluralist position. It neither elevates customary oath-taking beyond critique nor subjects it to rigid universal standards detached from social meaning. Instead, it argues that human rights and customary justice can be reconciled through careful attention to process rather than substance. By focusing on how oaths are administered rather than what they symbolize, it becomes possible to respect cultural legitimacy while mitigating coercion and exclusion.

Hybrid justice, cultural authority and reform implications in Sierra Leone

The analysis thus far demonstrates that oath-taking occupies a critical position within Sierra Leone’s plural justice landscape. It functions simultaneously as a mechanism of truth verification, a source of cultural legitimacy and a site of potential coercion. These overlapping functions make oath-taking particularly significant for debates on hybrid justice, where the challenge lies not in choosing between statutory and customary systems, but in managing their interaction in a manner that is both socially legitimate and normatively defensible.

Hybrid justice in Sierra Leone has developed in an incremental and uneven manner. The Local Courts Act represents the clearest institutional expression of hybridity by formally incorporating customary courts into the national judicial framework while allowing them to continue applying customary law. This model reflects a pragmatic recognition that state justice institutions cannot displace customary authority without undermining access to justice for large segments of the population. At the same time, the Act stops short of articulating how tensions between custom and rights should be resolved in practice.

Oath-taking exposes the strengths and limits of this hybrid arrangement. On the one hand, the recognition of traditional oaths within local courts enhances the perceived legitimacy of those institutions and aligns legal process with community expectations. Participants are more likely to comply with outcomes that are anchored in culturally meaningful practices. On the other hand, the absence of procedural guidance leaves the administration of oaths heavily dependent on local power relations, increasing the risk that cultural authority may be exercised in ways that are exclusionary or intimidating.

This tension should not be interpreted as evidence that hybridity has failed. Rather, it illustrates the inherent difficulty of governing plural legal orders without collapsing them into uniformity. Hybrid justice, properly understood, does not require the state to prescribe the content of customary practices. Nor does it require customary institutions to conform wholesale to statutory forms. What it requires is a framework that enables interaction between systems while setting limits on the exercise of authority where harm is likely to occur.

Comparative African scholarship supports this restrained approach. Studies of customary courts and hybrid institutions across the continent demonstrate that attempts to fully codify or standardize customary practices often weaken their legitimacy and effectiveness. Conversely, complete non-intervention by the state may allow abuses of authority to persist unchecked. The more sustainable path lies in procedural engagement rather than substantive transformation, allowing customary institutions to retain their normative foundations while subjecting their operation to basic standards of fairness and accountability.Footnote ¹²

In the context of oath-taking, this implies that reform efforts should focus on how oaths are administered rather than what they symbolize. Issues such as voluntariness, clarity of choice, absence of physical or psychological compulsion and sensitivity to gendered power dynamics are more amenable to regulation than the ritual content of oaths themselves. Addressing these procedural dimensions does not undermine cultural legitimacy; instead, it strengthens it by ensuring that authority is exercised in ways that command respect rather than fear alone.

This approach also responds directly to concerns about coloniality. Colonial legal regimes sought to marginalize customary law by replacing it with state-centred norms, while postcolonial reform efforts have sometimes reproduced this logic under the guise of modernization or rights enforcement. A procedural, pluralist model avoids this trap by recognizing customary authority as a source of legitimacy rather than a problem to be corrected. It treats culture as a resource through which justice can be made more effective, not as an obstacle to be removed.

Importantly, such an approach does not deny the role of the state in protecting fundamental rights. The state retains a responsibility to intervene where practices result in serious harm or systemic exclusion. However, that responsibility is best discharged through the articulation of minimum procedural expectations rather than detailed prescriptions of customary conduct. In this sense, hybrid justice becomes a process of calibration rather than domination.

The implications for reform in Sierra Leone are therefore conceptual as much as institutional. Oath-taking should be understood as a focal practice through which the broader dynamics of pluralism, authority and rights can be negotiated. By attending to the procedural conditions under which oaths are taken, policymakers and judicial actors can enhance both the legitimacy and the fairness of justice processes without undermining the diversity that characterizes Sierra Leone’s legal order.

Recommendations for reform

The analysis in this article suggests that reform of oath-taking practices in Sierra Leone should proceed with caution and restraint. The objective is not to standardize or domesticate customary practices into a uniform statutory framework, but to strengthen the conditions under which oath-taking operates across plural justice settings. Reform should therefore focus on procedure rather than substance, and on enabling cultural legitimacy to coexist with basic protections against coercion and exclusion.

First, there is a need for targeted reform of the Oaths and Affirmations Act which continues to reflect a colonial conception of legally valid belief by recognizing only a narrow range of religious traditions while excluding indigenous belief systems altogether. Reform should not attempt to codify customary rituals or prescribe the content of traditional oaths. Rather, the Act should be amended to include an enabling provision recognizing culturally grounded oaths administered by courts or tribunals authorized under law, particularly local courts. Such recognition would correct the symbolic exclusion of African traditional belief systems while preserving local autonomy over ritual form.

Second, consideration should be given to the scope of the Perjury Act. At present, the Act attaches criminal liability to false testimony only in relation to oaths recognized under the statutory framework. This creates a normative hierarchy that privileges statutory oaths and renders customary oaths legally inconsequential at the level of formal accountability. Reform in this area should be approached carefully. Rather than imposing automatic criminal sanctions for breach of customary oaths, the law could provide that false testimony under a recognized customary oath administered by a local court may attract legal consequences where minimum procedural conditions – such as voluntariness and informed consent – are satisfied. This would reinforce the seriousness of customary oath-taking without undermining its cultural foundations.

Third, the Local Courts Act should be supplemented by procedural guidance addressing the administration of traditional oaths. Such guidance should not prescribe uniform practices or rituals. Instead, it should articulate minimum expectations relating to choice, consent and protection from intimidation. These might include the clear communication of alternatives to oath-taking, the right to decline participation without adverse inference and safeguards for women and other vulnerable participants. Embedding such procedural expectations within the local court framework would strengthen accountability while respecting the diversity of customary practice.

Fourth, capacity-building within local courts and traditional leadership structures is essential. Chiefs, court chairpersons and elders who administer oaths exercise significant authority, often with profound consequences for those subject to their decisions. Training programmes focused on legal pluralism, procedural fairness and the human rights dimensions of customary justice would enhance the quality of decision-making without eroding cultural legitimacy. Such initiatives are more likely to succeed when developed collaboratively with customary authorities rather than imposed externally.

Finally, reform efforts should be informed by ongoing empirical engagement. Customary oath-taking practices are not static, and their meanings and effects vary across communities. Continuous dialogue between state institutions, customary authorities, civil society and affected communities is necessary to ensure that reform remains responsive to lived experience. Monitoring and research should focus not on measuring conformity to uniform standards, but on identifying patterns of harm, exclusion or abuse that warrant intervention.

Taken together, these recommendations reflect a pluralist and decolonial approach to justice reform. They treat culture as a source of legitimacy rather than an obstacle, while acknowledging the responsibility of the state to protect individuals from serious harm. By establishing a procedural floor rather than a substantive ceiling, Sierra Leone can strengthen both access to justice and respect for human dignity within its plural legal order.