Traditional Leadership and the Law: How African States Recognise Hereditary Rulers Today

Roughly a third of Africa’s population lives under some form of traditional authority that also operates inside a modern constitutional state. Two systems of law apply to the same people at the same time, and their relationship has to be defined by somebody.

Every African state has had to answer the same question since independence: what do you do with hereditary, unelected rulers in a republic? The answers range from complete abolition to constitutional entrenchment to a kingdom in which traditional authority simply is the state. Most countries chose something in between, and most are still arguing about it.

This page is the legal framework behind every succession dispute on this site — including the Modjadji queenship, which is currently before the South African courts. Understanding the law makes those disputes legible as constitutional questions rather than as family quarrels.

Not legal advice. This page describes legal frameworks for general reference. It is not advice, it will not be current everywhere, and anyone with an actual matter should consult a qualified lawyer in the relevant jurisdiction.

1. The colonial inheritance

None of this starts at independence. It starts with indirect rule.

European administrations across most of Africa governed through identified local rulers, because direct administration was unaffordable. The system required a chief in every territory. Where a chief existed, he was recognised, paid, and made accountable upward rather than downward. Where no chief existed — as in the decentralised societies of south-eastern Nigeria — one was invented.

Three consequences shaped everything that followed.

Authority was inverted. A pre-colonial ruler answered to councils, elders and the people who could depose him. A colonial chief answered to a district officer. The office survived; the accountability did not.

Custom was frozen and written down. Colonial administrations needed rules they could apply, so they recorded custom in codes and manuals — usually from senior male informants, usually at one moment in time, usually in a form that suited administration. What had been a living, negotiated, changing body of practice became a fixed text. Scholars call the result official customary law, as against the living customary law actually practised. The distinction runs through everything in Section 10.

Women’s offices vanished from the record. The system had no category for a dual-sex political structure and no form field for a second ruler. Where a female office held constitutional powers, those powers went unrecorded, which over a couple of generations was sufficient to end them. See queen mother offices.

At independence, every new state inherited this apparatus: a network of state-salaried chiefs holding offices that were traditional in name and colonial in structure, governing under a written custom that was not quite the custom.

2. Four state responses

Abolition. Tanzania abolished chieftaincy in 1963. Guinea suppressed it. Uganda abolished its kingdoms in 1967. Rwanda ended the monarchy in 1961; Ethiopia’s fell in 1974. The reasoning was consistent: hereditary authority was incompatible with republican equality, it was a colonial collaborator institution, and it obstructed nation-building over ethnic identity. Several of these abolitions were later partially reversed, which is itself informative.

Subordination. The office continues, under statute, with defined and limited functions, subordinate to elected government. Zambia and Botswana broadly.

Constitutional entrenchment. The institution is recognised in the constitution itself, with its own chapter, its own representative bodies and its own dispute machinery. Ghana and South Africa.

Sovereignty. Traditional authority is not accommodated by the state; it constitutes it. Eswatini, and in a different form Lesotho and Morocco.

The pattern worth noticing: abolition rarely worked. Uganda abolished its kingdoms in 1967 and restored them in 1993. Mozambique suppressed traditional authority after independence and reincorporated it in the 1990s. Where the institution had social legitimacy, removing its legal status removed the state’s ability to regulate it, not the institution.

3. South Africa: the constitutional model under strain

The most elaborate framework on the continent, the most litigated, and — currently — the least stable.

The constitutional provisions

Chapter 12 of the 1996 Constitution, sections 211 and 212, is short and consequential.

Section 211(1) recognises the institution, status and role of traditional leadership according to customary law.

Section 211(2) provides that a traditional authority observing a system of customary law may function subject to applicable legislation and customs, including amendments to or repeal of that legislation or those customs. The words “including amendments to or repeal of” are doing enormous work: the Constitution contemplates from the outset that customary law changes.

Section 211(3) requires courts to apply customary law when it is applicable, subject to the Constitution and any legislation dealing specifically with it.

Section 39(2), from the Bill of Rights, requires courts developing customary law to promote the spirit, purport and objects of the Bill of Rights.

Read together: customary law is real law, it is subordinate to the Constitution, and it is expected to develop.

The statutory chain — and where it currently stands

This part is genuinely unusual and matters for every recognition in the country.

Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA). The first democratic-era framework. It set up the recognition machinery for traditional communities, councils and leadership positions, and established the Commission on Traditional Leadership Disputes and Claims — commonly the Nhlapo Commission — to investigate historical claims and determine which kingships and queenships the state would recognise. The Balobedu Queenship’s recognition on 31 March 2016 came through this framework.

Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA). Replaced the TLGFA, took effect in April 2021, and for the first time extended statutory recognition to Khoi and San leadership. Section 12(8)(a) is the provision under which a recognised successor ceases to be treated as a minor upon presidential recognition — the provision engaged by the Modjadji recognition in December 2024.

And then the Act was struck down.

In Mogale and Others v Speaker of the National Assembly (CCT 73/22) [2023] ZACC 14, decided 30 May 2023, the Constitutional Court held unanimously that Parliament and the provincial legislatures had failed to facilitate reasonable public involvement before passing the TKLA, contrary to sections 59 and 72 of the Constitution. The Act was declared unconstitutional and invalid. The applicants were rural citizens and civil society organisations, and their substantive complaint was that the Act’s provisions on traditional council powers over communal land and third-party agreements would allow deals affecting people’s land without their consent.

The declaration of invalidity was suspended for 24 months to let Parliament re-enact or replace the statute — a standard remedy that keeps a defective law operating rather than creating a legal vacuum.

Parliament missed the deadline. A draft replacement Bill was published for comment in November 2024, the suspension was due to expire on 30 May 2025, and the responsible Minister applied for an extension. The Court granted a further two years, taking the suspension to 29 May 2027, while noting that the government’s explanation for the delay was not entirely satisfactory and questioning why the Bill had not been treated as a priority before the 2024 elections.

The current position, as of August 2026: the TKLA remains in force and recognitions made under it remain valid, but the Act is under a suspended declaration of constitutional invalidity, and replacement legislation is not yet enacted. Anyone citing the TKLA as the legal basis for a recognition — including this site, on other pages — should note that status.

The cases that define the field

Bhe and Others v Magistrate, Khayelitsha [2004] ZACC 17. The Constitutional Court struck down the customary rule of male primogeniture as it applied to intestate succession, holding it inconsistent with the equality guarantee. The judgment is the foundation for the proposition that a customary rule cannot survive merely because it is customary.

Shilubana and Others v Nwamitwa [2008] ZACC 9. The most important case for succession to office. Hosi Fofoza of the Valoyi community in Limpopo died in 1968 leaving a daughter and no son; under the community’s customary law at the time a woman could not succeed, and his brother took the chieftainship. In 1996–97 the Valoyi royal family, royal council and tribal authority resolved to end male primogeniture and confer the chieftainship on the daughter, Tinyiko Shilubana, at the next succession. When the incumbent died in 2001 his son litigated. The High Court and the Supreme Court of Appeal found for the son. The Constitutional Court reversed.

The holdings that matter: customary law is living law; a traditional community’s own authorities have the power to develop their customs in line with the Constitution; and where a dispute arises about the customary position, a court must consider both past tradition and current practice, and must give effect to a development the community has itself made. Ms Shilubana’s appointment was valid.

Shilubana is directly on point for every dispute about whether a customary succession rule can change to permit female succession. The answer, in South Africa, is that the community can change it and the change is law.

The Sigcau litigation. A series of judgments arising from disputes over the AmaMpondo kingship, which between them have clarified the limits of the President’s power to recognise traditional leaders — chiefly that the power must be exercised on the correct legal basis and in accordance with customary law and the statutory process, and is reviewable when it is not.

That last point is the one to hold onto: presidential recognition is an administrative act and it is reviewable. It is not a final word.

How recognition works in practice

The sequence, broadly: the royal family identifies a successor in accordance with its customary law; the identification is communicated to the Premier or the President depending on the level of the office; the President or Premier issues a certificate of recognition; the recognition is published in the Government Gazette.

The state does not choose. It confirms. But confirmation requires the state to satisfy itself that the identification was properly made, which necessarily draws it into questions of customary law — and when a royal family is split, into a dispute it has no way to avoid.

4. Ghana: the most developed institutional system

Ghana’s 1992 Constitution devotes a full chapter to chieftaincy and produces the most institutionally elaborated system on the continent.

Guaranteed institution. The Constitution guarantees the institution of chieftaincy together with its traditional councils, as established by customary law and usage.

A structure of houses. A National House of Chiefs, Regional Houses of Chiefs, and traditional councils.

Its own judiciary. The Houses of Chiefs have Judicial Committees with jurisdiction over chieftaincy causes and matters, with appeals running upward and ultimately into the ordinary court system. Ghana has, in effect, a parallel court system for chieftaincy disputes staffed by chiefs. This handles a very large volume of litigation that in South Africa lands in the High Court.

A political bar. Chiefs are prohibited from taking part in active party politics, and a chief who wishes to enter partisan politics must abdicate. This is one of the more effective provisions anywhere for limiting the politicisation described in Section 5.

Codification of custom. The Houses are charged with studying, interpreting and codifying customary law and with eliminating customary practices that are outmoded and socially harmful — an explicit statutory mandate to change custom, which is unusual.

And the gap. Queen mothers — the Ohemaa offices, which in a matrilineal system nominate the male chief and can reject nominations — are not formally represented in the National House of Chiefs on the same basis as chiefs. Ghanaian queen mothers have campaigned on this for decades. It is a precise illustration of Section 9: a system can be sophisticated, well-resourced and constitutionally entrenched, and still reproduce the colonial-era omission of the female office.

5. Nigeria: recognition as state politics

Nigeria has the largest number of traditional rulers of any African country and gives them the least constitutional protection.

Traditional rulers have had no formal role in the federal constitution since 1979. Chieftaincy is a matter for state law, which means state governors control recognition, grading, appointment and deposition of emirs, obas and other rulers.

The consequences are visible and recurrent. Rulers are deposed and reinstated as state administrations change. Chieftaincy grades are upgraded and created for political purposes. Traditional stools become instruments in party competition. The 2020 removal of a prominent northern emir and the subsequent contest over that office is the best-known recent example, and it is not exceptional.

Proposals to give traditional rulers a defined constitutional role — usually an advisory chamber, sometimes a security-related function — recur in every constitutional review cycle and have not been adopted. The arguments against are that formal recognition would entrench unelected authority and that Nigeria’s federal diversity makes a single national framework impracticable. The arguments for are that the rulers exercise real influence regardless, and that leaving them outside the constitution simply hands their regulation to whoever controls a state government.

6. Botswana, Uganda and the restricted models

Botswana operates the subordination model with an advisory chamber. The Ntlo ya Dikgosi, the House of Chiefs, advises Parliament on matters affecting traditional authority and customary law but does not legislate. The Bogosi Act of 2008 replaced the earlier Chieftainship Act following litigation about ethnic discrimination in which non-Tswana communities challenged a framework that recognised only a limited set of principal tribes. That litigation is a useful reminder that recognition law is also, always, ethnic-recognition law.

Uganda offers the clearest example of abolition and partial restoration. The kingdoms were abolished in 1967. They were restored in 1993 — but restored as cultural institutions. The Constitution permits traditional or cultural leaders to exist where the community wishes, while providing that they shall not have or exercise administrative, legislative or executive powers of government, and shall not join or participate in partisan politics.

Buganda’s position illustrates what that produces: the Kabaka is a nationally significant figure with substantial cultural authority, a functioning kingdom apparatus, and a long-running and unresolved dispute with central government over land and federal status — because the restoration returned the institution without returning what the institution had been about.

7. Eswatini and Lesotho: where tradition is the state

Eswatini is the outlier. Traditional authority is not regulated by the constitutional order; it constitutes it. The Ngwenyama and the Ndlovukazi hold constitutional office in a dual monarchy, and the country’s political system is organised around traditional structures rather than around parties. Every framework described above assumes a republican or parliamentary state accommodating traditional authority within it. Eswatini inverts the relationship.

Lesotho is a constitutional monarchy in which the King is head of state without executive power, with a College of Chiefs handling questions of chiefly succession and office. It is closer to the European constitutional-monarchy model than to anything else on this page.

8. Seven recurring problems

Across all of these jurisdictions, the same difficulties recur.

1. The state becomes the kingmaker. Whatever the theory, a system in which the state confirms a succession gives the state decisive influence over it. Where a royal family is divided, the state’s choice is determinative — and the state has its own interests.

2. Litigation becomes the succession mechanism. Customary systems resolved disputes through councils, elders and negotiation. Once recognition is a legal act, disputes become litigation: years long, expensive, adversarial, and decided by judges applying evidentiary rules to questions of custom.

3. Custom must be proved. A court asked to determine a customary rule must receive evidence of it — usually from witnesses with interests in the outcome, about practices that were oral and variable. The court then produces a ruling that fixes the rule going forward. Litigating custom changes it.

4. Interregna become long. A contested succession under litigation can leave an office vacant or contested for years or decades. The functions of the office — dispute resolution, land administration, ritual sanction, representation to government — go unperformed, and the cost falls on ordinary people.

5. Land is the real fight. A great deal of traditional leadership law is land law wearing other clothes. Who may consent to a mining agreement on communal land, who receives the royalties, and who may sign for a community are the questions that generate the litigation and the legislation, including the challenge that struck down South Africa’s TKLA.

6. Legitimacy runs both ways. Politicians seek traditional rulers’ endorsement; traditional rulers seek state resources and recognition. The exchange compromises both, which is why Ghana’s bar on chiefs in party politics is unusual and significant.

7. The frameworks reproduce colonial categories. Critics of South Africa’s legislation have argued it re-creates Bantustan-era boundaries and authority structures, because it inherited them. The same criticism applies in weaker form across the region: the map of recognised traditional authority is substantially the map colonial administrators drew.

9. The gender question

The single most consistent finding across every jurisdiction: statutory frameworks default to male succession, and where custom permitted female authority, the framework rarely captured it.

The mechanism is the one from Section 1. Colonial codification recorded male primogeniture as the rule; independence-era statutes inherited the codes; the codes are now the “custom” a court must apply. A woman claiming an office therefore litigates against a written rule that may never have been the actual practice.

Three developments have pushed against this.

Constitutional equality. Bhe established that a customary rule discriminating on grounds of sex does not survive constitutional scrutiny merely because it is customary.

Community-led change. Shilubana established that a community may itself develop its customary law to permit female succession, and that the development is legally effective. This is the more powerful route, because it locates the change inside the community rather than imposing it from outside.

Recognition of female offices. South Africa’s recognition of the Balobedu Queenship in 2016 brought a female-headed office into the statutory framework — the only queenship so recognised in the country.

What has not generally happened is the restoration of the institutional female offices described elsewhere on this site. Ghana’s queen mothers remain outside the National House of Chiefs. The Iyoba, the Magajiya, the Omu and their equivalents hold ceremonial status rather than the statutory recognition their male counterparts receive. Constitutional equality law has addressed women’s exclusion from male offices considerably more effectively than it has addressed the disappearance of the female ones.

See queen mother offices and matrilineal succession.

10. Living customary law

The concept that holds the whole field together, and the site’s glossary entry for it is worth reading alongside this section.

Official customary law is custom as recorded — in colonial codes, in textbooks, in earlier judgments, in statute. It is fixed, written, and often inaccurate about what people actually did or do.

Living customary law is the practice as it currently exists in the community: unwritten, variable between places, and continuously changing as people negotiate their own arrangements.

South African courts have committed, at least in principle, to applying the living version. This is the doctrinal core of Shilubana: a court must consider the community’s present practice and not only the recorded rule, and where the community has developed its law, that development is the law.

The commitment creates a hard problem. Living customary law is hard to prove, varies between villages, and is contested precisely in the cases that reach court — because a dispute means the community does not agree what the practice is. Judges end up determining, on adversarial evidence, what a community’s living law currently says. That determination then becomes a precedent, which is to say it becomes official customary law.

There is no clean solution to this. It is worth understanding as the central tension of the field rather than as a defect to be fixed.

More: living customary law

11. Reading the Modjadji dispute through this framework

Status as of 15 August 2026. This section touches an ongoing dispute and is reviewed quarterly. It carries no advertising. RainQueensOfAfrica.com is not affiliated with any party to the dispute; see our corrections page.

The Balobedu succession dispute is not unusual. It is a textbook instance of the problems in Section 8, and setting it in the framework rather than in personalities is the most useful thing this site can do with it.

It is a recognition dispute, not only a family dispute. The contested act is the President’s issue of a certificate of recognition in December 2024. Under the Sigcau line of authority, presidential recognition is an administrative act, and it is reviewable. A review application to set it aside is exactly the remedy the framework provides. That the recognition is being challenged in court is the system working as designed, not a breakdown of it.

The customary question is genuinely open. What the Balobedu customary rule of succession is, and whether it can be developed, are the substantive questions underneath the procedural ones. Shilubana is directly relevant: if a community’s own authorities develop the rule, that development is law. Where a community has two structures each claiming to be the authority, the prior question is which one can validly speak for it — and that question does not have an obvious legal answer.

The statutory basis is itself unstable. The recognition was made under the TKLA, an Act operating under a suspended declaration of constitutional invalidity, with replacement legislation due before 29 May 2027. This does not invalidate recognitions made under it — the suspension exists precisely to prevent that — but it is part of the legal context and it is rarely mentioned in coverage of the dispute.

Problem 4 is the one that matters most. An eighteen-year regency followed by an unresolved recognition means the office has not functioned at capacity for two decades, and the cost falls on people with no part in the dispute.

This site takes no position on the merits and identifies no rightful claimant. The full factual position is at the Balobedu queenship status page.

12. Sources and further reading

South Africa

• Constitution of the Republic of South Africa, 1996, Chapter 12 (ss 211–212) and s 39(2).
• Traditional Leadership and Governance Framework Act 41 of 2003.
• Traditional and Khoi-San Leadership Act 3 of 2019.
• Draft Traditional and Khoi-San Leadership Bill, 2024 (published for comment 29 November 2024).
• Bhe and Others v Magistrate, Khayelitsha and Others [2004] ZACC 17.
• Shilubana and Others v Nwamitwa [2008] ZACC 9; 2009 (2) SA 66 (CC).
• Mogale and Others v Speaker of the National Assembly and Others (CCT 73/22) [2023] ZACC 14.
• Minister of Cooperative Governance and Traditional Affairs v Speaker of the National Assembly and Others (CCT 73/22) [2025] ZACC 22.
• The Sigcau line of judgments on presidential recognition.
• Reports of the Commission on Traditional Leadership Disputes and Claims (Nhlapo Commission).
• Land and Accountability Research Centre and Custom Contested, on the TKLA and communal land.

Ghana

• Constitution of the Republic of Ghana, 1992, Chapter 22.
• Chieftaincy Act, 2008 (Act 759).

Comparative and general

• Bogosi Act, 2008 (Botswana).
• Constitution of the Republic of Uganda, 1995, on traditional or cultural leaders; Institution of Traditional or Cultural Leaders Act, 2011.
• Constitution of the Kingdom of Eswatini, 2005.
• Academic literature on living customary law and the codification problem.

Related pages on this site

• The Modjadji Rain Queens
• The Balobedu
• Matrilineal succession in Africa
• Queen mothers of Africa
• African kingdoms ruled by women