By Jesse Nwaenyo, Esq.
The sources of law in most African countries are customary law, the common law and legislation both colonial and post-independence. In a typical African country, the great majority of the people conduct their personal activities in accordance with and subject to customary law. Customary law has great impact in the area of personal law in regard to matters such as marriage, inheritance and traditional authority, and because it developed in an era dominated by patriarchy some of its norms conflict with human rights norms guaranteeing equality between men and women. It has been argued by some scholars that African Law is not a major legal system considering its’ lack of extra territorial influence.
The objective of this article is to x-ray the African legal system in the light of its’ peculiarities and problematics and ascertain the status thereof when compared to other legal systems. The research methodology is doctrinal method. Primary source is laws and judicial source, books and online sources.
The national legal system of a typical African state is pluralistic and composed of the following sources African customary law: religious laws (especially where there is a significant Muslim population); received law (common law or civil law depending on the colonial history)’; and legislation, both colonial (adopted from the colonial state) and post-independence legislation enacted by Parliament. Customary law is the indigenous law of the various ethnic groups of Africa. The pre-colonial law in most African states was essentially customary in character, having its sources in the practices and customs of the people. In a typical African country, the great majority of people conduct their personal activities in accordance with and subject to customary law. It should be appreciated that the use of the term “African customary law” does not indicate that there is a single uniform set of customs prevailing in any given country. Rather, it is used as a blanket description covering many different legal systems. These systems are largely ethnic in origin, and they usually operate only within the area occupied by the ethnic group and cover disputes in which at least one of the parties to the dispute is a member of the ethnic group. There are local variations within such areas, but, by and large, the broad principles in all the various systems are the same. African legal system has certain features which make it unique. In the same vein, the challenges of the African legal system abound. The pertinent question is whether this particular legal system has an extra-territorial influence to be considered a major legal system in the world. This article goes to examine whether African Law is a major legal system in the world. This article will look at the peculiarities and problematics of the African Law.
3.0. Types of Legal Systems in Africa
African customary law is derived from the traditional customs and practices of the various indigenous groups of Africa . Due to the diversity of traditional practices originating from many tribal populations, African customary law is not a uniform set of customs of any given country, rather there are variations between regional areas depending on the ethnic origin . The establishment of the Native Courts and the formal introduction of customary law was a revolutionary development in Africa; however, the official codification of such unwritten laws occurred after decolonization . For many years post-independence, the customary law governed personal matters and communal issues such as disputes on land possession and appointing a successive chief . As the philosophies of customary legislation promote the integration of reconciliation, social justice and restoration of tribal groups , there is rising support for customary law and its capacity to better accommodate for the values of African citizens and their social experience . With the adoption of statutory features, customary law is now becoming better reflected into the formal legal systems of the African states, induced by the need to conserve traditional customs that have been repressed by colonial experiences and the rising advocacy for cultural rights . Subsequently, the mechanisms of customary law are becoming more widely implemented outside of small communities for civil and criminal matters through its traditional justice system .
The basis of western law in Africa is characterized by the English common law and continental European civil law. Following colonization, many foreign governments retained the pre-existing native laws by which Africa’s dual legal system was produced. As the imported laws took precedence, over time, even local courts in the English metropoles employed tax prosecutions and British disciplines surrounding work and labour contracting. The African common and civil law remains relatively similar to what has been left behind by the colonizing powers, though the employment of such laws varies between nations . Currently, the formal courts greatly contribute to how the rule of civil or common law is maintained in each nation .
Derived from Roman traditions, the European systems of justice were characterized by the objective to expand an empire and regulate the citizens via the inquisitorial system . In court, this system requires the judge to actively participate in settling legal matters by gathering evidence and hosting witness testimonies to make an informed conclusion of the truth .
Comparatively, the introduction of common law from British colonizers employed the notion of protecting individual rights from the state through an adversarial system of justice . Formal debates take place in the presence of a jury and judge, but unlike the inquisitorial system, the courts established under common law only require the judge to oversee the opposing positions on the case and make an informed decision on the evidence presented to them in court .
Islam, Christianity and African traditional religions are the dominant faiths in Africa with Judaism, Hinduism and Buddhism being exclusive to regions and their populations .
In many tribal societies, religion is perceived as a product of Western colonialism, responsible for the diminution of traditional religious practices . Hence, foreign religions are condemned in native circles and proscribed from the customary laws and institutions that they follow.
During British and European colonization, Christian laws were introduced by missionaries, until eventually, courts began introducing Christian marriage principles . While the imported constitution was employed in association to Christian belief, most African nations today separate the church and state to best accommodate for the freedom of religion. However, in many circumstances, such as community service, the state and church often collaborate due to common interests.
Islamic law is prevalent in numerous African nations in the form of Sharia Law which follows the teachings of the Quran . The relationship between Islamic law and the formal national legal system, largely depends on the state. In the past, the integration of Islamic Law and national law were deeply rooted, by which the Sharia court appeals were taken to High Courts . Over time, legal reform reduced the involvement of religion in legal matters.
4.0. AFRICAN LAW AS A MAJOR LEGAL SYSTEM IN THE WORLD.
Some schools of thought have contended that African Law possesses the characteristics of a major legal system in the world. Basically, customary law is referred to as African law; and in a continent with 54 Countries and a booming population which represent a reasonable percentage of the world population it can be arguable said that African law is a major legal system in the world. This postulation is also valid when considering the status of Asian law as to whether or not it is a major legal system in the world.
We shall now list out the peculiarities/characteristics/qualities of African law:
i. African law is largely unwritten. Most of it is transported from generation to generation in the form of folklores, tales, etc. the art of writing was not generally common in Africa except for few countries like Egypt and Ethiopia where civilization had a kiss with the sun.
ii. Another characteristic of African Law is that Judicial decisions are binding. For instance, judicial decisions regarding the killing of twins in some African nations were binding regardless the royalty birthing the twins.
iii. African law allowed for freedom of contract. In some instances, the contract is secured with an oath taken before a deity. The fear of the deity compelled parties to specifically perform the terms of the contract. This is similar to modern day clauses inserted Deed of Contracts, the breach of which will adversely affect the defaulting party.
iv. The germane source of African law is the customary law. Other sources include legislations, English laws, case laws, international laws, supranational laws, codes, etc.
African Laws has its’ share of problems. African law was not entirely refined. We shall enumerate some of the problematics of the African Law:
i. Extra-territorial influence. African law lacked this basic feature which lends credence to the argument that since such a law does not enjoy an atom of influence outside its’ continent, it cannot be labeled as a major legal system in the world. One of the contrasting features between African law and let’s say the English law is that the latter enjoys a robust application in most African countries. But I am of the opinion that this argument of lack of extra continental influence in the DNA of African law should be examined in the light of the effect of colonialism. It is not as if these world legal systems were begged and/or invited to Africa continent to operate, it was in most cases imposed. Assuming none of the African nations were colonized by foreign nations, their legal systems would not have had a bearing in any country in Africa, as the continent already had an existing African legal system. Conversely, assuming any African nation colonized any foreign nation, African law vis-à-vis African legal system would have been practiced in such a nation/country.
ii. Human right violations: in present time with the infiltration of other legal system into the eco system of African Law and forming the litmus test for testing the purity of African law, it has been discovered that most African Laws are obnoxious, contrary to good conscious, equity and justice. There are plethora of judicial decisions which have either qualified an African Law or totally abolished it for being crude, retarded or unjust. Let’s look at some of these cases. In Mrs. Lois Ukeje & Anor. v. Miss. Gladys Ukeje , the Supreme queried the customary law depriving women of inheritance. The eminent jurist Bode Rhodes-Vivor, J.S.C profoundly held that:
“…the igbo customary law which disentitles a female child from partaking in her deceased father’s estate is in breach of section 42(1) and (2) of the Constitution of the Federal republic of Nigeria, 1999, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the Constitution.”
Similarly, in Augustine Mojekwu v. Caroline Mojekwu it was robustly stated that:
“Nigeria is an egalitarian society where the civilized sociology does not discriminate against women. However, there are customs all over which discriminate against the womenfolk which regard them as inferior to the menfolk. That should not be so as all human beings, male and female, are born into a free world and are expected to participate freely without any inhibition on grounds of sex. The “oli-ekpe” custom, which permits the son of a brother of a deceased person to inherit his property to the exclusion of his female child, is discriminatory and therefore inconsistent with the doctrine.” The most revered jurist put his own opinion in a finer manner when he stated that “We need not travel all the way to Beijing to know that some of our customs, including the Nnewi “Oli-ekpe” custom relied upon by the appellant are not consistent with our civilized world in which we all live today, including the appellant.”
Finally, in Elesie Agbai & Ors v. Samuel Okogbue, the Supreme Court considered the question whether membership of an age grade association is compulsory. It was held that:
“It is the law that nobody can be compelled to associate with other persons against his will. The constitution of the Federal Republic of Nigeria guarantees every citizen that freedom of choice. Accordingly, any purported drafting of any person into an association against his will even if by operation of customary law is in conflict with the provision of section 26(1) of the 1963 Constitution and is void.”
iii. Domestic feature: African law is only indigenous to its’ place of origin. For instance, the igbo customary law is native to only the igbo nation and alien to the yourba nation. The lack of unified customary law made it impossible to have a set of African law applicable across the length and breadth of the continent. In Nigeria, there are over two hundred tribes, each having native laws distinct from her neighbors. The diversity of the people of Nigeria also implies the diversity of their customs/laws. This feature distinguishes African law from the received English law which was applicable throughout the realm.
iv. Flexibility: the unwritten nature of African Law made it flexible. This means that it is dynamic not static. Thus, from continuous interpretation of the laws, changes are made by the interpreters of the law. In the celebrated case of Lewis v. Bankole , it was stated that one of the striking features of customary law is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without losing its character. This was also corroborated in the case of kimdey v. military Governor of Gongola state & Ors.
v. Evidential nature: one basic feature in the law of evidence in African law is the admission of hearsay and weight attached to the evidence of a high number of witnesses. It is believed that the higher the number of witnesses, the more probable the truth.
Africa’s sovereign States range widely in their history and structure, and their laws are variously defined by customary law, religious law, common law, Western civil law, other legal traditions, and combinations thereof. Prior to the colonial era in the nineteenth century, Africa’s legal system was dominated by the traditional laws of the native people. The efforts to maintain the indigenous practices against the rising Continental European and Great British powers, though unsuccessful, provoked the development of existing customary laws via the establishment of ‘Native Courts’. While the colonies were governed by the imported legal system and civil codes of the metropoles, the practice of traditional laws continued under supervision, with its jurisdiction restricted to only African citizens.
African Legal system lacks the needed continental cohesion to compete as a major legal system. It is recommended that African nations should device a means to reconcile the different legal practices, into a unified form that would be suitable for the States and its people.
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