Customary Courts: Preserving Fundamental Human Rights By Subjecting Traditions, Customary Laws And Native Realities To The Repugnancy And Compatibility Tests In The Protection Against Se*ual And Gender Based Violence

By Ehusani Abel Simpa[1]

“We may not want to hear about consequences in this day and age, but the truth still stands – if we let our selfish passions have their way, it will only be a matter of time before negative consequences begin to manifest. Tears and sorrow can never wash away the consequence for wrongdoing. Crying and wishing things were different doesn’t change a person’s life. Changing one’s character changes one’s life.” – Robb Thompson[2]

INTRODUCTION

There are realities that are peculiar to the culture and tradition of people who subscribe to or are made subject to their applications by factors relevant to them. Customary laws are intrinsically unwritten which makes them only ever appropriately identifiable by their usage and when they get the recognition called ‘judicial notice’. The customary courts have unlimited jurisdiction in the resolution of disputes, protection and determination of rights and in making declarations/pronouncements over questions of customary law. The dynamic nature of human interactions brings to fore the inevitable need to constantly ensure that traditions/customs are recognized, preserve and enforced in the direction of progress not retrogression. When practices become obsolete or are rendered inapplicable by the forces of positive development, the need to consciously readjust idiosyncratic nuances become undeniable.

The FCT Customary court judges who are all, as mandated in the statute creating the court,[3] experienced legal practitioners, are consistently faced with certainties that require the appropriate interpretation of applicable laws for holistic justice delivery. This paper points in the direction of certain core dimensions.

CUSTOMARY COURT POWERS AND THE AGENDA FOR SUSTAINABLE DEVELOPMENT

To pour out a generalized description of native laws, traditions and customary law practices in Africa and/or in Nigeria as being all barbaric, patriarchal and fetish would amount to gross fallacy and total ignorance. However, it will also be absolutely void of veracity to deny the existence and practice of traditions that are, by one side of the coin, the foundations of inequality and segregation, and by the flip side of the same coin, the mechanism that keeps fanning to flame these disgusting realities.

Thankfully the shared framework for peace, prosperity and true progress for all people now and in the future, which is replete in the 17 Sustainable Development Goals (SDGs) adopted by all United Nations member states in 2015 are gradually finding expressions through the dimension of deliberate judicial pronouncements. This is especially because the lower courts as well as superior courts of record in Nigeria have become conspicuously consistent. From the striking down of the Igbo customary law which disentitles a female child from partaking in her deceased father’s estate[4] to the pulling down of the tradition that forbids a married woman without a male issue from inheriting the landed property of her late husband,[5] the regime of true protection and enforcement of fundamental rights are improving in exiting proportions.

Precisely, regarding the SDGs, Goals 5, 10 and 16 which specifically accentuate: Gender equality, reduced inequalities and the push for peace, Justice and strong institutions, are the goals that are brought to limelight and are particularly of keen considerations in the customary courts.

The Federal Capital Territory Customary Court judges in the performance of their statutory duties function with the understanding that; ending poverty and other deprivations will truly be activated when health and educational realities are improved, inequalities are constantly struck down and deliberate pronouncements are made-to be enforced, in order to spur economic growth and perpetuate true progress. This is especially because it has been decided that a custom which does not permit the economic, social and political growth of a people is contrary to the rule of natural justice, equity and good conscience and must be struck down on that ground. Also, that courts will not entertain any rule or rules of native law and custom which will sentence a person/community to perpetual penury and/or servitude. This was the decision of the in the case of AKPALAKPA V. IGBAIBO[6]

Women and Children have rights that cannot be relegated anymore. It is an undeniable reality that the proliferation of Sexual and Gender Based Violence cannot be disconnected from certain traditional, historic, native and customary law realities that must give way due to the consistent evolution of humanity and the apparent development that must be activated for true safety, equality and the preservation of human dignity. There are, certainly, proportions of Sexual and Gender Based injustice that may not be perpetrated through violence but albeit hurtful and unacceptable.[7]

When faced with the question of the applicability of certain traditions, native practices, customary law principles, adages and such, that segregate and/or discriminate, relegate, subjugate and outrightly stigmatize women, children, persons living with disabilities/special needs, the customary court functions effectively in both protecting against and in bringing justice to victims of sexual and Gender based injustice. We build on the principle of “leaving no one behind” to activate effective child protection, eliminate all forms of violence against all women and girls, end all forms of discrimination and eliminate all harmful practices.

Violence, crime and other civil forms of injustice, particularly as they affect victims and the society, do find expressions in people’s foundational ideologies and their core values which almost always dictate, regulate and influence their choices. These core values are largely formed by traditions, beliefs and customary laws. However, with the understanding of existing statutory certainties identifiable in; The Constitution of the Federal Republic of Nigeria 1999 (amended), The Federal Capital Territory Customary Court Act 2007, The Child’s Rights Act 2003, The Violence Against Persons (Prohibition) Act 2015 etc., the customary courts always ensure that nothing trumps protection and preservation of fundamental rights.

Instructively, the explanatory memorandum of the Administration of Criminal Justice Act, 2015 identifies “…protection of the society from crimes and protection of the rights and interest of…victims in Nigeria” and this keeps us better informed in understanding of true justice in its all-encompassing dimension. True restoration and restitution will ultimately find fulfilment in cultural, psychological and societal specifics where value re-orientation is key. The need to also focus on pre-emptive measures in crime prevention can also not be overemphasized or underestimated so as not to wait till “it’s too late to cry when the head is cut off”

THE WORKINGS OF THE REPUGNANCY AND COMPATIBILITY TESTS

Simply put, the repugnancy test is the close consideration of native laws and customs to ascertain whether or not they offend the principles of natural justice, equity and good conscience. If they do, then they are rendered inapplicable/unenforceable for that reason. The compatibility test checks to be sure a rule of custom or tradition is not antithetical to written laws and statutes. These tests broadly set out effective parameters with which to identify the applicability or otherwise of customs.

The customary courts are statutorily empowered to administer appropriate customary laws in so far as they are not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any written law for the time being in force.[8] This is a fundamental basis for the effective utilization of the repugnancy and compatibility tests by the customary courts to consciously evaluate evidence and determine cases appropriately, and to preserve fundamental rights by reflecting true justice, peace, equality and development.

In 2021, the Federal Capital Territory Customary Court sitting in pyakasa, after close consideration of the entirety of the case, found, among other findings, that the ‘arekwu’ customary law practice of the ‘Igumale’ people had clear elements of inequality. The court, after finding that the practice clearly denigrates the dignity of the female gender, erodes fundamental rights and it threatens universally guaranteed freedom, declared it void and unenforceable for being repugnant to natural justice, equity and good conscience. It was also struck down for being inconsistent with the Constitution of the Federal Republic of Nigeria[9], for being incompatible with the Federal Capital Territory Customary Court Act[10] and the Child’s Rights Act.[11]  Find details of the judgment here: https://bit.ly/3pnWEtP

CONCLUSION

Progress requires consistency. Development will always be a process. The walls of segregation, hate, inequality and other unacceptable realities are known with long historic foundations because they took roots in time past by consistent use and acceptance. It will also require more consciously collective efforts to deliberately take out those roots and tear down the faulty foundations and the walls. It is often said little drops of water makes a mighty ocean. Therefore, with the global move to truly achieve peace, equal rights/opportunities and justice for all, it is right and just for everyone to take part, do the needful, play their roles and: “stand up, stand up…stand up for your rights…don’t give up the fight…”

[1] LLB, BL, Hon. Judge, Federal Capital Territory Customary Court, Pyakasa, Abuja.

[2] Thompson, R., The Elephant in the Room: What many see but most ignore, (Tulsa, OK: Harrison House 2011), P.116

[3] The Federal Capital Territory Customary Court 2007

[4] Ukeje V. Ukeje [2014] 11 NWLR Pt.1418 P.408, Paras. C-E

[5] Anekwe V. Nweke [2014] 9 NWLR [Pt.1412] P 425 Paras G-H

[6] (1996) 8 NWLR (PT. 468) 533 Pp. 550, paras. A-C;552, Paras. D-E

[7] They could be by way of: psychological trauma, stigmatization, communal conspiracies, negative tags, indoctrinations, deprivations etc.

[8] Section 16 of the Federal Capital Territory Customary Court Act 2007

[9] 1999 (amended)

[10] 2007

[11] 2003