By Jesse Nwaenyo, Esq.
The sources of legislation in most African international locations are customary legislation, the frequent legislation and laws each colonial and post-independence. In a typical African nation, the nice majority of the individuals conduct their private actions in accordance with and topic to customary legislation. Customary legislation has nice influence within the space of non-public legislation in regard to issues corresponding to marriage, inheritance and conventional authority, and since it developed in an period dominated by patriarchy a few of its norms battle with human rights norms guaranteeing equality between women and men. It has been argued by some students that African Regulation will not be a serious authorized system contemplating its’ lack of additional territorial affect.
The target of this text is to x-ray the African authorized system within the mild of its’ peculiarities and problematics and confirm the standing thereof when in comparison with different authorized techniques. The analysis methodology is doctrinal technique. Major supply is legal guidelines and judicial supply, books and on-line sources.
The nationwide authorized system of a typical African state is pluralistic and composed of the next sources African customary legislation: non secular legal guidelines (particularly the place there’s a vital Muslim inhabitants); acquired legislation (frequent legislation or civil legislation relying on the colonial historical past)’; and laws, each colonial (adopted from the colonial state) and post-independence laws enacted by Parliament. Customary legislation is the indigenous legislation of the assorted ethnic teams of Africa. The pre-colonial legislation in most African states was primarily customary in character, having its sources within the practices and customs of the individuals. In a typical African nation, the nice majority of individuals conduct their private actions in accordance with and topic to customary legislation. It needs to be appreciated that using the time period “African customary legislation” doesn’t point out that there’s a single uniform set of customs prevailing in any given nation. Slightly, it’s used as a blanket description masking many alternative authorized techniques. These techniques are largely ethnic in origin, and so they normally function solely throughout the space occupied by the ethnic group and canopy disputes by which at the very least one of many events to the dispute is a member of the ethnic group. There are native variations inside such areas, however, by and huge, the broad ideas in all the assorted techniques are the identical. African authorized system has sure options which make it distinctive. In the identical vein, the challenges of the African authorized system abound. The pertinent query is whether or not this explicit authorized system has an extra-territorial affect to be thought-about a serious authorized system on the earth. This text goes to look at whether or not African Regulation is a serious authorized system on the earth. This text will take a look at the peculiarities and problematics of the African Regulation.
3.0. Kinds of Authorized Methods in Africa
African customary legislation is derived from the standard customs and practices of the assorted indigenous teams of Africa . Because of the range of conventional practices originating from many tribal populations, African customary legislation will not be a uniform set of customs of any given nation, reasonably there are variations between regional areas relying on the ethnic origin . The institution of the Native Courts and the formal introduction of customary legislation was a revolutionary growth in Africa; nevertheless, the official codification of such unwritten legal guidelines occurred after decolonization . For a few years post-independence, the customary legislation ruled private issues and communal points corresponding to disputes on land possession and appointing a successive chief . Because the philosophies of customary laws promote the combination of reconciliation, social justice and restoration of tribal teams , there may be rising help for customary legislation and its capability to raised accommodate for the values of African residents and their social expertise . With the adoption of statutory options, customary legislation is now turning into higher mirrored into the formal authorized techniques of the African states, induced by the necessity to preserve conventional customs which were repressed by colonial experiences and the rising advocacy for cultural rights . Subsequently, the mechanisms of customary legislation have gotten extra broadly carried out exterior of small communities for civil and legal issues by way of its conventional justice system .
The premise of western legislation in Africa is characterised by the English frequent legislation and continental European civil legislation. Following colonization, many overseas governments retained the pre-existing native legal guidelines by which Africa’s twin authorized system was produced. Because the imported legal guidelines took priority, over time, even native courts within the English metropoles employed tax prosecutions and British disciplines surrounding work and labour contracting. The African frequent and civil legislation stays comparatively much like what has been left behind by the colonizing powers, although the employment of such legal guidelines varies between nations . At present, the formal courts enormously contribute to how the rule of civil or frequent legislation is maintained in every nation .
Derived from Roman traditions, the European techniques of justice had been characterised by the target to develop an empire and regulate the residents through the inquisitorial system . In courtroom, this method requires the decide to actively take part in settling authorized issues by gathering proof and internet hosting witness testimonies to make an knowledgeable conclusion of the reality .
Comparatively, the introduction of frequent legislation from British colonizers employed the notion of defending particular person rights from the state by way of an adversarial system of justice . Formal debates happen within the presence of a jury and decide, however not like the inquisitorial system, the courts established underneath frequent legislation solely require the decide to supervise the opposing positions on the case and make an knowledgeable determination on the proof offered to them in courtroom .
Non secular Regulation
Islam, Christianity and African conventional religions are the dominant faiths in Africa with Judaism, Hinduism and Buddhism being unique to areas and their populations .
In lots of tribal societies, faith is perceived as a product of Western colonialism, chargeable for the diminution of conventional non secular practices . Therefore, overseas religions are condemned in native circles and proscribed from the customary legal guidelines and establishments that they comply with.
Throughout British and European colonization, Christian legal guidelines had been launched by missionaries, till finally, courts started introducing Christian marriage ideas . Whereas the imported structure was employed in affiliation to Christian perception, most African nations right now separate the church and state to finest accommodate for the liberty of faith. Nevertheless, in lots of circumstances, corresponding to neighborhood service, the state and church typically collaborate attributable to frequent pursuits.
Islamic legislation is prevalent in quite a few African nations within the type of Sharia Regulation which follows the teachings of the Quran . The connection between Islamic legislation and the formal nationwide authorized system, largely is determined by the state. Previously, the combination of Islamic Regulation and nationwide legislation had been deeply rooted, by which the Sharia courtroom appeals had been taken to Excessive Courts . Over time, authorized reform lowered the involvement of faith in authorized issues.
4.0. AFRICAN LAW AS A MAJOR LEGAL SYSTEM IN THE WORLD.
Some faculties of thought have contended that African Regulation possesses the traits of a serious authorized system on the earth. Mainly, customary legislation is known as African legislation; and in a continent with 54 International locations and a booming inhabitants which symbolize an affordable proportion of the world inhabitants it may be controversial mentioned that African legislation is a serious authorized system on the earth. This postulation can also be legitimate when contemplating the standing of Asian legislation as as to if or not it’s a main authorized system on the earth.
We will now checklist out the peculiarities/traits/qualities of African legislation:
i. African legislation is essentially unwritten. Most of it’s transported from era to era within the type of folklores, tales, and so forth. the artwork of writing was not typically frequent in Africa aside from few international locations like Egypt and Ethiopia the place civilization had a kiss with the solar.
ii. One other attribute of African Regulation is that Judicial selections are binding. As an illustration, judicial selections concerning the killing of twins in some African nations had been binding regardless the royalty birthing the twins.
iii. African legislation allowed for freedom of contract. In some cases, the contract is secured with an oath taken earlier than a deity. The worry of the deity compelled events to particularly carry out the phrases of the contract. That is much like modern-day clauses inserted Deed of Contracts, the breach of which is able to adversely have an effect on the defaulting social gathering.
iv. The germane supply of African legislation is the customary legislation. Different sources embody legislations, English legal guidelines, case legal guidelines, worldwide legal guidelines, supranational legal guidelines, codes, and so forth.
African Legal guidelines has its’ share of issues. African legislation was not completely refined. We will enumerate a few of the problematics of the African Regulation:
i. Further-territorial affect. African legislation lacked this fundamental characteristic which lends credence to the argument that since such a legislation doesn’t get pleasure from an atom of affect exterior its’ continent, it can’t be labeled as a serious authorized system on the earth. One of many contrasting options between African legislation and let’s say the English legislation is that the latter enjoys a sturdy utility in most African international locations. However I’m of the opinion that this argument of lack of additional continental affect within the DNA of African legislation needs to be examined within the mild of the impact of colonialism. It’s not as if these world authorized techniques had been begged and/or invited to Africa continent to function, it was generally imposed. Assuming not one of the African nations had been colonized by overseas nations, their authorized techniques wouldn’t have had a bearing in any nation in Africa, because the continent already had an current African authorized system. Conversely, assuming any African nation colonized any overseas nation, African legislation vis-à-vis African authorized system would have been practiced in such a nation/nation.
ii. Human proper violations: in current time with the infiltration of different authorized system into the eco system of African Regulation and forming the litmus take a look at for testing the purity of African legislation, it has been found that almost all African Legal guidelines are obnoxious, opposite to good aware, fairness and justice. There are plethora of judicial selections which have both certified an African Regulation or completely abolished it for being crude, retarded or unjust. Let’s take a look at a few of these instances. In Mrs. Lois Ukeje & Anor. v. Miss. Gladys Ukeje , the Supreme queried the customary legislation depriving girls of inheritance. The eminent jurist Bode Rhodes-Vivor, J.S.C profoundly held that:
“…the igbo customary legislation which disentitles a feminine little one from partaking in her deceased father’s property is in breach of part 42(1) and (2) of the Structure of the Federal republic of Nigeria, 1999, a elementary rights provision assured to each Nigerian. The mentioned discriminatory customary legislation is void because it conflicts with part 42(1) and (2) of the Structure.”
Equally, in Augustine Mojekwu v. Caroline Mojekwu it was robustly acknowledged that:
“Nigeria is an egalitarian society the place the civilized sociology doesn’t discriminate towards girls. Nevertheless, there are customs throughout which discriminate towards the womenfolk which regard them as inferior to the menfolk. That shouldn’t be in order all human beings, female and male, are born right into a free world and are anticipated to take part freely with none inhibition on grounds of intercourse. The “oli-ekpe” customized, which allows the son of a brother of a deceased particular person to inherit his property to the exclusion of his feminine little one, is discriminatory and due to this fact inconsistent with the doctrine.” Probably the most revered jurist put his personal opinion in a finer method when he acknowledged that “We want not journey all the best way to Beijing to know that a few of our customs, together with the Nnewi “Oli-ekpe” customized relied upon by the appellant will not be per our civilized world by which all of us dwell right now, together with the appellant.”
Lastly, in Elesie Agbai & Ors v. Samuel Okogbue, the Supreme Court docket thought-about the query whether or not membership of an age grade affiliation is obligatory. It was held that:
“It’s the legislation that no person could be compelled to affiliate with different individuals towards his will. The structure of the Federal Republic of Nigeria ensures each citizen that freedom of alternative. Accordingly, any purported drafting of any particular person into an affiliation towards his will even when by operation of customary legislation is in battle with the supply of part 26(1) of the 1963 Structure and is void.”
iii. Home characteristic: African legislation is simply indigenous to its’ native land. As an illustration, the igbo customary legislation is native to solely the igbo nation and alien to the yourba nation. The shortage of unified customary legislation made it unattainable to have a set of African legislation relevant throughout the size and breadth of the continent. In Nigeria, there are over 200 tribes, every having native legal guidelines distinct from her neighbors. The range of the individuals of Nigeria additionally implies the variety of their customs/legal guidelines. This characteristic distinguishes African legislation from the acquired English legislation which was relevant all through the realm.
iv. Flexibility: the unwritten nature of African Regulation made it versatile. Which means that it’s dynamic not static. Thus, from steady interpretation of the legal guidelines, modifications are made by the interpreters of the legislation. Within the celebrated case of Lewis v. Bankole , it was acknowledged that one of many putting options of customary legislation is its flexibility; it seems to have been all the time topic to motives of expediency, and it exhibits unquestionable adaptability to altered circumstances with out dropping its character. This was additionally corroborated within the case of kimdey v. army Governor of Gongola state & Ors.
v. Evidential nature: one fundamental characteristic within the legislation of proof in African legislation is the admission of rumour and weight hooked up to the proof of a excessive variety of witnesses. It’s believed that the upper the variety of witnesses, the extra possible the reality.
Africa’s sovereign States vary broadly of their historical past and construction, and their legal guidelines are variously outlined by customary legislation, non secular legislation, frequent legislation, Western civil legislation, different authorized traditions, and mixtures thereof. Previous to the colonial period within the nineteenth century, Africa’s authorized system was dominated by the standard legal guidelines of the native individuals. The efforts to keep up the indigenous practices towards the rising Continental European and Nice British powers, although unsuccessful, provoked the event of current customary legal guidelines through the institution of ‘Native Courts’. Whereas the colonies had been ruled by the imported authorized system and civil codes of the metropoles, the follow of conventional legal guidelines continued underneath supervision, with its jurisdiction restricted to solely African residents.
African Authorized system lacks the wanted continental cohesion to compete as a serious authorized system. It is strongly recommended that African nations ought to gadget a way to reconcile the completely different authorized practices, right into a unified type that may be appropriate for the States and its individuals.
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