Abstract
The law of the land can undoubtedly be said to be the living spring where every other social institutions emanates from. This establishes a symbiotic relationship between Law as an idea and every other social institution that exist as a result of that idea. These social institutions include the economy system, the religion system of worship, the system of government. This therefore postulate that, a dysfunction in a law as an idea will inevitably lead to a dysfunctional institution.
In the light of this, dysfunctional institutions are one of the major challenges Africa as a continent is experiencing and an understanding of the world’s history reveals that the idea of law in which these dysfunctional institutions emanate from is as a result of the inorganic implementation of European Law on the African soil as a result of colonization which lasted for over 60years.
This paper therefore seeks to juxtapose the various background of law both from an African perspective and from a European perspective and the imperative need to explore, develop and adopt organic African institutions in order to foster and accelerate the emergence of a new dawn against the backdrop of our declining and retrogressive inorganic institutions.
Keywords: Law, Ethos, Colonization, Imperialism Yoruba.
INTRODUCTION
Law from a personal perspective I describe as a living idea that guides the conduct of a society. The heterogeneous nature of societies clustered together in the world makes law not to have a definite, encompassing definition that affects all societies uniformly. This position can be lucidly explained through the parable of the blind men and an elephant. It’s a story of a group of blind men who have never come across an elephant before and who learn and conceptualize what the elephant is like by touching it. Each blind man feels a different part of the elephant’s body, but only one part, such as the side or the tusk. Then they describe the elephant based on their limited experience and their description of the elephants are different from each other. The outcome of Law is only based on the subjective experiences of members of a society. These subjective experiences are what grants Life/Legality to Law.
Law and its practicality in the way it operates is divided into various school of thoughts which includes :(1) Natural Law (2) Legal Positivism (3) Legal Realism. (4). The Historical school of Jurisprudence (5) The Sociological School of Jurisprudence. (6) The Marxist school of Jurisprudence. (1) Natural Law: Natural Law theory is grounded on the idea of what is good and what is bad through perception of moral law of God. Enabling it to lay down rules and structure that govern moral standard, moral judgement, and measures of justice in countries. Natural law is based on the principle of Justice and true conscience. (2) Legal Positivism: legal positivism there isn’t necessarily a connect between law and morality. Instead it holds that law comes from various sources, usually the government. If the government enact a law, then it should be followed. Legal positivism operates on the ideology of might over right. (3) Legal Realism This theory proposes that law is a reflection of the personal view of the people in charge enacting, applying and enforcing it. The actual practice of law determine what law is.(4) The Historical School of Jurisprudence: The historical school of Jurisprudence manifest the belief that history is the foundation of the knowledge of the contemporary era. Two Jurists who researched extensively in this area- Friedrich Carl Von Savigny(1799-1861) and Sir Henry Maine(1822-1888). History is a record of our past. As man as a past so does law.(5) The Sociological School of Jurisprudence: The sociological school of jurisprudence considers law or legal development from the perspective of the people in the society. Perceiving law as a social phenomenon, it posits the harmonization of law with the wishes and aspiration of the people.(6) Marxism is unique because it’s the only school of thought that has openly and directly denigrated law, which it considers to be a tool in the hands of the capital owning class of the society for the oppression of the labor-selling section thereof, the proletariat. It has even predicted that someday, in the future law will be unnecessary and cast out from the society forever. Marxism named after its main proponent Karl Marx (1818-1883)
Against this backdrop, the philosophical application of law births what is called ETHOS. According to the Oxford Learner’s Dictionary, Ethos is defined as The moral ideas and attitudes that belong to a particular group society or person. The practicality of law in every society works in tandem with the operating ethos in such society. This is indisputably so, when one considers the three major political/ideological movement which dominates international politics.
The European/Capitalist Democratic Movement, The Lenin/Latin America/Communism movement, and the Middle Eastern/Sharia Law Movement. A comparative approach to the study of these movement espouses contradiction in the essence and application of law, which is largely as a result of varied system of ethos.
European/Capitalist/Democratic Movement: Democratic capitalism is a type of political and economic system, characterized by resource allocation according to both marginal productivity and social need, as determined by decision reached through democratic politics. It’s marked by democratic election, freedom, and rule of law, characteristic typically associated with democracy. It retains a pro-market economic system with an emphasis on private enterprises. Although in reality, the practice of democracy is fluid as it fits into various context in various societies, however one major attribute of western democracy is the private ownership of productive property which makes western democracy an economic cum political system fully ingrained into the DNA of western laws. One major manifestation of the attribute is the property law and class system in western culture.
Class system is closely interlinked with land ownership in European culture, this is largely so because land as a vital means of production remains totally in the hands of feudal lords who happens to be the bourgeoisie as against the proletariat(working class) who holds the land only in service to the feudal lords. In classical Roman Law (c AD 1- AD 250) the sum of rights, privileges, and powers a legal person could have in a thing was called Dominiun, ownership, or less frequently, proproitas.
It’s trite to know that, the principle of land ownership as owned and controlled by the genters did played a prominent role in European Law by leaving a long-lasting footprint on Family Law and property law.
The importance of private ownership of Land as an important ethos ingrained in European culture cannot be overstated.
The Lenin/Marxist/Latin America Communist Movement: Communism (from latin communus, common, universal) is a philosophical, social, political and economic ideology and movement whose ultimate goal is the establishment of a communist society, namely a socioeconomic order structured upon the ideas of a common ownership of the means of production and the absence of social classes, money and the state.
Communism as opposed to democracy operates on the philosophical ethos that the ownership of the means of production is expected to be jointly owned. This political cum economic system serves as an antithesis to capitalism and itsattendant class system and private ownership.
The communist manifesto (1847) of Karl Marx and Fredrich Engels holds that property is nothing but a device in the social warfare between the capitalist and proletarian classes, the means by which the capitalist expropriate the labor of the proletarian and keeps him in slavery. Reform, according to the Marx and Engels, will not come until the revolution, when property will be abolished.
The Cuban revolution of 1959 and the reforms that followed is a pristine example of Law as a tool for change in political and economic matters. The various legislations were enacted as a result of the reforms which facilitated a communist political cum economic system. The Agricultural Reform Act was earlier signed into law in May 1959. The Act limited the size of most landholdings to fewer than 1000acres as against the initial 3000acres. The new Law ensured that the lands was distributed to thousands of hitherto landless rural workers. The government passed the Rent Reduction Act in 1959 which resulted in the transfer of about 15% of national income from property owners to wage workers and peasants. The ethos in a communalist state is a moral that upholds communal ownership, abolishing class system.
The Middle Eastern/Sharia Law Movement: Sharia states are theocracy states. Theocracy, government by divine guidance or by officials who are regarded as divinely guided. In many theocracies, government leaders are members of the clergy, and the State’s legal system is based on religious law. Theocratic rules weretypical of early civilizations. The enlightenment era marked the end of theocracy in most western countries. Contemporary examples of theocracy includes Saudi-Arabia, Iran and Vatican.
An ethos that underlines the practicality of law in a theocratic state is that Law emanates from a higher authority ‘’A GOD’’ the manifestation of the practicality of law in a theocratic State as compared to democratic or communalistic state is buttressed through the different ethical backgrounds of legislation. The offence of ‘Blasphemy’ is a profound offence in a sharia state and this may not necessarily be an offence in a democratic state or communalistic state. A recent case is the death sentence verdict handed to Yahaya Aminu Sharif by a sharia court in Northern State of Kano in Nigeria.
The relationship that co-exist between law and ethos is one of immutable value, and closely linked phenomenon that cannot be changed. It can be termed the co-existence of backhand and forehand inseparable. It’s therefore with this understanding that it’s realized that the philosophical and doctrine of law should be reflected in the culture, norms and values of the society where such laws operate. With only this can the growth of law in response to the demand of time be organic.
This paper will however now streamline its focus on the conflict/tension arising as a result of imposing European/British system of law and ethos on the African law, values, customs and ethos and the resultant consequent. Europe been an umbrella name for all the polities in Europe, this study will focus on Britain/ United Kingdom. Africa been a large continent consisting of various polities some of the polities making up the present area called Nigeria, their laws and ethos will be examined as against the law and ethos of their colonizers.
DEVELOPMENT OF LAW AND ETHOS IN GREAT BRITAIN
The development of Law and Ethos in Great Britain cannot be understood until the study and examination of the larger purview of the development of Law in Europe especially as it relates to the roman law and its influence on European polities.
Rome according to legend was founded in the year 753BC on seven small hills on the shores of the Tibar. Multiple italics people were involved in itsinception: Latins, Sabines, and Etruscans. The most important of them were the Latins, of Indo-European origin, who were organized into the family clans (gentos) that possessed most of the lands, filled the ranks of the priesthood and the army and in short, essentially provided Rome with its language, culture and religion.
The Roman Empire established in the year 27BCE following the dismiss and decline of the Roman Republic as a result of period of unrest and civil war. The Roman Empire at its peak extended to the entire Mediterranean Basin, most of the Western Europe and large area of the Northern Africa, with every territories under the rule of Roman Empire, the Empire played a prominent role of cultural influencer in such territory.
A prominent feature of the Roman Empire is the Roman Law, whichunderwent various changes as the empire expanded and under the rule of various emperor who influenced Roman laws in various ways. Roman law as expected espouses the culture of the empire, which inevitably influenced the jurisprudence and practicality of law in other European polity. Roman law, was considered a complex body of precedents and comments, which were all codified in the 6thcentury. The corpus iuris civilles or simply the corpus iuris serves as one of the main sources of Roman law. The collection is made up of four books: the Digest, Institutions, Codex, and Novellae, all of them drafted at the behest of Emperor Justinian (527-65).
The Jus Civile (Civil Law) of the Roman Empire which was based on custom or legislation played a significant influence in shaping the civil law of common law countries like the United Kingdom and civil law countries like France. The application of Jus Civile in the Roman Empire extends to property law, contract and tort. This is equally applicable in England as it’s classified under private law. Even in civil law countries the same fact is established. Instead of law of contract, law of obligation is used in civil law countries. The influence Roman law played on common law(Jus Commune) and law generally in continental Europe and even the world at large is innumerable. As the greatest English Legal historian, F.W. Maitland puts it : ‘’From their knowledge of Roman Law, Bracton and his contemporaries learned how to write about, how to think about Law and besides this they acquired some fertile ideas, distinctions and maxims which they made their own’’
The English occupy an Island amongst other Islands forming an archipelago. These islands spreads across the western part of Europe. It’s the main Island of one of the three largest temperate archipelagos in the world- with Honshu in Japan and the South Islands of New Zealand. The only name we can give the Island peoples- ‘’Britons, Picts(in the remote unconquered north), ‘Scots’ (in Hibrena), and Southern peoples such as ‘’Iceni’’ ‘’Brigantes’’ or ‘’Trinrovantes’’- are versions of the names given to them by the Greek and Romans.
The concept of the English people emerged in the 8th century. A sizeable political community with some sense of kinship, cultural similarity, participation in government and some representative institutions. The archipelago was invaded and by other European polities including Romans, Saxons, Danes, Norman, Gaul. These invasions and settlement by the conquerors did influence the law, political institutions and social make up of England.
Religion did play a major role in the development of Law, political institution in England even in modern times. As Christianity did influence Family Law. The English people under the Roman empire converted to Christianity from been pagan. This paganism was influenced by German heathenism. Pope Gregory the great bishop of Rome sent missionaries to convert the English people. This led to the establishment of a single church with two provinces in Canterbury and York. The English church would create its own distinctive culture. It adopted roman practices, dogma and liturgy. Conversion began at the tops, kings’ queens and warriors. Christianity was a source of authority and status, a way of becoming part of that wider and prestigious roman civilization. It was a way of making allies, and of warding off the threat of powerful rivals. Dynastic politics that converted early had a much better chance at survival.
The church wielded so much power, that it controlled the political, economic and military power through its agent which includes the Ministers, nunneries, monasteries. Kings were expected to be sacramentally anointed by the authority in Rome.
The development of common law forms an integral part of the English culture largely because common law is a reflection of the entire imbroglio, changes, interactions English people have had amongst themselves and with other European polities and institutions. Common law is a folkloric account of the English people way of life. With every conqueror, there’s a fusion of the various norms and ethos and institutions of the conqueror with the various norms and ethos of the conquered polities. All these happenings did have effect on the common.
The events that led to the process of the consolidation of the English nation as idealized by Bede in his book ‘’Ecclesiastical History of the English People’’began with the Viking invasion whom the English commonly call Danes. Vikings took over two of the four major kingdoms on the Island but Wessex remained the only intact Christian power.
The king of Wessex Alfred took over the remnant of western Mercia around880 this marked a geographical and ideological step towards an emerging English nation. Being a rally point in which the English people could rally around against the common enemy the ‘’Danish Men’’. He referred to the people who rallied around him not as Saxons but as ‘’Angelcynn’’- ‘’Englishkind’’. Their language was English.
In recognition of the union of Mercia and Wessex, he proclaimed a law code combining customs of Wessex, Mercia and Kent docked out with biblical teachings and church laws- an important symbol of unity and status more than any instrument of rule, as in practice most law was oral or customary- ‘folk right’
At this stage of embryonic English nation, the King was a paramount legislator in which Laws were made by the King in form of Royal Charter and these laws were accompanied with their various forms of punishment. It can rightly be said that the common law theory of punishment began as disobedience to the King’s order or community norms. Those who disobeyed the King’s order were punished with hangings, ravaging, confiscation and exile. Bandits ringleaders were summarily hanged, and their followers were flogged, scalped and deprived of their little fingers. The king could command that free women harboring thieves should be thrown from a cliff or drowned and delinquent slaves stoned to death by other slaves. Religious institution also took charge of law and order by dishing out religious penance for moral sins such as ‘’braining one’s mother with a candle stick’’
The king to further exert control over the embryonic English nation divided the nation into administrative divisions known as ‘’Shire’’. These shires were governed on behalf of the king by an ealdorman and his deputy, the sheriff, tax collector, judge and policeman. There existed a Shire court or local monthly court (sub division of the Shire) here the warriors, nobility, thegns, and free peasants met others to adjudicate on cases, take parts in levying taxes, enforcing the law, hearing royal commands and when necessary take up arms. To further ensure administrative ease, the king had a gathering of thengs and prelates at various places. These were called the ‘’Witan’’(the councilors). Their primary duty was to take part in ceremonies, give advice, settle disputes, try cases of treason or endorse royal act.
One major flaw of the English nation was the fact that there was no recognized procedure of choosing the successor to the king’s throne. This made the process to be mar with violence as the heir to the king and interested person had to fight for the throne. This battle for enthronement most times involves blinding, castrating, and killing. This culture of bloody succession naturally exposed the weakness of the emerging kingdom due to the proliferation of internal dissidents and various factions, political factions and ecclesiastical faction and monarchical faction. This made the emerging English nation to be a house divided against itself. The most catastrophic succession conflict, in 1066, led to the subjugation of England. With every conqueror, slight changes were made to the political, legal, economic structure although the essence of European culture still remained ‘’The rule by the Aristocratic class’’.
For example, with the Dane conquest in 1013, the conquest led to a slight change in English governance. The Dane created four regional earldoms (the Danish word ‘earl’ replaced the older ealdorman). Furthermore, with the Norman conquest in 1066, the English aristocrat were displaced and replaced by Norman aristocrat. The conquest annihilated England’s ruling class, physically and genetically, some 4,000-5,000 thigns were eliminated by battle, exile or dispossession in the biggest transfer of property in English history.
With the Norman conquest, the administrative structures were still maintained, but linguistically some changes were made. For example, the Witan was replaced by the ‘’Parliaments’’ the created environment for the meeting of the King and his magnate just as it was earlier practiced through the Witan.
As earlier practiced in England ‘’the feudal system’’ the Norman conqueror solidified this arrangement. The conqueror at once granted Land-‘’Fiefs’’ or fees to his barons in return for their services, military and political, symbolized by the ceremony of homage( a public oath of allegiance). They in turn granted it to their followers, for similar allegiance and services. The law enforced this arrangement by recognizing all Land and all men as part of the hierarchical system which was buttressed by an ideology of Lordship, duty and loyalty. ‘’Glanvill’’ the 1180s treatise on Law traditionally attributed to Henry II’s Chief Justice Ranulf Glanvil stated that ‘’the bond of trust in Lordship should be mutual’’
As earlier observed, the development of Law in England is a reflection of the culture and ethos of the English people. These cultures and ethos includes the various conqueror that influenced law which all culminates to what’s regarded as the common law today. So it cannot be said that English Law is primarily an English idea. It includes an English idea and every interaction they’ve had with the outside world.
It can be said that the theory of punishment of the English people evolve over time, which is also a reflection of law as a spirit of change. The theory of punishment as elucidated by common law most time involves the use of ordeals (by ducking in water or by carrying a hot iron. In Leicester shire, in 1124, they hanged more thieves than had ever been hanged before…….. in all forty-four men in that little time and six men were blinded and castrated.
Furthermore, the common law one of the first national system of law in Europe, an hybrid of Anglo Saxon, Norman customs and Roman theories which made use of French terms and concept- debts, contract, heir, trespass, court, judge, jury and also influenced by the Latin language until 1731.
The common law got recognized and reformed as a hybrid/English institution during the reign of the Norman King Henry II. It was Henry II drive for law and order and the consolidation of control over the English nation that led to the introduction in 1160’s of travelling royal Judges, who were increasingly professional lawyers, on eyries (journeys) to hear cases involving the crown, and in the 1170’s permanent royal courts began to sit at Westminster. This led to the development of standardized writs (court order in the King’s name) to initiate a range of procedure before royal Judges.
Writs formed the basis of the system and could be purchased for a modest sum by any plaintiff to summon an adversary before a royal court. This primary idea is what led to the notion of common law having it’s root in ‘’royal justice’’. This practice was gradually extended to every place and every free laymen within the Kingdom, irrespective of ethnicity. However, the serfs did not have equal access to the royal courts particularly as concerned land tenure. In serious criminal matters, royal justice extended even to the unfree.
As this practice continue over time, documentation of the Judgements of these travelling judges was done and to a large extent formed a precedent to be followed by other Judges. This practice was formalized in the first great book of English Law in use for at least three centuries ‘’Bracton’’- traditionally attributed to one of Henry III’s Judges, Henry Of Bratton.
The development of law in Europe/England indeed points to the deep influence of religion. Catholicism/Christianity, the church to be specific. The power of the church in shaping the moral values, ethos, and most importantly the idea of law colored different periods in European history, right from the dark ages to the period of the age of enlightenment.
The church as a legislative force played a prominent role in influencing the law applicable to marriage and inheritance. The introduction of Christianity into Europe produced the first major discontinuity in the evolution of law as it emerged from tribal custom. The shift in marriage and property rules to allow female ownership was not a spontaneous experiments by some local judges or community but an innovation dictated by hierarchy of a powerful institution, the catholic church.
As expected, there occurred a loggerhead between the church and the state i.e. the monarchical rulers. This happening led to some reform in the church. These reforms were done primarily to enforce the authority of the church over the state in the fight for supremacy. The reform was initiated by Pope Gregory VII (1073-1085) his reign as pope was closely related to the investiture controversy. He attempted to religiously enforce celibacy. To restrict the ability of priest, and bishops to marry and have children. He attacked the common practice of simony and nicolaism by which church offices were bought and sold and could be turned into heritable property. This reform was to ensure that the property of the church exclusively remains the church property and not to be inherited by the bishops or prelates or their next of kin.
He further argues that, Popes should exercise legal supremacy over all Christians, including all political authorities, and that the Pope had the right to depose the emperor. He asserted that the church and not lay authorities, is the only institution that could appoint Bishops.
The impasse between the church and the state the European continent is involved in further led to an assertion of political and legal supremacy of the crown over the church authority in the English nation. With the promulgation of the constitution of Claredon (1164) by Henry II of England, it became obvious that the state wanted to expand its control over clergy who committed crimes and also subsequently enhance political control over the church. This imbroglio led to the death of Archbishop of Canterbury Thomas Beckett, in 1162. With this happening, and consequent happenings the state became more powerful in the legal and political sense.
The development of law in England serves as a prism which espouses the various struggle for power between the state, the church, and the parliament, and most importantly reflected the social strata as it operates in the society, the enforcement of tax institutions as established through various laws and also the gradual development of women’s rights in English nation.
Magna Carta also served as a major influence on the development of law in England. Magna Carta serves as one of the major written law of the European. Its of Roman origin. In fact, it can be said that the enforcement of Magna Carta in practice around the year 1215 by King John led to the opening of the rift between the crown and the parliament that later influenced the much latter part of England’s history inclusive of England’s civil war from 1642-51. The Magna Carta set the stage for those who claimed to be royalist and those who claimed to be anti-royalist. Apart from the deep political division during the civil war there’s also a deep religious division. The term ‘’Roundheads’’ and ‘’Cavaliers’’ got to emerge.
The enforcement of the Magna Carta addressed a miscellany of grievances against royal abuses: concerning inheritance, administration of justice, tenants obligation, rights of widows, liberties of towns, privileges of the church, protection of foreign merchants and the demands for labor to maintain rampant and bridges.
Equity also served as a gloss on common law. As common law progressed, there developed a formality among judges typified by a reluctance to deal with matters that were not or could not be processed in the proper form of action. Such a refusal to deal with injustices because they did not fall within the particular procedure and formal constraints, led to a much dissatisfaction with the legal system. In addition, the common law courts were perceived to be slow, highly technical and expensive. The Lord Chancellor acted as the King’s conscience in settling dispute that required the intervention of equity.
By the 15th century, the judicial power of Chancery was clearly recognized. Equity as a body of rules varied from chancellor to chancellor, until the end of the 16th century. After the end of the 17th century, only lawyers were appointed to the office of the chancellor. Overtime, equity developed a body of precedents more like its common law cousin.
With the gradual unfolding of events, the parliaments came to be respected as a supreme body of law makers. Parliamentary statutes were becoming the highest form of law, able to suspend or replace elements of the common law or of the royal prerogative. The king still governed, though requiring parliamentary consent to be able to do so. As further buttressed by the nineteenth century constitutional lawyer A.V. Dicey:
‘’Parliament……. Has, under the English constitution, the right to make or unmake any law whatever, no person or body is recognized by the law of England as having a right to override or set aside the legislation of parliaments’’
Parliaments also doubled as barons, and serves as a body of advisers to the King, and grants consent to taxations and hearing petitions as a quasi-court of justice. But in times of crisis such as war, financial urgency or disputed royal succession- parliament became the focal point of the community of the realm.
In addition, the parliament initiated a lot of acts in order to influence various social reforms. The parliament act serves as a reflection that law is a vital tool to effect social reforms, reforms either to do away with social practices now considered abhorrent or to implement new social practices so as to meet up with the demands of the times.
Taxation is an accepted ethos and institution in England. Taxes are levied to prosecute war with other nations, and they are enforced by act of parliaments. This is also a reflection of the accepted ethos of the English nation and enforced by law. Right from the reign of Aethelred, taxes to either prosecute war or to buy invaders off have been a constant norm. vast sums were raised by a universal land tax, even if these tax drove peasants to servitude it never matters. The land tax was created in 1688, which was administered by the Justice of peace- something that preserved local autonomy, but required landowners to accept and pay a high rate of tax which reached 20% of income.
The Act in Restraint of Appeals (1533) ended legal recourse to Rome, declaring England an empire. The king was subsequently made the only supreme head in charge of the church of England and made a treason to deny it. An act of uniformity (1662) was enacted, imposing the use of common prayer. A corporation act (1661), which excluded religious dissents from town governments. A Test Act (1672) requiring all public employers to take public oath of allegiance and Anglican orthodoxy and the Conventicles Act(1664), banning private non-conformist worship. This showed the effect of law in enforcing compliance as used by the parliaments.
Law as a tool stood both for limitation and a tool for expansion, the same force of law that limited the enabling right of people to vote, same force of law could also be used for more participation in the electoral process. This can be succinctly observed in the Great Reform Act passed by the parliaments in 1832. The act disenfranchised anyone receiving poor relief from voting, the act also excluded women from voting. It created uniform voting qualifications based solely on the ownership or occupation of property. Strengthening the influence of landowners and the wealthy urban elites. However, Women did not start voting in England until around 1928. Another step towards reforming the social ethos as regarding women is the sex disqualification removal Act. The 1918 sex disqualification removal act opened jury services, the magistracy and the legal profession to women.
Law is a process of evolution that mirrors the development in the society. England has come a long way in the evolution of her law and most importantly now, it has been indisputably recognized together with other European polities through membership to the European Union. Establishing a market, economy, jurisprudence, foreign policy, political ideology that’s common to all European polity.
It will be very much obvious that the experience of law and ethos as explained in the European context will be very much different from the understanding of law and ethos in an African context. As this paper will further reveal.
By been held together with other European polities under various European organization such as the European convention on human rights, these developments for United Kingdom have changed the role of the courts, making them to inculcate broad principles, making value choices and balancing competing values. The European Communities Act (1972) had stated that all existing and future community law was in certain areas binding on United Kingdom court with supremacy over domestic law if the two conflicted.
THE DEVELOPMENT OF AFRICAN LAW AND ETHOS
Africa is an exemplary paradox, a living contradiction of tears in an abode of wealth. African continent occupies the center of the world’s map. The continent of Africa borders the southern half of the Mediterranean Sea. The Atlantic Ocean is to the west and the Indian ocean is to the southeast. Africa stretches well south of the equator to cover more than 12million squares miles making Africa the world’s second largest continent. Africa is also the world’s most second most populous continent. Africa is one of the most diverse places on the planet with a wide variety of terrain, wildlife and climates.
With around 3,000 tribes and 2,000 languages and dialect, Africa is a continent with fascination around every corner. Considering the vastness and heterogeneous nature of the African continent, it will be practically impossible to declare that there’s a uniform law and ethos that guides the whole continent. However, there’s a common trait that’s pronounced in the anthropological and sociological make up of African communities. ‘’their law, customs and ethics are largely unwritten’’. These laws, ethos and customs are passed down via oral traditions. This position may not however be really conclusive considering the fact that have been established about ancient Egyptians writing and literary skills espoused through the hieroglyphics and papyrus.
Nevertheless, transmission of tradition, customs, law and ethos have always been done via oral means. It’s a practice ingrained in the culture of the African society. It’s even exemplified through moonlight stories transmitted by the elderly members via oral means which seems to be a striking feature of most African communities. With what logical claim, legal theory or principles can it be ever said or established that unwritten law is secondary to written law? Aligning one’s self with the proposition negates a complete rational thinking. A thinking balanced by the mind and heart. If the valid position is only observed from the prism of it been written, then law ab initio has defeated its purpose for its existence which is naturally to serve as an ever constant organic guide that leads the society to a vivid state of happiness and unity.
A living essence of law is that, it’s expected to be organic and unique to the nature of the community/society in which it operates. Whether such laws is written or unwritten. The essence of law is that it’s organic and unique to the collective experience of the group. It can be further proposed; a written law only exemplify a rigid law. Rigid law a kind of law that falls short of one innate quality of an organic law-‘’ Susceptibility to quick change to meet the ever changing demands of time’’
An ethics or ethos of African laws been largely unwritten is a testament to the fact that African laws works in tandem with the working and the operation of nature. An understanding of nature hinged on the belief that there’s an unknowable higher life force that animates all things which makes all things including humans, animals, trees, rocks, forest, and the experiences shared with this living enigma sacred. Natural laws are largely unwritten they can be only understood through observation, experiencing and imbibing, this unwritten nature is a constant feature of African law.
As rightly stated by Weiner Menski:
‘’Thus, as for Hindu and Islamic law, an analytical starting point could be that the primary power center of all African legal activity lies outside the realm of human law- making and somewhere in the area of ‘religion’ or values. There is a shared assumption in all African legal systems concerning the existence of a superhuman order of some kind, undefinable, but ever present, to which everyone and everything is somehow subject. Everything will be evaluated and in some form judged against the culture specific backdrop, which is why some writers have proposed that African laws are in essence religious laws. Perhaps that suggestion relates to a simple general principle, a potentially universal pattern which applies all over the world, except in systems where western liberalism seeks to suggest that God in any form is not involved in law making”
However, equating African law as religious law as proposed by some scholars may be out rightly wrong. This may wrong because firstly the notion of religion in an Afrocentric view is very much different from the notion of religion from an Eurocentric view. The chasm that exist between these worldviews must be intimately understood because it’s stereotypically believed that the separation of the church (religion) from the state in the course of legal development in Europe is a bright step towards a ‘modern’ law which gives European law an edge over every other law.
Religion in Europe is simply a game of self-interest. A movement born out of quibble, self-interest and extremity. The heavy presence of religion in shaping the law, society and norms of Europe can’t be overstated. Right from the conflict between the Bishop of Rome and the Monarch powers whereby both parties attempt to garner control over each other popularly known as the investitureconflict to the separation of the church of England from catholic church in 1533. The Act in Restraint of Appeal (1533) ended legal recourse to Rome, declaring England an empire. The King was subsequently made the only supreme head in earth of the church of England and made a treason to deny it.
Furthermore, the breakdown from the catholic church led to different range of movements which includes the protestant, Lutherans, Calvinist, Mennonites, Adamites, Quakers, Anglicans etc. All these did not happen on a platter of peace; this indeed portrays Europe idea of religion as an extremist sectarian movement in which the idea of ‘born again’ and ‘condemnation in hell’ took reign.
The thirty years’ war is a vibrant example of religious war in Europe and also shows the intimacy between religion, state power and self-interest. The war a combination of dynastic sectarian and geopolitical struggles occurred in nearly all of Europe, from the Baltic to the Mediterranean. A sectarian division ensued. Protest Holland, Bohemia and the Palatinate were assailed by the catholic Hasburgs. The thirty years war led to a term ‘’The onward march of popery- A political as much as religious concept.
Religious reformation has always been greeted with violence in the history of Europe. The effect of the Act in Restraint of Appeal (1533) as initiated by King Henry led to wild violence which engulfed Great Britain. A vast amount of vandalism of the artistic expression of centuries of piety in stones, wood, paint, cloth, metal and glass. Healing places were condemned as idolatrous, nearly 1000 people were executed for Heresy or for treason connected with religion- a substantial proportion of the 5,000 such executions estimated for the whole of Europe over the sixteenth century. Even the English war civil war (1642-1651) was a war based on religious divide between Catholicism and puritanism.
The result of intolerance as a result of religion in the development of Europe can be seen in their various legislation. Heresy- A belief that rejects the orthodox tenets of a religion. Heresy was made a capital offence in the year 1401 and was reenacted again in the year 1554, and at least 231men and 56women were burned. Heresy was usually a very unpopular crime, culprits were denounced by neighbors and at least one by his wife. The Act of Toleration was passed in 1688, suspending the ‘’pains and penalties’’ imposed on protestant dissenters and allowing them to worship separately in licensed meeting halls. However, toleration was not yet extended to Catholics, Jews or to Socinian an offshoot of Presbyterianism that denied the doctrine of the trinity and hence the divinity of Christ. This challenged a basic tenets of the religious, political and social order that church and state were divinely ordained by Jesus and Unitarians formed the intellectual core of religious and political radicalism later in the century.
Religion in this sense as it’s understood in Europe is not what it connotes in pre-colonial Africa. Religion been an intimate practice of pre-colonial Africans connotes a practice whereby everything is considered sacred and not a clash of sentiments.
Jacob Olupona professor of indigenous African religious further deliberates on this. He said:
‘’Indigenous African religions refers to the indigenous or native religious belief of the African people before the Christian and Islamic colonization of Africa. Indigenous African religion are by nature plural, varied, and usually enforced by one’s ethnic identity’’
He further posited:
‘’For starters, the word ‘religion’ is problematic for many Africans, because it suggests that religion is separate from every aspect of one’s culture, society or environment. This is not to say that indigenous African spirituality represent a form of theocracy or religious totalitarianism-not at all. African spirituality simply acknowledges beliefs and practices that touch and inform every facets of human life and therefore African religion cannot be separated from the everyday or mundane. African spirituality is truly holistic. For example, sickness in the indigenous African world view is not only an imbalance of the body, but also an imbalance in one’s social life, which can be linked to breakdown in one’s kinship and family relations or even to one’s relationship with one’s ancestors…………
From this perspective, religion in pre-colonial Africa cannot be seen as a sectarian movement that will inspire violence or intolerance. Therefore,considering the separation of the church from the state in European development abenchmark that gives it an edge over other law is absurd and amounts to aEurocentric imposition.
In understanding the development of African law, it should be noted that the general accepted usage of African law connote ‘’customary law’’ so in this paper customary law will be used synonymously as African law. Considering the vast entity of tribes on the African soil it will therefore be right to say customary law is an umbrella that encompasses various laws, norms, and judicial principles in Africa. For the purpose of this study, the development of law in the Yoruba society will be examined.
In understanding the position of law in the society, it must be intimately noted that law as an entity cannot be separated from the social makeup of the society which includes the political, economic, religious arrangement.
The Yoruba people is one of the ethnic groups that occupies the western part of Africa, stretching from Nigeria, to Togo, Benin Ghana amongst others. The Yoruba constitute around 47million people worldwide, in which the vast majority is from Nigeria and making up to 21% of the country’s population, making them one of the largest ethnic group in Nigeria.
The ethnic group traces their origin to a city called Ile-Ife in present day Osun state Nigeria. They accord their root to a founder Oduduwa king of Ile-Ife who assigned his sons to other domains to establish the Yoruba kingdom. Yoruba people practice a monarchical system of government. Not an autocratic monarchical system of government in the practical sense of it but a monarchical system of government imbued with a heavy check and balance on the powers of the King. The monarchical system of government can invariably be called ‘’Democratic Representative Form of Government’’.
The Yoruba society is largely an egalitarian society, which nevertheless allows and respect individual need to acquire wealth and sufficiency via hard work, and diligence which are both of the moral code of ethics of the Yoruba People called “Omoluwabi” (A child born of pristine character). The egalitarian nature is more pronounced through the joint ownership of the means of production. Land ownership which is a core example. Land ownership which is a distinct element that distinguish the Lords from the Serfs in Europe, is a communally owned property in the Yoruba social system. Lands are never sold as there’s enough land for all the members of the tribe and they may be granted to outsiders for life, and to their heirs in perpetuity.
Law and politics and the institutions that upholds them are numerous. Which includes the Family, the head of the Family whom is usually called the Agba’ ile. (head of the family), after the authority of the head of the family, emerges a cluster of different families which forms a community headed by a quarter chief called the Baale. The Baale is directly responsible to the King. Assisting the King in the administration of the country are the chief priest, council of chiefs which include the palace chiefs and town chiefs.
Another legal rhetoric is what is called OWE – a word that can be loosely translated to connote proverb in English language. Proverb in English society may not be conferred with legal authority but OWE in a Yoruba society embody a legal authority especially when it’s voiced out by an elderly and respectable member of the society. Owe legal underlying may not necessarily suggest a punitive approach to settlement of dispute rather they are imbued with wisdom, moral admonition, which induces the listener to contemplate on deep self-reflection on whatever the Owe aims to correct. Owe are also a reflection of social interconnectedness, imbued philosophy, and mores of the Yoruba society. A prove that Owe is imbued with legal authoritative stance is the Owe that says:
‘’Ija Lo De Lo Rin Di Owe’’ (It’s because of the fight that have ensured that have made proverb to be adopted).
As earlier observed, the Legal/political/social system of the Yoruba community begins from the nuclear family consisting the Father, wife or wives and the children. The nuclear family is headed by the father who is more like the chief arbitrator in whatever disputes that arises, most times he employs the use of Owe(proverbs) to amicably solve the dispute and enjoin the favor of both parties.
The nuclear family extends to the extended family which consist of the numerous units of a nuclear family, headed by an Olori-Ebi (head of the extended family). The nuclear family and the units of nuclear families reside together in the same large compound known as the Agbo-ile and headed by the Olori-Ebi (Head of the extended family). The appointment of the Olori Ebi is the sole responsibility of the extended family, because the oldest member usually assumes the position.Disputes as it concerns the extended family is settled by the Olori Ebi.
Families in Yoruba society are organized along the lines of occupational skills, and religious orientation. This is most times espoused through the name of the family indicating the line of descent and ancestry information of such family. Samuel L. Johnson in his book “The History of the Yoruba’s: From the Earliest Times to The Beginning of the British Protectorate’’. Makes us understand that some names are compounded with fetish names showing the deity worshipped in the family- Sangobumi: Sango(the god of thunder and lightning gave me this), Ogundipe(Ogun the god of war consoles me with this), Ifatosin(Ifa is worthy to be worshipped). Compounds of Oso or Efun shows that the family is a worshipper of Orisa Oko i.e. the god of the fields- Osodipe- Oso has granted a consolation,Efunsetan-Efun has done it. (by granting the child)
Most families whose name include ‘’Ogun’’, ‘’Oso’’, ‘’Ayan’’ most times possess occupational skills of hunter/blacksmithing, farmer, and drummer respectively. These occupations are further divided into occupational guilds that bring various families together. Each occupational guild has their own norms and values which may include oath secrecy not to divulge trade secret to an outsider. Each family with their own distinct deities they worship have their own taboos adhered to by the individual member of the family. These taboos are exclusive to the adherents of such deity.
Progressing further, matters for dispute outside the jurisdiction or unable to be solved by the Olori Ebi is forwarded to the Olori Adugbo or Baale(Head of a Quarter) who is usually the head of the community. A community which is a cluster of extended families. The Olori Adugbo’s appointment is ratified and approved by the Oba. The Oba recognizes the Olori-Adugbo’s court and enjoinedthe approval and support of the Oba. The Olori Adugbo tried all civil matters within his quarter. He handled preliminary hearings in criminal cases without actually resolving them. Criminal cases were handled at the Oba’s palace.
The king apart from exercising his religious function as the purveyor of the gods the king also with the help of the chief priest acknowledges the praise and supplication of the members of the society which he forwards to the gods, this is usually performed via festivals spearheaded by the people and ceremoniously observed by the King. The king in conjunction with his council-in-chiefs which includes the Ogboni’s (King Makers), Iya Oba (The King’s mother), Iyale Mole(Ifa priestess), Ona’efa, Otun’efa, Osi-efa, the tetus, Iyalode, Babalode, ………. They are all symbol of legal and political authority. The king as the zenith of all legal and political authority exercises jurisdiction over all offences, including civil and criminal matters. In executing these function, the King utilizes an extensive bureaucracy involving the male and female gender.
The offences/matters which the Oba’s stool have jurisdiction over include but not limited to murder cases, trade disputes, witchcraft, rebellion against constituted authority, adultery. The king in company of his chiefs decide on the matters brought before them diligently by observing the facts critically and calling in witnesses where necessary. The king’s strength and wisdom is always a testament to his ability to honorably and judiciously advocate on matters.
The Ona’efa is a high legal personage who hears and decides suit and appeals whenever they are brought before the king and the king is unable to sit in person. His decision carries same weight as the king. The council of chiefs are well vast and knowledgeable in the custom and traditions. When there’s a difficult situation as to ascertain the truth, the accuser and the complainant can be compelled to take an oath before a deity that all they’ve said is nothing but the truth, grave repercussion may arise for whomever is found wanting.
The Ogboni cult try matters that involve a high personage, and decisionreached by them cannot be appealed as the cult consist of most of the aristocratic chiefs whom are equally member of the beaucruatic institutions. The Ogboni cult apart from serving as a legal personage also act as a watchdog on the power of the king and makes sure the King does not become despotic. Where the king has been generally rejected by the people as a result of misrule, the Ogboni cult is expected to enforce the suicide of the Oba which is symbolically and practically done by instructing the Oba to ‘’Open the Calabash’’ an object that contains magical portion which upon consumption by the kings he dies.
Vital amongst the council-in –chief is the Iyalode and the Babalode, a stool occupied by a female and male respectively and their office represent the interest of the market men and women, market been a trading avenue holds deep economic importance amongst the Yoruba people and one of the central figure in controlling the market is women, whom are intensively involved in marketing their agricultural produce. Women play a major role in practically all spheres of activities in Yoruba land, they’ve always been saddled with religious functions, economic functions, political functions, just as their male counterparts. This is in deep contrast to the proposition made by A.G Hopkins, that women were shackledand thus prominent in domestic chores trade, because of inadequate time and skills.
Yoruba adjudicatory system is based on an integrative and reconciliatory system of justice, unlike the penal and retributive system of Europe legal system. The establishment of guilt was not the end game of a settled dispute but rather to have both parties mutually reconciled. In cases of murder, the accused person is not killed in retaliation but rather in an attempt to prevent such happening again, a holistic approach to the occurrence is taking whereby the accused person can be asked to go reside with the victim’s family and in most cases get married into the family.
The holistic approach to law as upheld by the ancient Yoruba societies is a deep reflection of a kind of justice system that asks the question “Why has an offence been committed”? it’s a system designed to root out a dysfunction in a society not just to punish but to immediately correct such dysfunction. An example of a quick dispensation of justice that stems from a holistic and integrative system is where an elderly person settles a dispute between two warring parties on the street not important whether he knows them or not. It’s a fundamental belief among the Yoruba that a wrong is not supposed to happen in the presence of an elderly person.
This is further explained by Owe which serves as the mirror reflecting the philosophical, social, values, beliefs of a particular society where such proverb emanates. The Yoruba’s understood they were embedded with natural fundamental right ingrained into their existence. These rights they believe is applicable to all and sundry. A popular Yoruba proverb says “A Ki Ba Eni Gbe Ka Ma Mo Oju Eni. (One does not live with a person a yet not know how to deal with him/her). This indicates a recognition of one’s neighbor what makes their likes and dislikes most importantly to prevent enmity and promote communal spirit.
Another adage goes thus “Bi Etu O Ba Ku, Ta Ni Yo Fi Awo- o Re To Osan? Bi Ekiri O Ba Ku, Ta Ni Yo Fi Awo- A Re Da Bata? Bi Olorisa O Ba Ku, Ta N Yi O Gba- Ibo-O-Re-Bo? (If the antelope does not die, who would make boasting of his hide? If the wild goat does not die, who would make shoes from its skin? If the priest does not die, who would usurp his casting of lots). This connote life and protection of one’s life is an inalienable natural right. Another Owe goes thus: A Ki Fi Alepon Di Eru Asopa’’ (One does not become afflicted with elephantiasis of the scrotum despite having no testicles). This adage points on the right of human dignity, saying one cannot be deprived of an amenity and yet be subjected to the cares of enjoying it.
THE EMERGENCE OF CONFLICT IN AFRICA AS A RESULT OF IMPOSING WESTERN LAW AND ETHOS.
The Berlin conference of 1884-1885 dubbed the ‘’scramble for Africa’’ saw to a greater degree the partition of various regions in the continent thereby leading to the emergence of various colonized African states. This consequentially led to the importation of European law and ethos into artificial colonial states purposely created European interest.
This ill development has created a chasm amongst the Africans creating a dichotomy called ‘’Educated Africans and un educated Africans’’ the former referred to as those whom are grounded in European law and custom and lifestyle as a result of been imbued with European education while the latter refers to the indigenous Africans who are yet to be fully adapted into the European systemprobably because they are not educated. These former are most times relegated into the background and reside mostly in the rural area. This further led to the disengagement of power, authority from the previous traditional institutions now to be exercised by legal, political, and economical institutions established by the colonizer, these process led to a massive erosion of African norms and values in which the place of traditional institutions became displaced, and the position of women in the society changed and became relegated to the background, political power dissolved, new statutes emerged that suit the interest of the colonizer, ethical and value system became incapacitated birthing new offences, new norms, new ethos, new understanding of law.
The emergence of this new monster did met with a lot of resistance from the African people, nevertheless the colonizers were successful in their bids. This happening led to the different signing of spurious treaty with these African polities the intent is to coercively take control of the whole land include the resources therein. A refusal to abide by these spurious treaties thereby leads to total annihilation of such an African state. With the enforcement of such spurious treaty begins the gradual enforcement of European law, institutions, and customs.
Such treaty is the treaty with Lagos in 1861. Lagos a former British colony that lies in southwest Nigeria dominated by the Yoruba’s. Lagos was bombarded in 1851 by the British Royal Navy under the pretext of abolishing the Atlantic slave trade. Upon a successful bombardment, a treaty was signed and the incumbent King imposed. A part of the treaty reads thus:
‘’Treaty between Norman B. Beddingfield, Commander of Her Majesty’s Ship Prometheus and senior officer of the bight division, and William Macosky, esquire, Her Brittanic Majesty’s Acting Consul, on the part of Her Majesty the Queen of Great Britain and Docemo, King of Lagos, on the part of himself and chiefs’’
Article 1
‘’In order that the queen of England may be better enabled to assist, defend, and protect the inhabitants of Lagos and to put an end to slave trade in this and the neighboring countries and to prevent the destructive wars so frequently undertaken by Dahomey and others for the capture of the slaves. I, Docemo, do, with the consent and advice of my council, give, transfer, and by those present grants and confirm unto the queen of Great Britain, her heirs, and successor forever, the part and island of Lagos with all the rights, profits, and revenue as the direct, full and absolute dominion and sovereignty of the said part, island, and premises, with all royalties thereof, freely, fully and entire, and absolute. I do also covenant and grant the quiet and peaceable possession thereof shall with all possible speed, be freely and effectively appoint for use in the performance of this grant, the inhabitants of the said Island and territories as the queen subject and under her sovereignty crown, jurisdiction, and government, being still suffered to live there.”
Article II
‘’Docemo will be allowed the use of the title of King in its usual African signification, and will be permitted to decide dispute between natives of Lagos with their consent, subject to appeals to British Laws.
Article III
‘’In the transfer of lands, the stamp of Docemo affixed to the document will be proof that there are no other native claims upon it and for the purpose he will be permitted to use it hitherto…….
Such spurious treaty equally applies to other African polities which became displaced from the place of their customary position. This further displaced the customary position that land as vital means of production is expected to be communally owned for the benefit of all. With the new ethos the Oba is now the one in charge of the land holding it in lieu of the British Crown who is the real authority in charge. This position is enforced by the land use Act 1978 in which sec 2(1)(a) and (b) provides as follows:
Sec 2(1): As from the commencement of this Act:
(a) All land in urban area shall be under the control and management of the governor of each state. And
(b)All other lands shall be subject to this act, be under the control and management of the local government, within the area of Jurisdiction which the land is situated.
The customary practice of the King holding the land in lieu of the people has now been erased and relegated to another authority called the “Governor’’ ‘’the local government authority’’, furthermore, the customary act of not alienating a piece of land to another party permanently is now a common practice in which lands can now be alienated for monetary consideration.
As succuntinly put by Alan Miller:
‘’………. Or a family offered a good price for its land by a European commercial concern, soon saw the attractions of the English land-holding systems under which land was alienable, in contrast to the customary system in which it was usually not.
Further leading to the disintegration of the law and ethos of African societiesis the displacement of the traditional structures which led to a deep emergence of a class system those who had access to ‘’Western Education’’ and supported the colonizing power bid. These were regarded as the upper echelon while those who had no access to western education became the destitute and illiterate. This economy re-arrangement led to the emergence of economic laws which were opposed to by the local populace of such economic reform is the ‘’tax system’’. Taxation a widely celebrated and accepted enterprise in Europe at first did not receive a warm reception amongst Africans as it represented a heavy burden on Africans and violates the fundamental African ethics of sharing and co-operation and not necessarily imposing heavy tax burden in the guise of implementing communal project which ordinarily would have been jointly/communally done by members of the community in a typical African system.
The Lugard’s systemization of indirect rule postulated the idea of revenue collection which worked perfectly well in the northern Nigeria as a result of long history of direct taxation as directed by the emir. However, in the southern part of Nigeria it met with heavy resistance as it was considered a strange practice and burdensome. Although, Luggard received reports from various colonial officers in southern Nigeria indicating that direct taxation was not practicable in most areas of southern Nigeria, he went ahead with his administrative overhaul, imposing direct taxation on Benin in 1914, Oyo in 1916, Abeokuta in 1918, and part of southeastern Nigeria by 1926.
Furthermore, a practical overhaul of the African institutions, law and ethos and replaced by the European system of institution, of law and ethos is played out in the south eastern part of Nigeria. The Igbo, Ibibio, Urhobo and other hinterland societies was organized and based on a village or village-group council along the lines of representative democracy. Therefore, it became difficult for the colonizing power in choosing a chief who could head the native court as practiced in other areas, this led to the establishment of the arbitrary native courts and imposing of a court members known as “Warrant Chiefs’’ on the people. The members of the native courts in the southeast therefore came to be known by the derogatory term ‘’warrant chiefs’’. The warrant chiefs became poor representative of the traditional governing apparatus in the protectorate, alien replacements engendered little or no respect from the subject under their jurisdiction. The institution of the native court system gave executive and judicial power to individuals who had no traditional claim to them.
With the independence of Nigeria and other African states, the European institutions, Law and norms are still very much prevalent with a total neglect of the indigenous African Law and custom. Although, the two system of adjudication seems to exist at per with each other however the common law and its accompany structure seems to be at the foremost in adjudication matters. For it extends to criminal law, commercial law, European type marriage and divorce system backed up by the introduction of Christianity and of English Real property law to provide the basic ground rules for the development of the new urban communities. This effect has made customary law to be relegated to the background and subject to restrictions.
As decisively explained by Alan Milner:
‘’The limitation policy which threatened to strike deep into customary law was that which decreed that customary law could only be recognized and enforced if they were not repugnant to ideas of ‘’natural justice equity and good conscience’’ I would not like you to think that this meant that the colonial administration embarked upon any deep philosophical inquiry to implement this standard. ‘’Natural Justice’’ mean no more than American ‘due process’ of law it’s a shorthand formula for a standard of fairness and like its United State counterpart, was applied in Africa in both substantiveand procedural contexts. The basic policy given life under this formula was not that customary law struck down if contrary to English law, this was explicitly denied in theory and implemented in practice. This policy appears to have been to take the English procedural standards as guidelines but to adopt an open mind on substantive law issues- as open a mind, that is as an English, or English trained common law and Christianity-oriented mind could ever be in the African context’’.
With the jurisdiction of customary court just limited to marriage contracted under the customary court and every other issue arising therefrom, the matter of inheritance where the parties subject themselves to the customary law, also in chieftaincy matters. Although chieftaincy matters are now very much entertained by superior courts if records although the knowledge of customary law and practice is always needed for an impartial determination of issue relating to chieftaincy matters at superior courts of records.
The various problems been experienced in our judicial/adjudicatory system is not only ingrained in the fact we’re striving on an imported culture and institution which is not entirely beneficial to all but also these imported institutions have permanently disrupted the African norms, values and institutions in which the people will have been naturally inclined to pursue as opposed to the battle of ideology presented by the common law and customary law.
The delay in implementation of justice, the corruption pervading the judiciary, the lack of a true independence of the judiciary, the entrenched class system created as a result of colonization, the absence of modern technological aid that can foster a faster implementation of justice, rural dwellers been unable to access quality legal services because the government seems to be far away from them, and a huge level of ignorance about the European system of law since they are not educated in the European system of knowledge, and the chasm created between an African that’s a Christian and still wishes to marry more than one wife, an action that’s considered an offence called bigamy according to European standard of law and custom. All these collective tribulations arise simply as a result of neglecting our indigenous system of arbitration and ignoring our indigenous system of economic and political leadership which brought the government directly to the people in the language in which they understood.
Customary law does not extend to criminal matters for it has been neglected largely because it does not meet the European standard of law that ‘’criminal offences must be codified and accompanied with a written punishment’’. As provided for under Sec 36(12) of the constitution of the Federal Republic Of Nigeria 1999 which clearly stipulates that:
‘’No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law’’
This is fully ascertained in the case of Aoko v Fagbemi where the conviction of a woman for the customary law offence of adultery was quashed on appeal, on the ground that there’s no written statute which makes adultery a crime in Nigeria.
However, if the African jurisprudence can adopt a customary law approach to criminal matters instead of a common law approach we can effectively as Africans determine what constitute an offence within the African context and Afrocentric worldview and in same-vein, our theory of punishment for criminal offences will be very much different from the European theory of punishment which is still very much been used in Nigerian courts. Punishments such as life-imprisonment, death penalty will be substituted with more human means of reformation which will be done in the spirit of African and our humanity. A prominent example as it exists among the Yoruba people, is called Gelede. The Gelede spectacle is a public display by colorful masks which combines art and ritual, dance to amuse, educate, and inspire worship. Gelede celebrates ‘’Mothers’’(awon iya wa ), a group that includes female ancestors and deities as well as the elderly women of the community and the power and spiritual capacity these women have in society. Focusing not only on fertility and motherhood but also on correct social behavior within the Yoruba society. Gelede as an agent of judicial enforcement and upholder of social values seeks to re-address social abnormalities such as adultery, theft, gossiping etc. not through a punitive approach but through a reformative, integrating and humanistic approach.
Integrating human values in the dispensation of justice should be the new idea of law, the endless circuit of tit for tat keeps everybody isolated and hostile to each other, state institutions must be a reflection of our heritage and culture. The 2000 Arusha peace and reconciliation agreement for Burundi expressly resorted to traditional cultural values (ibanga, Ubupfasan, and Ubuntu) and a traditional dispute resolution system (ubushingantahe) to restore and maintain peace in the country. The peace and reconciliation process which is an aftermath of the Rwanda genocide is hinged on gacaca. A traditional dispute settlement system used to resolve many of the genocide related criminal cases.
One of the major reason for the sterility and impotency of our law is because the influencing environment in which these law stems from are in antithesis to the African way of life and experience. As jokingly remarked by writer Robert Tombs about the nature of English law:
‘’It’s interesting that some of our most cherished civil liberties owe much to the paranoia of bigots”
This truth may not be farfetched considering the various religious faction created as a result of extremism embroiled in various dispute for power and supremacy. The Habeas Corpus which was made statutory by an act of 1679 emerged as a result of religious dispute between warring sects whereby to protect the interest of a Presbyterian in case a catholic becomes king. A law was passed to that effect that prisoners should be charged within three days, and making it illegal to send them ‘’beyond the sea’’ to escape English jurisdiction (government hadbeen sending suspects to Scotland, where they could be tortured)
Law should be a reflection of the spirit of the people, an idea that speaks volume of their soul, being and purpose. As commented by Salvatore Mancuso in respect of the uniqueness of the African law:
‘’It should be taken into consideration that any attempt to verbalize an African native rule will involve using a language with terminology that implies legal concepts that are in most cases extraneous to native African languages. Thus there’s a risk the meaning of the rule will be misconstrued. Yet a traditional African rule gives significance to elements and factors that a western jurist would probably not regard as legally relevant. This is because African society is characterized by a vision of life where everything is linked: life and the supernatural, human behaviors and natural phenomena, law, power and that which is sacred. In this context, the application of the rule traditionally is not directly intended to punish the guilt, but to consolidate the cohesion of the group and to restore accord within the group”
Further posited that:
‘’Another element should also be considered. African native law is based on a concept of time that is completely different from the time in western law, since in many traditional African societies time is linked to factors such as market cycles or the harvesting of crops’’
M Alliot also posited that:
‘’African laws does not view time as relevant to law, thus it does not quantify or apportion time in a way that recognizes legal concepts like the limitation of actions, prescription and interest bearing loan’’
CONCLUDING REMARK
The problem of our modern legislators is that they’ve failed to make or create or legislate laws that are in tune with the nature of the people/environment and the peculiarity of the problems the country is experiencing, thus western Eurocentric approach has always been a major influencing factor which has rendered our law a toothless bulldog, an impotent idea.
Legislatures must bear in mind the rural dwellers and the effect of ‘’modernlegislation’’ on these set of people, whom are not only ignorant in the European system of governance but are only made relevant during elections where politicians exploit their vulnerabilities to manipulate and win elections.
An indigenous system which is all encompassing, integrating, and ensures the full participation of grassroots’ dwellers as practiced in ancient Africa is a deep necessity at this stage of numerous failed state institutions.
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