10 October

African Customary Law: Sources, Courts, and Administration

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Correcting Historical Misconceptions

Austin in his theory of law classified African Customary Law as an example of “law improperly so-called.”[1] This was an erroneous perception. Scholars like T.O. Elias changed this view. In his pioneering work, The Nature of African Customary Law (1956), Elias conclusively demonstrated that African Customary Law is law like any other system of law.[2]

African Customary Law was once a complete system of law with its own sources and different divisions including Constitutional Law, Contract Law, Torts Law, Criminal Law, Property Law, Family Law, and Succession.[3] However, with European colonialism and the establishment of colonial rule, African Customary Law became relegated to being one of the sources of law in most African countries south of the Sahara, with tests of validity introduced to determine if its rules would be enforced by courts.[4]

Sources of African Customary Law

Six sources have been identified: Taboo, Custom, Legislation, Command, Precedent, and Maxims.[5] These can be grouped into two main categories: the divine source and temporal sources.

Divine Source: Taboos

The word “taboo” comes from a Tongan expression “tabu” meaning “set apart” or “forbidden,” introduced into English by Captain James Cook in the late 18th century.[6] A taboo is a social or religious rule or custom prohibiting or restricting a particular practice or forbidding association with a particular person, place, or thing, with attendant consequence of divine retribution.

Taboos derive from religion, rituals associated with religion, and general community beliefs.[7] Hardly any African society lacks taboos as a source of law. Taboos vary from community to community, but a common factor is that members are most reluctant to break a taboo because of fear of the vengeance of the gods.

Taboos may be classified into cultural taboos, religious taboos, and food taboos.[8] Taboos must be distinguished from rules of hygiene or moral conduct with no consequences attached. Positive laws may be raised to abolish some entrenched taboos, for example, the Abolition of Osu Caste System Law 1956 of Eastern Region.[9] Violation of some taboos may be atoned by special ceremonies to avert negative consequences.

Temporal Sources

1. Command

Command has always played an important role in African law. In societies with monarchical and similar forms of authority, the Kings and Chiefs were regarded as divine or as divine representatives on earth who spoke the law.[10] Members of the community swore in their names and sealed their deeds (contracts) with them. Subjects obeyed the law because the King and his law were indistinguishable.

In monarchical communities, even where a legislative body existed to enact laws, the laws when made would be announced in the King or Chief’s name.[11] We can truly call such rules, regulations, and injunctions the commands of the sovereign. The presence of command in African law has prompted some scholars to argue that within the narrow context of the positivist definition of law, some aspects of African law are indeed laws.

2. Customs

Customs are immemorial usages and observances consecrated by long use of revered ancestors that attained the status of laws.[12] Many aspects of African law, for example the law of marriage, land law, perjury, and succession to the throne (constitutional law), were pure customs that commanded obedience.

The fact of cultural heritage gives sanctity to custom and assures obedience, but African law is no less static on account of this than English or European law.[13] C.K. Allen regards custom as the most important source. No system is ever static in a world of change, and African law is no exception.

After thirty years in West Africa, Chief Justice Osborne in the Yoruba land case of Lewis v. Bankole (1909) made pertinent remarks: “One of the most striking features of West African native custom, to my mind, is its flexibility. It appears to have been always subject to the motives of expediency and shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics. The great danger in applying it in this court is that of crystallizing it in such a way that it cannot be departed from in cases where expediency demands and where the natives themselves would depart from it. I therefore preface my findings of the general principles which govern native customs in Lagos at the present day and not as hard and fast findings of immutable native law.”[14]

This perspective is echoed in Kimdey & Ors v. Military Governor of Gongola State & Ors (1988).[15]

Examples of Changing Custom:

Succession in Oyo Empire: Originally, the rule was primogeniture. However, it was suspected that some crown princes, anxious to become monarchs, dispatched their fathers. The custom was changed so that the Aremo (Alaafin’s Eldest Son) had to die with his father, since the crown prince governed with his father and their lives were tied together, giving the Aremo an interest in preserving his father’s life.[16] This was considered the safest method of preventing regicide. This operated until 1858 when Alaafin Atiba repealed it in favor of his Aremo Adelu. Thenceforth, the Aremo could succeed if found worthy through election by Kingmakers, but if passed over, he had to leave the city and live in retirement in the provinces.[17]

Alienability of Land: The advent of European slave trade in the 17th century led to much commercial activity along the so-called slave coast. Land was vested in the community, and where there was monarchical or chieftaincy system, the monarch or chiefs held land in trust for the people. The question of alienation never arose.[18] With European influence and their concept of land ownership, Europeans wanted to own land where they had their factories. Gradually, the inalienability of land disappeared until the emergence of what we have today.

These examples show that Hartland made a stupid blunder when he commented in Primitive Law: “In truth, there is no life more closely bound in fetters which hamper or absolutely preclude movement in any direction. He (the African man) must do what his fathers have been accustomed to and nothing else. Law and precedent bind him hard and foot; he never seeks to break forth.”[19]

Many aspects of African customs have survived the onslaught on African customary law generally. The validity of African arbitration has engaged the attention of many scholars as well as the courts.[20]

3. Legislation

Whenever something happened in the community that had legal implications but wasn’t covered by existing custom or law, the lacuna was filled by law-making authorities.[21] These authorities varied from community to community: Councils of Elders, the King in council, Ward heads, Village heads, etc. Sometimes they would call a public meeting to discuss matters.

Generally, on all legislative occasions, the laws passed must conform to age-old and traditional norms of the community. The legislature could not and ought not enact laws contrary to nature, for to do so would constitute an act of defiance to the superior authority of the ancestors.[22]

Legislation duly passed, regulating for example fishing or grazing rights, would be made known to the community through the King’s messengers or town criers.[23]

Three Characteristics of African Legislation:

First, legislation overruled custom. Legislation was superior to customs.[24]

Second, African statutes or legislation did not have retroactive effect.[25]

Third, such legislation rarely stated the penalty for breaches of a prohibited act. The belief was that a known punishment was a reduced punishment. If the punishment is known, you could submit yourself to it and still gain.[26] So there was no fixed punishment; instead, judges made the punishment fit the act. There was proportionality of the act to the punishment in degree.

4. Maxims

These are African proverbs or pieces of wisdom that judges used and still use in customary courts in their arbitrations.[27] A maxim might have originated in one person’s mind and then nourished into general acceptance by being passed through the censorship of many minds. A maxim is an entity in itself and a complete work of art.

Examples:

A Tswana maxim says “Roosters must crow face to face,” meaning you cannot be judged in your absence.[28]

Among the Lozi, as Gluckman tells us, “several proverbs and praise songs rebuke Councillors who form an opinion on a dispute after hearing only one side.”[29]

Elias cited the Yoruba saying “Wicked and iniquitous is he who decides a case on the evidence of one man.” The Africans, like the Romans, believe in audi alteram partem (hear the other side).[30]

Another Lozi maxim: “If you are invited to a meal, and a fish bone sticks in your throat, you cannot sue your host.” This is similar to the English principle of volenti non fit injuria (to a willing person, no injury is done).[31]

Maxims backed sometimes by folktales are indispensable to appreciating and understanding African legal systems. Indeed, these maxims are the sine qua non of African jurisprudence.[32] They embody a moral science of the people, being ethical conceptions, moral truths, and ideas of justice. For further reading, see Adewoye on proverbs as vehicles of juristic thought among the Yoruba,[33] and Ogunleye, Adeleke & Olaseni on the essence of proverbs in English and Yoruba juristic thoughts.[34]

5. Precedents

In preliterate African societies of pre-colonial times, something similar to the use of precedents in English courts operated.[35] In the absence of written documents, court remembrancers, griots, and historians filled the gaps. It was their function to remind the tribunal of previous decisions relevant to the particular case before it. A precedent could be cited by reference to the reign of a particular monarch, Chief, or head.

Since decisions were handed down in the presence of the community, these precedents were public knowledge. Therefore, even without documentary evidence, citation of earlier decided matters rarely led to dispute or disbelief.[36] Precedents were respected as a source of law because they represented the wisdom of departed ancestors.

The Courts and the Judiciary

In early stages of legal development in African societies, like in any other primeval societies, there were no organized courts. Disputes outside the family or clan were resolved by self-help or blood feud.[37] In the absence of organized courts, collective or vicarious liability of the kin and clan flourished. Self-help or group solidarity was felt to be the best safeguard against injustice and oppression.

An attack against one member of the kin was regarded as an attack against all members. The inherent danger of this “attack on one is attack on all” principle is that it sometimes led to all-out inter-communal warfare and destruction of one or both feuding parties.[38] Thus, a system originally intended to preserve kin solidarity became one for destroying it. Recognition of this mischief led to gradual abandonment of self-help and ultimate acceptance of submitting disputes first to arbitration and finally to compulsory judicial process. The surrender of the right to resort to feud was a triumph for common sense.[39]

Naturally, members of the chiefly or priestly class became administrators of courts and allocated to themselves exclusive jurisdiction and possession of principles by which disputes were settled.[40] In an age of unwritten law, the Chiefs and priests were accepted as the repository of ancestral legal traditions. So initially, African customary law was administered by patriarchal chieftains and court aristocrats.

This development wasn’t peculiarly African. Jones in The Law and Legal Theory of the Greeks noted: “As time passed, they (the nobles) and the families to which they belonged claimed, and in practice possessed a monopoly of knowledge of such customary rules as existed and cherished the law as a mystery to which they alone had direct access.”[41]

Four Types of Courts

The administration of justice in African societies was private and public, formal and informal.[42]

Private and Informal Courts: Adjudication of minor family disputes by the head of the family. Jurisdiction was limited to domestic and family disputes, and the head of family as magistrate had wide discretionary powers of adjudication.[43]

Private and Formal Courts: The tendency to form associations and guilds was and still is very strong among Africans. These courts are private in the sense that unless you are a member, you cannot attend or be subject to their proceedings. They are formal because they have agreed rules.[44]

Public and Informal Courts: These occurred when altercations or affrays happened and those around intervened. For example, in a market place where hundreds of people interact, clashes would occur. These are public because everyone saw it happen; informal because the inquiry didn’t follow agreed rules.[45]

Public and Formal Courts: The structure depended on the nature of a given society—whether monarchical, chiefly, or republican. In a monarchical society, at the apex is the King’s court, then district courts or village courts.[46]

The Judiciary

The significant thing to note is that the judiciary was not separated from other arms of authority in the community. There was no place for career judges as we know today.[47] Judgeship was combined with other careers or occupations like service in the military, farming, hunting, or sculpturing.

However, through the process of socialization in the community, members came to know what the legal rules were and the ideas and conceptions of good and wrong that guided rule interpretation.[48] Socialization into becoming an arbitrator or judge started in childhood. Parents taught their children moral lessons from folklore and folk tales.

Substantive Law

In the common legal system, law today is classified into civil and criminal law. In an earlier stage of common law jurisprudence, the distinction was made between private and public law. We find the same distinction or classification in African Customary Law.[49]

Some commentators depicted the myth that “tribal law does not recognize the divisions which are found convenient in judicial discussions. The law is one.”[50] Those who maintain this refuse to accept that African law progressed beyond the self-help or feud stage. This is an erroneous view.

Many African societies were centralized kingdoms with police and military forces, organized judicial systems, administrative machinery, legislative and executive bodies.[51] These systems of governance existed for many centuries before the views of European slave traders, amateur anthropologists, and missionaries became authoritative pronouncements.

T.J. Bowen, a missionary who served in Yoruba areas for six years between 1849 and 1856, wrote: “The highest excellence of the best government among white people consists in constitutional checks or limits to prevent abuses. Strange as it may seem, the central Africans had studied out this balance of power and reduced it to practice, long before our fathers settled in America before the Barons of England had extorted the great charter from King John.”[52]

Another observer, W.H. Clarke, who spent four years in Yoruba land, wrote: “The Chief has around him civil officers, he has his messengers, who serve as public criers, to make known laws or publish temporary enactments. He appoints every department of labor or business, principal men, who are to act in the respective spheres and then, he has regular officers of a police character, who are difficult for anyone to thwart in their vigilance. Hence, the order and regularity characteristic of this town’s government.”[53]

From these observations, we can see that, as Elias pointed out, historically most human societies have always made a distinction between offenses mala in se (evil in themselves) and offenses mala prohibita (prohibited by society).[54]

The Administration of Justice

Given the close-knit communities in which Africans lived and live, frictions were bound to occur in person-to-person relationships, and disputes had to be settled through exchange of concessions and compromise.[55]

The African conception of law is solidly grounded in the belief that the predominant function of law is in the maintenance of peace, order, and equity.[56] From this deep-rooted conception grew the golden mean of African jurisprudence: the first and paramount duty of a tribunal in resolving a dispute is reconciliation, not the pursuit of abstract justice.

In many societies, there were two stages in trial of a dispute: the pre-trial stage (involving methods of getting the other side before the tribunal) and the trial itself.[57] The trial was a sober and solemn affair. It’s recorded in one society that at the beginning of proceedings, the court messenger would announce: “Be civil, be quiet! Let there be perfect silence! Let everyone shut his mouth! The cord that binds humanity is broken, the elders now want to take up the broken cords.”[58]

From the African viewpoint, as soon as a dispute arises between two individuals, the peace of the community is broken not only between the two individuals alone but among families and friends alike.[59] A court convenes for the purpose of restoring peace and order. In civil matters, the primary function of the tribunal is to effect reconciliation between parties.

Although there were no professional lawyers, in many societies there were people who played a quasi-lawyer role. These were powerful men in the society who represented litigants behind the scene.[60]

The nature of every judgment was to effect reconciliation and mutual cooperation. To underscore the importance of reconciliation, after the tribunal handed down its decision, it would be followed by a ceremony, which could take the form of sharing kolanuts or using any other edible thing held sacred by the particular community.[61]

The African Legal System in Perspective

From what has been said, it’s clear the African Legal System did not lack due process. Clearly laid-down procedures were followed in the settlement process. Procedural rules were flexible and not stereotyped. There were no such things as hearsay or inadmissible evidence.[62]

The strong point of the African legal system is its reconciliatory nature. African tribunals never delivered judgments in the judicial sense of that term but rather arbitrated and settled disputes amicably to restore the old friendly relationship disrupted by the dispute.[63]

The amicable settlement invariably restored peace not only between parties but went a long way to keep peace and maintain order between families, clans, villages, and districts. This is hardly possible under the “winner takes all” English Legal System. The approach was inevitable because in the conditions obtaining in many African societies, the margin of social security was often too narrow for unilateral awards to be fashionable.[64]

As Elias puts it: “Where one comes to think seriously about the matter, one soon realizes how utterly satisfying it must be that in a case where neither all the rights nor all the wrongs of the case are on one side or the other. One of the parties should be made to carry away the whole loaf while the other retires, embittered and disgruntled but is powerless to show his exasperation only because of the state force behind the judges. Confidence in the judicial process cannot but be slightly undermined by such happenings; society becomes increasingly estranged from this type of lawyers’ law as argued and interpreted by the professional bench and bar between them.”[65]

Examples Illustrating Reconciliation

Among the Tiv: Bohannan in Justice and Judgment among the Tiv informed us that Tiv litigants believe the proper and correct solution to a dispute exists; the task of judges is to find it. It’s obvious to the Tiv that when a right decision has been reached, both litigants will concur in it even though the particular judgment may not be wholly in favor of either party.[66]

Among the Nupe: Nadel in A Black Byzantium noted: “The final decision of the chief and his council is pressed home in the form of advice, persuasion and warning.”[67]

Among the Barotse: Gluckman observed that throughout a court hearing, judges try to prevent the breaking of relationships and make it possible for parties to live together amicably in the future. The court or tribunal tended to be conciliative. They strove to effect a compromise acceptable to and accepted by all parties.[68]

The importance that African Customary Law attached to reconciliation was also a common feature of many ancient legal systems with varying degrees of emphasis. In ancient Egypt, a suit could be cut short by a compromise suggested by the courts. In Roman litigation, prevention of an action by settlement beforehand is expressly envisaged by the XII Tables. John Maurice Kelly noted that a settlement reached by parties in proceedings before the Praetor was valid, and it was to some extent his duty to induce parties to compose their differences.[69]

To the Greeks, a judicial decision was more subjective and personal than in modern litigation. J. Walter Jones in The Law and Legal Theory of the Greeks: An Introduction informed us that for a long time, courts conceived themselves as “primarily concerned to patch up a dispute and reestablish the peace, rather than to recognize and give effect to existing rights.”[70] A judicial decision in favor of a party was relative rather than absolute, expressing a preference rather than sanctifying a claim.

Weaknesses of African Dispute Settlement

Two main weaknesses deserve attention: the influence of power as a perverter of justice, and the intervention of patrons or champions at law and money in litigation.[71]

The Influence of Power

Conceptions of status, power, and seniority had pervasive influence in African community life. Superiority of warrior to non-warrior, husband to wife, aged to youth, and man to woman were crucial features determining dispute outcomes.[72]

N.A. Fadipe in Sociology of the Yorubas wrote: “The powerful and often their near relatives as well had only their consciences to stay their hands in the commission of acts of injustice. They were not always subject to the regular operation of the law. If they chose to defy the law, there was no immediate machinery for bringing them to book by the customary process. Nemesis overtook them only when they fell foul of some person of their own rank who only retaliated, but if determined enough rallied the discontented around him for revenge.”[73]

However, it’s possible to overstate the detrimental influence of power and status. Three reasons support this. First, a powerful person could only be intractable in lower courts.[74] A weak plaintiff, if he took his case to the highest court in the community, would have the authority of the King behind him. Second, in those days, many communities were horizontally stratified, so parties would often be of approximately equal strength. Third, many communities had a system of patronage whereby patrons champion the cause of the under-privileged.[75]

This system was similar to what existed in Roman Litigation under the system of Clientele.[76] Kelly in Roman Litigation pointed out that administration of justice tended to be subject to the influence of powerful men. Sometimes that influence found expression in outright bribery. More often, it operated by favor and personal connections. He concluded: “The theory of an equal and objective justice was perfectly familiar but no one reckoned on finding it applied in practice.”[77]

From this we can see that no legal system, then or now, has been able to counter the advantages which money confers on the party in litigation.[78] The Greeks devised an ingenious safeguard whereby tribunals were composed of several hundred members. Justinian XII Tables had a provision of the death penalty for a judge who took bribes. Yet, judicial corruption and misbehavior of every kind was a standing evil of Roman society.[79]

In English and other European as well as American Legal Systems today, money continues to have an overbearing and overwhelming advantage. This will remain so as long as parties are entitled to spend what they like.[80]

Redeeming Factors

Notwithstanding the mischievous influence of power, class, and money on African Customary Litigation, the standard of justice was on the whole satisfactory.[81] The situation was redeemed by the open administration of justice and the awareness by judges that the critical eyes of their people were upon them.

Let us also emphasize that the wealthy and powerful were not immune from religious sanctions and fear of ancestors.[82] The importance and unifying force of religion in traditional African societies cannot be ignored in any meaningful discussion of African legal institutions. The content and form of African law and legal systems reflect the beliefs and worldview of each society.

References

[1] Austin, quoted in University of Ibadan, Department of Jurisprudence & International Law, “African Customary Law,” Jurisprudence & Legal Theory II Lecture Material (Rev. 2024), p. 41.

[2] T.O. Elias, The Nature of African Customary Law (Manchester University Press, 1956).

[3] Lecture material, p. 41.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid., p. 42.

[9] Abolition of Osu Caste System Law 1956 (Eastern Region).

[10] Lecture material, p. 42.

[11] Ibid.

[12] Ibid.

[13] C.K. Allen, quoted in lecture material, p. 42.

[14] Lewis v. Bankole (1909) 1 NLR 81 at 100-101, per Chief Justice Osborne.

[15] Kimdey & Ors v. Military Governor of Gongola State & Ors [1988] 2 NWLR 445 at 461, per Karibi-Whyte JSC.

[16] Lecture material, p. 43.

[17] Samuel Johnson, History of the Yoruba (first published London, 1921), referenced in lecture material, p. 43.

[18] Lecture material, p. 43.

[19] Hartland, Primitive Law, quoted in lecture material, p. 43.

[20] Lecture material, p. 44.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid., p. 44.

[28] Ibid.

[29] Gluckman, quoted in lecture material, p. 44.

[30] Elias, quoted in lecture material, p. 44.

[31] Gluckman, quoted in lecture material, p. 44.

[32] Lecture material, p. 44-45.

[33] O. Adewoye, “Proverbs as Vehicle of Juristic Thought among the Yoruba,” Obafemi Awolowo University Law Journal, Vols. 3 & 4 (1987), pp. 1-17.

[34] T.A. Ogunleye, M.O. Adeleke & O.A. Olaseni, “The Essence of Proverbs in the English and Yoruba Juristic Thoughts,” Ikeja Bar Review, Vol. 1(1) (2006-2007), pp. 197-208.

[35] Lecture material, p. 45.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] J. Walter Jones, The Law and Legal Theory of the Greeks: An Introduction (Oxford: Clarendon Press, 1956), quoted in lecture material, p. 45.

[42] Lecture material, p. 46.

[43] Ibid.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] Lecture material, p. 47.

[50] Hartland, Primitive Law, quoted in lecture material, p. 47.

[51] Lecture material, p. 47.

[52] T.J. Bowen, quoted in lecture material, p. 47.

[53] W.H. Clarke, quoted in lecture material, p. 47.

[54] T.O. Elias, quoted in lecture material, p. 47-48.

[55] Lecture material, p. 48.

[56] Ibid.

[57] Ibid.

[58] Ibid.

[59] Ibid.

[60] Ibid.

[61] Ibid.

[62] Ibid., p. 48-49.

[63] Ibid., p. 49.

[64] Ibid.

[65] T.O. Elias, quoted in lecture material, p. 49.

[66] Paul Bohannan, Justice and Judgment among the Tiv (International African Institute, 1957), quoted in lecture material, p. 49.

[67] S.F. Nadel, A Black Byzantium (Oxford University Press, 1942), quoted in lecture material, p. 49.

[68] Max Gluckman, quoted in lecture material, p. 49.

[69] John Maurice Kelly, Roman Litigation (Oxford: Clarendon Press, 1966), quoted in lecture material, p. 50.

[70] J. Walter Jones, The Law and Legal Theory of the Greeks: An Introduction (Oxford: Clarendon Press, 1956), quoted in lecture material, p. 50.

[71] Lecture material, p. 50.

[72] Ibid.

[73] N.A. Fadipe, Sociology of the Yorubas, quoted in lecture material, p. 50.

[74] Lecture material, p. 50.

[75] Ibid., p. 50-51.

[76] Ibid., p. 51.

[77] John Maurice Kelly, Roman Litigation, quoted in lecture material, p. 51.

[78] Lecture material, p. 51.

[79] Ibid.

[80] Ibid., p. 51-52.

[81] Ibid., p. 52.

[82] Ibid.