Nwabueze, Remigius N.
The dynamics and genius of Nigeria's indigenous legal order
Indigenous Law Journal, 1, (1), .
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This article challenges the colonial delegitimization of Nigeria's customary law. The author describes customary law's fundamental bases, and argues that these bases are what ensured customary law's survival during colonial rule, and also what provide for customary law's contemporary relevance. Globalization, increased international interaction, and the eclipse of tribal insularity necessitate a permanent form of customary law that is decipherable to foreigners and non-Indigenous people of Nigeria. However, the author opines that if rigidification of customary law is to be avoided, then the present practice of proving it as a fact ought to be retained. Factual proof is defended as an incident of the primordial nature and primary source of customary law, rather than any weakness in the comparison of customary law with the received English law.
Under Nigerian law, after a rule of customary law is proved to exist, the court must consider whether it is judicially enforceable, or whether it is repugnant to natural justice, equity and good conscience. The author argues that the 'repugnancy doctrine' was routinely employed in a legal 'cleansing' mission, and was the engine for the imposition of hegemonic, foreign culture. The author suggests caution in the uncritical and contemporary use of the repugnancy doctrine and its precedents. Other instances of non-judicial enforcement of customary law are also considered, such as the contractual exclusion of customary law, and the exclusion of customary law based on the uncustomary nature of the subject matter of litigation.
Finally, the author addresses the specific question of the constitutionality of customary law. Customary law's patriarchal foundation and general discrimination against women and female children are problematic issues that require sensitive and imaginative judicial use of customary law. The author argues that the Nigerian judiciary should undertake careful constitutional and sociological analysis before striking down any rule of customary law. The court should make reference to South Africa's constitutional experience, which has comparative similarities to Nigeria. The article concludes with a call for an interpretive approach to customary law that ensures its survival and adaptation to the dictates of equality in an egalitarian society.
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