The Enduring Place of Customary Law Under the Nigerian Constitution

Introduction

Nigeria, a nation celebrated for its rich cultural tapestry, is a land where ancient traditions coalesce with modern constitutional principles. At the heart of this intricate interplay lies customary law – a legal system deeply rooted in the indigenous practices, beliefs, and norms of its diverse communities. Far from being a relic of the past, customary law continues to shape the daily lives of millions, governing aspects ranging from marriage and family relations to land ownership and traditional leadership. However, its coexistence with a supreme, written Constitution, modelled largely on Western legal traditions, presents a fascinating and often complex legal landscape.

This blog post delves into the multifaceted “place of customary law under the Nigerian Constitution.” We will explore its historical evolution, examine the explicit and implicit constitutional provisions that grant it recognition, identify its pervasive areas of application, and critically analyse the inherent challenges and conflicts that arise from its interaction with fundamental human rights and statutory law. Ultimately, we aim to demonstrate how customary law, despite its unwritten and often fluid nature, remains an indispensable, living component of Nigeria’s pluralistic legal system, necessitating continuous judicial interpretation and societal adaptation to align with contemporary aspirations for justice, equity, and good conscience.

1. Defining Customary Law: A Dynamic Heritage

Before delving into its constitutional standing, it is crucial to understand what constitutes customary law in Nigeria. Unlike statutory law, which is codified and enacted by legislative bodies, or common law, which evolves through judicial precedent, customary law derives its authority from the long-standing usage and acceptance by a particular community.

Key Characteristics:

• Unwritten and Oral: Primarily transmitted orally from generation to generation, though some aspects may be documented in ethnographic studies or judicial records. This makes its ascertainment in court challenging.
• Flexible and Adaptable: Customary law is often described as “organic” or “living” law. It is not static but capable of evolving to meet changing societal needs, though this evolution can be slow and uneven across communities.
• Community-Specific: There is no single, uniform customary law in Nigeria. Each ethnic group, and sometimes even sub-groups within a larger ethnic entity, may have its distinct customary laws governing similar matters. This diversity is a major source of complexity.
• Volksgeist (Spirit of the People): It reflects the collective consciousness, values, and traditions of the people it governs. Its legitimacy stems from the communal acceptance and adherence to its rules.
• Sanctioned by Usage: For a custom to attain the status of law, it must be shown to have been consistently observed over a long period, accepted as binding, and not merely tolerated.

Examples abound: from the intricacies of traditional marriage rites in Yoruba land to the communal land tenure systems prevalent in many Igbo communities, and the unique inheritance patterns found across various Nigerian ethnic groups. The recognition of “Muslim customary law” (often referred to as Islamic personal law or Sharia) also exists, particularly in Northern Nigeria, based on the Maliki school of Islamic jurisprudence, and operates in parallel with other forms of customary law.

2. A Historical Lens: Customary Law Through the Ages

Understanding the present place of customary law requires a brief historical excursion into its trajectory through Nigeria’s pre-colonial, colonial, and post-colonial eras.

2.1. The Pre-Colonial Zenith

In the pre-colonial period, customary law reigned supreme. Each autonomous community or kingdom possessed its indigenous legal system, administered through traditional institutions such as chiefs, elders, family heads, and village councils. These systems were holistic, integrating social, religious, and legal norms, and were largely effective in maintaining social order and resolving disputes. Justice was often conciliatory, aimed at reconciliation and restoration of harmony within the community rather than punitive retribution.

2.2. The Colonial Encounter and the “Repugnancy Test”

The advent of British colonial rule in the 19th century marked a pivotal shift. The British introduced their own legal system – English common law, doctrines of equity, and statutes of general application – creating a dual legal system. While they did not entirely abolish customary law, they subjected its application to stringent conditions, notably the infamous “repugnancy test.”

Statutes like the Supreme Court Ordinance of 1900 (and later its iterations) stipulated that customary law would only be applied by colonial courts if it was:

• Not repugnant to natural justice, equity, and good conscience. This was a highly subjective test, often used by colonial administrators and judges to strike down customs deemed “barbaric” or “uncivilized” from a Eurocentric perspective, such as certain forms of trial by ordeal or harsh punishments.
• Not incompatible, either directly or by implication, with any law in force. This ensured the supremacy of colonial legislation.

This period witnessed the marginalization of customary law, its authority diminished, and its development stunted. It was treated as “native law and custom,” often requiring proof in court as a “matter of fact” rather than a “matter of law,” further undermining its status. The aim was largely to facilitate colonial administration and trade, not necessarily to preserve indigenous legal systems.

2.3. Post-Independence and the Quest for Integration

Upon gaining independence in 1960, Nigeria inherited this pluralistic legal system. There was a conscious effort to reclaim and accord greater recognition to customary law as an integral part of the nation’s legal heritage. Subsequent constitutions and statutes, including the 1999 Constitution, reflected this shift, aiming for a more harmonious coexistence rather than a mere tolerance.

3. Constitutional Recognition: Anchoring Customary Law in the Supreme Law

The 1999 Constitution of the Federal Republic of Nigeria, as amended, is the supreme law of the land. It provides the framework within which all other laws, including customary law, must operate. While it doesn’t explicitly define “customary law” in detail, its provisions undeniably acknowledge and incorporate it into the national legal fabric.

3.1. General Recognition of “Existing Laws”

Section 315(1) of the 1999 Constitution is crucial. It states: “Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution.”

An “existing law” is defined in Section 315(4)(b) as “any law, rule of law, enactment or instrument whatsoever which was in force immediately before the date when this Section comes into force or which having been passed or made before that date comes into force on or after that date.”

This broad definition implicitly covers customary laws that were in force prior to the commencement of the Constitution. Therefore, customary laws, to the extent they are not inconsistent with the Constitution, continue to be valid and enforceable. This provision provides the foundational legitimacy for the continued application of customary law.

3.2. Establishment of Customary Courts of Appeal

Perhaps the most explicit and significant constitutional recognition of customary law lies in the establishment of specialized appellate courts dedicated to it.

• Section 282 (Customary Court of Appeal of a State): This section mandates the establishment of a Customary Court of Appeal for each State that requires one. It grants these courts appellate and supervisory jurisdiction over civil proceedings involving questions of customary law. This means that decisions from lower customary courts or other courts applying customary law can be appealed to these specialized courts.
• Section 283 (Jurisdiction of Customary Court of Appeal of a State): This section specifies that the Customary Court of Appeal shall exercise “appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.” It clarifies that the judges of these courts must be learned in customary law.

The very existence of these courts within the federal judicial hierarchy elevates customary law from a mere social practice to a formally recognized and adjudicated legal system.

3.3. Jurisdiction of Other Superior Courts

Customary law is not exclusively handled by Customary Courts of Appeal. Other superior courts also play a significant role:

• High Court of a State (Section 272): State High Courts have broad original jurisdiction, which includes matters where customary law is applicable, especially in cases where fundamental rights are alleged to have been violated by customary practices. They also exercise appellate jurisdiction over lower courts.
• Court of Appeal (Section 240): As the intermediate appellate court, the Court of Appeal hears appeals from the High Courts and Customary Courts of Appeal, including those concerning customary law matters.
• Supreme Court (Section 232): As the apex court, the Supreme Court has final appellate jurisdiction over all matters originating from any lower court, including those involving customary law. Its decisions on customary law establish binding precedents that guide all other courts.

This tiered judicial structure ensures that customary law matters receive judicial scrutiny at all levels, ultimately being subject to the interpretive authority of the highest courts in the land.

3.4. Implicit Recognition through Fundamental Rights Provisions

Chapter IV of the 1999 Constitution guarantees fundamental human rights to all Nigerians. While not directly mentioning customary law, these provisions implicitly regulate its application. Any customary practice or rule that infringes upon a constitutionally guaranteed fundamental right is, by virtue of the Constitution’s supremacy (Section 1(3)), null and void to the extent of its inconsistency. This acts as a crucial constitutional “repugnancy test” for modern Nigeria. For instance, a customary practice that denies a woman inheritance rights solely based on her gender will likely be struck down for violating the right to freedom from discrimination (Section 42).

4. Pervasive Application: Where Customary Law Thrives

Despite the influence of statutory and common law, customary law remains profoundly relevant in several key areas of Nigerian life.

4.1. Family Law

This is arguably the most dominant sphere of customary law application.

• Customary Marriage: Millions of Nigerians contract marriages under customary law. These marriages have distinct requirements (e.g., parental consent, bride price/dowry, traditional rites) that vary across ethnic groups. Such marriages are legally recognized alongside statutory and Islamic marriages.
• Divorce: Customary law also governs the dissolution of customary marriages, with procedures that differ significantly from those under the Matrimonial Causes Act.
• Child Custody and Guardianship: Traditional norms often dictate who takes custody of children after the dissolution of a customary marriage or in cases of parental death.
• Inheritance and Succession: This is a highly sensitive area. Customary laws of inheritance dictate how property is distributed upon the death of an individual, often based on patrilineal or occasionally matrilineal systems. Issues of primogeniture (inheritance by the eldest male child) are common, often leading to conflicts with fundamental rights provisions.

4.2. Land Law

Before the Land Use Act of 1978, customary land tenure systems were the primary mode of land ownership and administration. While the Act vested all land in the State Governor, significantly altering land rights, customary principles still play a role, particularly in rural areas.

• Communal Ownership: Many communities still hold land communally, with traditional leaders acting as custodians.
• Family Land: Land inherited by families remains subject to customary management, requiring the consent of family heads for alienation.
• Traditional Assignment: The allocation of plots within communal or family land often follows customary procedures.
• Impact of Land Use Act: The Act aimed to unify land administration, but its interaction with existing customary rights continues to be a source of litigation and sometimes friction. The Act’s provisions for “customary rights of occupancy” are an attempt to integrate traditional tenure into the new framework.

4.3. Chieftaincy Matters

The selection, appointment, deposition, and hierarchical structure of traditional rulers (chiefs and obas) are almost exclusively governed by the customary laws of each community. Courts frequently intervene to resolve disputes arising from chieftaincy declarations or breaches of customary rites.

4.4. Traditional Dispute Resolution

Beyond formal courts, customary arbitration and mediation remain vital mechanisms for resolving disputes at the community level. Family heads, elders, and community leaders often mediate conflicts, especially those related to family matters, minor land disputes, or community infringements. While not always having the formal enforceability of court judgments, their awards are often respected and binding due to communal pressure.

4.5. Other Areas

Customary law can also surface in areas like:

• Torts: Traditional remedies for wrongs (e.g., insult, trespass) might exist, though largely superseded by statutory torts.
• Contracts: Certain traditional agreements or pledges may be recognized under customary law.

5. Challenges and Conflicts: The Interplay of Systems

The pluralistic nature of Nigeria’s legal system, with customary law operating alongside statutory law and common law, inevitably gives rise to challenges and conflicts.

5.1. Conflict with Fundamental Human Rights

This is the most significant and contentious area. Many customary practices, developed in societies with different social structures and values, clash with modern constitutional guarantees, particularly regarding equality and non-discrimination.

• Gender Discrimination:
  • Inheritance: Customary laws often discriminate against female children or widows in inheritance. For example, some customs exclude daughters from inheriting their father’s property or deny widows any share in their deceased husband’s estate. The Supreme Court has, in several landmark cases (e.g., Mojekwu v. Mojekwu, Anekwe v. Nweke, Ukeje v. Ukeje), consistently struck down such discriminatory customary rules as repugnant to natural justice, equity, and good conscience, and unconstitutional under Section 42.
  • Widowhood Practices: Certain customs impose harsh and demeaning rites on widows, infringing on their dignity and freedom.
• Child Rights: Customary practices regarding child marriage or discriminatory treatment of children born out of wedlock can conflict with the Child Rights Act and constitutional provisions on the best interest of the child.
• Freedom of Movement/Association: Some customary norms might restrict the movement or association of certain individuals or groups within a community.
• Fair Hearing: While customary arbitration emphasizes reconciliation, some traditional processes might not meet the strict due process requirements of the constitutional right to fair hearing (Section 36).

5.2. The Repugnancy Test: A Continuing Judicial Tool

Despite its colonial origins, the “repugnancy test” has evolved into a crucial judicial tool for ensuring that customary law aligns with modern notions of justice and human rights. Courts apply this test to weed out customs that are considered barbaric, unjust, or contrary to public policy. While subjectivity remains, its application has been instrumental in reforming customary practices.

5.3. Ascertainment and Proof: The Unwritten Dilemma

The unwritten nature of most customary laws presents a significant challenge in litigation.

• Proof as Fact: Unless a custom is so notorious that a court can take “judicial notice” of it, it must be proven in court as a “matter of fact.” This often requires calling witnesses (e.g., chiefs, elders, or those knowledgeable in the custom) or relying on ethnographic studies and previous judicial decisions.
• Lack of Uniformity: The diversity of customary laws across communities complicates their ascertainment. A custom valid in one community might be non-existent or different in another.
• Evolutionary Nature: The dynamic nature of customary law means that what was accepted in the past might no longer be the current practice, leading to debates on whether a custom is “existing” or merely a “bygone practice.”

5.4. Jurisdictional Overlaps and Conflicts of Laws

Nigeria’s pluralistic legal system can lead to complex jurisdictional issues and conflicts of laws, especially when parties subject to different legal systems are involved, or when a transaction could fall under both customary and statutory law (e.g., a customary marriage followed by an attempt to convert it to a statutory marriage).

5.5. Modernization and Globalization Pressures

Customary law faces increasing pressure to adapt to global norms, particularly those relating to human rights, gender equality, and sustainable development. The reluctance of some traditional institutions to embrace change can create friction between legal traditions and contemporary societal values.

6. The Judiciary’s Role: Interpreters, Harmonizers, and Reformers

The Nigerian judiciary plays an indispensable role in navigating the complexities of customary law under the Constitution.

• Interpretation and Application: Courts are tasked with interpreting customary law, giving effect to its provisions where valid, and refusing to apply it where it offends the Constitution or public policy.
• Harmonization: Judges strive to harmonize customary law with statutory law and constitutional principles, seeking to reconcile potentially conflicting provisions.
• Development of Customary Law: Through their judgments, particularly at the appellate levels, courts effectively contribute to the development and evolution of customary law, setting precedents that clarify its scope and application. The Supreme Court, in particular, has been crucial in striking down discriminatory customary practices.
• Balancing Act: The judiciary continuously engages in a delicate balancing act: respecting the autonomy and cultural heritage embedded in customary law while upholding the fundamental rights and constitutional supremacy.

7. The Future of Customary Law: Adaptability and Integration

The place of customary law under the Nigerian Constitution is not static; it is a dynamic and evolving relationship. Its future hinges on a continuous process of adaptation, reform, and integration.

7.1. Codification Debates

There have been perennial calls for the codification of customary laws.

• Pros: Codification could bring certainty, uniformity (to an extent), accessibility, and reduce the burden of proof. It might also provide an opportunity to weed out discriminatory practices legislatively.
• Cons: Critics argue that codification would strip customary law of its inherent flexibility, dynamism, and organic nature, essentially turning living customs into rigid statutes. Given the vast diversity, a comprehensive and universally acceptable codification remains a daunting task.

A more practical approach might be selective codification or the development of restatements of customary law, as opposed to rigid statutory codification.

7.2. Legal Education and Research

A deeper integration of customary law into legal curricula is essential to produce lawyers and judges who are well-versed in its intricacies and capable of navigating its complexities. Continued ethnographic and legal research into specific customary laws can also aid in their ascertainment and understanding.

7.3. Strengthening Customary Court Systems

Improving the infrastructure, training, and oversight of customary courts (where they exist) can enhance their effectiveness and ensure that justice is administered fairly and in accordance with constitutional principles. This includes providing adequate resources and professional development for judges and traditional arbitrators.

7.4. Community Engagement and Internal Reform

Genuine reform of customary law must involve the communities themselves. Engaging traditional rulers, community leaders, and civil society organizations in dialogues about harmful customary practices can foster internal reforms driven by the communities’ evolving sense of justice and equity. This bottom-up approach is often more effective than top-down imposition.

7.5. Customary Law as a Complement, Not Just a Conflict

The perception of customary law should shift from being merely a source of conflict with modern law to a valuable complement to the Nigerian legal system. Its emphasis on conciliation, communal harmony, and accessible justice can be leveraged to enhance dispute resolution, particularly in rural areas. Areas like environmental protection, where traditional communities often have deep-seated conservation practices, offer opportunities for customary law to contribute positively to national development.

Conclusion

The place of customary law under the Nigerian Constitution is a testament to the nation’s unique socio-legal heritage. It is a system that, despite centuries of external influence and the imposition of foreign legal norms, has demonstrated remarkable resilience and adaptability. The Constitution, as the supreme law, acknowledges customary law’s existence, regulates its application, and ultimately ensures its conformity with fundamental human rights.

While challenges persist, particularly concerning gender equality and the practicalities of its ascertainment, the Nigerian judiciary has played a crucial role in shaping customary law, pruning its anachronistic elements, and guiding its evolution. As Nigeria continues its journey of nation-building, the harmonious integration and progressive development of customary law, respectful of both tradition and modern constitutional values, will remain vital for achieving a truly inclusive and just legal system for all its people. The enduring spirit of customary law, reflecting the “Volksgeist” of the Nigerian people, ensures its continued and indispensable place at the heart of the nation’s legal landscape.