AFRICAN LAW AS A LEGAL SYSTEM | PUBLISHABLE PAPER ON APPRAISAL


            A very pertinent question which possess for answer by this paper is whether African law is a legal system? Therefore, we consider African law as a legal system. Today, there are well over fifty independent states in African. As independent states, each is sovereign of operational domestic laws. However, a close examination reveals striking similarities in the legal system all these African states in components, structure and function.
            The criteria for interring whether in a given group of laws constitution a legal system have been considered in to include sources and validity of the laws, structure of the underlying conceptions, substance and content of the law, social objectives and functions of the law. In applying these criteria to Africa law, it is necessary to bear in mind that African law includes all laws in independent African states, including status, received/adopted laws-like general principles of law from common or civil laws) and equity, customary law, regional and sub-regional conventions/ agreements /treaties, other applicable sources of international law. Among these component of African law, the one that has attracted the most doubts about its uniqueness as law is customary law. Therefore, in considering African law as a legal system the primary emphasis shall be on the essential characteristics and disposition of customary law and it relationship will other components or aspects of African law. This is all the more important since a close examination of the other component indicate that they have observable foreign elements, origin or influence which tend to dilute their claim to being indigenous and original to Africa. Besides, the basic tenets of regional laws tends to be built on their ability to project the customary peculiarities of the region.
            Therefore, the key to understand African law is in its validity[1]. As regards sources, customary law in African societies share essentially their same pattern and form. They originate from native communities. The sources and instrument of validation are linked to a daily or god, which has decreased that certain behavioural patterns must be followed. The effect or the orientation or attitude on other component of African law is that there is always a conving for laws even statutory to be rationalized or given a spiritual validation.
            In considering the structure and    underlying conceptions of law in traditional Africa, references could be made to substantial semblance in customary laws of African         societies. Constitutional arrangements and political administration          of most African societies fall basically into two predominant systems – the kingly and cephalous political structures[2].   
            Each of these has fairly uniform or related patterns of law-making, execution and administration similarly, legal structure for resolution of conflicts are largely identical or similar. There are structures.     
for metaphysical, judicial (adjudicative) arbitrative and self-half system, even though one or more of these could be more prominent in a society than others, and in another society the reverse may be the case other structural similarities includes formal division into public and private law, the lopsided relationship between statutory and customary laws where customary laws are saved, and operate by the grace of and subject to statutory laws. This customary laws are also largely unwritten[3].
            In terms of substance and content of the law, driberg[4], observed that the African customary law is expressed in the positive terms of “thou shalt” as against the European rendition of “thou shalt not” within this positive expression, customary law provides for rules that enjoin or forbid certain behavioural patterns, disobedience of which carries some form of sanctions anchored on positive physical force or some spiritual punishment. Even though born of custom, the customary responds to social charge by the introduction of new rules and substances, the abolition or amendment of old ones. Even though the basic substance and content of customary law remain evident, it has been argued that customary law in African do not have clear, clean and polish delineations. They are intersected and interwoven with other aspect of culture. And so it takes a careful observation in the hump of custom. Isaac Nguema captures this picture when he submits”.
The structure of law (customer), in the case or my country, Gabor for example, reminds or one of the pictures provided by the structure or an oil well in operation what we find at the bottom of the well is mud containing a mixture of sand, limestone gas, clay, sandstone, slat water, oil etc. it is this serious heterogeneously composed sludge that is subjected to physical treatment with a view to obtaining the black liquid with a characteristic odour that constitutes crude petroleum. It next undergoes chemical processing operations, in particular distillation and purification through which one can, as needed, butanes gas ordinary petrol, fuel oil, paraffin, etc.
It is the function that determines the nature of the product. The same held true of legal customs, which are mixed in the body corporate, with other heterogeneous elements that relate to other system of social regulation and control.
            The social objective and functions of law in African customary law are also similar. Writing on the African conception of law, driberg argued that the basic function or social objected of law is the maintenance of equilibrium. In his words:
Its whole object is to maintain an equilibrium, and the penalties of African law are directed, not against specific infraction, but to the restoration of this equilibrium.
            In this sense, equilibrium encapsulates all ideas of the social objectives or functions of law, including justice, security, peace, liberty, social development etc.
Conclusion
            Having considered customary law vis-à-vis these criteria of legal system, it seen safe and satisfactory to say that customary law meets these legal criteria. But in this nirrlture with statutory and received laws, how does this opinion stand? It remains unvaried. As indicated in earlier part of this work, all the laws outdid customary law have an established documented background and are either made or adopted directly or indirectly by modern parliaments in African with well defined constitutional sources. 
            Their elements and substance are usually well defined and they are usually made in most cases to meet specific social needs. They meet the ultimate aims of law justice and social stability. They have a well ordered or organized structure and legal conception. It is because these other components meet the criteria as well as a blend well with customary law that they together procedure a functional and unique system or law. Hence we submit that African law is a legal system.


[1] Eze C. Ngwakwe on African customary law. Jurisprudence themes  and principles.  2003 P.91
[2] M. Fortes and E. E. Evnas Prichard (1940) African political    systems, OUP for I. A. I p5, sited by Eze C. Ngwakwe opt at p.92.
[3] Eze C. Ngwukwe opt at p.93
[4] Driberg J. H. m aetran and Rubin (1970) cited y Eze C. Ngwakwe in his book op. cit p.93





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