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-Ã -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
Click on the related links below and read more.
We can keep you updated on this information, please Subscribe for Free by entering your email address in the space provided.
Do you like this article? Share this article