Authored By: Ambali Dorcas Toluwanimi
McPherson University
1.0.ABSTRACT
A significant component of Nigeria’s legal system and cultural legacy is customary law. Every citizen is also guaranteed fundamental human rights by the Constitution. In actuality, there are frequent conflicts between these two systems, particularly in relation to family law, gender equality, and inheritance. This article examines how Nigerian courts have attempted to resolve these disputes, referencing significant cases to examine how judges interpret and apply customary laws while attempting to uphold human rights and the challenges they encounter in doing so. In order to help strike a balance between tradition and constitutional values, the article makes the case that clearer legal standards and reforms are necessary. By striking this balance, Nigeria can protect its cultural identity and its citizens’ rights.
2.0. INTRODUCTION
In Nigeria, prior to colonial rule, customary law was very important. Inheritance, marriage, family law, land ownership, and dispute resolution were among the customs and traditions that people used to run their communities before the colonial invasion. It remains in use as a legal framework even after the colonial era. On the other hand, colonial rule gave rise to human rights, which have been crucial to Nigeria’s legal system. These fundamental rights, which include the freedom from discrimination and the right to life, are found in Chapter IV of the 1999 Constitution (as amended)1 and in a few other international human rights instruments, such as the African Charter on Human and Peoples’ Rights Act2, particularly in delicate areas like inheritance and gender relations.
This article, however, looks at the conflicts between human rights and customary law. Human rights and customary law have interacted to produce social and legal issues. As demonstrated in some seminal cases like Mojekwu v. Mojekwu3, where the court found it difficult to strike a balance between respect for culture and the need to protect human rights, courts are frequently faced with the task of deciding whether to stand with customs and traditions or with constitutional guarantees.
The relationship between human rights and customary law in Nigerian law is examined in this article. It looks at the legal framework, recent developments, critical viewpoints, and how courts have interpreted conflicts between the two. It makes the case that although Nigerian customary law is an integral part of the country’s identity, it must adhere to the Constitution’s restrictions. The secret to advancing both cultural values and human dignity is striking this balance.
3.0. RESEARCH METHODOLOGY
The research methodology used in this article is doctrinal legal. It incorporates both primary and secondary legal sources, including reputable online databases, textbooks, and journal articles, as well as primary sources like statutes and court rulings. These sources are analyzed to offer scholarly viewpoints and to examine the relationship between human rights and customary law within Nigeria’s legal system. In order to pinpoint areas of contention and suggest solutions for balancing human rights norms with customary law, a qualitative approach is used to analyze legal principles, case law, and judicial reasoning.
4.0. LEGAL FRAMEWORK
4.1. Nigerian Customary Law
Obaseki, JSC (as he was then known) provided the following definition of customary law in the case of Oyewunmi v. Ogunsesan4 as: “The organic or living law of the indigenous people of Nigeria regulates their lives and transactions.” The fact that it is dynamic makes it organic. It is regulatory in the sense that it governs the activities and lives of the community it affects. According to some, a person’s customs reflect their culture. According to me, customary law goes beyond that and brings justice into the life of everyone who is governed by it.
According to this concept, customary law is a living, breathing body of laws that develops and changes with the community. It traditionally addressed issues like as family relationships, inheritance, marriage, and land. The application of customary law was subject to three significant and legitimate tests throughout the colonial era: the public policy test, the incompatibility test, and the repugnancy test5. This meant that if a customary practice went against natural justice, equity, good conscience, or written law, it would not be followed. Customary law persisted even after independence. Existing laws, including customary law, are protected by Section 315 of the 1999 Constitution, provided that they do not clash with it6. Although it must now coexist with statute law and the Constitution, this constitutional support guarantees that customary law continues to have legal validity today.
4.2. Nigerian Human Rights
Nigeria’s legal system also places a strong emphasis on human rights. Fundamental rights, such as the rights to life, dignity, and nondiscrimination, are outlined in Chapter IV of the 1999 Constitution7. These rights are universal in Nigeria and cannot be infringed upon by tradition or custom. The African Charter on Human and Peoples’ Rights Act8is one of the regional and international human rights documents that Nigeria has domesticated and signed in addition to its constitutional provisions. According to the Supreme Court, local courts can enforce the Charter since it is a component of Nigerian law. When combined, they strengthen the legal foundation for defending people’s rights. They occasionally conflict with traditional customs, though.
4.3. The Relationship Between Human Rights and Customary Law
Although human rights and customary law are both accepted by Nigerian law, their interplay frequently presents challenging legal issues. Long-standing cultural values are reflected in many customs, although some of them are in opposition to contemporary human rights norms. Customs that restrict women the ability to inherit, for instance, have been contested in court as discriminatory. Customary law upholds cultural identity and communal justice, whereas human rights prioritise the defence of equality and individual dignity. Courts typically adopt the notion of constitutional supremacy, that is, the Constitution supersedes any opposing customary rule – when the two systems clash. Respecting cultural customs while making sure that fundamental rights are upheld is the goal of this strategy.
5.0. JUDICIAL INTERPRETATIONS
Nigeria’s legal system relies heavily on the judiciary to settle disputes between human rights and customary law. Courts frequently determined whether a custom should be maintained or abolished in cases involving disagreements prior to the establishment of constitutional and standard rights. As time passed, courts began to base their rulings on explicit constitutional and basic rights rather than general fairness.
5.1. Judicial Attitude Towards Conflict between Customary Law and Human Rights
Historically, courts have tended to uphold customary law as long as it did not conflict with natural justice, equity, or moral conscience. Because it relied heavily on the judge’s discretion to uphold justice in the absence of clear legislation, it was ambiguous. The mode of judgement has changed as Nigeria’s human rights and constitutional frameworks have grown stronger. Courts now definitively resolve conflicts between human rights and customary law rather than depending on nebulous ideas of justice. Section 18(3) of the Evidence Act, 2011, Section 315 of the 1999 Constitution, and Chapter IV of the 1999 Constitution are a few examples of these constitutional and human rights requirements9.
Additionally, this has been backed by international instruments. In the Abacha v. Fawehinmi10 decision, the Supreme Court ruled that Nigerian law incorporates the African Charter on Human and Peoples’ Rights Act11, which was domesticated by the National Assembly. The legal mechanism for resolving conflicts between human rights and customary law was broadened by this decision.
5.2. Notable Nigerian Cases
The connection between human rights and customary law has been eloquently illustrated by numerous judicial rulings. They include, among others:
- Ukeje and others v. Ukeje12: girls were not allowed to inherit in accordance with Igbo norms. The Supreme Court deliberated on the question of whether Igbo customary law permitted a female child to inherit her father’s property. In his lead judgement, Rhodes Viviour, JSC, stated: “The Igbo customary law that prevented a female child from inheriting her deceased father’s property violates section 42(1) and (2) of the Constitution, which guarantees every Nigerian the right to fundamental rights.” The discriminatory customary law in question is null and unlawful because it violates the Constitution’s sections 42(1) and (2).
- Mojekwu v. Mojekwu13: The “Oli-ekpe” custom of Nnewi, which permitted only male relatives to inherit property, was contested in the Mojekwu v. Mojekwu case. The Court of Appeal ruled that the custom was unlawful since it violated women’s equality and discriminated against them. The court emphasised that traditions cannot endure if they conflict with constitutional protections and must change over time.
- Cole v. Akinyele14
- Edet v. Essien15
- Mojekwu v. Ejikeme16, etc.
6.0. CRITICAL ANALYSIS
6.1. Customary Law’s Strength
In Nigeria, the link between human rights and customary law is complicated. In community life, customary law is very important since it shapes social behaviour and reflects cultural values.
However, there are also instances where certain customs conflict with the human rights and constitutional principles that currently govern the legal system.
6.2. Conflict Points Between Human Rights and Customary Law
Particularly for women, inheritance is a major source of conflict. It is usual in many communities for female children to not inherit family property. Although many people consider these regulations to be part of tradition, they are in direct opposition to Section 42 of the 1999 Constitution, which forbids sex-based discrimination. Courts have addressed this in historic cases like in Ukeje and anor. v. Ukeje and Mojekwu v. Mojekwu, where they invalidated discriminatory customs.
Scholars have observed that cultural ideas, rather than legal reasoning, are the main factors that preserve these conventions. Many discriminatory behaviours, according to Nwabueze, “derive their force not from codified rules but from communal expectations that resist change.”17 Likewise, Okeke notes that even when courts declare particular rituals unconstitutional, they frequently persist informally within communities18. Family and marital customs, like child or forced marriages, are further topics of contention. Oba notes that even if these traditions may be dubious legally, they frequently endure due to their “social legitimacy.”19 This means that changing them requires more than just legal legislation.
6.3. Harmonization Efforts.
The judiciary has been primarily responsible for harmonisation. Customary law is now interpreted by courts in conjunction with constitutional clauses and human rights documents such as the African Charter. Judges are “slowly re-imagining customary law through constitutional values,” according to Odinkalu20, which is forcing communities to reconsider some discriminatory practices. But the majority of this process is reactive. Courts only take action when cases are presented to them. Neither communities nor legislators are making much of an effort to modernise traditions before they are contested.
6.4. Challenges
Significant challenges remain. Inconsistency is one. There is confusion since courts may interpret identical customs differently depending on the judge or the locality. Another is that the majority of customary laws are not codified. They are difficult to apply consistently due to their oral and flexible nature. Despite being positive, this flexibility “creates room for abuse and selective application,” according to Oba21. Lastly, cultural opposition to change is still very strong. If communities are resistant to change, legal decisions by themselves cannot alter customs. It will take both community involvement and legal reform to close this gap.
7.0. RECENT DEVELOPMENTS
In recent years, there have been several initiatives to bring Nigerian customary law and human rights more closely together. Despite the slow pace of change, the majority of these improvements have been brought about by legislative reforms and court rulings. The increasing readiness of the Supreme Court and lower courts to overturn discriminatory practices is among the most important developments. Customs must adhere to constitutional rights, as demonstrated by recent rulings, particularly in matters involving discrimination and inheritance. Section 42 of the Constitution’s22 non-discrimination clauses cannot be superseded by custom, according to the ruling in Ukeje and anor. v. Ukeje23. More people-women in particular-are now challenging unjust norms in court as a result.
Some customs have been codified and reformatted by legislation, especially at the state level. In an effort to lessen inconsistent application of customary law, several jurisdictions have begun to recognise statutory customary courts with more precise procedural guidelines.24 These changes show a move towards standardising customary law within the larger legal system, notwithstanding the fact that they are not consistent across the country. Researchers have also seen that international human rights instruments-particularly the African Charter-are increasingly influencing judicial opinions.25 These days, courts frequently consult these tools while examining customs, demonstrating the growing convergence of national and international standards.
But even with these advancements, there are still gaps. Even after being declared unlawful by the courts, some customs persist informally, and legal change frequently occurs more quickly than social change. Long-lasting reform will require ongoing community involvement, legislative action, and judicial consistency.
8.0. SUGGESTIONS / WAY FORWARD
Even if Nigerian courts have had a significant influence on the relationship between human rights and customary law, much more has to be done. Legal, judicial, and community initiatives must collaborate to create a just and balanced system that upholds fundamental rights while honouring culture if significant progress is to be reached.
8.1. Legislative and Policy Reforms
Taking more aggressive legislative action is one of the first measures. Lawmakers at the federal and state levels ought to be proactive in examining and, if required, amending customary laws that are in opposition to the Constitution.26 As suggested by Oba, codifying important elements of customary law while allowing for flexibility can aid in the clarification and uniformity of these rules.27 As a result, courts and communities would have a stronger legal foundation. Policies should also promote cooperation between traditional leaders and governmental organisations. According to Nwabueze, more significant and long-lasting change frequently results from including community leaders in reform initiatives.28 Because of this collaboration, improvements may seem less forced and more community-driven.
8.2. Increasing Judicial Consistency and Capacity
The judiciary has made significant progress in bringing customary law and human rights into line, but more coherence is required. For the purpose of preventing inconsistent interpretations, judges ought to keep applying the same criteria in cases that are comparable.29 Frequent training on cultural diversity and human rights can assist judges become more capable of handling these matters with tact and clarity. Additionally, legal newsletters have suggested specialised judicial training for this reason.30
8.3. Community Engagement and Public Awareness
Laws by themselves cannot alter people’s behaviour; community involvement is essential. People’s everyday lives and ideas serve as the foundation for customary law.31 Communities must comprehend why some discriminatory practices are unacceptable in order for reforms to be successful.32 Partnerships with civil society organisations, awareness campaigns, and grassroots education can all help achieve this. Change is more likely to endure when communities are included in the discussion.
9.0. CONCLUSION
Nigerian law is fundamentally based on both human rights and customary law. Human rights offer legal norms that safeguard equality, fairness, and dignity, whereas customary law represents the culture and values of different groups. Balancing these two systems has always been difficult, particularly when certain traditions clash with constitutional protections. In order to resolve these disagreements, the courts have taken the initiative. Cases like Mojekwu v. Mojekwu and Ukeje and Anor v. Ukeje have demonstrated that the Constitution cannot be superseded by tradition. Nevertheless, legal action is insufficient on its own. For changes to be long-lasting, there must also be strong community involvement, consistent court rulings, and legislative reforms.
Although recent events indicate change, there is still a disconnect between judicial rulings and real-world community behaviours. A balanced strategy that protects fundamental human rights and honours culture is needed to close this gap. For Nigeria to have an inclusive and equitable judicial system, this is crucial.
10.0. REFERENCES / BIBLIOGRAPHY.
Case Law.
- Abacha v. Fawehinmi, (2000) 6 NWLR (Pt. 660) 228 (S.C.).
- Edet v. Essien, (1932) 11 NLR 47.
- Mojekwu v. Mojekwu, (1997) 7 NWLR (Pt. 512) 283 (C.A.).
- Oyewunmi v. Ogunsesan, (1990) 3 NWLR (Pt. 137) 182 (S.C.).
- Ukeje and anor. v. Ukeje, (2014) 11 NWLR (Pt. 1418) 384 (S.C.).
- Mojekwu v. Ejikeme (2000) 5 NWLR (Pt. 145) 803.
- Cole v. Akinyele (1960) 5 FSC 84.
Legislation and International Instruments.
- Constitution of the Federal Republic of Nigeria (1999).
- African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap. A9, LFN 2004).
Books.
- A.A. Oba, Religious and Customary Laws in Nigeria (2008).
Journal Articles.
- B.O. Nwabueze, “The Dynamics of Customary Law in Nigeria,” 18 J. Afr. L. 1 (1974).
- C.N. Okeke, “Women and Inheritance Rights under Nigerian Customary Law,” 12 Afr. Hum. Rts. L.J. 124 (2012).
- A.A. Oba, “Religious and Customary Laws in Nigeria,” 52 J. Afr. L. 56 (2008).
- C. Odinkalu, “The Judiciary and the Future of Customary Law,” 3 Niger. J. Pub. L. 45 (2005).
Newsletters and Policy Briefs
- “Judicial Education and Human Rights in Nigeria,” Rule of Law Newsletter, Nigerian Institute of Advanced Legal Studies (2021).
- “Customary Law Reform Through Community Participation,” CLEEN Foundation Policy Brief, No. 5 (2020).
