Legal pluralism is a key feature of African legal systems. The form of pluralism that permeates these systems derives from what is known as the principle of "legal centrism," which holds that all law emanates from the state and that rites developed and practiced by nonstate actors, including religious and customary institutions, are law only to the extent they are recognized by the state. This may occur through "normative recognition" in which state institutions recognize substantive customary and/or religious laws as law, and/or through "institutional recognition" in which the actions of customary institutions are considered enforceable.
This form of legal pluralism, the origins of which are traced to 1772 British India, arrived in
This gave rise to laws defining the occasions and manner in which customary laws would be applied. For instance, in
Nothing in this Ordinance shall deprive the Supreme Court of the right to observe and enforce the observance, or shall deprive any person of the benefit, of any law or custom existing in the said Colony and Territories subject to its jurisdiction, such law or custom not being repugnant to natural justice, equity and good consciousness, nor incompatible either directly or by necessary implication with any enactment of the Colonial Legislature existing at the commencement of this Ordinance, or which may afterwards come into operation.
After independence, African countries by and large continued the limitations imposed on the application of customary laws. For instance the Judicature Act of Kenya, the law governing the application of customary laws, states,
[t]he High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law . . . .
Although their application is limited, customary laws and institutions continue to play a significant role in the lives of large segments of the population in African countries. This is because the limited subject matter areas they govern (including matters of personal status, property, and traditional authority) are those that impact greatly the day-to-day lives of the people. Significantly, for large segments of the African population, especially in rural areas, customary laws and institutions are the only available means of conflict resolution.
Application of Customary Law: Nigerian Example
Today, the application of customary law by courts in pluralist jurisdictions presents at least two issues. One involves the question of how to establish a particular customary law. This is mainly because (unlike state law, which tends to be uniform, relatively stable, and is issued formally and publicized) customary law in African jurisdictions is diverse and "remains largely unwritten, informal, and often difficult to ascertain." Thus, while these characteristics do not impede its use or effectiveness in the immediate area where it is routinely practiced, its application in remote locations or formal courts requires a procedure for its ascertainment.
African countries have adopted different methods of ascertainment. For instance, if a customary law is invoked in civil proceedings before Nigerian courts (except in certain Sharia and area/customary courts), it may be ascertained in one of two ways: (1) through judicial notice (this occurs when the particular custom in question has been established in a superior court of record), or (2) via proof. When the invoked customary law cannot be judicially noticed, the person invoking the custom has the burden of proving it as fact. Nigerian law assigns broad meaning to what is relevant fact in this regard, stating "[e]very fact is deemed to be relevant which tends to show how in particular instances a matter alleged to be a custom was understood and acted upon by persons then interested."
The custom in question may also be established through expert opinions. In this regard, the "opinions of traditional rulers, chiefs, or other persons having special knowledge" of the custom in question is admissible. Also admissible as expert opinion is "any book or manuscript recognized as legal authority by the people indigenous to the locality" where the custom is in force. However, the custom may also be proved through the nonexpert opinion of any individual "who would be likely to know of its existence." This appears to make admissible the testimony of every member of a particular ethnic group on the existence of a particular custom in the group.
The second issue involves the question of whether a customary law is suitable for application. Nigerian law states that, "[i]n any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity and good consciousness." Therefore, once the customary law in question is ascertained, it has to undergo a repugnancy test before it can be applied.
The meaning of this test remains unclear today, as the Nigerian Supreme Court admitted in a 1995 case. As a result, its application has also remained inconsistent and subjective, as illustrated by a number of the Court's decisions. In 1976, the Court declared woman-to-woman marriage repugnant. In 1989, the Court held that an
The following list of resources is meant to serve as a starting point for researching African customary laws and institutions. While it is not comprehensive (creating a comprehensive list would be extremely difficult given the diversity of African customary laws), it highlights some of the many scholarly works on the subject. It covers two types of sources (books and scholarly articles), which are presented in three categories: general sources, sources on land law issues, and sources on family law issues. Some of the materials may address more than one of these subjects. Many of the sources listed are part of the Library of Congress's collection, while others are available though restricted databases such as HeinOnline and JSTOR.
Julius Lewin, Studies in African Native Law (1947), LC Call No. KTL449.3 .L495 1947, http://lccn.loc.gov/47031069.
A.L. Epstein, Juridical Techniques and the Judicial Process: A Study in African Customary Law (1954), LC Call No. KTY350 .E67 1954, http://lccn.loc.gov/55002460.
Taslim Olawale Elias, The Nature of African Customary Law (1956), LC Call No. LAW <Africa General 7 Elia>, http://lccn.loc.gov/57001037.
Alexander Nékám, Experiences in African Customary Law (1966), LC Call No. KQC99 .N45 1966, http://lccn.loc.gov/72191489.
Thierry Verhelst, Safeguarding African Customary Law: Judicial and Legislative Processes for its Adaptation and Integration (1968), LC Call No. DT1 .C34 no. 7, http://lccn.loc.gov/73157018.
Anthony Allott, Essays in African Law, With Special Reference to the Law of
T.W. Bennett, A Source Book of African Customary Law for
Akintunde Ẹmiọla, The Principles of African Customary Law (1997), LC Call No. KQC99 .E46 1997, http://lccn.loc.gov/99208651.
R.B. Mqeke, Basic Approaches to Problem Solving in Customary Law: A Study of Conciliation and Consensus Among the
Toriola Oyewo & O.B. Olaoba, A Survey of African Law and Custom: With Particular Reference to the Yoruba Speaking Peoples of South-Western
Toriola Oyewo, Issues in African Judical [sic] Process with Particular Reference to the Customary Courts of South-Western Nigeria (1st ed. 1999), LC Call No. KTA449.3 .O968 1999, http://lccn.loc.gov/2001345016.
O.B. Olaoba, An Introduction to African Legal Culture (2002), LC Call No. KQC79 .O43 2002, http://lccn.loc.gov/2003538949.
A. Toriola Oyewo, African Customary Law in Comparative Milieu and Related Topics (2003), LC Call NO. KQC99 .O94 2003, http://lccn.loc.gov/2005447686.
George B.N. Ayittey, Indigenous African Institutions (2006), LC Call No. GN645 .A88 2006, http://lccn.loc.gov/2006041784.
O. Oko Elechi, Doing Justice Without the State: The Afikpo (Ehugbo)
Traditional Justice and Reconciliation After Violent Conflict: Learning from African Experiences (Luc Huyse et al. eds., 2008), LC Call No. KQC977 .T73 2008, http://lccn.loc.gov/2008380884.
Domestic Violence and the Law in Colonial and Postcolonial
The Future of African Customary Law (Jeanmarie Fenrich et al. eds., 2011), LC Call No. KQC99 .F88 2011, http://lccn.loc.gov/2011001813.
African Perspectives on Tradition and Justice (Tom Bennet et al. eds., 2012), LC Call No. KQC99 .A37 2012, http://lccn.loc.gov/2012471257.
Lloyd Fallers, Customary Law in the New African States, 27(4) Law & Contemp. Probs. 605 (Autumn 1962) (available in JSTOR).
A.N. Allott, What Is to Be Done with African Customary Law? The Experience of Problems and Reforms in Anglophone
Boaventura de Sousa
Narana Coissoro, African Customary Law in the Former Portuguese Territories, 1954–1974, 28(1–2) J. Afr. L. 72 (1984) (available in HeinOnline).
Ann Seidman & Robert B. Seidman, The Political Economy of Customary Law in the
A.J.G.M. Sanders, How Customary is African Customary Law?, 20 Comp. Int'l L.J. S. Afr. 205 (1987) (available in HeinOnline).
I.E. Sagay, Customary Law and Freedom of Testamentary Power, 39(2) J. Afr. L. 173 (1995) (available in JSTOR).
Minneh Kane et al., Reassessing Customary Law Systems as a Vehicle for Providing Access to Justice for the Poor (Arusha Conference, "New Frontiers of Social Policy: Development in a Globalizing World," Dec. 12–15, 2005), available at http://siteresources.worldbank.org/INTRANETSOCIALDEVELOPMENT/Resources/Kane.rev.pdf.
T.W. Bennett, Re-introducing African Customary Law to the South African Legal System, 57(1) Am. J. Comp. L. 1 (Winter 2009) (available in HeinOnline).
David Pimentel, Rule of Law Reform Without Cultural Imperialism? Reinforcing Customary Justice Through Collateral Review in Southern Sudan, 2 Hague J. on Rule L. 1 (2010), http://www.innovatingjustice.com/media/Pimentel.pdf.
Abdulmumini A. Oba, Religious and Customary Law in Nigeria, 25(2) Emory Int'l L. Rev. 881 (2011), http://www.law.emory.edu/fileadmin/journals/eilr/25/25.2/Oba.pdf.
Nii Amaa Ollennu, Principles of Customary Land Law in
H.W.J. Sonius, Introduction to Aspects of Customary Land Law in
Frank M. Mifsud, Customary Land Law in
R.W. James & G.M. Fimbo, Customary Land Law of
Charles Kingsley Meek, Colonial Law, A Bibliography with Special Reference to Native African Systems of Law and Land Tenure (1948), LC Call No. K38 .M43 1978, http://lccn.loc.gov/78014384.
J.M. Migai Akech, Rescuing Indigenous Tenure from the Ghetto of Neglect: Inalienability and the Protection of Customary Land Rights in
Land, Power & Custom: Controversies Generated by
Land Rights Act (Aninka Claassens & Ben Cousins eds., 2008), LC Call No. TL685.5
.L36 2008, http://lccn.loc.gov/2008489221.
Rachael S. Knight, Development Law Service, FAO Legal Office, Statutory Recognition of Customary Land Rights in Africa: An Investigation into Best Practices for Lawmaking and Implementation (2010), LC Call No. KQC772 .K58 2010, http://lccn.loc.gov/2011466023.
T.W. Bennett & J.W. Roos, The 1991 Land Reform Acts and the Future of African Customary Law, 109 S. Afr. L.J. 447 (1992) (available in HeinOnline).
Aili Mari Tripp, Women's Movements, Customary Law, and Land Rights in Africa: The Case of
C. Coldham, Land Reform and Customary Rights: The Case of
Narana Coissoró, The Customary Laws of Succession in Central
Nwakamma Okoro, The Customary Laws of Succession in
Hester Van Wingerden, I Don't Want any Nonsense in my Courtyard!: The Position of Women in Subia Family Law (1966), LC Call No. KSY516 .W56 1996, http://lccn.loc.gov/00379687.
G.B.A. Coker, Family Property Among the Yorubas (2d ed. 1966), LC Call No. KTA8407 .C65 1966, http://lccn.loc.gov/66070046.
Family Law in Asia and
Seminar Papers, "New Directions in African Family Law,"
J.F. Holleman, Issues in African Law (1974), LC Call No. KQC99 .H65 1974, http://lccn.loc.gov/73081812.
Alastair James, The Customary Law of Immovable Property and of Succession (1976), LC Call No. KTL449.3 .K47 1976, http://lccn.loc.gov/78030371.
S.M. Seba, Inheritance Laws Among the Bakuria (1976), LC Call No. KSK770 .S43 1976, http://lccn.loc.gov/78111573.
Law and the Family in
Habibu Angulu Sani, Critique of the Chieftaincy: Declaration and Succession Procedure: A Case Study of the Ebira Tao People of
South African Law Commission, The Harmonisation of the Common Law and the Indigenous Law: Succession in Customary Law (1998), LC Call No. KTL770 .H37 1998, http://lccn.loc.gov/99232857.
A. Toriola Oyewo, A Handbook on African Laws of Marriages, Inheritance and Succession (1999), LC Call No. KQC156 .O97 1999, http://lccn.loc.gov/2001345662.
Women and Law in
Johanna Bond, Voices of African Women: Women's Rights in
Trials and Tribulations, Trends and Triumphs: Developments in International, African and South African Child and Family Law (Julia Sloth-Nielsen & Zenobia du Toit eds., 2008), LC Call No. KTL515.5.A67 T75 2008, http://lccn.loc.gov/2009382166.
Lesala L. Mofokeng, Legal Pluralism in
Frontiers of Globalization: Kinship and Family Structures in
Gender, Sexuality and Mothering in
Martin Chanock, Neither Customary Nor Legal: African Customary Law in the Era of Family Law Reform, 3(1) Int'l J.L., Pol'y & Fam., 72 (1989) (available in HeinOnline).
Simon Coldham, Customary Marriage and the Urban Local Courts in
K.L. Robinson, The Minority and Subordinate Status of African Women Under Customary Law, 11 S. Afr. J. Hum. Rts. 457 (1995) (available in HeinOnline).
O.C. Ruppel, Women's Rights and Customary Law in
Lea Mwambene, Marriage Under African Customary Law in the Face of the Bill of Rights and International Human Rights Standards in Malawi, 10(1) Afr. Hum. Rts. J. (2010), http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1186&context=facpub.
Muna Ndulo, African Customary Law, Customs, and Women's Rights, 18 Ind. J. Global Legal Stud. 87 (Winter 2011) (available in HeinOnline).
T.W. Bennett, Legal Pluralism and the Family in
Foreign Law Specialist
 See John Griffiths, What is Legal Pluralism, J. Legal Pluralism No. 24 at 1, 2–6 (1986); Helene Maria Kyed, The Politics of Legal Pluralism: State Policies on Legal Pluralism and Their Local Dynamics in Mozambique, J. Legal Pluralism No. 59 at 87, 88 (2009); Abdulmumini A. Oba, The Future of Customary Law in Africa, in The Future of African Customary Law 58, 62–65 (Jeanmarie Fenrich et al. eds., 2011).
 Gordon R. Woodman, A Survey of Customary Laws in
 M.B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws 61 (1975).
 Oba, supra note 1, at 58; Muna Ndulo, African Customary Law, Customs, and Women's Rights, 18 Ind. J. Global Legal Stud. 87, 88 (Winter 2011).
 Oba, supra note 1, at 60.
 Woodman, supra note 2, at 18.
 George Otieno Ochich, The Withering Province of Customary Law in Kenya, A Case of Design or Indifference, in The Future of African Customary Law 103, 104 (Jeanmarie Fenrich et al. eds., 2011); A.N. Allott, Towards the Unification of Laws in Africa, 14(2) Int'l & Comp. L. Q. 366, 370 (Apr. 1965).
 A.D. Badaiki, Development of Customary Law 27 (1997).
 Supreme Court Ordinance No. 4 of 1876, § 19, 1 Laws of the Colony of
 Judicature Act of 1967, § 3, 9 Laws of
 Evidence Act No. 18 of 2011, § 18, 98 Federal Republic of Nigeria Official Gazette, No. 80 (June 21, 2011), available at http://www.aksjlegalresource.com/resource/Laws_of_the_Federation%5CEVIDENCE%20ACT%202011.pdf.
 Supreme Court Act of 1960, § 17, 14 Laws of the Federation of
 Customary Courts Law of 1972, § 20, 2 Laws of
 Jeanmarie Fenrich et al., Introduction, in The Future of African Customary Law 1–2 (Jeanmarie Fenrich et al. eds., 2011).
 Laurence Juma, Putting Old Wine in New Wine Skins, The Customary Code of Lerotholi and Justice Administration in Lesotho, in The Future of African Customary Law 129, 130 (Jeanmarie Fenrich et al. eds., 2011).
 Evidence Act, 2011, § 16.
 Evidence Act, 2011, § 73.
 Lawal-Osula v. Lawal-Osula,  10 S.C.N.J 89, 97. In a 1994 case, the Supreme Court made an attempt to define the phrase without much success:
The phrase "repugnant to natural justice, equity, and good consciousness" has not been interpreted disjunctively by the courts. "Equity" in its broad sense, as used in the repugnancy doctrine is equivalent to the meaning of "natural justice" and embraces almost all, if not all concepts of "good conscience." The term "equity" has a broad popular sense and a narrow technical sense. In its popular sense equity is practically equivalent to natural justice or morality. Okonkwo v. Okagbue,  12 S.C.N.J. 89, 102.
 Ndulo, supra note 4, at 95; Derek Asiedu-Akrofi, Judicial Recognition and Adoption of Customary Law in Nigeria, 37(3) Am. J. Com. L. 571, 584–86 (Summer 1989).
 C.O. Akpamagbo, A "Woman to Woman Marriage" and the Repugnancy Clause: A Case of Putting New Wine into Old Bottles, Afr. L. Stud. No. 13 at 87, 88 (1976).
 Nzekwu v. Nzekwu,  2 N.W.L.R 373, 378.
 Okonkwo v. Okagbue,  12 S.C.N.J 89, 105.
 Lawal-Osula v. Lawal-Osula, 10 S.C.N.J at 97.
 Hanibal Goitom, Nigeria: Supreme Court Upholds Bini Customary Law System of Primogeniture, Global Legal Monitor (Apr. 24, 2013), http://www.loc.gov/lawweb/servlet/lloc_news?disp1_l205403570_text.
Last Updated: 03/26/2014