Gender, Citizenship and Customary Law from Colonial to Commonwealth Africa

By Ada Okoye

(Lecturer, Nigerian Law School, Enugu Campus)

Introduction

The efforts of colonial governments to reconcile dual systems of law for the orderly governance of colonial societies has been the subject of much scholarly analysis. This paper will succinctly present some key views on the factors that shaped the body of customary practices and usage into customary law, showing also, how customary law constructed citizenship for women. Incursions into customary law initiated by judicial intervention in Botswana and Nigeria will also be highlighted.

Customary Law in Colonial Societies

The appeal of customary law to colonial authorities lay mostly in the fact that its indigenous character facilitated the administration of law in colonial societies. Therefore, not even the much lamented unsystematic character of customary law application (when compared to the law of colonizing countries) could obliterate this advantage. This same factor was what informed the British system of indirect rule, first employed in the settlement of the Zulu in Natal, South Africa, and subsequently applied as a policy by Lord Lugard in the then Northern Nigeria and by Sir Donald Cameron in Tanganyika. Nevertheless, the colonial authorities did their best to bring the body of customary law into an identifiable form by codification in some areas. Where customary law was not codified, its application was governed by several criteria, the primary one being the repugnancy test. The repugnancy test applied to make a custom liable to abolition by colonial courts if found to be repugnant to natural justice, equity and good conscience.

It is important to observe that not all customs operated as law. To qualify as customary law, a custom must be accepted as an obligation by the community, and must be recognised as law by members of the ethnic group or community to which it applied. Although the courts were not conferred with power to modify a custom and apply or recognize the modified form as customary law, they were nevertheless, obliged to recognize and enforce changes in customary law brought about by social and political development, provided such customs were still recognized, in their modified form, as binding custom within the community.

This “non-modification” stance of the colonial courts in respect of customary law administration has been critiqued as retrogressive to the positive development of custom. Rather than reject them in their entirety, provision ought to have been made for the reform or modification of cultural practices within the colonial legal system declared barbaric by English standards. By failing to make such provisions, the colonial courts actually slowed down the pace of communal reform of custom.[i]

It is further argued that the passive stance of the colonial courts with regard to customary law reform may actually have served to perpetuate the enforcement of unfavourable customary law on women in more ways than one. The next section will focus on ways in which customary law constructed citizenship for women in colonial Africa.

Customary Law and Women’s Citizenship

First, like the common law, rigid application of customary law also inflicted hardship on its subjects. For instance, customary law prescriptions on inheritance by women were, and still are, highly restrictive with regard to ownership of property by women in most parts of Nigeria, and indeed Africa. Unlike the common law which was modified by the rules of equity, there was no corresponding development to address the difficulties women encountered on the loss of a husband or father, especially in the absence of a male child born to the deceased.

Secondly, the absolute power of the courts to abolish customs adjudged to have failed the repugnancy test no doubt made the local people wary of foreign interference with their customs. This translated into a determination to protect those customs which remained untouched, or more accurately, remained unchallenged in colonial courts. Thus a large body of customs have remained, denying women of strategic rights relating to inheritance and ownership of property while imposing undignified and absurd observances on them by way of widowhood rites.[ii]

It must be remembered however, that the common law doctrine of coverture could not have encouraged a development among local women in colonised territories which women in England were yet to receive. Coverture referred to the legal position of a married woman (who is also referred to as a “femme covert”) under the marital power of her husband, and in relation to whom she was a minor. As Mamdani put it, “we are after all talking of an era when English common law gave husbands controlling power over wives…”[iii] The colonial interests must therefore have been served by a maintenance of the status quo of women’s apparent exclusion from the public sphere. In Nigeria, this is evidenced by the fact that women were not enfranchised until 1959, the eve of Nigeria’s independence which followed in 1960, and even then, it was only women in southern Nigeria, possibly a remote dividend of the Aba women’s riots of 1929, and the Egba revolts of 1954, which were planned and executed by women in south-east and south-west Nigeria respectively. Their counterparts in northern Nigeria were given the vote in 1976.

The conservative regime of customary law in relation to African women was further strengthened by the complicity of the State, colonial and post-colonial, both for similar reasons. While the former needed allies among the men of the local communities in order to consolidate their hold over local spaces, the latter, that is the post-colonial state, could not afford to estrange the majority of their supporters, who in most cases, were the conservative beneficiaries of the patriarchal tradition. Thus, improvements to the status of women in Africa have been described as more of incidental benefits rather than specific goals.[iv]

Simon, writing on Southern Africa, maintains that African women had more rights as regards both their person and property than was conceded them by alien courts in their application of individualistic common law constructions of the concepts of ownership, contract and status, out of the social context in which these terms were developed and onto traditional African culture to which individualism was alien. This assertion is supported by Bennett’s argument that certain customary law institutions could have been extended to accommodate modern social practices in a way that would have benefited women considerably. For instance, women were entitled in certain customs to keep proceeds made from certain economic activities such as pottery, beer-brewing and mid-wifery. In such circumstances, a blanket application of the coverture principle by the courts would serve to classify income from these activities “house property” which effectively deprived the woman of control over her income.[v]

This state-community complicity remains an obstacle to the improvement of women’s legal capacity in Africa. In Nigeria, as in some parts of Southern Africa, the transposition of individualistic legal concepts characteristic of western legal systems succeeded in obscuring the role of traditional associations or institutions of women. For instance, the concentration of political power in electoral processes in countries of the west, when transposed wholesale on traditional African communities, interpreted women’s apparent non-inclusion in formal, overt decision-making processes to mean that they were entirely out of it. Formal and semi-formal associations of women who exercised tremendous influence in individual, family and communal affairs were effectively sidelined in as mush as such institutions could not be reproduced in individualistic legal concepts central to the legal systems of the colonizers. Thus, whatever gains might have accrued to women through the development of the role of traditional institutions of women were never realized. A case in point is the “umu-ada” (meaning daughters of the lineage) in south-east Nigeria which is employed to refer to the formal association of women in their natal home, membership of which is open to all women from that community, married or unmarried, including those married to men from other communities. This revered group exercises quasi-judicial and administrative functions in their natal communities, and it is quite common to find women travelling long distances from their husbands’ towns, villages and places of abode to attend umu-ada meetings. In the absence of a recognition and development of the role played by this institution, their famed power turned inwards in the enforcement of widowhood rights against widows of men of the lineage.[vi]

In Southern Africa, the attempts of colonial governments at law reform to confer the common law concept of age of majority on both men and women met with little success as this was neither accepted by men in traditional communities, nor was it utilized by women, most of whom were unaware of their new status. Besides, it would no doubt have been considered foolhardy for a woman living in a local network of dependency to seek refuge in an alien law for which her community had no respect. As Cheater observed, it is difficult to benefit simultaneously from both statute and custom, and “in opting for statutory rights in the context of one specific dispute, a litigant runs the risk of jeopardizing her customary social entitlements, and it is on the basis of these entitlements that most women survive.[vii] In the circumstance, women were subsequently returned to minority status.

Considering that the minority status for women was not with a view to protecting them (as was the case with children) as much as it was for the purpose of restraining them, it is not surprising that the positive contents of this status were not applied to women. For instance, neither the common law provisions precluding parental right to a minor’s income (in this case the husband’s right) nor that prohibiting the alienation of immovables administered by a guardian for a minor was applied to African women.[viii]

Further, it is submitted that in keeping with the positive rationale of the concept, minority status at common law was not a temporary state of affairs. That is to say, barring the incidence of death, a minor had the certainty of attaining the age of majority, but for the African woman, minority status operated only in a negatively permanent sense.

If the recycling process that led to what eventually emerged as customary law in most of colonial Africa were to be captured in a word picture, it would probably appear like this:

“The substantive customary law was neither a kind of historical and cultural residue carried like excess baggage by groups resistant to “modernization” nor a pure colonial “invention” or “fabrication”, arbitrarily manufactured without regard to any historical backdrop and contemporary realities. Instead it was reproduced through an ongoing series of confrontations between claimants with a shared history but not always the same notions of it…the presumption that there was a single and undisputed notion of the customary, unchanging and implicit, one that people knew as they did their mother tongue, meant that those without access to the Native authority had neither the same opportunity nor political resources to press home their point of view. In the absence of a recognition that conflicting views of the customary existed, even the question that they be represented could not arise.”[ix] - emphasis added.

A gendered view of this incisive analysis would doubtless locate women among the groups who lacked opportunity and political resources to make their voices heard. Thus while they may have shared the same history with the men, their notions of it, which may have been different, were not given voice.

Judicial incursions into gender-discriminatory customary and statutory law

Increasing awareness of human rights secured in international instruments have created avenues for challenging unjust, oppressive and discriminatory practices that have persisted for years in the name of customary law. In 1997, in the Nigerian case of Mojekwu v. Mojekwu,[x] the Court of Appeal held, overturning a long-standing custom in south-east Nigeria, that a widow is entitled to inherit her husband’s property. Under the “oli-ekpe” custom which was the subject-matter of the case, inheritance of the property of a deceased man was by his son, or if he had no surviving son, by a surviving brother, or on the latter’s death, by his son. The judgment rejecting this custom was a unanimous decision by an all-male panel of judges who observed that “a court of law being a court of equity as well, cannot invoke a customary law which is repugnant to natural justice, equity and good conscience. The “oli-ekpe” custom is one of such customs.”[xi]

This pivotal precedence was consolidated by the same court in the 2000 case of Mojekwu v Ejikeme[xii] in which the same custom in conjunction with a related one known as “nrachi” came up in issue and were both rejected on grounds of repugnancy. The oli-ekpe and nrachi customs had been invoked to exclude the appellants (a woman, her son and a third relevant person) from the property of the woman’s grandfather which had passed onto her in the absence of a son in the generations succeeding her grandfather. The respondents, distant male cousins sought to dispossess the appellants of the landed property on the ground that since the ancestor had no surviving son, his property could vest in his daughter (and subsequently, his granddaughter) if and only if the “nrachi” ceremony was performed on them. This ceremony enabled a man who had no son to keep back one of his daughters to produce a male heir. The daughter selected for this purpose would be bound to refrain from marriage and to procreate outside the bounds of marriage, but not a particular man until she produced a male heir or heirs whereupon she regained her freedom to marry if she so wished. The argument of the respondents in this case was that since this “transmutating” ceremony was neither performed on the respondent’s mother nor on the respondent in this case, she was not legitimized to produce a male heir to whom title in the property could be transmitted, and so her son could not inherit her grandfather’s (his great-grandfather’s) property in issue.

In rejecting this custom, the Court of Appeal, again constituted by an all-male panel of judges, observed that

“a lineage refers to a direct line of descent and one can only talk of extinction of a lineage when the line of descent is extinguished or wiped out in the sense that it is no longer in existence or it is dead. Where there are children or even grand-children and great-grandchildren, directly traced or traceable to the ancestor, it will be wrong to hold that the lineage is extinct….can the learned trial judge be heard to come to a conclusion that Reuben Mojekwu’s lineage became extinct when Virginia, the daughter is alive…?”[xiii]

Thus a woman’s right of inheritance of her father’s property was established by this judicial precedence.

While it is gratifying to note these positive changes in the law, it is alarming to consider that such customs may also exist untouched in the body of customary law which the counsel for the state sought to preserve without change in the case of Attorney-General of Botswana v Unity Dow[xiv] In that case, the respondent Ms. Unity Dow, as the applicant in the High Court, had petitioned the Court to declare sections 4 and 13 of the Botswana Citizenship Act 1984 among others, ultra vires section 3 of the Botswana Constitution 1966 which guarantees every citizen of Botswana fundamental rights and freedoms without discrimination on grounds of sex, among others. The effect of the sections was to deprive a Botswana woman of the power to transmit her citizenship to a foreign husband or to children born in a marriage to a foreign man, a state of affairs that did not apply to a Botswana man married to a foreign woman. The Court of Appeal upheld the High Court judgment which had been delivered in favour of Ms. Dow.

The arguments for the state in this case were vigorously pursued on several grounds one of which was the need to maintain certainty of citizenship, another way of espousing the undesirability of dual citizenship. Other grounds were the preservation of customary law and the maintenance of the body of law in general, “huge chunks of [which] would be liable to be struck down” if all the discriminatory provisions were to be removed. According to the counsel for the state, “the whole fabric of the customary law in Botswana…is based upon a patrilineal society which is gender-discriminatory in nature.”[xv] Leaving room for dual citizenship, it was further asserted, would jeopardize the sole nationality of indigenous people. It did not seem relevant to this argument that the same consequences flowed from the marriage of a Botswana man to a non-Botswana woman since the offspring of such a marriage would usually be eligible for citizenship of their mother’s country as well as that of their father’s; that customary law would not apply significantly, if at all, in such a marriage, and that whatever jeopardy was foreseen to the indigenous population by a male foreign spouse would not be removed by reason of the foreign partner in the marriage being the woman.

It is self-evident that the body of judicial decisions which address unjust customary law is growing. What remains to be seen is how women in Africa will appropriate the gains of these judicial victories, especially in the light of certain factors which have been identified as drawbacks to the women’s movement in Africa. These factors include failure to mobilize across national borders, fear of reprisal, as well as the nascent stage of the movement in many African countries.[xvi]

Conclusion

It is quite obvious that customary law as determined in colonial societies in Africa was the product of confrontations between the colonizers and recognized stakeholders in the colonized societies. Recognition of a particular custom as law was conferred on the basis of what a group could contribute to the advancement of the colonial agenda, and the colonialists found the much-needed allies in the male custodians of power in traditional societies. Consequently, what came to be regarded as customary law resulted from the claims of those who had access to native authorities. As a result, customary practices which were not necessarily obligations, and many of which were restrictive to women, made their way into the recognized body of customary law. In this way, the inherent advantage of fluidity and dynamism characteristic of the regulation of life in traditional societies was arrested in a way that hampered the progressive development of custom and deprived women of the consummate benefits of a dynamic legal regime. This legacy, among others, is what the African women’s movement in the twenty-first century will have to address at a generic level by various means which will include negotiation, education and enlightenment of women and not least, judicial intervention.