CODIFICATION: A Treatise for the Creation of a Nigerian Common Customary Law

Customary Law is an integral, and or, important, even critical part of tribal jurisprudence but also one that is difficult to understand. The complex nature of customary law combined with the place of customary law in the hierarchy of law from other sources of law makes it an unusual sort of legal authority subject to distinct methods of proof.

What is Customary Law?
Many definitions exist as to what customary law is. We shall take a look at just a few:
It is the established pattern of behavior that can be objectively verified within a particular setting. Most customary law deals with standards of community that have been long established in a given locale.
Customary law is a recognized source of law within the jurisdiction of the civil law tradition, where it may be subordinate to both statutes and regulations.
Lord Denning once said: “These customary laws are not written down. They are handed down by tradition from one generation to another. Yet beyond doubt they are well established and have the force of law within the community.”
Customary law is perhaps best understood through the words of one tribal court;
We believe incorporating our customs into our written law is very important. It is what will set us apart from
the state and federal courts. Our courts must approach this carefully, however, our customs and
traditions are viable, living doctrines that grow with the community and the time.
Tribal courts have applied customary laws to a wide range of issues and cases. The distinctive custom of each tribe means that customary law as used in tribal courts is highly dependent upon the history and culture of each tribe.

What is Codification?
Codification is the collection and systematic arrangement, usually subject; of the law of a state or country, or the statutory provisions, rules, and regulations that governs a specific area or subject of law in practice.
It can also be said to be the process of collecting and arranging the laws of a country into a code/codes, that is, into a complete system of positive law, scientifically ordered and promulgated by legislative authority.
The term also denotes the creation of codes, which are compilations of written statutes, rules, and regulations that inform the public of acceptable and unacceptable behavior.

The Nigerian Customary Law refers to that usually uncodified legal system developed and practiced by the indigenous communities of Nigeria.
In Nigeria, rules have been handed down orally from generation to generation and now form the country’s customary law. The absence of the codification of those rules has presented difficulties in ascertaining them.
However, in a modern society supposed to be administered by old age customs, it would leave ample scope for arbitrary applications of customs by vested interests, as no two cases would be dealt with in the spirit of law, because the judgment is left to be subject to the opinion of the traditional judge. Therefore, some express the view that customs should be codified into Acts, so that the operation of general legal practice can be applied to them.
When viewed from another perspective, the codification of customs into Acts defeats the very nature and meaning of preservation of customs. The meaning and implication of customs is supposed to be interpreted by the elders of the community only and its traditional authority. When a custom is codified, it becomes a law which is open to the interpretations of lawyers and the courts. In coarse language, a codified custom becomes a gold mine for lawyers rather than justice for the people. Through codification, any lawyer or judge would become an authority more legitimate to interpret that custom than the traditional authorities.

Uniform customary laws will eliminate one of the most important factors that divide Nigerians, and so pave the way for true unity under identical laws – as the case of peoples of France, England and Wales who accepted a unification of their various customs.
Customary laws being unwritten depend for their survival and preservation on human memory. Human memory is often unreliable, and when to this unreliability is added deliberate distortion of the laws by interested litigants or other disputants, the result is uncertainty. Codification remedies this situation and gives certainty to our laws.
Codification will help in preserving the laws as our true customary laws are in danger of being lost forever.

Those for the customary laws have little idea about the consequences of any such codification. Custom and tradition of tribal formation is always evolving and at times old customs are phased out due to the impact of modernity and change in lifestyle. Once customary laws are codified, they cease to be customary laws, and become formal statutes.
Due to the high level of illiteracy, it would not be worth the time, money and effort needed to effect codification of the numerous customary laws, if the people for whose benefit and guidance the codes are to be compiled cannot read them.
If customary laws are codified, they will be laid wide open to distortion by the courts in trying to interpret them. Courts may arrive at different interpretations of the customary rights, once they are codified, by following strict rules of construction or functional interpretation.
Codification of customs, customary rights and customary laws can therefore be never exhaustive and it would also amount to stopping growth customs and customary right of future generations. Some of those who are for the codification should also remember that law justice are often not on talking terms.
Further, the attempts to codify the customary laws will only aggravate the problems as many of the customs may fail to graduate to customary laws as they may be against the public policy or judiciary may not recognize them due to contrary orders passed by the apex court in similar situations.
Some of the arguments against codification are not very plausible. For example, the argument that our rural population is largely illiterate, one may say that that is the reason why their laws should be written now, so that they will not be lost to posterity. In any case, the fact that our peoples are illiterate today does not mean that they will continue to be illiterate forever. With regard to the argument that codification of customary laws will lay them wide open to distortion by the courts in trying to interpret them, one should not forget that whether a law is written or not, the court are bound to access and interpret it, whenever it is called in question before them. Customary laws cannot be different in that respect.

In my view, a new wave should be established for the codification, integration and unification of customary laws in Nigeria. This should be done by bringing the legislature at the local governments to work with the legislature at the state level in conjunction with the state judiciary so as to be able to harmonize their laws and for the laws to be seen to be working at the two different levels of government. The cases of countries like Ghana, Ethiopia, Ivory Coast and Malagasy are easily cited as examples for Africa. Maybe, the method on how they went about it should be studied and adopted in the Nigerian state.

Akpomuvire, M. (2011) The Interface between Customary Law and
Local Government Legislation in Nigeria: A Retrospect and
Asein, J.O (2005) Introduction to Nigerian Legal System. Lagos: Ababa
Press Ltd.
Azinge, E. (1991) Codification of Customary Law – A Mission
Impossible. In: O Lemi, UK Awa (Eds.): Towards a
Restatement of Nigerian Customary Law. Lagos: Federal
Ministry of Justice.
Badaiki, A.D (1997) Development of Customary Law. Lagos: Tiken
Elias, T.O (1967) Groundwork of Nigerian Law. Lagos: University of
Lagos Press.
Elias, T.O (1997) The Nature of African Customary Law. England:
Manchester University Press.
Ezra, R. (2008) Customary Law: The Way Things were Codified.
Fabian, L. (2013) On Codification of Customary Law –
Malemi, E. (2012) The Nigerian Legal System Lagos: Princeton
Publishing Co.
Okany, M.C (1984) The Role of Customary Court in Nigeria Enugu:
Fourth Dimension Publishing Co. Ltd.


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