Native Law Research Articles

‘From divided past to cohesive future’: a reflection on the reconciliatory mechanisms of (Yoruba) traditional approaches to conflict resolution in Nigeria

ABSTRACT Traditional conflict resolution mechanisms in Nigeria are deeply rooted in customs, traditions, and native laws, forming a complex network that dispenses justice. Among these mechanisms, the reconciliation process stands out as a crucial traditional instrument, encompassing the pursuit of truth, justice, healing, and forgiveness. This study focuses on the Yoruba indigenous system and examines how its reconciliatory mechanisms contribute to conflict resolution through traditional reconciliation processes and in the healing of emotional wounds. Using qualitative research methods, this study generated data using interview protocols such as key informant interviews (KII) and naturalistic observational studies. This study explores the significance of indigenous practices in the reconciliation process within the Yoruba traditional society. These indigenous practices are employed to mend broken relationships and bridge the gaps created by conflicts. It further emphasizes that traditional conflict resolution approaches among the Yoruba ethnic group primarily serve the purposes of genuine reconciliation, peacebuilding, and maintenance of social relationships. This research confirms the appropriateness and practicality of Yoruba's traditional conflict resolution mechanisms as an effective home-grown approach. This demonstrates their compatibility with the modern Nigerian system, offering a pathway towards a cohesive future characterized by harmonious relationships.

Traditional Rule in the Face of Emerging Elitism in Bafut Noth West Cameroon, 1970-1982

In Bafut, leadership, power and authority resided in the hands of traditional rulers who administered the people according to native law, custom and traditions. The leader was called mfor befeu (translated as fon by colonialist). The fon in his political setting was surrounded by a cream of traditional advisers and institutions such as kwifor and takumbeng, made up of noble men from commoners’ origin and royal family properly rooted in the traditions and customs and needed no other form of training to rule the people. Colonial rule introduced western education with the intention of training young Africans to assist them in administration and governance. Independent African governments inherited the system and spirit. The consequence was the mindset of the educated African tamed against his own customs and traditions. A dichotomy was created in society leading to social class discrimination and power usurpation in local political systems. The educated people hijacked the power machinery from the traditional leaders whom they tagged with stigmatizing words as “illiterate”. This syndrome created what was generally called an “elite class” which regulated power with no recourse to the position of the traditionalists. This paper examines the conflict that ensued in Bafut from 1970 as a result of handing over power to the indigenous westernised and educated elite and imposing them in local affairs and administration. We contend that the involvement of fabricated post-independent elite in leadership positions created conflict given that power tussles between them and the traditional rulers caused societal virtues (as peace) to be trampled upon. We adopted a chronological approach here and from our sources we concluded that elitism in the context of western education acquired is the root of conflict in local politics. Elitism as a concept needs to be carefully tailored to enhance sustainable development and lasting peace in our local communities.

DILEMMAS OF RE-NATIVIZATION OF INDIGENOUS LAW

The author in this study tests the applicability of basic categories of Leon Petrażycki’s (1865–1931) socio-psychological theory of law, pointing at ambiguity of the concept of ‘indigenous law’, ‘natives’ law’ and ‘customary law’. First, however, the right to one’s own law is followed through the history of colonization. It is essential for the plight of the indigenous people that already in 1537 Popes recognized that ‘original inhabitants’ had ‘rights’ and thus ‘legitimate claims’. If, on the one hand, there are ‘rights’ and ‘rightful claims’ then, on the other, there are duties that include not only the negative refraining from appropriation but also the positive duty to protect in exchange for the impairing the indigenous sovereignty. But whenever the nexus iuris is recognized, i.e. the link of correlative rights and duties, there is a law (Petrażycki) and ‘inherent – even if impaired, or as some say, abused – sovereignty of the indigenous people’ (Justice Marshall). The pluralist notion of ‘law’, the distinction between the ‘normative positive’ reference and the ‘normative intuition’ and the distinction between the ‘normative’ and the ‘factual’ should allow one to organize systematically the multiple issues that one encounters when approaching the area of ‘indigenous law’. From discussion of the official nonindigenous indigenous law exemplified by the federal Native American law of the United States the paper moves on to discuss the Navajo case of the official tribal law. It comes out that the native procedures and law are full of religious meaning so the ‘cultural’ sovereignty is much more fundamental and value-loaded than the secular philosophy of human rights incommensurable with the right to one’s own law. This is not considered when borrowing from native law into secular Western law (Greenland’s Criminal Code; mediation procedures in North America). The meaning of cultural sovereignty is the right to develop one’s law so that it fits one’s needs and aims. But the full success story is when the antithesis of the ‘indigenous’ and ‘dominant’ law is settled through the feedback from the former to the latter, like when the law – not only of a country but also on the global level – becomes syncretic and embraces deeper universalization of the human rights.

Revisiting Gender and Marriage: Runaway Wives, Native Law and Custom, and the Native Courts in Colonial Abeokuta, Southwestern Nigeria

This study focuses on women and colonial courts in Abeokuta, southwestern Nigeria, in the early decades of the twentieth century. It examines the effects of colonial intervention on women and marriage. Examining case volumes of the Ake, Abeokuta, Native Court from 1905 to 1957, the study demonstrates that unique circumstances of the twentieth century—colonial intervention and the establishment of the native courts—led to the increase of divorce rate accelerated by the phenomenon of wives leaving matrimonial homes, establishing new unions of their choice, and approaching the court to end earlier unions and legalize the new ones. The study argues that, despite the negative connotations that might be associated with wives leaving matrimonial homes and requesting divorce in colonial courts, these women made use of the new circumstances to redefine marriage, inserting modifications reflective of women’s choices and preferences, as evidenced through their claims collected from the court records.

“The Native Court Way”

Abstract This article examines surviving native court records from 1905–1957 in Abeokuta, Southwest Nigeria, to argue that what constituted marriage, marital rights, and sexual access to wives was changing readily in this period of socioeconomic and political change. In this period, Britain established the native court system, stressing African and British judges, to apply rigid ideas of native law and customs concerning marriage. Men and women—husbands, wives, lovers, fathers, uncles, aunties, brothers, sisters, and in-laws—approached the native courts to negotiate conflict over marriage, divorce, seduction, adultery, and child custody. Rather than administering rigid legal judgements of what constituted legitimate marriage, judgements rendered by these courts provided maneuverability, specifically for women to negotiate and contest marital status and relations.

Converging Empires: Citizens and Subjects in the North Pacific Borderlands, 1867–1945. By Andrea Geiger

Andrea Geiger’s study is upfront about its subjects: Japanese immigrants in North America, Aboriginal law, and Indigenous communities on the North Pacific Coast. It is a penetrating story of shifting histories, places of crossing and instability where Indigenous groups outlawed from legal rights in British Columbia might relocate over a political border into Alaska and be under American jurisdiction—or vice versa. Likewise, it is a story of the North Pacific in which Japan is largely defined by its northern island Hokkaido through the incorporation of that Ainu Moshir Indigenous territory into Japan only in the nineteenth century. In this world of expanding imperial borders, Japanese immigrants transit the Pacific to become British subjects in Canada while being denied naturalization in the United States, all the while living, working, and building families and communities at the very frontiers of multiple worlds. A generation of scholarship on immigrant Japanese in Hawai‘i and the mainland United States is well established; the North Pacific Coast, less so. The year 1867 is a key framing as the date that Canada becomes a national confederation and Alaska is acquired by the United States from Russia. As a legal scholar, Geiger underscores how new states define identities to include and exclude. Thus, the dilemma and choices of the Metlakatlans, regarded as “Indian” but not Indigenous to Alaska and immigrant but not “White.” Or, Frank Yasuda, a Japanese hailed as an Inuit “king” or “chief,” married to an Inuit woman Nevelo, yet never quite Indigenous and also denied possibility of citizenship as an immigrant (pp. 64, 85).

Tabula Banasitana Tekst – tłumaczenie – komentarz

The Roman Empire entered a period of rapid romanization of the Roman provinces in the 2nd century AD. This also took place, with varying intensity, in African provinces. An expression of this was the granting of Roman citizenship to the leaders of indigenous tribes. The document called Tabula Banasitana, an epigraphic find discovered in the 20th century at the site of the ancient civitas Banasa, documents the process of granting Roman law to the leaders of the Zegrenses tribe and their families. The Roman ius civile was granted to them with the preservation of the rights of their people and without exemptions from public burdens. The author analyzes three documents engraved as an inscription known as Tabula Banasitana, concerning the romanization of the province Mauretania Tingitana. The article describes the process of the gradual incorporation of the North-West African tribal leaders into the structures of the Roman province of Mauretania. Sometimes members of the local elites were granted the status of Roman citizen by the Roman authorities, even though they retained all privileges derived from native law. Through this balanced social policy, Rome was able to keep the peace in frontier areas of the Empire, which were threatened by conflicts with neighbors or, as in this case, nomadic tribes. This form of Roman citizenship was limited – the nature and extent of the restrictions depended on the relationship between the person receiving citizenship and the local community or the Empire’s fiscal interests (for example new citizens were not relieved of obligations like tributum or vectigal). Citizenship was usually granted viritim, but sometimes – as Tabula Bansitana shows – members of the newly minted citizen’s family (wife and children) also received the privilege.

Positivism and Pluralism in Canadian Aboriginal Law: Reading Caron v Alberta and the Marshall Trilogy

Positivism and Pluralism in Canadian Aboriginal Law: Reading Caron v Alberta and the Marshall Trilogy

Modern constitutionalism of Ukraine in the conditions of europeization of native law

The article states that Ukraine was and remains a component of the single European democratic space. Taking into account the sad lessons of the past, we will follow the path of broad public dialogue and legitimate decisions. The further constitutional transit of Ukraine will be connected only with strengthening of representative democracy and strengthening of local selfgovernment, guarantees of protection of human rights and freedoms. Thus, today, Ukraine is experiencing an era of global and rapid changes that are transforming the foundations of social life and the usual paradigms of constitutional thinking (we are not just talking about one or another change, but about such transformational processes that relate precisely to the level of the essential characteristics of the society that is passing through the stage constitutional transit).It is indicated that in the domestic science of constitutional law, the scientific-theoretical analysis of the paradigm of constitutionalism in the conditions of permanent constitutional transit, as a rule, extends only to elements of the contentof constitutionalism, individual institutional components of its system.Particular features of the constitutional transit in Ukraine and, as a consequence, the implementation of a new paradigm of constitutionalism in the conditions of the Europeanization of national law are highlighted. The author examines certain aspects of the terminological issues of constitutional transit as a condition for the Europeanization of domestic law. As a result of the research, the category «constitutional transit» as a condition of the Europeanization of modern Ukrainian law should be considered as a state of transition of the constitutionalism of the Ukrainian state, from one state to another, caused by theneed for convergence of national constitutional legislation with the law of the European Union. It is noted that such a state of transition, its passage is not a linear process, but can have a multi-vector nature of development. That is, constitutional transit can cover all types of transitional states of constitutionalism from the point of view of a significant change in their character: not only from authoritarianism to democracy, but, on the contrary, in accordance with national sociocultural and political features, values, of course, taking into account advanced scientific world achievements.

Factors Affecting Planning Laws and Regulations Compliance in the Capital Cities in South-South Geopolitical Region, Nigeria

In many cities around the globe, humans have shown disdain and neglect to physical planning laws. The consequence is the social and environmental challenges that residents experience therein. This study examines the factors that affect planning laws compliance in the capital cities in the south-south geopolitical region, of Nigeria. The cross-sectional research approach was used. Data for the study were sourced from primary and secondary sources. Copies of the questionnaire were administered to all the 522 practicing town planners in the study area who constituted the study population but only 414 of them responded. Descriptive statistics was deployed in analyzing the data. The study found that corruption ranks first with a mean score of 3.77 followed by customs and traditions which score 3.63. It is also revealed by the study that political interference, weak enforcement of planning laws, and awareness of existing planning laws with mean scores of 3.42, and 3.25 respectively are also constraints to compliance with planning laws. The study, therefore, recommends that agencies of government saddled with the responsibility of enforcing planning regulations and laws should strictly enforce the extant planning laws so that residents will be forced to comply with the planning laws. It is also recommended that urban planners should not allow native laws and customs to interfere with urban planning regulations.

Sovereignty in Alexis Wright’s Carpentaria (2006)

In a 2013 interview, Alexis Wright explained the importance for Indigenous Australians of maintaining what she called a “sovereignty of the mind, even if we haven’t got sovereignty of the country or the land.” She went on to recount the story of an Indigenous leader who advised a meeting of Aboriginal people “if you think you are a sovereign people, act like it.” In her 2006 novel Carpentaria, Wright demonstrates how these two strands of Indigenous sovereignty are evident and practiced in contemporary Australia. Key Indigenous characters in the novel are revealed to both “think” sovereign and to “act like it.” Indigenous sovereignty, which has never been ceded but is still denied by Australian law, is performed on the land, in custom, in story and in song, in a multitude of ways. Wright thereby contributes to an assertion of sovereign, Indigenous epistemologies and ontologies in Australia. Significantly, cultural elders in Carpentaria are shown to take for granted their sovereign custodianship of Country regardless of who technically owns land within the colonised nation-space of the novel, thus revealing the rule of Aboriginal Law in Indigenous Australia over and against the assumed sovereign rule of the nation-state.

Recent Legislative and Regulatory Developments of Interest to Energy Lawyers

This article provides an overview of recent regulatory and legislative developments of interest to Canadian energy lawyers from April 2021 to March 2022. It includes discussions of recent regulatory decisions and related judicial decisions, as well as changes to regulatory and legislative regimes impacting energy law. This article also discusses and comments on a number of ongoing regulatory and legislative developments to watch in the coming year. Topics discussed include the opportunities and challenges posed by decarbonization efforts, Aboriginal law, standard of review, and other natural resource and power developments.

Undignified Jurispathy: Muslim Family Law at Ghanaian Courts

Ghana has inherited colonial legislation that recognizes and regulates the consequences of Muslim family law (MFL). However, in practice, courts almost never recognize the normative existence of MFL and systematically dismiss the cases on procedural grounds without discussing their merits. What explains the judiciary’s attitudes toward Islamic law? Why do Ghanaian courts refuse to engage with MFL in substantive terms? How does this judicial policy affect Ghana’s pluri-legal system and its multireligious democracy? Drawing on Robert Cover’s insights and concepts from “Nomos and Narrative,” the present article suggests that Ghanaian courts engage in “undignified” jurispathy against Islamic law. Having inherited the colonial narrative that Islamic law is not a native law of the land, the judiciary destroys the legal meanings built around Islamic law without discussing what is at stake. This perpetuates normative tensions between the state and Muslim groups, undermines the rule of law, and erodes public trust in democratic institutions. Utilizing the theoretical and empirical insights drawn from the Ghanaian case, the article urges scholars to expand the scope of their inquiries to include instances of undignified jurispathy to better understand state-religion relations and constitutional debates in pluri-legal societies.

THE LANDS WERE NOT EMPTY

THE LANDS WERE NOT EMPTY

The Paradox of Political Questions in Canadian Aboriginal Law: Why Dickson v Vuntut Gwitchin First Nation Requires Reconsideration of the Political Questions Doctrine in Canada

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Practising an Anti-Colonial Citizenship Education Through a Blended Learning Course on Aboriginal Law

In the wake of the Truth and Reconciliation Commission, Indigenous peoples and non-Indigenous Canadians find themselves aspiring towards transitional justice. Yet they do so with a democracy in need of some repair. One prime site for fostering democratic renewal – the post-secondary sector – is under pressure from corporatization and political forces working to narrow freedom of expression and academic freedom. This sector, however, continues to offer some hope through liberal, anti-oppressive, anti-colonial, and Indigenous pedagogies that promote a public ethical responsibility beyond the self. Yet encouraging these pedagogies is not straightforward, including for those teaching courses such as Aboriginal law in a blended learning format. In the context of the spread of online education and the dearth of scholarship on anti-oppressive pedagogies therein, on the one hand, and the reluctance of legal educators to adopt anti-colonial pedagogies, on the other, there is an urgency to build knowledge about how to develop citizenship education. Anti-colonial citizenship education includes content about the establishment of settler society and the status of Indigenous nations. Furthermore, it is operationalized through active learning practices. Based on Indigenous and non-Indigenous pedagogical theories, these practices are argued to support a tripartite “intellectual framework” comprised of critical thinking, collaboration, and self-directed learning. Through a case study of an undergraduate course, the argument is made for the efficacy of a number of active learning practices to produce this intellectual framework. It is suggested that, in addition to better learning outcomes, an anti-colonial citizenship education is materialized insofar as the intellectual framework inspires a sensibility for complexity and independent thinking, “civic culture,” and autonomous inquiry and openness to alternative epistemologies.

Mammals of Cajuru State Forest and surroundings: a neglected but important Protected Area for the Cerrado conservation in the São Paulo state, Brazil

Abstract: The Cerrado has been severely impacted by anthropogenic disturbances, with a tiny proportion of its original extent remaining in its southern portions. In the state of São Paulo, only 7% of this vegetation remains and relatively little is known about the biodiversity of these fragments. To fill this knowledge gap, we inventoried medium and large-sized terrestrial mammals of a neglected region, including a sustainable use protected area, Cajuru State Forest (CSF), adjacent native vegetation remnants protected by the Native Vegetation Protection Law and owned by a paper and cellulose company (Dois Córregos Farm; DCF), and their surroundings. We recorded 20 native mammal species, five of which are endangered with extinction, including the giant anteater, puma, and maned wolf. We found no significant differences in species richness between CSF and DCF but we found higher estimated species richness for the surrounding areas. Besides encompassing a larger and more heterogeneous area, the surrounding area still has a relatively high proportion (>30%) of native vegetation, providing habitat and resources for many species. The estimated mammal species richness for the entire study area was similar to that found in the largest protected area of the Cerrado in São Paulo State, the Jataí Ecological Station and its surroundings. We conclude that our study area still harbors a relatively rich community of large mammals and is important for the conservation of endangered species. This finding is particularly timing since the current State administration is considering to transfer the economic exploitation of CSF to the private sector. We therefore endorse an existing proposal to uplist this protected area, which still lacks a management plan, to a more restricted management category. Besides actions regarding this governmental PA, we argue that it is also important to involve the private sector in a conservation plan for the region.

Two Peas in a Pod: Constructing Gender Within the Feminist Discourse

Over the years, the concept of feminism has witnessed an expansion. Set against this background, this paper critically explores feminism in Africa, especially Nigeria. In addition, it examines the distinction between the western perception of feminism and African perspectives on feminism by highlighting the marked differences between the contexts. The paper argues that the progress of feminism in Nigeria is piecemeal because of cultural barriers and strict adherence to native laws and customs. Furthermore, the paper appraises the proliferation of different thoughts on feminism, findings reveal that the concept of feminism has been overstretched beyond its meaning. This study uses a qualitative research method to investigate the development of feminism.

Succession Rights under Esan Customary Law in Nigeria: The Problems of Applicability of Esan Customs and the Challenges of Fundamental Rights

Esan Native Law and Customs like any other customary laws in Nigeria is recognised as law that regulated the customary aspect of the people subject to its jurisdiction. One of such aspect, is succession and inheritance rights. Although, Esan customary law has from time immemorial made adequate and sufficient rules that regulate and govern succession rights, recently these rules have come under vigorous legal scrutiny concerning their applicability vis-à-vis the enforcement of fundamental rights of citizens that are constitutionally guaranteed. This article therefore seeks to examine critically the application of Esan Native Law and Customs regulating succession and inheritance rights in general, identify its deficiencies and advocate for sustainable ways to harmonise them by making them to conform with the current state of the law dealing with the enforcement of fundamental rights of citizens. This approach has become imperative in other to prevent certain aspect of Esan Native law and customs dealing with succession rights from being adjudged repugnant to natural justice equity and good conscience. Keywords: Succession Rights, Esan Customary Law, and Fundamental Rights DOI: 10.7176/JLPG/117-09 Publication date: January 31 st 2022

The Laws and Customs of the Yorùbá People by E.A. Ajisafe Moore (Undated, M. A. Ola Fola Bookshops, Abeokuta, Nigeria. 87 pages. Price $21.95 on Amazon.com)

The Laws and Customs of the Yorùbá People chronicles the prevalent customary practices and native laws of the Yorùbá people who have their ancestral home in South Western Nigeria and descendants in several cities around the world by virtue of forced and voluntary migrations. The book draws from extensive research – including painstaking collection of materials from several sub-groupings within the Yorùbá ethnic group. Ajisafe Moore acknowledges in the preface that the laws and customs of the Yorùbá people vary within the different Yorùbá sub-groupings. The book however sought to address customs and laws that are generally applicable across the entire Yorùbá ethnic group. It is not clear when The Laws and Customs of the Yoruba People (henceforth Laws and Customs) was actually published. The author’s reference in the preface to 1906 as the time when he commenced his research efforts for the book provides a first pointer to possible publication of the work in early twentieth century. Other sources such as the LitCaf Encyclopedia list laws and customs as being published in 1924, eight years after the publication of the first edition of Ajisafe Moore’s self-published work, History of Abeokuta in 1916 (reissued in 1948 and 1964 and now part of the United Kingdom’s Royal Collection Trust). James S. Coleman’s Nigeria: Background to Nationalism (1958) cites Laws and Customs as one of the “tribal and national histories of major ethnic groups” published in English in 1946 (Coleman, 1958: 327). Kash and Klare Bookshop, Lagos, Nigeria was listed as the publisher. Tis latter 320 Akinloye Ojo and Kingsley Opia-Enwemuche publication date of 1946 meant that Laws and Customs was a posthumous publication for Ajisafe Moore who passed away in 1940.