CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background to the Study

Customary law refers to custom, local usage, and belief of a particular community considered as binding on the people.[1] Customary law as per the Evidence Ordinance can be defined as “a rule which, in a particular district, has, from long usage, obtained the force of law”.[2] Most, if not all, of these customs and usages are said to have been developed from time immemorial and handed over to the people from generation to generation. Although this perception of customary law as emanating from time immemorial has been challenged, nonetheless, it is generally accepted that customary rules existed prior to colonialism.[3] Customs and usages reflect the habit and social attitudes of the time. Generally, the concept of customary law is based on custom. The term “custom” does not imply that a single uniform set of rules govern all Cameroonians. Rather, Cameroonian customary law has been looked upon as consisting of countless legal systems, each developed by and applicable to a particular ethnic group. In other words, a system of ethnic identification underlies customary law: customary law has a jurisdiction limited to particular cultural boundaries and it is the possession and right of a restricted ethnic group.[4] Thus, each of the over 250 ethnic groups recognized in Cameroon has its own customary rules. Despite the fragmentation of customary rules there are also significant similarities in the rules applicable by the various ethnic groups.

There is the contention that the processes employed to determine the notoriety of customary law in state courts in some common law jurisdictions, and perhaps beyond, have led to the fragmentation of the substance of customary law, and have thus created a new version whose origins are divorced from social practices[5] Customary law is a system of rules developed in traditional societies of sub-Saharan Africa prior to Western penetration, as a mechanism to regulate inter-personal relations. As informal rules that developed within the primitive agrarian economy, their validity rests on the assent of the people. This is a fundamental characteristic of customary law that sets it off from other legislative sources. Within most customary law rules are unacceptable customary practices. Unacceptable or harmful customary practices have not been attributed a widely accepted definition but is often attributed to the discriminatory nature of customary law rules, the treatment of women as part of a man’s property in most communities, the exclusion of women from inheritance, male education as oppose to female education, forceful and early marriages, domestic violence, rape and other barbaric practices carried out in the society to which the effects are mostly felt by women..

Prior to colonization, customary law rules were applicable in indigenous communities throughout the territory of Cameroon, under the supervision of traditional leaders. The traditional leaders acted as judges under their various ethnic groups. Unacceptable customary practices existed within the pre-colonial communities of Anglophone Cameroon; the most common which were female circumcision, breast ironing, early marriages and domestic violence and gender inequality.[6] The man in the pre-colonial African society was like a demi-god and was to be worshiped by women. The woman on the other hand was forced into early marriage, she was considered as part of the husband’s property, she could not inherit nor own property. Her main function was to bare children, ensure that the entire family feeds properly and lastly satisfy her husband at his wish.

Talking of unacceptable customary practices in Cameroon, it was not limited just to discriminatory practices against women. There were other practices carried out which are repugnant to natural justice, equity and good conscience. Such practices where the application of the saas wood poisoning as a means of proving the innocence of an accused[7], there was torture for both men and women, force labour and sometimes man slaughtering. It’s important to note that the most dominant area of these unacceptable customary practices in Cameroon and Africa at large is the discrimatory nature of customary law against women. It has attracted a lot of criticisms and also measures put in place to curb it both at the national and international levels.[8]

Cameroon was annexed by Germany in 1884, immediately they introduced their own system of justice. They did not disregard the traditional system of administration they met on the ground and African customary laws functioned side by side with European law. Maintaining the customary law system simple means that Unacceptable customary practices existed within the German colonial era in Cameron. The departure of the Germans in 1916 after their ousting from the territory by the British and French and subsequent division of the territory by the two victorious powers did not reduce the rate at which unacceptable customary practices was practiced in Anglophone Cameroonian communities. The fact that Britain used indirect rule as a means of administration gave more room for these unacceptable customary practices to flourish in the Southern part of Cameroon.

It was only after independence and reunification that a lot of attention was paid to the eradication of unacceptable customary practices in Cameroon. The federal system that came into existence in 1961 was based on a two-state federation consisting of West Cameroon, made up of the former Southern Cameroons, and East Cameroon, made up of the former French Cameroun. Until the country became the “United Republic of Cameroon” in 1972 when a unitary system of government was introduced, the two federated states had each retained their inherited colonial system of justice although this was under the control of a Federal Ministry of Justice.[9] The 1967 Penal Code came into play which remains the only reasonably successful legislation that reflects the country’s dual legal culture, although it was substantially based on the French Penal Code.

 Based on the unitary Constitution of 1972, Ordinance no.72/4 of August 26, 1972, which has since been amended several times, created a civilian- style unitary system of Courts to replace the different court structures that had operated in the two states, among this court was customary court. Nevertheless, article 68 of the Constitution provided for the continuous application of the different laws that were in force in the two legal districts provided these were not inconsistent with any new laws[10]. As a result of this, despite the unified court structure, the two pre-independence legal systems continued to operate. “The Cameroonian legal system can therefore be described as bi-jurial in which French law applies in the eight French-speaking regions and English law substantially applies in the two English-speaking regions[11]. Also Article 1(2) of the 1996 Constitution[12] mandates that the state “recognize and protect traditional values that conform to democratic principles, human rights and the law,” a proviso that establishes the yardstick for the admissibility of ‘traditional values’ in the state legal system.

Customary law is applicable in Cameroon today in Cameroon by virtue of Section 27(1) of the SCHL, 1955 which stipulates that “The High Court shall observe, and enforce the observance of every native law and custom which is not repugnant to natural justice, equity and good conscience, nor incompatible with any law for the time being in force, and nothing in this law shall deprive any person of the benefit of any such native law or custom.” Even the provisions of section 2 of the Evidence Act alludes to the role of courts in enforcing customs. Again section 18(l)(a) of the Customary Courts Ordinance states that customary law shall be ‘The native law and custom prevailing in the area of jurisdiction of the court so far as it is not repugnant to natural justice, equity and good conscience, nor incompatible either directly or by natural implication with any written law for the time being in force’.[13]

Even though these laws are against unacceptable customary practices in Cameroon, customary courts are said to uphold the respect of unacceptable customary law practices in local communities in Anglophone Cameroon in Anglophone Cameroon. Activities such as the treatment of women as properties, the exclusion of women from inheritance, male education as oppose to female education, forceful and early marriages, domestic violence, rape etc.

1.2 Statement of the problem

Customary law is one of the main sources of law in Cameroon. Customary courts play a significant role in the administration of justice in the local communities in Anglophone Cameroon.  Some of the customary laws applied by customary courts are repugnant to natural justice, equity and good conscience. Measures have been put in place to prohibit the application of these unacceptable customary practices in the local communities of Anglophone Cameroon. Despite these measures customary courts in local communities of Anglophone Cameroon continue to uphold unacceptable customary law practices. The reason may be because of social constrict within customary communities.

1.3 Research Questions

Here, we have both the main research question and the specific research question

1.3.1 Main Research Question

• Do customary courts uphold the respect of unacceptable customary law practices in local communities in Anglophone Cameroon?

1.3.2 Specific Research Questions

• How do customary courts uphold and encourage unacceptable customary practices in local communities of Anglophone Cameroon?
• What are the measures adopted in view of eradicating unacceptable customary practices in Anglophone Cameroon?
• What are the limits to the efforts aimed at ending unacceptable customary practices in Anglophone Cameroon?

1.4 Hypothesis

This study assumes that there is continuous dominance of unacceptable customary law practices in local communities of Anglophone Cameroon

1.5 Research objectives

Same as research question, we have both the main research objective and the specific research objective.

1.5.1 Main research objective    

• To examine customary courts and the dominance of unacceptable customary practices in local communities of Anglophone Cameroon

1.5.2 Specific Research Objectives

• To analyse how customary courts uphold and encourage unacceptable customary practices in local communities of Anglophone Cameroon
• To examine the measures adopted in view of eradicating unacceptable customary practices in Anglophone Cameroon
• To examine the limits to the efforts aimed at ending unacceptable customary practices in Anglophone Cameroon

[1] Mikano E. Kiye The Repugnancy and Incompatibility Tests and Customary Law in Anglophone Cameroon. 2015 p. 85

[2] Section 2 of the Evidence Ordinance, Cap. 62 of the Laws of the Federation of Nigeria 1958

[3]1981; Chanock 1995; Nyamu 2000, pp. 405-06.  It has been argued that customary law is of recent development and a product of the colonial state. See Snyder . The dominant view in African legal theory suggests that customary law existed prior to the establishment of the colonial state in sub-Saharan Africa. See Anyangwe 1987, pp. 139-40; Ngwafor 1993, pp. 7-9.

[4] MIKANO E. KIYE The Repugnancy and Incompatibility Tests and Customary Law in Anglophone Cameroon. 2015 p. 86

[5] Emmanuel Mikano E. Kiye The Repugnancy and Incompatibility Tests and Customary Law in Anglophone Cameroon. 2015 p. 86

[6] Joseph N. Tïmngah Customary Law, Women’s Rights and Traditional Courts in Cameroon 1996.p. 349

[7] Mikano Emmanuel kiye conflict between customary law and human rights in cameroon: the role of the courts in fostering an equitably gendered society. 2015.p45

[8] Convention On The Elimination Of All Forms Of Discrimination Against Women 1997

[9] Prof. charles manga fombad “researching on cameroonian law” which was published in June/July 2007 . pg 10  

[10] Article 68 of   Law No 96/06 of 18^th January 1996 amending the 1972 constitution of the Republic of Cameroon.

[11] Bi-jurial means two legal system existed in Cameroon that’s the common law system existing in the Anglophone regions of Cameroon  and the civil law in the Francophone regions of Cameroon

[12] Law No. 96-6 of January 18, 1996, to amend the Constitution of June 2, 1972.

[13] section 18(l)(a) of the Customary Courts Ordinance Cap. 142 of the Laws of the Federation of Nigeria 1948,