ABSTRACT

Customary marriage under customary law in Cameroon is a significant aspect of the country’s sociocultural landscape, reflecting the traditions and practices of various ethnic groups. This study aims to provide a comprehensive analysis of the concept, recognition, and implications of customary marriage within the Cameroonian legal framework. It emphasizes the coexistence of customary marriage with civil and religious marriages, highlighting the unique characteristics that distinguish it from other forms of marriage.

The research begins by exploring the fundamental elements of customary marriage, which often includes a series of rites and ceremonies that differ across regions and communities. Key components such as bride price, family negotiations, and traditional rituals are examined to understand their importance in establishing the legitimacy of a marriage. Bride price, for instance, serves not only as a symbolic gesture but also as a means of securing familial ties and societal approval. The study notes that these practices play a crucial role in reinforcing community values and social cohesion.

Despite the rich cultural significance of customary marriage, the study identifies challenges arising from the tension between customary practices and statutory laws. The Cameroonian legal system recognizes customary marriage under specific conditions; however, conflicts frequently emerge regarding issues such as polygamy, consent, and the rights of women. Many customary practices, particularly those that involve the subjugation of women, clash with constitutional guarantees of equality and human rights. This discord necessitates a critical examination of how the judiciary addresses such conflicts and the effectiveness of legal remedies available to women and children within customary marriages.

Moreover, the research highlights the impact of modernization and globalization on customary marriage practices. As societal norms evolve, there is a growing movement towards the reform of traditional practices to align them with contemporary values. This study assesses the efforts of various stakeholders, including non-governmental organizations and women’s rights activists, in advocating for the protection and empowerment of women in customary marriages. It emphasizes the importance of legal literacy and awareness among women regarding their rights, enabling them to navigate the complexities of both customary and statutory laws.

In conclusion, while customary marriage remains an integral part of Cameroonian society, there is a pressing need for ongoing legal reforms that recognize and protect the rights of individuals within these unions. The study calls for a collaborative approach involving community leaders, legal practitioners, and policymakers to develop frameworks that honor cultural traditions while ensuring compliance with national and international human rights standards. Ultimately, the successful integration of customary marriage into the broader legal context will enhance the protection of rights and promote social justice in Cameroon.

Keywords: Customary marriage, Cameroon, bride price, traditional rites, polygamy, legal recognition, women’s rights, human rights.

CHAPTER ONE

GENERAL INTRODUCTION

• BACKGROUND TO THE STUDY

Introduction Customary marriage is marriage celebrated according to native laws and customs. Horn and Rensburgi define customary marriage as “as a contract or agreement between two families which includes the payment of a ‘bride-price’ (lobolo), permits polygamy and obligates all parties to perform specific duties”. As far as customary marriages are concerned, there is no choice of polygamy or monogamy. Customary marriages are de jure polygamous irrespective of the fact that the husband does not exercise his right to take a second wife.[1] The polygamous status of customary marriage is reflected in the definition provided by MR. Justice Nganjie in the case of Motanga v. Motanga.[2] He stated: “To my mind, a marriage as known to the Law of this country is the union between a man and one or more women to the exclusion of other men.”[3] This definition finds justification in the Civil Status Registration Ordinance No. 81/02 of 29th June 1981 (here after referred to as CSRO) of Cameroon (as amended). The statute recognizes polygamy. Going by section 49(new) of the CSRO, the spouses to be have to specify the type of marriage in the marriage certificate; the options being polygamy or monogamy. Actually polygamy means the taking of more than one wife by a man (Polygyny) and the taking of more than one husband by a woman (polyandry).Justice Nganjie’s definition actually refers to polygyny, which is the form of polygamy practiced in Cameroon. It is worth noting that polygamy is a feature of customary marriage. It does not mean all polygamous marriages are customary marriages. Under the CSRO, civil (statutory) marriage can either be polygamous or monogamous. Section 49(New) sub-5 of the CSRO is illustrative. It is to the effect that the parties have to mention the type of marriage in the marriage certificate, whether polygamy or monogamy. So because parties choose polygamy, does not imply that the marriage is customary marriage. In Mburu Stephen v. Mbiekwi Grace Tabah, v the Court of Appeal of the North West Region noted that a marriage celebrated by a Civil Status Registrar, ‘whether it is monogamous or polygamous, is not a customary marriage’. This reasoning finds justification in scholarly works. Acha-Morfawvi notes.

While all customary marriages are polygamous, all polygamous marriages should not necessarily be customary. The Customary Courts only ought to have jurisdiction over those polygamous marriages celebrated in accordance with native law and custom.

The above assertion is in accordance with the CSRO that allows the parties to choose between polygamy or monogamy in a civil (statutory) marriage. The celebration of customary marriages is often proven by public celebration. It usually involves the families of the groom and bride consenting to the union. The family of the bride receives the groom and his family and traditional rites are conducted. The traditional rites are obviously according to the bride’s native laws. For instance, if the custom of the bride’s family requires two big pigs as a necessary item before the family consents, then the groom’s family has to comply with this requirement. Upon being satisfied that the list of items requested by the bride’s family has been presented, consent is given and the marriage is concluded. The consent of the girl’s parents is a vital requirement in the conclusion of customary marriages. In the Nigerian case of Adisatu Awero v. Olajida Ishola, vii the court held as invalid, customary marriage without the parent’s consent. The same reasoning was arrived at in the case of Dura Aonde v. Yomekaa Agowhere the High court of Benue State of Nigeria stated that “no marriage is valid under the  customary law unless the father or the person acting loco parentis consents.”[4] Custom is a source of law in Cameroon. Even though it does not have explicit constitutional foundation,[5] statutes have not failed to give value to it. It is worth noting that unlike other sources of law such as legislation which enjoy automatic enforcement in the Courts, customary law[6] is dependent on some requirements or better still validity tests for its enforceability. In other words, for any custom to be recognized and enforceable in the Courts in Cameroon, it must survive the validity tests. Going by the validity tests, for customary law to be valid and consequently enforceable, it must meet the statutory requirements laid down for its applicability.[7] In Anglophone Cameroon, for custom to be considered law, it must satisfy what Mikano[8] termed the “Duality Tests”. The duality test is a combination of the requirement of repugnancy and incompatibility stipulated in Section 27(1) of the Southern Cameroon High Court Law 1955. It provides:

The High Court shall observe and enforce the observance of every native law and custom is not repugnant to natural justice, equity and good conscience, not incompatible either directly or by implication with any law for the time being in force, and nothing in this Act shall deprive any person of the benefit of any such native law and custom.

Connecting the above with customary marriage, it goes without saying that the ‘duality tests’ also applies to customary marriages. This implies that any customary marriage which is repugnant to natural justice, equity and good conscience or incompatible with any Cameroonian legislation is invalid.

1.2   STATEMENT OF THE PROBLEM

Customary marriage in Cameroon is widely practiced and recognized under the law, especially under Section 27 of the Civil Status Registration Ordinance of 1981, which acknowledges marriages celebrated according to custom. However, the procedure for contracting a customary marriage is not clearly and uniformly regulated across the country. Cameroon is made up of many ethnic groups, each with its own traditions and marriage rites. As a result, the steps required for a valid customary marriage such as payment of bride price, family consent, traditional ceremonies, and registration differ from one community to another.

This lack of uniformity creates legal uncertainty. Many couples celebrate traditional marriage without registering it before a civil status officer, which later causes problems in proving the existence of the marriage. Disputes often arise during divorce, inheritance, child custody, or property sharing, especially where there is no written proof of the marriage. In addition, some customary practices may conflict with statutory law, particularly in areas such as consent, age of marriage, and polygamy.Another major problem is the low level of public awareness about the legal requirement to register customary marriages. Many people believe that performance of traditional rites alone is sufficient, without understanding the legal consequences of non-registration.Therefore, the main problem is the gap between traditional marriage practices and the formal legal framework in Cameroon, which leads to uncertainty, disputes, and difficulties in protecting the rights of spouses and children.

1.3 Research Questions

1.3.1 Main Research Question

• What is the procedure for contracting a valid customary marriage under Cameroonian law?

1.3.2 Specific Research Questions

• What are the essential elements  and procedure required for a valid customary marriage in Cameroon?
• What challenges arise from non-registration or improper celebration of customary marriages?
• What policy recommendations can be made?

[1] Sowa v. Sowa (1961) 1 All ER 687 C.A).

[2] Suit N0.HCB/2/76 –Unreported.

[3] This definition is contrary to that given by Lord Penzance James Wilde in the case of Hyde v. Hyde & Woodmansee (1866) L.R. IP &D 130. He describes marriage thus: “I conceive that marriage, as understood in Christendom, may be defined as the voluntary union for life of one man and one woman to the exclusion of all others.” This is the definition of marriage in Christendom.

[4] In the Gumede case, the Court opined that in our pre-colonial past, customary marriage was always a bond between families and not individual spouses. Furthermore, the basic formalities which lead to a customary marriage are:(a) The two parties man and woman have agreed to marry each other; (b) A letter is sent to the woman’s family and/or emissaries are sent by the man’s family to the woman’s family to indicate interest in the possible marriage; (c) A date is set for a meeting of the parties’ relatives will be convened where lobolo is negotiated and the negotiated lobolo or part thereof is handed over to the woman’s family and the two families will then agree on the formalities;(d) However, in the Zulu culture there are other pre-marital ceremonies like Umabo and Umembeso that takes place before the actual wedding;(e) After those pre-marital ceremonies, a date for the wedding is set on which the woman will then be handed over to the man’s family which handing over may include but not necessarily be accompanied by celebration.

[5] Mikano observes that customary law is not explicitly recognized in the Constitution of Cameroon. He notes: “the closest provision to an unambiguous endorsement of customary law is article 1(2) which authorises the State:„… [to] recognize and protect traditional values that conform to democratic principles, human rights and the law….‟. E., Mikano, “Advocacy for Customary Justice Reform in Cameroon: What is to be Done With Customary Law?”, (2021) Vol.18(3) LWATI: A Journal of Contemporary Research, p.100. Customary law has constitutional foundation in other jurisdictions. Ethiopia Constitution recognizes customary marriages and allows customary law to be applied in adjudication of disputes relating to personal and family law. Constitution of the Federal Democratic Republic of Ethiopia 1995 art 34(4),(5).

[6] Black’s Law Dictionary defines customary law as “customs that are accepted as legal requirements or obligatory rules of conduct, practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they are law

[7] The requirements are: The rule must not be repugnant to natural justice, equity and good conscience; the rule must not be incompatible either directly or by implication with any law for the time being in force; the rule must not be contrary to public policy.

[8] E., Mikano, “The Repugnancy and Incompatibility Tests and Customary Law in Anglophone Cameroon” (2015) Vol.15, Issue 2African Studies Quarterly,p.86.