The history of Nigeria is heavily intertwined with British colonization. Ambiguity arises regarding the emergence of this imperialism, in the mid-1900s, and the end of its reign as the dominant authority in Nigeria, in 1960. Lugard’s amalgamation of Lagos and the Northern and Southern Protectorates led to Nigeria as we know it now, a British creation. British imperialism asserted imperial power through law. European law was illustrated as a gift of legal stability and legal coherence which juxtaposed the natives’ formless oral laws that preceded colonial presence and governance in Nigeria. Eurocentric rule of law ‘lays down the fundamental requirement for law’ in order to centralize the Nigerian legal system rather than it being more pluralistic, with religion near equal divided and ethnic groups are close to 300 in amount. The Nigerian legal system shows the multiplicity of law as it utilizes inherited English (common) law, Islamic law and customary law whilst also borrowing the three-tier federal government system from the United States. Although, it could just be ‘the complex interplay between common law, statutes and customary law’ which followed as a result of the colonial modification of customary law. The impact of European colonization on the Nigerian legal system is shown through the methodological rigidification of customary law and the post-colonial importance of Islamic law.
Prior to colonialism there was ‘no organization of courts in the modern sense’. Nigeria’s court hierarchy consisted of various chiefs and emirs presiding over cases brought to the family, chief, judicial council of Ibos and Juju courts. The Nigerian legal system consisted of Islamic law and customary law; Islamic law was legally prominent in northern states whilst ethnic customary laws were mainly present in the southern states.
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The integration of colonial law into the Nigerian legal system was a gradual process where in ‘the glaring differences between Islamic law and customary law’ were ignored and Islamic law was categorized under the umbrella of customary law. Islamic law being inflexible and written compared to the oral basis of customary led to needless complications. Despite this, ‘colonial courts were expected to enforce a blend of English common law principles, colonial statue law, and local African customary law’, asserting their role at the head of the court hierarchy. The integral changes in the Nigerian legal system were brought about by Lugard’s indirect rule. Lugard reformed the traditional administration into a more progressively modernized administration that represented the British system whilst removing customary and Islamic laws that were repugnant to ‘natural justice, equity and good conscience’. Indirect rule revolutionized British colonialism, when combined with law, which was ‘stronger in many ways than a Maxim gun’ the imperial project had solidified itself in generational power which outlived the disbandment of colonial Nigeria and implicitly influences the Nigerian legal system as it stands today.
English common law is still valid in Nigeria today and has become integral in the system. Although, English decisions are no longer legally binding in Nigerian court, the statute system is still influential on judicial matters. Nigeria has sought the legal stability that was dismantled throughout colonization, the state has been in ‘search of justice in a jurisprudence which is supposed to be indigenous to its peoples’. Nigeria adopts British secularism in ‘not adopting any religion as state religion’. Nigeria is suffering from a legal identity crisis where colonialism has left the state so far gone that their own customary law is forgotten as they wear their white masks. This secularism contrasts the state’s pluralistic groundings and highlights Lugard’s removal of pre-colonial customs. Perhaps, the adoption of British law served as a legitimacy generating legal transplant for Nigeria as they prepared for self-rule. Since independence Nigeria has sought to conform to a universal law that achieves easier transnational business and legal structure. This legal harmonization involves precursors and products of Imperialism, with the dominant state influencing the docile state in a new age legal ‘price leadership’ of sorts. Therefore, British colonization has reworked the legal system of Nigeria to act as a ‘proxy’ for domination, under the guise of bringing lawless states into the new legal age. To this day Nigeria’s legal system suffers from Lugard’s reforms and faces deep rooted structural instability.
Prior to Lugard’s amalgamation of individual states, Nigeria was ethnically diverse and thus the umbrella term of customary law was ambiguous. The multiplicity of customary law meant that there was no ‘single customary authority, but several; each of these defined in custom in its own domain’. Islamic law and customary law made up the Nigerian legal system. Customary law was ethnic and non-Muslim personal law due to Islamic Sharia law being its own separate legal entity. The separate states and ethnic groups that followed customary law also followed its unwritten and oral nature making it difficult to identify its structure. Therefore, the customary law of Nigeria was flexible and were able to ‘adapt to social and economic changes without losing its character’. Consequently, colonial courts had difficulty in determining ethnic Customary law and how it could be integrated into the colonial legal system. With Yoruba, Hausa and Igbo as its main ethnic groups Nigeria was split in different legal system. Yoruba ‘practiced a monarchical system of government which was centralized’, whereas Igbo ‘consisted of largely autonomous clans without any centralized political authority’. Nigerian customary law was adhered to because of ‘oath swearing, an integral part’ of the law, this provided a revered aspect of the system despite it being unwritten.
If customary law was the ‘language of tradition, of authenticity’ then civil law ‘spoke the language of rights’, such juxtaposing legal qualities amidst each other meant that the stability and coherence of Nigerian law became unclear. However, the colonial powers rigidified and removed the fluidity of customary law by applying it as ‘inferior to the common law of England’. Lugard’s indirect rule meant that colonial courts used the insight of native advisors to interpret pre-existing customary law, these ‘local alkalis, were an integral and predominant part of the native legal system’. With Nigeria having various customary authority, there was not a single dominant legislative power that could define the characteristics of customary law. Consequently, only one of the ethnic group’s perception and belief of customary law was adhered to, it being ‘genuine’, and ‘the rest were officially silenced’. However, this practice only carried out until colonial courts had built up enough case law to use legal precedent in future cases. As such customary law had now become part of English common law, its defining fluidity and oral nature was dissolved.
As colonial authorities governed Nigeria, they abrogated many customs that were seen to be repugnant to the foundations of law itself. The doctrine of repugnancy tested the barbaric customs against cohesive and legally sound English law. The ‘transformation of a barbarous custom into a milder one’ was beyond the courts capabilities as the colonial arrogance and rule of law did not bend to savage native customs, these said customs conformed to the ‘right law’ instead. It was stated that primitive and uncivilized customs were to ‘be rejected as repugnant to natural justice, equity and good conscience’. ‘Equity’ is representation of the English legal system’s Victorian morality with natural law aligning morality and law as interlinked. English law and customary laws conflicted frequently on personal matters regarding forced child marriage and polygamy. Moreover, the introduction of the doctrine of repugnancy ‘stunted the development of customary laws in Nigeria and hence brought about Legal Pluralism’, leading to confusion surrounding the appliance of the correct law. Therefore, the British colonization of Nigeria has led to ambiguity regarding the importance and appliance of customary law.
Following British imperialism and independence, Nigerian customary law is near unrecognizable. Such a change begs the questioning of law’s validity from a native standpoint. Although, the country’s constitution provides ‘comprehensive human rights-based means of evaluating customary law’, the validity tests of repugnancy are still applied to this day. This reliance on the colonially modified customary law shows that Lugard’s codification of customary law took a new form, a written presence in Nigeria’s legal system. However, it was still depicted as inherently inferior and had to prove it validity to a now foreign ex-colonial jurisdiction. With oral customs being an aspect of the pre-colonial Nigerian legal system, transliteration was a product in its dismemberment. The British altered the customary law whilst trying to legally categorize the ‘inferior’ law within their established system, however, as the ‘meaning of the rule changes, the rule itself changes’. The artificial nature of customary law (and its state) derives from the externally dictated transplant of the English legal system into the Nigerian, without a consideration of the incumbent legal system. Subsequently, the colonial rule of the British in Nigeria created a new law of written customs, through the attempted transplant of the English legal system and its structural values. Although, Lugard’s indirect rule changed customary law for the worse, it also redefined the more punitive aspects of Islamic law through the doctrine of repugnancy as Sharia law was assessed on its ‘natural justice, equity and good conscience’.
Islamic law in Nigeria is heavily predominant in the Sunni northern states, specifically the Sokoto Caliphate. Unlike customary law, Islamic law was written and was formed upon the Qur’an, Sunnah, Hadith, Scholars, Ummah and Qiyas, it was ‘highly systematized and sophisticated’. The basis of Islamic law is the Sharia, with it being separate from pre-colonial customary law, it was self-governed and uncodified. Sharia, or Islamic law, is ‘divine will as only God knows it’, with fiqh being the main legal literature in the interpretation of Sharia. Classical fiqh is split in 2 parts: usul al fiqh and furu al fiqh, the former focusing on critical legal theory and the latter focusing on the roots of Islamic jurisprudence. Classical fiqh provided definition and insight into Islamic criminal law and its three categories: hudud, qisas (and diya) and ta’azir. Hudud laws persecute crimes against the ‘divine will’ of God, with the punishment outlined in the Hadith and criminality in the Qur’an. Zina also known as ‘adultery (zina) by Islamic law’ is punishable through ‘death by stoning’. Although, zina is ‘considered one of the greatest sins in Islam’, there is no ‘documentation of capital punishment for zina crimes prior to 1999’. The colonial legal restructuring of the Nigerian legal system brought stricter Islamic law to the forefront as seen in post-colonial Nigeria. However, patriarchy has been present in Nigeria and has taken the form of Muslim values such as ijbar (forced marriage) and purdah (female seclusion).
As seen with customary law in general, Islamic law was beyond the capabilities of the British colonial administration, although it was clear they sought to ‘replace Islamic Law completely with their own common law’. ‘Transculturation’ proved an obstruction for the British as their attempts to override Muslim law led to the development of ‘new Muslim legal cultures’. In Northern Nigeria, Lugard’s indirect rule encountered strong Islamic judicial presence, and as a result he ‘adopted a policy of non-interference’. Alkali advisors introduced common law into the Islamic law and were subsequently eased out of the system in favor of legal precedent. To combat the resistance faced in Northern Nigeria, indirect rule was used to assign Islamic law to personnel matters only via the customary law, forcing Muslims into ‘forum shopping’ at customary courts. As British colonization could not wipe Islamic law out of the system, it was instead repressed until Nigeria gained constitutional independence in 1960.
Now independent, Nigeria balanced Islamic law, common law and customary law, until it moved towards secularism in ‘not adopting any religion as state religion’ and thereby allowing individuals ‘freedom of thought, conscience and religion’. The northern Nigerian state of Zamfara retaliated in 1999 by ‘resuscitating Islamic law’ and adopting Sharia law as their ‘principal legal system’ including penal matters which directly violate the constitution. Later, 11 other northern Nigerian states followed suit. Islamic law’s new penal jurisdiction under the 1960 Penal led to the emergence of zina trials as adultery was again an offence punishable by death.
Amina Lawal was sentenced to the hadd punishment for zina, death by stoning, following the birth of her illegitimate child. Upon her first appeal, Amina failed on all grounds due to her child serving as proof of zina. However, the second appeal was successful and Amina was acquitted on the basis of the ‘sleeping embryo’ wherein her child was attributed to her husband. Zina trials are no longer frequent following the Lawal trial, the judicial activism sparked by the injustice, ceased the application of similar Sharia matters.
In conclusion, British colonialism has negatively impacted the Nigerian legal system, from the rigidification of customary law to post-colonial dependency and zina trials. The disruption that imperialism brought greatly outweighs the good, so much so that the legal effects of colonization are being reappraised.
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