A butterfly that thinks itself a bird: the identity of customary courts in Nigeria

When do women win in legally plural systems? Evidence from Ghana and Senegal

“…These elites often presented versions of ‘custom’ meant to highlight their own power, often to the detriment of lower-status community members (e.g. Chanock 1985; Diala 2019). Customary law was not a continuation of pre-colonial practice, but a translation of those practices reflecting the interests of intermediaries.…”

“…Customary law was not a continuation of pre-colonial practice, but a translation of those practices reflecting the interests of intermediaries. Following Diala (2019: 383), I use indigenous law as ‘precolonial norms observed in their original forms’, and customary law as an (often distorted) adaptation of indigenous law. While the extent and the nature of this distortion are highly variable, customary law often represented changes to indigenous law that disadvantaged women, youth, migrants and ethnic minorities (Chanock 1985).…”

“…The relationship between customary and colonial courts varied across different colonies, but legal pluralism across colonial Africa shared some unifying factors. First, colonial officials tended to leave the customary courts to their own devices unless they upheld practices that failed the ‘repugnancy test’ – in other words, allowing behaviour that Europeans found questionable (Roberts & Mann 1991: 14; Bakibinga-Gaswaga 2018: 294; Diala 2019: 394). Second, while customary and colonial courts were supposed to be separate entities operating in parallel, the boundaries of these courts were much more porous in practice.…”

“…Male elites’ reinterpretations of indigenous law into customary law reinforced patriarchal strands within those practices, while the concomitant social and economic changes associated with colonialism eroded women's social power (Chanock 1985; Tashijan & Allman 2002; Mbah 2019). For example, in Nigeria, customary courts reinforced the custom of male primogeniture (inheritance through the male bloodline) while abandoning the indigenous expectation that the man inheriting the property also inherits the responsibility of caring for the deceased's dependents (Diala 2019: 387). At the same time, the legal structures imported by colonial officials generally reflected the patriarchal practices of their own systems, usually based around the assumption of the nuclear family with a male breadwinner (Beoku-Betts 1976; Hern 2021).…”