A Bill of Rights as the Basis of a Common Law in a Pluralist Nigeria
African Journal of Legal Theory, Vol. 1, p. 45, 2007
27 Pages Posted: 27 Jun 2008 Last revised: 13 Aug 2008
Date Written: June 25, 2008
I shall argue in this paper that Nigerian common law should be a synthesis of the received English law and customary law including Islamic law with the fundamental human rights contained in chapter four of the 1999 Constitution of the Federal Republic of Nigeria providing a credible basis and framework. I will urge that since it represents a set of enforceable values, it provides a framework for the growth of a Nigerian common law. Part of this framework is the balancing of rights inherent in a human rights system and the derogation of certain human rights which make it possible that different nuances, values and aspirations prevalent in Nigeria can be accommodated. I point out that the proof of customary law including Islamic Law as a fact and their validation by means of the repugnancy and public policy tests have denigrated and humiliated these laws making them play second fiddle to the received English law thereby stifling their growth and that of the common law. Against this background, I argue that Nigerian common law based on a Bill of Rights will have nothing to do with the validation tests of repugnancy and public policy since it is a test in itself and will treat the received English law and customary law including Islamic Law on the same pedestal such that the jurisprudence of each law will be assessed on its merit. I note especially, the immutable nature of Islamic Law, the strong claim that it is not customary law; the codification of Islamic criminal law principles as State Law and urge that Constitutional supremacy and superiority mandate accommodation within its framework. All through the paper, I examine how principles of customary law and customary law can and should influence the development of the Nigerian common law; just as its principles are subject to the values enshrined in the Bill of Rights. In undertaking this analysis, I acknowledge the deficiencies of judge-made law in revolutionizing legal systems and recognize that a unified administration of justice; the study of customary and Islamic Law and appropriate legislation will complement the development of Nigerian common law.
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