The Constitutional Challenge of the Integration and Interaction of Customary and Received English Common Law in Nigeria and Ghana
Tulane European and Civil Law Forum, Vol. 25, pp. 37-63, 2010
Posted: 12 Aug 2010
One of the persistent challenges of post colonial African States is to understand the nature of their legal pluralism. If it was inevitable that at independence these States continued with their plural legal legacy it was also inevitable that they would address this issue as they consolidated their political independence. The different periods of constitutional design in the wake of the waves of democratization in Africa offered good opportunities in this regard. Generally African States have permitted the interaction of the received European law and customary and Islamic law. In the more than half a century since Ghanaian independence (1957) and almost half a century since Nigerian independence (1960), two clear phases of the interaction of customary Law and Islamic Law with the received English common law can be identified. They may be denoted as the common law and the constitutional eras. The common law era in these two countries commenced at the time of colonization and continued even after their independence up till the adoption of the post-military constitution in Nigeria in 1979 and 1999 and in Ghana in 1992. What is significant for our discussion is that in this era customary law and Islamic law were appendages of a dominant received English common law. The second era is the constitutional era which commenced with civil democratic rule on the aforementioned dates and continues till now. It is the contention of this Article that because the Constitution is the fundamental law of the land, constitutional policy must govern the structure of the legal system and in the case of Nigeria and Ghana it must deal with the plural bases of the common law era. This Article examines how the Constitution of the Federal Republic of Nigeria 1999 and Constitution of Ghana 1992 have addressed the significant issues in the integration and interaction of customary law and the received English common law.
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