Tag Archives: customary law

Ending Child Marriage Step-by-Step

Across sub-Saharan Africa, marriage of minors is still a prevalent problem, particularly among young girls from impoverished families. In Nigeria, the practice is far more common in the Muslim North, where some areas practice Sharia law that allows for child marriage. “The Nigerian government made child marriage illegal in 2003, but according to campaigners from Girls Not Brides, 17% of girls in the country are still married before the age of 15. In the Muslim-dominated northwest, 48% of girls are married by the age of 15 and 78% are married by the time they hit 18.”

This is obviously a challenge for development, as girls who marry young are unlikely to finish schooling or stay within the protective proximity of their parents. There are countless health problems associated with childbearing at a young age, common among child brides. It threatens both the health and human rights of young girls.

For this reason, it was lauded news that “Malawi banned child marriage last week through new legislation that increases the legal age of marriage from 15 to 18, representing a major victory for girls in a country that has one of the highest rates of child marriage in the world.” Malawi could function as a model nation in Africa for reforming the ways marriage and girls’s rights are approached.

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Exploring the Creation of Nigerian Law

One of the central debates in the study of African politics surrounds the extent to which Africans have created their own legal systems. Is Nigerian law really even Nigerian?  Has it ever been? This is an important question because one of my lines of analysis for my dissertation will be about how the law shapes the forms of both formal and non-formal resistance in the Niger Delta.  If the law is merely an oppressive colonial construct, it would seem a poor avenue for resolving domestic and local level oil disputes. However, if it is the product of indigenous forces then it has a more legitimate claim to be a conflict resolution mechanism.

The first line of thought is that Nigerian law is not truly owned by the very people it purports to regulate and protect, and it is in fact, a Western project of domination. Comaroff and Comaroff describe Africans as “fetishizing” the domestic law they inherited from colonial powers as well as contemporary international law (Comaroff & Comaroff 2006).  By embracing both of these Western legal systems, Africans are actually reinforcing the disorder that law is intended to stop. Lawlessness in the postcolony is a product of artificially constructed legal regimes that are remnants of colonial rule.  These regimes fail to account for indigenous forms of capital accumulation and conflict resolution mechanisms, creating socioeconomic inequality that begets violence and disorder (29). In terms of modern globalization, judicialization of politics works in favor of corporate capitalism, which has used law to create a deregulated environment conducive to business. Human rights abuses surrounding oil indicate how Africa is entangled in a parallel, pariah economy of international scale that is undergirded by the use of Western forms of law (7).

Mamdani argues that democracy did not follow decolonization because in making their own governments, Africans recreated and reinforced despotic and ethnicized patterns in the bifurcated state. He calls this mode of rule “decentralized despotism.” Essentially, British “indirect rule” allowed for tribal chiefs to become their own little despots (as opposed to the French mode of direct rule which allowed French administrators to be centralized despots). This decentralized authoritarianism undergirds contemporary Nigeria’s struggles with lack of accountability and ethnic tensions (Mamdani 1996).

It has been argued that Nigerian law will never have the ability to function well because of its roots as a European means of exploitation of labor and resources, and because it entrenched previous inactive tribal conflicts that continue today. Its original purpose was never to resolve conflicts but to create them, never to limit power but to enable it (Mamdani 1996, 110). And in fact, “state law enforcement tended to rob custom of its diversity, homogenize it, and equate it with the boundaries of the tribe.” (184). With this European appropriate of African law, ethnicity became of categorical importance in land claims. The first constitution was bestowed on, and not created by, Nigerians in 1914 with the amalgamation of the British protectorates, a land consolidation enterprise (An-Na’im 2003, 212). Martin Chanock finds that Nigerian law was aimed primarily at helping Europeans secure their land rights well before that though, and largely through fomenting ethnic warfare (Chanock in Mann & Roberts 1991, 61).

Conversely, a different perspective emphasizes the role Africans have had in shaping the very European law that was bestowed upon them.  This perspective sees Africans and Europeans as engaged in an ongoing mutual construction of a fluid collection of rules and norms. Even Mamdani admits that ethnicity does not just function in a top-down manner as a means of rule, but also that it is and always has been an organizing principle in resistance. This notion is undergirded by sociolegal research that emphasizes understudied forms of resistance in Africa.

An analysis of Kenyan marriage disputes that tend to favor women’s victory in court demonstrates how those women have utilized law in a manner most beneficial to them, and at that same time have had a hand in shaping it. More specifically, these discursive courts offer sites for the complex reworking of gender relations, which creates possibilities for significant changes in social relations (Hirsch 1998). Thus, these courts have becomes sites of protest for women (Sally Falk Moore in Lazarus-Black & Hirsch 1994). Merry sees too that courts can serve as a mode of resistance to social practices such as domestic violence, but such resistance must be framed in the terms of the law itself, allowing protest only within the hegemonic categories of the law (Merry in Lazarus-Black & Hirsch 1994).

A study of the bandits of the Chad Basin shows how West African bandits have generated an “ethics of illegality” etched out by unregulated commerce that exists not as a form of resistance to the state, but in tandem with it.  In fact, “unregulated economic activity and road banditry are necessary entailments of the state in so far as they circumscribe new forms of economic rents and political constituencies. However, the state is also a necessary entailment to these activities insofar as they are dependent upon relations forged with customs officials, governors, mayors, and the police or gendarmerie” (Roitmann in Comaroff and Comaroff 2006, 250). This study speaks to the reciprocity of African law and society.