Egalitarian Legal Pluralism and Decolonization of Justice

For a better understanding of this paper, it is imperative to define the key terms of the subject matter. Egalitarian is the belief in the equality of all persons and the conferment of all equal rights to all persons. Cambridge dictionary sees egalitarian as the belief that all people are equally important and should have the same rights and opportunities in life.[1] Collins dictionary states that egalitarian means supporting or following the idea that all people are equal and should have the same rights and opportunities.[2]

Legal pluralism connotes the existence of two or more legal systems in a given state. It can be defined as the existence of multiple sources of law (both state and non-state) within the same geographical area.[3] These non-state sources are deeply rooted in the people’s cultural and religious values and principles.

Decolonization involves a process of moving away from colonization to independent thinking and way of doing things. Decolonization can be defined as the continuous and evolving refusal of colonial conditions of life which were introduced and globalized through a capitalist-colonial-enslavement project via legal, political, social and epistemic structures of power.[4] Decolonization of justice is the process whereby indigenous people demand effectiveness of their internationally-recognized rights through their indigenous legal system. These sets of rights include the rights to self-determination of peoples, ownership of territories, control of their ways of life, right to political participation and so on.

The above definitions have given an insight of the outlook of this discussion, which is to discuss ways by which the indigenous people achieve decolonization of justice through egalitarian legal pluralism. We will first of all look at what the concept of legal pluralism entails.

Legal Pluralism.

As stated earlier, legal pluralism entails the existence of two or more legal systems operating in the same social field. This mostly involves state and non-state laws. The United Nations identifies three broad types of legal pluralism:[5]

1. Non-state legal orders that are not sanctioned or formally recognized by the state.
2. Formal legal pluralism which exists in states where there are plural laws addressing specific issues. For instance, in Nigeria, there are laws regulation Islamic marriages which are different from the one regulating customary marriages and also different from the one regulating statutory marriages. Also, different laws govern right to property inheritance and so on.
3. Quasi-state legal orders or state incorporation of non-state legal orders.

It is believed that in developing states, 80 to 90 percent of disputes are handled by a non-state justice system.[6] Swenson identified four settings in which this state and non-state justice system can exist. These four settings are: combative legal pluralism; competitive legal pluralism; cooperative legal pluralism and complementary legal pluralism.[7]

Combative legal pluralism entails a situation where the non-state justice actors reject the state system’s ideological foundation. In this setting of legal pluralism, there is always a conflict between the state justice system and the non-state justice system, one trying constantly to destroy the other.[8] This type of legal pluralism can mostly be seen in countries facing insurgency or separatist movements whereby the non-state actors in the movement will form their own justice system which contrasts with that of the state.

Competitive legal pluralism is a scenario where the non-state actors retain substantial autonomy and exercise a justice system that is different from that of the state actors. Competitive non state legal systems are mostly rooted in religious belief or culture, custom or heritage. This setting of legal pluralism also exists where criminals have established separate legal orders that even though not intended to take over the state, retain autonomy by circumventing state laws.[9]

Cooperative Legal Pluralism: in this setting, non-state actors retain some level of autonomy and a separate justice system from that of the state; however, both are willing to work together to achieve shared goals.

Complementary Legal Pluralism is a setting where the non-state justice system is subordinated to the justice system, both complementing each other. This setting of legal pluralism underscores the Alternative Dispute Resolution (ADR) approach. In some developed countries, private arbitration, mediation and other ADR methods are allowed. In some legal systems, for instance Nigeria, courts in civil proceedings often send the parties to explore out of court settlements before resorting to litigation. Therefore, in this form of legal pluralism, the state effectively outsources dispute resolutions to non-state actors. The difference between this type of legal pluralism and cooperative legal pluralism is that in the former there is no substantial autonomy to reject state authority, unlike in the latter.

Arguably, the customary law system in Nigeria can be said to fall under complementary legal pluralism because, although various communities and peoples are at liberty to practice and enforce the legal system indigenous to them according to their customs, those customs are subordinate to state laws and must not be inconsistent with state laws; where such inconsistency occurs, such customs will lose their validity.

Swenson also identified strategies that can be used for interacting with non-state justice actors in a legal pluralistic environment. These strategies are:[10] bridging; harmonization; incorporation; subsidization and repression. We will proceed to highlight these strategies.

Bridging: in this strategy cases can be shared between state and non-state justice systems. In sharing and allocating these cases, the provisions of the statutes, preference of the participants and venues are some of the factors that should be put into consideration. More serious matters, for instance criminal cases, especially serious ones like murder or other capital offences and felonies, can be left for the state justice system. Non-state justice system can take care of less serious civil and criminal cases.

Harmonization: this strategy ensures that the outputs of the non-state justice system are consistent with the state core values while retaining some level of autonomy. Here the independency and significant autonomy of the non-state justice system is recognized, so far as the outcome of their dispute resolution is in line with the state’s core values.

Incorporation: under this arrangement, the non-state justice system is incorporated into the state justice system. In the practical sense, the state will recognize and endorse the decisions of the non-state justice system and also regulate them. This can be seen in states where customary and religious courts are created and regulated by the state. These customary and religious courts apply the indigenous customs or religion in their dispute resolutions. This also includes the recognition of dispute resolutions by some town unions and local organizations which must be explored before a dispute can be taken to court for adjudication by the state justice system. They are, in most cases, courts of first instance and appeals from these non-state justice systems lie to the state justice system. A good example is the Sharia Court in Nigeria which is established by the state government that needs it; they apply the religious laws which the people have agreed to submit themselves to, while appeal from there goes to the Sharia Court of Appeal and further to the Court of Appeal, which is a state justice system.

Subsidization strategy is aimed at making the state justice system more appealing to the non-state justice system. In this strategy, the state uses legislative reform, capacity building and establishment of physical infrastructure to increase the state’s system capacity and performance and appeal relative to the non-state justice system.

Repression is a strategy where the state outrightly outlaws the non-state justice system; this is seen mostly where the non-state actors are promoting violence or encouraging insurgency.

Legal Pluralism in Nigeria

Nigeria is a country made up of different peoples and ethnicities; before the advent of colonization, these various indigenous peoples had their respective local legal systems which governed their affairs. Colonialism came with English laws commonly known as “common law”, most of which have been adopted as state laws in Nigeria, just like it is in various other countries that witnessed colonial rule. Therefore in Nigeria, the statutory laws made by the legislators at different levels of government otherwise known as state laws exist alongside customary and Islamic laws. The Evidence Act defines a custom as ‘a rule, which, in a particular district, has from long usage, obtained the force of law’.[11] These customs having obtained the force of law are to be respected, obeyed and enforced just like the state laws. There are customary law rules governing customary marriages, right of inheritance of properties of a deceased and in so many other spheres of lives. The Constitution of the Federal Republic of Nigeria also established customary courts of appeal and sharia courts of appeal to hear appeal from customary courts and sharia courts respectively on matters bordering on customary laws or sharia laws as the case may be. As already stated above, for any custom to be relied upon, it shall not be contrary to public policy or contrary to the principles of natural justice, equity and good conscience.[12] The Supreme Court has stated that the intendment of this validity test of customary law is not an attempt by the court to amend customary laws. Nwokedi JSC in Agbai v Okogbue[13] made the following pronouncements:

The doctrine of repugnancy, in my view, affords the courts the opportunity for fine-tuning customary laws to meet changed social conditions where necessary; more especially as there is no forum for repealing or amending customary laws. I do not intend to be understood as holding that the Courts are there to enact customary laws. When, however, customary law is confronted by a novel situation (as in the case of a woman’s beneficial interest in property which she acquired with her husband), the courts have to consider its applicability under the existing social environment.

Legal Pluralism and the Rule of Law

Rule of Law is the principle which promotes equality before the law, that is to say, the equal subjection of all before the ordinary law of the land. The UN in 2004 defined the rule of law as follows:

A principle of governance in which all persons, institutions and entities, public or private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.[14]

Three fundamental attributes or principles which together establish the rule of law are:[15]

1. The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.
2. Equality before the law or equal subjection of all the classes to the ordinary law of the land administered by the ordinary courts.
3. The law of the Constitution is a consequence of the rights of individuals as defined and enforced by the courts.

An egalitarian society must be one which is anchored on the principle of rule of law because there cannot be in existence a society where everyone is equal if the tenets of the principle of rule of law are not upheld. Some of the native laws that regulated the conducts of the indigenous people before the advent of colonization had all the attributes of the rule of law and were to dispense equitable justice during the pre-colonial era. The advent of colonialism birthed legal pluralism as the colonial masters came with their own legal system which existed side by side with the indigenous legal systems even though that of the colonial masters had precedence.

According to the 2016 Ibrahim Index of African Governance Report, there has been a concerning drop in safety and rule of law which has affected 33 out of the 54 African countries since 2006. Post-independence, Sub-Saharan countries have generally been unsuccessful in promoting the rule of law within their state legal systems.[16] Weak democratic institutions and weak state legal systems coupled with incessant military interventions in governance are some of the factors that led to the weak promotion of rule of law within the legal systems of many sub-Saharan countries. The principle of rule of law can be strengthened by the promotion of egalitarian legal pluralism. Most of the people are closer to the non-state justice system which is more accessible to them; therefore, these indigenous laws which are regulated and enforced through a non-state justice system can be a great avenue for the promotion of the rule of law. These indigenous laws are deeply rooted in the core values of the people and on their culturally accepted norms; furthermore, while state laws are often seen as the domain of the elites, the common man in society relies on the non-state justice system for justice.[17]

The United Kingdom Department for International Development estimates that “in many developing countries, traditional or customary legal systems accounts for 80 percent of total cases”.[18] It should however, be pointed out that these indigenous laws are not without flaws and that some of them do not subject everyone to equal treatment in the eyes of the law which is the cardinal point in the principle of rule of law and an egalitarian society. There are still issues of gender discriminations and infringement of fundamental human rights; in other words, some of the indigenous laws do not conform to international standards.

Conclusion

The decolonization of the justice system is the process by which former colonies move away from the justice system of their former colonial masters to an indigenous justice system. To achieve this decolonization agenda there is the need to strengthen the non-state justice system which is anchored on indigenous laws of the people, which will protect their cultural identities and values while at the same time meeting up to international standards of rights of self-determination; fundamental human rights; inheritance of properties and so on. To achieve this there need to be reforms of those indigenous laws to ensure that those which offend the principles of natural justice and promote obnoxious practice are jettisoned. State laws and indigenous laws should coexist in such a manner that indigenous laws or non-state justice systems retain autonomy in the affairs of the people, while the state justice system maintains its own sphere of jurisdiction.

With the decolonization of the justice system through egalitarian legal pluralism, much can be achieved in the area of promotion of the rule of law.

1. Cambridge Dictionary, Definition of ‘egalitarian’. Accessed on 26 March 2023.
2. Collins Dictionary, Definition of ‘egalitarian’. Accessed on 26 March 2023.
3. C. Roseveare, Rule of Law and International Development. Cited in GSDRC, “What is Legal Pluralism”. Accessed on 26 March 2023.
4. Foluke Adebisi, What is Decolonisation? Accessed on 26 March 2023.
5. Cited in GSDRC, “What is Legal Pluralism”. Accessed on 26 March 2023.
6. Albrecht, Peter, and Helene Maria Kyed, Justice and Security: When the State Isn’t the Main Provider (Copenhagen: Danish Institute for International Studies Policy Brief).
7. G. Swenson, “Legal Pluralism in Theory and Practice”, International Studies Review (2018) Vol. 20, pp. 438-462, at p. 443.
8. Ibid.
9. V. Vadim, “The Political Economy of Protection Rackets in the Past and the Present”. (2000) Social Research 67 (3): 709-44.
10. Swenson, n. 7. p. 446.
11. Evidence Act 2011, section 258.
12. Evidence Act 2011, section 18(3).
13. Agbai v Okogbue (1991) 7 NWLR (Pt 204) 390 at 417, per Nwokedi JSC, cited in MO Ashiru ‘Gender discrimination in the division of property on divorce in Nigeria’ (2007) 51 Journal of African Law 316 at 322.
14. Charles Manga Fombad, “An Overview of the Crisis of the Rule of Law in Africa” African Human Rights Law Journal (2018) Vol. 18(1). Accessed on 27 March 2023.
15. BA Haruna & Amana Mohammed Yusuf, “A Conceptual Analysis of the Rule of Law in Nigeria”, Bayero Journal of International Law & Jurisprudence, November 2017, pp. 101-127 @ p. 111.
16. Chloe Fung, “Legal Pluralism and the Rule of Law in Sub-Saharan Africa” (2022) Rule of Law Journal, 3, 18-24. p. 19
17. Ibid.
18. Ibid, p. 20.