By Ernest E. Uwazie
The 1950s and 1960s produced a series of studies on the various forms of tribal disputing in colonized Africa (see Bohannan 1957; Howell 1954; Gluckman 1955; Gibbs 1963). These examined how indigenous justice systems co-existed or conflicted with imposed (European) law. Upon independence, the new nation-states of Africa inherited many of the colonial legal and social structures, but most countries initiated major legal reforms to redefine relations between state and indigenous laws. In Nigeria, for example, `Customary Courts' were created by the state to apply indigenous customs (Woodman 1988; Imo State 1981). These courts continue to exist in varying forms across Africa, often under strict government scrutiny and control.
Recent socio-legal research on post-independent Africa focuses on the relationship between the state legal systems and the various types of indigenous justice (Moore 1986, 1992; Woodman 1988; Gundersen 1992). These studies conclude that customary court judges both validate and invalidate some aspects of the indigenous legal orders, thereby constructing a new set of legalities. However, data are scarce on the persistence of non-state quasi-judicial modes of disputing and their interaction with the formal legal system. This study suggests that major substantive and procedural differences separate the Native Court from indigenous justice. Analysis of the interconnections between the indigenous and state legal systems in Nigeria yields a more comprehensive knowledge about legal pluralism in Africa.
This study examines the differing uses of the various forms of Igbo `indigenous justice' as well as their connections with each other and with the state legal system. Indigenous justice includes native or village disputing mechanisms that lack the support or institutional characteristics of the state legal system. Generally, the indigenous legal system is characterized by native or lay participation and is less bureaucratic; it relies on unwritten, oral and flexible precedents or rules (see Abel 1982; Merry 1982). Various kinds of coercion are used to settle a case or seek compliance with decisions of indigenous justice (Merry 1982; Uwazie 1991). The inquiry focuses on the types of indigenous justice used for handling disputes among the Igbos and how they interact with the state police and courts. Different disputing modes are amenable to different kinds of cases (Black 1987; Goldberg et al 1985; Felstiner 1974). The study examines six types of indigenous Igbo justice and then analyzes their interaction with formal legal systems.
I observed 70 cases, conducted 20 interviews, surveyed 226 disputants, and reviewed relevant records.The surveys were analyzed with univariate statistics to determine which disputing mode was more likely to be chosen for certain kinds of cases. The ethnography and interviews combined study of the trouble-case, the extended case, and the social drama (see Nader & Todd 1978; Llewellyn & Hoebel 1941). By cross-checking, comparing, and triangulating information, I built a foundation for the research.
I. Differential Use of Disputing Modes
Alternative dispute mechanisms exist in every society. Socio-legal studies have produced numerous cross-cultural materials on formal dispute institutions (Nader & Todd 1978; Gibbs 1963; Gluckman 1955). Other legal-anthropological studies reveal the use of lay councils, go-betweens, and voudou in the resolution of disputes (Bailey 1960, 1965; Abel 1973; Bohannan 1957; Cavender 1988). These socio-legal studies compare mediation, arbitration, self-help, negotiation, and adjudication, giving us some knowledge of the variation in patterns or modes of disputing. My research identifies the wide variety of non-state forms of indigenous dispute settlement in order to understand their independence from and connections with the formal legal system. It also reveals several ways of managing individual and group conflicts, and questions the view of legal centralism. For example, it shows that, because of the wealth of customary legal knowledge possessed by Igbo elders, village councils have become increasingly indispensable in state lawmaking; they also serve as an alternative to the overburdened, centralized court system in the management of certain conflicts. Likewise, disputants have responded to deficiencies in the state system by searching for more satisfactory forms of dispute management.
A striking characteristic of the traditional Igbo political and legal system was the virtual absence of centralized authority. This sense of republicanism was mirrored in the proverb `Igbo enweghi eze' (the Ibos have no kings/chiefs). They practised a participatory system of administration (Isichei 1976; Afigbo 1972). Political institutions were designed to encourage popular participation, weighted by experience and ability. Each unit was autonomous and regarded as binding upon it only those decisions to which the people had assented. Legal arrangements remain highly decentralized, though they frequently interact with the state legal system. Before analyzing the legal interactions, the study examines six indigenous legal institutions: family head, village tribunal, umuada, age grade, titledmen, and oracles.
A. The Family Head
The basic unit of Igbo social life is the extended family descended from a common ancestor. The affairs of this unit are managed by a head or Ony'isi. He is usually the eldest male in the family and holds the family `ofo' (oath) symbol. The linkages within the family facilitate intimate communication with and easy access to the family head.
The family head mediates certain marital disputes and cases of delinquency and presides in the resolution of other cases between family members. One family head related a case in which a widow complained of her 15-year-old son's refusal to help in such household chores as fetching firewood and water from the nearby stream. Each time he used his wisdom and moral persuasion to correct the youth. Sometimes, however, the family head may fail to resolve delinquent behavior. Another family head told me that a 17-year-old boy in the family had defied him, after several villagers had complained about the youth's flirtations. The teenager regretted this when he was eventually forced to marry a young girl he had impregnated. According to the family head, "failure to instruct (the youth about their wrongs) kills the elderly, while failure to heed the instructions (of the elder) kills the youth" (ahu ma aka ghi n' egbu agadi, ma akawa ma anughi n'egbu nwata). Sixty-four percent of those surveyed said they would use the family head to resolve delinquency cases.
The family head is often called to resolve boundary disputes between households. As trustee of the family land, he must be resourceful in managing it. Several disputants told me how they had used the family head to mediate boundary disputes; 84 percent of the respondents said they would use the family head to resolve land disputes.
The family head's role as a mediator does not necessarily mean that he is a `neutral' third party (cf. Black 1987; Black and Baumgartner 1978). He is more unbiased than disinterested. His reputation and authority derive from fair decisions, and he has both economic and political interests in maintaining social harmony. For example, family members take turns cooking special meals and farming for him. In addition, he performs important family rituals and serves as the family representative in the village tribunal. In most instances the family head uses moral pressure to enforce decisions. Often he solicits the support of family members. In presiding over hearings he ensures that the most eloquent and intelligent disputants or their representatives do not overwhelm the less advantaged disputants. The use made of the family head to resolve disputes depends on his effectiveness as a mediator.
B. The Umuada
If a member defies the family head or a leadership crisis arises, the married daughters of the family or village are invited to resolve the dispute or to force compliance with the decision. The Umuada, or married daughters, play an important part in Igbo dispute resolution. They come from the family, kindred or village which calls upon them, but are living elsewhere with their husbands. They are highly respected, especially in comparison with their unmarried counterparts and with women who have married into the family or village (who are treated as strangers). It is common for successful marriages to attract others from the same village. The married women from a particular village or kindred preserve their kinship ties by forming Umuada groups in their marital villages.
The Umuada may be called home on short notice to resolve such issues as spousal abuse, infidelity or theft, or to admonish erring women who have married into their village. In one instance, the male members of a family of a prominent (fan) chief used their Umuada to confront a defiant widow. She suspected that certain envious family members had murdered her husband and would not allow them to participate in funeral plans.
The Umuada effectively used shaming statements and threats of ostracism to make her cooperate. In another case, the Umuada found both spouses responsible for a domestic conflict. They occupied the man's house until he paid the fine of one cock for beating his wife; and threatened to bar all social contacts with her as well. Such an occupation entails the substantial expense of feeding the `uninvited' guests.
The Umuada also may be called to admonish the men of their natal villages, especially in times of corruption or moral decadence. An elderly woman recalled that the Umuada rebuked her village's male leaders in the late 1960s for embezzling public funds contributed by the villagers to build an elementary school. They threatened to invoke the village gods and goddesses if the accused did not admit their guilt and return the funds. Women's rebukes of men, in this male-dominated culture, are rare but powerful, shaming the men and weakening their influence over the women. Women's high moral status is thought to attract the sympathy of the gods. Although the Umuada may be limited in their power and knowledge of their paternal villages, they can act as checks and balances, resolving disputes that are too difficult for the male leaders. The Umuada can intervene on their own or at the invitation of the family or village unit.
C. The Village Tribunal (Amala)
Matters affecting outsiders or threatening to disrupt a family are usually referred to the Amala (village tribunal), composed of 10 to 15 lineages. This institution is concerned with the common affairs of the village, such as religious rituals, traditional ceremonies, and festivals. For example, the people of Ogwara village gather every October to celebrate their new yam season and thank the gods for a good yield. The villagers express their solidarity by sharing yams. They also ostracize village `trouble makers' at this time. These functions are organized by the village council of elders or Amala, which includes the various family heads. The Amala also handles intra-village disputes, as well as case referrals from a family head or the formal court system.
A similar tribunal exists for villagers who have emigrated to the cities. An example is the Ogwara Town Union in Lagos. The union members meet on alternate Sundays, reserving the other Sunday for clan meetings. The members take turns hosting the group, serving food and drinks to the guests. The economic and social ties among the members are exemplified by making loans, or subsidizing `naming baby' celebrations out of collective contributions. The union helps to socialize newcomers to the city, as well as providing a social network for those seeking employment or business connections. The town union collects money for village development such as electrification.
In the midst of the merriment that characterizes the meetings, conflicts between members are reported. They are resolved immediately if possible, and otherwise postponed until the next meeting. Difficult cases are often referred to the village tribunal, and then either resolved quickly or postponed until the holiday season (Christmas, Easter, or village festival), when most urban dwellers return to the village. I observed a case of attempted food poisoning in the city, which was referred to the village tribunal by the town union. The union persuaded the police to allow it to attempt to resolve the case, but failed to reach a solution. A day after the New Year, the elders gathered and administered the oath of innocence to the accused villager. If he died within the year he would be declared guilty.
The village elders (also called people's representatives or Ndioha) are adult males with substantial experience in handling village disputes, especially land matters. My survey found that 89 percent of respondents would use the Amala for land cases and 66 percent to resolve disputes between fellow villagers. The village women have a separate dispute institution although they sometimes refer difficult cases to the Amala. Like the family head, the Amala commands respect primarily because it controls the channel of communication with the ancestors and gods, who are very powerful and revered symbols in Igboland.
D. Age Grades
The age grade plays an important role in village affairs. Between the ages of 26 and 30 men go through several initiation ceremonies prescribed by their elders in order to become adults and be included in village law-making processes. Marriage is not recognized until the man has been initiated as an adult. After the members of an age group have been initiated into adulthood they form an age grade union.
Members of an age group address one another as age mate or nwulem and are responsible for burying their members. Different age grades cooperate in matters affecting the entire village. Age grades also manage conflict, disciplining members who commit theft, show disrespect to an elder, or fail to pay taxes or participate in communal labor. During village festivals, they are responsible for crowd control and other security concerns. A customary law practitioner related how the age grades were used as local security forces during the Nigerian civil war, protecting village borders and arresting lawbreakers.
E. Titledmen (Chiefs)
As Igbo communities experienced social and economic changes during the nineteenth century the traditional system of government and justice was affected. Economic growth allowed some men to amass a surplus with which they could acquire various titles based on demonstrated leadership abilities. Thus, the titledman, a free-born man of probity, became another means of social regulation. Today, such a man is a Chief or Eze, is addressed by various traditional titles, and performs a variety of political and judicial functions.
Chieftaincy in Iboland began with the introduction of the Warrant Chiefs by the British colonial rulers about 1912. Young men literate in English were given authority to collect taxes, settle disputes in the customary courts, and administer villages.
The warrant chief system was anomalous in the traditionally acephalous Ibo society (Afigbo 1972). These warrant chiefs subsequently became corrupt, engaging in bribery, forced marriages, extortion, and false criminal trials, which caused major conflicts. This imposed legal system also was incompatible with the evolutionary nature of leadership in Iboland (Meek 1937). The British failed to understand that Igbo leaders emerged by virtue of their demonstrated ability and knowledge.
Most contemporary village chiefs have inherited their titles from the old warrant chiefs. A village chief may preside over the deliberations of the Amala. A village may appoint someone to perform the functions of chief for a specific time. The Chief (Eze) is regarded as the traditional ruler of a state-created `autonomous community.' Under the Imo State Traditional Rulers and Autonomous Communities Law, an `Autonomous Community' is defined as a group of people inhabiting an identifiable geographical area or areas, comprising one or more communities bound by a common traditional and cultural way of life with a common historical heritage and recognized and approved by the government (Section 1, Law No. 11 of 1981).
The traditional ruler must be chosen according to the custom of each community and presented to the government for recognition. As a paramount Chief, the Eze can appoint other, lower chiefs with the consent of the village. Besides his role as spokesperson and cultural embodiment of his people, the law authorizes the Eze to take steps to reconcile disputing parties in civil matters whether or not such matters which the disputing parties bring to them for reconciliation are matters governed by law of the community (section 17 (f)). The Eze usually has a cabinet composed of village representatives or lower chiefs. In certain instances, he can take immediate action without the cabinet.
I observed a case in which the Eze issued an injunction about disputed land after a woman complained of death threats from the other party. The Eze sent his messenger to warn both parties not to trespass on the land until the boundary issue was resolved by the cabinet. I observed four other land disputes between parties from different villages. In another case where the police had determined that a death was an accidental homicide the victim's relatives brought the matter to the Eze, seeking compensation. The incident had occurred when friends from different villages were hunting in a suburban forest. The victim's relatives threatened to take the matter to an oracle (below) unless they were compensated for the costs of the funeral and maintenance of the victim's young children. Both the Eze and the accused took the threats seriously enough to reconcile the parties. A common factor in the cases I observed before the Eze was that the parties came from different village groups within the autonomous community or clan. 66 percent of my respondents said they would use this means to resolve disputes with someone from another village.
In contemporary Igboland the insignia of a titled man varies - a thread, ivory anklets, eagle feather, red cap, horse plume or fan carried in the hand - but he is influential and immediately recognized everywhere. Titledmen earn their reputation as mediators, arbitrators, or organizers of village affairs, often as exceptions to the Ibo rule of gerontocracy. In the processing of disputes a titled person sometimes merely relays one party's grievances to the other, especially in the initial stages of a conflict. A titledman may deflate a conflict by warning one or both parties, but he is primarily a messenger. Often he is a friend of both parties, which tends to make them receptive to his message. One villager recalled how she used a titledman to warn another villager that she was rumored to be an outcast or Osu (non-free born). Another villager told me he used a titledman to resolve a potential boundary dispute. My survey found that 76 percent of respondents had used a titledperson to resolve their grievances.
A prosperous man with several descendants registers and legitimizes his success by taking a title (Isichei 1976; Afigbo 1972). There is a hierarchy of titles, with an ascending scale of rituals and payments. Gaining a title, however is not simply a matter of purchasing political power. The title system is a form of social security; men pay for titles and then share in the payments of later entrants. A title is a guarantee of character and prestige as well as of success. The entrant endures protracted and arduous rituals and accepts religious restrictions. These taboos, which become more onerous as he climbs in the titled hierarchy, must be scrupulously obeyed.
F. Oracles
If the facts of a case are unclear or the offender's identity uncertain, Igbo resort to an oracle. Divination is used to identify mysterious causes, heal diseases, and manage both individual and group conflict. In most instances of death and mysterious illness an oracle priest is consulted for diagnosis and cure.
For example, Ogwu, 37, consulted a famous diviner who lived 100 miles away about the death of his 28-year-old wife during the birth of her second child. Ogwu sat on a wooden bench with his elder uncle and father-in-law, intensely staring as the diviner cast his magical lots to ascertain their mission. To the clients' surprise and satisfaction, the diviner correctly revealed the nature of their inquiry at the first casting of the lots. The clients deposited half the fees before he continued. With each casting of the three lots, the oracle, Okae-mee, revealed how Ogwu's wife was despirited by her dead aunt, offended when she had not received the traditional `second burial' by the sacrifice of a goat. The wife and her aunt shared the same god. The priest revealed that Ogwu's wife had also defied another diviner's warning not to visit her maternal home, especially during pregnancy. He concluded with a warning of further death if the deceased aunt's wishes were not immediately obeyed.
The oracle is usually referred to as a `medicine man' (Dibia) because he heals as well as causing illness or death. Many people recalled stories of diseases and deaths inflicted by an enemy using a
Dibia. Medical doctors sometimes refer a difficult illness to a Dibia. An oracle may be used to investigate or deter crime. The police used a
Dibia to identify the thief of a massive quantity of telephone cables (National Concord 1989). The people of Owelle village were so enraged by thefts in their village and the police's inability to stop them that they sought the Dibia's help. He administered an oath in the village square. Each villager declared his or her innocence and promised not to steal and to report offenders. Any villager who refused to take the oath or took it and died within a year was believed to be guilty (personal observation & interview, November 26, 1989).
The diviner explains the supernatural aspect of events and makes misfortune intelligible and therefore acceptable. He prescribes the sacrifices that control the activity of supernatural beings. Many aggrieved parties resort to oracles to resolve both intra- and inter-personal problems (see also Cavender 1988; Afigbo 1972; Adewoye 1977). The oracle is the first, middle, and last person to consult for almost any type of conflict and is seen as able to influence case outcomes, making him an invaluable means of conflict management.
II. THE INTERACTION OF THE LEGAL ORDERS
Although the Igbo modes of indigenous justice are very decentralized, they are closely interconnected (see figure). To the Igbo, the secular and sacred, the natural and supernatural, are closely intertwined. The tribunal members, who are
often village elders, dibias, age grade members, and titledpersons, are viewed as representatives of the ancestors. The village tribunal serves both administrative and judicial purposes. The objective of dispute settlement is inter-personal and community reconciliation in this close-knit society. As the table suggests, disputants tend to use formal law to handle cases of murder, injurious assault, grand theft, rape, and divorce. The influence of the state criminal laws and the infrequency of these cases may account for their choice. Murder and divorce cases also may necessitate the use of the police or court to seek punishment or vengeance since the litigants have no need to continue the relationship. One village elder recounted stories of self-imposed exile, forced suicide, and banishment for murder and rape in Iboland, explaining that they were heinous offenses that also offended the village gods. Indigenous law is used to handle the civil aspects of most serious criminal cases (Uwazie 1991). Two village elders told me of cases where leaders were forced by the village tribunal to compensate the village after being convicted by the court of embezzling village funds. The table reveals that major crimes are more likely to be handled by the police or court, while less serious disputes are more amenable to resolution by the indigenous justice system.
The Figure illustrates the channels of communication and interaction between the indigenous and state legal systems. Case referrals are more voluntary. Police commonly refer certain cases to indigenous institutions. When the victim of an injurious assault precipitated by a land dispute complained to the police, the disputants were strongly urged to resolve the case between family members through the village tribunal. The police decision reflects the difficulty in resolving the underlying land dispute, especially given the fluid, oral contractual nature of Ibo land custom and the complexity of land cases. During the deliberations, the village tribunal de-emphasized the assault and concentrated on resolving the land dispute. The village judgment was submitted to the police and accepted by them as a final resolution of the case.
To whom would you complain about the following cases?
Kind of case Percent formal* Percent indigenous Total
Land 2 98 212
Murder 76 24 208
Injurious assault 66 34 207
Grand theft 71 29 207
Petty theft 32 68 199
Minor assault 22 78 178
Adultery 15 85 179
Spousal abuse 4 96 178
Rape 71 29 147
Divorce 60 40 159
Total (urban & rural) 226
* Formal includes police and court, while indigenous includes
village/family tribunals, titledmen, age grade, umuada, and oracles.
The police may have used subtle coercion by referring the case to the village while retaining jurisdiction until an acceptable settlement was reached. However, numerous `invitations' by the police as well as reported bribes will have reinforced the reluctance to use the police in the future. I observed ten cases of police and court referrals to the village tribunal. Among the 76 who had used the formal legal system, 29 percent reported that their cases were referred to the village tribunal. A senior magistrate told me that 99 percent of the land cases in his court were appealed from the indigenous justice system, and he referred most of them back. The practice of frequent case referrals and willingness to accept the judgments of the village tribunal reflect a cooperative arrangement between the formal and indigenous legal systems.
III. Conclusion
Despite the rise of national legal systems in Africa, indigenous modes of justice persist. The state and indigenous laws interact, often deferring to each other. Disputants choose among multiple legal forms based on such factors as the nature of the dispute, the disputants' relationship, and the effectiveness and accessibility of the disputing process. Police or court referral to the village tribunal manifests the cooperation between them. The village tribunal defers to the police or court in serious criminal cases without surrendering its authority to resolve their civil aspects.
Systems of justice do not operate solely within governmental environments. The Igbo indigenous legal system, for example, has not been merely a `servant' of the formal legal system. It has innovated to preserve its independence and influence, while maintaining a cooperative relationship with the court and police. When conflicts of law arise, the competing legal orders minimize their differences (see Hooker 1975).
Since independence, Nigeria has experienced dramatic social, economic, and political changes, which have influenced legal reforms. Contemporary elites view modernization and nation-building as requiring a unified legal system, often invoking the European and U.S. models. As the state endeavors to adopt uniform state law at the expense of indigenous legal orders, however, it is met with intense resistance. Although economic development, missionary activity, and western education have influenced the country's socio-political order, the future of indigenous justice seems assured, particularly in Igboland. Disputants find indigenous law more accessible, satisfactory, and reliable in resolving most land disputes as well as domestic or civil cases.
Disputants move between the formal and indigenous legal systems at their convenience. We must discard the legal-centralist notions of the state law, in which indigenous justice is devalued. Future research should focus on how the indigenous legal orders interact with the state created customary courts. Such studies promise further insight into African law and societies and will contribute to the ongoing debate about a new political-legal order in Nigeria and throughout Africa.
