A MAJOR ADVANCE
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02193.x |
| Published date | 01 September 1961 |
| Date | 01 September 1961 |
| Author | J. N. D. Anderson |
A
MAJOR
ADVANCE
THE article by
Mr.
Price entitled
“
Retrograde Legislation in
Northern Nigeria
?
”
represents, with respect, such a travesty of the
facts that
it
demands an immediate reply; and the background
notes by
Mr.
Olu Odumosu-sound, helpful and pertinent as they
are-require considerable amplification.
The first essential is to grasp the almost revolutionary differences
between the systems of law obtaining in the Northern Region before
and after this
“
retrograde legislation
”
came into effect. Then, as
now, some
95
per cent. of all litigation was in the hands of the
native courts, and only some
5
per cent. was handled by ithe
magistrates’ courts and the High Court. But prior to this leginla-
tion the native courts applied
‘‘
native law and custom
”
(or, in the
Muslim courts, a compound of Islamic law, according to Ma’liki
principles, together with a certain amount of indigenous customary
law) to the virtual exclusion of any other system-and in homicide
cases this meant,
inter alia,
that their definition of
“
deliberate
homicide
”
was very much wider than the offence of
“
murder
”
under the Nigerian Criminal Code, and that even the most severe
provocation was normally regarded as irrelevant; that the punish-
ment of one convicted of
“
deliberate homicide
”
rested, in most
cases, entirely on the whim of the
“
heirs of blood,” who might
demand the death penalty, accept blood-money,
or
waive any claim
whatever and leave the criminal to a prescribed penalty of trifling
dimensions; and that the relatives of a non-Muslim could never
claim the death penalty against a Muslim
“
murderer
”
but only (in
the case of pagans) one-fifteenth of the blood-money due for
a
Muslim, whereas the death penalty could certainly have been
demanded had the religions of the killer and his victim been
reversed.
It
is true that comparatively recent legislation had
prescribed that the native courts must not, in fact, impose any
penalty under native law and custom in excess of that applicable
under the Code for the act
or
omission concerned; but this most
salutary reform had proved exceedingly difficult to apply.
It
is also
true that any
gross
injustice based on differences of religion had been
regularly avoided by the expedient of a British administrative oflicer
exercising his discretionary right to transfer the case
to
the High
Court; but how far this expedient would be available in an inde-
pendent Nigeria was open to question.
As
for the procedure followed in these courts, this was not only
somewhat
“
inquisitorial
”
but rigid to a degree. Non-Muslim wit-
nesses were regarded
as
totally ineligible in the more strictly
orthodox courts, at least in any case in which Muslims were
involved; the testimony of women
or
of any
“
interested party
”
616
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