8. Customary law and Islamic law

Characteristics of customary law

Unwritten and local: Customary law is largely unwritten and differs between ethnic groups and chiefdoms.

Flexible: It changes as the practices of the community change.

Community-centred: It stresses the family and community rather than the individual, and aims at reconciliation.

Proof: Where a rule is not already settled, it is a question of fact proved by evidence, often from chiefs or elders; assessors advise on customary law in local court appeals.

Limits on customary law

Constitution and statute: Customary law yields to the Constitution and to Acts of Parliament.

Repugnancy: Courts will not apply a customary rule that is repugnant to natural justice, equity and good conscience.

Section 27: The non-discrimination guarantee in section 27 contains exceptions, including for personal and customary law. These exceptions have been criticised for allowing discrimination against women.

Statutory reform

Registration of Customary Marriage and Divorce Act 2009: Requires registration of customary marriages and divorces and sets rules on consent and age.

Child Rights Act 2007: Sets 18 as the minimum age of marriage.

Land: In the provinces, land is largely held under customary tenure, regulated by the Provinces Land Act (Cap. 122), while the Western Area uses freehold title under the general law.

Islamic law

Scope: Islamic law applies to Muslims in matters of marriage, divorce and inheritance, with Muslim marriages recognised under the Mohammedan Marriage Act (Cap. 96).