CONFLICT BETWEEN THE CONSTITUTION AND CUSTOAMARY LAW: A CASE STUDY OF THE YORUBA ORO CUSTOM BY ABUBAKRI AKBAR YINKA

INTRODUCTION

It’s trite that apart from the fact that Nigeria is an heterogeneous country with over 250 ethnic groups, each with its custom and practices, her legal system is also pluralistic in nature as it comprises customary law, Islamic law and Nigerian legislation inter alia.

Where there’s no contradiction between these laws, there won’t be conflict of law but where there exists contradiction, there arises conflict of law.

The goal of this paper is to evaluate the Yoruba Oro custom, it’s validity and whether or not it’s in conflict with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), herein after referred to as the Constitution.

Conflict has been defined as a situation where there is contradiction; it is to fail to be in agreement or accord. Conflict of law may be international or internal, where it arises between two or more laws of distinct nations, it’s called international conflict of law also known as private international law.

For instance, where Mr. A, a Nigerian contracted with Mr. B, a Ghanaian in America with the agreement that the transaction be executed in Brazil, on the breach of the contract by any of the parties, the court will surely be faced with conflict of law as to which country’s law is to be applied, that of Nigeria, Ghana, America or Brazil?

On the other hand, conflict of law between laws within a country is known as internal conflict of law, the writer is of the view that internal conflict of law can also be called municipal, domestic or local conflict of law. Constitution being the second key term is the mother of other laws of the land.

To this, Niki Tobi J.S.C postulated that: “The Constitution of a Nation is the fons et origo of the laws of the land not only of the jurisprudence but of the legal system. It is the beginning and the end.

In Greek language, the alpha and Omega. It is the barometer with which all other laws are measured….” In line with the above dictum, it is pellucid that the Constitution is the scale with which the validity and authenticity of all other laws are weighed.

Customary law as the last key term to be examined has been defined by the Evidence Act as “a rule which in a particular district has from long usage obtained the force of law.” It was also defined in the case of OWONIYI V. OMOTOSHO, by Bairamian F.J as “a mirror of accepted usage among a given people.” At this juncture, it is pertinent to note that customary law is recognized as law in Nigeria by virtue of section 315 of the Constitution which recognized it as an existing law, by extension, the Yoruba Oro custom can be said to be an existing law in Nigeria subject to the validity test.

WHAT ORO CUSTOM ENTAILS

Although the Yoruba terra may now be dominated by the Muslims and the Christians but there are age-long customs that the Yorubas still celebrate and still taken extremely serious, one of the customs is the Oro custom.

Oro custom is an annual festival celebrated by the Yorubas, the festival is done by worshipping the god/orisha Oro which the Yorubas believed to be the deity of bullroarer and justice. Oro deity is also known as ‘Oluwa’ (lord) and ‘Baba’ meaning father. Also, the Anango and the Yoruba community of the Benin Republic call it Ita, Ajala and Alugbe.

The custom is believed to be done in order to ensure the absence of iota of evil in the society and it’s traditionally celebrated once in a year but one is usually called after the demise of a monarch.

For instance, one was called due to the death of king Okunade Sijuwade of Ife. It is pertinent to note that the most prominent feature of the custom is the total exclusion of participation by women, this is in line with the belief that no woman that sees Oro lives and as such, there used to be restriction of movement on women. In fact, such restriction in some areas extends to male non-indigenes.

To this, Dr. Fredrick Fashaun, leader of the Oodua People’s Congress (OPC) said: “When the Oro festival is on, no woman of any nationality should behold Oro with her naked eyes. The penalty for such violation is death no matter who the woman is.”

Similarly, Musbau Junaid, the Baale of Okobaba community in Mainland Local Government Area of Lagos stated thus: “By tradition, the Yoruba leaders ask people not connected with the event to stay at home when it is the festival’s time because it is an age-long Yoruba belief that Oro must never be seen by woman.” However, the deity is normally conceal save from the festival’s time.

Oro announces his appearance by making high-pitched swishing sounds, the sound is by custom believed to be made by his wife called Majowu, the wife is not well known like Oro but her part in the festivities can not be over-emphasized.

Literally, the Yoruba word Majowu means ‘ don’t be jealous’, Majowu as a deity is the Yoruba goddess of peace and discipline, she frowns at jealousy and she is regarded as the intermediary between Oro and humans and the message she delivers by going from one house to another blessing those in it is believed to be the execution of her husband’s command. However, the writer’s voyage of discovery reveals that the so called Majowu is a human being, in fact a man and that’s why it’s easy for him to be calling the names of those living in a house one after the other during his tour because logically, he is a member of the community and the weird high-pitched swishing sounds made by Majowu is a disguise in the name of custom.

AREAS OF CONFLICT BETWEEN THE CONSTITUTION AND THE ORO CUSTOM

At this juncture, it is imperative to note that for a custom to be valid, it must pass the validity test which include the followings :

(1) The Repugnancy test ;

(2) The Public policy test ; and

(3) The Incompatibility test.

Note that the tests are applied together and a breach of one is a breach of all. However, this paper discusses only the Incompatibility test in examining the validity of the Oro custom. The Incompatibility test denotes that for a custom to be regarded as valid custom, it must not be contrary to any existing written law, in line with this, we will evaluate the contradiction between the Constitution and the Oro custom since It is not an anecdote that there has been an agelong conflict between the Constitution and the Oro custom in that the constitution in chapter IV provides for Fundamental Human Rights, some of which frowned at the Oro custom practices.

For instance, the grund norm of laws in Nigeria provides for Right to Life, Right to Personal Liberty, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Movement, and Right to Freedom from Discrimination among other rights.

On the other hand, the custom detests these freedoms as it can be deduced from the subheading ‘ What Oro custom Entails’. Thus, the followings are some of the areas of conflict between the two laws:

(1) there is restriction of movement during the festival; women and male non indigenes are not allowed to leave their home.Obviously, this is contradictory to the provisions of section 41 of the Constitution which grants freedom of movement to all.

(2) Forcing non traditional believers to stay indoor is a breach of chapter IV of the Constitution. For instance, Muslim and Christian women are usually forced to stay at home during the festival despite their express pronouncement of disbelief in the authenticity of the custom. This is a breach of section 38 of the Constitution which give individual the right to practice and worship what he /she believes in.

One might argue that the custom is not a religion and can not breach section 38 of the Constitution, although the writer have a dissenting submission to the assertion but still if that claim is valid, the custom will still be a nullity as section 40 provides for Right to Peaceful Assembly and Association.

Muslim and Christian women are apparently not members of the Oro custom in the face of the Constitution because it’s apparent that they disassociate themselves from the custom, so forcing them to obey it’s laws by obliging them to stay at home amounts to a blow on their constitutional right.

(3) It can also be seen that the punishment for the breach of the custom is death, this is not a good law going by the provision of section 36 (12) of the Constitution which provides that no one is to be punished for an offence not defined by any written law. So, the death penalty for the breach of the custom is a grave violation of section 33 of the Constitution which states that everyone (both citizens and non citizens in the country) has the right to life and one is not to be deprived of his/her life without any legally recognized justification.

In view of the foregoing, it is Crystal clear that the Yoruba Oro custom is in conflict with Chapter IV of the Constitution and the question now is which of the laws is superior? Well, the question has been answered and settled in favor of the Constitution by section 1 (3) of the Constitution, which provides as follows : “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

CONCLUSION

It has been established that the Oro custom is discriminatory against women, punishes for an undefined offence, do force people to stay at home against their wish irrespective of whether they believe in it or not. All these among others violate the provisions of the Constitution. Therefore, the Oro custom fail to pass the Incompatibility test and as such there’s no need to apply the other two tests as we have already known that a breach of one of the tests is a breach of all. Hence, the custom fail to pass the validity test and the writer firmly submit that Oro custom will be declared invalid any day the question of its validity is raised before a court of competent jurisdiction.

REFERENCES

(1) The Constitution of the Federal Republic of Nigeria 1999 as amended (2) https://en.m.wikipedia.org/wiki/Oro_Festival (3) The Nigerian Legal System (4th edition) by Ear Malami (4) Evidence Act (5) Merriam Webster Dictionary of English Language (6)http://www.premiumtimesng.com/regional/ssouth-west/187605-ooni-ife-declares-oro-festival.html (7)https://guardian.ng/life/oro-a-yoruba-festival-that-is-anti-women