Introduction
Law reform is undoubtedly significant in the development of national common law. However, the process of developing a common law through law reforms is fraught with challenges, most of which are traceable to normative resistance. In what follows, I will use examples from South Africa and Nigeria to explain the influence of normative resistance in developing common law.
In South Africa, the quest to develop a common law has contributed to aligning its laws to ensure that they comply with human rights principles of equality, non-discrimination, and human dignity. To promote these values, judges emphasise the primacy of constitutional bills of rights. This attitude may be contrasted with the rare resort to the Bill of Rights in Nigeria – except in issues involving discrimination.
The quest for a national common law is mainly due to the challenges and complexities of legal pluralism – a product of colonisation. The interaction of laws and the socio-economic changes brought by colonisation has been problematic in many African countries. This problem manifests in conflicts in the choice, interpretation, and application of laws.
Furthermore, legal integration is essential in the development of common law. However, normative resistance influences the successful implementation of laws and policies aimed at legal integration. Why do people resist changes or new laws? People oppose law reforms because it fails to capture their lived realities/conditions. Thus, normative resistance arises because law drafters and implementers fail to recognise the agency of communities as actors that undermine formal structures.
Western European colonisation of African states involved the amalgamation of diverse cultural, social and legal values in the colonies – a complex process with significant influence on every aspect of life. Therefore, if we consider the notion of semi-autonomous social fields and their impact on shaping law, policymakers need to be sensitive to this resistance since it has significant implications for law reforms.
Law Reforms in South Africa and Nigeria
Since becoming a democratic nation, South Africa has sought to provide uniform legislative frameworks for varying indigenous practices. The provision of uniform legislative frameworks for these indigenous practices supports its quest for common law and promotion of constitutional values of equality, human dignity, non-discrimination, and diversity. Notable legal interventions in indigenous practices in South Africa include the Recognition of Customary Marriages Act of 1998, the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, the Communal Land Rights Act of 2004, the Traditional Leadership and Governance Framework Act of 2003 and judgments such as the Bhe v Magistrate, Khayelitsha and Mayelane v Ngwenyama cases. The latest is the traditional courts’ bill, passed by Parliament on 8 September 2022, and the Single Marriage Statute (SALRC Issue Paper 35 and SALRC Discussion Paper 152). The Traditional Courts’ Bill subjects traditional courts to the formalities and limitations of the state court system in towns and cities and further gives them the status of a court of law. The Single Marriage Statute seeks to regulate and consolidate all forms of intimate, long-term relationships in South Africa, including customary marriages.
While these state interventions in South Africa are remarkable, they present a puzzling concern about the state’s attitude towards indigenous laws. The colonisation era saw the dominance of Roman-Dutch law relegating indigenous laws to an inferior position. Even though indigenous laws were later recognised, their application and subjection to the rules of natural justice, equity, and good conscience reinforced their status as inferior laws. The 1994 Constitution supposedly placed indigenous laws on par with the common law.[1] However, these laws are still being forced to conform to constitutional tenets with European origins and that have the superiority philosophy of colonial laws. Should this continue, eventual common laws in South Africa might not resemble indigenous laws.
South Africa’s situation starkly contrasts with Nigeria, where the state prefers to leave indigenous laws alone. The only notable attempt to substantively legislate indigenous law has not fared well. The payment of bridewealth and its regulation in Southeast Nigeria offers a clear example of how normative resistance affects law reforms. Most parts of this region are notable for their demand of a high sum as bridewealth, which contributes to distortions in the motivations for bridewealth payment. These motivations include the legitimation of marriage, appreciation of the bride’s productivity, and compensation for the loss of services to her family. However, the demand for high sums reinforces normative constraints on women’s rights. These constraints include property ownership, economic autonomy, and sexual and reproductive rights.
Due to the demand for astronomical sums as bridewealth, the then-eastern government of Nigeria enacted legislation (dowry law) in 1963 to regulate its quantum. People continue to demand high sums in flagrant disregard of this law. As my empirical research discovered, those who engage in this practice of high bridewealth do it because legislation failed to consider their normative conditions, such as poverty, inflation, acculturation, and expensive education.[2]
Conclusion
Law reforms in South Africa appear to be top-down and barely reflective of indigenous African laws. A typical example is the Single Marriage Statute. Comments received from varying stakeholders show divergent views on its content, such as what constitutes marriage and consent to marry, which have been argued to re-embed discriminatory perceptions of what is legally permissible or not. Given the complexities of nation-building in post-colonial contexts, it makes sense for law reformers to consider the reality of resistance by the targets of reforms. For example, most people in southeast Nigeria are aware of the bridewealth law but do not use it to protect themselves when affected by the practice.
Ultimately, it makes sense for development programmers to understand and reflect on people’s perceptions of the behaviour sought to be shifted by law reform. Negotiating resistance is a form of engagement that will assist in identifying fractures and weaknesses in law and policies. It will also help in ushering in national common laws.
[1] Sibanda S, ‘When is the past not the past? Reflections on customary law under South Africa’s constitutional dispensation’ (2010) 17(3) Human Rights Brief 6; Diala AC, ‘The concept of living customary law: A critique’ (2017) 49(2) The Journal of Legal Pluralism and Unofficial Law 143-165.
[2] Diala J, The interplay of structure and agency: The negotiation process of bridewealth payment in South-East Nigeria (2019) PhD thesis submitted to the University of Cape Town.
