The Judicature Act says that African customary law will only apply where it is not repugnant or inconsistent with the written law. ( Section 3( 2) of the Judicature Act).
Repugnancy:
The repugnancy clause has been used in the area of family relationships , particularly relationships between parents , grandparents and the children.
In some cases courts have overlooked customary law and applied English law particularly regarding custody of female children of tender years.
But courts have also upheld customary law provisions in the area of custody
In the case of Re GM the court upheld customary law the circumstances were that a young child had lost her parents during emergency and was in the custody of a well to do woman from a different tribe.
This de facto arrangement appeared to be in the best interest of the child but the child’s uncle claimed the child under the customary law as a lawful guardian. The court in awarding custody considered both the English law and the principles of customary law and found that the uncle was the most suited person to take care of the child and in the opinion of the court there was nothing repugnant of the uncle being granted the custody of the child under the circumstances.
In the case of Karugu v. Njeri , the courts upheld African Customary law and in this case the contents were about the custody of the children as between the husband and wife who were married under customary law and divorced.
The African court ( early 60’s the African courts were still in existence) awarded the four children to the wife. The girls were given to the mother and the boys to the father. On appeal to the High Court the judge called for expert opinion on Kikuyu customs and the experts who gave evidence on Kikuyu custom related to the custody of the children stated that where divorce occurs the children go to the father regardless of their age unless the father demands in return the dowry whereupon the children go to the mother. In this case the court chose to be guided by the custom and did not find it repugnant to justice and morality and custody was awarded to the father.
In recent times the tendency of the court is to award custody to the mother especially in the cases where the children are of the tender years.
Today the courts go by the statutory provision of the best interest of the child and customary law is not applicable in such cases.
In the area of property repugnancy cases involving property rights are less common compared to those involving personal relationships. It is in the are of personal relationships is where you get strict applications of repugnancy clause because it involves large application of morality. The other thing is that property relationships are now subject to statutory law and thus there is application of African customary law.
Can public policy be used instead of application of repugnancy clause?
In the Ghana the repugnancy clause has been abolished the courts use the public policy as a test of repugnancy and where the custom is found to be repugnant to public policy it is struck down on that ground. These are issues based on morality , discrimination , unreasonable or against human rights then it is considered to be against public policy. However , I think the change is really cosmetic and it sounds very much as repugnancy to morality and justice.
Inconsistency:
Does written law only apply to the legislation or is it broader than the legislation?
Interpretations and General provisions Act defines the term of “ written Act” – any Act , any applied Act and any subsidiary legislation and this provision makes customary subordinate to legislation and thus any incompatibility with legislation renders customary law inapplicable.
So does this cover common law and equity? Does this cover equity and common law under written law?
- Opinion on this is divided
- On the one hand it would appear the incompatibility should be confined to legislation and thus section 3(2) of the Judicature Act should be read together with section 2 of Cap 2;
- On the other hand it can also be argued that the Judicature Act provision applies to both legislation and common law and equity/
The application of the common law and equity is provided for by a written law and hence common law and equity should be considered as written law. And therefore inconsistency with any law would include inconsistency with common law and equity.
Whether inconsistency provision only applies to legislation only applies to the written law - whether you give broad or restrictive definition of written law. If you go by restricted interpretation under Cap 2 then the inconsistency is only with the legislation excluding equity and common law.