Re: USA Africa Dialogue Series - Moderator's Caution: Lives Matter

Ideally, modern constitutions are expected to reflect certain universally accepted principles of law. Some of these principles can be found in the UN's Universal Declaration of Human Rights and other subsequent human rights laws (e.g., International Covenant on Civil and Political Rights & International Covenant on Economic, Social and Cultural Rights). Thus, a constitution that supports slavery would be considered to be in violation of international human rights law. 

The constitution of a country is supposed to be the "law of the land" and hence, the country's supreme law. In Federation X, the Constitution of X, federal statutes, and treaties entered into by the federation, are the supreme law of the country. Hence, all other laws, including those of the sub-national units, such as provinces/counties/states and local government areas and various municipalities are subordinated to the "law of the land." Hence, if a conflict arises between federal/federation law and either the constitution of a state or county or province or state or county law, judges/magistrates must follow federal law. 

Where does that leave traditional law and custom? Traditional law may still apply, as long as it does not conflict with federal law. For example, in some traditional societies in Africa, when a man dies, his male relatives can inherit the deadman's property and in the case where the man did not have male issues, his brothers can take all his property and leave the wife destitute. This approach to inheritance often conflicts with modern laws on human rights and some countries have passed laws against such practices. So, where such a tradition conflicts with national law, it must give way to national law. There is also the tradition of "wife inheritance"--a man dies and his brother can inherit his dead brother's wife. Without going into the complexities of this practice, we note here that such a tradition can conflict, not only with national laws, but also with international human rights laws. The Otieno Case from Kenya is very illuminating--it provides an example of how traditional practices can conflict with national law and how the courts can deal with such conflict: Patricia Stamp, "Burying Otieno: The Politics of Gender and Ethnicity in Kenya," Signs, Vol 16, No. 4 (Summer 1991): 808-845; April Gordon, "Gender, Ethnicity, and Class in Kenya: 'Burying Otieno' Revisted," Signs, Vol. 20, No. 4 (1995): 883-912. In this case, S. M. Otieno, a Luo, was a prominent criminal lawyer in Nairobi, was married to Wambui, a Kikuyu. After Otieno died, his clan blocked the wife's plans to bury her husband in Nairobi, the place where Otieno had spent most of his life and raised 15 children. After a prolonged trial, the courts awarded Otieno's remains to his clansmen for burial in his birthplace in Western Kenya according to Luo custom and tradition. The action against Otieno's widow was initiated by his kinsmen according to their traditions. 

What is the take away from this discussion?: Traditional law is still applicable in any country, as long as such tradition does not conflict with (i) national law; and/or (ii) international human rights laws.

On Wed, Oct 28, 2015 at 1:47 PM, 'dijiaina' via USA Africa Dialogue Series <usaafricadialogue@googlegroups.com> wrote:

Dear All:

I am enjoying this debate, especially that we now have scholars making strenuous efforts to dislodge simple advise to exercise caution by the distinguished moderator.

May I ask any of the contributors to educate me what is meant by placing the constitution above custom?

Is it that customs are no longer part of our legal system?

Is the setting up of institution of Eze of Akure, Alaafin of Kano or Emir of Port Harcourt constitutional? Is this a new treatise in Libertarianism?

Or, in what ways do these illegalities promote nationhood?

I may ask further questions when and if I receive answers to these ones.

Regards.

Ayandiji Daniel AINA, PhD

Professor of Political Science &

Provost, College of Management and Social Sciences

Babcock University,

Ilishan-Remo, Ogun State,

Nigeria.

Main email.          :ainaay@babcock.edu.ng

Alternate emails   :dijiaina@yahoo.com

                             :dijiaina2014@gmail.com

"One of the truest tests of integrity is its blunt refusal to be compromised". Chinua Achebe

On Oct 28, 2015, at 08:38, Ugo Nwokeji <ugo@berkeley.edu> wrote:

"A bloody war was fought over many years to keep the country together- uphold the constitution not custom and tradition. That this conversation is taking place in this forum is a wee bit uncomfortable for me." -- Ogugua Anunoby

Well-said. 

It worries me too, quite frankly. That is why I opened my first contribution by pointing how incongruent that we are having this kind of discussion about citizenship in the 21st century. 

Ugo

G. Ugo Nwokeji

Director, Center for African Studies

Associate Professor of African American Studies
University of California, Berkeley
686 Barrows Hall #2572
Berkeley, CA 94720
Tel. (510) 542-8140
Fax (510) 642-0318

Twitter: @UgoNwokeji

Facebook: facebook.com/ugo.nwokeji

LinkedIn: linkedin.com/profile/view?id=243610869

On Tue, Oct 27, 2015 at 1:17 PM, Anunoby, Ogugua <AnunobyO@lincolnu.edu> wrote:

I do not know that anyone supports the disrespect or subversion of any aspects of the custom and tradition of any part of Nigeria in which they choose to live. The issue for me is whether custom and tradition trumps the laws of the Republic of Nigeria, and also whether communities/groups can pick and choose which laws of the republic they would abide by based on any conflicts and contradictions that custom and tradition may pose. My considered view is that the constitution is the supreme law. All accommodation including custom and tradition must be within and not outside it if the constitution is to mean anything. That seems to me to be the choice that Nigeria have made. All Nigerians should be faithful to that choice.

If I understand it correctly, the Nigeria project is about building and growing an achieving, competitive country that works for all law abiding citizens at all times, in spite of Nigeria's diversity spectrum. A bloody war was fought over many years to keep the country together- uphold the constitution not custom and tradition. That this conversation is taking place in this forum is a wee bit uncomfortable for me. The primacy of the constitution in my opinion, and unalloyed respect of it in spite of different customs and traditions, is the best guarantee of fulfillment of Nigeria's purpose and promise

 

oa.  

 

 

From: usaafricadialogue@googlegroups.com [mailto:usaafricadialogue@googlegroups.com] On Behalf Of Rex Marinus
Sent: Tuesday, October 27, 2015 12:39 PM
To: usaafricadialogue@googlegroups.com
Subject: RE: USA Africa Dialogue Series - Moderator's Caution: Lives Matter

 

Dear Professor Falola:

With due regard to the sentiments that you have reflected here, I'd like to ask you that very simple question that Soyinka asked some nearly two decades ago "when is a nation"? Humane scholarship, as I understand it, permits us to ask the hard and difficult questions, and to give real ambit to our most enlightened conscience. So, let me draw an analogy with some of our experiences here: because the Ku Klux Klan has history and is sacred to some people,  must we therefore never question, or attempt to organize in areas where they hold sway, because it would offend those who find the KKK an important part of their "culture" and "heritage"? Better still, you realize that the foundation of the Nazi idea and of Mussolini's exactly asks us to do very exactly what you have proposed, almost inadvertently? And I'm certain you neither identify with Nazism or Fascism ideologically, although its local variety seems to escape your scrutiny, it seems to me, in the penumbra of  the protective sheets which you now advocate we must wear around the critique of the modern nation in Nigeria.

 

Nations have never been built on these terms. Every right we enjoy today, in the comforts of our current location was gained by blood and sacrifice; by people who were insistent on breaking down the barriers you want us to protect/preserve in Nigeria. It did not come by easy acquiesence.  If they had followed your thinking, sir, you would never mount the distinguished chair you sit upon quite easily and legitimately today in Austin, Texas. There will certainly be no interest in African history in those places. Our particular identities do not foreclose, and need not detain us to the past. Let me give a particularly recent example about why we must not be sucked into the defence of these strange institutions. I do not know if you agree with image of the just dead Ooni of Ife, with his foot resting on his court or ritual slave, who traveled with him t Harvard. As a sign of culture and indication of majesty, the slave knelt before Ooni Olubuse as he sat, while he was a guest of a conference on African Religions in Harvard about five years or so ago. It was a horrifying scene, but there are those who defend it as tradition.

 

If we are unwilling to defend the constitution that grants equality between the Ooni and his ritual slave, by placing limits which it does not place on the individual, simply on the premise that it questions the Ooni, at what point do we then stop talking about the travesty called Nigeria? Why should e worry that corruption exists? Because everytime the Nigerian intellectual talks about democracy, and still defends the rights of the monarchy, they defend a corrupt order. They are either unclear about the conceptual meaning and significance of the terms they use, or they are just being hypocritical. The trouble in Nigeria has remained the limits we are prepared to place on its development as a modern, progressive state; the extreme disregard of its laws by the self-interested elite, and the complicity of the intellectuals who have mostly been willing tools, because they tolerate, accommodate, and perpetuate the most conservative and tyrannical order on that society, sometimes of the lamest excuses: "it is too dangerous to shift the apple carts," we say.

 

 My favorite Nigeria is also the Onigbongbo model. Anybody who likes to go and prostrate to Onigbongbo has the supreme rights. But whoever wants to drink beer in front of the mosque should be free to do so, for as long as it is not inside the mosque. It should neither the business of the imam or the Onigbongbo to decree on whether beer is to be sold or not. If they as much as attempt to disrupt the common life of those who choose to drink beer either in Onigbongo or in Sokoto, the Federal government has the duty and the obligation under our laws to protect the secular convictions of citizens, whether they have lived in Onigbongbo all their lives, or just came to town by bus, that night. It should not matter because that is the basis of our rule of law. When we become selective on which law to defend, or place abstract limits on the rights already guaranteed the citizen, we give leverage to disorder, and to tyranny. I salute you, professor.

Obi Nwakanma

 

---

From: toyinfalola@austin.utexas.edu
To: USAAfricaDialogue@googlegroups.com
Subject: USA Africa Dialogue Series - Moderator's Caution: Lives Matter
Date: Tue, 27 Oct 2015 13:09:01 +0000

Scholars:

 

As you make your arguments, be aware that statements that can generate violence and loss of lives are outside the bounds of scholarly engagements and individual rights. Indeed, such statements are irresponsible. Citizenship has its limits. Freedom has its limits. Rights are not limitless.

 

We cannot be in the comfort of our relocated spaces and not know that we have our brothers and sisters in  Enugu, Sokoto, Makurdi,  Ibadan and other places whose lives deserve to be protected.

 

Localism, irrespective of one's "federalist" position, remains powerful in Africa. You cannot wish away overnight, Zulu identity, even if we make arguments that it was a 19th century creation. Igbo, Yoruba etc. as presently constituted as political identities have not always been with us. But you can no longer wish them away overnight. I cannot go to Benue State and be disrespectful to the Idoma because of modernist arguments.

 

I cannot walk to Sokoto and say that the Sultan is not important, and his right to the Sokoto throne qualifies me to set up what the Sultan will regard as a threat to his throne. There is a history to his throne, and there may be a history to mine as well, but wisdom means that I must be careful as I may not even have the number to fight the Sultan.

 

I am not from Ile-Ife, but I cannot walk to Ife to ask them not to accord respect and dignity to their Ooni. Who am I? Citizenship in most African countries remain connected to places of birth, and I am sure that it will not always be so in the years ahead. You and I do not know when. 

 

Meanwhile, we must protect lives, and not be talking about death to people, in so casual a manner.

 

A mob can be generated within minutes in many places, and the police and army cannot do that much to protect lives, usually of the poor. 

 

Onigbogbo is my favorite joint in Nigeria. I was there last week. Here is the model that works, Muslims and Christians, poor and not so poor, Tiv, Igbo and Yoruba living their lives without many of the arguments we make here. My joint is actually in front of the palace of the Onigbongbo. Indeed, after the Friday mosque, some Muslims joined us to drink beer. The Onigbongbo people see lives differently from the way some of the scholars see things.

 

Exercise caution. 

 

Life is sacrosanct. One life should not be lost because of temporary political exigencies in a country that was cobbled together and where secular institutions remain either weak or not functioning well.

 

CAUTION

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