The Repugnancy and Incompatibility Tests and Customary Law in Anglophone Cameroon

by Mikano E. Kiye

Abstract

Contemporary customary law in Anglophone Cameroon has undergone a severe transformation since the coming in force of the Southern Cameroons High Court Law (SCHL), 1955. Prior to its enactment, customary law was administered by village authorities and was not subjected to any requirements. The SCHL is an influential piece of colonial legislation applicable in the former Southern or West Cameroon (currently the two Anglophone South West and North West Regions). Apart from establishing the competence of the then High Court, the legislation provides for the reception of English law into the territory and for the enforcement of customary law subject to passing duality tests—the repugnancy and incompatibility tests. Section 27(1) governs   enforcement of customary law. Seemingly, the provision had the objectives of guaranteeing the survival of customary law in Anglophone Cameroon and eliminating offensive customary practices, thereby provoking in the people a sense of reform of customary rules. However, contemporary developments revealed that inasmuch as Section 27(1) has secured the survival of customary law (as interpreted by lawyers) over the years, it has also generated a number of conceptual and practical difficulties in the enforcement of customary law by the statutory courts. There are no clear standards in determining repugnancy and this has led to uncertainty in the application of customary law. Further, the duality tests have led to a divergence between the customary law recognized by the court and that recognized in society, the consequence being that a new version of customary law has arisen which does not reflect socially recognized norms. Alternatively, through the application of the duality tests, a new version of customary law is created by the statutory courts and then institutionalized in the legal system.

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Mikano E. Kiye is Assistant Lecturer of Law at the University of Buea, Cameroon. His research focuses on comparative law and legal theory and on the interaction between ancestral customary law and human rights values in sub-Saharan Africa.