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Towards an African Feminist Jurisprudence on the Development of Land Law and Rights in Nigeria 1861- 2011

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Towards an African Feminist Jurisprudence on the Development of Land Law and Rights in Nigeria 1861- 2011 LEGAL IMPERIALISM AND THE DEMOCRATISATION OF LAW: TOWARDS AN AFRICAN FEMINIST JURISPRUDENCE ON THE DEVELOPMENT OF LAND LAW AND RIGHTS IN NIGERIA 1861- 2011 by ADETOUN OLABISI ILUMOKA BA (Hons.) Law The University of Kent at Canterbury, 1981 LLM. The University of Warwick, 1985 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) October 2013 © Adetoun Olabisi Ilumoka, 2013 Abstract This thesis examines the role of law in the establishment of colonial rule in Nigeria in the 19th and early 20th century and argues that the legal imperialism of this period continues to characterize the post- independence modern legal system creating a crisis of legitimacy, relevance and justice which can only be resolved through a process of democratization of law. Focusing on a case study of the development of land law in Southern Nigeria, from 1861 to 2011, and its impact on women’s land rights, the thesis explores the continuities and discontinuities in land use policy, law and practice and options for democratic reform. It demonstrates that there has been a growing centralization and concentration of power over land in this period, which tends to result in widespread abuse and the dispossession of large groups of people of access to land and livelihoods. It shows how women have been disproportionately affected by these developments and how their dispossession has been facilitated by a colonial legal system – through its discourse, legislation and processes of conflict resolution. Colonial conceptions of law and of gender have intersected to produce a dominant discourse and practices relating to “customary” and “modern” law and rights that goes largely unchallenged today. This thesis analyses these intersections adopting an historical and contextual feminist approach, which I have termed an African feminist jurisprudence, using the term jurisprudence here to mean the philosophy of law. It calls for a shift of emphasis from the customary/modern law dichotomy to focus on substantive issues of equality, equity and justice in law reform as well as the active participation of citizens in governance. ii Preface A segment of Chapter 4 was expanded and published in the Chicago-Kent Law Review in 2012 - Adetoun Ilumoka, Globalization and the Re-establishment of Women’s Land Rights in Nigeria: The Role of Legal History. Chicago-Kent Law Review; 2012, Vol. 87 Issue 2, p 423. iii Table of Contents Abstract .......................................................................................................................................... ii Preface ........................................................................................................................................... iii Table of Contents ......................................................................................................................... iv List of Maps ................................................................................................................................ viii List of Abbreviations ................................................................................................................... ix Acknowledgements ........................................................................................................................x Dedication ..................................................................................................................................... xi Chapter 1: Introduction ................................................................................................................1 1.1 Background ............................................................................................................. 1 1.1.1 Decolonizing Law - Land Law Reform .......................................................... 6 1.1.2 Gender Dimensions of Law Reform and Development .................................. 7 1.2 The Significance of the Research Study ............................................................... 10 1.3 Methodology and Sources ..................................................................................... 12 1.3.1 A World Systems Approach ......................................................................... 13 1.3.2 A Feminist Approach .................................................................................... 19 1.3.3 Critical Legal Studies and A Feminist World Systems Approach: Implications for the Analysis of Law............................................................ 23 1.3.4 Sources .......................................................................................................... 29 1.4 Outcomes of Research and Contribution to Knowledge ....................................... 30 Chapter 2: Law in the Establishment of Colonial Relations in Nigeria .................................34 2.1 Early History of the Niger Area ............................................................................ 34 iv 2.2 The Establishment of Colonial Relations in Nigeria ............................................. 42 2.3 The Early Constitution of Lagos ........................................................................... 44 2.4 The Colonization of Lagos .................................................................................... 47 2.5 The Role of the Returnees : the Saro/Krio Factor ................................................. 52 2.6 Law and Social Change in Southern Nigeria ........................................................ 54 2.7 The Development of New Judicial Institutions ..................................................... 57 2.8 Indirect Rule and the Administration of Justice beyond the Coastal Areas .......... 64 2.9 Conclusion ............................................................................................................. 67 Chapter 3: Land Law and Social Change in Southern Nigeria 1861-1961. ...........................70 3.1 Introduction ........................................................................................................... 70 3.2 Colonial Legislation and Commissions of Inquiry. .............................................. 71 3.3 A Review of Selected Landmark Land Cases in the early 20th Century. .............. 78 3.4 Colonial Common Law: Expediency, Coherence Or Confusion? ........................ 88 Chapter 4: Social Change and Women’s Land Rights in Nigeria ...........................................96 4.1 Introduction ........................................................................................................... 96 4.2 Women, Law and Social Change in the Colonial Period: Women’s Land Rights in Context ................................................................................................... 99 4.3 The Courts as Sites of Struggle and Change: A Review of Some Landmark Cases .................................................................................................. 110 4.3.1 Women’s Land Rights in South Eastern Nigeria ........................................ 125 4.4 Women, Modern Constitutions and Customary Law .......................................... 134 Chapter 5: The Nigerian Land Use Act 1978 : Continuity or Change? ..............................150 5.1 Introduction ......................................................................................................... 150 v 5.2 Background to the Land Use Act 1978 ............................................................... 153 5.3 The Land Use Decree 1978 – A Summary of Provisions ................................... 156 5.4 Calls for Reform .................................................................................................. 160 5.5 Reform Processes ................................................................................................ 164 5.6 The Land Use Act and Women’s Land Rights. .................................................. 169 5.7 Capitalism and Legal Change in Nigeria ............................................................ 175 Chapter 6: Customary Law, Legal Imperialism and the Democratization of Law in Nigeria: Issues Arising. ..............................................................................................................181 6.1 Introduction ......................................................................................................... 181 6.2 Understanding Colonial Law and Legal Systems .............................................. 184 6.2.1 The Creation of Customary Law Thesis ..................................................... 189 6.2.2 A Creation of Colonial Law Thesis ............................................................ 194 6.2.3 The Nigerian Discussion and Debate .......................................................... 210 6.3 Beyond the Colonial Bifurcation of Customary and Modern State Law. ........... 220 6.4 Women, Legal Imperialism and Customary Law in Nigeria: Suggestions for Engagement. ........................................................................................................ 225 Chapter 7: Conclusion – Beyond Legal Imperialism: Decolonization and Democratization of Laws and Legal Systems. ......................................................................................................235 7.1 Background ......................................................................................................... 235 7.2 Legal Imperialism and Colonial Impacts ...........................................................
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