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Abstract

The repugnancy doctrine was introduced in Cameroon in the 18th Century through received English laws. This doctrine prescribes that the courts shall not enforce any customary law rule if it is contrary to public policy or repugnant to natural justice, equity and good conscience. The doctrine is generally criticised for its use of foreign standards to assess the validity of the customary law rules. This article, however, contends that repugnancy doctrine had played a positive role in the development of customary law in Cameroon by removing it harsh aspects. Most African country repealed the repugnancy provisos when they obtained independence, but Cameroon still retains it. The article makes reference to the position in South African. In the South African context, this article found that the repugnancy proviso had outlived its usefulness and courts now apply customary law subject to the constitution and any legislation that specifically deals with customary law. This position, the article commends for Cameroon

Keywords

Repugnancy Clause incompatibility clause Customary Law Customary Court

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How to Cite
TCHANA Anthony NZOUEDJA. (2021). Repugnancy And the Incompatibility Clauses and Their Impact on Customary Law: Some Lessons for Cameroon. Zien Journal of Social Sciences and Humanities, 2, 14–26. Retrieved from https://zienjournals.com/index.php/zjssh/article/view/188

References

  1. In the Nigerian case of Agbai v. Okogbue;7 N.W.L.R Part 204, 391 at 417. The judge apparently considered that the courts could contribute to the process of adopting customary usages to changing situations through the application of the repugnancy test. As he stated in his judgment:” Customary laws are formulated from time immemorial. As our society advances, they are more removed from its pristine social ecology. They meet situations which were inconceivable at the time they took root. The doctrine of repugnancy in my view affords the courts the opportunity for fine tuning of customary laws to meet changed social conditions where necessary, more especially as there is no forum for repealing or amending customary laws. I do not intend to be understood as holding that the courts are there to enact customary laws. When however customary law is confronted by a situation, the courts have to consider its application under existing social environment.”
  2. (HCK/AK/K.38/97/92), 1999
  3. CASWP/CC/12/98 Unreported
  4. Reported in CCLR, Part 5, 189, 194
  5. (2001) 15 N.W.L.R (Pt. 736) p. 377, See also the more recent case of Salubi v. Nwariaku (2003) 2 S.C. p. 161 at 169- 170