Legal Pluralism and Child Identity: The Interplay of Igbo Worldview and English Traditions in Chinweze & Anor v Masi & Anor

Abstract

Chinweze v Masi marks a critical juncture in the interaction of the rights and social status of children of deceased husbands within the Nigerian legal system. This paper explores the implications of the interaction within the broader framework of children’s rights to identity embodied in the United Nations Convention on the Rights of the Child. It underscores the precarious position of these children caught between traditional expectations and modern legal standards. The findings highlight the non-alignment of the rule laid down in the case with child rights protection principles and advocate for culturally sensitive legal structures that respect cultural traditions while upholding children’s rights.

JEL Codes: K36–39

Keywords

Identity legal pluralism paternity reassignment right to identity

Introduction

Meet Obuadazie, a 14-year-old boy who needs a local government certificate of origin as proof of identity to complete the documentation required for an academic scholarship application. For this, he journeyed to the headquarters of Aniocha South Local Government, his local government of origin in Nigeria. This makes him of the Igbo ethnic group, west of the River Niger like other persons who trace their ancestry to that part of Nigeria (Mordi and Opone, 2008; Nwaokocha, 2015). Upon expressing interest at the Secretariat, a local government staff posed the question, ‘onye ki i bu’ (who are you?). The required response to this is a recital of his identity, including paternity, genealogy, clan, kindred and community markers. Obuadazie was unsuccessful on the first attempt. His error was that of including in the patrilineal ancestry recital, the clan within which he had the station and role of a son. Unknown to him, there was no blood tie between him and this clan. The certificate of origin was issued after further interrogation confirmed that his mother was an indigene of the local government. During the process, a staff of the council described him as ‘a butterfly that thinks of itself as a bird’. The staff further volunteered the information that Obuadazie was born 3 years after the demise of his mother’s husband, a member of the clan which he had assumed was the source of his patrilineal ancestry. As per the information, the mother lived with the clan because of the nuptial relationship without being in a levirate marriage relationship with any of the male relatives of her deceased husband.

Based on this, I wager that the Obuadazie who left the Secretariat after the revelation was a different person from the one who initially walked in. At the very least, he acquired added information about his ancestry and identity. This reflects the reality faced by many Nigerian children of Igbo descent, who because of their ancestry and identity often find themselves in precarious social positions. It is also the basis for the question: what is identity? At the risk of sounding ontological, the answer is that identity is the premise on which individuals build a sense of self and uniqueness. Identity also facilitates the alignment of individuals with specific family-based and/or cultural roles. It denotes a fundamental and significant sameness within a group or category (Brubaker and Cooper, 2000) and is the product of social categorisation and/or classification (Stets & Burke, 2000). Beyond this, it undergirds the trio of family, clan and community, which are the basis of the sociolegal status and identity of individuals within the society (Osuji, 2023).

At this juncture, a clarification is necessary. Every inquiry, investigation or analysis (this inclusive) is inherently partial as they are framed, located and filtered through the eyes of the enquirer or investigator (in this case, me as the author; Kondo, 1990). Like Obuadazie, I am first Onye Igbo (i.e. a person of Igbo descent). While conceding that spatiotemporal difference exists amongst people of Igbo ancestry across Nigeria, there is sufficient homogeneity to allow for their consideration as a unit in the context of this paper. This allows for the positioning and framing of the argument in this paper. To this end, subsequent reference would be to the Igbos, the third largest ethnic group in Nigeria. Ndi Igbo (i.e. Igbo people) have attracted considerable attention for diverse reasons ranging from their role in the Nigerian Civil War (Obi-Ani, 2009; Okwuosa et al., 2021) to their proclivity for business (Adeola, 2020; Ekekwe, 2021; Kasum, 2023; Onyeizugbe, 2020). Of interest to this paper is their conceptualisation of personhood and identity. As would be espoused subsequently, amidst Omenani Ndi Igbo – the corpus of traditional thought, knowledge, philosophy and the law indigenous to the Igbo people of Nigeria – personhood and identity are contemplated within a biosocial construct and not the narrow confines of genetics or intrinsic qualities like consciousness, rationality and autonomy.

The preceding suffices for now, as more space would be subsequently dedicated to Omenani and other concepts that collectively provide a conceptual framework for this paper. Drawing on a reference in Chinweze & Anor v Masi & Anor (1989) (subsequently referred to as Chinweze v Masi) regarding the identity of children purportedly fathered by dead husbands, this paper explores Nigeria’s corpus juris which comprises interacting normative frameworks shaped by Nigeria’s diverse as well as divergent legal and cultural heritage, which often embody conflicting principles, objectives and values. In this regard, the paper foregrounds the protective dimension of Igbo custom of paternity reassignment and challenges the dominant thought on identity, which advances Eurocentric perspectives on child rights, family structure and their role in the upbringing of a child. It argues that the customary practice vests and preserves the identity of children purportedly fathered by dead husbands, integrates them into a family system and protects them from social exclusion. To this end, Omenani and the right of the child to identity enshrined in the United Nations Convention on the Rights of the Child (UNCRC) serve as the lens through which the decision in Chinweze v Masi is examined. Together, they allow for the focus of attention on the complex interactions, dynamics and interconnections of the normative orders which they create amidst the sociolegal construct that is Nigeria (Bochmann, 2023).

While it is acknowledged that the right of the child to identity in the UNCRC has been domesticated in Nigeria’s Child Rights Act 2003 (CRA) and the Child Rights Laws (CRLs) of states in Nigeria dominated by the Igbo ethnic group, this paper does not engage further with these domestic instruments. This decision is based on two considerations: the first is that the core principles of the UNCRC have been elevated to the status of opinio juris and customary international law by its near universal ratification and implementation (van Bueren, 1998). The second is the need to achieve an analysis unaffected by the spatiotemporal variance inherent in the respective Nigerian legislation or states. Consequently, the analysis focuses on the principles enshrined in the UNCRC instead of the CRA or the CRLs of states in Nigeria dominated by the Igbo ethnic group. Furthermore, this approach allows for the consideration of the latter as tools utilised for the promotion and elevation of Western praxis, knowledge and their penetration into non-Western societies like Nigeria (Imani, 2008). The paper calls for a jurisprudential shift towards the recognition that the Eurocentricity associated with the Nigerian legal system does not adequately account for the diverse sociocultural norms cum realities that characterises Nigeria. It also highlights the fact that the Eurocentricity associated with the Nigerian legal system does not address potential conflicts or tensions that may arise in the course of its interaction with indigenous customs, social codes or behaviour built on or actuated by indigenous customary laws. It recommends a contextual approach that fuses indigenous practices and modern legal principles.

The foregoing and other themes are elaborated beyond this introduction. In this regard, the paper proceeds as follows. Part 2 pertains to the methodology adopted for the analysis in this paper. Part 3 defines the key constructs necessary for achieving and understanding the objective of the paper. Part 4 highlights the implications of the interaction of Igbo customs and practices with English-derived legal principles for the identity of children like Obuadazie. Part 5 concludes the paper with recommendations.

Methodology

This paper uses an autoethnographic approach, a research methodology distinguished by its emphasis on the sociological involvement of the researcher as both the subject and the analyst. This approach is suited to studies focused on personal experience. It is also ideal for issues with which the researcher has a deep personal connection. The foregoing is because an autoethnographic approach to research allows the researcher to leverage first-hand experiences as primary data, integrating them with analytical thought to uncover their implications and connections to larger societal structures. Furthermore, it allows for a deeply reflective and contextually rich exploration of the subject matter (Anderson, 2006).

Also, with this approach, I humanise abstract legal concepts and sociocultural issues as well as integrate first-hand experiences with analytic thought to facilitate understanding of the complexity and implications of their interaction within a particular context. In the course of the foregoing, I combine my lived experience as an Onye Igbo – which makes me both an observer and active participant in the manifestation of Omenani Ndi Igbo (Butz and Besio, 2009) – with my understanding of the Nigerian legal jurisprudence to achieve a nuanced analysis of the subject of the identity of children fathered by dead husbands amidst the framework of the decision in Chinweze v Masi (1989), Omenani and the principle of the right of the child to identity enshrined in the UNCRC.

Conceptualisation

Conceptualisation is crucial because it defines key concepts, constructs or variables. It also brings about the clarity that is essential for the prevention of ambiguity about the objective(s) that underpin this paper. To this end, the focus is on legal pluralism, Omenani, children of ‘dead husbands’, identity and the right to preservation of identity under the UNCRC, as they are at the core of the analysis.

Legal pluralism

Legal pluralism arises from the simultaneous existence and operation of multiple normative or legal systems within a jurisdiction (Merry, 1988). In the case of Nigeria, it is a legacy of British colonialism. In varying degrees, the colonial administration incorporated indigenous normative frameworks and dispute resolution mechanisms into its imposed legal system. The reasons for this recognition include economic motives, the maintenance of order, the need to secure social legitimisation and institutionalisation of their rule (Diala, 2014, 2017, 2019; Swenson, 2018). The recognition resulted in the coexistence of received English law with the indigenous laws of the ethnic nationalities that constitute Nigeria. However, the indigenous customary laws prescribe normative frameworks that remain largely unwritten and devoid of universal application across Nigeria. The latter is a consequence of the multiplicity of ethnic nationalities in Nigeria.

The received English law holds primacy in Nigeria’s plural legal system. It manifests as state-enacted legislation and is the fons et origio of the justice administration system. In contrast, indigenous customary laws occupy a lesser position. The relationship manifests in the Constitution of the Federal Republic of Nigeria 1999 (CFRN), which recognises and moderates the pluralistic nature of the Nigerian legal system. Amongst other things, section 6(5) of the CFRN establishes Sharia¹ and Customary Courts of Appeals. Additionally, section 277 provides that a Sharia Court of Appeal in any state that requires it shall have jurisdiction in matters relating to marriage, inheritance and family relations amongst Muslims. Furthermore, section 282 provides that the Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law. However, there is no constitutional framework regulating the coexistence of the received English law (or the legislation of the state that is founded on it) with the indigenous customary laws.

There is also the issue of the recognition tests (i.e., the repugnancy and statutory enforceability² tests). The former can be abstracted from section 18(3) of the Evidence Act 2011, the Rules of Court and the legislation establishing the courts.³ The test stipulates that a custom shall not be applied if it is contrary to public policy, natural justice, equity and good conscience. While the scope of the distinct elements of the test is subject to conjecture (Diala, 2014; Nwocha, 2016; Taiwo, 2009), Nigerian courts have applied it in cases involving customary law issues. In Anekwe v Nweke (2014), the test was the basis for the condemnation by the court of a custom that prevented widows from inheriting the estate of husbands who died intestate. On the other hand, the statutory enforceability test mandates that for a custom or customary law to be enforceable, it must not be incompatible with any legislation law for the time being in force. Compatibility with legislation extends to the customary law being consistent with the CFRN. Where a custom or customary law fails the test, pursuant to section 1(3) CFRN, it shall be to the extent of its inconsistency, void, inapplicable and of no legal effect. The existence and use of these tests imply that the determination of whether an indigenous customary law is enforceable is according to rubrics built on the framework of the received English law (Enabulele and Bazuaye, 2019). This outcome is a consequence of the fact that the assessment is usually undertaken amidst a system rigged like that of the English and manned by functionaries who are schooled in the English idea and contemplation of law (Diala, 2018; Taiwo, 2009).

Consequently, the conclusion is that in Nigeria, legal pluralism does not entail the existence and operation of multiple normative or legal systems on equal footing. An example is section 1 of the CFRN, which stipulates that if any other law is inconsistent with its provisions, the latter shall prevail, and the law shall be deemed void to the extent of the inconsistency. The operation of this provision extends to indigenous customary law as seen in Ukeje v Ukeje (2014), where the Supreme Court, relying on this provision, declared inconsistent and unconstitutional, a customary law that disinherits female children from the estate of their deceased father. The foregoing brings about the modification of indigenous customary law amidst the legal system (Diala, 2014, 2019; Uweru, 2008). Noteworthy is that the modification leads to changes in behavioural patterns that are alien to the person’s subject to the indigenous normative customary practices. It is this development that makes Chinweze v Masi (1989) symbolic of the broader challenges and sometimes opportunities that (could) manifest when indigenous customary laws or practices and transplanted standards introduced via the received English law interact in Nigeria.

Omenani

Omenani is the corpus of traditional thought, philosophy and the law indigenous to Ndi Igbo. It relates to Ani – a central deity in Igbo cosmology – revered as the custodian of the land and all life upon it. It is also the spiritual force, which wields considerable influence over both individual and communal identities (Ikwuemesi, 2023). Ani’s underscores the intrinsic link between the people, their land and their cultural ethos, while Omenani represents a worldview that integrates Igbo lore, customs, traditions, beliefs and practices. These elements, as part of Omenani, serve as both a guiding philosophy and a code that dictates social conduct or interaction, ethical norms and legal principles amongst Ndi Igbo (Areji and Anyaechie, 2015).

Furthermore, Omenani provides a framework for interpreting and connecting the physical to the metaphysical worlds as well as the attainment of a cordial relationship between them (Ele, 2019). In this regard, it encapsulates practices, underlying philosophical and ethical principles that define Ndi Igbo, doubles as their moral compass – denoting that which is acceptable and the reprehensible (Isiguzo et al., 2004). It reinforces a collective identity and a sense of belonging (Ihejirika, 2021). Thus, it is pivotal in preserving and perpetuating Igbo identity, underpinning the indigenous knowledge systems and is a referent for behavioural patterns of individuals of Igbo descent. It also prescribes normative guidelines. This means that Omenani is the living law of Ndi Igbo, implicit in their worldview, connected to their moral values but different from common law or law enacted by any competent legislature in Nigeria. Its form is the consequence of common usage and acquiescence over a long time by Ndi Igbo. Oyewunmi v Ogunesan (1990) and Yampa & Ors. v Babareke & Anor (2016) emphasised this regarding Omenani and every other indigenous customary law associated with Nigeria. In the latter case, the Court of Appeal of Nigeria held that:

. . . customary law is a reflection of accepted usage and culture of a given people. It is the subsisting native law and custom as opposed to an antediluvian belief and custom not in touch with the present generation. Customary law is not static; it is organic in nature and develops along with the society wherein it is operative. The law remains relevant to the developing society in regulating the lives and transactions of the indigenous people of the area it applies. (Oyewunmi v. Ogunesan, 1990: 207) [emphasis added]

Hence, Omenani differs from the Igbo customary law recognised by the judicial system or recorded in judicial precedent and codified in legislation (Diala, 2014, 2017). However, the monopoly of Omenani as an indigenous legal order ended with colonisation. It coexists along with English law as de facto and de jure normative frameworks within the Nigerian legal system (Nwabueze, 2002b; Quane, 2013; Yakubu, 2005).

Children of the dead husband

At the council secretariat, amongst other things, Obuadazie received schooling in Omenani and was made aware that he was the child of a dead husband. The concept of children of a dead husband is characterised by the fact that the child was conceived after the death of the person who is regarded as the father. This can arise from several situations. There is the case of nwunye nkuchi (i.e. levirate marriage) practice, which entails the marriage of a widow to the brother of a deceased husband. Another scenario arises when a widow, who is not in a levirate marriage, gives birth to a child who could not have been fathered by her deceased husband, while still residing in the matrimonial home or without severing the affinal relationship. Another is the ghost marriage practice, which entails the contracting of a marriage by the family of a deceased man with a woman on his behalf (Ewelukwa, 2008). In all the cases, the paternity of such children is reassigned from the genitor or putative father to the deceased husband.

The concept of children of dead husbands is part of Omenani Ndi Igbo and the product of the interaction between three related precepts. The first is the understanding that marriage is an undertaking entered into by two different families, which brings about their union and extends kindred ties across communities. As such, marriage transcends the couple. It creates affinal relationships and vests status (Onwuzurigbo, 1990). Due to its significance, rules of exogamy, endogamy and homogamy were formulated to regulate marriage amongst the Ndi Igbo (Okonjo, 1992). Secondly, receipt by the bride’s family of the bride price – also referred to as bride wealth in the form of monetary payment, gifts, goods and services – from the groom and his family is a precondition for the recognition and legitimisation of marriage as well as the status of the parties to the marriage (Nwabude, 2022; Oboko and Ifeanyichukwu, 2021). In Obi & Ors v Bosah & Ors (2019), payment of bride price (and handing over of the bride to the groom) were declared as the two determinants of valid customary marriage amongst the Igbos by the Nigerian Court of Appeal. Isiugo-Abanihe (1995) confirms the foregoing (and more) with a succinct description of the importance of bride price, thus:

Bride wealth serves at least three important and related functions in Igboland. First, is a sign of the legality of a marriage, and confers on the groom rights and obligations over his wife and children. For instance, a man who has not paid the required bride wealth on a woman does not claim fatherhood of a child of the relationship. In most of Igboland, usually a child born out of wedlock belongs to the maternal grandfather rather than to the biological father, even if he eventually marries the woman by paying the bride wealth. To forestall such embarrassing situations, the marriage negotiation is promptly concluded and the bride wealth quickly paid to secure rights over the pregnancy. On the contrary, a woman for whom the bride wealth has been paid can move in with the man, even without a formal wedding ceremony. Thus, bride wealth payment, which among the Igbo is called ‘payment for a wife’, legitimizes a marital union and gives a man custody over all children born by his wife subsequent to its payment, including those fathered by other men in the event of a separation or divorce, unless the bride wealth has been refunded in full. (Isiugo-Abanihe, 1995: 155) [emphasis added]

Thirdly, amongst Ndi Igbo, the death of either of the couple does not terminate or prevent the contracting of a marriage (Attah & Iyamu-Ojo, 2021; Ebeku, 1994; Nwabueze, 2002a). This is because, according to the Igbo worldview, death does not mark the end of human existence (Ikwuemesi, 2023). Consequently, any relationship or status resulting from a marriage involving persons of Igbo ancestry remains valid even after the death of one or both parties to the marriage, provided the bride price paid has not been returned by the bride’s family. In Ezeaku v Okonkwo & Anor (2011), the preceding was reaffirmed when the Nigerian Court of Appeal held that a marriage under Igbo native law and custom can only be terminated by refunding the bride price. Where the preceding is not the case, the marriage, affinal relationship, identity, consequential obligations and status subsist (Iroegbu, 2002) even after the death of either of the parties to the marriage. And any child born by the wife during the pendency of the marriage is the child of the husband (deceased or otherwise), is a member of his kindred (Attah and Iyamu-Ojo, 2021) and entitled to all consequential accruals.

Identity

Part of the schooling received by Obuadazie was the dimensions of identity. Based on the interaction at the council secretariat, the conclusion is that identity is a crucial construct and foundational element for understanding individual and collective human behaviour. The exploration of identity employs various theoretical frameworks. One is Stets and Burke’s identity theory, which highlights the relationship between the roles inhabited by individuals, their expectation of self, and how the associated norms shape their identity. They argue that when a person is part of a family, the person is in a role or a social location (Stets and Burke, 2000). This creates consequential self-expectations, intra-family expectations and expectations external to the family as well as self-understanding and construction of the social milieu (Brubaker and Cooper, 2000).

Furthermore, identity is non-linear; it develops and evolves in complex sociocultural and historical contexts rather than in isolation. It is also fluid and a composite. Kondo’s (1990) argument that identity is not a fixed, unitary essence but a dynamic multifaceted construct shaped by various social, cultural and historical contexts as well as Brubaker and Cooper’s (2000) critique of identity and argument for a more nuanced understanding that transcends binary categorisation, supports the foregoing. The assertion is also in alignment with the focus of identity theory on the internal process of role adoption as well as identity formation based on societal frameworks (Stets and Burke, 2000). The foregoing provides an understanding of the nexus between culture and (formation of) identity. The former influences and is part of the latter.

An alternate perspective of the relationship between culture and identity is reductionist and strips individuals of their links to the community or intra- and inter-group recognition. Hence, recognition of the interplay between identity and culture is crucial, as cultural contexts shape and are shaped by individual and group identities as well as influence personal development and social integration (Presbey, 2002; Ronen, 2016). This manifests in the communal nature of identity amongst Ndi Igbo. It is a key part of socialisation in Igboland. This is embodied in aphorisms like – ‘ofu onye adi amu nwa’ (i.e. one person does not beget a child) or ‘ofu onye adi azụ nwa’ (i.e. one person does not train a child) – which emphasises that the birth, identity and upbringing of a child are not the sole preserve of the genetic parent(s) (Ikwuemesi, 2023). This identity vested by the community is a manifestation of the role and influence of the family writ large vis-à-vis the individual. This means that amongst Ndi Igbo, the family has an extended or more expansive interpretation. Attah and Iyamu-Ojo (2021) affirmed the foregoing when they argued that a family is a corporate entity vesting communal or corporate membership on its constituents. The contemplation extends the concept of family to a wider array of relationships and connections. Thus, amongst Ndi Igbo, in addition to the nucleic structure, the family includes extended family members, affinal relations, friends, community members, ancestors, deities, spirits and Ani the earth goddess. This is because they play significant roles in a person’s life (Obioha, 2020).

Growing up in an Igbo community advances the psychosocial development of children. This is because it inculcates in children their identity and elevates the latter to a communal identity, which shapes their worldview. Consequently, amongst Ndi Igbo, identity determines social, political and economic organisation (Osuji, 2023). The situation of persons tagged as Osu amongst Ndi Igbo offers a vivid illustration of the foregoing. Historically, Osus were individuals designated as outcasts or untouchables. They are the subject of severe social stigmatisation and discrimination. This identity is a creation of the Igbo society at a point in time. Later it became associated with blood ties as it was assigned to subsequent generations and affirmed by society again with the creation of (e.g. endogamic and homogamic matrimonial rules), roles and expectations. Stets and Burke’s identity theory provides premises for the foregoing conclusion. It posits that an individual’s identity is shaped by the roles they inhabit within society, along with the associated expectations and norms. Similarly, Kondo argues that:

. . . identities are contextually constructed within fields of power and meaning and cannot be easily separated from specific situations, from culturally specific narrative conventions, or from abstractions we label history, politics, and economics. Identity here is not a unified essence, but a mobile site of contradiction and disunity, a node where various discourses temporarily intersect in particular ways. (Kondo, 1990: 47) [emphasis added]

For the osu, their roles were rigidly predefined and constructed by the traditional caste system. The societal expectation or culturally specific convention is that they would remain separate from the rest of the community, often living on the outskirts and subject to several restrictions. This status is internalised from infancy and reinforced by cultural or customary norms in the community. It ingrains in the individual a sense of identity that impacts the individual’s self-esteem and ambitions. In real terms, it is the basis for the development of the osu–diala interactions despite legal and social efforts to eradicate the customary practice (Amalu et al., 2021; Dike, 2002; Ghosh (Paul), 2019). Hence, amongst Ndi Igbo, identity is not only based on biology. A society or community shapes identity. Thus, the identity of a child is not entirely a derivative of genetics but determined per the dictates of the family writ large and Omenani – the living law of Ndi Igbo.

Right to identity and its preservation

Articles 7 and 8 of the UNCRC provide a framework for conceptualising the right to identity and its preservation. Together they provide the basis for the recognition of children as independent human beings with their legal personality, a right to name, nationality and family relations acquired at birth (Arkadas-Thibert, 2022). In the absence of their recognition, children cannot access the full spectrum of rights afforded to them under the law. This development can negatively impact a child’s survival, health, physical and psychological development. Hence, it is not merely a legal formality but vital in the enforcement of the rights of children, enabling them to participate fully and effectively in society. Chhangani and Gidado (2000) underscored the foregoing when they argued that in the absence of the right the child becomes a non-legal person at the national level and stateless at the international level.

It should be noted that the recognition of the right to identity and its preservation is facilitated by the acknowledgement of the critical role of the child–parent and child–family relationships in shaping the identity and development of the child. To this end, it incorporates a vital provision that underscores the best interests of the child: the right of children to know their parents and family. Relevant to the foregoing is the definition of ‘family’. According to the UN Committee on the Rights of the Child, a family is:

. . . a variety of arrangements that can provide for young children’s care, nurturance and development, including the nuclear family, the extended family, and other traditional and modern community-based arrangements, provided these are consistent with children’s rights and best interests. (United Nations Committee on the Rights of the Child, 2005)

Although the UNCRC effectively imposes worldviews and traditions that are alien to a lot of signatories (Nigeria inclusive; Gal, 2011), Article 20(c) of the UNCRC emphasises the importance of recognising and preserving children’s connection to their religious, ethnic, linguistic heritage and cultural normative frameworks (like Omenani). This must be considered when determining what is in their best interest. This has the benefit of ensuring that there is minimal disruption to the children’s identity as well as ensuring that they continue to develop a keen sense of self and connection to their heritage. Based on this, the conclusion is that even amidst the international framework relating to the recognition of the personhood and status of a child, a family (and its constituents) can be conceived beyond the confines of blood ties or genetics (Dambach and Cantwell, 2024).

Based on the foregoing, commune–cultural structures are variables taken into cognisance in the determination of the identity of children. Attah and Iyamu-Ojo (2021) describe commune–cultural structures as liberal, subjective and function-based models used by indigenous communities in Nigeria to formulate family arrangements in a manner that highlights the unique nature of the customs of the communities. This means that they are a creation of the customary framework. Amongst, Ndi Igbo fundamentals like bride price payment, paternity reassignment, obi (i.e. family unit constituted by persons who share paternal/maternal ties), umunna (i.e. kindred or clan made up of different obi) and ogbe (i.e. a quarter which is comprised of different umunna) are the commune–cultural structures which should be taken cognisance of when the right of children like Obuadazie to identity and its preservation is being contemplated. This is because a person’s identity amongst Ndi Igbo is built on these structures, which are not entirely founded on genetics or blood ties. Together, they identify the person within the society. Hence, amongst Ndi Igbo, when a child is faced with the question ‘onye ki i bu’ (i.e., who are you?), the actual question put before the child is that of identity and identification in terms of ogbe, umunna, obi and not only genetics. The expected answer is that which is indicative of the identity of the parentage, lineage, clan and community of origin. This is because, amongst Ndi Igbo, a person is identified in terms of a particular family, kindred and community (Obasi and Nnamani, 2015).

Chinweze v Masi

In the previous part, the framework for the determination of the identity of a child within the Igbo sociolegal context. At the least, it makes clear that amongst Ndi Igbo, the identity of a person is a consequence of the interaction of biology and society, and highlights the consequential complexities associated with the interaction. Beyond that, the previous part provides a premise for this part where I explore the conflict that (could) arise from the intersection of customary practices and the anglicised aspect of the Nigerian legal system. As shown later, Chinweze v Masi (1989) illustrates this conflict. The case underscores the practical implications of these conceptual issues, particularly how children’s identity, paternity reassignment and legal recognition are navigated within the gamut of Nigerian jurisprudence. By analysing this case in this section, the interaction between Igbo customs and contemporary legal standards will be explored, along with its implications for preserving children’s right to identity in Nigeria.

The facts of the case are that Peter Chinweze, who was married to Elizabeth Chinweze, passed away in 1939. At the time, Elizabeth, his wife, was pregnant with Veronica Masi (first Respondent). Consequently, Elizabeth and Veronica became joint heirs until Elizabeth’s death. The appellants were children born to the late Elizabeth from 1943 onwards while residing in her deceased husband’s property without remarrying. The appellants had also lived on the disputed property since childhood. After Elizabeth’s demise, the first respondent sold the property to the second respondent. The appellants, who claimed to have grown up believing the property was theirs, sued as beneficiaries of Elizabeth Chinweze’s estate. The second respondent subsequently joined as a party in the High Court. In the High Court, the appellants – then plaintiffs – were deemed strangers with no legitimate interest in the property, which had been left to Elizabeth Chinweze by her husband, who was not their father. As a result, the court dismissed the plaintiffs’ claims. Dissatisfied with the trial court’s judgement, they appealed to the Court of Appeal. The latter affirmed the decision of the trial court. Still dissatisfied, the plaintiffs presented the Supreme Court with two issues for determination. These were whether the trial court was correct in joining the second defendant/respondents as a party to the case, and whether the property in dispute was part of the estate of Elizabeth Chinweze. The Supreme Court dismissed the appellants’ claim.

Vexatious dicta

It is pertinent to note that the emphasis is on the obiter dicta⁴ and not the ratio decidendi⁵ in Chinweze v Masi (1989). However, given the orthodoxy – that is, that ratio decidendi forms the substance and core of judge-made law, serving as binding precedent for lower courts, while obiter dicta are not binding within the Nigerian legal system – this focus may be challenged. Thus, I hasten to state that the decision to focus on the obiter dicta is based on the understanding that the ratio decidendi–obiter dicta status is a general rule to which there are exceptions. A lower court can be swayed by an obiter dictum. In addition to affirming this assertion, the Nigerian Court of Appeal in Uchiv & Anor v. Sabo & Ors (2015) held that despite the orthodoxy, there are occasions when an obiter dictum can have a binding effect. For example, where the obiter of the apex court (i.e. the Supreme Court in Nigeria) is novel and on a crucial point of law, it can be elevated to the status of a ratio decidendi by adoption in a later case. This position was articulated in Ifediorah & Ors v Ume & Ors (1988) as the court held that although it is the ratio decidendi that is binding, an obiter dictum by the apex court on an important point of law is also binding on all the lower courts and should be followed by them.

The obiter dicta of interest in Chinweze v Masi (1989) are:

. . . the Appellants were born after the death of Peter Chinweze. They were therefore not his natural sons for it is contrary to the course of nature for a dead man to produce children – per Oputa JSC (pp. 268, paragraph D–E).

and

. . . [T]hey were not the children of Peter Chinweze, since he died in 1939 and the eldest of the appellants – 1st appellant was born in 1943, nor were they by any twist of imagination, his heirs under the any law – statutory, common or customary – per Uwais JSC (pp. 272, paragraph C–D).

With them, the court impugned the identity of the appellants and raised a fundamental point of law. The latter relates to the well-established principle that a party’s identity is a precursor to the person’s legal rights, responsibilities and status. The Nigerian Supreme Court decision in Madukolu v Nkemdilim (1962) primarily known for establishing the rules regarding the jurisdiction of a court also affirms the foregoing. There, the court had to determine the identity of the parties vis-à-vis the res before making a pronouncement that effectively resolves the issue for determination.

Another reason for the focus is that amidst Nigeria’s legal jurisprudence, the obiter dicta of the apex court can morph into a ratio decidendi .⁶ After all, although the majority of the pronouncements in Bronik Motors Ltd & Anor v Wema Bank Ltd (1983) were obiter, they became binding on and were followed by lower courts until upturned in Akinsanya v UBA Ltd (1986). In addition, the Supreme Court of Nigeria in Ifediorah v Ume (1988) and Buhari v Obasanjo (2003) has admonished lower courts in Nigeria not to treat its obiter dicta with impunity, disrespect or careless abandonment. The latter was followed in Ladejobi v Oguntayo (2015) where the contention was which decision (i.e. that of the Supreme Court or that of a lower court) should be relied upon by the trial court in determining who qualifies as a principal member of a family. Although the decision of the Supreme Court was an obiter, it was followed by the Court of Appeal. As justification of its choice, the Court of Appeal stated:

. . . the Supreme Court is the final Court of Appeal in Nigeria. Its decisions are therefore binding on every Court below it. That being so, even where a Court below the Supreme Court finds the pronouncement of the Supreme Court on an issue to be obiter dictum, and such pronouncement captures the facts or issues in the case under consideration, and the law upon which it will be determined, such decision should be respected and applied. It is obvious therefore that, My Lord, Tobi, JSC in the Ejilemele case stated the state of the law on the issue of who a principal member of a family is. The learned trial Judge, was . . . right to follow it in preference to the decision in Esan v. Faro, which in any case, did not decide on the point. (Ladejobi & Ors v Oguntayo & Ors, 2015: 32) [emphasis added]⁷

That said, the dicta are a judicial assault on the Igbo customary law component of Nigeria’s legal jurisprudence. According to Diala (2018), this is because, ‘in Nigeria, as in many Anglophone post-colonial states, the training of judges is skewed in favour of a positivist English legal tradition, to the detriment of customary law’. In this regard, the justices of the Supreme Court, trained in common or English law, applied the operating procedures and jurisprudence of English Courts to an issue associated with an indigenous custom. The court’s mimicry of received English law in Chinweze v Masi can be traced to two causes. It could be that the court lacked an understanding of the concept of children of dead husbands and the scope of Omenani Ndi Igbo or it chose to disregard it. This conviction is based on the court’s definition of family, its description of the identity of the appellants or children like Obuadazie as ‘contrary to the course of nature’ and the assertion that the appellants’ attainment of the membership of the family of the deceased Peter Chinweze can only have been per the laws of the state as espoused in earlier judgements. The court’s connectedness to English traditions is also the basis of its interpretation of a sociolegal system through a lens that is disconnected from the realities of the parties within the system. The foregoing reflects the complexities of Nigeria’s legal pluralism.

In the process of its pronouncement, the court elevated the notion of paternity and identity according to English traditions, whilst rejecting the commune–cultural structure which characterises traditional African societies (Attah and Iyamu-Ojo, 2021), the Igbo worldview that underpins the paternity and identity of children like Obuadazie. Thus, it is concluded that the Supreme Court, by making the pronouncement, overlooked the reality that Omenani Ndi Igbo is part of the system of law recognised as operating in Nigeria since the colonial era (Yakubu, 2005) and a reference point for the determination of the identity of a person. It is paradoxical, however, that in the circumstances of Chinweze v Masi, the court chose this approach despite acknowledging the role of customary law in determining identity and characterising Nigeria as a country where identity is shaped by multiple systems. It is based on the foregoing and its implications for the right of a child’s identity that the obiter dicta are described as vexatious.

The situation of Obuadazie is a creation of Omenani as de lega lata. In this regard, it is the existing law that Ndi Igbo acknowledge, and which mandates them to act in a certain way in defined circumstances. This reality persists regardless of the manifest negative disposition of Nigerian superior courts towards it. This does not reduce its influence as a normative framework applicable to Ndi Igbo or the fact that it influences their perceptions, values and behaviour. Rather, Chinweze v Masi (1989) and other cases with the same practice at their core, which have gone before Nigerian superior courts (e.g. Ojiogu v Ojiogu, 2010; Ojukwu v Agupusi & Anor, 2014; Obi v Ugbor, 2018) are indicative of its prevalence and persistence.

Implication for the Obuadazie

As highlighted previously, Omenani Ndi Igbo reassigns the paternity of children born posthumously by widows from their putative fathers to the deceased husbands of the widows. This is the consequence of a marriage legitimised by the existence of an unrefunded bride price at the time of the birth of the child. As such, the genitor’s role in the conception of the child does not confer on him any right regarding the child, duty or obligation thereof. Hence, because of Omenani, the genitor (and his kindred) would not publicly acknowledge the child as they are aware that such is a prohibited action which if undertaken could be regarded as ife Ani na aso nso (i.e. conduct that Ani – the Earth goddess abhors) and which would make them liable to make propitiation to Ani (Aguwa, 1993; Chukwumah, 2015). Also, any undertaking regarding or in favour of the child is ex gratia and does not change the genitor’s status.

Objection to the foregoing, particularly when considered against the background of English traditions, Eurocentric values and thought, is to be expected. This objection often leads to the conclusion that the circumstance attributes a fictitious identity to the child (Ebeku, 1994) or that paternity reassignment fails the recognition tests (Ojiogu v Ojiogu, 2010; Ojukwu v Agupusi & Anor, 2014; Obi v Ugbor, 2018). While the foregoing is considered excessive, it raises the question of the difference between the situation of Obuadazie and the parties in Chinweze v Masi vis-a-vis that of adopted children or conceived using assisted reproductive techniques (ARTs). Does the regulatory framework applicable to the adoption and the use of ARTs (including gamete procurement) on one hand and the Ndi Igbo practice of paternity reassignment because of posthumous birth by widows, on the other hand, differ in terms of objective? While they operate amidst different normative and epistemological boundaries, their underlying objectives are remarkably similar. This is because they provide frameworks for the qualification and recognition of individuals who can stake a claim to being a ‘parent’ to the child. Consequently, the children are provided a secure identity, familial connection and support for the continuity of familial lines. In the circumstances, the conclusion is that the Igbo custom of paternity reassignment is protective of children’s rights. Hence, there is a need for a nuanced understanding and respect for diverse practices and the values they embody, recognising that both regulatory and traditional frameworks seek to fulfil the fundamental human need for belonging and identity.

Identity does not develop in a vacuum. It is the product of processes (e.g. marriage and litigation) in a society. It is the catalyst for role adoption and the associated benefits. This regularly manifests in the form of indigeneity⁸ in the life of Nigerians. In addition to the (near) traumatic experience at the council office, per the decision of the apex court referenced above (Buhari & Ors v Obasanjo & Ors, 2003; Ifediorah & Ors v Ume & Ors, 1988) and the obiter dicta in Chinweze v Masi (1989), Obuadazie can be denied the crucial document required to prove his identity (i.e. indigeneity). As such, the obiter dicta effectively pave the way for the delegitimisation of Obuadazie’s personal and family identity, self-understanding and social location. The denial of the document would further rob him of his ability to prove his national identity as well as the ability to preserve it. This is because, without the sought-after document, he would be unable to apply for the issuance of government identification documents like a national identity card and an international passport. His precarity would have worsened if he had lacked matrilineal ties to Nigeria. For instance, if his mother is or was stateless or an unnaturalised foreigner, the denial of this document leaves him without documentary evidence to prove an undisputable claim to Nigerian nationality. This makes him potentially liable to being deported from Nigeria (Ahmed v Minister of Internal Affairs FRN & Ors, 2017; Shugaba Darman v The Minister of Internal Affairs & Ors, 1982). In this situation, he becomes stateless. His situation will not improve even with the granting of nationality by naturalisation on humanitarian grounds by the Nigerian government. This is because the granted nationality can be revoked (Willie Ogbeide v Arigbe-Osula, 2004; Prof. Isa Odidi & 2 Ors v INEC & Anor, 2007) as the law of nationality in Nigeria places a premium on the principle of jus sanguinis (right of blood) and nationality based on blood ties.

Moreover, the obiter dicta expose children like Obuadazie to a life of discrimination and disadvantage. As stated above, nationality granted after becoming stateless is not absolute and can be revoked by the government. The situation is compounded by the fact that amongst Ndi Igbo, the genitor (and his kindred) is prevented from absorbing and socialising him into their family by the existence of a subsisting bride price and marriage. As such, Obuadazie cannot be assigned the identity associated with the genitor’s family, nor can he be recognised as a member of that family. Consequently, the conclusion is that the obiter dicta and the denial of the document sought based on the former conflict with the best interest of the child principle subsumed in Article 3 of the UNCRC. The latter stipulates that when adults make decisions that could or would impact a child, the best interest of the child should guide them. However, the concept of children of dead husbands furthers the welfare of children like Obuadazie. This is because through it, Omenani vests identity and preserves the same in a situation where identity would have been non-existent, or the child is socially discriminated against or excluded. Furthermore, the refusal to issue the sought document endangers Obuadazie’s right to life, survival and development as guaranteed under Article 6 of the UNCRC. This is because, without the sought-after document to prove his identity and nationality, he would be excluded from social programmes (e.g. academic scholarships) that are essential for his survival, development and improvement of his standard of living and social status.

Concluding remarks

In this paper, I set out to present the Igbo worldview of identity and its preservation, particularly in the context of the reasoning in Chinweze v Masi regarding paternity reassignment for children born posthumously. In the course of this, the conflict arising from the coexistence of indigenous Igbo customary law and the received English traditions in Nigeria’s legal system was highlighted. Also, I showed that the dismissal of customary practices in favour of English traditions may be counterproductive for two reasons. The first is that the objectives of Omenani regarding children of dead husbands include the vesting of identity and its preservation, like the principles enshrined in the UNCRC. Secondly, because the issue of identity and its preservation is deeply connected to the customs and cultural ethos of a people – and carries significant sociolegal implications – its dismissal would adversely affect the welfare of children in society.

Based on this, the development of culturally sensitive legal frameworks that respect and integrate customary practices while pursuing the entrenchment of international standards like the UNCRC is recommended. This would ensure that legal pluralism in Nigeria gives rise to the existence and operation of multiple normative or legal systems on equal footing. The New Zealand Oranga Tamariki Act 1989, which incorporates Māori customary practices into its legal framework for child welfare, provides an example that Nigeria can model. It demonstrates how states characterised by legal pluralism should recognise and integrate indigenous perspectives and cultural viewpoints of children’s identity into state law. This model would enable the preservation and respect of the cultural identity of children in Nigeria as recommended by Articles 8 and 30 of the UNCRC. This is because the outcome would be a framework that emphasises the role and involvement of indigenous customary perspectives and practices in the vesting and preservation of the identity of the children.

The foregoing does not imply that Omenani or the broader framework of indigenous customary laws assimilated into the Nigerian legal system is flawless. Therefore, there is a need for the evolution of indigenous customary laws. To this end, indigenous customs and practices should be integrated with constitutional principles like equality and non-discrimination. This approach is preferred as it would confer constitutional legitimacy on indigenous customary law and eliminate vestiges of the colonial era, such as the repugnancy test, which requires the validation of indigenous laws with English traditions. Furthermore, it improves the objectivity associated with the process of assessment of the indigenous customary laws as well as balances the need to protect the indigenous identity of Nigerian children by ensuring that the indigenous customary laws are in alignment with the fundamental rights enshrined in the Constitution. To this end, the South African Constitution provides a model. It empowers South African courts to apply customary law where applicable, subject to its overarching principles. In addition, this would ensure that the indigenous customary laws are recognised as part and equal to received English law in the Nigerian legal system as well as foster an inclusive legal system in Nigeria. Furthermore, as indigenous customary law reflects accepted usage, it has to develop along with the time and age of the society wherein it is operative to be considered organic. Thus, if Omenani is to remain relevant to Ndi Igbo for the regulation of their lives, there is a need for modification of some of the principles on which it is built.

In summary, this paper extends the philosophy regarding the identity of children of widows under Igbo customary law. As such, it challenges the invalidation of customary laws therein, particularly the reasoning in Chinweze v Masi by highlighting the overlooked protective dimension of the Igbo custom of paternity reassignment. It also advocates that, amidst the Nigerian legal system, there should be a shift towards a culturally contextualised jurisprudential framework that accommodates indigenous perspectives on child identity. At this juncture, I am reminded of the African proverb – ‘when two elephants fight, it is the grass that suffers’. It aptly captures the plight of Obuadazie. In the context of the proverb, the ‘two elephants’ symbolise Omenani on one side and the exposition of the law by the court in Chinweze v Masi on the other. Based on the analysis above, they are both behaviour regulating frameworks that often lack alignment as well as bring about conflicting social structures during their interaction. This misalignment has detrimental effects on children – the ‘grass’ – who bear the consequences. This highlights the need to recognise and implement the above recommendations as they have the potential to safeguard and preserve the identity of children.

Footnotes

Funding

The author received no financial support for the research, authorship and/or publication of this article.

ORCID iD

Ifeanyichukwu Azuka Aniyie

Notes

Author biography

Ifeanyichukwu Azuka Aniyie holds an LLD from the University of Pretoria, South Africa. His research engages aspects of international (economic) and taxation with a view to assessing the utility of associated norms and policies from an African perspective.

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