Rethinking Customary Practices in Cameroon: The Question of The Marriage Symbol
Keywords:
Marriage, Customary Law, Marriage Symbol, Divorce.Abstract
The plural nature of laws in Cameroon has an effect on the application of the laws by the courts. Customary law rules which seems be contrary to the Constitution and which have been abolished by local legislations are still being enforced by the courts. Although, by virtue of the Civil Status Registraton Ordinance, the payment or non-payment of the marriage symbol has no effect on the validity of any marriage celebrated in Cameroon, some courts have insited on the payment of the marriage symbol as a requirement to a valid marriage. The article examines the issue as to whether the requirement that a marriage symbol be paid upon marriage and refunded upon divorce is unconstitutional, “repugnant to natural justice, equity and good conscience.’ and thus should be abolished. I have argued that while abolition of this requirement should, for the time being, be ignored, the requirement should not be obligatory and thus should have no effect on the validity of a marriage and divorce. The non-enforcement of the CSRO nowadays is largely due to the multiplicity of normative layers. When a case falls under customary law, many judges turn exclusively to customary rules and fail to apply the superseding legislative rules. I have therefore, proposed a unified system of law. A unified system of law would avoid the problem of the judge being confused as to which of the various norms to apply as the legislative provision will be the only law applicable. Any doubt as to its application will therefore be avoided.
References
1. The phrases Anglophone Cameroon, Southern Cameroons, West Cameroon, North-West and South -West regions of Cameroon refer to the same territory: the English-speaking part of Cameroon administered by the English as a UN trust - territory and comprising 2 of the 10 regions in Cameroon today.
2. The phrases Francophone Cameroon and East Cameroon refer to the French - speaking part of Cameroon administered by the French as a UN trust -territory and comprising 8 of the 10 regions in Cameroon today. Before re -unification with Anglophone Cameroon, Francophone Cameroon was known as the Republic of Cameroon. After re -unification with Anglophone Cameroon in 1961 the name was baptized the Federal Republic of Cameroon comprising East and West Cameroon. In 1972, the name was changed to the United Republic of Cameroon made up of 10 provinces. Today it is known as the Republic of Cameroon with 10 regions after the 2008 constitutional amendments. JFAL (2019) 47-59 © Law Journals 2019. All Rights Reserved Page 58
3. M Doumbé-Moulongo, Les coutumes et le droit au Cameroun (Editions Clé Yaoundé 1972) 24-26.
4. The marriage symbol popularly known as bride price or bride wealth is money or property given by the groom or his family to the family of the bride before or during the marriage. It is a symbol of the validity of a customary marriage. In this article I have not used the word bride price because ‘bride price’ gives the impression that the bride is being sold. This interpretation is false because it is inhuman to sell another human being. Besides, the amount of the bride price is sometimes so small that it should be regarded only as a symbol that the parties are husband and wife. Bride wealth has also not been used in this article because the word ‘wealth’ could suggest that the amount of money given to the bride’s family is enormous. Marriage symbol of less than 20,000CFA (about $15) has been given in some cases.
5. N Rubin , Cameroon: An African Federation (Pall Mall Press London, 1 st edition 1971) 33-34.
6. Article 68 of the Constitution states that, ‘The legislations applicable in the Federal State of Cameroon and in the Federated States on the date of entering into force of this Constitution shall remain in force in so far as it is not repugnant to this Constitution, and as long as it is not amended by subsequent laws and regulations.’
7. Preamble to the Constitution.
8. Art. 1(2) para 3.
9. Preamble second section.
10. Cameroon has over 250 tribes and therefore over 250 customary laws.
11. Articles 42 and 51 of the French decree of 31st July 1927 applicable in Francophone Cameroon provide that customary law will be excluded if it is contrary to the notion of ordre public.
12. Section 27 of the Southern Cameroons High Court Law (SCHL) 1955 applicable in Anglophone Cameroon.
13. Allot, New Essays in African Customary Law (1970 Butterworths London) 159.
14. For example, in Sikibo Derago v Ngaminyem Etim , [ (1982) BCA/36/81, unreported] the Court of Appeal in Bamenda, North West Region held that: ‘ a customary law wife can neither inherit nor administer the property of her deceased husband because she is part of the chattels of her deceased husband to be inherited or administered.’
15. J Osom, Moral Implication of High Bride - Price in Nigeria: “Annang Case Survey” (Doctoral Dissertation in Moral Theology Rome 1989) 38.
16. D Nsereko , ‘The Nature and Function of Marriage Gifts in Customary African Marriages’ (1972) 23 AJCL 691 at p696. However, the ring and the symbol do not play the same role. In a Christian marriage, the husband pronounces those words to the wife and puts a ring on her finger and the wife does the same. With the marriage symbol the husband gives the symbol and the wife’s family gives the bride in return. The ring is the symbol of the spouse’s commitment to one another. The marriage symbol is more akin to a transaction.
17. If the girl’s parents object to the marriage, they will refuse the marriage symbol.
18. 21 years of age.
19. (1971-73) UYLR p5
20. It is not uncommon for the husband, in the heat of a quarrel with the wife, to pronounce words like ‘you [referring to the wife] can go, after all who paid your bride price?’
21. J Osom (n16) 37.
22. The marriage symbol could also be as high as $4000.
23. (1980) CASWP/cc/44/80, unreported.
24. (1981) CASWP/cc/350/80, unreported.
25. 29th June 1981.
26. (Civil suit n o 174/86-87 CRB3/86 - 87Customary Court Buea) unreported p133.
27. (1983) CASWP/cc/52/83 unreported.
28. (1984) CASWP/cc/61-2/84, unreported.
29. M Fabien c M Marie Louise (1974) 6 Rev. Cam. Dr. 175.
30. (Jugement Civil du 16TGI Avril 1990 Douala) unreported.
31. (CRB. 1/79-80) unreported 89-113. JFAL (2019) 47-59 © Law Journals 2019. All Rights Reserved Page 59
32. (1988) BCA/62/86 unreported.
33. Preamble to the Constitution.
34. Ratified on 23rd August 1994.
35. J Mbaku , Culture and Customs of Cameroon (Greenwood press Connecticut 2005) 147.
36. For example, if the wife divorces the husband because he is mentally ill or because she finds someone she loves more than the husband.
37. Adultery by the man is not considered as a serious fault.
38. The parents of the wife might want to return the marriage symbol if they consider it the right thing to do.
39. Case n o 066/2014 CBK 01/2014 (Customary Court Buea) unreported.
40. CASWP/cc/9/88.
41. The refund of the marriage symbol on divorce is a rule that cuts across most traditions in Africa. See the following: A Armstrong, ‘Away from the Customary Law’ (1988-89) 27 JFL p348; D Nsereko, ‘The Nature and Function of Marriage Gifts in Customary African Marriages’ (n17) 691; R O Ekundare, Marriage and Divorce under Yoruba Customary Law (University of Ife Press 1969) 40.
42. Civil suit 14/2003-2004.
43. This is a condition that runs through most of the customs where marriage symbol is paid to the girl’s family by the husband as a condition for the validity of the marriage. Even though the Civil Status Registration Ordinance clearly stipulates in section 70(1) that the payment or non - payment of the marriage symbol does not affect the validity of any marriage, no customary marriage is conducted without the payment of the marriage symbol and most customary marriages are considered terminated only when the marriage symbol have been refunded.
44. Unlike in Bakweri land where a member of the husband’s family could accept the refund of the marriage symbol, in Okuland only the husband can accept the refund of the marriage symbol.
45. P Mayer , Gusii Bride Wealth Law and Custom (Oxford University Press 1950) 57.
46. (1963) WCLR 32-33.
47. (1987) BCA unreported.
48. The main occupation of the villagers is agriculture.
49. M Doumbé-Moulongo, Les Coutumes et le Droit au Cameroun (n3) 41.
50. Sikibo Derago v Ngaminyem Etim (1982) BCA/36/81 unreported.
51. CSRO s77(1).
52. CSRO section 77 (2).
53. A Mwesigwa , Uganda court rules against refund of ‘bride price’ after divorce (2015) the Guardian, August 17 th. [theguardian.com/global-development /2015/aug/17/uganda-court-rules-aganst- refund-bride-price-divorce].
54. Per Justice Bart Katureebe, one of the six judges who consented to the ruling in the above case.
55. A Mwesigwa (n56).
56. Sections 8 (1) and 20 (1).
57. Art. 137 (3) (a) and (b).
58. Art. 137(4) (a) and (b).
59. Art. 132(1).
60. Art. 131 (2).
61. Art. 132 (3).
62. Article 47 (3) of the Constitution.
63. Art. 47 (2) of the Constitution.
64. (1985) CASWP/cc176/85 unreported. Cite this Article Acha Morfaw Epse Ghogomu Dorothy. Rethinking Customary Practices in Cameroon: The Question of The Marriage Symbol. Journal of Family & Adoption Law. 2019; 2(1): 47–59p.
