Criminal Justice of the Tiv Tribe of Nigeria The 1963 Nigerian national constitution prohibits the application of unwritten criminal law. 1/ By 1960, customary criminal law had been abolished in all of Nigeria. The Tiv Tribe lives in what was, until the creation of six new states in 1967, officially part of the Northern Region of Nigeria. The 1959 Penal Code for Northern Nigeria, which is still in effect in the six new states, abolished the official sanction of customary criminal law, the termed "native law or custom."2/ Under the Native Courts Law 1956, prior to the adoption of the Penal Code, native courts administered ...the native law and custom prevailing in the area of the jurisdiction of the court or binding between the parties, so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any law for the time being in force.3/ The same Native Courts Law allowed the native courts to impose as penalties for offenses against any native law or custom. ...afine or imprisonment or both such fine and imprisonment or may inflict any punishment by native law and custom provided that it does not involve mutilation or torture, and is not repugnant to natural justice and humanity. 4/ ---------- 1/ The Constitution of the Federal Republic of Nigeria, [?]22(10), (Lggos: Federal Ministry of Information, 1963), P. 17. 2/ N.R. 18 of 1959; [?]9(2), Penal Code, The Laws of Northern Nigeria, rev. ed., 1965, Cap. 89, Vol. III, p. 1473. (The date of commencement of the Penal Code was September 30, 1960). 3/ N.R. No. 6 of 1956, [?]20, Annual Volume of the Laws of the Northern Region of Nigeria 1956, pp. A62-A63. 4/ Ibid., p. A63.Criminal Justice of the Tiv Tribe of Nigeria The 1963 Nigerian national constitution prohibits the application of unwritten criminal law. 1/ By 1960, customary criminal law had been abolished in all of Nigeria. The Tiv Tribe lives in what was, until the creation of six new states in 1967, officially part of the Northern Region of Nigeria. The 1959 Penal Code for Northern Nigeria, which is still in effect in the six new states, abolished the official sanction of customary criminal law, the termed "native law or custom."2/ Under the Native Courts Law 1956, prior to the adoption of the Penal Code, native courts administered ...the native law and custom prevailing in the area of the jurisdiction of the court or binding between the parties, so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any law for the time being in force.3/ The same Native Courts Law allowed the native courts to impose as penalties for offenses against any native law or custom. ...afine or imprisonment or both such fine and imprisonment or may inflict any punishment by native law and custom provided that it does not involve mutilation or torture, and is not repugnant to natural justice and humanity. 4/ ---------- 1/ The Constitution of the Federal Republic of Nigeria, [?]22(10), (Lggos: Federal Ministry of Information, 1963), P. 17. 2/ N.R. 18 of 1959; [?]9(2), Penal Code, The Laws of Northern Nigeria, rev. ed., 1965, Cap. 89, Vol. III, p. 1473. (The date of commencement of the Penal Code was September 30, 1960). 3/ N.R. No. 6 of 1956, [?]20, Annual Volume of the Laws of the Northern Region of Nigeria 1956, pp. A62-A63. 4/ Ibid., p. A63.Criminal Justice of the Tiv Tribe of Nigeria The 1963 Nigerian national constitution prohibits the application of unwritten criminal law. 1/ By 1960, customary criminal law had been abolished in all of Nigeria. The Tiv Tribe lives in what was, until the creation of six new states in 1967, officially part of the Northern Region of Nigeria. The 1959 Penal Code for Northern Nigeria, which is still in effect in the six new states, abolished the official sanction of customary criminal law, the termed "native law or custom."2/ Under the Native Courts Law 1956, prior to the adoption of the Penal Code, native courts administered ...the native law and custom prevailing in the area of the jurisdiction of the court or binding between the parties, so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any law for the time being in force.3/ The same Native Courts Law allowed the native courts to impose as penalties for offenses against any native law or custom. ...afine or imprisonment or both such fine and imprisonment or may inflict any punishment by native law and custom provided that it does not involve mutilation or torture, and is not repugnant to natural justice and humanity. 4/ ---------- 1/ The Constitution of the Federal Republic of Nigeria, [?]22(10), (Lggos: Federal Ministry of Information, 1963), P. 17. 2/ N.R. 18 of 1959; [?]9(2), Penal Code, The Laws of Northern Nigeria, rev. ed., 1965, Cap. 89, Vol. III, p. 1473. (The date of commencement of the Penal Code was September 30, 1960). 3/ N.R. No. 6 of 1956, [?]20, Annual Volume of the Laws of the Northern Region of Nigeria 1956, pp. A62-A63. 4/ Ibid., p. A63.Criminal Justice of the Tiv Tribe of Nigeria The 1963 Nigerian national constitution prohibits the application of unwritten criminal law. 1/ By 1960, customary criminal law had been abolished in all of Nigeria. The Tiv Tribe lives in what was, until the creation of six new states in 1967, officially part of the Northern Region of Nigeria. The 1959 Penal Code for Northern Nigeria, which is still in effect in the six new states, abolished the official sanction of customary criminal law, the termed "native law or custom."2/ Under the Native Courts Law 1956, prior to the adoption of the Penal Code, native courts administered ...the native law and custom prevailing in the area of the jurisdiction of the court or binding between the parties, so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any law for the time being in force.3/ The same Native Courts Law allowed the native courts to impose as penalties for offenses against any native law or custom. ...afine or imprisonment or both such fine and imprisonment or may inflict any punishment by native law and custom provided that it does not involve mutilation or torture, and is not repugnant to natural justice and humanity. 4/ ---------- 1/ The Constitution of the Federal Republic of Nigeria, [?]22(10), (Lggos: Federal Ministry of Information, 1963), P. 17. 2/ N.R. 18 of 1959; [?]9(2), Penal Code, The Laws of Northern Nigeria, rev. ed., 1965, Cap. 89, Vol. III, p. 1473. (The date of commencement of the Penal Code was September 30, 1960). 3/ N.R. No. 6 of 1956, [?]20, Annual Volume of the Laws of the Northern Region of Nigeria 1956, pp. A62-A63. 4/ Ibid., p. A63.Criminal Justice of the Tiv Tribe of Nigeria The 1963 Nigerian national constitution prohibits the application of unwritten criminal law. 1/ By 1960, customary criminal law had been abolished in all of Nigeria. The Tiv Tribe lives in what was, until the creation of six new states in 1967, officially part of the Northern Region of Nigeria. The 1959 Penal Code for Northern Nigeria, which is still in effect in the six new states, abolished the official sanction of customary criminal law, the termed "native law or custom."2/ Under the Native Courts Law 1956, prior to the adoption of the Penal Code, native courts administered ...the native law and custom prevailing in the area of the jurisdiction of the court or binding between the parties, so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any law for the time being in force.3/ The same Native Courts Law allowed the native courts to impose as penalties for offenses against any native law or custom. ...afine or imprisonment or both such fine and imprisonment or may inflict any punishment by native law and custom provided that it does not involve mutilation or torture, and is not repugnant to natural justice and humanity. 4/ ---------- 1/ The Constitution of the Federal Republic of Nigeria, [?]22(10), (Lggos: Federal Ministry of Information, 1963), P. 17. 2/ N.R. 18 of 1959; [?]9(2), Penal Code, The Laws of Northern Nigeria, rev. ed., 1965, Cap. 89, Vol. III, p. 1473. (The date of commencement of the Penal Code was September 30, 1960). 3/ N.R. No. 6 of 1956, [?]20, Annual Volume of the Laws of the Northern Region of Nigeria 1956, pp. A62-A63. 4/ Ibid., p. A63.-2- Native courts in Northern Nigeria dated from 1900 and were a part of the British system of indirect rule achieved through local tribal authorities. 5/ The British influence immediately altered the customary penalties so as to amount to a modification of previous practices. For example, the idea of imprisonment for crime had been completely unknown. As a matter of fact, the Tiv in 1900 Had difficulty distinguishing between imprisonment by a British court and slavery, which the British had prohibited. 6/ Whereas the majority of Northern Nigeria is Moslem and has a tradition of centralized authority, the pagan provinces which include Tivland lack a strong customary political structure. Instead, "the effective unit for purpose of government is the extended family." 7/ It not until the 1920's that the British government realized that the Tiv required special study. 8/ Paul Bohannan, an accomplished anthropologist, warns that the field of law can be as ethnocentric as any other discipline and he cautions: ------------ 5/ M.J. Campbell, Law and Practice of Local Government in Northern Nigeria (Lagos: African Universities Press and London: Sweet & Maxwell, 1963). See also B.O. Nwabueze, The Machinery of Justice in Nigeria (London: Butterworths, 1963). 6/ E.A. Keay and S.S. Richardson, The Native and Customary Courts of Nigeria (London: Sweet & Maxwell; Lagos: African Universities Press, 1966), p. 215. 7/ Nwabueze, op. cit., pp. 103-104. 8/ Campbell, op. cit., p. 4.-2- Native courts in Northern Nigeria dated from 1900 and were a part of the British system of indirect rule achieved through local tribal authorities. 5/ The British influence immediately altered the customary penalties so as to amount to a modification of previous practices. For example, the idea of imprisonment for crime had been completely unknown. As a matter of fact, the Tiv in 1900 Had difficulty distinguishing between imprisonment by a British court and slavery, which the British had prohibited. 6/ Whereas the majority of Northern Nigeria is Moslem and has a tradition of centralized authority, the pagan provinces which include Tivland lack a strong customary political structure. Instead, "the effective unit for purpose of government is the extended family." 7/ It not until the 1920's that the British government realized that the Tiv required special study. 8/ Paul Bohannan, an accomplished anthropologist, warns that the field of law can be as ethnocentric as any other discipline and he cautions: ------------ 5/ M.J. Campbell, Law and Practice of Local Government in Northern Nigeria (Lagos: African Universities Press and London: Sweet & Maxwell, 1963). See also B.O. Nwabueze, The Machinery of Justice in Nigeria (London: Butterworths, 1963). 6/ E.A. Keay and S.S. Richardson, The Native and Customary Courts of Nigeria (London: Sweet & Maxwell; Lagos: African Universities Press, 1966), p. 215. 7/ Nwabueze, op. cit., pp. 103-104. 8/ Campbell, op. cit., p. 4.-2- Native courts in Northern Nigeria dated from 1900 and were a part of the British system of indirect rule achieved through local tribal authorities. 5/ The British influence immediately altered the customary penalties so as to amount to a modification of previous practices. For example, the idea of imprisonment for crime had been completely unknown. As a matter of fact, the Tiv in 1900 Had difficulty distinguishing between imprisonment by a British court and slavery, which the British had prohibited. 6/ Whereas the majority of Northern Nigeria is Moslem and has a tradition of centralized authority, the pagan provinces which include Tivland lack a strong customary political structure. Instead, "the effective unit for purpose of government is the extended family." 7/ It not until the 1920's that the British government realized that the Tiv required special study. 8/ Paul Bohannan, an accomplished anthropologist, warns that the field of law can be as ethnocentric as any other discipline and he cautions: ------------ 5/ M.J. Campbell, Law and Practice of Local Government in Northern Nigeria (Lagos: African Universities Press and London: Sweet & Maxwell, 1963). See also B.O. Nwabueze, The Machinery of Justice in Nigeria (London: Butterworths, 1963). 6/ E.A. Keay and S.S. Richardson, The Native and Customary Courts of Nigeria (London: Sweet & Maxwell; Lagos: African Universities Press, 1966), p. 215. 7/ Nwabueze, op. cit., pp. 103-104. 8/ Campbell, op. cit., p. 4.-2- Native courts in Northern Nigeria dated from 1900 and were a part of the British system of indirect rule achieved through local tribal authorities. 5/ The British influence immediately altered the customary penalties so as to amount to a modification of previous practices. For example, the idea of imprisonment for crime had been completely unknown. As a matter of fact, the Tiv in 1900 Had difficulty distinguishing between imprisonment by a British court and slavery, which the British had prohibited. 6/ Whereas the majority of Northern Nigeria is Moslem and has a tradition of centralized authority, the pagan provinces which include Tivland lack a strong customary political structure. Instead, "the effective unit for purpose of government is the extended family." 7/ It not until the 1920's that the British government realized that the Tiv required special study. 8/ Paul Bohannan, an accomplished anthropologist, warns that the field of law can be as ethnocentric as any other discipline and he cautions: ------------ 5/ M.J. Campbell, Law and Practice of Local Government in Northern Nigeria (Lagos: African Universities Press and London: Sweet & Maxwell, 1963). See also B.O. Nwabueze, The Machinery of Justice in Nigeria (London: Butterworths, 1963). 6/ E.A. Keay and S.S. Richardson, The Native and Customary Courts of Nigeria (London: Sweet & Maxwell; Lagos: African Universities Press, 1966), p. 215. 7/ Nwabueze, op. cit., pp. 103-104. 8/ Campbell, op. cit., p. 4.-2- Native courts in Northern Nigeria dated from 1900 and were a part of the British system of indirect rule achieved through local tribal authorities. 5/ The British influence immediately altered the customary penalties so as to amount to a modification of previous practices. For example, the idea of imprisonment for crime had been completely unknown. As a matter of fact, the Tiv in 1900 Had difficulty distinguishing between imprisonment by a British court and slavery, which the British had prohibited. 6/ Whereas the majority of Northern Nigeria is Moslem and has a tradition of centralized authority, the pagan provinces which include Tivland lack a strong customary political structure. Instead, "the effective unit for purpose of government is the extended family." 7/ It not until the 1920's that the British government realized that the Tiv required special study. 8/ Paul Bohannan, an accomplished anthropologist, warns that the field of law can be as ethnocentric as any other discipline and he cautions: ------------ 5/ M.J. Campbell, Law and Practice of Local Government in Northern Nigeria (Lagos: African Universities Press and London: Sweet & Maxwell, 1963). See also B.O. Nwabueze, The Machinery of Justice in Nigeria (London: Butterworths, 1963). 6/ E.A. Keay and S.S. Richardson, The Native and Customary Courts of Nigeria (London: Sweet & Maxwell; Lagos: African Universities Press, 1966), p. 215. 7/ Nwabueze, op. cit., pp. 103-104. 8/ Campbell, op. cit., p. 4.-3- To think that there are similarities and differences between English and Tiv law, and that all one has to do is to compare theme is [socio?logical] oversimplification of the most blatant sort. 9/ The Tiv concept of jir provided a means by which the concept of a court was brought into their culture. 10/ The Tiv work jir describes both the government courts and the moots which are held at home among family members. Following the British arrival in 1907, the Tiv agreed to the appointment of lesser officials, each of which held the title of ortaregh, the plural of which is mbatarev. A scribe (malu) acts as a clerk and keeps records. The government policemen make arrests, summon litigants and witnesses and even act as prosecutors in criminal cases. The jir is generally held outside and is well attended y the community 11/ A new court system was established in 1968 for all of the six new Northern states, so that there are now area judges who are no longer under the control of native authorities. 12/ The Area [C?ourts] Laws confirm the application of only written criminal laws, including the Penal 9/ Paul Bohannan, Justice and Judgement Among the Tiv (London, New York, Toronto: Oxford University Press, 1957), pp. 213-214. 10/ Ibid., p. 209. 11/ Ibid., pp. 8-13 and plates I and II. 12/ N.N. Rubin and E. Cotran, eds., Annual Survey of African Law, Volume II-1968 (London: Frank Cass & Co., Ltd., 1971), p. 37; The Area Courts Edict, 1968, No. 4 (Benue-Plateau). See also A.N. Allott, Judicial and Legal Systems on Africa (London: Butterworths, 1970), pp. 65-66.-3- To think that there are similarities and differences between English and Tiv law, and that all one has to do is to compare theme is [socio?logical] oversimplification of the most blatant sort. 9/ The Tiv concept of jir provided a means by which the concept of a court was brought into their culture. 10/ The Tiv work jir describes both the government courts and the moots which are held at home among family members. Following the British arrival in 1907, the Tiv agreed to the appointment of lesser officials, each of which held the title of ortaregh, the plural of which is mbatarev. A scribe (malu) acts as a clerk and keeps records. The government policemen make arrests, summon litigants and witnesses and even act as prosecutors in criminal cases. The jir is generally held outside and is well attended y the community 11/ A new court system was established in 1968 for all of the six new Northern states, so that there are now area judges who are no longer under the control of native authorities. 12/ The Area [C?ourts] Laws confirm the application of only written criminal laws, including the Penal 9/ Paul Bohannan, Justice and Judgement Among the Tiv (London, New York, Toronto: Oxford University Press, 1957), pp. 213-214. 10/ Ibid., p. 209. 11/ Ibid., pp. 8-13 and plates I and II. 12/ N.N. Rubin and E. Cotran, eds., Annual Survey of African Law, Volume II-1968 (London: Frank Cass & Co., Ltd., 1971), p. 37; The Area Courts Edict, 1968, No. 4 (Benue-Plateau). See also A.N. Allott, Judicial and Legal Systems on Africa (London: Butterworths, 1970), pp. 65-66.-3- To think that there are similarities and differences between English and Tiv law, and that all one has to do is to compare theme is [socio?logical] oversimplification of the most blatant sort. 9/ The Tiv concept of jir provided a means by which the concept of a court was brought into their culture. 10/ The Tiv work jir describes both the government courts and the moots which are held at home among family members. Following the British arrival in 1907, the Tiv agreed to the appointment of lesser officials, each of which held the title of ortaregh, the plural of which is mbatarev. A scribe (malu) acts as a clerk and keeps records. The government policemen make arrests, summon litigants and witnesses and even act as prosecutors in criminal cases. The jir is generally held outside and is well attended y the community 11/ A new court system was established in 1968 for all of the six new Northern states, so that there are now area judges who are no longer under the control of native authorities. 12/ The Area [C?ourts] Laws confirm the application of only written criminal laws, including the Penal 9/ Paul Bohannan, Justice and Judgement Among the Tiv (London, New York, Toronto: Oxford University Press, 1957), pp. 213-214. 10/ Ibid., p. 209. 11/ Ibid., pp. 8-13 and plates I and II. 12/ N.N. Rubin and E. Cotran, eds., Annual Survey of African Law, Volume II-1968 (London: Frank Cass & Co., Ltd., 1971), p. 37; The Area Courts Edict, 1968, No. 4 (Benue-Plateau). See also A.N. Allott, Judicial and Legal Systems on Africa (London: Butterworths, 1970), pp. 65-66.-3- To think that there are similarities and differences between English and Tiv law, and that all one has to do is to compare theme is [socio?logical] oversimplification of the most blatant sort. 9/ The Tiv concept of jir provided a means by which the concept of a court was brought into their culture. 10/ The Tiv work jir describes both the government courts and the moots which are held at home among family members. Following the British arrival in 1907, the Tiv agreed to the appointment of lesser officials, each of which held the title of ortaregh, the plural of which is mbatarev. A scribe (malu) acts as a clerk and keeps records. The government policemen make arrests, summon litigants and witnesses and even act as prosecutors in criminal cases. The jir is generally held outside and is well attended y the community 11/ A new court system was established in 1968 for all of the six new Northern states, so that there are now area judges who are no longer under the control of native authorities. 12/ The Area [C?ourts] Laws confirm the application of only written criminal laws, including the Penal 9/ Paul Bohannan, Justice and Judgement Among the Tiv (London, New York, Toronto: Oxford University Press, 1957), pp. 213-214. 10/ Ibid., p. 209. 11/ Ibid., pp. 8-13 and plates I and II. 12/ N.N. Rubin and E. Cotran, eds., Annual Survey of African Law, Volume II-1968 (London: Frank Cass & Co., Ltd., 1971), p. 37; The Area Courts Edict, 1968, No. 4 (Benue-Plateau). See also A.N. Allott, Judicial and Legal Systems on Africa (London: Butterworths, 1970), pp. 65-66.-3- To think that there are similarities and differences between English and Tiv law, and that all one has to do is to compare theme is [socio?logical] oversimplification of the most blatant sort. 9/ The Tiv concept of jir provided a means by which the concept of a court was brought into their culture. 10/ The Tiv work jir describes both the government courts and the moots which are held at home among family members. Following the British arrival in 1907, the Tiv agreed to the appointment of lesser officials, each of which held the title of ortaregh, the plural of which is mbatarev. A scribe (malu) acts as a clerk and keeps records. The government policemen make arrests, summon litigants and witnesses and even act as prosecutors in criminal cases. The jir is generally held outside and is well attended y the community 11/ A new court system was established in 1968 for all of the six new Northern states, so that there are now area judges who are no longer under the control of native authorities. 12/ The Area [C?ourts] Laws confirm the application of only written criminal laws, including the Penal 9/ Paul Bohannan, Justice and Judgement Among the Tiv (London, New York, Toronto: Oxford University Press, 1957), pp. 213-214. 10/ Ibid., p. 209. 11/ Ibid., pp. 8-13 and plates I and II. 12/ N.N. Rubin and E. Cotran, eds., Annual Survey of African Law, Volume II-1968 (London: Frank Cass & Co., Ltd., 1971), p. 37; The Area Courts Edict, 1968, No. 4 (Benue-Plateau). See also A.N. Allott, Judicial and Legal Systems on Africa (London: Butterworths, 1970), pp. 65-66.-4- 13/ Code law and the Criminal Procedure Code Law. The new courts law provides for assessors who may act in an advisory capacity but shall have no vote in the decision of the court. 14/ Assessors in African local courts are usually members of the local community who are familiar with the customs of the tribe or ethnic group where the court is located. Native law and custom is still applied in civil causes and matters. 15/ The whole idea of legislation is of European origin. There have always been rules in Tivland, but they were not distilled, organized, or written down for "jural purposes." Precedent is not formally recognized but is informally considered by the judges. 16/ Court decisions under the traditional system are not based on rules of law except when a law is imposed by government authority. Instead, the judges arbitrate and point out a satisfactory mode of action which will be acceptable to the parties concerned: ...The purpose of most jir is, thus, to determine a modus vivendi, not to apply laws, but to decide what is right in a particular case. They usually do so without overt references to rules or "laws." 17/ _____________ 13/ Cotran, op. cit., p. 55, footnote 38; &&22 & 24, Edict No. 2 of 1967, Annual Volumes of the Laws of North-Central State of Nigeria 1967 and 1968, p. A12. Note: The Tiv homeland is now in Benue-Plateau State of Nigeria. 14/ Tbid., 85, p. A7. 15/ Tbid., &20, p. A11. 16/ Bohannan, op. cit., pp. 55-59. 17/ Tbid., p. 19.-4- 13/ Code law and the Criminal Procedure Code Law. The new courts law provides for assessors who may act in an advisory capacity but shall have no vote in the decision of the court. 14/ Assessors in African local courts are usually members of the local community who are familiar with the customs of the tribe or ethnic group where the court is located. Native law and custom is still applied in civil causes and matters. 15/ The whole idea of legislation is of European origin. There have always been rules in Tivland, but they were not distilled, organized, or written down for "jural purposes." Precedent is not formally recognized but is informally considered by the judges. 16/ Court decisions under the traditional system are not based on rules of law except when a law is imposed by government authority. Instead, the judges arbitrate and point out a satisfactory mode of action which will be acceptable to the parties concerned: ...The purpose of most jir is, thus, to determine a modus vivendi, not to apply laws, but to decide what is right in a particular case. They usually do so without overt references to rules or "laws." 17/ _____________ 13/ Cotran, op. cit., p. 55, footnote 38; &&22 & 24, Edict No. 2 of 1967, Annual Volumes of the Laws of North-Central State of Nigeria 1967 and 1968, p. A12. Note: The Tiv homeland is now in Benue-Plateau State of Nigeria. 14/ Tbid., 85, p. A7. 15/ Tbid., &20, p. A11. 16/ Bohannan, op. cit., pp. 55-59. 17/ Tbid., p. 19.-4- 13/ Code law and the Criminal Procedure Code Law. The new courts law provides for assessors who may act in an advisory capacity but shall have no vote in the decision of the court. 14/ Assessors in African local courts are usually members of the local community who are familiar with the customs of the tribe or ethnic group where the court is located. Native law and custom is still applied in civil causes and matters. 15/ The whole idea of legislation is of European origin. There have always been rules in Tivland, but they were not distilled, organized, or written down for "jural purposes." Precedent is not formally recognized but is informally considered by the judges. 16/ Court decisions under the traditional system are not based on rules of law except when a law is imposed by government authority. Instead, the judges arbitrate and point out a satisfactory mode of action which will be acceptable to the parties concerned: ...The purpose of most jir is, thus, to determine a modus vivendi, not to apply laws, but to decide what is right in a particular case. They usually do so without overt references to rules or "laws." 17/ _____________ 13/ Cotran, op. cit., p. 55, footnote 38; &&22 & 24, Edict No. 2 of 1967, Annual Volumes of the Laws of North-Central State of Nigeria 1967 and 1968, p. A12. Note: The Tiv homeland is now in Benue-Plateau State of Nigeria. 14/ Tbid., 85, p. A7. 15/ Tbid., &20, p. A11. 16/ Bohannan, op. cit., pp. 55-59. 17/ Tbid., p. 19.-4- 13/ Code law and the Criminal Procedure Code Law. The new courts law provides for assessors who may act in an advisory capacity but shall have no vote in the decision of the court. 14/ Assessors in African local courts are usually members of the local community who are familiar with the customs of the tribe or ethnic group where the court is located. Native law and custom is still applied in civil causes and matters. 15/ The whole idea of legislation is of European origin. There have always been rules in Tivland, but they were not distilled, organized, or written down for "jural purposes." Precedent is not formally recognized but is informally considered by the judges. 16/ Court decisions under the traditional system are not based on rules of law except when a law is imposed by government authority. Instead, the judges arbitrate and point out a satisfactory mode of action which will be acceptable to the parties concerned: ...The purpose of most jir is, thus, to determine a modus vivendi, not to apply laws, but to decide what is right in a particular case. They usually do so without overt references to rules or "laws." 17/ _____________ 13/ Cotran, op. cit., p. 55, footnote 38; &&22 & 24, Edict No. 2 of 1967, Annual Volumes of the Laws of North-Central State of Nigeria 1967 and 1968, p. A12. Note: The Tiv homeland is now in Benue-Plateau State of Nigeria. 14/ Tbid., 85, p. A7. 15/ Tbid., &20, p. A11. 16/ Bohannan, op. cit., pp. 55-59. 17/ Tbid., p. 19.-4- 13/ Code law and the Criminal Procedure Code Law. The new courts law provides for assessors who may act in an advisory capacity but shall have no vote in the decision of the court. 14/ Assessors in African local courts are usually members of the local community who are familiar with the customs of the tribe or ethnic group where the court is located. Native law and custom is still applied in civil causes and matters. 15/ The whole idea of legislation is of European origin. There have always been rules in Tivland, but they were not distilled, organized, or written down for "jural purposes." Precedent is not formally recognized but is informally considered by the judges. 16/ Court decisions under the traditional system are not based on rules of law except when a law is imposed by government authority. Instead, the judges arbitrate and point out a satisfactory mode of action which will be acceptable to the parties concerned: ...The purpose of most jir is, thus, to determine a modus vivendi, not to apply laws, but to decide what is right in a particular case. They usually do so without overt references to rules or "laws." 17/ _____________ 13/ Cotran, op. cit., p. 55, footnote 38; &&22 & 24, Edict No. 2 of 1967, Annual Volumes of the Laws of North-Central State of Nigeria 1967 and 1968, p. A12. Note: The Tiv homeland is now in Benue-Plateau State of Nigeria. 14/ Tbid., 85, p. A7. 15/ Tbid., &20, p. A11. 16/ Bohannan, op. cit., pp. 55-59. 17/ Tbid., p. 19.- 5 - In fulfilling their roles as judges the mbatarev "ask questions, and weigh evidence and causes in the light of cultural values and norms and the merits of individual cases." 18/ Just as Sir Henry Maine in Ancient Law wrote of the difficulty of early attempts to distinguish tort from crime, the Tiv have difficulty in the same respect. 19/ Today that distinction is of even more importance since the criminal law jurisdiction has been preempted from the field of native law and custom. Wrongful acts result in disputes which are brought before the jir and the disputes are resolved on an individual basis according to the values held by the entire community. Under the system previously in effect fines could be levied which would go to the government and imprisonment for a period not to exceed three months could be imposed. The person receiving punishment under the Tiv system had to agree to the punishment before the mbatarev would impose the penalty, but public opinion and pressure usually caused him to consent. Other punishments included public ridicule. 20/ The offenses of homicide, slave-dealing, rape and accusation of witchcraft were removed from the Tiv people's jurisdiction by the colonial government. 21/ Under the indigenous Tiv system, murder was __________ 18/ Ibid., p. 61. 19/ Ibid., pp. 116-117. 20/ Ibid., pp. 66-68. 21/ Ibid, p. 120.- 5 - In fulfilling their roles as judges the mbatarev "ask questions, and weigh evidence and causes in the light of cultural values and norms and the merits of individual cases." 18/ Just as Sir Henry Maine in Ancient Law wrote of the difficulty of early attempts to distinguish tort from crime, the Tiv have difficulty in the same respect. 19/ Today that distinction is of even more importance since the criminal law jurisdiction has been preempted from the field of native law and custom. Wrongful acts result in disputes which are brought before the jir and the disputes are resolved on an individual basis according to the values held by the entire community. Under the system previously in effect fines could be levied which would go to the government and imprisonment for a period not to exceed three months could be imposed. The person receiving punishment under the Tiv system had to agree to the punishment before the mbatarev would impose the penalty, but public opinion and pressure usually caused him to consent. Other punishments included public ridicule. 20/ The offenses of homicide, slave-dealing, rape and accusation of witchcraft were removed from the Tiv people's jurisdiction by the colonial government. 21/ Under the indigenous Tiv system, murder was __________ 18/ Ibid., p. 61. 19/ Ibid., pp. 116-117. 20/ Ibid., pp. 66-68. 21/ Ibid, p. 120.- 5 - In fulfilling their roles as judges the mbatarev "ask questions, and weigh evidence and causes in the light of cultural values and norms and the merits of individual cases." 18/ Just as Sir Henry Maine in Ancient Law wrote of the difficulty of early attempts to distinguish tort from crime, the Tiv have difficulty in the same respect. 19/ Today that distinction is of even more importance since the criminal law jurisdiction has been preempted from the field of native law and custom. Wrongful acts result in disputes which are brought before the jir and the disputes are resolved on an individual basis according to the values held by the entire community. Under the system previously in effect fines could be levied which would go to the government and imprisonment for a period not to exceed three months could be imposed. The person receiving punishment under the Tiv system had to agree to the punishment before the mbatarev would impose the penalty, but public opinion and pressure usually caused him to consent. Other punishments included public ridicule. 20/ The offenses of homicide, slave-dealing, rape and accusation of witchcraft were removed from the Tiv people's jurisdiction by the colonial government. 21/ Under the indigenous Tiv system, murder was __________ 18/ Ibid., p. 61. 19/ Ibid., pp. 116-117. 20/ Ibid., pp. 66-68. 21/ Ibid, p. 120.- 5 - In fulfilling their roles as judges the mbatarev "ask questions, and weigh evidence and causes in the light of cultural values and norms and the merits of individual cases." 18/ Just as Sir Henry Maine in Ancient Law wrote of the difficulty of early attempts to distinguish tort from crime, the Tiv have difficulty in the same respect. 19/ Today that distinction is of even more importance since the criminal law jurisdiction has been preempted from the field of native law and custom. Wrongful acts result in disputes which are brought before the jir and the disputes are resolved on an individual basis according to the values held by the entire community. Under the system previously in effect fines could be levied which would go to the government and imprisonment for a period not to exceed three months could be imposed. The person receiving punishment under the Tiv system had to agree to the punishment before the mbatarev would impose the penalty, but public opinion and pressure usually caused him to consent. Other punishments included public ridicule. 20/ The offenses of homicide, slave-dealing, rape and accusation of witchcraft were removed from the Tiv people's jurisdiction by the colonial government. 21/ Under the indigenous Tiv system, murder was __________ 18/ Ibid., p. 61. 19/ Ibid., pp. 116-117. 20/ Ibid., pp. 66-68. 21/ Ibid, p. 120.- 5 - In fulfilling their roles as judges the mbatarev "ask questions, and weigh evidence and causes in the light of cultural values and norms and the merits of individual cases." 18/ Just as Sir Henry Maine in Ancient Law wrote of the difficulty of early attempts to distinguish tort from crime, the Tiv have difficulty in the same respect. 19/ Today that distinction is of even more importance since the criminal law jurisdiction has been preempted from the field of native law and custom. Wrongful acts result in disputes which are brought before the jir and the disputes are resolved on an individual basis according to the values held by the entire community. Under the system previously in effect fines could be levied which would go to the government and imprisonment for a period not to exceed three months could be imposed. The person receiving punishment under the Tiv system had to agree to the punishment before the mbatarev would impose the penalty, but public opinion and pressure usually caused him to consent. Other punishments included public ridicule. 20/ The offenses of homicide, slave-dealing, rape and accusation of witchcraft were removed from the Tiv people's jurisdiction by the colonial government. 21/ Under the indigenous Tiv system, murder was __________ 18/ Ibid., p. 61. 19/ Ibid., pp. 116-117. 20/ Ibid., pp. 66-68. 21/ Ibid, p. 120.-6- either forgiven, or the guilty party was sold into slavery or killed. The solution depended upon the status of the killer and that of the person killed. Fratricide, for example, was never punished, only "ritually repaired." In some instances the murderer was made to hang himself. Frequently, murder led to warfare between lineages. 22/ Cases in the court records found by Bohannan involved the following crimes: illegitimate juju, adultery, illegal marriage, bigamy, kidnapping, contempt of court, breach of government administrative regulations, arson, gambling, fraud, robbery, slander, stealing, assault and fighting. He points out that gambling was made illegal through government regulation. Stealing and assault were the most common crimes for which sanction was imposed or self-help resorted to. 23/ The jir which are held at home, or "moots" as Bohannan calls them, were considered to be more important by the Tiv than the official jir sponsored by the government. The moots, they say, deal with the mystical matters of life and death. 24/ The moots are made up of the elders of the community and are informal arrangements for settling disputes. They are concerned with actions involving superstition, mystical powers, curses and fetishes--all the things considered by the administration as "witchcraft." Since witchcraft is officially a crime, the courts cannot concern themselves with it or use it tot solve conflicts. 22/ Ibid., pp. 147-148. 23/ Ibid., pp. 114-116. 24/ Ibid., p. 164.-6- either forgiven, or the guilty party was sold into slavery or killed. The solution depended upon the status of the killer and that of the person killed. Fratricide, for example, was never punished, only "ritually repaired." In some instances the murderer was made to hang himself. Frequently, murder led to warfare between lineages. 22/ Cases in the court records found by Bohannan involved the following crimes: illegitimate juju, adultery, illegal marriage, bigamy, kidnapping, contempt of court, breach of government administrative regulations, arson, gambling, fraud, robbery, slander, stealing, assault and fighting. He points out that gambling was made illegal through government regulation. Stealing and assault were the most common crimes for which sanction was imposed or self-help resorted to. 23/ The jir which are held at home, or "moots" as Bohannan calls them, were considered to be more important by the Tiv than the official jir sponsored by the government. The moots, they say, deal with the mystical matters of life and death. 24/ The moots are made up of the elders of the community and are informal arrangements for settling disputes. They are concerned with actions involving superstition, mystical powers, curses and fetishes--all the things considered by the administration as "witchcraft." Since witchcraft is officially a crime, the courts cannot concern themselves with it or use it tot solve conflicts. 22/ Ibid., pp. 147-148. 23/ Ibid., pp. 114-116. 24/ Ibid., p. 164.-6- either forgiven, or the guilty party was sold into slavery or killed. The solution depended upon the status of the killer and that of the person killed. Fratricide, for example, was never punished, only "ritually repaired." In some instances the murderer was made to hang himself. Frequently, murder led to warfare between lineages. 22/ Cases in the court records found by Bohannan involved the following crimes: illegitimate juju, adultery, illegal marriage, bigamy, kidnapping, contempt of court, breach of government administrative regulations, arson, gambling, fraud, robbery, slander, stealing, assault and fighting. He points out that gambling was made illegal through government regulation. Stealing and assault were the most common crimes for which sanction was imposed or self-help resorted to. 23/ The jir which are held at home, or "moots" as Bohannan calls them, were considered to be more important by the Tiv than the official jir sponsored by the government. The moots, they say, deal with the mystical matters of life and death. 24/ The moots are made up of the elders of the community and are informal arrangements for settling disputes. They are concerned with actions involving superstition, mystical powers, curses and fetishes--all the things considered by the administration as "witchcraft." Since witchcraft is officially a crime, the courts cannot concern themselves with it or use it tot solve conflicts. 22/ Ibid., pp. 147-148. 23/ Ibid., pp. 114-116. 24/ Ibid., p. 164.-6- either forgiven, or the guilty party was sold into slavery or killed. The solution depended upon the status of the killer and that of the person killed. Fratricide, for example, was never punished, only "ritually repaired." In some instances the murderer was made to hang himself. Frequently, murder led to warfare between lineages. 22/ Cases in the court records found by Bohannan involved the following crimes: illegitimate juju, adultery, illegal marriage, bigamy, kidnapping, contempt of court, breach of government administrative regulations, arson, gambling, fraud, robbery, slander, stealing, assault and fighting. He points out that gambling was made illegal through government regulation. Stealing and assault were the most common crimes for which sanction was imposed or self-help resorted to. 23/ The jir which are held at home, or "moots" as Bohannan calls them, were considered to be more important by the Tiv than the official jir sponsored by the government. The moots, they say, deal with the mystical matters of life and death. 24/ The moots are made up of the elders of the community and are informal arrangements for settling disputes. They are concerned with actions involving superstition, mystical powers, curses and fetishes--all the things considered by the administration as "witchcraft." Since witchcraft is officially a crime, the courts cannot concern themselves with it or use it tot solve conflicts. 22/ Ibid., pp. 147-148. 23/ Ibid., pp. 114-116. 24/ Ibid., p. 164.-6- either forgiven, or the guilty party was sold into slavery or killed. The solution depended upon the status of the killer and that of the person killed. Fratricide, for example, was never punished, only "ritually repaired." In some instances the murderer was made to hang himself. Frequently, murder led to warfare between lineages. 22/ Cases in the court records found by Bohannan involved the following crimes: illegitimate juju, adultery, illegal marriage, bigamy, kidnapping, contempt of court, breach of government administrative regulations, arson, gambling, fraud, robbery, slander, stealing, assault and fighting. He points out that gambling was made illegal through government regulation. Stealing and assault were the most common crimes for which sanction was imposed or self-help resorted to. 23/ The jir which are held at home, or "moots" as Bohannan calls them, were considered to be more important by the Tiv than the official jir sponsored by the government. The moots, they say, deal with the mystical matters of life and death. 24/ The moots are made up of the elders of the community and are informal arrangements for settling disputes. They are concerned with actions involving superstition, mystical powers, curses and fetishes--all the things considered by the administration as "witchcraft." Since witchcraft is officially a crime, the courts cannot concern themselves with it or use it tot solve conflicts. 22/ Ibid., pp. 147-148. 23/ Ibid., pp. 114-116. 24/ Ibid., p. 164.-7- the whole system of moots is based upon the divination of mystical causes behind facts. Diagnosis of a curse, for example, is achieved through the mechanism of divining chains. 25/ At the end of a moot, rituals are performed which signify that a settlement of the issue has been reached. 26/ It has been suggested that although socio-economic conditions have been altered in Nigeria, as elsewhere in the world, It is clear that a vast number of small, established village communities still exist, which have never been detribalized and in which there is much to suggest that traditional patterns of social control may still be relevant... it is also apparent that many migrant groups do not assimilate into their host community but rather retribalize and retain both distinct residential segregation and cultural homogeneity. 27/ Consequently, it has been concluded that "it may be useful to study traditional sanctions as a step in the process of assessing the acceptability of modern sanctions." 28/ 25/ Ibid., pp. 160-164. 26/ Ibid., pp. 204. 27/ Alan Milner, The Nigerian Penal System (London: Sweet & Maxwell, 1972), p. 379. 28/ Ibid., p. 380. Prepared by Neil R. McDonald Senior Legal Specialist Near Eastern and African Law Division Law Library, Library of Congress December 1972 IBJ:bp 12/14/72-7- the whole system of moots is based upon the divination of mystical causes behind facts. Diagnosis of a curse, for example, is achieved through the mechanism of divining chains. 25/ At the end of a moot, rituals are performed which signify that a settlement of the issue has been reached. 26/ It has been suggested that although socio-economic conditions have been altered in Nigeria, as elsewhere in the world, It is clear that a vast number of small, established village communities still exist, which have never been detribalized and in which there is much to suggest that traditional patterns of social control may still be relevant... it is also apparent that many migrant groups do not assimilate into their host community but rather retribalize and retain both distinct residential segregation and cultural homogeneity. 27/ Consequently, it has been concluded that "it may be useful to study traditional sanctions as a step in the process of assessing the acceptability of modern sanctions." 28/ 25/ Ibid., pp. 160-164. 26/ Ibid., pp. 204. 27/ Alan Milner, The Nigerian Penal System (London: Sweet & Maxwell, 1972), p. 379. 28/ Ibid., p. 380. Prepared by Neil R. McDonald Senior Legal Specialist Near Eastern and African Law Division Law Library, Library of Congress December 1972 IBJ:bp 12/14/72-7- the whole system of moots is based upon the divination of mystical causes behind facts. Diagnosis of a curse, for example, is achieved through the mechanism of divining chains. 25/ At the end of a moot, rituals are performed which signify that a settlement of the issue has been reached. 26/ It has been suggested that although socio-economic conditions have been altered in Nigeria, as elsewhere in the world, It is clear that a vast number of small, established village communities still exist, which have never been detribalized and in which there is much to suggest that traditional patterns of social control may still be relevant... it is also apparent that many migrant groups do not assimilate into their host community but rather retribalize and retain both distinct residential segregation and cultural homogeneity. 27/ Consequently, it has been concluded that "it may be useful to study traditional sanctions as a step in the process of assessing the acceptability of modern sanctions." 28/ 25/ Ibid., pp. 160-164. 26/ Ibid., pp. 204. 27/ Alan Milner, The Nigerian Penal System (London: Sweet & Maxwell, 1972), p. 379. 28/ Ibid., p. 380. Prepared by Neil R. McDonald Senior Legal Specialist Near Eastern and African Law Division Law Library, Library of Congress December 1972 IBJ:bp 12/14/72-7- the whole system of moots is based upon the divination of mystical causes behind facts. Diagnosis of a curse, for example, is achieved through the mechanism of divining chains. 25/ At the end of a moot, rituals are performed which signify that a settlement of the issue has been reached. 26/ It has been suggested that although socio-economic conditions have been altered in Nigeria, as elsewhere in the world, It is clear that a vast number of small, established village communities still exist, which have never been detribalized and in which there is much to suggest that traditional patterns of social control may still be relevant... it is also apparent that many migrant groups do not assimilate into their host community but rather retribalize and retain both distinct residential segregation and cultural homogeneity. 27/ Consequently, it has been concluded that "it may be useful to study traditional sanctions as a step in the process of assessing the acceptability of modern sanctions." 28/ 25/ Ibid., pp. 160-164. 26/ Ibid., pp. 204. 27/ Alan Milner, The Nigerian Penal System (London: Sweet & Maxwell, 1972), p. 379. 28/ Ibid., p. 380. Prepared by Neil R. McDonald Senior Legal Specialist Near Eastern and African Law Division Law Library, Library of Congress December 1972 IBJ:bp 12/14/72-7- the whole system of moots is based upon the divination of mystical causes behind facts. Diagnosis of a curse, for example, is achieved through the mechanism of divining chains. 25/ At the end of a moot, rituals are performed which signify that a settlement of the issue has been reached. 26/ It has been suggested that although socio-economic conditions have been altered in Nigeria, as elsewhere in the world, It is clear that a vast number of small, established village communities still exist, which have never been detribalized and in which there is much to suggest that traditional patterns of social control may still be relevant... it is also apparent that many migrant groups do not assimilate into their host community but rather retribalize and retain both distinct residential segregation and cultural homogeneity. 27/ Consequently, it has been concluded that "it may be useful to study traditional sanctions as a step in the process of assessing the acceptability of modern sanctions." 28/ 25/ Ibid., pp. 160-164. 26/ Ibid., pp. 204. 27/ Alan Milner, The Nigerian Penal System (London: Sweet & Maxwell, 1972), p. 379. 28/ Ibid., p. 380. Prepared by Neil R. McDonald Senior Legal Specialist Near Eastern and African Law Division Law Library, Library of Congress December 1972 IBJ:bp 12/14/72