Polyphony in the courts: child custody cases in Kabba district court, 1925-1979

Abstract

In 1918, British colonial officials in Kabba Division of central Nigeria instituted rules for divorce and child custody in Kabba District Native Authority Court. The rules implemented in Kabba Court were ostensibly derived from customary marital practices, although no formal procedure for divorce had existed in Kabba prior to its introduction by the British.2 The introduction of divorce would appear to be a classic example of the "command model" of law in which the politically dominant--in this case, British colonial officials--imposed newly-created laws upon the politically subordinate; Nigerian men and women. Yet as Chanock (1985:12) has observed of the colonial period in Africa, "the field of customary law was one of the few on which Africans were allowed to play with a winning chance." While the British introduced a procedure for divorce in Kabba Court, how this procedure was interpreted, particularly in relation to child custody rulings, was affected by the respective interests of male and female litigants. Thus what happened in Kabba Customary Court may be better described as an interactional process which was nonetheless affected by colonial power differences (Starr and Collier 1989:9). British colonial officers had the last say in appealed cases but their position of power did not obliterate the polyphony of voices--from traditional chiefs cum court officials to Nigerian men and women asserting and redefining their claims regarding introduced rules for divorce and child custody. However, in any interactional analysis of legal process, the question arises of how the relatively powerless are able to manipulate imposed laws to their own advantage. The Kabba Court cases on divorce and child custody are instructive here as they illustrate the value of cultural concepts for reinterpreting legal innovations instituted from above. Indeed, assertions of customary, cultural ideas and practices were a particularly useful tool for Kabba litigants. Under the policy of indirect rule, British colonial customary court rulings ideally were to be based on just such traditions (Mann and Roberts 1991:22). Specifically, with divorce and child custody cases in Kabba, the concept "ties of blood" served as a focal point for reinterpreting the respective claims of Bunu Yoruba women and men to children after divorce. Beliefs about how these blood ties were constituted not only differed between the British and Nigerians, they were reinterpreted differently over time by Nigerian women and men. Further, disputes over the cultural conception of consanguinity in divorce and child custody cases resonated with contests generated by concurrent political and socio-economic changes. An analysis based either on culturally specific concepts or broader social processes alone cannot explain the course of events in Kabba (cf. Starr and Collier 1989:20), as they were dialectically related.