Primogeniture and Illegitimacy in African Customary Law: The Battle for Survival of Culture
![handle is hein.journals/iicl15 and id is 123 raw text is: PRIMOGENITURE AND ILLEGITIMACY IN AFRICAN
CUSTOMARY LAW: THE BATTLE FOR SURVIVAL
OF CULTURE
Jelili A. Omotola*
Nowadays, African cultures seem threatened by the effects of
rapid socio-economic transformation processes and by the
invasion offoreign models and mass cultural products. The
ways of life, the ancestral values, the endogenous forms of
solidarity and expression, the traditional knowledge and
know-how are marginalized or lost. The rich diversity of
local cultures, oral traditions, and languages as well as the
African cultural and natural heritage are also seriously
endangered. 1
I. INTRODUCTION
African culture has been battling for its survival from the days of
colonialism.2 In recent times, especially with the introduction of new
constitutions in Africa, the culture of African people has faced new challenges.
This Article discusses the threat of extinction faced by African culture. It seeks
to put the culture in true perspective, using primogeniture and illegitimacy as
examples. The aim is to show its relevance, and to counsel caution in its
handling by Governments and other institutions. For practical reasons, the
courts' approach to African culture will be the centerpiece of the Article, since
its continued existence depends largely on the attitude of judges towards it.
The Article will disclose differing judicial attitudes in the interpretation of
constitutional provisions. The African Charter on Human and Peoples' Rights
* LL.B., LL.M., Ph.D. (London) Senior Advocate of Nigeria, Honorary Research
Associate, University of the Witwatersrand. The idea of this article occurred to me after my
Staff Seminar at the University of Capetown in May 2002. I am grateful to my Colleagues at the
University of the Witwatersrand, School of Law, for their useful comments on earlier drafts of
this article: Ian Currie, Lawrence Monnye, and Likhapa Mbatha of the Centre for Applied Legal
Studies (CALS). Thanks also go to my other colleagues in the School of Law for their
contributions during the Staff Seminar at which this article was first presented.
1. See The United Nations Educational, Scientific and Cultural Organization, Medium-
Term Strategy (2002-2007) for the Africa Region, July 1-4, 2002, Dakar, Senegal, para. 48, pt.
V Culture [hereinafter Medium-Term Strategy].
2. See M. Pieterse, It's a 'Black Thing': Upholding Culture and Customary Law in a
Society Founded on Non-racialism, 17 S. AFR. J. HUM. RTs. 364, 368 (2001). The author
observes that [clolonial powers regarded the indigenous populations of conquered territories as
uncivilised [sic] 'savages' and viewed indigenous law as a set of primitive rules, which was
irrational, inseparably linked with religion ..... Id.](ViewImageLocal?handle=hein.journals/iicl15&div=10&collection=&method=preview&ext=.png&size=3)
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Primogeniture and Illegitimacy in African Customary Law: The Battle for Survival of Culture
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