The myth of ‘Judicial customary law’ : reflections from Anglophone Cameroon

Abstract

This paper unravels the origins of the concept of ‘judicial customary law’, a variant of customary law, acknowledged and recognized in some common law jurisdictions of sub-Saharan Africa. It adopts qualitative research methodology based on doctrinal and content analyses of primary and secondary data. It documents some of the arguments underlying the emergence of judicial customary law as the inadvertent product of state courts in the exercise of the crucial prerogative of judicial establishment of customary law. The paper argues that the notion of judicial customary law, as divorced from social practices of the people, represents a controversial affront to our traditional understanding of customary law, which is associated with the aspirations of the community. Through a critical evaluation of the laws in force, and complemented by the jurisprudence of state courts of Anglophone Cameroon in the administration of the twin processes of judicial establishment, as complemented by the process of adjudging the equitability of customary law, the paper acknowledges the conceptual feasibility of judicial customary law in the territory, as opposed to its practical applicability. The absence of professionalization in the delivery of customary justice and the essentialist articulation of customary law are factors, among others, that forcefully militate against the realistic existence of this notion in Anglophone Cameroon.