Hostname: page-component-7479d7b7d-k7p5g Total loading time: 0 Render date: 2024-07-14T11:52:07.640Z Has data issue: false hasContentIssue false

African Customs in an English Setting: Legal and Policy Aspects of Recognition

Published online by Cambridge University Press:  28 July 2009

Extract

Although there are no reliable, detailed official figures as to the present ethnic composition of the population of Great Britain, a recent survey by the Office of Population Censuses and Surveys has estimated that the number of Africans settled here is just over 100,000. Many more, of course, arrive in Britain each year as students or visitors. Indeed, in 1986 the volume of visitors from Nigeria and Ghana was considered by the British Government to be placing such burdens on immigration officials at the ports of entry that it was felt necessary to alter the immigration rules; people coming from those two countries now have to be in possession of visas before they arrive in the United Kingdom.

The presence of a significant number of Africans in England today is nothing new. There were at least 10,000 here in the late eighteenth century and possibly as many as 30,000, at a time when the total population of the country was only about a sixth of what it is today. West African slaves were brought to England from the 1570s onward. Most of them were used as household servants, often by the aristocracy, and some were employed as court entertainers. Indeed, at the beginning of the sixteenth century Henry VII had a black trumpeter (of uncertain origin) in his retinue. Much earlier, Africans served as soldiers in the Roman legions which occupied Britain during the first four centuries A.D.

Type
Research Article
Copyright
Copyright © School of Oriental and African Studies 1987

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 O.P.C.S., Labour Force Survey 1985, L.F.S. 86/2, table 1.Google Scholar

2 In 1984–85 there were 6,517 students from Africa at universities and on other public sector higher and further education courses in the U.K. See Statistics of Students from Abroad in the U.K. 1984/5, British Council, 1986, p. 41.Google Scholar The countries sending the largest number were Nigeria (3,221), Libya (1,250) and Kenya (1,056).

3 See H.C. 584 of 19851986 (Ghana) and H.C. 154 of 1986–87 (Nigeria).Google Scholar Similar rules were applied to visitors from India, Bangladesh and Sri Lanka, whereas formerly visitors from Commonwealth countries were exempt from visa requirements.

4 Walvin, J., Black and White: The Negro and English Society 1555–1945, London, 1973, 46–7Google Scholar; Shyllon, F., Black People in Britain 1555–1833, Oxford, 1977, 101–2.Google Scholar

5 Fryer, P., Staying Power: The History of Black People in Britain, London, 1984, 89.Google Scholar

6 Fryer, 4–5.

7 Fryer, 1–2.

8 For a particularly illuminating discussion of the concepts of assimilation and pluralism, see Parekh, B. (ed.), Colour, Culture and Consciousness, London, 1974, chap. 15.Google Scholar

9 Jenkins, R., Essays and Speeches, London, 1967, 267–9.Google Scholar

10 The word “custom” is employed here in its ordinary, primary sense of a habitual or usual practice or a common way of acting; it thus includes practices buttressed by the force of “legal” sanctions but it is not necessarily confined to the area often designated as “customary law”.

11 See e.g. Radclifle-Brown, and Fortes, (eds.), African Systems of Kinship and Marriage, Oxford, 1950, 53–5, 60–1, 66.Google Scholar

12 See Sottomayor v. De Barros (No. 1) (1877) 3 P.D. 1.Google Scholar

13 Obi, , Modern Family Law in Southern Nigeria, London, 1966, 168.Google Scholar

14 Marriage Act 1949, s. 1Google Scholar and First Schedule; Matrimonial Causes Act 1973, s.11 (a)(i)Google Scholar.

15 Sexual Offences Act 1956, SS.10(2) and 11(2)Google Scholar.

16 [1965] P. 85.

17 At 99.

18 The Conflict of Laws, 11th ed., 1987, 97, 626.Google Scholar

19 See Baxter, , “Recent Developments in Scandinavian Family Law”, (1977) 26 I.C.L.Q. 150 at 158.Google Scholar

20 See Radcliffe-Brown, and Fortes, , op. cit., 64–5.Google Scholar

21 Marriage Act 1949, s. 2Google Scholar; Matrimonial Causes Act 1973, s. 11.Google Scholar

22 Pugh v.Pugh [1951] P. 482.Google Scholar

23 [1969] 1 Q.B. 1.Google Scholar

24 See Poulter, , English Law and Ethnic Minority Customs, Butterworths, 1986, 20–1.Google Scholar

25 See e.g. The Times, 6 and 20 03, 1986.Google Scholar

26 H.C. 306 of 19851986Google Scholar.

27 Phillips, and Morris, , Marriage Laws in Africa, Oxford, 1971, 49.Google Scholar

28 See Szeckter v. Szechter [1971] P. 226Google Scholar; Singh v. Singh [1971] P. 286Google Scholar; Singh v. Kaur (1981) 11 Fam. Law 152.Google Scholar

29 (1983) 4 F.L.R. 232.Google Scholar

30 At 234.

31 See Poulter, , 32–3Google Scholar.

32 Hyde v. Hyde (1866) L.R. 1 P. & D. 130Google Scholar; see also Poulter, , “Hyde v. Hyde: A Reappraisar” (1976) 25 I.C.L.Q. 475.Google Scholar

33 See e.g. Re Bethell (1888) 38 Ch.D. 220.Google Scholar

34 [1946] P 122.

35 At 129.

36 [1961] P. 70.

37 See Poulter, , English Law and Ethnic Minority Customs, 5155.Google Scholar

38 Ibid., at 54–5.

39 Offences against the Person Act 1861, s. 45Google Scholar.

40 Dicey, and Morris, , 658, 660.Google Scholar

41 R. v. Bham [1966] 1 Q.B. 159.Google Scholar

42 Matrimonial Causes Act 1973 s.11(d)Google Scholar; Hussain v. Hussain [1983] Fam. 26.Google Scholar

43 Law Commission Report No. 146: Polygamous Marriages (1985)Google Scholar.

44 See e.g. Phillips, and Morris, , 55, 121, 123.Google Scholar

45 (1964) 108 S.J. 693.Google Scholar

46 This provision has now been replaced by section 44(1) of the Family Law Act 1986Google Scholar.

47 Qureshi v. Qureshi [1972] Fam. 173.Google Scholar

48 See Nasir, , The Islamic Law of Personal Status, London, 1986, 102–11.Google Scholar

49 See Family Law Act 1986, ss.46 and 54(1).Google Scholar

50 See Poulter, , “Recognition of Foreign Divorces—The New Law”, (1987) 84 Law Soc. Gazette 253 at 254.Google Scholar

51 Section 46(2).

52 Section 51.

53 See e.g. Phillips, and Morris, , 126.Google Scholar

54 Guardianship of Minors Act 1971, s.1.Google Scholar

55 See e.g. Judicial Statistics 1985, table 4.10Google Scholar; Supplement to Law Commission Working Paper No. 96, paras. 4.20–4.24.

56 See generally, Holman, R.; Trading in Children: A Study of Private Fostering, London, 1973.Google Scholar

57 See generally, Ebin, V., The Body Decorated, London, 1979Google Scholar; Brain, R., The Decorated Body, London 1979.Google Scholar

58 R. v. Adesanya (unreported, 1974), discussed at (1975) 24 I.C.L.Q. 136.Google Scholar

59 See generally, Poulter, , English LaW and Ethnic Minority Customs, 152–60.Google Scholar

60 See e.g. Mclean, S. (ed.); Female Circumcision, Excision and Infibulation (Minority Rights Group Report No. 47, 1980)Google Scholar; Saadawi, El, The Hidden Face of Eve, London, 1980Google Scholar; Darecr, El, Woman, Why Do You Weep?, London, 1982.Google Scholar

61 The Law of the Constitution, 10th ed., 1961, 202.Google ScholarSee also the statement by Sir Robert Megarry, V.C., in Malone v. Metropolitan Police Commissioner [1979] Ch. 344 at 357—“England, it may be said, is not a country where everything is forbidden except what is expressly permitted; it is a country where everything is permitted except where it is expressly forbidden.”Google Scholar

62 The custom of opium smoking practised by Chinese seamen here during the nineteenth century was treated as a perfectly lawful activity then, coinciding as it did with the widespread habit of opium consumption among the majority community at this time. It was only in the early years of the present century that legislative controls were introduced to outlaw the use of opiates for non-medical purposes, for reasons which had little to do with the activities of the few Chinese living in England at this period. See generally, Berridge, V. and Edwards, G., Opium and the People, Yale, 1987, esp. chap. 15.Google Scholar

63 Sec e.g. Shops Act 1950, s.53(1) allowingjews to trade on SundaysGoogle Scholar.

64 See e.g. Slaughterhouses Act 1974, s.36(l) authorising Muslim (and Jewish) methods of slaughter as an exception to the general rule about the need for pre-stunning.Google Scholar

65 Sec e.g. Motor-Cycle Crash Helmets (Religious Exemption) Act 1974, which permits Sikh motorcyclists to wear turbans in place of crash helmets.Google Scholar

66 See e.g. Caravan Sites Act 1968, imposing a duty upon local authorities to provide sites for gypsy encampments.Google Scholar

67 [1946] P. 122.

68 [1965] P. 85.

69 [1969] 1 Q.B. 1.Google Scholar

70 (1964) 108 S.J. 693.Google Scholar

71 See also In the Estate of Fuld (deceased) (No. 3) [1968] P. 675 at 698 (per Scarman, J.).Google Scholar

72 See e.g. Dicey, and Morris, , 92100Google Scholar; Cheshire, and North, , Private International Law, 11th ed., 1987, 130–40.Google Scholar

73 See generally, Allen, C. K.Law in the Making, 7th ed., 1964, 133–46Google Scholar; Halsbury's Laws of England, 4th ed., vol. 12, paras. 406–44.Google Scholar

74 See per Rowlatt, J. in Produce Brokers Co. v. Olympia Oil and Coke Co. [1916] 2 K.B. 296 at 301.Google Scholar

75 Allen, , 155–6.Google Scholar

76 See generally Allott, , New Essays in African Law, London, 1970, chap. 5Google Scholar; see also Elias, , British Colonial Law, London, 1962, chap. 6Google Scholar; Daniels, , The Common Law in West Africa, London, 1964, chap. 10Google Scholar; Roberts-Wray, , Commonwealth and Colonial Law, London, 1966, 575–9.Google Scholar

77 See Rankin, , Background to Indian Law, Cambridge, 1946, chaps. X–XII.Google Scholar

78 See Daniels, , op. cit., 290–1.Google Scholar

79 See e.g. Elias, , op. cit., 106–8 and the Jamaican Obeah Law of 1898 (cap. 266).Google Scholar

80 See Phillips, and Morris, , op. cit., 99100.Google Scholar

81 See Daniels, , op. cit., 273.Google Scholar

82 The first formula was employed in e.g. the Gold Coast, Nigeria and Sierra Leone, whereas the second was used in e.g. Basutoland and Malawi.

83 [1938] 1 T.L.R. (R.) 403.Google Scholar

84 See also Allott, , “What is to be done with African customary law?” [1984] J.A.L. 56 at 59Google Scholar, where the additional point is made that the powers entrusted to the courts by the various repugnancy clauses were only exercised to a very limited degree in Africa.

85 Dawodu v. Danmole [1962] 1 W.L.R. 1053 at 1060.Google Scholar

86 British Colonial Law, 104.Google Scholar

87 Sawyer, , “Judicial manipulation of customary family law in Tanzania”, in Roberts, S. (ed.), Law and the Family in Africa, The Hague, 1977, 121–2.Google Scholar

88 Le Case de Tanistry (1608) Davis 28.Google Scholar

89 Law in the Making, 7th ed., 1964, 144–5.Google Scholar

90 See generally, Poulter, , “Ethnic Minority Customs, English Law and Human Rights” (1987) 36 I.C.L.Q. 589 at 594–8.Google Scholar

91 Sufficient flexibility and room for development would be retained by the possibility of further human rights conventions being acceded to in the future.

92 See Review of the International Commission of jurists, No. 37 (1986), 1.Google Scholar

93 Cmnd. 6702 of 1977.

94 Cmnd. 4538 of 1970.

95 This Convention has not yet been ratified by the U.K.

96 For discussion of this question, see e.g. Cretney, S., Principles of Family Law, 4th ed., 1984, 7981.Google Scholar

97 Marriage Act 1961 (Commonwealth), s.11Google Scholar.

98 Report No. 31 (1986), paras. 259260.Google Scholar

99 Ibid., para. 263.

100 Principle 2.

101 Arts. 7, 3 and 5, respectively.

102 Art. 16.

103 See Australian Law Reform Commission Report on the Recognition of Aboriginal Customary Law, para. 503.

104 See e.g. International Covenant on Civil and Political Rights, art. 23(1); International Covenant on Economic, Social and Cultural Rights, art. 10(1); African Charter, art. 18(1).

105 See e.g. art. 8(1) of the European Convention which states that everyone has the right to respect for his private and family life. Art. 8(2) allows for interference by public authorities if this is necessary for e.g. the protection of the rights and freedom of others.

106 See e.g. Beddard, , Human Rights and Europe (2nd ed., 1980), 63.Google Scholar

107 Ibid., pp. 65–66.

108 See e.g. Cassell v. Broome [1972] A.C. 1027 at 1133;Google ScholarWaddington v. Miah [1974] 1 W.L.R. 683 at 694;Google ScholarR. v. Secretary of State for Home Affairs, ex park Bhajan Singh [1976] Q.B. 198 at 207–8;Google ScholarR. v. Secretary of State for the Home Department, ex parte Phansophar [1976] Q.B. 606 at 626;Google ScholarR. v. Chief Immigration Officer, ex parte Bibi [1976] 1 W.L.R. 979 at 984–5Google Scholar; R. v. Secretary of State for Home Affairs, ex parte Hosenball [1977] 1 W.L.R. 766 at 779;Google ScholarAhmad v. I.L.E.A. [1978] 1 All E.R. 574 at 577, 583;Google ScholarMalone v. Metropolitan Police Commissioner [1979] Ch. 344 at 366, 378–80;Google ScholarWhitehouse v. Lemon [1979] A.C. 617 at 665;Google ScholarGleaves v. Deakin [1979] 2 All E.R. 497 at 498–9;Google ScholarAtt.-Gen. v. B.B.C. [1981] A.C. 303 at 352–4, 362;Google ScholarHome Office v. Harmon [1982] 1 All E.R. 532 at 547–8.Google Scholar

109 [1978] 1 All E.R. 574.Google Scholar

110 At 583.

111 [1980] 3 All E.R. 161.Google Scholar

112 At 178.

113 [1981] 2 All E.R. 321.Google Scholar

114 At 331.

115 See generally, Poulter, , “Ethnic Minority Customs, English Law and Human Rights”, (1987) 36 I.C.L.Q. 589 at 609–13.Google Scholar

116 Art. 1.

117 Art. 2(1).

118 See Cmnd. 4538 of 1970, p. 27.Google Scholar

119 No such declaration was made by the U.K. in respect of art. 23(3) of the International Covenant which is in virtually the same terms.

120 [1976] A.C. 249. See also The “Playa Larga” [1983] 2 Lloyds Rep. 171 at 190Google Scholar and Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd. [1986] A.C. 368 at 428.Google Scholar

121 At 282–3. The same attitude would be taken towards slavery; see Baindail v. Baindail [1946] P. 122 at 128Google Scholar; Regazzoni v. K. C. Sethia (1944) Ltd. [1956] 2 Q.B. 490 at 524.Google Scholar

122 See e.g. the recent decisions on whether certain Muslim divorces were “manifestly … contrary to public policy” under s.8(2) of the Recognition of Divorces and Legal Separations Act 1971 discussed in Poulter, English Law and Ethnic Minority Customs, 122–3.Google Scholar