In relation to sources of law in your country:
(i) State and explain four reasons for delegated legislation.
(ii) Explain four circumstance under which African customary law will be applicable in the courts.
ANSWER
i) Reasons for delegated legislation
- Lack of parliamentary time: parliament has insufficient time to legislate on all matters be they national or otherwise. By delegating some of its law-making authority, parliament can save time to solve much more pressing problems.
- Speed the procedure of law making in parliament is slow and parliament is not always in session to cope with any emergency or urgent problem that may arise. The alternative to dealing with such a situation is to delegate some powers to a competent authority.
- Technicality of subject matter: sometimes the proposed legislation is so technical in nature that it demands an expert to handle it. Since parliament is essentially a general body, rather than a body of experts, such legislation can best be dealt with a minister assisted experts in the area of the proposed legislation.
- Flexibility: Law making parliament is field to rigid provisions of the constitution and the National Assembly Standing Orders, and if a situation arise which necessitates the immediate repeal or amendment of an Act, it has to be effected through this procedure.
ii) Circumstances under which African Customary Law may be applied in court
1. Customary law is applicable only in civil cases.
The District Magistrate’s Courts Act restricts the civil cases to which African customary law may be applied to claims involving any of the following matters only:
- Land held under customary tenure:
- Marriage, divorce, maintenance or dowry:
- Seduction or pregnancy of an unmarried woman or girl:
- Enticement of, or adultery with, a married woman:
- Matters affecting status, particularly the status of women, widows and children, including; – Guardianship, custody, adoption and legitimacy: Intestate succession and administration of intestate estates, so far as it is not governed any written law.
2. One of the parties must be subject to it or affected it. If the plaintiff and the defendant belong to the same ethnic group, they may be said to be ‘subject’ to the customs of that ethnic group which could then be applied to settle the dispute. For example, a dispute between Kikuyus relating to any of the matters listed in (b) above cannot be settled under Kamba, Luo or any other customary law except Kikuyu customary law. However, if there is a dispute involving parties from different ethnic groups it may be determined according to the custom of either since one party would be subject to and the other party ‘affected’ the custom.
3. The customary law will only be applied if it is not repugnant to justice and morality.
4. The customary law that will be applied only if it is not inconsistent with any written law.
5. African customary law is not applicable if it is expressly excluded a contract the parties involved or the nature of the transaction in question.