Introduction
The legal system of Sierra Leone is characterised by legal pluralism, a feature formally recognised by its supreme law. Section 170 of the Constitution of Sierra Leone 1991 establishes the hierarchy and sources of law, which include the Constitution itself, Acts of Parliament, existing law, and the common law. Crucially, this section also legitimises customary law, defined as "the rules of law which by custom are applicable to particular communities in Sierra Leone". This dual system, where written statutory law coexists with unwritten customary law, creates a complex legal landscape. While both are valid sources of law, their application is not always distinct, leading to areas of overlap and potential conflict.
This essay will identify and examine five key areas of life in Sierra Leone that are regulated by both statutory and customary law. These areas are: (1) marriage, (2) divorce, (3) land tenure, (4) inheritance, and (5) child custody. For each area, this paper will outline the provisions of both legal systems, identify points of conflict, and discuss the established or potential mechanisms for resolving these tensions. It will be argued that while Parliament has made efforts to harmonise these laws, particularly through legislation aimed at promoting human rights, the resolution of conflicts often remains a challenge in practice, dependent on judicial interpretation and the slow process of social change.
1. Marriage
The regulation of marriage in Sierra Leone is a prime example of legal pluralism. Both statutory and customary regimes for contracting a valid marriage exist side-by-side.
Statutory Law: The general law provides for three types of statutory marriage: Christian marriage, governed by the Christian Marriage Act (Cap 95); Mohammedan marriage, under the Mohammedan Marriage Act (Cap 96); and civil marriage, regulated by the Civil Marriage Act (Cap 97). Christian and civil marriages are strictly monogamous. A person married under either of these Acts commits the crime of bigamy if they attempt to contract another marriage during the subsistence of the first one. Mohammedan marriage allows for polygyny, permitting a man to have up to four wives in accordance with Islamic law.
Customary Law: Customary law marriage is recognised as a valid form of marriage. The requirements vary between different ethnic groups, but generally involve parental consent, a ceremony, and the payment of dowry or bride price (M'bayo, 2005). A key feature of most customary law systems in Sierra Leone is that they are potentially polygynous, allowing a man to marry multiple wives.
Conflict and Resolution: The most obvious conflict is between the monogamous nature of civil and Christian marriage and the polygynous nature of customary and Mohammedan marriage. The law resolves this by recognising the different systems as separate. A conflict arises, however, when an individual attempts to operate across these systems. For instance, a man married under customary law is not prevented from later contracting a monogamous civil marriage with another woman, though the status of the customary law wife becomes ambiguous. Conversely, a man married under the Civil Marriage Act cannot validly contract a subsequent customary law marriage. The courts are tasked with determining the status of these unions and the respective rights of the parties, often by ascertaining which system of law the parties chose to be governed by at the time of the marriage.
2. Divorce
Just as there are different ways to marry, there are different ways to divorce, depending on the type of marriage contracted.
Statutory Law: For marriages under the Christian Marriage Act or Civil Marriage Act, divorce is governed by the Matrimonial Causes Act 1960. This requires a petition to the High Court, and a decree can only be granted on specific grounds such as adultery, desertion, or cruelty. The process is formal, judicial, and often lengthy and expensive.
Customary Law: Divorce under customary law is typically a non-judicial process handled by family elders or community leaders. The grounds for divorce are often broader and more flexible, and may include issues like disrespect, laziness, or barrenness. The process often culminates in the formal return of the bride price, signifying the dissolution of the union. The Local Courts Act 2011 gives Local Courts jurisdiction to hear and determine matters relating to customary marriage and divorce.
Conflict and Resolution: A direct conflict in procedure is evident. A statutory marriage can only be dissolved by the High Court, not by customary methods. The conflict becomes more complex when parties to a customary marriage seek remedies, such as property adjustment orders, that are more readily available under general law. The resolution lies in the principle that the method of dissolution must match the method of marriage. A couple married under the Civil Marriage Act cannot simply declare themselves divorced by returning the dowry. The courts will uphold this separation of jurisdictions. However, this can leave parties to a customary divorce with fewer protections regarding property rights than are available under the general law, an issue that points to a lack of harmonisation (Zack-Williams, 2007).
3. Land Tenure
Disputes over land are common in Sierra Leone, and the tension between statutory and customary law is a significant contributing factor.
Statutory Law: The legal framework for land is divided geographically. In the Western Area (the former colony, including Freetown), land is held under English principles of freehold and leasehold. In the Provinces, however, the Provinces Land Act (Cap 122) is the governing statute. This Act vests all land in the Chiefdom Councils to be held for the benefit of the native communities. It prohibits non-natives from owning land in the provinces, allowing them only to lease it for limited terms.
Customary Law: Under customary law, particularly in the provinces, land is rarely seen as an individual, alienable commodity. It is typically held by a family or community, with individuals having usufructuary rights (the right to use the land and benefit from it) rather than outright ownership. Transfer of land outside the family or community is often restricted.
Conflict and Resolution: A fundamental conflict exists between the general law concept of individual ownership and the customary concept of communal tenure. The Provinces Land Act attempts to bridge this by vesting land in a community-based authority (the Chiefdom Council), but this has created its own problems. Conflicts arise when, for example, foreign investors or Freetown-based citizens attempt to acquire large tracts of land in the provinces for commercial agriculture, clashing with the traditional rights of local families. The resolution is meant to be managed by the Chiefdom Councils and local authorities, but this process is often criticised for a lack of transparency and for favouring powerful interests over local land users (Archibald and Richards, 2011). The courts are frequently called upon to determine the nature of a person's interest in land, a task complicated by poor records and the competing claims of statutory and customary law.
4. Inheritance and Succession
The rules determining how property is distributed after death represent one of the most direct areas of conflict between statutory and customary law, particularly concerning the rights of women and children.
Statutory Law: The key legislation is the Devolution of Estates Act 2007. This Act was a landmark piece of reform, creating a uniform set of rules for intestate succession (where a person dies without a will) for all Sierra Leoneans. It applies regardless of the marriage system the deceased was part of. The Act provides a clear formula for distribution, granting a significant share of the estate to the surviving spouse(s) and children, thereby protecting their interests.
Customary Law: Many customary systems of inheritance in Sierra Leone are patrilineal. Under these customs, property, particularly family land, passes down the male line, often to the deceased’s eldest brother or son. Widows and female children have historically been excluded from inheriting property, sometimes being considered part of the property to be inherited themselves.
Conflict and Resolution: Here, the conflict is clear and direct. Customary inheritance laws are often discriminatory against women, while the Devolution of Estates Act promotes equality. The resolution is provided by the statute itself. Section 1(2) of the Act explicitly states that its provisions apply "notwithstanding any law or custom to the contrary." This is known as a statutory override, where Parliament has clearly legislated to abolish a conflicting customary practice. The courts are therefore bound to apply the 2007 Act in all cases of intestate succession. However, the conflict persists in practice. Due to lack of awareness, deeply ingrained traditions, and limited access to the formal justice system, many estates, especially in rural areas, continue to be distributed according to customary rules, depriving widows and daughters of their statutory rights (Government of Sierra Leone & UN Women, 2014).
5. Child Custody and Maintenance
The final area of examination concerns the rights and welfare of children, where modern statutory principles clash with traditional customary views.
Statutory Law: The primary statute is the Child Rights Act 2007. This comprehensive Act domesticates the principles of the UN Convention on the Rights of the Child. A central tenet of the Act, found in Section 31, is that in all actions concerning a child, whether undertaken by courts, administrative bodies or families, "the best interests of the child shall be the primary consideration."
Customary Law: In many of Sierra Leone's patrilineal societies, children are considered to belong to the father's lineage, particularly if a bride price was paid. In cases of divorce or the death of the father, custody of the children would customarily be granted to the paternal family. Paternal responsibility was the norm, but the child's placement was determined by lineage rights rather than an assessment of their individual welfare.
Conflict and Resolution: The conflict is between the customary rule based on lineage and patriarchal rights, and the statutory principle mandating a focus on the "best interests of the child." The resolution, similar to that in inheritance law, is a statutory override. The Child Rights Act 2007 provides a new, child-focused framework that is intended to supersede customary norms. When a custody dispute comes before a court, a judge is legally obligated to set aside any customary rule and make a determination based on what is best for the specific child in their particular circumstances. This may mean awarding custody to the mother or another maternal relative, contrary to custom. This represents a significant shift in legal philosophy, from viewing children as adjuncts to a lineage to recognising them as individuals with their own rights.
Conclusion
The legal system of Sierra Leone, as enshrined in its Constitution, is a hybrid one where statutory and customary law operate in parallel. This essay has demonstrated that in at least five fundamental areas—marriage, divorce, land tenure, inheritance, and child custody—this dualism creates significant points of overlap and conflict. The nature of these conflicts ranges from procedural difficulties, as seen in divorce, to fundamental clashes of values, as seen in inheritance and child custody.
The mechanisms for resolution vary. In some areas, the law maintains a separation of systems, with the choice of law determined by the actions and intentions of the individuals involved. In others, most notably with the passage of the 2007 "gender justice acts" (the Devolution of Estates Act and the Child Rights Act), Parliament has chosen to impose a uniform statutory rule intended to override discriminatory or outdated customary practices. While these legislative interventions provide a clear legal resolution, their practical implementation is often incomplete. The persistence of customary norms, coupled with limited access to justice and lack of public education, means that a gap often exists between the law on the books and the law in practice. The continued harmonisation of statute and custom, therefore, remains a critical task for the judiciary, the legislature, and Sierra Leonean society as a whole.
References
Archibald, S. and Richards, P. (2011) A ‘New’ Scramble for Africa? A Response from Sierra Leone. London: Royal African Society.
Government of Sierra Leone and UN Women (2014) A study on access to justice for women and girls in Sierra Leone. Freetown: Government of Sierra Leone.
M'bayo, R. (2005) 'Culture and the State in Sierra Leone'. In: C. B. K. Dakubo, ed., The Courage to Hope: The Roots of a New Vision and the Calling of a Generation of Sierra Leoneans. London: Sierra Leonean Writers Series.
Zack-Williams, A. B. (2007) 'Gender, Law and the Politics of Patriarchy in Post-War Sierra Leone'. In: Proceedings of the African Studies Association of Australasia and the Pacific 30th Annual Conference. Melbourne, pp. 1-13.
Legislation
Child Rights Act 2007 (Sierra Leone)
Christian Marriage Act, Cap 95, Laws of Sierra Leone 1960
Civil Marriage Act, Cap 97, Laws of Sierra Leone 1960
Constitution of Sierra Leone Act No. 6 of 1991
Devolution of Estates Act 2007 (Sierra Leone)
Local Courts Act 2011 (Sierra Leone)
Matrimonial Causes Act, Cap 102, Laws of Sierra Leone 1960
Mohammedan Marriage Act, Cap 96, Laws of Sierra Leone 1960
Provinces Land Act, Cap 122, Laws of Sierra Leone 1960
