Prohibited degrees of consanguinity and affinity in customary marriage

Status Bar for a Nigerian Customary Marriage

Customary law in some parts of Nigeria prohibits the intermarriage of so-called 'free citizens' and members of some castes, for instance, a slave - 'osu'. An osu is, inter alia, a person who is a slave or has been offered symbolically in sacrifice to idols, or a descendant of such person. The osu is therefore subject to some legal or social disability or social stigma. But this obnoxious rule which established the osu and disabled them from freely marrying other members of the community has been, to all intents and purposes, abrogated in the four Eastern States by the Abolition of the Osu System Law 1956.

The Law abolished for all time the osu system, and made it unlawful.The osu system is defined to include, ... any system, status, institution, or practice which implies that any person is subject to a legal or social disability or social stigma which is similar to, or nearly similar to, that borne by an osu'.m Henceforth, all persons who were previously regarded as osu are free from the handicaps of that status, and are able to exercise all the rights and privileges of other members of their community. The law makes it an offence punishable with a fine of 100 Naira or six months' imprisonment for any person to enforce any disability whatsoever relating to marriage against another on the ground of the osu system. Furthermore, it is an offence to preclude anyone from the observance of any social custom, usage or ceremony. The abetment of this offence is also punishable.

In Ebiriukwu and Ors v Ohanyeremva and Ors. There was a claim for declaration of tide to land and it was pleaded by the respondents in their statement of claim that the appellants were at all material times subject to disabilities by virtue of being 'osu'. The Supreme Court was called upon to determine the effect of the Abolition of Osu System Law, 1956 upon the competence of the action. Brett, F.J., observed that:

Section 3 of the Law removes, with effect from the commencement of the Law, any disabilities which may previously have debarred a person from holding any form of interest in land on the ground of being 'Osu', but it does not confer any specific interest on persons previously disqualified; it merely enables them, after the commencement of the Law, to acquire such interests. Furthermore, the Law does not say the persons who were formerly 'Osu' shall be deemed never to have been subject to disabilities, and it follows that where it is necessary before the commencement of the Law it is in no way contrary to the provisions of the Law to inquire into the question whether at the material time any person was subject to disability as 'Osu'.

Applying this interpretation, from 1956 all the customary incapacities imposed by the Osu system with regard to marriage ceased to be of any legal consequence.Despite its altruistic motive, this piece of legislation has Med to alter the attitude of people in the areas where the Osu system existed. Fortunately, section 39(2) of the 1979 Federal Constitution provides that "no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth". The circumstances of one's birth may include descent from an Osu.

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