WALE AKINSELURE, in this exclusive interview, speaks with legal luminary, Wole Olanipekun (SAN) on the controversies that has trailed the continued to trail the burial of the late Awujale of Ijebuland, Oba Sikiru Adetona, the variations among customary, Constitutional and laws, and modernity and government influence on traditional institutions in Yorubaland
There has been controversy since the burial of the Awujale of Ijebu land, Oba Sikiru Adetona. Traditionalists, through the International Council for Ifa Religion, are particularly miffed at being disallowed from taking charge of the burial rites and have threatened to sue the Ogun State Government over the state law granting traditionalists the right to be buried according to their religious beliefs. Help interpret the laws guiding Yoruba traditional rulers and their burial rites amid the agitation of the traditionalists.
Let me start by saying the Awujale title is one of the foremost traditional titles in Yorubaland. I respected and admired the late Awujale and held him in high esteem, as do many Yoruba people. He was royal, regal and had good carriage and was a pride to us. In 1931, under the colonial masters, they approved a list of traditional rulers in Yoruba land, otherwise known as Obas, who could wear beaded crowns. Beaded crowns in Yoruba land are associated with first-class Obas. The beaded crowns are not the ones every Tom, Dick and Harry puts on nowadays. They are crowns rooted in tradition, history, trajectories of the people and of the Obas that put them on. Then, there were 55 Obas in Yoruba land who were recognised to wear beaded crowns. Awujale was one of them. The Yoruba Obas started holding meetings among themselves. In 1937, the Conference of Yoruba Obas was held in Oyo town; in 1938, it was held in Ile-Ife; in 1939, it was held in Ibadan; in 1940, it was held in Abeokuta; in 1941, it was held in Ijebu-Ode; in 1942, it was held in Benin. So, among the Yoruba Obas recognised to wear beaded crowns was the Oba of Benin. The Awujale stool has been with us since time immemorial. In law, there is a maxim, “Volenti non fit injuria”, that a volunteer cannot be heard to complain. When you look at section 8, subsections 1,2 and 3 of the Evidence Act, you accept customary law, which is not repugnant to natural justice, equity and good conscience and which has been judicially noticed and which must be a rule which a particular community is accepted as legal and obligatory and is applied by that community to govern the conduct of its members. So, any Oba in Yoruba land, in particular, must accept the Customary Law that has been accepted right from time immemorial to govern his community, town. The Supreme Court and the Appellate Court have given many decisions on this. There is a difference between Ecclesiastical Law – applied by Christians– and Customary Law, applied to govern the community. The Supreme Court has said that over and over again. A particular case is that of Alkamawa v Bello, decided in 1998, in respect of an Islamic Law matter, the Supreme Court said Islamic Law is not the same as Customary Law, and it does not belong to any particular tribe. So, ecclesiastical law does not belong to a particular tribe. Islamic law, which our brothers of the Islamic faith apply, does not apply to a particular community – it is a general law.
Which takes precedence in examining this controversy? Is it the general or specific law?
The position of the law is that the general cannot overrule the specific. General law is Islamic, Ecclesiastical law, but Customary law is specific law. So, the general law cannot overrule the specific. Groups of people, tribes that put aside or obliterate their customs and traditions, traditions are not just harming, they also put their customs and traditions at risk of extinction. And if culture goes into extinction, the people might also go into extinction. Kabiyesi became the Oba in 1960; he was the 56th Awujale of Ijebu land; he reigned for 65 years. He covered a complete generation. Anybody born when Kabiyesi assumed Obaship will be between 65 and 66years. When you take the percentage of people in Nigeria today, those who are within the age range of 65-66 years, cannot be up to 20 per cent. This means that about 80 per cent of the Ijebu people would not know the tradition, customs attending to the burial of an Awujale. The last time they witnessed it was the time Awujale joined his ancestors in 1959, that is, Oba Daniel Adesanya, Gbelegbuwa II. When you look at the Bible – Mark 12:17 – when the disciples of Jesus went to him to ask, “Master, should we pay tax?” He replied: “Give unto Caesar what belongs to Caesar.” Jesus is God incarnate; he walked on water; he performed so many miracles; he resurrected the dead; he himself resurrected. But he said, “Give unto Caesar what is Caesar’s.” The Bible recalls that on the eighth day, Jesus himself was baptised, like others, with the culture and custom of his people. John the Baptist declined, saying, “Master, I cannot baptise you.” But Jesus said, “You must do it, because I must fulfil all righteousness.” This means I must fulfil the tradition of my people. The Bible itself makes references to the burial grounds of kings. In 2 Kings 14, it is written, “Jeroboam rested with his ancestors and was buried with the kings of Israel, in Samaria.” Several other kings were always buried in specific burial grounds. The law will be the law. When talking of history, customary law, and tradition, you answer the question, “How are kings buried? Where are they buried? When you now speak of core evidence and core exhibits, and you say you want to woo the court to visit the locus in quo, you take them to the palace and show them where the past Obas were buried. During my national youth service corps days in Kwara, in 1976/77, during the orientation, we had a tour of the state, and I recall that we visited the palace of the Olofa of Ofa, Oba Olawore Olanipekun – the immediate past Olofa. He took us on a tour of the palace and showed us the burial grounds of the past Olofas with inscriptions of their years of reign, and when they died.
What does the current development portend for the future?
I want to plead with our people in Yoruba land that we must not mix tradition with modernity. Traditions will remain traditions; our religion will remain our religion. And we must also not take whatever might be the dictates of our profession out of context. We have to marry them to our environment. We must not do injustice to our environment. I am at a loss for what will happen in future. For a great Oba like the Awujale, his burial ground should not have remained vacant, empty, or absent where past Awujales were buried. It might become a legal question, tussle, conundrum for his lineage in future, and it might be difficult because if it is the Ijebu tradition, which is not accepted by law, that Obas must be buried in a particular place, among his ancestors, that would be it.
The Ogun Attorney-General and Commissioner for Justice, Mr Sina Ogungbade, has justified the law and said the state government is not shaken by the threat of the Council for Ifa Religion to institute legal action challenging the burial of the late Awujale.
I respect the Governor of Ogun State; I respect the Attorney-General; I am close to them, but I have my reservations about the law. The law should not mutilate custom and tradition. You can do a law that will bring tradition in conformity with modernisation, but not to destroy the custom and tradition, not to obliterate it. If, for instance, there was a tradition in place relating to the canibalisation of the remains of an Oba, you can prohibit that, but not to say that an Oba will decide where he will be buried. You talk of what the Constitution says, including the right to dignity. It is not a constitutional right for anybody to ascend the position of an Oba. It is not my constitutional right to become a lawyer, but if I am chosen to be a lawyer, I must keep to the rules of the game; I must accept the ethics of the profession. If I am chosen to be a practising lawyer, and my son is the judge, I must bow to him. I must call him “My Lord,” as that is the tradition. In Christianity, you see our priests, particularly those of Orthodox churches, wearing robes and caps; these are prescriptions in the Bible. It is there right from the time when God told Moses that this is the regalia of Aaron. It is not the right of anybody to become a priest, but if you become a priest, under ecclesiastical law, you must subject yourself to canonical, Episcopal discipline. The Bishop, being the Diocesan, can discipline you. Can the Ogun State Government make any law that nobody should prostrate before an Oba? It is not in any law. Can a state government make any law that the Obas must leave their heads bare? It is part of the tradition of Yoruba land that we don’t see the head of an Oba. With the Ogun State law, are you saying if an Oba is a Christian, undertakers will be toying with his corpse? Are you saying they should take his corpse to the church?
There are ways Yoruba people arrange for the lying in state of their Obas who have joined their ancestors. Give unto Caesar what belongs to Caesar. And I have a very serious doubt that any court will pronounce that an Oba has the right to decide where he will be buried. I want to believe that people who have locus standi can challenge the law. But the government does not need to wait for the law to be challenged before making the necessary amendments. Amendments can be made that will assuage the feelings of the traditionalists and the people who want to be buried differently from how their forbears were buried. Again, you can’t litigate against the dead, because whatever he has done is gone with him. But whatever he has done might affect the living.
So, do the traditionalists- Ifa council – have a case against the Ogun State Government?
The traditionalists are not the kingmakers. It is the kingmakers, to the best of my knowledge, who have a right, if there is any cause of action. There must be right; there might not be a remedy this time around. So, I don’t know how the traditionalists can go to court. Who will they sue? If they want to go ahead, it is their choice, but their counsel should advise them properly. I think the next thing to be done is for the kingmakers to see how the wrong can be redressed. And the way it can be done is for them to ask any person who wants to become the Awujale to do some undertakings now. We don’t give such undertakings in Yoruba land, but now this will compel them to ask for such undertakings to be given.
You were quite in contact with the immediate past Alaafin of Oyo, Oba Lamidi Adeyemi. What was his disposition to the Ogun law?
The late Alaafin of Oyo was opposed to this law passed by the Ogun State Government. He addressed a press conference; he protested against it. He said, whenever he dies, the Oyomesis should take care of him; they know what to do. And when some people wanted to toy with his corpse, they immediately stopped them, and Alaafin was buried where past Alaafins have been buried. When you go to the palace, you see his burial ground.
You mentioned the kingmakers. In instances of the emergence of Obas in recent years, there is the perception that the powers of the kingmakers are being eroded by several influences, especially by governors and other government officials, compared to the time past. What do you make of how our Obas now emerge and their carriage compared to times past?
I agree with you, and that is why the respect accorded to our Obas is thinning, waning, fading out. If the tradition says you must consult Ifa, that the kingmakers must come together in their wisdom, they vote, they select somebody, and you bypass the tradition. The tradition and the due process are customary laws. And then somebody comes around and you turn the appointment of Obas to the highest bidder. What do we expect? Yorubas say, “E se bi won se n se, k’oleri b’o se ye k’ori.” Let us do it methodically, as it has always been done, so that it can be as it has always been. If the centre cannot hold, then things fall apart. When kingmakers see the appointment of Obas as a time to enrich themselves, they are expecting largesse here and there. They are even demanding from princes that this is their time to become rich; this is a time to be a millionaire; this is a time for me to own a car; this is a time to build, to roof my house. When you look at the institution of Oyomesis of old – yes, the Alaafin was powerful – they were powerful. Baron Montesquieu is credited with having evolved the principle of Separation of Powers between the executive, legislature and judiciary. But Yoruba had it before Montesquieu made his proposition. The Yoruba had the Oba, which is the executive. In the case of Oyo, the Oyomesi combined the position of the legislature and the judiciary. They were the ones who would decide when the Oba would open the calabash. The courts over the years have affirmed customary arbitration, called “Kootu Oba,” that is, the Oba’s Court manned by chiefs and elders. The courts have pronounced that it is not illegal or unconstitutional. Within Yoruba land, we must retrace our steps; we must be sober, be reflective, and it has to be deliberate. We cannot allow things to go this way. In Yoruba land, Obas should not say they belong to one religion – they belong to all religions: Christianity, Islam, Traditional, Ifa, Ogun worshippers. We cannot be more Catholic than the Pope.
To what extent is Consultation with Ifa critical in the emergence of Obas in Yoruba land?
Ifa does not lie, it is we who tell lies. Ifa will not tell lies except you change what Ifa says. In the same vein, God is not a man that he will lie. God does not lie. But some messengers of God, some Bishops, prophets lie; some who say they are agents of God lie. I delivered a paper in Osogbo years back – the second edition of the late Justice Bolarinwa Babalakin Annual Lecture by the Nigeria Bar Association, Osogbo branch. The late Justice Kayode Eso was the chairman of the event. I said, no Yoruba man will go to any court, and you ask him to swear on Ogun, who will tell lies. But, as a lawyer, I come to the realisation that you give the Bible or the Qu’ran and he swears, and thereafter he starts telling lies. If you ask anybody from the Ikale/Okitipupa area to swear by Ayelala, they will not do it because there might be instant justice. We believe that the God of the Bible is patient. But they know that the god of Ifa, Ogun, will visit instantly. If a driver holds a metal and starts telling lies, he knows what will happen. Our customs are rich, elegant, and beautiful, and the law is clear. I doubt if there is any custom that states that an Oba should be buried in a particular way, and that somebody will tell me that that custom is against public policy. And I don’t want to agree with the late Oba, whom I hold in high esteem, that it would be right for an Oba to say I don’t want to be buried in the palace.
When you look at traditional institutions in Yoruba land, they are different from what they have in other parts of the country. When the British came, they saw the monarchical arrangement in Yoruba land – it was even more superior than theirs. It was not the government or the British that arranged how the kingmakers of every town should emerge. They have been there from time immemorial. And what the government has done in Yoruba land is to make chieftaincy declarations for all recognised chieftaincies – they call them recognised Obas, prescribed authorities. The declarations contained, among others, how many ruling houses are entitled to a throne, and how ascension to a throne is done. And for most of the chieftaincy declarations, there is always a clause: Consultation of the Ifa oracle. When Ondo State was created in 1976, one of the first things the military administration then did was to task Justice Morgan, from Ogun State, to look into the recognised chieftaincies in Ondo State. And for all the declarations, the Morgan Chieftaincy Review Commission upheld the role of Ifa in the picking of Obas. This means that, in Yoruba land, the role Ifa plays has not been enshrined in the laws. So, is it possible that, in the case of any town in Yoruba land, we say, if anybody is to become an Oba, the Pastors should come and pray, or the Imams should come there, or you call dreamers to say that they have dreamt of the Oba. The declarations state the Consultation of Ifa. It is there in most of the declarations. We either want to keep the institution of Obaship or we abolish it. If we decide to abolish it, that means that we are abolishing our past. Can we have a present without a past?
Are governors not the new Ifas?
They are not. They also consult Ifas. Ifa is a deity within the Yoruba organogram.
In several states, the traditional institutions, traditional rulers, have been put under the jurisdiction of local government areas.
It is wrong; it is an anomaly. That is part of what we are doing to obliterate the institution of Obaship in Yoruba land. We do not have a Constitution which states that Obas are under local governments. It is not right. Who is the father of the local government chairman? Who is the ruler of the community, and from whom does the local government chairman come?
To uplift the status of our Obas, there are calls for constitutional roles for our traditional rulers.
We don’t need any constitutionally stipulated role for any Oba, and the Obas should not ask for that. Once you do that, you subject yourself to the authorities. They should seek advice. Why should they make such a request? They are called “Igba keji orisa.” When you are begging to perform roles, they put you under the local government chairmen, and then you do not complain. What role do they want to perform? As an Oba in Yoruba land, you are the leader of your community. You are the first citizen. People come, they give you gifts, you accept; they empathise with you. You live in their palace, the palace which belongs to the entire community – although you can modernise it if you want, but it is not your palace. So what role do they want to play? Do they want to be Commissioners? When Sir Adesoji Aderemi was Governor-General in the Old Western region, he was not asking for it. Out of respect, they invited him. But when any Oba chooses to be a commissioner under any governor, then he becomes a servant of that governor. The governor becomes his master; the governor becomes his employer. An Oba is not an employee of anybody, though he might be taking some token from the government. It is not remuneration.
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