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Examinations
Semester 2 - 2001
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Emalus Campus
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COURSE NAME: CUSTOMARY LAW
COURSE NO: LA322
TIME ALLOWED: THREE (3) HOURS
READING TIME: TEN (10) MINUTES
NUMBER OF PAGES: FIVE (5), INCLUDING COVER PAGE
NUMBER OF QUESTIONS ON PAPER: EIGHT (8)
NUMBER OF QUESTIONS TO BE ANSWERED: FOUR (4)
MARK ALLOCATED FOR EACH QUESTION: EACH QUESTION ON THE PAPER
CARRIES TEN (10) MARKS)
TOTAL MARKS: THIS EXAMINATION IS WORTH FORTY (40) MARKS
MATERIALS PERMITTED IN EXAMINATION
ROOM: UNANNOTATED SEC-16 READER &
RELEVANT LEGISLATION AND CASES.
SPECIAL INSTRUCTIONS:
THIS
PAPER CARRIES EIGHT QUESTIONS. YOU ARE REQUIRED TO ANSWER ONLY FOUR (4)
QUESTIONS OF YOUR OWN CHOICE.
Important
Instructions: Read
the questions carefully, identify the requirements of each question you choose
to do and answer those requirements clearly and thoroughly. The length of
answers is left to your discretion but, ideally, should not exceed two pages
for each question.
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QUESTION 1
Legal
Positivism and Legal
Pluralism are perhaps the two main theories which have had the most
significant impact on the recognition or non-recognition of customs or
customary laws. You are required to:
A. Discuss
the main features of both theories, and
B.
With reference to and
illustrations drawn from the laws of
(10
marks)
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QUESTION
2
The following diagram illustrates the
major options that states have in dealing with customs or customary laws:
Explain
what each of the options numbered A to D means then give an example of a law
(be it a statutory provision or case law) which illustrates each option.
(10 marks)
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QUESTION
3
Ron
is an adult male. He was born of indigenous parents in a village in your
country some thirty years ago. He grew up on the island and did his primary and
secondary education there. About a decade ago he went abroad to pursue some
tertiary studies and thereafter obtained a job there. He became quite fed up
with the hustle and bustle of city life abroad so
he returned a month ago to the tranquillity of
his island and to live with his people. You met him at kava yesterday and he
sheepishly admitted that he has forgotten a lot of the customs of his people
and was unsure if certain customs were legally recognised. He asks you to
advise him the legal position under the laws of your country as follows:
A.
Would Ron be able to
contract a valid customary marriage to his island sweet heart?
B.
Would Ron be legally
allowed to succeed in custom to his father’s chiefly title and to the chiefly
residence and the piece of land on which the house is built?
C.
Would his father, the village
chief and chair of the village peace committee, be in trouble with the law for
ordering some village youths to do community work as punishment for breaking
bottles on the village beach?
(10 marks)
[Note:
In answering this question, please indicate clearly the country whose laws you
chose to discuss]
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QUESTION
4
Supposing
that you are a judge in the High Court or Supreme Court, would you allow
customs or customary law to be used in the following scenarios?
A.
Where counsel intends
to use custom as a factor in her quest to establish that her client was
provoked to commit the act of assault for which she is now charged?
B.
Where counsel asks that any possible sentence
imposed by the court be mitigated by the fact that her client was already
punished by her village elders for the same offence for which she now stands
charged in your court?
C.
Where the father of a girl
whose face was disfigured in a motor accident seeks compensation because the
disfigurements will reduce the amount of bride price which his daughter would
bring when she marries.
(10 marks)
[Note: You may answer this question from
the perspective of the laws of any one or more countries of your choice]
******************************************************
QUESTION
5
[Answer
both parts of this question]
Chiefs and their authority differ greatly
across the Pacific.
- Choosing any two countries in the USP region, describe
and compare the main characteristics of the system of chiefs and the ways
in which their powers are used today. (6
marks)
- What do you consider to be the main issues surrounding
using chiefs in the service of the state? (4
marks)
(10 marks)
******************************************************
QUESTION
6
In the Pacific, different ways have been
adopted for recognising customary dispute resolution mechanisms and
incorporating them into a state’s legal system.
Take any two
(10 marks)
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QUESTION
7
Different approaches to the recognition of
customary law have been adopted in
Briefly discuss and compare the regimes
for the recognition of customary law in any two of these countries.
(10 marks)
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QUESTION
8
[Answer
both parts of this question]
A. There often appears to be a clash of
value systems in Pacific societies – between traditional group-based norms and
concepts surrounding the rights of individual citizens. Discuss this on-going
conflict and give examples of different approaches taken by the courts. (5 marks)
B. By what methods might customary law be
strengthened, and what are the advantages and disadvantages of doing so? (5 marks)
(10
marks)
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End of Paper
&
Good Luck with it