Feb 13, 2014, 9:51 AM
In his published epock-making BBC documentary, The Africans: A Triple Heritage, the veteran anthropologist and leading Africanist, Professor Ali Mazrui, also points out:“Before European colonisation there were indigenous African justice systems in which the protection of the innocent was the main focus rather than the punishment of the guilty: victim-focus rather than villain-focus.There was a decisive shift from focus on the victim of a crime to focus on the suspect or culprit.Africa’s indigenous justice systems also shifted from emphasis on shame to emphasis on guilt.Shame is a subjective state of mind which implies a state of unease and internal anxiety about something which has gone wrong.Guilt, especially in Western terms, is an objective condition which can be ascertained by the law of evidence and which can be measured in terms of degree”.
“The colonial justice system substituted prison sentence to compensation. It also substituted guilt ascertainment for shame arousal.Third, it substituted strict personal responsibility by the culprit for collective family and social responsibility for violations committed by a member of the group.The substitution of a cage for the villain in place of compensation for the victim, the insistence on objective guilt instead of subjective shame, the focus on personal individual accountability for collective responsibility have all resulted not only in escalating crime and violence in our cities and urban areas but also in the relentless decay of our present legal systems and structures of law enforcement institutions.How do we evolve these pluralistic, conflicting and competinglegal systems, concepts, principles and reasoning into a holistic harmonious whole capable of absorbing the shocks due to the African colonial experience and of meeting the ever-present challenges of rapidly changing social needs?”
An integrated and planned justice system does not aim at the preservation of criminal responsibility, ingredient of offences, and defences.Rather, it ensures the universality of its principles.The concept of criminality among a people envisages a general revulsion of the proscribed conduct as one reprehensible to society’s mores and deserving general condemnation.Consequently, where the declared objectives of a justice system is the disregard of immanent attitudes and accepted mores the resulting formulation of theories of responsibility, ingredient of offences and defences, cannot but be based on values outside the cultural milieu.This is precisely the effect of the inherited laws in many, if not all, African countries.We are now faced with the unenviable task of reordering our societies, through proper planning and execution of criminal justice policies, to reflect societal values.The ideals of reasonableness, legitimacy of conduct, and sense of moral culpability can only be examined within the context of the values of society.
It is therefore naïve to assume that an alien morality can satisfy the sense of justice of a people especially where these values are in essential and fundamental respects opposed to theirs.Hence in the formulation of criminal justice policy nothing but the cherished values of the people should form the substratum.If a contrary attitude is adopted, there is no doubt that the perennial problems of cultural pluralism which is the bane of the criminal justice systems in the developing African countries will continue to cry out for appropriate and deserving solution.
The legendary African scholar and jurist, Professor T.O. Elias, in one of his many ground breaking masterpieces entitled The Nature of African Customary Law, which is a required textbook for the University of London LL.M course in African Law, observed and I quote: ‘Whereas African Law strives consciously to reconcile the disputants in a law suit, Western Law often tends to limit itself to the bare resolution of the conflict by stopping at the mere apportionment of blame as between the disputants: judgement by agreement intended to restore and preserve the social balance and not judgement by decree intended to enforce the legal rights of one party to the complete and permanent exclusion of the other, whatever the effect on the social equilibrium may be.’
The object of litigation in African legal reasoning therefore, is not punishment but settlement of disputes; not a declaration of strict legal rights, but reconciliation.The tender of amends by the wrong doer implied an apology for the wrong done; its acceptance meant forgiveness and forgetting.This method would tend to adjust disturbances of the social equilibrium, to restore peace and goodwill and to bind or rebind the two disputing groups together in a give-and-take reciprocity – unlike the Western method which tends to widen the gulf between the two groups by granting all the rights to one of them to the exclusion of the other, because it would, in general, concern itself with facts and legal principles and take no cognisance of social implications.
In the majority of cases, the general atmosphere of the African judicial process is not one of enforced awe or solemn resentment but one of peaceful debate of the issues dividing litigants in the sure belief that some kind of acceptable solution will be found out of the elders’ fund of wisdom and sense of justice.Generally, it seeks to state and enunciate the norms of social behaviour expected of right-minded members of the community, to condemn departures from these objective standards, and to praise such acts as they tend to maintain and enhance the general well-being of the community; to make peace, to effect a reconciliation if necessary by making one pay a fine or compensation to the other, but always by the gentle process of argument and persuasion leading gradually and inevitably to a verdict that is at once clear and fair.
And running through it all is the transparent duty to reconcile disputants with each other, to reincorporate the minor criminal in society at large, and to show the necessity for elimination of the malefactor and the antisocial, in the earnest endeavour to do justice, fairplay and equity.It is this motive to do equity that is the most characteristic of the African judicial process and reasoning.Aristotle, the master who knows, could have been speaking of African legal reasoning when he said in The Rhetoric.“It is equity to pardon human failings, to look to the law giver and not to the law… to wish to settle a matter by words rather than by deeds; lastly, to prefer arbitration to judgment, for the arbitrator sees what is equitable, but the judge only the law, and for this an arbitrator was first appointed, in order that equity may flourish”.It remains to conclude that in this sense the African judge in his reasoning is, and must, remain an arbitrator.
It is on this indigenous African system of dispute settlement i.e. arbitration, conciliation and reconciliation that a Nigerian student wrote his PhD Thesis in an American University that the Americans have adopted and renamed and popularised as Alternative Dispute Resolution (ADR) when in fact ADR is truly and simply African Dispute Resolution: it is not alternative, it is African!
Although it is the national policy in many African countries to promote unification of laws the effect of which would be to eliminate internal conflict problems, it would appear that the attainment of this goal in common law countries is not an immediate possibility.Choice of law problems will therefore continue to puzzle the courts and legal advisers for some time to come.
There are, however, three major possibilities for the course of legal development in Africa.First, the pluralism of law may continue, either purposely adopted by the authorities or simply persisting in the absence of any change of policy.A second possible policy is the selection of one of the plural legal systems and structures to the exclusion of the others.This might be the non-indigenous law – or some other foreign legal system – or the selection of one or more of the indigenous legal systems.
The third possible policy for the course of legal development in Africa is the fusion of the elements of the plural legal systems.The future of the African legal systems therefore will probably combine Western derived legal principles with indigenous legal doctrines so modified and developed as to fit the changing needs of society.A directed evolution of the institutions of indigenous law is therefore necessary if fusion of this element with the advanced legal doctrines of Western hue is intended to constitute a national legal system.
Lines of development in the past have, however, demonstrated the potentialities of African customary law for the future.While economic development would be fostered if brought under one unified general system of law for a country, the law established should have full regard for the traditions, family and personal law of the society concerned.Questions of family relations, marriage, divorce, and succession are so essentially personal that they must, in a large part, continue to be governed by the customary law of the community.It may therefore be stated that the third possibility – fusion of indigenous and non-indigenous laws – should be the guiding policy, expressed or unexpressed, for most African states.
It is, however, impossible to exaggerate, that the urgent need for law reform and development in Africa cannot be met by a series of national efforts however praise-worthy each of these may be.The artificiality of existing national boundaries, their lack of rational relation to significant ethnic groups or to viable economic units and also their very intransigence, all these factors strongly suggest that national efforts toward law development at the national level need to be supplemented by transnational programmes.The argument for uniformity or at least harmonisation of laws is compelling and some measure of success in this direction might also provide some impetus for the creation or recreation of transnational courts and the better coordination of criminal justice systems across national boundaries.
Almost by definition, the Africa Region is a region of new nations which must tackle and accomplish several urgent tasks all at once.The compelling goal is modernisation with its many pathways some obvious, others baffling and obscure.The more obvious ones areeducation,health, economicdevelopmentandimprovementofcommunication.
These have received and are receiving much scientific and institutional provision.Less obvious, more baffling and even more challenging are those pathways leading to the establishment of that stable legal and political order within which the desired and needed modernization to cope with the minimum standards and norms of the United Nations and/or the African Union can take place.
This is the province of law, and in this province it is urgent that a radical transformation should occur both in the provision for research and in the consequent output of systematic and constructive thinking.Far more than the developed and established nations, the African states require the services of the most skilled, perceptive and sophisticated machinery of law reform and law development that can be contrived.For we on the Africa continent, have less time in which to achieve comparable viability in our institutions of law and government.We have a greater need to avoid unnecessary mistakes, being less able to afford them.Like the advanced nations from which we have inherited dominant features of our legal systems, we are confronted with the problem of keeping the law abreast with the time.And our adolescent need for stability and national unity faces us with many additional problems of institution building and law development.
Somehow, therefore, massive scientific help must be brought to bear on the problems of institution building and law development in Africa.An urgent need exists for achieving the capacity to point more assuredly toward the acceptable solution of pressing political problems; for speaking helpfully, persuasively, and effectively to the emotions, passions and reasons of the leadership of Africa.
There is therefore an urgent need for the establishment of an International Centre on African Legal Research ora Law Commission for Africa, constituted on lines similar to those of The United Nations Economic Commission for Africa, and working closely with it and supplied with full time staff specifically devoted to this task.Ideally, such a Law Commission for Africa would be served by three or four Regional Research Institutes, themselves based on smaller institutes of legal research in each state.Tasks awaiting such a Law Commission include:
1.undertaking the promotion of systematic research into the many common legal problems that confront most African states, not least of which is the establishment of viable constitutions.
2.acting as the technical agency for any future organisation that may be set up to promote uniformity of laws as between states in matters where uniformity is desirable and practicable and assisting generally with the work for modification and restatement that is under way in some countries.
3.serving as a coordinating centre and clearing house of information regarding law reform activities in different countries, how particular problems have been solved in foreign legal systems, and providing facilities and assistance for projects for reform in particular countries.
The thrust of my argument is the strongest possible plea for collaboration in the establishment of some such Law Commission for Africa.Massive and concerted work by legal scholars on the intangible infrastructure has been urgently needed since days before independence.In the field where many common problems challenge combined thinking and action, it remains true to say that most of the ongoing work proceeds in isolation and does not measure up to need.For the most part, we have yet to take the necessary steps away from the starting point, inherited from the colonising power, on the road to integrated national legal systems and to international harmonisation in appropriate spheres.
In justification of this plea we need only to remember the impressionistic profile of the colonial legal impact and legacy in Africa raising questions and indicating areas that demand thoughtful action based on systematic research.In a Paper presented at the ‘International Conference on Human Rights: The African Concept’,held at the University of Port Harcourt, Nigeria, in 1987 Professor Claude Ake observed as follows: “African society is a network of relations and of mutual obligations which impose responsibilities based on duty, trust and sense of community.There must therefore be a unique direction in which human rights laws ought to go in Africa;that human rights laws in Africa must be built on principles quite different from those existing elsewhere; that human rights laws in Africa must be built on African principles”
It is argued elsewhere, however, that human rights as understood imply a society which is atomized, individualized; a society based on permanent conflicting interests.The individual is conscious of his separateness and wishes to maintain it, while society, on the other hand promises to uphold this separateness.
Such values are alien to African society.We Africans lay emphasis on the collective rather than the individual, and the individual claim is not usually allowed to override that of society.African society promotes harmony rather than competing interests and the individual tends to consider obligations to others as having a higher status than his own claims against them.
In recent years, serious strides have been made to enact human rights laws in Africa, the most remarkable being the African Charter on Human and Peoples’ Rights, 1981 (popularly known as the Banjul Charter) which came in force in 1987.While the Charter follows the usual pattern on human rights enactments, especially the European Convention on Human Rights, it contains major innovations.The concept of duties is introduced for the first time.The whole of Part One (Articles 1-19) deals with “rights and duties”.There is a “right to develop” in Article 22(1) and a “right to international peace and security” in Article (23(1); Ifind it fascinating and African the duties imposed on the individual to his family, to society, the state, to Africa and to the International Community in Articles 27 – 29.The impact of the Charter on African states including the question whether the socio-political and economic climate in Africa is favourable for the implementation of the Charter is still being discussed and studied by eminent scholars and jurists both in and outside Africa.In practical terms, however, we now have the ECOWAS Community Court in Abuja, Nigeria, and the African Court on Human and People’s Rights in Arusha, Tanzania.
The African concept of human rights should therefore go beyond the concept that “every person is free or has the right to dine at the Paradise Suites Hotel”.This makes sense only to those who can afford to do so.And freedom of expression does not include the freedom to shout FIRE in a crowded hall. Or as my friends would say, “the freedom to swing your hand stops at the end of my nose.”
Therefore and particularly because for most of Africa the inheritance from the colonial legal systemis so substantial, we need to watch out for myths of legal homogeneity, to be on guard against a psychology of legal dependency, to be mindful and proud of our inheritance, including those from within ourown societies, and to be certain of the intrinsic worth of an outward looking philosophy of legal development.
A famous 18th Century jurist once declared: “It was the boast of Augustus…that he found Rome of brick, and left it of marble… but how much nobler will be the Sovereign’s boast when he shall have it to say that he found law dear, and left it cheap; found it a sealed book, left it a living letter; found it the patrimony of the rich…. leftit the inheritance of the poor; found it the two-edged sword of craft and oppression… left it the staff of honesty and the shield of innocence.
If we can achieve the programme of law reform and development envisaged in the successful establishment of a Law Commission for Africa, it will be the boast of us all and even much more of the generation of Africans yet to come, that shall have it to say that we found Africa of brick,left it of marble, found law dear, left it cheap, found it a sealed book, left it a living letter; found it the patrimony of colonial craft and oppression, left it not only the inheritance of the poor, not only the staff of honesty, not only the shield of innocence, not only the dynamicspirit of the sovereign republican aspirations of our peoples but also the renaissance of Africa and its contribution to the civilisation of the universal – a vision of a new Africa with a glorious and historic past rising up again to the challenges of our times – a vision of a mighty continent emerging from the great schemes of the past with love of freedom in its sinews to suffer wrong no more and to rewrite the history of our ancestors.
Author: Fafa Edrissa M’Bai