INDIGENOUS AFRICAN PHILOSOPHY

INDIGENOUS AFRICAN PHILOSOPHY

Indigenous Legal Systems

....Indeed, Africa is one of the homes of advanced legal institutions. Perhaps the most famous of these institutions are the courts still found among the Bantu states of the southern third of the continent. ? Bohannan, 1968:199.

Native Courts And Customary Laws

Disputes arise in any family or society with regards to property, and African societies were no exception. To resolve these disputes, various mechanisms and institutions were created. However within the traditional African modus operandi, there was an additional unique dimension. Individual attachment to lineages and latent groups of solidarity always carried the potential risk of transforming personal disputes into broader group conflicts as was often the case among the Nuer and the Ganda and even in modern times. Here are two examples:

On Jan 31, 1994, at the village of Nakpayili in Northern Ghana, a disagreement erupted between Konkonba and a Nanumba over the price of a guinea-fowl. In the ensuing heated exchange, the Konkomba man killed the Nanumba and his son. Other Konkombas joined in and an immediate massive Konkomba offensive was launched against the other ethnic groups and soon the Konkombas were fighting against the Nanumbas, Dagombas, Gonjas, Mamponsis and Chokosis. But the time the fighting subsided, over 1,200 people were dead, nearly 5,000 injured and over 10,000 displaced. Scores of villages were razed to the ground, including Lanja, Nakpakye, Lepusi, Pulnyasi, Nakayilli, Kpabe, Welensi and Chauba Bakpabe (Ghana Drum, March 1994; p.10).

A curfew was imposed on the northern Nigerian city of Kano on May 30, 1995, after a row over a tip for car parking sparked clashes between indigenous Hausas and Igbo settlers. The riot started when a man of the Hausa tribe, which is native to Kano, and an Igbo from eastern Nigeria argued over who should receive the tip for parking the car at a mall. A scuffle ensured with Hausas and Igbos joining on the sides of their tribesmen. Hundreds of shops were destroyed and independent newspapers put the death toll at up to 100 (African News Weekly, June 16, 1995; p.3).

Consequently, great emphasis was placed on peaceful resolution of disputes and the promotion of social harmony while upholding the principles of fairness, custom and tradition. Among the Arusha of Tanzania, "there was a very strongly held value that disputes should be settled peacefully by persuasion and by resort to the established procedures for settlement" (Carlston, 1968:310). Similarily, the Tallensi of Ghana abhorred killings and violent resolutions of conflicts. For precisely this reason, they celebrated the Golib festival, during which all feuds and hostilities between clans were prohibited. This festival emphasized "the themes of food, harmony, fecundity, and the common interests of the people as a whole" (Carlston, 1968:109).

Cosmological factors provided additional reason for the general emphasis on peaceful resolution of conflicts. It may be recalled that Africans stressed the maintenance of order and harmony in the universe which consisted of the sky, the earth and the world. Order and harmony in the universe required the maintenance of corresponding conditions within the various kinship groups in the ethnic society as well.

The maintenance of peace within most African communities followed four principles. The first was settlement of disputes by deliberation and discussion, rather than by force. The second was the correction of wrongdoing by compensation except in serious offenses such as murder. The third was adjudication and assessment by elders who were considered to be impartial. The fourth was fairness. These principles were upheld by the use of courts, their constitution and the right to appeal.

Conflicts or nefarious activities were generally classified into "private" and "public" matters. For the Ashanti, "private" offenses (efisem) concerned the living only, and were deemed to affect only the social relations of persons or groups living in the community. "Public" offenses (oman akyiwade) affected the relationships between the community on the one hand and the chief or the ancestors on the other (religious offenses).

Private disputes arising within the family were settled by its head. If the case was unresolved or if the aggrieved party failed to obtain satisfactory resolution, the case could be appealed to the lineage head, called mutongoria wa kithaka among the Mbeere of Kenya (Glazier, 1985).

The lineage head would assess the substance of the case and, if it merited further deliberation, would empanel a group of elders as a family court to adjudicate. Such family courts usually deliberated on disputes involving a father and his son or between a man and his wife.

In the family court, the matter was, in effect, settled by arbitration. A pacification or conciliation (mpata) was claimed from the offender for the injured man, who was expected to accept it, not only as proof that the injury has been annulled but also as a sign that friendly relations had been restored between the parties. The pacification was small: a fowl or a few eggs for the injured man to `wash his soul' (adware ne kra) so that his feelings might be assuaged. In more serious offenses gold-dust to the value of 7 shillings or at most 10 shillings was paid as pacification (Busia, 1968; p.51).

Carlston (1968) found that the decisions of the Asante lineage head "in such disputes were not arbitrary commands of patriarchal authority but were reached after consultations with his household and were supported by religious sanctions" (p.125). This was also observed among the Mbeere of Kenya. The right of appeal was widely respected in traditional Africa. Ordinarily to keep peace in the family, Ireri might decline to exercise this right. Had he wanted to, however, he could have appealed the verdict to the village or the chief's court.

When a dispute arose between persons of different lineages, however, a slightly different procedure was adopted. The aggrieved person could, in Ashanti, submit the matter for arbitration by any respected member of the community, say the head of his lineage who would call upon the head of the offender's lineage to settle the matter. They might call in other elders to help ensure impartial arbitration, as kinsmen of the offender were expected to help put the matter right. Similarly, members of the injured person's lineage were expected to see that the injury was repaired. The elders decided who was in the wrong and settled how much compensation was to be paid to the injured person. A second course of action was open by which the matter could be submitted to the chief's court for arbitration.

Each state (an ethnic group with an organized bureaucracy and a central authority) possessed a system of courts. Stateless societies resolved cases in a treaty making process, akin to the moots of 13th century England whereby Ango?Saxon communities settled their disputes by meeting outside, under the shade of a tree. Similarly in most stateless African societies, disputes were settled informally rather than by a specifically constituted body.

The Igbo have five indigenous modes of dispute resolution: through the family head, Umuada, village tribunal, age grade and Voudou priest. The family head, onyi'si, is highly revered and mediates certain marital disputes, cases of delinquency, boundary disputes, and other cases between family members. In most cases, he uses moral pressure to enforce decisions and may solicit the support of other family members against an errant member. If a member defies a family head, his married daughters, Umuada, may be invited to resolve the dispute or enforce compliance with the decision. The Umuada is a group of married women who come from the same family, kindred or village but are married outside or away from the village. They may be called back to help resolve cases of spousal abuse, infidelity, theft or admonish erring wives.

Matters that affect outside members or threaten the stability of the entire family may be referred to the village tribunal, composed of 10 to 15 lineage units. It may adjudicate on such matters as religious rituals, traditional ceremonies, festivals and contract disputes with strangers. Disputes among the youth are handled by the age-grades. Disputes of mysterious nature, such as a curse or strange illness, are usually referred to the voudou priest, or "medicine man." Resolution is often achieved through divination.

The Kpelle of Liberia had an informal dispute-settlement forum known as a berei mu meni saa (a "house of palaver" or moot). It was an ad hoc council of kinsmen and neighbors of two complainants who gathered to solve disputes involving marital matters and other domestic problems.

The moot was held not in a courthouse but in someone's home. There was open and full participation by all those attending. The person found at fault at the end of the deliberations, rendered an apology and presented the aggrieved person with small gifts. At the end of the moot, all shared a drink. Similar moots were used by the Somali, the Bukusu of Kenya, and the San of the Kalahari.

In the case of murder involving two clans, clan solidarity played a very important role. Every member of the murderer's clan contributed toward the payment of the `blood fine' to the wronged family. If the murderer's clan failed or refused to pay the `blood fine' the wronged clan was entitled to kill a member of the opposite sex of the murderer's clan. Then, elders of the two clans sat together and ordered the members of both clans to stop the feud (Simiyu, 1988; p.62). Disputes between members of different families were settled by family heads of appropriate grade. In serious disputes like homicide involving two mbaris (clans), the athamaki (leader) from outside the two clans were called to settle the case and restore peace and equilibrium. This independent court was not a permanent institution. It was ad hoc, and each party was advised by his muthamaki (spokesperson, adviser), but the members of the public who knew the facts could be called upon to testify. The parties were then instructed to choose about four athamaki each, leaving out close blood relatives. The eight would then join the independent athamaki to constitute the complete court that deliberated in camera. This court was called ndundu, meaning secret. The judgment was pronounced publicly (Simiyu, 1988; p.65).

The legal system of the Arusha of Tanzania has been described as "Africa's finest and worthy of emulation" (Carlston, 1968). The absence of centralized authority in Arusha society, its highly individualistic nature, its egalitarianism, the absence of coercive measures against norm violations, the absence of even the typical African belief that the ancestral spirits would punish wrongdoing, created an unusual problem in tension management in the society. "The resulting system for the control of conflict by the peaceful settlement of disputes was an extraordinary achievement. It was a complex system of interdependent parts of much ingenuity and sophistication" (Carlston, 1968:323).

The whole Arusha people were divided into two moieties or divisions, each of which was composed of two clans. Each clan was divided into a pair of clan?sections, which were in turn divided into a pair of sub?clans. The sub?clans were divided into two ilwasheta (singular, olwashe), composed of the various maximal lineages.

The pairing process appeared in substantially all the important groupings of the Arusha and provided a frame of reference for perceiving the character of disputes in regard to their relevance to the social structure. When a dispute could not be settled at the lineage level, which was often the case, an Arusha would try to reach an olwashe or the division which had the closest ties of kinship and geographical proximity. He would request the assistance of spokesmen, or notables, who had the best success in moots. The other disputant would do the same. If the dispute was between residents of a parish, the case was taken to the parish assembly for adjudication but a moot was used for those between members of different lineages. At the parish assembly, the plaintiff would present his case, the defendant would follow and each would be questioned by anyone who so wished. A party's supporters gathered around him, giving verbal approval or disapproval of varying degrees of loudness on his behalf to points made in the proceedings. "The vigorousness of such support was an important factor in reaching a favorable settlement" (Carlston, 1968:320). In reaching a settlement, the supporting group played a crucial role. The leader of the group sought the settlement itself and the rest of the group exerted pressure on the litigant to accept a reasonable settlement acceptable to the opposing side.

The settlement process was partly an informal consensus in that discussion took place until an agreement was reached. It was partly a bargaining process in that offers and counter?offers were made until agreed terms were reached. It was also a negotiating process partly because persuasion, artifice, and stratagem were employed to reach an agreement. At the same time, however, it constituted an adversary process as each disputant was represented by spokesmen or counselors. "There is no process in western society closely comparable to the dispute settlement procedures utilized by the Arusha...One is struck with the comparability of the Arusha settlement procedure with international law and the diplomatic settlement of disputes in the international society today" (Carlston, 1968:322).

Carlston identified several attributes which accounted for the efficaciousness of the Arusha system in arriving at peaceful settlement of disputes. Among them were:

1. The Arusha society was so organized that its members belonged to a number of overlapping and complementary groups. This lessened the tendency to perceive disputes in rigid terms and to diminish the likelihood of inter-group conflict developing in situations of interpersonal conflict. Stability is thereby promoted.

2. Parties to a dispute in Arusha had less power at their disposal than the other actors engaged in the mediation process. This made the disputants more willing to accept compromises or settlements.

3. In an Arusha litigation, there were elements of fairness and adequacy of hearing, presentation of pertinent evidence, and search for fact consensus.

4. There were people skilled in the performance in leading the mediation process, negotiating, and arriving at a settlement acceptable to both sides.

Jurisprudence In States In African societies with central authority (states), however, there were formally constituted courts to settle disputes. Ellis (1914) observed the existence of such courts among the Vais of Sierra Leone at the turn of the century.

In every Vais town or village, there was a court, of which the chief was the judge. Murder, treason, and witchcraft were punishable by death, according to Ellis (1914). Crimes such as rape, abduction, seduction, adultery, arson, and theft were punishable by fines or imprisonment. The tendency was to compel offenders to pay costs and a certain amount in goods to the injured party as in civil cases. In criminal matters appeals could be taken up as in civil matters.

A person desiring to enter a suit calls upon the chief and presents him with a `dash' called `cold water'. This `dash' may consist of rum, gin, tobacco and so on. After the `dash' the chief hears the statement of the case. When it is finished, he sends his messenger with his cane or whip and summons his assistant and the elders of the town. He summons the defendant, and next the medicine man to administer the oaths to the witnesses in the case. After the taking of the oaths, the testimony begins. During the hearing of the testimony, the members of the court ask such questions as they desire. When the testimony is finished, every member of the court, except the chief, votes and a majority rules. When the case is a tie, each side pays half of the cost...If the plaintiff wins the case, the judgment is that the defendant shall pay all costs, pay the amount adjudged to be due the plaintiff and in addition give him one gown (Ellis, 1914:84). Similar procedures were observed in other West African societies; for example, among the Fanti, the Asante, the Igbo and the Yoruba. Casely Hayford (1911) reported that:

At a `palaver,' which is the word for a suit before the Court, the King sits with his Councillors; and the Court is an open one, which any member of the community may attend. There is no secrecy about the proceedings. The complainant states his case as fully as he can, and he is given a patient hearing. In the course of his statement questions are freely asked him by the Councillors, and doubtful points elucidated. The same process is gone through with the defendant, and with the witnesses called by either party. The Council then retires to deliberate upon the facts, and its verdict is given by the King's Linguist.

For the Fanti, Christensen (1958) noted:

From before control by Europeans down to the present, the Fanti (of Ghana) have had a rather complex system of courts and hearings. Presiding at any dispute or trial may be a group of elders, a chief and elders, or a panel of chiefs, depending on the nature of the case. A dispute, after submission to a group of elders for arbitration, may be further referred to a higher authority, such as a sub-chief or the paramount chief of a state. The latter, known as the omanhene, was the ultimate authority. The plaintiff and defendant generally present their own case to the court, call witnesses and cross-examine those who give testimony for the opposition. During a hearing, proverbs are quoted by the litigants. Proverbs may be regarded as the verbalization of social norms or `laws' which govern interpersonal relations.

Many proverbs may be regarded as legal maxims since they are utilized most frequently in disputes. For example, a request for the postponement of a case may be supported by the statement, `it takes time to make a dress for the hunchback.' Another proverb often quoted to indicate prior ownership in a land dispute is, `The bathroom was wet before the rain fell.'

The hierarchy of Akan courts was studied by Arhin (1985). The first was the extended family court known as badwa, and the members known as badwafo, which consisted of heads of the households of the family groups, the heads of other family groups with whom certain relationships from intermarriage or occupying the same brono or ward; and respected heads of other family groups. The badwa, an arbitration gathering, settled internal disputes between members of the family groups. These included, for example, theft; certain kinds of abuse, such as slander and tale bearing; cases regarding property and pawning; loans, surety, and recovery of debt; rights to land, inheritance to property, quarrels between married couples, adultery, and petty squabbles that did not affect the village as a whole. These disputes were referred to as afisem.

The settlement of a household case aimed at reconciling the parties and ensuring good relations within and between the family groups. Mpata, a reconciliation fee, normally in the form of a drink, accompanied by an apology, was given to the offended. Both parties then swore by the elders present that they would thereafter live at peace with each other (Arhin, 1985; p.25) (Italics mine).

The badwafor relied upon the respect due to the family elders and other elders and the force of public opinion for compliance of any judgment reached. Those who refused to comply with their decisions would be disowned by their close relatives.

Disputes between members of the different family groups which could not be settled by a joint badwa of the family groups concerned, were referred to the Odikro's nhyiamu (village chief's court). The odikro's court also settled cases that involved rules made by the council. There were village afisem, which concerned such issues as clearing paths leading to the main farming areas and the performance of ceremonies in connection with village shrines.

The settlement of disputes at the odikro's court differed from that at the family group level in that the former was supported by the physical force at the disposal of the village as a whole. Offenders found at fault could be compelled to comply with the decisions of the court. In cases of refusal to comply, or if a party was dissatisfied with the court's decision, the oath of the ohene (king) was sworn, and the case transferred to the divisional court. The case then ceased to be an afisem of the village and became a matter for the division (Arhin, 1985; p.22).

The divisional court, or ohene's court, was a court of "original jurisdiction" as well as an appeal court. It could hear cases which originated in the division and appeal cases brought up from the odikro's court. At the apex of the hierarchy was the omanhene's court, the final court of appeal.

Public offenses, some of which carried the death penalty, were tried at any level of jurisdiction and decisions could be appealed. Such offenses, called akyiwadee (taboos) by the Akan, included: murder, (awudie), homicide, suicide; certain sexual offenses, such as incest, sexual intercourse with a woman in her menstrual period; with a half-sister by one father, and with a woman in the bush; assaults on the ruler; theft of royal regalia or material symbols of the state and the property of the state shrine, such as sword, a stool, a quantity of gold dust or nugget; and treason, which included breaking the oath of allegiance to a ruler or the cowardice of a warleader in battle.

The trial of public offenders in Akan courts proceeded as follows. The similarity between the Akan and the Shona described below should be noted.

The parties made preliminary payments, dwomtadie, a kind of earnest money. Witnesses were named and sent into concealment, and, after the parties had made full statements in court and been questioned by the court, were brought to testify under oath. They were then questioned by the parties to the dispute and the court panel, after which the court retired to consider its verdict which was delivered by an okyeame, a spokesman of the ruler, who acted as interpreter. The court was concerned with reconciling the men to one another but above all with pacifying the spirits disturbed when a breach of the taboos was committed through the offense under adjudication, or through the swearing of an oath, and doing justice to the wronged party. The hearing and resolution of public offenses entailed repairing the damage done to society as a result of the alienation of the spirits due to the offense (Arhin, 1985; p.26).

In the Igbo judicial system, the nuclear family was the first court over which the head presided, settling minor cases between members. According to Olaniyan (1985), The lineage heads settled cases involving fighting, assault, petty theft, family disputes, adultery and even divorce. The village court handled inter-lineage cases over which the lineages involved could not reach agreement. Both plaintiff and defendant paid settlement fees in kind although the plaintiff paid the summons fees. The innocent part had a part of its settlement fees refunded while the guilty party forteited its fees and was subject to further fines in line with the gravity of the offence... The right of appeal was always upheld (p.28).

Generally, the elders and chiefs would make decisions based on a knowledge of the traditional way of life, circumspection, and adherence to the truth. Because of the more inclusive rights and obligations resulting from these principles, the Sidamo tribe of Ethiopia even allow "strangers" (those outside the lineage or clan) to participate in court cases and in general decision-making processes involving property (Hammer, 1970). Gibbs (1965) noted that, "During the entire court proceedings among the Bantu Tiriki of western Kenya, all adult men and elderly women present may ask the judicial elders for permission to express their opinions on the case, or add further evidence, and the elders may themselves call on anyone, including women and children, to present testimony" (p.49).