African Philosophy of Law
“Is there an African Philosophy of Law? If there is, In what ways if any is it different from other philosophies. What are its contents, of what value and relevance is it to the contemporary legal world.”
Introduction
There is a controversy about the nonexistence of African Jurisprudence fueled by a jurisprudential school of thought known as the Skeptic school of thought on African Jurisprudence. Every territory in Africa has at one time or the other been a colony, a protectorate or ward of a country in the Western world, and it is this relationship which existed between the African territories and the imperial or sponsoring countries which generated on the one hand, the patronising spirit which pretends to offer a light to lighten the gentiles on the other hand. Many western literatures have created a region of annulus of dominance, surrounding the “dark disk” of African History. This mythical representation of African life and philosophy of society has been expressed and strongly worded in several dimensions; with the most prominent of these perversions in anthropological reports and research contained in the works of Driberg, Hartland and Paget.
While reflecting on the African system of law, Driberg reasoned that;
“Generally speaking, symbols of legal authority (i.e. police and prisons)…are completely absent, and in the circumstances would be otiose.”
In a similar instance, R.T. Paget stated that;
“In tribal society, law is governed not by logic but by fetish. To the tribe trial by fetish is just and trial by reason is unjust… it is futile to seek a reason in tribal justice, as it is not rational”.
Also a Professor of History of Oxford University, Trevor-Roper, remarked:
“Perhaps in the future there will be some African history to teach but at present there is none. There is only the history of the Europeans in Africa. The rest is darkness and darkness is not the subject of history”.
Finally, Commander Andrew H. Foote of the United States Navy also has remarked that:
“If all that Negroes of all generations have ever done were to be obliterated from recollection forever the world would lose no great truth, no profitable art, no exemplary form of life. The loss of all that is African would offer no memorable deduction from anything but earth’s black catalogue of crimes”
These myths, in the opinion of William Idowu, revolve around ideas such as: "Africans Do Not Have a History or a Past," "Africans Have Little or No System of Laws Before the Arrival of Europeans," "African Jurisprudence Has No Respect for Individual Rights," "African Jurisprudence Is Positive Not Negative," and "There Is No Such Thing as the Unity of African Law." Additionally, he identified the causes of the mythological perceptions of African law, attributing them to an alleged lack of knowledge of the capacity of Africans to reason and engage in the conceptualization of legal concepts. According to Idowu, there are numerous ways to look at the mythological portrayal of African reality in general and the African understanding of the law in particular. Essentially, these dimensions may be distilled down to only two core ideas. The first illustrates the mythical assertion that there was an African history before there was contact with Europe. The second mythological image of Africa veers close to the assertion that, despite Africans' assertions to the contrary, their histories and pasts lack any literary, philosophical, or intellectual importance. These myths capture the essence of the problem that African legal theory faces in a society that is being shaken by the globalisation of European ideals.
T.O. Elias and A. A. Allot wouldn't end the discussion, and Elias blames three things for the mythicalization of African legal theory: the dominance of missionaries in the continent's educational system; the imitation of western role models by educated African elites regarding their own societies and their place in them; and the lack of political consciousness, ancestry pride, and cultural pride on the part of the African people.
William Idowu came to the conclusion that just not knowing something does not rule out its existence or take away from it any of the energy or substance that it possesses. As there is a wealth of material on the topics that might fill an entire chapter, there are several such unfavourable claims regarding African legal history.
Insights on African Philosophy of Law
There has long been debate about whether or not Africa has its own legal theory. The modern solution to the age-old issue, however, is what is novel. Additionally, what is equally distinctive is the examination of the purpose and contribution of the African Jurisprudence Project to comprehending some of the painful truths in traditional legal theory. It has an interesting counterpart. The debate over whether or not there is an African philosophy is its counterpart in this search for significance and relevance. Scholars from Africa, Europe, and the Americas have been captivated by enthralling discussions on the existence of African philosophy for more than three decades. A traditional political power, whose maximum manifestation is frequently found in chiefs, traditional rulers, family leaders, headsmen, etc., is frequently associated with the resolution of disputes in "traditional" African communities. Every civilization, both literate and preliterate, has its own techniques, procedures, or mechanisms for handling or resolving conflicts in Indigenous conflict resolution. In order to regulate and settle disputes within or between communities, indigenous mechanisms in Africa employ both regional sociopolitical players and traditional community-based judicial and control systems. Evans-Pritchard contends that a predetermined system of compromise accomplished via negotiation is the key to maintaining law and order. The goal of bargaining is to reach a settlement that leaves neither side feeling so profoundly hurt as to prohibit future cordial connections, not to establish who is at fault. Less complicated matters are decided by the clan or lineage head, or the heads of the several lineages whose members are involved, if they involve disputants from the same bloodline. The traditional court presided over by the chief is where the community as a whole handles more complicated matters. Appeasing the offender or victim and the gods as well as attempting to reconcile the disputants or the offender and the community are all part of minor crime reparations.
The majority of sub-Saharan African civilizations still practise traditional forms of power and leadership, including chieftaincy, lineage headship, and leadership within extended families. The fullest institutionalised form of traditional rule is, however, chieftaincy, which embodies the fundamental elements of prescribed kinship and lineage succession to office, awe and sacredness of office and office holders, specific types of contractual relationships between chiefs and their subjects, and institutionalised procedures for conflict resolution, decision-making, and implementation, typically at the levels of community or kingdom. For instance, the Karimojong people in Uganda used conversations and debates to settle significant conflicts. The village council and the Aba Olla (village chief) served important political, social, economic, and judicial roles among the Boran people of Ethiopia. There is evidence of binding methods for arbitrating conflicts among the Samburu in Kenya, who had a very unique clan-based administration and age-set system. Therefore, upholding law and order and settling conflicts were among the duties of the traditional authorities.
In the traditional court, justice is administered via the resolution of disputes. Customary, native, traditional, or religious law are terms used to describe the sort of law used in these courts. In addition to customary practice, several nations' national constitutions confer accreditation on chiefs in an effort to direct case settlement in accordance with contemporary law. Examples of nations where formal laws act as benchmarks for conventional justice delivery come from Botswana and South Africa. As is the case in Botswana and Ghana, the traditional court is founded on evaluating evidence, enforcing judgements, and overseeing the process of reconciliation. In this system, the chief is acknowledged as the mediator who guides and adjudicates discussions of the issue, either alone or with his council, which is mostly composed of community elders advisers who support the chief in his day-to-day management. It is customary for disputing parties to avoid speaking to one another and for interruptions to be prohibited while they present their arguments. Following the deposition of statements, an open deliberation procedure that involves listening to testimony and questioning witnesses takes place.
The chief and his council of elders issue the ruling after carefully examining the statements made by the conflicting parties. If everyone agrees on the verdict, it is announced right away. The type of justice administered is the sole distinction. The restorative concept, on which the chief's courts are built, enables both victims and offenders to actively engage in defining the disagreement and resolving the conflict. The traditional court's guiding principles are the vindication of the victim and holding the perpetrator accountable to both the victim and the community while making additional efforts to bring the victim and the offender together.
It is impossible to overstate the importance of the "Supernatural Being" (also known as the "Supreme Being") and "Lesser gods" in traditional African culture. A supernatural entity and lesser gods provide political sovereigns their power. African communities frequently hear talk of various supernatural characteristics. In African Religious Ontology, when we use the word "God," we are referring to the living, everlasting Being who is the source of all life and whose existence has existed since time immemorial. He is the one whose power maintains the cosmos, as well as the one who is self-existed, self-evidently available to humans through thinking. He is an all-knowing Being who sees and understands everything simultaneously without the use of any technology, including the beginning and the end. "Human people in particular have always recognised His presence and responded to Him in devotion," the great being said, "and He has shown Himself in many different ways."
The origin of belief in God in Africa has its root in man’s limitations and the insatiable nature of
man’s needs. Africans saw that they were limited and weak in many respects, including knowledge and power, particularly in the face of death, calamity, thunderstorms, earthquakes, mighty rivers and great forests which are beyond man to control. These limitations and powerlessness rather led them to speculate that there must be a Supreme Being who is superior to these other powers that can be drawn to help them through appeasement and or sacrifice. These societies believed that authority is never to be used as an end in itself or for selfish ends nor must the common good be interpreted in such a way that the individual is lost sight of in the collective whole. The common good must be the good of concrete persons. Thus, the end of law is to make men good as our supernatural purpose in life.
The respect for taboos and conventions is another key aspect of African culture. Taboos were established to control the social structure's morality. They had their start when people realised that there were some actions that the deity either morally approved of or disapproved of. According to the claim that taboos and superstitions were frequently seen as an essential component of traditional education, these are not incorporated in any written legislation but are perpetuated in custom.
