| Should Western Law be
abolished in Black Africa ? |
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| Marcel Kabundi |
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Mwanetu Bilolo, voici un texte que j'ai
publié, il y a longtemps sur les questions que vous soulevez et qui ne me sont pas
étrangères. Il est en anglais.
"When you want to resolve disputes, you don't take a knife to cut, but a needle to
sew," (Bahumbu-Africa)
Foreword
Contemporary Africa is quite different from precolonial Africa. This is particularly
apparent in its judicial organization. From its contacts with European civilization,
through colonization, traditional African culture has undergone profound and serious
changes. New institutions imported from the West have either been grafted onto the old or
gradually replaced them altogether. Thus today when legal professionals talk about the
existing criminal justice system in the African countries they are referring to a legal
dualism which unfortunately, in practice, recognizes the supremacy of modern (written) law
over traditional (oral) African systems of law and their various institutions.
Today, because of the mistakes and failures that have occurred in the criminal justice
system, protest movements are arising here and there. In some countries, there is talk of
law reform commissions; in others, there are groups that advocate the abolition or
thorough-going reform of the criminal justice system as we now know it. My analysis is
intended as a contribution to this process. But before agreeing or disagreeing with the
idea that the modern criminal justice system should be abolished in Africa, we should
first examine how African customary laws have evolved and ascertain their good and bad
qualities.
In Africa, despite the fact that there are courts and prison fortresses, there are still
parallel, informal methods of resolving problem situations. This experience, which is
still alive although only unofficially recognized, may be put to good use so that its good
points may be used to guide our analysis as to whether it is necessary to establish a
renewed criminal justice system that will be fair, equitable and remedial.
My analysis will address three situations: dispute resolution before the arrival of the
Europeans, cohabitation between the written and oral systems of justice and the future of
traditional (customary) justice in Africa.
1. Characteristics of African customary laws
Before proceeding with this analysis proper, I must point out and recognize that it is
really quite difficult to study African laws. As René David has pointed out (1982, p.
563), the fact that there is such a multitude and variety of customs in Africa and in
Madagascar is the first obstacle to be overcome when one sets out to study African
customs.
According to René David, a specialist in comparative law, there are about 1500 ethnic
groups in the former French Equatorial Africa and the former Belgian Congo, now Zaire.
Sudan alone has 579 ethnic groups. English East Africa has 200, Madagascar 19, Senegal 68,
and so on. In any event, these are customs that have been officially recorded and
recognized, and so the assumption must be that there are many others that have not yet
been identified. Given the numbers that exist, it becomes very complicated and difficult
to comprehend and gain a knowledge of African customs.
But what really makes the job of those who research customary laws much more difficult is
the oral nature of those laws. When an African elder dies, an entire library dies with him
or her, because customary laws are transmitted orally and exist in a non-material state.
There has never been a written code of customs. The people live the ancestral prohibitions
and precepts, and they are learned empirically. That is why the study of customary laws
demands that researchers interview the storytellers and everyone of a certain age, they
being rightly considered to be the guardians of their traditions.
Traditional African laws have other characteristics in addition to these two (oral,
multiple): customary laws are peasant laws. As Prof. Kalongo Mbikayi (1972, p. 39) wrote,
traditional legal rules at least to some extent reflect the needs of an agrarian
civilization. That is why assessing the damages to be remedied was and is still done on
the basis of the currency that is used in the society at the time: chickens, goats, cows,
and so on. Traditional African laws are collectivist, and this collectivist character may
be understood from the very nature of African societies. Because of this character,
Verdier (1961, p. 79) and Elias (1961, p. 151) wrote that the individual has no rights or
duties other than within his or her group. The individual and the group are mutually
complementary.
Lastly, African customary laws have a religious aspect. Certain approaches to remedying
damages involved calling on the divinities; to that end, specific rituals were followed.
To an authentic African, the supernatural and the natural are one and the same, and they
are what protect us from the forces of evil. Thus any transgression against custom could
bring the forces of evil down on the group, forces which would release the wrath of the
dead ancestors who live on in forms invisible to us.
As Birago Diop, a great African writer, said, the dead are not dead, they are in the
bushes, in the water and the wind, everywhere and all around us. To the Cartesian mind,
that is illumination and superstition. And yet there are today phenomena such as
witchcraft that parapsychology and other disciplines of that nature that are trying to
explain scientifically. In terms of our societal existence, this fear of the supernatural
sometimes operates to check any impulse to commit a crime. Intimidation through
grass-roots instruction and initiations seemed to be taken for granted in that long-ago
time. But today, nothing, not even prison, scares a budding criminal. Some people even
break the law so that they will go to prison, where they will be able to get an education
and a variety of other services that they cannot afford themselves when they are on the
outside.
2. How did Africans resolve disputes before the arrival of the Europeans?
As we have just seen, before the Europeans penetrated Africa, each tribe, each clan, each
family followed and obeyed a set of unwritten rules inherited from the past. When
conflicts arose, a custom was cited to resolve disputes between two members of a group,
which might be a village, a clan, a tribe, a member of the extended African family that
includes aunts, uncles and their progeny.
There were no written rules clearly prescribing the acts and omissions that one had to
obey. Civil liability, and whether an act or omission was an offence, were determined
based on the damage caused to someone else. The only thing needed for a person who had
caused damage to be found liable to remedy it was that damage had been done. Any human
deed, even involuntary, resulted in whoever committed it being liable. This determination
was made based on the existence and condition of the victim, who might be identified or
indeterminate, as when the entire group suffered the damage when there was a brush fire or
a bridge or public road was destroyed.
Unlike modern law, not victim's liability, not "acts of God" nor accident could
be cited to exonerate the author of the deed. No one could advance those grounds to avoid
civil liability. In African customary law, civil liability was determined objectively
(Kalongo Mbikayi, op. cit.).
Nor was there any attempt to prove wrongdoing on the part of the person who caused the
damage, or to analyze the person's psychological circumstances at the time of the deed.
What was more important, and carried much weight in the balance of traditional justice,
was identifying the debtor of the repairs, that is, the person who to whom the duty to
repair was imputed.
Once the debtor was identified, the people whose task it was to pronounce justice would
not go to any more effort to condemn the person who caused the damage for his or her
deviant, antisocial behaviour. Instead, the emphasis was placed on conciliation and on
restoring understanding and harmony within the entire group. On this point, an African
proverb says that when a trial is held, you don't take knives to cut, but needles to sew.
A great number of peaceful solutions were possible: compensation in kind, restitution,
mediation, community service work such as road repairs, and so on. In this judicial
process, because of the collectivist nature of earlier African society, the victim was
certain of obtaining compensation. The probable insolvency of the person who caused the
damage was mitigated by the certain contribution of every member of the group. This was
where the principle of the individualization of criminal sanctions broke down. Experience
has shown us that an uncle might take his nephew's plac
As may be seen, traditional African justice had two functions: the first was compensatory,
and the second preventive. The existence of the group to which the misbehaving individual
belonged was the victim's guarantee of compensation. However, to avert gratuitous acts by
individuals who might abuse this collective generosity, there was provision that anyone
found to be liable for any sort of damage would have to contribute to repairing the damage
through levies on his or her own personal property. Moreover, recidivist offenders ran the
risk of having to cover the entire loss, or being excluded from the group. Banishment was
a threat that kept many people within the customarily tolerated limits. It was more than a
moral threat; it was actually used against certain stubborn and hardened individuals.
The trial was generally held under the "palaver" tree. In the absence of the
chief of the village or clan, the eldest person presided over the trial, in which a number
of "notable" personages would participate.
During the trial an attempt would be made to achieve an amicable compromise between the
parties, rather than to find remedies for violations of rights (David, René, 1982, pp.
565 et seq.). The just outcome was first and foremost the outcome that would to secure the
group's cohesion and restore harmony and understanding among its members. All members of
the group were amenable to trial by the same tribunal. There was no immunity, not from
prosecution nor from jurisdiction, for guilty parties. Everyone, even the village chief,
was accountable before traditional African justice. Anyone found liable for damage had to
remedy it spontaneously, in order to have a clear conscience and be in harmony with the
group.
And, as African wisdom held, any conflict is like a brushfire or a campfire; it has three
distinct elements: kindling, fuel and matches. To ensure that the fire is not lit, we have
to separate the three elements by educating people that this is what they should do. We
must guard against allowing matches to fall into the hands of irresponsible individuals.
Education and reconciliation are the elements that allow individuals in conflict to play a
positive, responsible and constructive role.
3. Marriage of convenience between modern justice and traditional justice
In the mid 19th century, the traditional system of justice went through some upheavals.
What happened was that the modern criminal justice system was exported from Europe to
Africa. It was then, in the aim of aiding in the "civilizing" mission assigned
by the colonial powers to the colonists who had agreed to go off and administer the
various criminal justice agencies, that the prisons, the parliament and all the levels of
the criminal justice system truly began to be tropicalized.
At present, most of the criminal statutes still in force are carbon copies of Belgian,
French and other laws. It will certainly be easy to understand how the introduction of
this new system of dispute resolution would give rise to new conflicts with the
pre-existing traditional approaches to resolving problem situations, that is, customary
justice. The colonizers found that they faced two alternatives: they either had to
completely prohibit the practice of customary law and the application of that law anywhere
in the country by instituting a system of written law, or they had to tolerate a form of
legal dualism, of coexistence between two legal systems. However, the scope of application
of the customary law was sharply reduced, to the point that its existence became more
virtual than real.
The second alternative, dualism with reservations, was the one adopted and implemented.
That is the reason why Gonidec (1976, p. 3) wrote: [TRANSLATION] "The power to make
law was transferred, de jure or de facto, to the colonizer. In addition, the colonial
power was convinced of the superiority of its own legal system and of the values of its
civilization. Accordingly, while it proclaimed its desire to respect existing laws, it
viewed them with a degree of disfavour which was expressed in the use of the famous
concept of colonial public order."
In some
colonies, recognition of customary law was expressed in legal instruments such as the Acte
créateur de l'État indépendant du Congo [Act to create the independent state of the
Congo] of 1885, or the colonial charter of October 18, 1908, which applied to the same
Belgian colony in Africa. However, its scope of application was so sharply reduced that it
became unimportant that it had actually been recognized. Moreover, as a result of certain
practices such as civic merit [mérite civique] or registration, as instituted by
the decree of May 17, 1952, some indigenous people were increasingly subject to Belgian
law on the same footing as Europeans, and thereby fell beyond the reach of customary
private law in their private relationships. However, it should be recognized that the
British colonizers took a different approach from the other European peoples of that era:
instead of applying a policy of assimilation, they followed a "protectorate"
formula, allowing the indigenous people to govern themselves under British supervision.
The new criminal justice system, which was supposed to bring about justice, created a host
of injustices. The poor people, the illiterate indigenous people, understood neither the
laws, and certainly nor the trial which was conducted according to the written law
system’s procedure. They found themselves constantly caught in the wheels of the
judicial system and they understood nothing in the esoteric language used by the judges.
Documents written in French and expressions in Latin made this criminal justice system
that had been imported from on high even more foreign to them.
Their ignorance did not sway the judges; in their view, every citizen had a duty to know
the criminal law. Ignorance was not recognized as a legal excuse. Unlike the situation in
Western countries, the methods used for making the laws known were inadequate and
inappropriate in Africa.
On occasion, even the judges were not familiar with new criminal laws, so remote were they
from any major urban centre. In addition, there is a state of legislative disorder that
complicated people's lives. The fact that no one could get quick, up to date information
on all the regulatory instruments that carried criminal sanctions, which were being made
by the various government departments practically on a daily basis. This may explain the
disparity in the sources of the criminal law.
Given this situation, it would be virtually impossible for a villager with no radio,
unable to read and to understand written material, to be up to date and know all the laws.
But under the principle that no one is deemed to be ignorant of the law, that same
villager might be fined by the courts and never be able to understand why (Ndoko, 1985).
Moreover, the criminal law does not cover all situations in which there are disputes and
damages. Refuge is taken behind the principle of the rule of law: Nullum crimen nulla
poena sine lege. Thus a dispute might jeopardize the peace and security of a village, but
if it were not covered by the criminal law it would fall beyond the reach of the criminal
justice system and might go on as long as possible, poisoning the life of an entire
village. Moreover, the definition of a crime does not always meet with everyone's
agreement. Imagine a Pygmy in the Zairian equatorial forest being convicted of public
indecency by a court simply because he was walking around naked, when he had never worn
clothing. A forest-dweller like him would think that the agents of the criminal justice
system had lost not only their minds, but their heads.
Before the introduction of written law, everyone was equal in the eyes of custom. Today,
the big shots are beyond the reach of the criminal law. The inequality of individuals
before the law may be explained by various immunities from jurisdiction and prosecution,
and various legal subterfuges (exceptions, excuses, acts of god, disease, and so on). One
group always goes to prison, and the other gets house arrest, fines and restitution, the
only risk they run if they misbehave. And yet a murder is no less a murder, whether it is
committed by a young person or an old person, big or small, healthy or sick. The act is
still identical.
In written law, rights and penalties are sometimes barred by limitation periods ¾ even if
the victim has not been compensated. To the African mind, if damage has been caused it
must be remedied, and this remains so for as long as it has not been wiped out by the
person who caused it. Thus a person might not be tempted to misbehave in the hope that the
situation would be resolved by the passage of time. In Africa, in some situations, people
have a static concept of the world. This philosophy still has a positive contribution to
make in criminal law.
The effect of prison, far from intimidating and rehabilitating the people sent there, is
that the group closes ranks and strengthens its solidarity. It is a long time since any
Black ever saw a White in prison. When a white person is sentenced to more than 6 months
in prison, he or she will serve the sentence in the big city. Justice is increasingly on
the side of the strongest and richest, and it has reached the point that no one believes
in it any more. Some people look it as a masquerade. That is why when anyone is released
from prison it is an occasion for celebration. No one is shamed by having been in prison,
when everyone knows that it has become an easy matter to bribe the judges and all the
other agents of the criminal justice system, like the police. The modern criminal justice
system has lost, and is continuing to lose, its credibility. Justice is not so blind as it
is claimed to be.
Given the moral crisis in modern criminal justice , what future do African customary laws
have? Will we have to tear it all down, abandon everything and go back to the old ways of
resolving disputes?
4. The future of African remedial justice
It is important to give credit where credit is due. We have been discussing the virtues of
traditional African justice. We must not forget that this justice also has its faults,
which should be identified. In some tribes, traditional justice was extremely punitive.
The guilty party was severely punished, to such an extent that the punishment might be
seen as pure savage vengeance. As long as one can claim ignorance of the written law as an
excuse, misconduct may be justified by saying that one did not know that it was prohibited
by custom. Moreover, given the large number of customs, it is only to be expected that a
stranger would not be familiar with them. At that point, blind enforcement of that custom
against people of different cultural origins should be questioned.
Despite all this, it is nonetheless important to recall that the end goal of traditional
justice in Africa was primarily the restoration of peace and social harmony by reconciling
the victim and the person who caused him or her damage, through compensation and by
ensuring that the interests and expectations of the people directly involved are met in an
entirely fair manner. This was remedial and restorative justice.
The future of traditional African laws is hypothetical, because they are dying out, in the
absence of any record being made by Africans and everyone else with an interest in the
African continent. Unfortunately, Africans, particularly urbanized and educated Africans,
do not know much about their customs.
The atmosphere in a modern city does not foster the transmission of this traditional
wisdom, which was once done in the evening around the fire. Young people are looking
elsewhere for their idols. They find them in the movies. To soothe their consciences, the
African intelligentsia is increasingly talking about evolved customs and the indescribable
mixture of many customs, which makes it almost impossible to gain a knowledge of them. The
schools have other priorities. In the law faculties of most African universities where the
future judges are trained, any talk about customary law is scarce and rarely heard. What
is needed by the professors themselves, most of whom are trained either abroad or from
textbooks written by foreigners or about foreign legal systems, is some real immersion in
customary law.
The fact that there is no customary code is just an excuse for avoiding making any attempt
to engage in this type of instruction. If these various customs are to be rehabilitated
and their stature restored, they must first be recorded, learned and made known, and then
they must be taught to pupils and students at different levels. This is the job of the
African elite, in cooperation with the elders, the guardians of the traditions.
In terms of criminal legislation, what is needed is decolonization of the law, because all
the reforms that have been implemented over the years have not succeeded in creating
anything new. The same scheme that existed when colonization occurred is still in place,
despite all the fancy words. Written law is still considered to be superior to customary
laws.
The distinctions among various social and professional classes are still in place today.
The outmoded language used by the former colonizers is still in place, making it difficult
for most people, who are still illiterate, to understand laws and regulations better and
be able to interpret them correctly. Why not restore the status of the national languages,
or provide a permanent translation or interpretation service? Audiovisual methods are
inadequate and inappropriate ways of disseminating information, so why not allow ignorance
of the law to be considered as an excuse at trial? Newspapers, radio stations and methods
of communication are all problems in modern-day Africa.
In addition to these problems there is poverty, social injustice and all the consequences
of the global economic crisis. Dispute resolution methods in Black Africa should be
adapted to the African cultural context so that we could enrich the modern criminal
justice system that has been imported from the West, without actually abolishing it, by
grafting on African traditions so that anyone affected by the system would feel an
interest in it and get more involved in the administration of justice. Otherwise, the
criminal justice system will become utterly useless and will be a mere instrument of
oppression and domination in the hands of the dictators, with the result that some people
will be able to act with impunity and others will be unjustly punished.
Conclusion: collective responsibility
There is a lot of work to be done. Many things still have to be accomplished. At present,
it is wishful thinking, and almost a utopian ideal, to believe that only by going back or
reaching back to our past will we bring salvation and well-being to Africans. That's just
building castles in Spain. The cultural past of Africa is not pure. It has evolved over
time.
Since we have no documents that could be used to properly evaluate and assess it, we must
admit that reconstructing that past, a past which some people have unduly glorified, is
virtually impossible. In any event, there are as many cultural pasts as there are ethnic
groups, and this is what makes the job even more difficult. The important thing is
on-going research into the ways and means of creating African law, based on a symbiosis
among the positive elements of various traditional African laws and those equally positive
aspects of modern law (the modern criminal justice system). This would mean reaching back
to both African customs and the rules of written law.
As the Editorial in Afrique nouvelle, cited in LA CROIX on January 27, 1972, put it:
[TRANSLATION] "The issue for us is no longer how to get a right recognized, but how
to exercise that right. We must move on to action, and make our impression through our
accomplishments, by achieving dignity for Africans on all levels. It is not a matter of
brandishing slogans about our uniqueness, our values, but rather of putting that
uniqueness and those values into practice in the eyes of the world."
"Self-affirmation," wrote Ela (1980, p. 154 [TRANSLATION]), "is achieved
through self-negation; it demands a constant effort to surpass, and this is the real
impulse toward liberty. Traditional culture must be revolutionized from top to bottom, so
that it may be subsumed in its creative impulse."
The mission of African intellectuals is not only human; it is delicate and difficult to
accomplish because of the demands and prerequisites that must be met. If the voices of the
intellectuals are not to be stifled and their actions not come to nothing, the
politicians, as the people on whom the destiny of a nation rests, will have to work
together sincerely with the African intelligentsia in a spirit of openness to change, so
that plans for the reform of the present criminal justice system may be defined and given
genuine support.
BIBLIOGRAPHY
BAYONA BA MEYA, "Le recours à l'authenticité dans la réforme du droit au
Zaïre" in CONAC, Gérard, Dynamiques et finalités des droits africains. Paris,
Economica, 1980.
DAVID, René, Les grands systèmes de droit contemporain. 3rd edition, Paris, Dalloz,
1982.
ELA, J.M., Le cri de l'homme africain. Paris, l'Harmattan, 1980.
ELIAS, O.T., La nature du droit coutumier africain. Paris, Présence africaine, 1961.
GONIDEC, P.F., Les droits africains, Évolution et sources. Paris, Librairie Générale de
Droit et de jurisprudence, 1976.
KALONGO MBIKAYI, "Individualisation et collectivisation du rapport juridique de
responsabilité en droit privé zaïrois" in Annales de la Faculté de droit,
Kinshasa, Presses universitaires de Zaïre, 1972, pp. 37-49.
LA CROIX, January 27, 1972.
NDOKO, N.C., La culpabilité en Droit pénal camerounais. Paris, Librairie Générale de
Droit et de jurisprudence, 1985.
SOHIER, A., Traité élémentaire de droit coutumier du Congo belge. 2nd edition,
Brussels, Larcier, 1954.
TEMPELS, P., La philosophie Bantoue. Paris, Présence africaine, 5th ed., 1965.
VERDIER, R., Féodalités et collectivisme africain. Paris, Présence africaine, 1961.
Marcel Kabundi
Jurist-Criminologist |
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