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Friday, December 1, 2023

A Law Commission for Africa

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Part 1

Professor Antony Allott, Professor of African Law, University of London, and one of the leading experts on African Law points out in his book, New Essays In African Law, that: “The legal scene in post-colonial Africa is reminiscent, if you will permit the fancy, of a wide beach from which the tide has receded. The eye notices, stranded upon the shore, deposits of extraneous material left behind on the ebb of colonial rule. Here, one sees substantial portions of the English, French, Belgian, Portuguese, Spanish or other laws torn away from the main body of the indigenous system as the fundamental and general law of the country and the regulated continuance of traditional African law and judicial institutions.”

In his published epoch-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.

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“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 competing legal 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.

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The legendary African scholar and jurist, Professor TO Elias, in one of his many groundbreaking 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: “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, that is, 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.

The author FaFa Edrissa M’Bai, CRG, is a renowned lawyer with multiple honours and postgraduate degrees from the Universities of Keele and London, and has some forty years experience as a distinguished legal practitioner. He has twice served as Attorney General and Minister of Justice of the Republic of The Gambia. He is an erudite scholar the author of many books.

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