William idowu


Myth 3: African Jurisprudence has No Respect for Individual Rights



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Myth 3: African Jurisprudence has No Respect for Individual Rights
The third myth with respect to African jurisprudence is the view that African philosophy of law and society has no respect for individual rights. In other words, it contends that the

EnterText 4.2 William Idowu: African Philosophy of Law status of the individual is precarious. There have been various dimensions to this mythical relegation of African law. For example, some are of the view that the basis of operation in African law is communalism not individualism. There maybe a modicum of truth in this assertion but then it is not the whole truth. Even though a communal bond exists, it does not in the essential sense vitiate the status of the individual. There is a wide and general recognition of the rights of the individual as well as the rights of the collective. The relationship therefore is a symbiotic one. This is echoed in the pertinent observation of Max Gluckman, who notes that the failure of one tribesman to perform his legal obligations may lead to severe disruptions of general relationships, and even ultimately to the breakup of the group.”
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Reading from this line of thought, one could come to the conclusion that the individual/community relationship is one of mutual dependence. The individual spells and safeguards his rights within the ambience of the communal life and spirit while the continuity of the community in turn is enhanced by the type of reciprocity it receives from the free and unhindered dispositions of rational individuals within its enclave. Within this kind of reciprocal relationship, individual life is not only enhanced but it derives meaning and significance. However, the argument on the rights of the individual in African philosophy of law has been taken further than this. In Driberg’s version, African law subscribes to and is founded on a collectivist organisation.
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Rendered in a similar but different sense,
M’Baye posits that African law only offers an opportunity to live under the protection of the community of men and spirits for the individual there are no individual rights the individual has no role to play in legal relations and that it is only in rare circumstances

EnterText 4.2 William Idowu: African Philosophy of Law that the individual is treated as a legal subject in African law. In his conclusion, only the personage is taken into serious consideration.”
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It is evident that the proponents of this myth are simply exaggerating this aspect of African law. If the individual has no rights within this kind of jurisprudence, what then do we make of the idea of punishment hinted at under African law For example, when an individual has committed a crime, within the structure of law operative in that society, he is punished for the offences committed. The rights of protection that he used to enjoy in the relevant communal sense are withdrawn and suspended. The punishment is applied to him and the significance of this is that what were considered as rights, previously, cease to be rights because of the breach in the communal life. To this end, whether in punishment or outside the purview of punishment, what is meaningful in this kind of interaction is the place of the individual qua the community. As argued by Dlamini, the individual bears primary liability for wrongs committed, while the other members of his group may, in certain circumstances, bear secondary liability. In his words, this applies when someone is acting in loco parentis or is liable to contribute for the misdeeds of the offender.”
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Furthermore, emphasis on rights in African law only transcends the individual, and does not mitigate or vitiate its status. There is a difference between erosion of the status of something and transcending the status of something. African law’s emphasis on collective and social cohesion is not at the expense of the rights of the individual within that community. This clearly debunks the revered and exaggerated opinions of Fortes concerning the philosophy of society held by the Tellensi of Northern Ghana in West Africa. Fortes had declared most presumptuously that the solidarity of the whole is

EnterText 4.2 William Idowu: African Philosophy of Law stressed at the expense of their individual private interests or loyalties”
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among this tribe. At best this opinion is a myth less euphemistically, an exaggeration. In Yoruba philosophy of law, for instance, social cohesion and communal obligation do not make the status of the individual insecure or irrelevant. One Yoruba proverb explains this fact in vivid terms. Among the Yoruba people, oko ki i je ti baba t’omo ko ma ni aala, meaning that a farm that ostensibly belongs to father and son invariably has its boundary of demarcation As a matter of fact, one of the complex historical processes behind the success of the African philosophy debate, as emphasised by Oruka and others, neither creates nor indicates an insecure position for the individual in the African philosophy of society, or, by extension, in African jurisprudence. This historical and complex process concerns what is referred to as sage philosophy or sagacity. As propounded by Oruka,
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sage philosophy is a healthy practice indicating the presence of a critical and rational spirit in African communal or traditional societies. But the most important truth about sage philosophy is that it is individualistic not corporate. This will, in the obvious sense, run against the opinion of John Mbiti that in Africa a person cannot be individualistic, but only corporate This is to overdraw the picture of African traditional life. The individual in African society develops the sense of duty and obligation to live and work for the whole but then it does not in anyway vitiate the rights, obligations and responsibility of the individual in the African philosophy of law and society. This is why this adage is of celebrated importance for the status of the individual among the Yoruba people, for instance. Among the Yoruba people, the adage ko ju ma ri

EnterText 4.2 William Idowu: African Philosophy of Law
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‘bi ese loogun re means that the foot is the answer if the eye would avoid mischief i.e. in situations of danger or crisis, one is expected to take appropriate action. In the same vein, the Yoruba people also have an adage which states that a ki wori
olori kawodi gbe teni lo, meaning that you should not keep keen watch over other people’s matter while the evil bird makes away with your own The meaning of these proverbs lends credence to the fact that African law respects and protects individual rights and liberties. From these adages, responsibility in any relevant areas of life whether in morals, law, religion, first have their foundation in individualism before its translation and application into our communal dimension of being. The brand of individualism encouraged and emphasised in the African philosophy of society is one that detracts completely from what CK. Anyanwu branded as psychic dissociation in the society. Set within the context of the above, the importance of African philosophy of law lies in the fact that it is a pointer and solution to one of the aching controversies in western political philosophy—the individualism and communitarian debate. One of the premises and promises of the future of African jurisprudence stems from the fact that it moderates the sort of individualism that the notion of the Rule of Law is peddling today. The concept of the Rule of Law as enshrined inmost constitutions of modern states today advocates individualism. The basis for this is captured in the fact that it alone encapsulates or expresses the dignity of man in a hostile world that does not pay attention to the individual. For African jurisprudence, while the ideals of individualism are centrally located in the dignity of man, individualism with a human face is what the world needs. What this means is that the individualism which creates room for what Anyanwu calls psychic

EnterText 4.2 William Idowu: African Philosophy of Law dissociation should be banished from our legal concepts and principles. Therefore, the relevance lies in its moderation of the understanding of individualism in our modern world. In effect, the beauty of that moderation consists in the fact that the individual should be seen in the light of the whole, and that meaning, significance and value depend on the art of integration The problem of integration in the world today is critically located in the kind of scalpel used in defining integration. Integration as often been seen as consisting only in the actions of dissociated individuals. Necessarily, therefore, the principles inherent here are bound to be flawed.
Myth 4: African Jurisprudence is Positive not Negative
The fourth myth concerns the claim that African philosophy of law is positive and not negative. The meaning of this assertion consists in the view that at the heart of African law is the pursuit of social equilibrium, the maintenance of preexisting harmony and not the punishment of offenders. In other words, it is claimed that African law is only concerned with how people should behave in the society, not the penalty for crimes committed. This view was propounded and celebrated by Driberg. According to Driberg, African criminal law only directed how people should behave towards one another, neglecting in the process the punitive aspect of law. The implication for African law, reasons Driberg, consists in the fact that African law is a weak instrument for curtailing crimes and criminal offences in the society. To this end, the capacity for enforcement in African law is lacking or substantially eroded. The falsity of this charge against African law is obvious. In general, it is a necessary condition that laws in every human community respond to both positive and

EnterText 4.2 William Idowu: African Philosophy of Law negative aspects. In the positive sense, law promotes the guarantee and safeguard of rights, liberties and freedom. It ensures the promotion of a healthy and safe environment for the cultivation of hope and peace with respect to the common good. This constitutes the positive aspect of law. On the other hand, law also performs a negative function which is the punishing of offenders against the societal ethos and rules. This much is what the criminal aspect of law in every society is concerned with. Certain acts are regarded as offences against the state, and punishment for their breach is clearly spelt out by the canons of the law. Both aspects of the law are found entrenched as the substance of African law. As it has been argued, African law differs from Western law only in terms of emphasis and degree and not in terms of substance. It is a proposition too plain to be contested that what Driberg regarded as the negative part of law is an essential feature incorporated in African law. In fact, the issue of punishment is not taken lightly in African law. The idea of punishment in African jurisprudence transcends the concept of punishment found in Western penology. Whereas western penology sees punishment only in the light of the offender, the idea of punishment for crimes in African philosophy of law and society touches not only on the immediate offender but also on the family and the community where the offender is necessarily a member. One other striking quality of African jurisprudence in this respect, one which makes it remarkably different from the Western jurisprudence and penology system, consists in the idea of reconciliation. Even where offenders in a crime situation are punished for their crime under the relevant law in Africa, the beauty of the African penology system is the reconciliation of the offender to himself, the victim concerned in

EnterText 4.2 William Idowu: African Philosophy of Law the case and the entire society at large. The reconciliatory aspect of punishment is a significant aspect of African philosophy of society. The application of sanctions is a very prominent aspect of African law. These consist of sanctions such as expulsion from the community, supernatural sanctions, withdrawal of economic cooperation, seizure of property, ostracism, public ridicule, and even capital punishment. All these are applied, one way or the other, in African philosophy of law. The enforcement of these varying punitive measures in African jurisprudence varies, and is dependent on the context and the circumstances involved. This concept of punishment or the idea of sanctions altogether can be readily understood among the Yoruba people of West Africa. For the Yoruba people, matters of crime and the attendant punishment are prime elements of jurisprudence. The Yoruba people have a saying that ika ti o se ni oba nge, meaning that the finger that offends is that which the king cuts Again, it is said among the Yoruba people that Nitori ti a baa
se ni a fi I l’oruko, meaning that we bear names (for purposes of identification) in case we would commit (criminal) offences From these two statements, the concept of punishment, as a valid and salient feature of Yoruba jurisprudence, is easily and readily portrayed. The first proverb expresses Yoruba belief in the fact that it is he who commits a crime who should be punished or sanctioned. Definitely, therefore, Yoruba jurisprudence frowns on the punishment of the innocent in any given dispute or criminal case. It is in the light of the importance of not attributing blame to the innocent that Yoruba elders often resort to very particular, exhaustive and mysterious means to establish the heart of a case, especially when the issue hinges on complicated and complex grounds. It is believed that where an

EnterText 4.2 William Idowu: African Philosophy of Law innocent person is unjustly punished fora crime that was committed by another, the consequences for the society can be deadly and grave. In an important sense, therefore, Yoruba jurisprudence recognises and incorporates the salience of punishment in any criminal matter. The second proverb among the Yoruba people also portrays the acceptance of punishment in Yoruba jurisprudence. Names area significant index of identification in general and a mark of personal identity. They are identity indicators, attributing certain qualities to the person concerned. In this case, what is meant is that names are crucial in identifying who is to be punished in any criminal matter. Without names, where crimes are committed, it becomes very difficult to isolate and identify the culprit for the purposes of punishment. The Yoruba concept of names is not only significant in terms of punishment but also important in the overall structure on which their jurisprudence is established. This easily refutes the mythical conclusion often peddled against African law as lacking the elements of sanctions and punishment. In fact, African philosophy of society in which such jurisprudence is embedded contains a very rigorous and severe system of punishment and sanctions that no member of that society would want to incur. Granted its postulates, the mythical character often granted and ascribed to African law as being positive only and not negative in relation to the absence of punishment is refutable. In what can clearly be judged as a conversion experience with respect to an initial attitude to African law, CC. Roberts enthused that In the first place, European conceptions of law and justice have to be discarded they have nothing in common with African cultures they are alien in growth and sentiment, and cannot be used to explain the basis of primitive legal theory. That there is a recognised code of law founded

EnterText 4.2 William Idowu: African Philosophy of Law on principles of justice is apparent if one examines the native laws affecting murder, adultery, theft, and many others. As to the laws governing inheritance, ownership of children, property or mortgage we find much resemblance to those in force in European countries.
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To push the argument further in the realm of reality, there are outlined cases of practices which point to the existence of laws in African societies and the idea of punishment that arises from them. Significant in this set of social practices is the Yoruba practice of opening the calabash This practice is not only social, but imbued into the act is a judicial and legalistic function, a pronouncement of the verdict of the community against the excesses of the king. This is one of the several practices in Yoruba land that point our attention to informal legalistic decision-making actions. The juridical importance of the practice of opening the calabash can be understood as a fallout from attempts to flout the proper procedure for legal decisions, lawmaking and lawbreaking in the relevant communities. Whatever positive laws or actions are put forth by the sovereign, i.e. the
Oba, the Ogboni cult as custodians of the divine oracle and laws, ensure that the sovereign does not exceed his authority. The seriousness of the connection between positive laws and moral rules in the Yoruba worldview is often projected and demonstrated by recourse to the practice of what is called the opening of the white calabash with egg Daramola and Jeje described this practice thus In the olden days, when a particular community wants to demonstrate the masculinity or masculine prowess of its monarch, the council of elders gathers together to prepare the egg in a white calabash for the monarch. Once the monarch succeeds in opening the calabash and actually sees the egg in this white calabash, the end is a glorious exit from earth.
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EnterText 4.2 William Idowu: African Philosophy of Law The basis for this practice consists in what Daramola and Jeje describe as a conflict between the sovereign’s personal pride, as exhibited in his actions, laws and reign, and communal expectation and tradition. In the traditional sense, law and morality are not especially differentiated as a means of social and communal control. This is not only because they (the laws and moral injunctions) reflect and embody the traditions of the people, but also because they have over the years come to represent a vital, moving force or aspect of traditional culture. In this traditional culture, it is unlikely that what is forbidden by the moral life of the community will be found enjoined expressly in their laws. The impossibility of the converse also stands. In this kind of traditional society, laws and morals bear the essential character of taboos and therefore have the same source the gods of the land. In fact, conformity to established tradition best describes the basis for which the practice of opening the white calabash is performed.
Myth 5: The Basis of Obligation in African Jurisprudence is Belief in or Fear of
Supernatural Powers
Bertrand Russell was credited with the saying that fear is the basis of religion This insalubrious comment on religion in general has become associated with the practice of religion in Africa. This forms the foundation of the next myth with respect to the basis and structure of African law. It is commonly held that the basis of obligation in African law, unlike in the West, is the belief or fear of supernatural beings. It is generally believed that Africans are incurably religious. To this end, it is equally believed that every sphere of the African possibility is influenced by religion. This is said to hold for the African idea of law. Hence, as contended by Whitfield,

EnterText 4.2 William Idowu: African Philosophy of Law African government and law are part of a living organism within the supernatural order It is in the light of this that M’Baye contended that the basis of obedience or obligation in African legal theory as a whole could be traced to a belief in the will of the gods and the wishes of the ancestors.”
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As a preliminary observation, two ideas need to be distinguished the difference between fear of supernatural beings and acquiescence to ancestral wishes and dictates. These two ideas are different but are often conflated. Acquiescence to the dictates of ancestral, departed souls is one thing, and the reverence or fear of supernatural beings is another. Fear of supernatural beings amongst Africans holds, but then it is restricted to areas of breach of sacred rules of rituals and religion popularly called taboo. These taboos are clearly distinguishable from the purview of African law. In fact, as argued by Malinowski, there is no atmosphere of the fear of the supernatural in African society, except in cases which involve the breach of sacred rules of rituals and religion According to him, the breach of tribal customs is prevented by a special machinery, the study of which is the real field of primitive jurisprudence Given this, it is preposterous to conclude that the basis of obligation and obedience in African law is the fear of the supernatural. This is a myth with respect to African law absolutely unfounded in reality and clearly not in conformity with the state of affairs in African law. Among the Barotse, for instance, Max Gluckman argued that the basis of obedience to the law in Barotse land is what he calls the idea of justice inherent in the principle of the reasonable man Barotse courts do not enforce laws because of fear of supernatural beings. The system contains an advanced process and

EnterText 4.2 William Idowu: African Philosophy of Law procedures for the application of laws of rights and obligations in the light of the values of the reasonable man. In the words of Gluckman, it seems tome that it is in the study of the reasonable man, in every society, that anthropologists and lawyers can meet. In him social principles and prejudices, customs and habits, group interests and individual experiences, are absorbed, to relate fixed rules of law to the changing variety of life. But the law aims at justice, and the idea of a reasonable man implies an upright man.
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Significantly, therefore, the idea of justice as reflected in Barotse law is as rational and straightforward as it is in Western law. In fact, as argued by Elias, fear is too simple as a legal sanction According to him, fear only comes into play, in African philosophy of society and communal interaction, on the basis of proximity of relationship. In his words, Africans knew that supernatural forces were only effective against kinsmen, neighbours and the people one has contact with In his conclusion, Elias debunked the myth of fear of supernatural forces in the following words This classic restatement of an outmoded theory of religious origin of laws shows the writer to be oblivious of the elementary fact that the psychological motivation underlying moral conduct, fear of ridicule or of legal penalty is not peculiar to the European, and that African law does not so weakly abdicate its function in favour of an all-pervading supernatural authority.
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Myth 6: There is No Such Thing as the Unity of African Law
The sixth myth with respect to the African conception of law centres on its so-called unity. According to this view, there is no such thing as the unity of African law. At best, the objection to this dimension of African law is often paraded in the denial of the existence of a common African legal culture, African legal tradition, etc. For adherents of this myth, Africa is too diverse in terms of language, culture, ethnic groups to have or bear a common single focus. Rather, what scholars should discuss is the existence of

EnterText 4.2 William Idowu: African Philosophy of Law specific cultures, traditions, etc. Interestingly, this idea about the nature and substance of African law has some of its adherents on African soil. In particular, Olufemi Taiwo considers this aspect of African law and jurisprudence as nothing but a myth. Arguing against the central thesis advanced by F. U. Okafor
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against legal positivism in Africa,
Taiwo criticised Okafor for peddling one of the myths of the African worldview. In essence, Taiwo’s disenchantment with Okafor’s paper consists in the fact that it elicits some of the troublesome aspects of African philosophy today, namely that of reducing the African experience in ethics and particularly law to one single tradition. This reduction, for Taiwo, is a myth. In his words,
The African legal tradition the African etc, are all myths invented by their purveyors to camouflage the fact that they are shaping diverse African practices to fit their theories. On another level, these myths offer somewhat effective stratagems to evade taking responsibility for the often philosophically unsound melange their authors serve up as African philosophy.”
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Even though we are not unconscious of the appeal of Taiwo’s analysis in pointing out the fact that Africa may not have a single tradition or dominant tradition that can be peculiarly branded as African this or African that, or that we should not mistake the common occupation of a geographical continuum for social consensus it remains possible that Taiwo’s problem over, or denial of, what maybe labelled African legal philosophy, ethics or religion, may bother on mere assumption, but not facts. Indeed, facts emerging from anthropological researches and studies contradict his assumption. Ironically what Taiwo has succeeded in doing is actually to legitimise and justify our view that African legal tradition is simply non-antagonistic to Western jurisprudential tradition and as such not remarkably different. But nothing can be farther from his intention than this. What, after all, would Taiwo mean by African philosophy, if talk of

EnterText 4.2 William Idowu: African Philosophy of Law African legal tradition, African culture, African identity or African traditional values is self-defeating? Is our muted objection to the existence of African culture, or what have you, not given sociological and anthropological significance when the West describes the history of philosophy as uniquely that of Western philosophy and nothing else These and some other issues are the central concerns of PC. Nwakeze’s rejoinder to Taiwo. According to Nwakeze, the problem of Taiwo in understanding Okafor’s paper is the failure to admit or understand the idea of conceptual dualism with respect to
Okafor’s use of terms such as African culture, values, etc. In his words, A critical appraisal of Taiwo shows that he labours under two major problems, among others one is conceptual/methodological; the other is substantive. The conceptual problem stems from his failure to distinguish between the use of African Culture in the generalised context and African Cultures in the specific sense. It is possible, and quite correct too, to talk of African culture, African legal tradition, African personality, African socialisation, norms and values, etc. so long as what is significantly common and fundamental to the cultures being examined is abstracted and emphasised.
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