Indigenous Legal Systems
Indigenous Legal Systems
Human Rights. Respect for human beings was enshrined in the political and civil rights of West Africans, which included the rights of political participation, equal protection under the law, and freedom of speech and assembly. They also enjoyed the fundamental rights to earn a living and to receive a fair trial.
The Rule of Law. A major characteristic of ancient political systems in West Africa was the importance attached to the doctrine of the rule of law. Because people recognized that laws were made for the smooth running of the political system, there was widespread respect for the law and established judicial institutions. Rulers and the subjects were equally placed under the law. Laws were not arbitrarily made by an individual ruler or a handful of autocrats; they were enacted after a lengthy process of participation, including full public debates in which all adults participated. Every adult in a village belonged to the village assembly, the ultimate lawmaking body. In some African societies, laws could be made only on the basis of a general consensus. This lawmaking process not only created public
[Image not available for copyright reasons]
awareness of the law but also conferred a sense of legitimacy on it. Laws were promulgated in the interest of the society as a whole and not as a mechanism for advancing or protecting the interests of a single person or of a particular segment of the population. Many checks and balances against the misuse of power ensured that most rulers had no authority to enact laws unilaterally. People who were found guilty of crimes were punished in several ways: public execution (in cases of homicide), incarceration, fine, and confiscation of property. Punishment was not arbitrarily meted out. It was exacted only after a trial and a finding of guilt. Sometimes, judicial decisions were enforced by members of an age-grade association, a group of people within a society who were born within a particular three-or four-year period.
Judicial Decisions. Several legal principles undergirded the judicial settlement of disputes in West Africa. Judicial decisions were based on established rules and precedents, not on arbitrary rulings of the adjudicators. Several states had elaborate legal codes that set standards for legal and ethical behavior. Judges carefully weighed the evidence following established procedures. An accused person was given ample opportunity to prove his innocence. He could hire an advocate to plead his case. Since oratory was important in the court proceedings, he was likely to seek out an advocate who was an eloquent speaker. For criminal offenses, the intent of the accused when the crime was committed was an important consideration in reaching a verdict. For example, based on the legal principle of intent, a distinction was made between murder and manslaughter. The principle that an individual was responsible for his own actions was a fundamental element of justice in West Africa. While the principle of collective responsibility— under which all people related to the accused by blood were presumed to be responsible for his action—could be invoked, it was not universally applied in the region. Even where it was applied, it was not applicable to all offenses. In cases where a mentally ill person killed or injured another person, however, his family could be held responsible for the criminal behavior. In such cases the family had a duty to provide its sick member medical treatment or to restrain him. If it failed to carry out this duty, the family incurred liability for the person’s crimes and must pay for the offense.
Punishment. The severity of a punishment was proportional to the enormity of the crime. Punishments for various offenses were also clearly specified. Mitigating circumstances led to reductions in fines or punishments, but intentional wrongs sometimes exacted double compensation. Unlawful homicide could result in the death penalty, and the relatives of the victim could demand material compensation from the perpetrator or his relatives. Incest was punishable by ostracism or even death. The penalties for burglary were flogging and the payment of restitution. In some cases, diligent care was exercised to ensure that only the perpetrator of a crime was punished for his or her
[This text has been suppressed due to author restrictions]
offences. For instance, a pregnant woman who was sentenced to death was not executed until after she had been delivered of the baby.
Channels for Judicial Settlement. Not all cases were submitted to established courts and tribunals. Some judicial disputes were settled through arbitration or informal moot courts composed of neighbors or friends. At such gatherings parties negotiated until a settlement was reached. Invariably, the settlement was a compromise between the two claims, and sometimes a ritual such as oath taking was used to bind the parties to the decision. Family disputes were arbitrated by family moots, composed of lineage leaders or family heads. Oracles were consulted in more-complex cases. For example, among the Igbos of what is now southeastern Nigeria, some cases were taken to the oracle Aro Chukwu. In certain instances, trial by ordeal was used.
A. K. Ajisafe, Laws and Customs of the Yoruba People (London: Routledge, 1924).
Paul Bohannan, Justice and Judgement among the Tiv of Nigeria (London: Oxford University Press, 1957).
J. B. Danquah, Gold Coast:Akan Laws and Customs and the Akim Abuakwa Constitution (London: Routledge, 1928).
T. O. Elias, Government and Politics in Africa, revised and enlarged edition (Bombay & New York: Asia Publishing House, 1963).
Elias, Groundwork of Nigerian Law (London: Routledge & Kegan Paul, 1954).
Elias, The Nature of African Customary Law (Manchester: Manchester University Press, 1956).
Elias, Nigerian Land Law and Custom (London: Routledge & Kegan Paul, 1951).
M. Fortes and E. E. Evans-Pritchard, eds., African Political Systems (London: Published for the International Institute of African Languages and Cultures by the Oxford University Press, 1940).
William Burnett Harvey, Law and Social Change in Ghana (Princeton: Princeton University Press, 1966).
J. F. Holleman, Shona Customary Law with Reference to Kinship, Marriage, the Family and the Estate (Cape Town: Published in association with the Rhodes-Livingstone Institute and the Beit Trust by Oxford University Press, 1952).
P. P. Howell, A Manual ofNuer Law Being an Account of Customary Law, Its Evolution and Development in the Court Established by the Sudan Government (London: Oxford University Press, 1954).
Hilda Kuper and Leo Kuper, eds., African Law: Adaptation and Development (Berkeley: University of California Press, 1965).
Laura Nader, ed., Law in Culture and Society (Chicago: Aldine Press, 1969).
N. A. Ollennu, Principles of Customary Land Law in Ghana (London: Sweet & Maxwell, 1962).