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University of Nigeria Virtual Library

Serial No

Author 1 ANI, Casimir

Author 2

Author 3

Title African Customary Law, Positivism & Culture

Conflicts – A Critical Re-Appraisal Of The Millenium Need For an African Jurisprudence

Keywords

Description African Customary Law, Positivism & Culture

Conflicts – A Critical Re-Appraisal Of The Millenium Need For an African Jurisprudence

Category

Social Sciences

Publisher

The International Conference On Philosophy And The Law in Africa.

Publication Date 11th – 14th June, 2008

Signature

CUSTOMARY LAW

AFRICAN CUSTOMARY LAW, POSITIVISM & CULTURE CONFLICTS – A CRITICAL RE-APPRAISAL OF THE

MILLENIUM NEED FOR AN AFRICAN JURISPRUDENCE

BY

ANI CASIMIR

KEY TERMS Law---According to curzon’s dictionary of law” the written or unwritten body of rules largely derived from custom and formal enactment which are recognized as binding among those persons who constitute a community or state, so that they shall be imposed upon and enforced among those persons as appropriate sanctions”1.However,Osborne’s concise law dictionary gives a multiple definition which gives us an insight into the many meanings of law: a law is an obligatory rule of conduct. The commands of him or them that have coercive power[hobbes].A law is a rule of conduct imposed and enforced by the sovereign[Austin]. But the law is the body of principles applied by the state in the administration of justice[salmond].Blackstone, however, maintained that a rule of law made on a pre-existing custom exists as positive law apart from the legislator or judge and law pointed out that there is law in primitive societies”2; Morality---Morality derives from the latin word Mos[plural is Mores] which means customs or people values and traditions, people’s heritage or ways of life and conduct in a given community. Moral values vary from community to community and from time to time. Among people that share a common heritage or have similar cultures or religious beliefs,some of these values cut across sections of the various communities. Within the societies of black Africa, there is a share sense of morality that is similar in many aspects and based on the concept of Ubuntu 3.; Iwu Umunna—Iwu stands for law in traditional African Igboland where Umunna stands for the the cultural kindred or community. Put together ”IWU UMUNNA” embodies the concept of ubuntu which become projected in different images of law in Africa wherein law is seen as the crystallization of the accepted public morality and sactions meted out to lawbreakers and other aspects of communal justice in the land, making

law as essentially linked up with morality and the public good seen from the perspective of custom and tradition”4 African Public Morality—According to reverend professor Waligo public morality refers to the “total set of ethical-moral legal-human rights values, customs or traditions which define,describe,promote and defend a given society’s or community’s common good, shared values and vision,their public ethos,and the common pursuit of the common good in order to achieve their full potential and civilization.Public morality regulates the behavior and values of both the community and the individual who lives and achieves his or her full humanness within the community”5; Culture--- The assumed usage of the word culture refers to the way of life of a group of people or a society. It could be taken also to mean”the sum total of the ways in which a society preserves,identifies,organizes,sustains and expresses”6.Culture seen as culture is defined as “the sum total of the values a particular society cherishes and by which its members want to identify themselves and be identified by others.These common values include among others:history and language;rites,rituals and ceremonies;wisdom,philosophy and worldview;religious beliefs and morality;ancestors and leaders;signs and symbols;institutions of family,clan and society as a whole;law,the legal system and the indigenious skills and technologies;education and leadership”7 ABSTRACT The millennium is enmeshed in a legal world filled with a wave of positivism, pragmatism, legalism and moral expediencies, which attempts to upturn objective ethical standards. It informs an empirical attitude that strives at the same time to anchor morality on contingence, without any reference to essential and universal value judgments. According to Reverend Iwe, this attitude has pointedly refused to see fundamental and universal principles of ethics as a necessary grounding of the nature of men and the basic law by which all men enjoy the attribute of moral dignity, respect and order every where. This is the eroding spirit of legal positivism which has negatively affected and impacted upon the field of law, narrowed the field of jurisprudence and robustly attempts, for several decades, to move African customary law outside the precincts of recognized state law. In essence, positivism incorporates only European legal statues as law and tries to ‘legalize’ received colonial law as the new

face and content of law in Africa. But this paper attempts to take another critical look at the arguments of legal positivism, which have exposed African jurisprudence to serious dangers and errors. Fundamentally, the purpose of the critique is to emphasize that the laws, which govern our African life in our African society, should be what they ought to be and that African customary law should be codified and made the content and framework of state legal reform. In seeking to address these issues we absence a wheel of conflict involving European value system and African indigenous moral norms. The law should be not only what it is ought but what it ought to be. The strategic outline of the paper will seek to sketch this intellectual reformulation within the theoretical confines of the following sequence: 1 INTRODUCTION--WHAT IS PHILOSOPHY OF LAW?

The general name for the body of thoughts on law – its nature, scope, functions, and limitations - is called jurisprudence. In its philosophical essence, jurisprudence is concerned with the theory or the science of law. Etymologically, the word jurisprudence derives from the Latin term ‘juris prudentia’, which means "the study, knowledge, or science of law." It is in portraying this philosophical ideal that Wolfgang Friedmann (1969:448-9) opines that “all legal theory must contain elements of philosophy, which is an attempt to systematize man’s reflections on his relation to the universe.” In another light, Friedmann (1969:449) contended that the task of legal theory is the “clarification of legal values and postulates up to their ultimate philosophical foundations.” Thus, beneath most jurisprudential conclusions, views and opinions in western literature is the identification of a philosophical ideal. Historically, there have been and there still are different orientations and worldviews in the attempt to understand the nature of law

and its function in every relevant society. This is premised on the fact that men have not always held the same view about law and its overall place in societies. Men’s perceptions about the law, and the different orientations that have grown out of these perceptions cannot be extricated from their overall philosophy and experiences.

2 WHAT IS LEGAL POSITIVISM? Positivism has stood historically for a number of different, though related, ideas. They revolve round two problems: How is law to be identified? How does it relate to morality? On identifying law the positivist thesis is that, as Raz puts it, what is or is not law is a matter of social fact.To this thesis there are two aspects. First, there are in every society criteria (for example accepted rules of recognition) according to which certain items, such as constitutionally enacted legislation, count as law. These criteria mark off what is legally authoritative from what is not. Secondly, nothing that does not satisfy these social accepted criteria is law. Nothing is law unless it is regarded as authoritative in the society in which it is claimed to be law.The positivist thesis about the relation of law to morality follows from the thesis about the identification of law. Nothing that is law according to the accepted criteria for identifying law is disqualified from being law merely because it is morally indefensible. In an extreme form,which Raz dubs the ‘semantic thesis’, terms such as ‘right’, ‘duty’ and ‘obligation’ do not mean the same thing in law and morals. A law giver who prescribes duties or confers rights does not even purport to prescribe morally binding duties or to confer morally defensible rights.In its less extreme form, however, this thesis about the relation of law to morality is easy enough to defend. There can be evil laws and corrupt legal systems 8. The Third Reich had a legal system. Apartheid South Africa had a legal system. It is true that not only these societies but every society has some unjust laws. These laws and legal systems are imperfect because, unless rights and duties mean something different in law and morality, laws and legal systems claim to be morally in order. But, though imperfect, the unjust laws and corrupt systems are real laws and legal systems. It is not plausible to say, with some old-fashioned natural lawyers, that the morally

objectionable laws and legal systems are not laws and legal systems. Their supporters and opponents alike treat the unjust laws as laws and the corrupt systems as legal systems.Law is a human construct and what is treated by humans as law is law 9. But what is my contention on the inevitability of the transformation and acceptance of African moral values as part of the legal culture of states in the continent,despite pretentious exclusivity of same by legal positivism? Positivism constitutes a grave danger to African customs,public morality and values—the features of this dangerous constitution needed to be well sumarised for us to appreciate what is African customary law and how European law masking as the state law is in direct conflict with African indigenious law as enumerated in our legal culture before the arrival of the colonial overlords. THE DANGER OF LEGAL POSITIVISM TO AFRICAN CULTURE.VALUES AND PUBLIC MORALITY Reverend Dr N S Iwe makes a scathing remark that” the laws which govern our life in society should be what they ought to be…The assertion is that the law should be notonly what it is,but what it ought to be.The law must not only have a positive foundation but it must also rest on sound ethical basis.It is in the interest of our developing African institutions that it should be so”.10 Positivism has fundamentally affected the development of what we call law,in a negative sense,”exposed jurisprudence to serious dangers and errors.”11 Reverend Dr S.S Iwe captured the essence of the legal theory known as positivism but also did critical background research on why African states must discountanence and be saved from these dangers embodied by the pretensions of legal positivism. From pages 239 to 242 he itemizes in great detail why African states must have a new conception of law outside the pleadings of positivism;and it will be within our timeframe to mention the highlights of these illuminating tapestry to a new African jurisprudence which my paper espouses with other scholars in Africa and Europe.12: 1 There Is The Error And Danger Of Restricting Jurisprudence To Exclusively To The Field Of Positive Law; 2 The Positivists’ Concep And Definition Of Law Leave Much To Be Desired…As The Concept Of The Law A A Social Phenomenon Cannot Be

Simply Reduced Tot The Enforceable Will Of The State Or The Decreeof A Legislative Authority; 3 Legal Positivism Projects Sovereign Authority As The Only Source Of Positive Law; 4 Positivism By Its Absolute Identification With Posive Law And The Will Of The State Possess The Dangers Of Legal Authoritarianismand Tyranny; 5 Legal Posivism Saps Positive Laws Of Their Inner Ethical Vitality By Its Sharp Distinction And Violent Seperation Of The Legal”Is” From The Ethical “Ought”; 6 Legal Positivists Dangerously Assume The Rationality Of The Accepted Formal Criteria Of Legisation And Legal Validity; 7 Legal Formalism Has Insufficent Regard For The Ethical Contents Of Positive Law As Law Is Practically Considered As An End In Itself And Not A Meas To An End; 8 Legal Positivism Empties The Concept Of The Rule Of Law And Social Justice Of All Meaning; 9 Under Legal Formalism,The Healthy Principles Of Equity Would Persih As There Would Be No Room For Natural Justice; 10 …On The Basic Premise Of Legal Positivism The Healthy Evolution And Developemnt Of International Law Would Be Impossible; 11 The Danger That Legal Formalism Poses To The Development Of Traditional Customary Laws Is Serious And Immense…As According To Them Customary Laws Would Be No Laws At All Since Behind Customary Laws Lies Not The Will Of The Lawmaking Authority;13 In otherwords,what we could glean from these eleven posthulations of legal positivism is tha fundamentally,it aims to kill the concept,philosophy and practice of an African legal culture which is a legal framework which has been existence before the arrival of the state which seeks to recognize an entity that has been there before as the authentic legal institution of the

African people.Moreso,there arre also some critical questions—if it is obvious that positivism has had a chequered career and interpretations since its conception,do they [proponents ] have any right to deny Africans a cultural authority for legislation,enactment and enforcement of the law in precolonial Africa,a fact whose existence has been well documented and acknowledged by legal scholars and jurists? In view of the above,it is becoming very clear that”we must adopt “a healthy concept of law and a humane and viable legal attitude among our law men and guide the spirit and temper of our laws.14 3 AFRICAN CUSTOMARY LAW, THE NATURE OF CONFLICT BETWEEN EUROPEAN LAW AND AFRICAN INDIGENIOUS LAW The idea of african juriprudence has been as disputative as the idea of an african philosophy as a professional discipline accepted by philosophers. The idea of a universally accepted definition of jurisprudence has been problematic.But does the fact that both jurisprudence and african jurisprudence has not been given a univocal conception mean that we should not probe the possibility of giving meaning to the body of thought in african customary legal practice collectivelly known as african jurisprudence.The whole range and depth of argument by Idowu Williams to support the need for this probe is quite perspicacious and bears restatement: “ An aspect of jurisprudence that has not been adequately pictured in philosophical reflections on the nature of law and jurisprudence in general is the idea of African jurisprudence. There are and have been many reasons for this absence. In fact, the quest for the nature of African jurisprudence is not one that can be glossed as if it is not controversial. The indication that is conspicuously thrown up in much current jurisprudential literature is a loud absence of African articulation on the subject matter of jurisprudence. This is perhaps, a fallout from the long tradition of denying the existence and possibility of African philosophy, or African philosophical traditions. Fortunately, that scepticism about African philosophy has been definitely transcended. Although the general denial of African philosophy has died a natural death, the implicit denial of African jurisprudence seems to persist. For instance, the classical and contemporary texts appear to regiment this controversial denial. A study of such texts reveals an obvious and conspicuous lacuna and pertinent

discovery that presents itself to us is the fact that conspicuously missing in this panoramic canonisation of jurisprudential works is the canonisation of African intellectual resonance and mental disquisition on the idea of law.”15 The question as to whether we have any such thing as an African legal thinking is as spurious a question as questioning whether Africa has past,wherein law and order prevailed in communal relations. Part of this confusion comes from the damage done to African value system as a result of colonialism and the subsisting principle of neo-colonialism in matters affecting Africa.The problem we have today is that in many african countries the position of legal positivism has not only outlawed the strong moral sense with which african values drape our legal sense of order and discipline but these state laws “do not adequately define what public morality is and neither do they regulate upon morality in its entirety...for in our cultural or traditional norms and values morality is treated in a holistic approach and each person was compelled to live in accordance with the moral standards of that person’s community. Thus we have always had communal sense of legalism which derives from our african morality and values.In contemporary african states legal jurists and judges continue to ignore and under estimate the power and influence of the culture,moality,values and the common good of the people for whom the law was made”16. CONSEQUENCES OF NEGLECTING AFRICAN JURISPRUDENCE

According to Waligo,the consequences of neglecting the recognition and the intergration of african jurisprudence to the law in african states are that “the people are likely to ignore the,undervalue and undermine the law in which they never participated and which to them appears to be both foreign and irrelevant to thier world view and philosophy of life.”17 The dominant problem faced by states in attempting to force africans to obey and comply with the law is that ”in many african countries there are still many laws in the statute books that are a legacy of the colonial masters during the era of domination over and discrimination against the african natives.In these laws the africans generally played no part in thier making.The aim of the laws was to subject africans to domination and control.These laws were not based on the public morality and [values] of the people governed.Even in

post independence africa in the 1960s many laws have been conceived,drafted and passed by legal experts,government and all types of parliements and military juntas without involving the people targetedThis non-participation and non-involvement in lawmaking by the people the laws are meant to serve is the root-cause of the dangerous gap between the law and public morality” in africa.18 The issue of this gap raise the critical but the important question with respect to what should be the nature and content of African jurisprudence should be immediately . In my considered view, we can no longer reasonably argue about the existence or otherwise of african jurisprudence but ,like I state in my abstract, I rather concentrate my efforts towards filling the gap created by a legal system which refuses to articulate a working definition of an African legal theory. As rightly argued by many others before now “What is of curious interests is that some of these views especially the reality/existence arguments only project and portray African traditional systems as having system of rules and governance but did not in actual fact argue whether Africans had or have a theory of law. It is this lacuna on the possibility of the nature of African jurisprudence that the present effort hopes to fill. What should be the content and framework of such a legal philosophical theory for Africa. In this direction, the major concerns and concepts of the African legal system have been and still are determined by these moral values as articulated by professor Waligo19:

1 How to mete out justice and in the quickest possible manner;

2 How to use the wise and impartial elders as judges and the jury;

3 How to prevent greater conflict and revenge in a society or between communities;

4 How to determine the punishment in relation to the crime committed as viewed in their particular world view; 5 How to reconcile the conflicting parties,the offender and the victim and re-establish harmony harmony which had been destroyed or undermined;

6 How to take extra care to ensure that justice is done to the poor and the most vulnerable of society,whose voices were not often heard in society; 7 How to protect and defend society’s moral ethic and cohesion through either remedial or deterrent punishment; 8 How to use exposure to public shame,the displeasure of the deities and the ancestors to keep all members of society focused on its moral ethic and codes. THE BASIC PHILOSOPHY OF AFRICAN LAW

It is conceptually necessary to start a reformulation of this nature by taking a critical look at the nature of an African jurisprudence Having seen the guide earlier,we must re-examine what Africans often conceive as law in the continent prior to the advent of colonialism.We cannot talk about African concept of law by launting concepts borrowed from Europe,which are at best hostile to our idea of law.We will begin b first recognizing certain scholars who have done seminal works on this subject matter.Such include but are not limited to Monsignor professor obiora ike;monsignor professor john mary walingo;professor fidelis okafor ; professor john Murungi; and idowu Williams for them and many others issues in African lega-moral sphere must form the foundation of the analysis. For according to Idowu Williams any “piece on African philosophy of law, strictly so-called, could not omit a consideration of the nature of African jurisprudence, no matter how perfunctory, and still seriously contest for academic legitimacy. Looking across the broad panorama of philosophical and legal traditions amongst African scholars in recent times, there have been series of responses in relation to the philosophical ideal of African law.An interesting piece in recent times is that of John Murungi”[idowu , Mr Idowu ,Volume 6, July 1, 2006]. Idowu’s analytic treatment of Murungi’s work is tellingly critical, conceptual and substantive in its analysis and what it succeeded in revealing about the concept and nature of a prospective jurisprudence for Africa.According to Idowu, murungi’s project is”a reflection on the question of existence rather than an articulation of the substantive thesis of the nature of African jurisprudence. At best, the work is a critique of separability or separation thesis of another kind: the separation of African jurisprudence from the rest of jurisprudence. In his words:

Each path of jurisprudence represents an attempt by human beings to tell a story about being human. Unless one discounts the humanity of others, one must admit that one has something in common with all other human beings…what African jurisprudence calls for is an ongoing dialogue among Africans on being human, a dialogue that of necessity leads to dialogue with other human beings. This dialogue is not an end in itself. It is a dialogue with an existential implication 20

From Murungi’s assertion above, certain gems of truth with respect to the nature of general jurisprudence and African jurisprudence can be deciphered. One clear understanding is that jurisprudence is basically a human-centred enterprise. Jurisprudence is about humans and thus, law is about humans. This assumption underlies the contribution of jurisprudence in all cultures.21 This is corroborated in the light of Chinese philosophy, for instance. According to the realism of Hsun-tze, a Chinese philosopher, the necessity of law was informed by the nature of man:22

the nature of man is evil; the good which it shows is factitious…the sage kings of antiquity, understanding that the nature of man was thus evil…set up the principles of righteousness and propriety, and framed laws and regulations to straighten and ornament the feelings of that nature and correct them,…so that they might all go forth in the way of moral government and in agreement with reason.

But then, to what extent is Murungi’s statement true that each path of jurisprudence represents an attempt by human beings to tell a story about being human? What is meant by being human in relation to jurisprudence? Is law necessarily human in nature and origin? What about laws such as international laws purporting to be connected with countries and states in the international scene? Since they also have a jurisprudential element, can they be regarded as human-centred? Isn’t there a problem with this conception of jurisprudence? And what is more, what do we say of scientific laws? One of the revered elements of Murungi’s African jurisprudence consists in his emphasis on the sacredness of tradition and customs when juxtaposed with the nature

of modern European law. While Austin relegated the juristic and jurisprudential significance of custom in his analysis of the nature of law, Murungi’s adoration and celebration of customs as possessing one of the keys to a cerebral understanding of the substance of African law is worthy of intellectual attention. On this issue, Murungi’s statement tends to draw a world of corroboration and strength from the observation of Will Durant on the veracity of customs.23 Quoting Durant,Idowu gives us another fresh insight into the refreshing insight on how Durant thinks in this direction:,

Underneath all the phenomena of society is the great terra firma of custom, that bedrock of time-hallowed modes of thought and action which provides a society with some measure of steadiness and order through all absences, changes and interruptions of law…when to this natural basis of custom a supernatural sanction is added by religion, and the ways of one’s ancestors are also the will of the gods, then custom becomes stronger than law, and subtracts substantially from primitive freedom. To violate law is to win the admiration of half the populace, who secretly envy anyone who can outwit this ancient enemy; to violate custom is to incur almost universal hostility. For custom rises out of the people, whereas law is forced upon them from above.24

A CONFLICT OF TWO CULTURAL SENSE OF VALUES AND LEGALISM

In his classical work on African jurisprudence entitled UNDERSTANDING AFRICA—Traditional Legal Reasoning,Jurisprudenc and Justice in Igboland,Professor Ike gives an insight into how the clash of European and African cultures gave rise to the ascendancy of English common law over African legal authority:

One of the most famous writers and novelists of black African origin ,Dr chinua achebe wrote four main novels which present the life and history of the igbo people of southern Nigeria.These novels describe characters and events before,during and after the british colonized the area.He portrays how the cultural clash arising from the encounter with the Igbo and the Europeans tore apart the customs,values and traditions of the people.The same happened all across the African continent with the colonial incursion.According to professor Ike,THINGS FALL APART “vividly recreates the igbo way life just before the arrival of the british at the end of the 19th century.It is a classical workfull of historical,philosophical data..a source to present some aspects of alternative dispute resolution and the igbo sense of justice in four key areas-legal justice;social,distributive and community justice;retributive justice and personal justice.25

Professor Obiora Ike then went ahead to illustrate these theories with a definitional framework infused with what he calls an African sense of justice:

Justice is the foundation of law and order,as well as thejustification of laws.In Igboland,legal justice existed although it remained largely undocumented.There was no promulgation in the name of positive law ,except as cultural and customary tradition which the people call omenala.26 What professor Ike calls omenala professor walingo calls ubuntu and I call it iwuumunna—literarily meaning “umunna’s law or the law of ummunna.let us lift Idowu once more and borrow from his critique of Murungi:

For Murungi, what complicates the encounter between European law and African law is the abstruse relegation of the normative understanding of what it means to be human in an African way and how crucial that denial is to ideological basis of European jurisprudence. For Murungi,

“what is elemental in every jurisprudence is the conception of being human that is presupposed. It is precisely for this reason that it is herein claimed that African jurisprudence is what is at stake in being human for Africans. If jurisprudence is to be

understood as a science, it is to be understood, in its African context, as a science of being human as understood by Africans (2004:523).What is also conceivable in Murungi’s conception of jurisprudence is the fact that what connects jurisprudence in all cultures is its connection to an understanding of the internal aspects of humanity. This implies that as a human-centred discipline, the common element that features in all jurisprudence is what those jurisprudences have to say about man. Thus, at one level it can be said that jurisprudence is a unified subject since man is man every where and in all cultures. But then, at another level, jurisprudence, even though it shares a common nature in all cultures which is the nature of man, is still different in the sense that the conception of what it is to be human differs from one culture to another. For example, the debate over the nature of man in western culture is still a philosophical puzzle. The debate between the materialist monist and the dualist idealists is a perennial problem yet to be solved in western philosophy. Western metaphysical philosophy tends to be sympathetic to the theory of materialism.Again, Murungi’s observation also shows that African jurisprudence is a reactive jurisprudence. As a reactive jurisprudence, it is a response to the story about how the African conception of man is being told. In another sense, it can also be decoded that the under representation of any kind of jurisprudence is not borne out of any absence of substance but results basically from a denial of the humanity of a group.27

Idowu has a rich sense of what is or should be the content of African jurisprudence which defines as philosophical and therapeutic: On our part, we tend to argue that the philosophical ideal in African conception of law and the system of rules and governance tends to go in the way of the philosophy of reconciliation, conciliation and restoration of social equilibrium and cohesion. In our estimation, this philosophical ideal tends to incorporate one or two basic elements of what is regarded as therapeutic jurisprudence. As developed by David B. Wexler & Bruce J. Winick therapeutic jurisprudence refers to the "study of the role of the law as a therapeutic agent." In other words, therapeutic jurisprudence focuses on the law's impact on emotional life and on psychological well-being of citizens. In the submission of David B. Wexler & Bruce J. Winick “therapeutic jurisprudence wants us to be aware of this and wants us to see whether the law can be made or applied in a more therapeutic way so long as other values, such as justice and due process, can be fully respected.28 My critique of Idowu,Wexler and winick are essentially expository and revelatory and it comes out when we question them---why is the proposed African jurisprudence considered to be therapeutic? The response is indeed interesting:

African jurisprudence is essentially therapeutic since law is not only taken as an active social force but most importantly as an instrument for the enhancement and /or restoration of social cohesion and equilibrium. African jurisprudence is essentially therapeutic since it removes the conception of law away from the harsh realities of Austinian jurisprudence or positivist jurisprudence and, instead, emphasises the nature of law in terms of reconciliation and restorative justice. In other words, ‘that peace-keeping and the maintenance of social equilibrium’ stands at the heart of African jurisprudence. In actual fact, as argued by Elias (1954:8), parties to a suit left Yoruba courts neither puffed up nor cast down – for each a crumb of right, for neither of them the whole loaf.In post-apartheid South Africa, with the establishment of the Truth and Reconciliation Committee (TRC) under the Promotion of National Unity and Reconciliation Act of 1995 to deal with the violence and human rights abuses of the apartheid era on a morally accepted basis and to advance the cause of reconciliation, one of the central emphasis and objectives of the Committee was the need to promote social stability which is considered a greater good than the individual right to obtain retributive justice and to pursue perpetrators through the courts. Leading members of the African National Congress (ANC)

contended that the “retributive justice” was defined as “un-African.” The committee’s chairman was Archbishop Desmond Tutu. In the official discharge of the duty of the TRC, Archbishop Desmond Tutu, in 1996, commented that “God has given us a great gift, ubuntu.... Ubuntu says I am human only because you are human.... You must do what you can to maintain this great harmony, which is perpetually undermined by resentment, anger, desire for vengeance. That's why African jurisprudence is restorative rather than retributive.”Thus, the reconciliation and restorative justice appears to be veritable and pertinent issues in African philosophy of law. Interestingly, this kind of philosophy of law endorses the view that law and morality are not antagonistic to each other since, by virtue of their inherent origin and development, they both exist to further societal interests, which in the case of African jurisprudence, is the enhancement and maintenance of social cohesion and equilibrium. This is not restricted to the Yoruba society which Adewoye, Elias and Asiwaju have pertinently demonstrated knowledge of. The same can be said of the Barotse of Northern Rhodesia. According to Gluckman,

When a case came to be argued before the judges, they conceive their task to be not only detecting who was in the wrong and who in the right, but also the readjustment of the generally disturbed social relationships, so that these might be saved and persist. They had to give a judgement on the matter in dispute, but they had also, if possible, to reconcile the parties, while maintaining the general principles of law (1967:28).29

5 LEGAL REFORM We can see that problem of the African jurisprudence project is many and poses a direct challenge to African legal philosophers and jurists.It concerns the establishment of a framework, content and methodology for its final intergration and functionality within the mainbody of law operative in African states. It will take time.As Idowu observes:

The multifarious nature of these problems is animated by the quest for relevance. This quest stems from one end of intellectual consideration to another. In other words, it

arises both from the problematic of substance and that of method. But while the problematic of method is far reaching in that African jurisprudence still requires a method for its activation and intellectual clarity, the problematic of substance only needs to be excavated. It requires an honest uncovering of Africa’s past. It does not, however, warrant the sceptical conclusions often peddled that Africa has no past.Both the sceptical and absence arguments are seriously flawed in their conclusions about the reality and existence of African jurisprudence. It is our contention and conclusion that both the sceptical and absence arguments are based on ignorance about the nature of African realities and that to that extent, fails in demonstrating the non-existence of African philosophy of law in as much as they do not prove beyond all doubts whether indeed Africans lack a philosophical ideal with respect to the nature of governance and legal administration. According to Allot, the claim that African law lacks a philosophical ideal can be attributed to the problem of ignorance by outsiders who lack sympathy and knowledge. In his words,Some deny the character of law to Africa altogether; others declare that, if there were legal rules in African societies, those rules and their administration are or were characterised and dominated by belief in magic and the supernatural blood-thirstiness and cruelty, rigidity and automation, and an absence of broader sentiments of justice and equity.From Allot’s observation, it is safe concluding that both the sceptical and absence arguments are really presumptive

in their various claims rather than factual. To make a factual claim about the denial of African jurisprudence is to exhaust all available evidences, a fact which is evidently missing in both the sceptical argument and the absence thesis. In fact, it has been established that both arguments are not founded on the true principles of empirical history which are experience and observation. The conclusions of these two arguments only elaborate what can be conveniently called a distorted interpretation of history which does not contribute to the making of authentic interpretation of Africa’s participation in history.30

As rightly argued by Iwe”the right spirit and content for our laws is that our laws,statutory or customary—should be truth,fortitude and magnanimity.But before going further on I must here enter a caveat.I do not mean tha is the function of law to enforce morality;for a state –subsdized morality cases to be a health system of morality.My contention here is there is no law without morality.’all law writes Rommen ‘requires a moral foundation .while there can be morality without law,law without morality is a contradiction in terms. Morality should therefore uphold and inspire our laws,without legal infringement on private morality31 6 CONCLUSION Based upon the strong arguments which were embodied in this paper,I strongly and rationally desire that the new wave of culturally and morally based legal rationalization in the African continent would carve a new path of attaining the much awaited articulation of a new philosophy of African jurisprudence which will,according to Reverend professor John Mary Walingo[September,2005] and others such as Professors Obiora Ike and Fidelis Okafor32 “closely relate the law with morality in general and public morality in particular in order to preserve,promote and protect the Ubuntu, the omenala,the iwu umunna, the human person,the community and the future of Africa”.There is nothing like a law without a moral

content;and African legal ontology is suffused with culturally moral sphere and environment which will not make sense to the legal positivist theorist who has filled the African legal lexicon with a legal system filled with imported European cultural values which are paraded as the law in most African states.33 As Iwe forcefully agrees “I propose the natural law as our chiefest defence against the arid arrogance and intolerable tyranny of narrow legal positivism as the firm pillars of our jurisprudence,as the basis and the animating spirit of our legal system and our laws---customary,constitutional and statutory…legal positivism,inspite of its advantages,constitutes a serious danger which we in Africa can avoid by seeing that our legal system and laws are grounded on the principles of natural law and on the sources of morality namely wisdom,justice,fortitude and moderation”34.Legal reform in Africa should be filled no doubt with the framework of an indigenious African jurisprudence as identified by many scholars:

Indigenous african jurisprudence is subject to an oral tradition. African legal philosophy is lived rather than written35 .We had some aspects of pre-colonial legal systems

1 ---the chief was obliged to act on behalf of the collective .2--factions and alliances were emerged and developed according to specific issues as opposed to having long established political parties 3---the chiefs and the umunna constituted the legislature,the executive and the judiciary -4----the system was hierarchical in nature with property being held in common I think it will be in order to agree to certain key concepts in african jurisprudence.At various times and in various fora it is agreed that one of the key concepts of indeginous african jurisprudence included:

• shame in criminal law • emphasis on social equilibrium • ubuntu36

shame in criminal law:

protection of innocents being the main focus, rather than punishment of the guilty-- therefore compensating the victim being of main importance.

western influence was to emphasise guilt so as to cage the villain, having disastrous consequences. (p 205)

social equilibrium:

• justice requires that nothing be done to destroy equlibrium between groups.

• african rules spelling out positive acceptable behaviour.

ubuntu:

• start an interim constitution in Africa that can intergrate this concept which is the same as omenala or iwu umunna;

• This concept in one form or another runs across as a thread across many african cultural lines and reflects the public moral values that account for socio-economic and philosophical development of the African personality since it will be a philosophy of law that has been proven to be pro-pro-communalism, anti-individualism and captures the synergy of African cultural dynamism.

My prayer is that this conference will propel majority African legal thinking in this new direction.Thank you.

NOTES

1 .L B Curzon[ed]Dictionary of Law[4th edition],New Delhi,India,universal law publishing co,1993,p.219 2 Roger Bird[ed] Osborne concise dictionary of law7th edition],London,sweet and Maxwell,1983,p 197 3 Waligo,J S,LAW AND PUBLIC MORALITY IN AFRICA:LEGAL,PHILOSOPHICAL AND CULTURAL ISSUES, Paper Presented at the ALRAESA Annual Conference,4th-8th September,2005 p2 4 [Dr ani Casimir, WHAT LAW MEANS IN AFRICA, Conference paper at the teachers of law and access to justice,Ghana,2005,pp23]; 5 Waligo,J S,op cit p 3 6 Waligo,JS TOWARDS THE PROPER DEFINITION OF CULTURE,Paper presented at the international conference of African theologies,Rome,may 21st 1969 7 Ibid. 8 ulanta j, legal positivism and the Sources of law’ in The Authority of law. Essays on law and Morality (1979) 37. 9 . H.L.A. Hart, The Concept of law (2nd ed. 1994 p.268): ‘morally iniquitous provisions may be valid as legalrules or principles’. The reason Hart gives for this conclusion, viz. that ‘there are no necessary conceptual connections between the content of law and morality’ is open to objection unless ‘conceptual’ is given a very narrow meaning. 10 Iwe,N SS,THE DANGERS OF LEGAL POSITIVISM TO OUR INDIGENIOUS VALUES AND REMEDY,Culled from T.O Elias,et al[ed.] AFRICAN INDIGEIOUS LAWS,ENUGU,GOVT PRINTER,1975,P232 11 Ibid

12 ibid p242 13 ibid 245 14 Idowu William, Against the Skeptical Argument and the Absence Thesis: African Jurisprudence and the Challenge of Positivist Historiography Dept. of Philosophy, Obafemi Awolowo University, Ile-Ife, Nigeria – 15 ibid 16 ibid 17 Waligo,op.cit] 18 ibid 19 ibid 20 Murungi,john The question of African jurisprudence:some hermeunitic reflections in A Comparison to African philosophy,edited by kwasi wiredu,pp 519-526, 2004 21 ibid 22 Ibid 23 ibid 24 Durant, W. Our Oriental Heritage, New York: Simon and Schuster, 1954 25 Obiora ike,understanding Africa—traditional legal reasoning jurisprudence& justice in Igboland—as a sustainable basis for culturally rooted and sustainanble development,Enugu,CIDJAP Press LTD,2001,pp162 -185 26 ibid 27 Idowu, Against the Skeptical Argument and the Absence Thesis: African Jurisprudence and the Challenge of Positivist Historiography,Dept. of Philosophy, Obafemi Awolowo University, Ile-Ife, Nigeria,culled from the journal of philosophy,science and the law,volume 6,july 1,2006. 28 ibid 29 Gluckman, M. “Natural Justice in Africa” in 9 Natural Law Forum 25, 1964. 30 Allot, A. Essays in African Law with Special Reference to the Law of Ghana, London: Butterworths, 1960 as quoted by Idowu op cit. 31 Iwe,SS ibid p 243 32 Okafor, F.U. “Legal Positivism and the African Legal Tradition” in International Philosophical Quarterly, No. 2, Issue No. 94, June 1984: 157-64.

33 Driberg, J. G. “The African Conception of Law” in Journal of Comparative Legislation and International Law, 230, 1934 . 34 Iwe op cit. pp 248-249] 35. mazisi kunene http://www.library.und.ac.za/AFRICAN%20JURISPRUDENCE.doc. 36 ibid OTHER BOOKS CONSULTED BUT NOT DIRECTLY QUOTED Echekwube, A. “Traditional Social Institutions and Human Right Promotion in Nigeria” in Enwisdomisation Journal, Vol. 2, No. 1, 2002: 26-37 Elias, T. O. The Impact of English Law on Nigerian Customary Law, Lagos: Ministry of Education, 1958. Elias, T. O. The Nature of African Customary Law, Manchester: Manchester University Press, 1956. Friedmann, W. G. Chambers’s Encyclopaedia New Revised Edition, Vol. 8, London: International Learning Systems Corporation Limited, 1969. Friedrich, C.J. The Philosophy of Law in Historical Perspective, Chicago: University of Chicago Press, 1963. Hartland, E. S. Primitive Law, London: Methuen, 1924. Holleman, J. F. Issues in African Law, The Hague: Mouton and Co., 1974 Holmes, O.W. Common Law, Cambridge, Massachusetts: Cambridge University Press, 1938. Idowu, W. “African Jurisprudence and the Politics of Social History: An Inquiry into the Dilemma of Canonisation” in Lesotho Law Journal, Vol. 14, No. 1, 2001-2004, pp. 1-27. Imbo, S. O. An Introduction to African Philosophy, Lanham: Rowman and Littlefield Publishers, 1998 Lewis, I. M. “Tribal Society” in Encyclopedia of the Social Sciences New York: Macmillan and Free Press, 1968. M’Baye, “The African Conception of Law” in The Legal Systems of the World and their Common Comparison and Unification, Vol. II, International Association of Legal Science, 1975. Nwakeze, P. C. “A Critique of Olufemi Taiwo’s Criticism of Legal Positivism and African Legal Tradition” International Philosophical Quarterly, Vol. Xxvii, No. 1, Issue 105, March 1987, pp: 101-105.

Oladosu, A. O. “Choosing a Legal Theory on Moral Grounds: An African Case for Legal Positivism,” West Africa Review, Vol. 2, No. 2 (2001), http://westafricareview.co. Smith, M. G. The Sociological Framework of Law, Chapter 2, Kuper and Kuper, 1965. Sodipo, J. O. Philosophy and Culture, Inaugural Lecture, Ile-Ife: Ife University Press, 1973. Solomon, R. C. and Kathleen M. Higgins, A Short History of Philosophy, New York: Oxford University Press, 1996. Taiwo, O. “Legal Positivism and the African Legal Tradition: A Reply” in International Philosophical Quarterly, Vol. xxv, No. 2, Issue No 98, June 1985, pp: 197-200. Watson, A. Sources of Law, Legal Change and Ambiguity, 1984. Wilson, R. “Challenging Restorative Justice” in Human Rights Dialogue, Series 2, No. 7, winter 2002. African Philosophy, Internet Material, www.google.com. Quoted in Will Durant, op. cit., p. 686-7. David B. Wexler & Bruce J. Winick , “Therapeutic Jurisprudence Defined” http://www.brucewinick.com/TherapeuticJurisprudence.htm Idowu William ,Humean Ghost, Positivism And African