The anatomy of African Jurisprudence: A basis for understanding African socio-legal and political cosmology

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CHAPTER 4 THE SUBORDINATION OF THE AFRICAN VALUE SYSTEM TO WESTERN MORAL STANDARDS

Introduction

Chapter 4 focuses on the denigration of African law and its value system as a result of colonial and apartheid policies that relegated African law to a virtual sub-system of the Roman-Dutch law whose standards it was forced to reflect and uphold through the repugnancy clause. The repugnancy clause was the statutory instrument used to subordinate African law to Western law by labelling the indigenous normative values repugnant to public policy and natural justice.¹ This phrase was not applied as neutrally as may appear but was in fact a euphemism for the substitution of Euro-Western moral standards for the African belief system. Non-recognition of African culture in this manner moved Nwabueze to make the following observation:
An English sense of justice was used as the standard and the judges, especially the colonial judges, proceeded from a Western superiority complex and self- proclaimed cleansing mission. The proclivity to reject customary law … for being contrary to natural justice, equity and good conscience, was fostered by the elliptical nature of the triple formula that deprived it of any objective criterion and analysis. For instance, many people are likely to differ on what amounts to good conscience. The result has been a huge field of judicial discretion in which the judges’ idea of civilization becomes the litmus test by which a customary law must be adjudged valid and acceptable. As GFA Sawyer noted, “no matter how well-established a custom was, its application in any particular case depended on the discretion of the judge before whom the issue arose”.²
Nwabueze’s misgivings about the degrading treatment visited on African law are endorsed here by tracing the origins of the problem to Western anthropological studies which attributed barbarism and savagery to Africans and their culture in order to justify the classification of Africans as ignorant and Europeans as superior. This perception is based on the way Westernisation was made the litmus test for measuring the level of civilisation of Africans so that colonial and apartheid authorities could invalidate even the worthiest of the indigenous values.³
In order to expose the cultural imperialism of this magnitude, the chapter seeks to analyse the various statutory mechanisms devised by the colonial and apartheid establishments to consolidate the anthropological theses of non-recognition as the basis for cleansing African law of its indigenous norms and values so as to reduce it to a clone of Roman-Dutch law. The trophy for the successful de-indigenisation of African law would be the production of an “official” version that would reflect Western concepts of natural justice, equity, and good conscience. The chapter further reveals the complicity of academic lawyers and legal practitioners in advancing this colonial project of imposing Euro-Western jurisprudence as the foundation of South Africa law through scholastic and judicial interpretation.

The  degradation  of  indigenous  thought systems  by Western anthropologists

At the forefront of the unequal presentation of the African world-view and Westernisation is Morgan’s evolutionary theory that places society on a continuum of stages of civilisation from the lowest to the highest levels of social development.⁴ The theory enumerates such stages as lower savagery, middle savagery, upper savagery, lower barbarism, middle barbarism, upper barbarism and civilisation.⁵ In this continuum, the seven stages of evolution were substantiated with reference to nameable societies in which indigenous peoples occupied the lowest social level whilst Europeans were at its apex.⁶
Interestingly Gadfly A “Barbarians in suits laying waste to SA” Pretoria News 13 June 2011 at 7 writes: “More than 50 years ago Professor Clare Graves found that for hum ans there were, broadly speaking, six different developm ent stations or stages”. Gadfly is commenting on the failed developm ent programm e in South Africa where he believes that everything seem s to be falling apart due to laziness, sleaziness, corruption and generally crooked people who concentrate on accum ulating wealth rather than developing the country. He counts these stages as the hunter-gatherer whose m ain purpose is survival; the tribalistic-anim istic stage where people respect tribal custom s and traditions and are superstitious; the egocentric-exploitative stage, where people seek m ore clout and respect, and are am oral and guiltless and uninhibited and seek im m ediate gratification, showing little trust towards others; then is the absolutist-saintly stage, where the person Similarly, in Harris’s Rise of anthropological theory, the African was seen as brutish, ignorant, idle, crafty, treacherous, bloody, thievish, mistrustful and superstitious.⁷ However, not all European anthropologists subscribed to Morgan’s stages theory of evolution. Levy-Bruhl, for instance, departed from it in his characterisation of “underdeveloped peoples”. He preferred to call the African approach a “pre-logical mentality”, which was synthetic and concrete in its intellectual participation. Yet, even under the latter approach, Africans were still not capable of abstract and analytical reasoning.⁸
Levi-Strauss vigorously disagreed, within the context of the European perspective, by imputing logical categorical abilities to the “primitive” mind.⁹ His mode of inquiry was known as “bricolage” which described the “bricoleur” African mind, as perceptual as opposed to the conceptual and scientific Western mind. In his view, the latter always opened up new possibilities of knowledge by extension and renewal. Western thought systems were scientific, innovative, and inventive of new technological forms. On the other hand, the African mind only conserved knowledge by re-organising what was already known; was mythical, conservative and recreated existing structures, without creating anything new.
The dichotomy between the African and the Western mind has unfortunately had a lasting effect on how people in Africa continue to understand law and society. The advent of independent African societies has regrettably not changed this negative perception of the continent. Knowledge has continued to be pursued on the basis of the superiority of the written nature of Western ideas as opposed to the inferior oral African tradition.¹⁰ The contrast fell between the Western abstract, analytic, syllogistic, and definitional tendencies which resulted in Western privatist contexts; and the seeks purpose in life, and religion, duty and honour count heavily; the next stage is inner focused, m aterialistic, com petitive and entrepreneurial and is called the m ultiplistic-m aterialistic stage, where technology, progress and achievem ent take centre stage; and the final stage of developm ent of social developm ent is hum anistic-relativistic, colour coded green and m ore outwardly focused, in which societal goals are im portant.
In South Africa these perceptions were expressed in the highest echelons of the judiciary when Wessels CJ held:
In punishing them [the “natives”] we must remember that they are not civilised Europeans but kaffirs living more or less in a state of nature and they act according to their natural and inherited impulses, they do not deserve to be punished too severely as if they were civilised Europeans dwelling in a city or village. On the other hand they must learn to restrain their natural impulses and not treat life too cheaply.¹³
This mindset reflects the extent to which the world view of the colonial establishment which generously assumed the superiority of Europeans was embraced by the legal profession which also placed the Western value system at the apex of the social order. This is comparable to the New Zealand judgment of Wi Parat v Bishop of Wellington¹⁴ where the chief of the Ngati Toa community sought to regain land he had earlier ceded to the British Crown for the purposes of building a school for educating Maori children, by oral arrangement with the Lord Bishop of New Zealand. As the school was never built the indigenous community demanded that the land be returned to it. In the ensuing suit for the return of the land, Prendergast CJ found in favour of the Crown in the following terms:
On the foundation of this colony, the aborigines were found without any civil government, or any settled system of law. There is no doubt that during a series of years the British Government desired and endeavoured to recognize the independent nationality of New Zealand. But the thing neither existed nor at the time could be established. The Maori tribes were incapable of performing the duties, and therefore of assuming the rights, of a civilised community.¹⁵

The reaction of indigenous scholars to theories of non-recognition

Non-Western scholars reject the negativity directed towards Africa and her thought systems and dismiss it as the basis for the scepticism shown by colonial authorities schooled in Western perceptions of philosophies from “other” parts of the world. These scholars blame the racist conceptions that planted the seeds of inequality between Western and African cultures on European anthropological studies¹⁶ which spread negative cultural paradigms of the “other”.
African scholars have vented their frustration at being insulted by colonial policies, by pointing out the faults of Western jurisprudence and the role African law can play in improving it. Mahao draws lessons from the pre-colonial history of the Basotho Kingdom, to demonstrate that Westernisation played no role in teaching Africans the values of popular participation in governance, democratic accountability, freedom of speech, and the indivisibility of human dignity.¹⁷ According to Mahao, colonisation has stripped African jurisprudence of these indigenous values by keeping Africans imprisoned in the gaol of socio-economic disenfranchised.¹⁸ On this basis, Mahao debunks suggestions by scholars such as Keveey that African jurisprudence is unenlightened and inconsistent with the progressive values undergirding the South African Constitution.¹⁹
Nhlapo also blames Western domination for the poor status of African law and insists that the latter system indeed embodies attributes such as restorative justice the exclusion of which from the mainstream legal system has robbed South African law of such unique dispute resolution mechanisms as reconciliation which could provide an alternative to retribution.²⁰ According to Nhlapo the problem lies with the disconnect that See Roederer C “Traditional Chinese jurisprudence and its relevance to South African legal thought” in Roederer C and Moellendorf M (eds) Jurisprudence (2004) 499-531 where he refers to legal system s other than W estern as “other system s” in acknowledgem ent of their m enial role in the South African legal system .
See Nhlapo T “The judicial function of traditional leaders: A contribution to restorative justice?” (Unpublished paper presented at the Conference of the Association of Law Reform Agencies of Eastern and Southern Africa (ALRAESA) 14-17 March (2005) 2 at 17.
This view proffers two suggestions to resolve the resultant alienation, namely, such activists must acquire a deeper understanding of the extent of the distortion of African law resulting from Western domination. Secondly, they must desist from pontificating on the worthlessness of the values that Africans hold dear if they indeed wish to avoid popular apathy and to enlist participation from the adherents of African law.²²
Biakolo’s analysis of these stereotypes presented by early European anthropologists is that they associate the west with progress and Africa with stagnation; which provides justification for both Africa’s underdevelopment and Europe’s development.²³ The European anthropological researchers created notions of Western superiority in the minds of their scholars by affording the status of civilisation only to Euro-American standards and norms to the exclusion of other thought systems. Their point of departure was the art of writing and the phonetic alphabet which were regarded as indicators of social advancement.²⁴ Consequently, in colonial/apartheid jurisprudence, African law depended for its ultimate force and validity on the common law, notwithstanding that the two systems represented totally different cultural orientations.²⁵
These negative perceptions of the “other” philosophies were clearly not restricted to African philosophy,²⁶ but extended to cover Islamic philosophy,²⁷ Chinese philosophy and others.²⁸ On the basis of their otherness Western anthropologists accorded them a status comparable to that of the “step-children” of the “real” discipline, namely Western philosophy. Offering a perspective other than that of the Western life-world deprived these thought systems of the right to be termed philosophies.²⁹
For the anthropologists, the situation was that of unphilosohy rather than prephilosophy. What they claimed to have established in Africa were (1) the impossibility of philosophic dialogue and (2) an obvious non-existence of a tradition of organised philosophical systems.³¹
To the Western philosophers the concept of philosophy was synonymous with Western philosophy. On that basis, African philosophy did not merit the term philosophy, not because it was indeed not a philosophic thought system, but because it did not emphasise the essential features that defined Western philosophy.³² To justify the exclusion of indigenous philosophy from the definition of the discipline of philosophy, everything African was labelled savage or barbaric, while the European was civilised.³³
Miller, who writes from the perspective of a native American scholar, ascribes the undermining of the viewpoint of the indigenous peoples of the world to the doctrine of discovery in terms of which Europeans regarded themselves as superior to all the non-European and non-Christian native peoples outside of Europe.³⁴ According to this doctrine, the conquest of indigenous peoples by European and Christian settlers extinguished native rights to and interests in their lands and pre-empted other Europeans from further discovering that land.

Declaration
Foreword.
Summary.
Acknowledgements. 
Keywords/acronyms
Table of Contents
CHAPTER 1: Background to the Study
1.1 Introduction.
1.2 The statement of the problem
1.3 The aims and objectives of the study
1.4 Literature review
1.5 Hypothesis.
1.6 Limitations underlying the study
1.7 Research design or methodology.
1.8 Sequence of chapters
1.9 Understanding the key words for purposes of the study
1.10 Chapter conclusion
CHAPTER 2: The anatomy of African Jurisprudence: A basis for understanding African socio-legal and political cosmology
2.1 Introduction.
2.2 The family as the basic unit of communal living and solidarity.
2.3 The principle of primogeniture and the concept of family head
2.4 The concept of substitution in African law
2.5 The African family and the concept of the corporate home
2.6 The institution of marriage in African law.
2.7 Shared belonging and guardianship in African law.
2.8 The role of ritual in African culture.
2.9 Collective ownership and group solidarity in African law
2.10 Traditional leadership and governance
2.11 Chapter conclusion
CHAPTER 3: The imposition of Roman-Dutch Law as the common law of South Africa
3.1 Introduction
3.2 The imposition of Roman-Dutch law
3.3 The emergence of the English common law
3.4 The resilience of Roman-Dutch law under British rule
3.5 The survival of African law under colonial rule
3.6 Modification of African law through statutes: Emergence of the South African common law
3.7 Chapter conclusion
CHAPTER 4: The subordination of the African value system to Western moral standards
4.1 Introduction
4.2 The degradation of indigenous thought systems by Western anthropologists
4.3. The reaction of indigenous scholars to theories of non-recognition
4.4 The cleansing of African values through the repugnancy clause
4.5 How African law became a clone of the common law.
4.6 Chapter conclusion
CHAPTER 5: The role of the legislature in institutionalising the Constitutional injunction to affirm African Law
5.1 Introduction
5.2 The Recognition of Customary Marriages Act
5.3 Traditional Leadership and Governance Framework Act.
5.4 Promotion of Equality and Prevention of Unfair Discrimination Act
5.5 The Reform of Customary Law of Succession and Regulation of Related Matters Act.
5.6 Chapter conclusion
CHAPTER 6: The role of the Courts in institutionalising the Constitutional injunction to affirm African Law
6.1 Introduction
6.2 The principle that African family property belongs to the corporate home and that members are shareholders under the leadership of the head
6.3 The principle that indigenous rights must be determined in terms of African law
6.4 The principle that African custom is the source of the powers of traditional authorities
6.5 The principle that an individual always functioned within the milieu of the collective
6.6 The principle that the crux of the customary marriage is the lobolo/bogadi covenant
6.7 Chapter conclusion
CHAPTER 7: Findings, emerging challenges and recommendations
7.1 Introduction.
7.2 Summary of important findings of the study
7.3 Critical emerging challenges
7.4 The necessary recommendations towards a call for a theory of re-indigenisation
7.5 Concluding remarks on the entire study
BIBLIOGRAPHY
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RE-IMAGINING AND RE-INTERPRETING AFRICAN JURISPRUDENCE UNDER THE SOUTH AFRICAN CONSTITUTION