AFRICAN JURISPRUDENCE

It is the contention of the western scholars that before the advent of colonialism in Africa, Africa possessed no articulate concepts of law neither were there elaborate judicial processes through which justice was dispensed. In fact, the Europeans consigned Africa's pre-colonial legal systems to the category of 'palm tree justice'. It has also been argued that under the traditional African legal systems, there was no distinction between criminal acts and civil wrongs neither was there any distinction between private and public law. 

It has been noted elsewhere that ever since human beings began to set themselves up in societies, law had always played a prominent role in the regulation of the affairs of members of the community. Consequently, in any society where there is organization, there has to be a scheme of rules or a legal system. 
It is on the basis of the above that we state that Africa had her own legal systems which varied from place to place depending on the character and level of socio-economic development and the type of tasks facing the various communities. 
The first point to state is that the heterogenous nature of the African society compelled a multiplicity of forms of social relations. Notwithstanding its heterogenous nature, the traditional African society can be divided into two broad groups; the kingship/chiefly societies on the one hand and the acephalous/chiefless society on the other hand. 
The kingship society is largely integrated with a centralized authority, administrative machinery and judicial institutions while the acephalous society is less integrated in nature and bereft of a central government. The point must however be stated that the chiefly society though largely integrated was not an absolutist society because there existed checks and balances to prevent a highly authoritarian and despotic centralized authority. In the old Oyo Empire, for example, the Alaafin was expected to commit suicide where an empty calabash was presented to him. This was simply a way of impeachment signifying that his government had lost legitimacy. Thus, the exercise of political power in a chiefly society was no more democratic than that wielded by elders or age-groups of the chiefless societies. 
It is maintained by several scholars that whilst in chiefly societies, power was organized along vertical lines, corresponding to a hierarchy of wealth, privilege and status, chiefless societies maintained a diffusion of power modelled along horizontal lines. Furthermore, it is claimed that whereas the use of organized force in chiefly societies was reinforced by a centralized apparatus, government in chiefless societies rested on bonds of lineage and kingship within the clan and other social groups. It has also been suggested that unlike the chiefly society where the exercise of judicial power was territorially delimited, that of a chiefless society was based primarily on the attainment of a special rank, age or status within the social unit. 
We must also state that it was not the possession of sheer force alone that secured compliance with the commands of the government. More important were the myths, dogmas and belief in ancestral spirits which formed the backdrop to traditional African societies and thereby ensured compliance with social norms. 
As regards the contention that African societies had no formalized methods of dispute settlement, we must note that this is not entirely true. In the traditional African society, the judicial system is reconciliatory rather than adjudicatory or adversarial as we would find in the western world. In fact, the reconciliatory system was copied by the westerners without acknowledgement in the guise of Alternate Dispute Resolution (ADR). For example, under the African legal system, the issue of divorce is almost unheard of. This is in line with the fact that marriage is between families and not just the couples. Thus, divorce was only permissible upon irretrievable breakdown of marriage. 
We must also point out that some of the principles of law under the western legal system are not entirely novel to the African legal system. For example, there is a saying in Yoruba that 'it is only a wicked elder that won't hear from the other party'. Evidently, this is akin to the audi alteram partem rule which is one of the pillars of natural justice. Also, though there existed no lawyers under the African legal system, this role was performed by intercessors (mediators and linguists) although without earning a living from it. 
As regards the view that the traditional African legal systems did not possess a distinction of criminal acts from civil wrongs or public from private law,it should be emphasized that whilst these distinctions might not be clear-cut in all instances, this was not a phenomenon peculiar to traditional Africa. This so called complex systems of the industrialized world are still hard put to determine where a civil wrong ends and crime begins. 
From this brief survey, it is seen that pre-colonial Africa indeed possessed legal systems. If there were any differences at all between the legal systems existing in Africa before the coming of the colonizers and those in the so called industrialized societies, such differences were more of degree than of kind. 
Ultimately, we would like to consider the influence of colonialism on the African legal system. Simply put, the influence of westerners has made Africans relegate their custom in the belief that the white man's custom is superior. We have become victims of westernization all in the name of modernity. A clear example that comes to mind is the wholesale import of foreign laws into our legal system without any consideration for our custom and history. See for example the bigamy laws of the various states in Nigeria. It is the submission of this writer that these laws are not in tandem with the custom and history of our people. Indeed, the standards the colonizers imposed on us were western with a view to make us think and behave like them.  
In the words of the revered Professor Akin Oyebode:
"The possession of laws and justice delivery systems represents the hallmark of human civilization and to arrogate this characteristic to any one race whilst denying it to others is an act of intellectual fraud and an incurable bigotry which can no longer stand up to close scrutiny and vigorous analysis".

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