African Jurisprudence pdf PDF

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this talks about the african setup and take on the ubuntu and the principles concerning them as the jurisprudence is concerned...

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KWAME NKRUMAH UNIVERSITY OF SCIENCE AND TECHNOLOGY. FACULTY OF LAW

AFRICAN JURISPRUDENCE

28-Jan-17 Nyarko Tonny Acheampong

TABLE OF CONTENT 1.0.

INTRODUCTION ......................................................................................................................................... 3

1.1.

THE MYTHS SURROUNDING THE EXISTENCE OF AFRICAN HISTORY (AND BY EXTENSION, THE LEGAL

ORDER) 4 1.2.

BASIC TENETS OF WESTERN JURISPRUDENCE. ........................................................................................... 6

1.2.1. 1.2.2. 1.2.3.

THE EMERGENCE OF THE ENGLISH COMMON LAW AND EQUITY...............................................................................6 POSTULATES OF NATURAL LAW........................................................................................................................ 7 POSTULATES OF LEGAL POSITIVISM................................................................................................................. 10

1.3.

THE LEGAL SYSTEMS OF THE TRADITIONAL AFRICAN SOCIETY ................................................................ 12

1.4.

THE AFFINITY OF AFRICAN AND WESTERN JURISPRUDENCE .................................................................... 16

1.4.1. 1.4.2. 1.4.3. 1.5.

COMMON LAW AND AFRICAN CUSTOMARY LAWS..............................................................................................16 NATURAL LAW ...........................................................................................................................................18 LEGAL POSITIVISM ......................................................................................................................................20

CONCLUSION ........................................................................................................................................... 22

1.0.

INTRODUCTION

“Ghana will look to you to serve her with humility, honesty, integrity and loyalty. We do not expect you to regard yourselves as a privileged class, engaged in a selfish scramble to acquire wealth and influence. We expect you to identity yourselves fully with the people and with their hopes and aspirations, and apply your knowledge and energies fully for their welfare and progress. You must not, in your profession, limit yourselves to the law courts only. As lawyers of the new Africa, you must be ever ready to assist the ordinary men and women the farmers, the workers and the market women, in the towns and villages, in their everyday legal problems by providing sound advice, whenever they need it. You must remember at all times that law does not operate in a vacuum. Its value and significance must be related to its impact and the overall importance of the people and the state”.1 This message from Dr Kwame Nkrumah reminds us, as lawyers, judges and students of the law (Jurisprudence and Constitutional law), the value and significance of a modern legal order that illuminate the history and legal structures that existed before in our history. In a matching fashion, in Tuffuor v. Attorney-General2, court of appeal, sitting as the Supreme Court, Sowah JSC stated; “…a written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for progress. It contains within it their aspirations and their hopes for a better and fuller life… We think it is pertinent at this stage for the court to make a very brief excursion into the judicial history of this country's. Such an excursion should illuminate our path and, at the same time, act as a beacon towards the understanding of the judicial structure as it existed before the end of the decade (the emphasis is mine).3 These statements from Justice Sowah and Osagyefo Dr Kwame Nkrumah, submit the existence of a legal order from our understanding of the history, aspirations and hopes of the Africa (Ghana) that existed from the pre-colonisation era to the annexation periods; that the modern constitutional theorist, constitutions and constitutionalism perhaps must conform to. However, the existence of an African legal system may not go without distortions and myths from the Western Jurisprudence.

1

MESSAGE FROM OSAGYEFO THE PRESIDENT [1964] VOL 1 NO. 1 UGLJ 2—3. ON THE OCCASION OF THE ENROLMENT OF THE FIRST GROUP OF LAWYERS AT THE GHANA SCHOOL OF LAW —ON SATURDAY, JUNE 22, 1963 2 [1980] GLR 637—667 3 TUFFUOR v. ATTORNEY-GENERAL [1980] GLR 637—667

The African Legal Jurisprudence has been clothed in the garments of myths and distortions as an era of darkness analogous to the Annular Eclipse of the sun4. Thus, the history of the Western in Africa has created a region of “ring or an annulus of dominance” surrounding the “dark disk”5 of the African History. In spite of these falsifications, the entrenched prejudices and disingenuous conclusions about African system of law in the western literatures, Africa has had its own laws, customs, beliefs and values that resonate with the people’s aspirations. The challenge however, is to get our Constitutions, constitutional theorist, and legal interpreters to a revolution of the mindset from the colonial culture of undermining African law, to accepting the new reality that it is now an independent source of law with its own unique value system.

1.1.

THE MYTHS SURROUNDING THE EXISTENCE OF AFRICAN HISTORY (AND BY EXTENSION, THE LEGAL ORDER)

Every territory in Africa has at one time or the other been a colony, a protectorate or ward of a country in the Western world, and it is this relationship which existed between the African territories and the imperial or sponsoring countries which generated on the one hand, the patronising spirit which pretends to offer a light to lighten the gentiles on the other hand. Many western literatures have created a region of annulus of dominance, surrounding the “dark disk” of the African History. This mythical representation of African life and philosophy of society has been expressed and strongly worded in several dimensions; with the most prominent of these perversions in anthropological reports and research contained in the works of Driberg,6 Hartland7 and Paget.8 While reflecting on the African system of law, Driberg reasoned that; “Generally speaking, symbols of legal authority (i.e. police and prisons)…are completely absent, and in the circumstances would be otiose.” In a similar instance, R.T. Paget stated that; “In tribal society, law is governed not by logic but by fetish. To the tribe trial by fetish is just and trial by reason is unjust… it is futile to seek a reason in tribal justice, as it is not rational”.

4

An eclipse of the sun which occurs when the sun and the moon are exactly in line with the earth, but the apparent size of the moon is smaller than that of the sun. Hence the sun appears as very bright ring, or annulus, surrounding the dark disk of the moon. 5 I referred to this term because Trevor-Roper had remarked in one of the Western Literatures that Africans may only have some history in the future to teach but at present there is none, there is only the history of the Europeans in Africa. The rest being darkness and darkness is not the subject of history. 6 J. H. Driberg, “The African Conception of Law” (Journal of the African Society 34, 1934), 237-38 7 E. S. Hartland, Primitive Law, 1924, 5-6. 8 R. T. Paget, The Observer, July 8, 1951

Also a Professor of History of Oxford University, Trevor-Roper, remarked: “Perhaps in the future there will be some African history to teach but at present there is none. There is only the history of the Europeans in Africa. The rest is darkness and darkness is not the subject of history”. Finally, Commander Andrew H. Foote of the United States Navy also has remarked that: “If all that Negroes of all generations have ever done were to be obliterated from recollection forever the world would lose no great truth, no profitable art, no exemplary form of life. The loss of all that is African would offer no memorable deduction from anything but earth’s black catalogue of crimes”.9 According to William Idowu10 these myths centers around the various headings of; Africans Do Not Have a History or a Past; Africans have Little or No System of Laws before the Arrival of Europeans; African Jurisprudence has No Respect for Individual Rights; African Jurisprudence is Positive not Negative; There is No Such Thing as the Unity of African Law, among others. He also gave the factors Responsible for the mythic representations of African Jurisprudence attributing same to the alleged question or fact of ignorance about the ability of the African to ratiocinate and engage in conceptualising the notions of law. T.O. Elias and A. A. Allot wouldn’t let go the discussion, on his part, Elias attributes the ignorance, and the mythical colouring of African legal theory to three factors; namely, the predominance of missionaries in the field of education in Africa; the aping of western mentors by educated African elites concerning their own societies and their place in it; and the absence of political consciousness, pride of ancestry and cultural heritage on the part of the African.11 William Idolu concluded that, to be ignorant of an entity does not preclude the existence of that thing nor deny it vitality or the substance that it has.12 There are many such prejudicial assertions about the African legal history as there are many literatures on the discussions which could be committed to a whole chapter.

9

A. H. Foote, Africa and the American Flag (New York, 1854), 207 WILLIAM IDOWU African Philosophy of Law: Transcending the Boundaries between Myth and Reality 11 T. O. Elias, Government and Politics in Africa (Manchester: Manchester University Press, 1963). 12 Willian Idowu (n.9) 10

1.2.

BASIC TENETS OF WESTERN JURISPRUDENCE.

The discussions under this heading shall draw from some basic theories and postulates of the Western Jurisprudence for the purposes of showing latter in other headings, the isomorphisms or otherwise viz a viz the African Jurisprudence if any at all. The discussions is routed in other subheadings as; the emergence of the English Common Law and Equity; Postulates of Natural law; and Postulates on Legal Positivism 1.2.1. The emergence of the English common law and equity The development of the common law tradition has reflected social, economic and cultural forces. The structure, organisation, and decision-making processes involved in the English legal system were the product of a diversity of social and economic forces. But there have also been a set of cultural norms, rules and regulations which strive to create and maintain a specifically legal arena for decision-making and dispute handling. The traditional picture of the development of English law begins with the customs of Anglo-Saxon society before 1066. The daily conditions of life were rather grim and unattractive as most of England was covered by dense forests and the population was largely illiterate. Laws were local customs, largely unwritten and understood as a set of orally transmitted rules. As a body of rules, their content seems to have been directed at preventing bloodshed by recognising elementary rights to property and personal freedom and substituting compensation for the rigours of blood feud as revenge for injury. Christianity had also been introduced, and was having an impact. In 1066, the Norman French baron William defeated the Saxon King Harold at the battle of Hastings and conquered England, becoming King William I.13 Its immediate effects involved the separation of the Ecclesiastical courts (dealing with religious matters and people in religious service) a general principle of landholding and in matters of land ownerships and titles. William insisted that all land was held by his grace which still persists in the notion of ‘freehold’ as stating who had what rights to occupy and use land was a crucial task.14 The fact that a central body was endeavoring to develop law as a means of administering the country changed the character of law and the legal institutions. Over time, the king’s courts became the most important forum for the resolution of disputes between citizens. The law of the king’s judges

13

The historians Pollock and Maitland (History of English Law (1923), Vol. I, p.79) Freehold – a title to land, which means that the owner holds the land free of encumbrances. However, theoretically, the Crown still has certain rights such as its right to purchase the land under compulsory order.

14

became the Common Law as distinct from the local customs and where there was no general custom the decisions of these judges came to form new Laws.

If there was no writ to cover your precise problem, unfortunately, it was very difficult for the courts to listen to you. This created a rigid legal system and caused considerable hardship to many individual litigants. In response a practice grew of petitioning the king as the ‘fountain of justice’ for justice in the individual case. The petitions were dealt with by the chancellor, who in this period was a man of the church and who was regarded as the ‘conscience’ of the king. In due course a formal procedure for such petitions evolved, culminating in a Court of Chancery, presided over by the Lord Chancellor, applying a system of rules known as ‘equity’ rather than the common law of the ordinary courts. The Court of Chancery was often called a ‘court of conscience’ and developed a set of rules almost as precise as those of the common law. Indeed the Court of Chancery has been historically an object of great criticism.15 The history of the Court of Chancery is one of the least creditable in our legal records. Existing nominally for the promotion of liberal justice, it was for long corrupt, obstructive, and reactionary, prolonging litigation for the most unworthy motives and obstinately resisting all efforts at reform. Later there was established a unified system of courts that were charged with applying both the common law and equity.16

1.2.2. Postulates of Natural law

. The central thesis of the Natural Law theory in Western philosophical jurisprudence is that there are certain principles of human conduct, awaiting discovery by human reason, with which man made law must conform if it is to be valid. Natural Law is anchored on the supernatural. The law was either ordained or handed down by the Supreme Being and can be discernible by human reason. Natural law theory in Western philosophical jurisprudence has a history reaching back centuries B.C. Professor Andrew F. 15 16

C.K. Allen (from Law in the Making (1958), p.403). Judicature Acts 1873−1875

Uduigwomen explains that, In Western philosophy, the origin of the philosophy of Natural Law is often traced to the early Greek philosophers who made a vital contribution to it. Although some of these philosophers were influenced by mythical thought, they were, nevertheless, principally concerned with exploring the basic principle or principles governing the universe, which would explain the structure and functioning of the universe. What is unique about these philosophers is their belief and insistence that to achieve a true understanding of the universe we should not just rely on intuition and revelation but the power of human reason aided by observation17. Natural Law theory was to find its real construction and popularity with the stoic philosophers, centuries later. The stoics held the view that since reason is the supreme endowment of man; man must live according to the dictates of reason. Their idea of reason as the common possession of men led to their belief that all men are members of the same commonwealth sharing in reason, and that right reason is law. In the Medieval period, the Natural Law theory found unique expression in the views of the likes of St. Augustine and St. Thomas Aquinas. St. Augustine’s chief argument regarding law and justice was that the political state is not autonomous, and that in making laws the state does not merely express its power to legislate. The state must follow the requirements of justice. Augustine rejected the notion that justice is conventional or that it is relative, differing from each society to another.

to God. According to Augustine, “… Justice is not the product of man’s personal o wer”18. St. Thomas Aquinas equally contended that law making must not be an arbitrary act but must be done under the influence of the natural law, which is man’s participation in God’s eternal law. Positive laws must consist of particular rules derived from the general principles of Natural Law. Any positive human law that violates the Natural Law loses its character as law. It is a perversion of law and loses its binding force in the consciences of men. Aquinas argued that the lawmaker has his authority to legislate from God, the source of all authority, and to God he is responsible. As Aquinas put it, “law is dictated to men from heaven by reason, if the sovereign decrees an unjust law by violating God’s divine law, such a law, said Aquinas, “must no wise be observed”19

17

Mesembe Ita Edet, Ph.D, Samuel Temitope Segun; The Natural Law Theory in Traditional African Jurisprudential Thought Journal of Law, Policy and Globalization www.iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.26, 2014 18 Quoted in W. T. Jones, 136. 19 Jones, W. T.; The Medieval Mind. New York: HBJ Publishers, 1983

The political sovereign has his authority from God, and the purpose of his authority is to provide for the common good. Authority is never to be used as an end in itself or for selfish ends nor must the common good be interpreted in such a way that the individual is lost sight of in the collective whole. The common good must be the good of concrete persons. Thus, the end of law is to make men good. As Aquinas put it, “the proper effect of law is to lead its subjects to their proper virtue… to make those to whom it is given good” Aquinas added that, the only “true ground” of the law giver is his intention to secure “the common good.20 Finnis enumerates seven basic values which are not arrived at through reflective reasoning on facts but are self-evident to anyone of the age which include (1) life, which is the first and primary value (2) knowledge, which has to do with a preference for true beliefs over false beliefs; (3) play, which refers to performance for the sake of it; (4) aesthetic experience, which refers to the appreciation of beauty (5) sociability, which has to do with acting for the sake of one’s friend’s well-being (6) practical reasonableness, which refers to the use of one’s intelligence to order one’s life (7) religion, which refers to one’s ability to reflect on the origins of the universe, human freedom, and so on.21 From this articulation of the long history of natural law theory in Western philosophical jurisprudence one can decipher certain basic or fundamental tenets of natural law theory.22 These are as follows: (a) Natural law theory promotes the idea that there are two laws, one resting solely on human authority (positive law) and the other claiming divine or natural origin (Natural Law). (b) Natural law is supreme over man-made (positive) law and the latter for it to be valid or authentic must conform to Natural Law. (c) Natural law, as a law of reason, is self-evident and is known naturally with the development of man’s reason. (d) The obligation of the Natural Law comes from within, as part of man’s very nature as a rational being. (e) Natural law is the foundation of truth and justice. (f) The purpose of Natural Law is the common good of all mankind. (g) Natural Law is immutable, valid for all times, in all societies, and is applicable to all men ...