1 Approaching Legal Pluralism
The legal systems of African states have, over time, become infernal machines whose sole purpose seems to be to prove the litigant wrong.1 This is largely due to the presence of a strong, unregulated, legal pluralism.
Bibliography on legal pluralism is extensive. It shows that legal pluralism itself could easily be the object of a monography to discuss all different positions and facets of this phenomenon. Since this is not the objective of the present work, here only its fundamental elements, necessary to illustrate the main components of the African legal context will be recalled.
The concept of legal pluralism, understood precisely as the coexistence of two or more normative orders within the same social context (or, if preferred, legal system), moves from the contraposition between state and non-state laws, and this both in the more rigid conception, where it is the state law that determines the limits within which legal pluralism can exist (weak legal pluralism), and in the more dynamic approach, in which the state is only one of the elements that give rise to a situation of legal pluralism (deep legal pluralism).2
Legal pluralism is the legal aspect of the general cultural fragmentation which is a fundamental characteristic of the African states.3 Such elementary truth has been difficult to grasp for the Western jurist bound by the legacies of the colonial administration perspective, for which an ethnic group controls a territory and a given territory can only be at the origin monoethnic. Consequently, being ethnicity – as a cultural unit – and the territory – as a political unit – considered by the Europeans two aspects of the same reality, traditional law was considered ethnic by the colonial administration.
The situation of legal pluralism is even more complicated than its usual perception since local authorities, pre-colonial chiefdoms, chiefdoms of colonial origin and administrations of the independent state nowadays compete to apply rules that have become competing: state norms (“modern” law) impossible to apply as they are outside of reality, traditional rules “revised and corrected” by the “traditional chiefdom”, jurisprudential interpretations, and even arbitrary decisions by despotic officials that distort – or are even contrary to – the official state law.5
Definitely, official law applies, whether it is unrepealed colonial law or independent state law. However, this official state law often reserves surprises: insofar as it is known to the authorities responsible for applying it, it is not the same for most of the population (official journals are not published regularly, do not always arrive “in the bush”, and are not always read with due attention); furthermore, it is not uncommon for such law to contain contradictory provisions.
Legal positivism brought with it the tendency for uniform rules, influenced codification of traditional laws, and encouraged state judges to put aside traditional laws in the name of the need for predetermined rules. The flexibility of rules was interpreted as a sign of the primitive nature of African rules. In the process of incorporating informal laws in the official legal systems, courts do not apply informal law, they interpret it. The party who convinces the judge that his interpretation is correct, wins the case. This obviously leads to a distortion of the informal rules.
First, it shall be determined if state law is a necessary element in a situation of legal pluralism. It is usually assumed that legal pluralism is characterized by the autonomous and simultaneous application of a state and at least one non-state legal system in the same territorial space.6 However, the African experience suggests that a negative answer to the question is possible. Somalia has been a failed state for over twenty years, without a legislative body, without a judicial authority that applied any state law. Therefore, in practice Somalia had no state law. Yet, the law has lived. Xeer (traditional law) and sharia existed and applied. For example, contracts concerning mobile phone and internet services were made using Emirati or other foreign models, and the rate of unpaid bills has been the lowest in the world since the collection of credit was based on the extended liability of the family unit which does not intend to endanger its reputation and prefers to pay and then solve the problem internally.7 Companies were established in Dubai, and then functioned in Somalia according to the law of the Emirates adapted “de facto” to the Somali context, and disputes were resolved locally without resorting to the court of the Emirates.8 It has even been observed that the Somali people can very well govern themselves without the existence of a central state, and that, indeed, it would be better if a central state does not exist, having been the ruin of the Somali people.9
But the example is not isolated. Countries such as Central African Republic, Sierra Leone and Liberia have been in the same situation, albeit for much shorter periods and were not comparable with the Somali experience, but their experiences remain significant.10
In general, it can be observed that law was born before the state and lived for a long time without needing a legislator or legal professionals. These are typical of the Western legal development, considering that the figure of the jurist was born in Rome and Africa did not have a jurist (and a technical legal language) before getting in touch with the Western world.11
With a slight forcing, it could even be said that there is no law as such, that is, as an autonomous and imposed instrument of regulation of community life, but law is itself in the daily regulation of community life. It does not express itself with norms, rules, commands, but through proverbs, idioms, daily practices, which people shape according to circumstances, since it needs to achieve the best possible result in a specific historical moment.
Secondly, legal pluralism cannot be limited to the mere contraposition between state law and traditional (or “customary”) law, but it must be assessed considering all the components present in the African “lawscape”, as described in the previous chapter and to which reference is made. This is because the reception of Western laws has only increased the complexity of legal pluralism already present in the African countries.12
Following colonization, the European model of the legalist state with its official and positive law clashed with the spontaneous and informal law of the local populations. Consequently, the vision of the state claiming the monopoly in the creation of law clashed with the existence of informal and unrecognized normative orders based on tradition (and having also links with the supernatural) or on religion. The static and formal state-made law was opposed to a dynamic and informal normative system of local origin, and this created the
The result has been the resistance of the local informal normative systems to the Western made law. All attempts to relegate the former to a residual level failed, while – on the contrary – it has been able to find several spaces for its application as an alternative to the official law. Different are the examples where the legislator succumbed and had to recognize the operation of informal laws,14 and many are the examples where disputes are caused by the lack of success of the state law in integrating basic legal concepts present in the legal cultures of ethnic groups.15
Most of the Western scholars tend to consider the characteristics of Western law as universally necessary to have law, and when the normative systems present in non-Western countries do not present such characteristics, they immediately brand them as legally inadequate. This is also because, from the Western perspective, a country must have only one law that shall be in force, and that law must be observed by all. If some people do not observe it, this is considered as an “anarchical” refusal of the law that shall be combatted, rather than the option for a different normative system.16
Certainly, the idea that the law present in a given territorial space is positive, predetermined, imposed on the members of the community and uniquely produced by the state, which has the monopoly of the law-making process, does not work in Africa. As John Griffiths observed explaining the concept of legal pluralism, “[l]egal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion”.17 In Africa, a network of informal (due to not being produced by the state and not formalized in tangible instruments) laws exists, and
Recognizing legal pluralism means excluding a representation of the legal universe where each person is subject only to one normative system because it belongs only to a state with its own legal system. The individual actually belongs to a number of different social entities and is (at least) potentially subject to different normative orders.19
The next step could (and should) be the one where the conflictual relationship between the various normative orders is changed into a collaborative relationship, so that they can complement or, in any case at least not compete with, each other.20 As observed by Peter Onyango, “[t]he diversity found in African traditions and cultural values should be seen as an asset rather than a liability for future legal development. Borrowed legal frameworks might not work well for Africa in so far as law reform is concerned”.21 Is it therefore possible to hypothesize a cooperation between the different normative orders? It could be objected that collaboration is not in fact possible, because the application of one normative order necessarily excludes the application of the others. But this is not necessarily true.
Article 4 of the Mozambican Constitution – entitled, precisely, legal pluralism – has by now become famous among scholars as one of the most significant examples of the path to formal recognition of legal pluralism,22 even if the State continues to keep the task of determining the extent to which the
The living law suggests us, however, examples that can indicate what could be the right direction.
In South Africa the constitutional judge introduced into the system the traditional concept of ubuntu (Zulu and Xhosa word that expresses the link between the individual and the community, for the translation of which it is necessary to refer to the expression umuntu ngumuntu ngabanta in Zulu or umntu ngumntu ngabanye in Xhosa, translatable with: “a person is a person only through the community”) as a principle that must guide the formation and application of South African law as a fundamental value of society, although there is no trace of it in the constitutional text.24
As mentioned in the previous chapter, a Mozambican district court judge, interviewed about the resolution of family disputes (which fall within the jurisdiction of these courts of first instance), stated that these types of conflicts “should not be dealt with by a judge, but must be resolved ‘within the family or in the neighborhood’”.25 In the same direction, the South African High Court
In Somaliland, the elders often ask the ordinary judge to resolve disputes directly, and the judges themselves favor this out-of-court settlement based on the consent of the parties. In the civil sector this can occur at any level of the judgment, and the trick applied by the judge is the use, depending on the level of the judgment, of Articles 117 and 239 of the Somali Code of Civil Procedure. According to the cited Articles, borrowed from the correspondent Italian code, the judge can invite the parties to find an out-of-court settlement for the dispute; the interpretation given to these articles has always been in the sense of allowing the parties to find a solution to the dispute by applying rules and methods of traditional law. Here it is not the judge who applies traditional law: he limits himself to acknowledging the settlement of the dispute in application of traditional law by the authorities competent in the matter. The parties register the agreement reached with the official judge for the mere purpose of closing the file, being the same execution of the agreement left to the mechanisms provided for by traditional law. The same phenomenon also occurs in the penal sector. Here the judges consider this dispute resolution method an application of the principle of Islamic law according to which the offended person (or his heirs) have the right to choose whether the perpetrator of the unlawful act should be punished personally, or if the matter should be resolved through the intervention of the qadi (which is nothing but the traditional authority) and the payment of the diya, and then through compensation. In this case, the judge accepts the extrajudicial decision taken by the elders (who play the role of qadi), possibly imposing a symbolic penalty which represents the punishment of that part of the crime consisting in the offense against the State.27
One of the pillars of the peace and reconciliation process in Rwanda after the 1994 genocide has been resorting to the gacaca traditional dispute settlement system to solve most of the criminal cases connected to the
Similarly, the 2000 Arusha peace and reconciliation agreement for Burundi expressly resorted to traditional cultural values (ibanga, ubupfasoni and ubuntu) and a traditional dispute resolution system (ubushingantahe) to restore and maintain peace in the country.31
These examples just mentioned are a few cases showing how a hypothetical collaboration can occur. Probably, African cities could be the vehicle that will allow this dialogue to continue, but research shall be conducted in this respect. Informal normative orders produced in urban contexts represent a sort of hybrid jurisdiction made up of tradition, religion and modernity in
Such hypothetical cooperation would bring the jurist to frame the informal normativity in the ambit of the sources of law. Here, a possibility that has been put forward is to resort to the general principles of law, them being “convenient for designating ideals that jurists stick to in order to identify human aspects of common value to peoples”.32 Intended in a wide sense, as general principles of the legal culture of a given society, even if not arising from a written law, the concept could serve to also contemplate the elements of the African legal culture when considering a given legal system.33 This, however, always bearing in mind that the so-called “general principles of law” are variable and the related category subject to interpretation (they can be general or particular, universal or local),34 and – more importantly – that the interest of distinguishing, identifying, and hierarchizing the sources of law is a mere scholarly interest arising from the use of the Western approach to law.
In general, cooperation moves from recognizing and validating non-Western forms of normativity as legitimate, both by affirming the peculiarity of their being legal and the difficulty, or even the impossibility, of translating them into terms of Western law, since such non-Western forms of normativity and the state are not necessarily talking about the same thing when they talk about “law”. Should this legitimation really occur, all these forms of normativity could work together and complete each other whenever necessary. This would also give the possibility to abandon once and for all the idea that law is practiced only in social contexts functioning through the Western model: law exists in all societies and specific cultural values for which the applied normative system serves as a means of support are present at each level of social organization.
It is therefore an issue of managing legal pluralism, that is taking charge of the consequences for the system considered of the existence of one or more normative systems applying in the same territory, to the same persons, in
2 The African Vision of Law
It is important to highlight the specific features of the African conception of law to show the difficulty that Western jurists have in understanding it, and to corroborate the fact that presuming that the Western methods of legal analysis are the only ones possible is a misconception.
2.1 The Rule
Western legal development brought to conceive the rule as an instrument of social control to be used strictly and rigidly. The norm becomes a rule when it is applied to every situation falling within its terms.36
Writing is one of the forms of language a community may use to communicate. However, the same can opt for a different form deemed better suited to making the content of the communication accessible to all.
The rule was born mute. The first man and his descendants were mute for a long time, they expressed themselves with sounds and gestures, there was no articulated language. Yet, there were rules that guided their behavior (a person did not enter the cave occupied by someone else because the latter would probably have chased him away with a club). Many activities took place in a silent form but implied very specific binding social practices (e.g. hunters who divide the prey as silent execution of the partnership agreement). These binding social practices not expressed linguistically, therefore deprived of articulated language, were mute law. Verbalization came later, when the silent norm was discovered and verbalized by the interpreter.37
African societies are dominated by traditions where orality and symbolism are among the main elements. A sign, a sound, a tone, a gesture, a silence, a figure, a symbol, all may represent a language for the Africans. Often, a simple exchange of an object silently conveys the rule.38
Law is born within the social group and is based on the willingness of those who founded the group: the ancestors. As mentioned above, rules originate from a large, and sometimes complicated, set of principles set out by the ancestors to whom the chiefs do not hesitate to resort.43 Rules are not written down but are considered to be recorded in the collective memory and knowledge of the members of the society concerned: to be applied, the rules must be known and the principles behind them lasting and reliable enough. Thus, they are repeated in any suitable occasion to keep the information alive, only the appropriate people (generally the elders) in the appropriate places (during trials or group meetings) can speak about the law, rules are expressed using precise stylistic tools which help to aid memory; the language tends to be easy and conversational with short sentences, a straightforward vocabulary, and the elements necessary to connect the message with the social context.44
So, in every African society the attention is made on tradition, morality and religion as sources of laws; legal rules exist because they are rooted in the practices of the ancestors, or because they consecrate principles of universal morality prescribing the correct human behaviors, or because they have been
It has been already described (see Chapter 1, Section 3.2) how rules are contained in a series of instruments (proverbs, tales, expressions of the common language, maxims, legends, myths) that – from generation to generation – became and are considered a heritage transmitted traditionally and linked to the community who is its owner and depository. They contain the rules of conduct of the community and express its culture: it is a cultural model vivified by the perennial word of the ancestors, holders of every wisdom, and there is no alternative other than aligning one’s behavior to it.46 The members of the community have natural access to these sources and have no difficulty in interpreting them, since they can be understood only by referring to historical events, or to specific persons, or by knowing exactly the culture and manners of people and animals, since flora and fauna, as well as the physical environment, social, family, and political structures, contribute to their creation.47 This illustrates the high importance associated to the memories of physical objects or topographical elements: rights to land might be identified by trees, streams, hills, rocks, gullies or the location of graves; the presence of livestock as marriage compensation may indicate that the marriage has been celebrated; the position of the wife’s house in a homestead is a sign of her status within the family.48
Proverbs are precious to understand rules and social behaviors.49 They embody the wisdom of the ancestors and, consequently, they represent an authority that is not challenged within the community; therefore, people
Alongside the proverbs we find the set of lived experiences and traditional practices that are sung or recited, and their scenic interpretation becomes as important as the content of the tale itself. A story, a legend, a myth, a fable, they all contain elements of law beyond their literary profile. Together, they lead back to a network of relationships in which several subjects take part each according to the order of their nature, function, and genre. They highlight the origins and foundation of different kinds of social behavior. This is the reason why many proverbs are introduced by a summary of the facts or experiences from which they have been generated, to let the addressees understand the fundamental message it vehiculates.55 This explains why the use of the original language is very important and the translations very often do not render the sense of the message, even if the plurality and diversity of African languages in
Indeed, as Allot observed, “[i]n the very small society (e.g., Bushmen), there appears to be no overt machinery for the formulation of normative rules of behavior; there is no legislature and no judiciary. In so far as there are expectations about behavior, these derive from custom, supernatural beliefs, or ad hoc agreement, promise, or threat. In the larger acephalous society (e.g., the Kikuyu), legislation exists but is of minor importance; while adjudication is found, specialization of function is at a relatively rudimentary stage: there are experts in adjudication rather than judges. Most of the normative rules of behavior still derive from custom and belief. In the chiefly society (e.g., the Ashanti), there is usually formal machinery by which laws can be made, though these must supplement, rather than replace, the bulk of the laws of customary origin. Equally there is specialization of function in regard to adjudication, indeed, the judge’s function, apart from settling the case before him, is often jus dicere, to state or restate the law for public instruction”.56
Then, when the group develops well-structured and institutionalized practices the decisions of the traditional authorities become rules which are solemnly and publicly declaimed to orient social behaviors, to create new institutions or to confirm already existing facts which were not considered obligatory. Then the rule is integrated in the group practice and is transmitted verbally to the future generations.57
Therefore, there is no need for the written instrument to pronounce and communicate the rule, since all members of the group know it because it belongs to their cultural heritage.58 This is the reason why “the chances are that the man in the street and the judge would do about as well in solving the problem and indicating what rules were involved in the solution”.59 No writing means that law is absent in the Western sense, even though any member of the community can easily understand what the consequences of any behavior are from his store of knowledge.
As Paul Bohannan wrote in his study about the Tiv, “The Tiv may not have codified law but […] they all know what is right. The essence and purpose of
As a consequence, it can be agreed on the fact that generally speaking the rules of traditional law were formulated less straightforwardly than they are in the Western systems, but this does not mean that there were no rules at all.62
Hence, there is no case law, being the rule in everyday life. Whoever is called to settle a dispute (being a village head, elder, judge) is not bound by a rigid apparatus of pre-established concepts, and can, consequently, shape the rule with reference to the case that he is called to decide without departing from a pre-determined norm. The result is the “saying” (what is at that moment) of the norm without being forced by any previous rigid rule in a technical sense or by a former precedent.63 The judicial authority, thus, updates (with reference to both the factual and the temporal context) the traditional legal principle and, in saying the law, renders justice.
In the end, as Gluckman observes about the Barotse, “Though the setting of African law might be exotic, its problems were those which are common to all systems of jurisprudence [ .]. Barotse courts are dominated by ideas of justice and equity. These ideas influence their total evaluation of evidence [ .] the Barotse believe that justice in this sense is self-evident to all men, and they call their principles within this justice, laws of God, or laws of human kind. That is the Barotse have a clear idea of natural justice, which they constantly apply. They apply natural justice, of course, within particular economic and social conditions [ .] but it is natural justice. And natural justice involves for them,
2.2 The Individual and the Community
Western society is based on the supremacy of the individual over the community. Consequently, the individual is the center of the legal universe: the law is constructed through rights and obligations that the individual has towards other individuals considered uti singuli or collectively.
In Africa the situation is the opposite. The individual is not considered alone, but as a member of his community, being it a family, a clan, a lineage, an ethnicity (concept summarized, in the African cultures, in ideas like that of ubuntu). The strict dependence of the African people life on its belonging to the group goes hand in hand with the fact that the bonds within the group are, and always remain, very strong.65 Each member of the group is considered in relation to the common ancestor and to the elder from which he descends, and the respective rights and obligations are determined with reference to the common ancestor.
A semantic clarification is necessary at this point. The Western use of the term “community” refers to a temporarily aggregated sum of individuals with their own interests, who get together for the sole purpose of reaching a specific objective that otherwise they could not accomplish by themselves. In Africa, the same term is related to a group of people having a common descent whose objective is to conduct a common life in view of their survival, that is the first and the main objective of the group. However, African law’s emphasis on community and social cohesion is not at the expense of the rights of individuals within each community. The general idea that the foundation for the operation of African law stays in the interest of the community and not on individualism is not totally true: there is a wide and general recognition of the individuals as well as of the community rights, since within the group “individuals are free and independent, but their rights and interests are subordinate to those of the community as an entity”.66
The individual alone cannot effectively face all challenges presented to him by society and the natural environment. He needs support, and this support may come only by those who face the same challenges: the group members. Accordingly, emphasis is made on the promotion of harmony and cooperation within the group. The importance of the group cooperation is testified by the extensive use of terms like “brother”, “sister” and “we/us” with blood relatives as well as with non-blood relatives, since the first two terms imply a high degree of closeness and intimacy, while the latter connotes kinship.68
Cooperation is also necessary to ensure the survival of the group, and all individualistic behaviors that may endanger the continuation of the group are forbidden. Thus, solidarity is essential in African societies to face all challenges coming from the natural environment and other groups, and social peacekeeping becomes a priority aim to ensure the group’s survival. Thus, social peace and system balance become essential values that are necessary to preserve. As a consequence, changes are considered a potential source of new unknown tensions, and are therefore made with extreme caution to avoid breaking the existing peace and harmony in the group and to reduce social tensions as much as possible.69
The abovementioned concept of ubuntu70 effectively explains how existence of the individual is senseless if not inserted in that of the community, because if the individual can survive only within the group, only collective effort can secure the survival of the group. As Justice Yvonne Mokgoro noted, “The meaning of the concept, however, becomes much clearer when its social value is highlighted. Group solidarity, conformity, compassion, respect, human dignity, humanistic orientation and collective unity have, among others been defined as key social values of ubuntu. Because of the expansive nature of the concept, its social value will always depend on the approach and the purpose
Affirming the prevalence of the community on the individuals bears with it a series of consequences. The community interests are predominant and primary loyalty is to it, while individual rights are secondary. Harmony and cooperation can only be truly achieved by waiving some personal liberties. Obviously, anyone may decide to be totally free by living out of the community and taking care of himself, but his survival would be more difficult. Increasing the possibility to survive is the reason why people prefer to live in communities, undertaking the mutual obligation of securing the continuity of the group.72
The limits within which the individual may exercise his freedom are set by the cultural norms and religious practices of the community, which are influenced by the need to maintain harmony among the cosmic forces and the members, as well as to comply with the behavioral norms prescribed by the ancestors and the supernatural forces. These norms are referred to the past, being connected to the ancestors’ practices. This is the reason why overruling them requires their consent. Such boundaries and the consequent ambit of freedom are different among every group, but the centrality of the community interest is always present. The individual in the African society “develops the sense of duty and obligation to live and work for the whole”:73 an example is what are called “communal labor activities”, which occur when the members of the community gather to realize something in the interest of the community. This because all members have certain duties towards the community, which expects their fuflfilment from its members in return for the services rendered to them (like defense and survival).74
The fact that rules are well known by all members of the community, even in absence of written forms of law, promotes the communal feeling and sense of belonging, so that anyone willing to violate the rules is often overseen and warned by the other members of that social group.75
2.3 The Role of Supernatural in the African Legal Culture
From the very beginning of their existence, human beings have come into contact with the supernatural.
Since the homo sapiens began making rock engravings and paintings, he has represented scenes relating to supernatural elements. These representations were made in the caves both to preserve them, so that supernatural forces could enter there and see at any time the respect paid to them by living humans, and also to avoid that those who did not belong to the group could have access to them. This is because atmospheric phenomena, natural phenomena (earthquakes, volcanic eruptions, seaquakes and similar), events like droughts and famines, were all elements that were connected with the action of supernatural forces. Through the use of figurative art, we therefore have knowledge of how the supernatural was, from the very beginning, very present and inserted in human life.
Rituals secure the link between humans and supernatural forces. Rituals are all ceremonies and symbols such as the processes of accession to power, funeral rites, rites linked to the birth of sovereigns or of a human being in general, cults, objects and animals linked to the exercise of power, to the history or to the life of the (African) communities. Prescribed rituals shall be made in order to invoke the deities, who produce immediate effects in the material world if such rituals are correctly performed.77 In this profusion and proliferation of factors and rites with infinitely varied forms, legal consequences, or – in other words – legal elements can be discerned. And such legal implications are so deep that many scholars have deducted that supernatural authority and sanctions are among the reasons that justify why law is obeyed
In Africa, rites assume high significance,80 and that significance may also be legal.81 By sitting on the throne, for example, the chief or the king accumulates on him the ancestral and royal powers of his predecessors that are handed down through that throne, thus legitimizing his power. There is a reality of totemism on which depends the belief in ethnic values, their representation and identity whose image is linked to a name either of an animal, or of a plant or of an object recalling the usages and traditions of the group. It is worth recalling the taboos, and therefore the prohibitions applied, group by group, as norms. Prohibitions have a sense of presage among Africans: they attach convincing facts to them, facts against which amulets are used for defense.82
Having a strong link with the supernatural is considered a way to safeguard the community’s survival. As mentioned in the previous Section 2.2, people need further power to face the challenges arising within the society or from the natural environment, and such power may come from different sources, including the ancestors, magic, and even witchcraft. Ritual leaders get their induction and legitimacy directly from what people consider “traditional” sources, that is the ancestral spirits.83 Then, the entire community will join them both for their link with the supernatural, and because they fear and respect them for such power.
Resorting to the supernatural might be understood as a social service delivery mechanism, since people with problems, including legal issues, go to priests to seek aid. In legal matters, recourse to the supernatural is made when the legal system does not offer solutions, is unresponsive, or might cause further problems: one of the complaints made to the use of official law is that it
This because the same idea of justice has different connotations, since it cannot be deducted from merely rules or books, but it is rooted in something exclusively African that is impossible to define. As Howman observes in commenting a case of prosecution of the crime of witchcraft under the Rhodesia Witchcraft Suppression Act of 1899 (Chapter 73), “It was so clear that Prosecutor’s case had been built up by long and tedious enquiry, innumerable questions, but it was a European mind that was directing the enquiry, asking leading questions, striving to mould the misty world of African magic and belief about which he knew little or nothing into something solid and legally presentable to court”.85
In general, the encounter between law and sorcery is not new at all. In Africa it dates back to colonization, and colonial legislation has been particularly hostile to sorcery and magic in general. The negative reaction of official law (based on the Western pattern) against sorcery is easily understandable. The Western jurist has difficulty in reconciling law, a science based on rigorousness and method, with sorcery that – by its nature – escapes from rationality.86
In the existing links between supernatural, magic and the law there is probably the widest gap between the Western and the African idea of legality, as witnessed by the following Gabonese case. On April 22, 1964, the Criminal Court of Boué (Gabon) acquitted Mr. Etienne Biyeke from the charge of manslaughter of Mr. Joseph Akoué.87 The Court ascertained that, when Biyeke shot Akoué, the latter had the appearance of a chimpanzee; only after being mortally wounded, had he reassumed the human appearance. With his remaining strength, Akoué also run about a kilometer in the forest, where he met Mrs. Elisabeth Eloumé, in front of whom he then definitively collapsed to the ground, without, however, uttering a word. According to the Tribunal, Biyeke, an old chimpanzee fighter and soldier, rich in merit and decoration, would have had no reason to shoot a man against whom he had no resentment; the shot could only have been motivated by the fact that Akoué, at that
From the supernatural to magic and, finally, to witchcraft, the step is short.
Some anthropologists elaborated a distinction between witches and sorcerers. According to Evans-Pritchard, the former can injure other people just using their powers without performing rites or using medicines or other products, while the latter causes damage to the others by performing magic rites using bad medicines.89 Such distinction has been criticized because it is based purely on the means used for the activity, being the ultimate goal always the same: that of harming or injuring people and/or their property using supernatural powers.90
Witchcraft has always been part of life in African societies, and is manifested in different forms, according to region, religion, or ethnic affiliation. However, some essential common elements are present. Thus, belief in witchcraft as such is generally not gender-specific, and all over Africa the belief in occult forces is very common at different individual levels of education and various religious confessions.91
Witchcraft is normally intended to include sorcery, enchantment, bewitching, the use of instruments of witchcraft, the purported exercise of any occult power and the purported possession of any occult knowledge,93 it is a supernatural power. There is not a universally accepted definition of witchcraft and the legislations where the issue is regulated do not say what witchcraft is, being often very confusing in trying to identify it.94
The belief in witchcraft throughout Africa has been used to explain events which are inexplicable, as well as those that – for a westerner – are not necessarily inexplicable.95 While for the latter witchcraft is something folkloristic, when not ridiculous, the African expects to come across witchcraft at any time of the day or night, and he would be surprised if he is not brought into daily contact with it.96 The difference lies in the fact that, in the Western perspective, the question of “how” is the most important, since scientifical analysis is based on “how”, and answering to this question can be enough, while in the African perspective the answer to the question “why” is essential. Consequently, a westerner can be satisfied by the answer to the question “How did this happened?”, while an African needs an answer to the further question “Why has this happened to me?”.97 See the following example: “we went to a witchdoctor to find out from him what had caused the death of Levi. We knew a snake had bitten him, but according to our customs […] we had to find out
The intervention of witchcraft is not simply invoked for the occurrence of extraordinary unfortunate events themselves, but rather for those disturbing elements present in the community where these events happened. The presence of a witch is normally considered one of those disturbing elements since he (or she) contravenes the norms and usages of the community.99 The witch is a highly ambiguous figure, as this person deals both with the natural and supernatural realms. The witch is both a human being, having a physical body, and, at the same time, also a “superhuman” who is able to manage both natural and supernatural forces for evil.100 Such forces are considered stronger than the same witches’ own volition, who could therefore threaten other people despite their good intentions or unwillingness to do so.
Then, the occurrence of an extraordinary unfortunate event,101 together with the presence of a person whose influence can be negative for the community may lead people to ascribe the liability for such event to a witch instead of other reasons.102 If the criteria indicating the intervention of a witch are met, ascribing the liability to a witch gives a satisfactory answer to the question “why me?” (and also to the question “how?” whenever an explanation for the event cannot be found) and is an attractive solution since it eliminates any possible sufferer’s complicity in the occurrence of the event and serves to give a psychological release to the members of the community.
Witches are considered with loathing by the communities, since they embody all that is evil. They can cause death, injury, madness, deformity or
In their quest for development and modernity,107 African states fought against witchcraft by enacting legislations where – inter alia – belief in witchcraft is not accepted as defense against criminal charges,108 and accusing a person of practicing witchcraft or claiming knowledge of witchcraft, or killing
This is also because witchcraft is lucrative, since there are people who pay large sums of money to witches so that they may inflict pain or death on other people, and the extreme poverty faced by many people will always bring them to use the relatively cheaper services of the witch to accomplish certain obligations, which would otherwise be too expensive to fulfil.112
Definitely, as Reynolds observed, witchcraft shall be treated like religious belief that “[ .] may not be eradicated by the stroke of the pen or fortuitous prosecutions [ .] the cure, if this is appropriate expression, is the removal of ignorance by introducing a scientific view of the world through educating the masses”.113
2.4 The Concept of Time and Its Consequences on Law
The West has developed its own concept of time based on counting seconds, minutes, hours, days, years, etc. This time count was exported until it became universal. Despite this universality, the concept of time experiences some significant variations.114
In the Western legal model, the passage of time produces legal consequences, like prescription, limitation of actions, forfeiture. But time as calculated in Western culture is alien to other non-Western cultures. In Africa, the parameters used to calculate the time are based on the economic and religious practices of the group and can be most diverse: the lunar cycles, the sowing period, the lapse between one harvest and another, the market cycles etc. All these time calculations are very local, limited to the concerned area and accessible to those who are part of the group and know the territory, and cannot be extended to those who are not part of the group or do not belong to the territory.115
Time regulates the succession of obligations with regard to the sacred and goes hand in hand with the sequence of rites and observances. As opposed to the more or less quantified time that the West knows with its classifications of time, African time is of a qualitative nature.116
The ways to calculate time, very variable from one culture to another, are however always used to order events in a “before-after” direction; they also evaluate “before” versus “after”, and always prefer the time of before to the current or the future times. The time calculations indicated before are repetitive and look to the past, being based on the memory of the people and on reference points that move from events occurred.117 All this explains why it has been upheld that the African thought simply ignores the notion of future. The future does not exist because the events that constitute it have not been experienced and are not part of the lived life.118 Such approach to time is reflected in many African languages where the future tense simply does not exist.
This attitude leads African societies to develop activities and ceremonies capable of denying the passage of time, based on the magical principle that the symbolic reconstitution of events can recreate them and erase the time that has passed since the original period when they appeared.119
3 Democracy, Power and Governance
African systems of government cannot be considered in any meaningful sense as uniform. Different African societies can be placed somewhere along the variety of political organizations, the two extremes of which might be represented by very simple chiefless societies (like the Pygmees) at one end and the more structured centralized societies (like the Ashanti) at the other end. Nevertheless, even if there are clear dangers in generalization, a substratum of common features can be discovered by research and analysis.120
Traditional leadership existed in Africa before the colonial times. The colonial governments had different approaches in their recognition of traditional leadership, but they all considered it a central element in the governance of traditional communities and with reference to traditional law. On the contrary, traditional leadership was not necessarily a central element with reference to governance and law.121
African traditional systems are inherently democratic, but in a way different from that of the Western systems. In Africa, every point is discussed in a spirit of consensus and reconciliation, since the role which all African legal systems play is essentially reconciliatory.122
It has to be observed that in Africa it is not the principle of majority, but that of unanimity – where victorious and opposing opinions are not distinguished – that is worthwhile, because in Africa the idea of unanimity implies the consideration of all the points of view present. The same concept of an opposition, intended as an organized entity or party aiming at substituting itself to the existing governing entity or party, is completely unknown.123 The African understands the idea of coming together to make a decision but cannot imagine that the person who went to a meeting to express his opinion may then be subject to a different solution, supported by a majority to which
Sub-Saharan Africa is one of those areas where the attempt to export the Western model of democracy is stronger and where there are equally strong resistances and frequent failures. The denial of the existing local normative orders was the context in which the westerner viewed the rule of law in Africa during colonial rule and especially near decolonization. This erroneous point of view was partially fueled by another erroneous assumption, that pre-colonial Africa was fundamentally without law, and that the so-called African “customary” law was a sort of unnecessary appurtenance of the African state.125 Despite the fact that at the end of the colonial period, when African territories were preparing to independence, the impossibility of transplanting sic et simpliciter the Western model was underlined,126 the State, constitutionalism and the rule of law have been originally imposed from above, so that they have been perceived by the African people as a heritage of foreign and colonial institutions.127
Despite the fact that the rule of law does not necessarily imply the presence of democracy,128 a few words should be said in this respect. Observing the
The reasons are many.
A first observation concerns the same foundation of power. Social aggregations are born headless, and the political sphere is confined to the family where the foundations of power can be traced.129 The same use of the term seniority instead of that of authority or power is more correct, because seniority, being the privileged status of the eldest over the younger, is the major criterion of the capacity to exercise power; in a word, seniority is the concrete expression of hierarchies. As such, it lays down the principle of the legitimate obtaining and effective exercise of power. On the other hand, the eldest by age is effectively the eldest in the organization of the group only when he shows wisdom. Failing this, the right of primogeniture is recognized to the wisest younger brother who, at the same time, is called upon to command the group and to protect it. This means that power and authority are entrusted only to those who show wisdom. But above all, it means that age does not necessarily imply wisdom, but that all the rights recognized to the eldest can be recognized to the younger provided he is wiser. Therefore, power comes from seniority, paternity, or maternity, with the implication that wisdom is its driving force.130
The transition from widespread power to centralized power begins when the presence of a chief as a person who exercises his powers outside his own family is registered. When the group gets larger, the need to have a leader arises. To appoint him certain rules become necessary. The succession of leaders determines the institutionalization of power and its growth. Once the figure of the leader has been introduced, he will enjoy privileges and enter in relation with the rule. If the leader respects the rule, the latter will be reinforced; if the leader clashes with the rule, a power confrontation is opened: if the rule prevails, the leader will be removed and replaced, if the leader prevails, the rule will be changed. The leader must take decisions relating to the life of the group
Then, in some societies every adult male can directly take part in the law-making process through participation in the assemblies of the people where all group members can be part of to discuss and accept (or even reject) proposal of rules made by the chief. Elsewhere, the chief can be supported and advised by a council of elders representing the different parts of the community. The outcome can be considered as “democratic”, especially when the unable chief or councilor can be removed.132
Another fundamental reason consists in the fact that in the African culture the leader is one and administers the community by managing its problems in their entirety, guiding it in the manner deemed most appropriate, resolving conflicts directly or delegating their resolution to those who believe they have sufficient wisdom and preparation to do so.133 In some societies the chief may be appointed by the people, while in others he may occupy the position by inheritance or divine appointment; but it is only the title to authority which originates from the position, while the authority itself comes from a mandate (express or implied) by the people.134 Then, the chief is the chief only if he represents the whole community: the saying “a chief is a chief by the people” suitably represents the personal relationship existing between a chief and his community, without which there is no chiefdom. Through this relationship, the members of the community receive land (on which to live and produce their livelihood), protection (from the enemies through the act of war and against the other members of the group through the process of dispute resolution), assistance (for the rainmaking), propitiation (of the ancestors) and punishment (of witches and tortfeasors). In return, the chief receives consensus, labor and services (by the community members), as well as tributes (as a part of the harvest or hunt).135 In practice, the traditional system of governance is
Consequently, a chief who represents only a part of its community would not be a real chief, he would be a delegitimized chief. The chief, however, does not make decisions alone and imposes them on the members of the community. He convenes the community, which meets and makes decisions only unanimously after lengthy discussions. According to the African idea, for a common problem there always exists a solution that suits everyone, it is just necessary to find it, and it does not matter how long it takes. That is why it has been said that in Africa it is always necessary to persuade, never to impose.137 And if the chief should unfortunately show himself unsuitable to guide the community, there are internal mechanisms for the removal of someone who is not able to guide the community, in order to replace him with another considered better; in the same way, if the chief turns out to be a good chief there is no reason to change him, and he can continue to lead the community for life.138 As Dellus observes, chiefs could not be uncontrolled dictators, since the competition they face to became chiefs put them under severe pressure to rule fairly: such competition comes from within the community, and they could be therefore removed by a competitor if the chief shows himself to be unaccountable and unwilling to pay attention to the community. This is the reason for the contestation and fragmentation in pre-colonial societies caused by the opposition to unjust, corrupt, incompetent or unsupported chiefs.139 After all, as noted by Elias, “in most African communities, so great is the premium placed on personal ability and individual merit that recognition may be accorded to the occupant of an office but hardly any respect. An incompetent
As Rattray observed, “[t]o all outward appearance and to superficial observers, who included the populace, the Chief was an autocrat. In reality every move and command which appeared to emanate from his mouth had been discussed in private and been previously agreed upon by his councillors, to whom everyone in the tribe had access and to whom popular opinion of any subject was thus known”.142
With reference to the problem of succession to the chiefdom, there simply was no general immediate answer to such a question. There was and could not be an immediate predictive formulation of a solution. The absence of a chief is considered a major disturbing situation in the normal harmonious running of the community. Thus, the situation would be assessed under various criteria of which the relevance and importance would be carefully weighed before a decision could be reached. Furthermore, as Vanderlinden observes, “what applied to the designation of a chief could be found in other situations where the number and complexity of the variables involved required their adjustment and a consensus of the population concerned to reach it whatever the level at which it appeared”.143
The importance of the consensus of the population concerned is also revered in the common African emphasis on the necessity of unanimity in decision-making. The concept of majority decision, which is a fundamental pillar of the Western concept of democracy, would appear blatantly tyrannical in many traditional African societies, even at present. If there is an opposition, then the solution is not to outvote it, but to persuade it.144
From this situation to the difficulty of implementing the multi-party system in Africa the step is short. In a multi-party situation, the opposition party is excluded from the role of mediation between the state and the citizens. In
Furthermore, the African does not think that those belonging to the minority can leave decisions that concern them to the majority, because the majority has no legitimacy in this respect. The presence of a minority delegitimizes the government because the power does not represent that part of society that adheres to the opposition. The result is the tendency to reunify power and opposition by using different instruments.149 This is especially true considering that the electoral majority often only expresses the largest ethnic group and the African does not think that having the majority gives the title to manage the State with the marginalization of fewer ethnic groups.
We are today facing a generational clash. While Western-style democratic values are very popular among the younger generations today, older generations tend to prefer the “strong man” and nepotism, system that in a certain sense has been transferred from traditional African regimes to the modern “democratic” system of management of public affairs. It is difficult to shed the
Separation of powers is also an issue from the Western point of view, since neither the doctrine nor the practice of separation of powers finds any room in traditional African societies.150
The Western conception of power is based on the doctrine of the separation of powers as a guarantee against tyranny because the different powers will keep one another in check. The African mentality is open to the debate between different powers but does not accept the same partition.151 The doctrine of the separation of powers serves to isolate the judiciary from external influences. In Africa this protection of the judiciary is not always implemented or desired: the judicial control over political decisions is not welcome,152 legal constraints rarely interfere with the exercise of power, and when this happens the law (and even the constitution) is changed to support the needs of those holding power.153 Judges are often for sale with lawyers facilitating the corrupt deals;154 large segments of the population that cannot buy justice have no access to the courts.155 The political leader can truly exercise his functions only if all powers are concentrated in his hands, being the idea that a chief should voluntarily abstain from ruling in some areas considered as absurd; and if these powers are limited by a control exercised by other subjects of lower level than him the leader loses his legitimacy.156 The consequence is that political power is remote from the people, public officers expect to be feared, not just respected, like masters and not servants of the people. Africa is then characterized by a centralizing presidentialism where powers are concentrated in the hands of the head of State, and it is legitimate to think that the head of
Here some ideas on the reasons why every power of the State – legislative, executive and judiciary – experienced disfunction, malfunctioning or collapse have been highlighted. The result has been the impossibility to reconcile the different normative orders present in each State, with the consequence that those normative orders – civil law, common law, Islamic law, African informal law, Hindu law – continue to coexist without coordination and competing one with the other.158
La constitution béninoise ne reflète pas […] le fait que les populations sont illettrées, pauvres ou qu’elles sont en grande partie dans l’informel. C’est une Constitution de domination, des bureaucrates et des lettrés minoritaires, qui veulent des responsabilités pour représenter le peuple au détriment de la grande majorité analphabète qui ne comprend même pas ce qu’est un parti politique, ce qu’est un vote, et quels sont les pouvoirs que confère le bulletin de vote.
C’est pour cela que pendant les élections, les populations estiment que les candidats doivent les payer avant les consultations et tout au long de leur mandat, parce qu’elles pensent que ces candidats sont payés pour qu’ils les payent, elles, en retour. Les électeurs ne comprennent pas la réalité de ce qu’est cette organisation politique.
Encore un exemple : le citoyen qui vit dans son village ne trouvera nulle part dans sa Constitution une mention faite au chef du village qui est une autorité qu’il côtoie et qui régit sa vie au quotidien”.159 (The Beninese constitution does not reflect [...] the fact that the people are illiterate, poor or largely in the informal sector. It is a constitution of domination, bureaucrats and minority scholars, who want responsibilities to represent the people at the expense of the great illiterate majority who do not
even understand what a political party is, what a vote is, and what the powers of the ballot are. For this reason, during the elections, the population believes that the candidates must pay them before the consultations and throughout their mandate, because they think that these candidates are paid to pay them in return. Voters do not understand the reality of what this political organization is. [...]. Another example: the citizen who lives in his village will find nowhere in his Constitution a mention made to the village chief who is an authority he lives with and who governs his daily life).
To sum up, it is possible to say that if separation of powers is considered in the modern Western sense, there is nothing of it in traditional African societies; but if the issue is approached with a pluralistic orientation by admitting that there are other possible ways by which power may be fragmented, distributed and balanced, then this a feature of the African societies where the separation of powers is horizontal, and therefore by rank, rather than vertical, that is by function.160
4 Rule of Law (with African Characteristics)
One of the key notions on which Western law is based is that of rule of law. This is a key concept in understanding not only Western legal jargon, but also the ethnocentric discourse clustered around that very notion, as since the 1990s this notion became closely associated with the overall achievements of Western civilization,161 with the consequence that the rule of law brings to deny the possible existence of non-state law.162
Such expression has been defined and explained in several ways according to the different aspects in which the concept has been used or recalled. The most famous is perhaps that of Lord Bingham as the situation where all individuals and organizations within the State, whether public or private, are bound by – and entitled to the benefit of – laws prospectively promulgated and publicly administered in the courts.163
If so far the discourse seems relatively simple (even if only because the concept is the result of the evolutionary path of the common Western legal culture),167 things start to get complicated when the idea of rule of law is expected to be exported (and to work in the same way) outside the West, another commodity to be proposed on the market of laws.
Here the concept begins to be flexible. After the elimination of all the connotations having a historical nature, it becomes a meaning ready to be adapted to the needs of those who use it. Next to the original connotation, others emerge, and at least two are definitely under the limelight, because they are often proposed on the market of legal concepts and patterns.
In the general view, economic development depends on the rule of law. Normally, international financial organizations and the actors of the global economy condition the granting of financing and aid for development, as well as the launching of structural adjustment programs and technical assistance, to the adoption of good governance tools, aimed at the improvement of the rule of law. What is required in this case are legislative reforms in the neo-liberal direction and in line with the market economy aimed at eliminating barriers to trade and to the functioning of the market, privatization programs of state companies, environmental protection, protection of foreign investments (both
If, instead, the discourse expands outside the economic connotations, then the concept is used with reference to a series of different situations (protection of human rights, respect of gender equality, protection of oppressed minorities, adoption of the fundamental principles of democracy in its Western connotations, guarantee of access to justice to disadvantaged people). Depending on the situation considered, the results of the assessments concerning the respect of the rule of law vary.170
Moreover, the discourse on the rule of law is made exclusively with reference to the state law,171 completely cutting off all those normative orders that are alternative or complementary to the official one, whereas nothing in the basic definitions of the concept refers to a particular type of law (perhaps it
[d]epriving the rule of law of its very historic and comparative value (or assessing it through the lenses of a handful of indicators), […] makes the “export” version of the “rule of law” – be it supported by “big money”, states, nongovernmental organizations, or global institutions – become one of the many spongy notions which either serve the interests of those who use them, or offer a vision of the law (and of the world) that lacks the capacity to look beyond the West. […] Consequently, any claim about treating the Western rule of law notion as one that includes the whole of Western legal civilization and that can be universalized without paying due attention to its historical sources (and to the different contexts where it is exported) is doomed to appear as preposterous or opportunistic.175
Being, however, the present work based on the recognition of cultural – and, consequently, also legal – pluralism, we should interrogate ourselves on what happens beyond the Western borders: if the rule of law, and with it the legality
The strident contradiction between the almost obsessive quest for the rule of law, on the one hand, and the increasing channeling of investments towards countries where the rule by law – or a situation that is different from the Western idea of rule of law – is the system, on the other hand,177 clearly represents the tensions that drive law in the present times, and shows once again how the requirements of law are bent to those of the market (if we analyze the data referring to the rule of law in the Worldwide Governance Indicators of the World Bank, it can be noted that among the countries placed at high levels in the ranking there are some with low levels of development, while others that do not have a legal and institutional apparatus in line with the criteria set by the same Bank register very high growth rates).178
The same recognition of the existence of the rule by law, as a possible (and even, sometimes, acceptable) alternative approach to the rule of law tells us that – perhaps – alongside the Western idea different ideas of juridical, legality, rule of law can exist, even if the need to find different denominations is felt, as
The previous observation leads us to a further reflection: the rule by law (or alternative connotations to the classic rule of law) is accepted without making too many objections in those countries (the most obvious example is, clearly, the Chinese, known also – and the name is highly indicative for the purposes of this discourse – as a “rule of law with Chinese characteristics”, but one could also cite the Indian rule with its intricate relationships between law of more or less Western derivation, tradition and religion), which represent, for the investors, market opportunities not to be missed (with the opening to the West, China became the consumer pole by definition, although controlled by the State and, therefore, by the party).179 Here, then, the profit opportunities offered by the potential market are significant enough to make concessions on the legal point of view. On the other hand, there is no availability to make the same concessions to those countries (such as the African countries) considered – rightly or wrongly – far less interesting from a commercial point of view.
The importance of China as a market (and the acknowledgment of the impossibility of establishing relationships based on Western supremacy) is the reason why we already know much – and plenty more is being studied – about the idea of legality and law in China and in other countries like India, Japan, South Korea, Russia that are also extremely important from the economic point of view. The decidedly lower interest regarding Africa as a market (accompanied in many cases by the belief that it is still possible to establish relationships based on the Western supremacy) can explain why we know little to nothing about authentically African concepts and values of legality, governance, democracy, which are of little interest, and therefore little or nothing is studied, since those concepts are considered to be developed by people to whom it is difficult to recognize a dignity equal to that of the westerner and for whom there can be no other model than the Western one.
Looking at the African context, the questions are the same as those already posed by Allot, namely: “Is there an “African” conception of the Rule of Law? Is there justification for departures by modern African governments from the principles of the Rule of Law as generally accepted in Western countries? Can such justification be found, either in the institutions of law and government and the attitudes which inspire them, existing or formerly existing in
Legality is a fundamental component of the Western concept of rule of law.181 There, legality denotes legal formality that involves that laws be clear, precise, specific, certain, pre-determined, predictable, foreseeable, made publicly available, accessible, and ascertainable.182 However, if such requirements about legality are applied to informal law, it is clear that the latter would not meet some of them. This because the informal normative order takes its legal value from its acceptance from the social group producing it rather than being produced according to the positivist requirements on which the rule of recognition is based (i.e., from an official legislative authority). However, the principles of the rule of law are rooted in the legal and governmental institutions of traditional Africa, even if in a different way.
In sub-Saharan Africa there are a series of values and concepts (like the centrality of the community with respect to the individual, the mechanisms of appointment and possible replacement of the head of the community, the concept of democracy based on persuasion and discussion rather than on the imposition and contraposition between majority and minority, the participation of the entire community in the resolution of disputes, to name a few) certainly different from the Western, but that work satisfactorily if not contaminated by external influences, for the simple fact of being the product of the culture of those people.183
The Western concept of rule of law struggles to be implemented in Africa.184 It represents a clear example of what the anthropologists call “expansive ethnocentrism”, that is, the tendency to consider one’s own form of society better than any other and trying to spread it as much as possible.185 Nonetheless, the present re-thinking of the African State is not possible without a rule of law. The norm used to justify how power is assigned and exercised must be taken away from the rooms of power and brought closer to the people. Rule of law
In examining the African approach to some of the elements normally identified as elements of the rule of law, the difference with the Western idea of the rule of law can be easily noted. Then, the question to be answered is: can we find in this different approach elements that match with the basic requirements of legality? Is there here a different (African) idea of legality based on which an African approach to the rule of law can be imagined? If yes, how do we justify it?
The above observations, although carried out in a necessarily general manner, already suggest that the idea of a global rule of law grounded on the Western model is probably an impossible one. If, on the other hand, the above-mentioned point of view is left aside, it is possible to envisage that the rule of law can be, in reality, a fundamentally pluralistic concept, which takes on different connotations in the cultural context where it develops and is considered.186 Indeed, rule of law is not something constant, but it is reshaped by the changing values and attitudes in a given society. Then, it is necessary try to grasp the reasons this occurs.
There are normative orders deeply rooted in the tradition and culture of certain communities (this is the case of sub-Saharan Africa) and other normative orders that arise on the basis of particular needs of certain groups (like the lex mercatoria or the principles that govern international financial transactions), there are bodies for the resolution of traditional, religious or informal disputes, courts or councils governed by leaders or elders of a community, and arbitration or mediation institutions, and all these bodies may be set up in a stable way or created only if necessary, they can apply pre-determined rules, created for the occasion or make decisions on a consensual basis, which satisfy all parties and restore the balance within the community considered. All these situations belong to everyday life and, unlike the official ones, they belong to the community or group considered, because they are produced by the community itself and are thus culturally close, and, as such, more easily accessible. The norms and procedural rules are easily understandable for the group members, the costs lower and the time to obtain a decision reduced with respect to the official system; and often the intervention of professional jurists is not
All these alternative normative expressions have a fundamental advantage over the official law: that of operating in an easily understandable and predictable way for the subjects involved, and this makes those who take the decisions more careful, as such decisions will be evaluated according to the standards and expectations of the whole group.
However, although almost always not considered in the context of official law, all the options mentioned above are legally relevant, “law” according to the Anglo-American connotation of the concept.
Then, if we look at the fundamental idea of rule of law referred to at the beginning of this section, we cannot deny that in the situations outlined above the fundamental functions of the rule of law – that is to coordinate the behavior of the members of the given community and to resolve disputes arising within the same in an impartial manner – are met, regardless of whether these normative orders are part of the official State law or otherwise. Not only that, but the experience shows that these “alternative” forms of law can also be effective towards the State, perhaps through the subjects that cover its different functions at different levels. This can happen, for example, in Africa where the subject who is a public servant maintains a very close relationship with his own group of origin of which he respects the decisions even if connected to his activity as a public officer; or else, in the case of international commercial transactions, when the State acts in its capacity as private law subject, by signing contracts that are regulated by the lex mercatoria or other forms of soft law, and accepts the jurisdiction of international arbitration bodies.
In choosing to avoid resorting to state law because of its inadequacy, corruption phenomena, delays in the administration of justice, by preferring the use of alternative normative orders, the actors of international trade – and people in general – seek elsewhere that legal and judicial security which the state is not able to guarantee, developing in such way neo-modern forms of legal pluralism. And these regulatory orders have the advantage of carrying out those functions of the rule of law that – at least in the eyes of the interested parties – the state is not able to perform. There are no fundamental objections to this trend in international trade, in the same way it has been recognized the right of China to develop a concept of rule of law that takes into consideration the Chinese history and (legal) culture. There is apparently no reason why the
What appears to be a rather questionable situation, if not close to the limits of the paradox, is that all projects that are focused on promoting the “undifferentiated, de-contextualized, un-historicized”188 rule of law are carried out in non-Western contexts and are aimed at rebuilding or reinforcing State-based legal systems. This is based on “the belief that the “other” lacks the rule of law, not as the starting point for an analysis willing to be inclusive of diversity and of a shared perspective, but as a defect to be set straight or condemned – almost like saying that not only is the West the lord of the rule of law, but that it should also be the lord of any law”.189
All this occurs by virtue of the (unproven) axiom that the path that developing nations are called to go through must coincide with that of Western countries, without even interrogating whether – but rather, assuming that – the rule of the law that the West purports to export is effective and fully functional, that is, to put it according to the lessons of legal comparison, if the law in the books actually turns, and to what extent, into the law in action. Actually, as Bussani observes, “paradoxically, and this is well known, some of the just mentioned features attached to the rule of law cannot be found or are not fully fledged in all Western societies”.190 Conversely, elements that are considered as core elements of the rule of law (like, for example, accountability to the law, publicly promulgated laws, obedience to the law, the guidance role of the law) can be detected in many non-Western societies that are normally not included among those obeying to the rule of law itself.191
The above-mentioned approach does not hold up for two kinds of reasons.192
Secondly, because the same Western models are to be questioned, since they are under attack on several fronts, with a profound change in the concept of the State, whose activities and powers are increasingly limited (also on the legal level), to the advantage of subjects completely different between each other (transnational bodies, supranational entities, lower territorial authorities, non-governmental bodies, private subjects).
The current state of society undoubtedly makes the concentration of powers in the hands of the state more difficult and favors pluralistic, flexible approaches to situations that were considered consolidated, and which instead crumbled or liquified, under the pressure of social changes. On the legal level, the State has lost its central, monopolistic role in favor of pluralistic phenomena of various kinds, united by reflecting and, at the same time, aiming at remedying the normative inconsistencies between the state legal system and the society that it should regulate. If the pre-established positions are abandoned, it is thus possible to recognize that the non-state normative orders, characterized by a greater level of flexibility and adaptability to the changes continuously required by the modern society, perform functions that fall within the general concept of rule of law, even if they are not in line with what the West considers to be the legal standards of reference.193
What seems to appear is that Western countries, which are the paladins of the rule of law and promote it steadily around the world, are, in turn, passing (more or less unconsciously) to a “rule by law with Western characteristics”, informed by the general elements indicated before. Such connotation stands next to other possible connotations of the same expression “rule of law” (like “rule of law with Chinese characteristics”). If African normative orders are recognized having the same dignity as the others and a system is constructed that satisfies the needs of legality of the society concerned, it seems that there are no obstacles to figure out the connotations of a “rule of law with African
Jean-Pierre Magnant, “Le droit et la coutume dans l’Afrique contemporaine”, (2004) 48 Droit et cultures (2) 167.
Anne Griffiths, “Legal Pluralism”, in Reza Banakar, Max Travers, An Introduction to Law and Social Theory, (Portland: Hart Publ., 2002) 289; see also Carbonnier Jean, Sociologia giuridica (F. Cuculo tr., Turin: Giappichelli, 2012). See also Chuma Himonga et al., African Customary Law in South Africa. Post-Apartheid and Living Law Perspectives (Cape Town: Oxford University Press south Africa, 2014).
Lloyd Fallers, “Customary Law in the New African States”, 27 (1962) Law and Contemporary Problems (4), African Law, 605.
The British colonial legislation, for example, often included Islamic law in the wider category named “native law and custom”. Also in France and Italy Islamic law was often considered as part of traditional law by the legislation and the colonial legal scholars. See more on this in Charles Ogwurike, “The Source and Authority of African Customary Law”, 2 (1966) 3 Univ. Ghana lj 11; Marco Guadagni, Il diritto dei paesi africani nella letteratura contemporanea (Trieste: cluet, 1984) and, also for a critique of such approach, James N. D. Anderson, Islamic Law in Africa (2nd ed., London: Frank Cass, 1970).
Jean-Pierre Magnant, “Le droit” cit.
See, for example, Ghislain Otis, “La gestion du pluralisme juridique: definitions et approche”, in Ghislain Otis, Jean Leclair, Sophie Thériault (dir.), La vie du pluralisme juridique (Paris: lgdj, 2022) 7.
Joseph Winter, Telecoms thriving in lawless Somalia,
I defined such phenomenon, where the state is not an actor of legal pluralism, as “atypical legal pluralism”. It is more widely described in Salvatore Mancuso, “Pluralismo giuridico in Somalia. Trascorsi storici e sviluppi recenti”, (2014) 9 Jura Gentium 140.
Michael van Notten, The Law of the Somalis: a Stable Foundation for Economic Development in the Horn of Africa (Lawrenceville: The Red Sea Press, 2005).
For Liberia and Sierra Leone, see the papers presented with reference to these countries at the Conference Customary Justice and Legal Pluralism in Post-Conflict and Fragile Societies, hosted by the United States Institute of Peace, George Washington University and the World Bank on November 17–18, 2009.
The theme is widely developed by Rodolfo Sacco, Antropologia giuridica (Bologna: Il Mulino, 2007). See also Anthony N. Allott, “The Unity of African Law”, (1959) 11 Journal of African Administration (2) 72.
This phenomenon is well exposed in Frank A. Salamone, “The Clash between Indigenous, Islamic, Colonial and Post-Colonial Law in Nigeria”, (1983) 15 The Journal of Legal Pluralism and Unofficial Law (21) 15.
Jacques Vanderlinden, “Les droits africains entre positivisme et pluralisme”, (2000) 46 Bulletin des séances de l’Académie royale des sciences d’outre-mer 279.
Most of the African countries have today family laws officially recognizing traditional (often still named “customary”) marriage. ohada created the category of “entreprenant” to identify entrepreneurs operating in the informal sector to try to include them in the formal legal regime (see Article 30 of the ohada Uniform Act on General Commercial Law). On the “entreprenant” see the bibliography cited in the previous Chapter 2, footnote 355. For the case of the survival of the traditional land tenure system in Eritrea, despite its formal repeal by the official state law, see Salvatore Mancuso, Terra in Africa. Diritto fondiario eritreo (Trieste: eut, 2013).
Peter Onyango, African Customary Law System: An Introduction (Nairobi: LawAfrica, 2013).
Gordon Woodman, “Droit comparé général”, in Wanda Capeller, Takanori Kitamura, Une introduction aux cultures juridiques non occidentales (Bruxelles: Bruylant, 1998).
John Griffiths, “What is legal pluralism?”, (1986) 18 Journal of Legal Pluralism and Unofficial Law (24)1, 3.
Jacques Vanderlinden, “Villes africaines et pluralisme juridique”, (1998) 42 Journal of Legal Pluralism and Unofficial Law 245.
Gordon R. Woodman, “Droit comparé général” cit; Jacques Vanderlinden, “Return to Legal Pluralism: Twenty Years Later”, (1989) 21 The Journal of Legal Pluralism and Unofficial Law (28) 149.
In this sense see also Julie Ynès Ada Tchoukou, “A Conceptual Framework for Regulating Customary Law within Pluralistic African States: Reassessing Justice Sector Reforms for Reconciling Legal Traditions”, (2020) 9 Global Journal of Comparative Law (2) 245.
Peter Onyango, “African Customary Law” cit., at 35.
Article 4 of the Mozambican Constitution says: “O Estado reconhece os vários sistemas normativos e de resolução de conflitos que coexistem na sociedade moçambicana, na medida em que não contrariem os valores e os princípios fundamentais da Constituição” (The State recognizes the various normative and conflict resolution systems that coexist in Mozambican society, insofar as they do not contradict the fundamental values and principles of the Constitution).
With reference to the same issue in South Africa, see Gardiol J. Van Niekerk, “Legal Pluralism”, in Jan C. Bekker, Christa Rautenbach and Nazeem M. I. Goolam, Introduction to Legal Pluralism in South Africa, (6th ed., Durban: Lexis Nexis, 2018); Id., “State initiatives to incorporate non-state laws into the official legal order: a denial of legal pluralism?”, (2001) 34 The Comparative and International Law Journal of Southern Africa (3) 349; Ph. J. Thomas and D. D. Tladi, “Legal pluralism or a new repugnancy clause”, (1999) 32 The Comparative and International Law Journal of Southern Africa (3) 354. In Nigeria the issue was raised further to the Supreme Court’s decision in the case Joshua Egwu v Eugene Meribe [3 s.c. 23 (1976)], where the Supreme Court of Nigeria concluded that marriage between women was a custom practiced in Nigeria but that it does not fit into Western legal concepts; as a consequence, such a custom is contrary to natural justice, equity and good conscience, and should therefore not be recognized by the courts. The decision is analyzed in C. O. Akpamgbo, “A ‘Woman to Woman’ Marriage and the Repugnancy Clause: A Case of Putting New Wine into Old Bottles”, (1977) 9 Journal of Legal Pluralism and Unofficial Law (14) 87.
State v. Makwanyane, 1995 (3) sa 391 (cc).
Cited in Boaventura de Sousa Santos, “The Heterogeneous State and Legal Pluralism in Mozambique”, (2006) 40 Law and Society Review (1) 39.
Mabena v Letsoalo 1998 (2) sa 1068 (T). In particular, the Court held that there is no reason to hold that an independent adult man is not entitled to negotiate for the payment of lobolo in respect of his chosen bride, nor is there any reason to hold that such a man needs the consent of his parents to marry. The Court also held that it was an essential requirement of a traditional marriage that the bride must be handed over to the bridegroom. Finally, the Court affirmed that it must be accepted that there are instances in practice where mothers negotiate for and receive lobolo, and consent to marriage of their daughters.
Salvatore Mancuso, Short Notes on the Legal Pluralism(s) in Somaliland, in Seán P. Donlan, Lukas Heckendorn Urscheler (eds.), Concepts of Law, (London: Ashgate, 2014) 237.
The literature on the gacaca is today quite extensive. An interesting overview has been recently made by Roelof H. Haveman, “Gacaca in Rwanda. Customary Law in Case of Genocide”, in Jeanmarie Fenrich, Paolo Galizzi, and Tracy E. Higgins (eds.), The Future of Customary Law, (Cambridge: Cambridge University Press, 2011) 387. For a more comprehensive approach see Paul Christoph Bornkamm, Rwanda’s Gacaca Courts (Oxford: Oxford University Press, 2012). A response to the critics to the gacaca system can be found in Felix Mukwiza Ndahinda, Alphonse Muleefu, “Revisiting the Legal and Socio-political Foundations and (Western) Criticism of gacaca courts”, in Thomas W. Bennett et al. (eds.), African Perspectives on Tradition and Justice (Cambridge: Intersentia, 2012).
Such position is well illustrated in Fanie Du Toit, Reconciliation and Transitional Justice: The Case of Rwanda’s Gacaca Courts, (2011) Institute for Justice and reconciliation – Africa Programme, Occasional Paper 2.
See more in detail Roelof H. Haveman, op, cit., at 398 and ff.
On the ubushingantahe system of dispute resolution see Léa Havard, Youssouf Ali, “Initiation au pluralisme juridique à travers l’étude des Bashingantahe”, in Gilda Nicolau, Fabrice Hourquebie (dir.), Cultures juridiques en quête de dialogue, (Paris: Karthala, 2014) 239; Dominik Kohlhagen, “Le bushingantahe au Burundi: transformations et reminiscences d’un concept judiciaire ancien”, in Gilda Nicolau (dir.), Dire le droit, render la justice (Paris: Karthala, 2009) 113.
Ntahuligana Mwene-Larha Shalukoma, Du droit africain bantu (Rome: Teléesprit, 2004), at 156.
As an example only, the publicity of the assembly where matters concerning the community are discussed or of the judicial debate, are general and fundamental principles of the African legal culture.
Sophie Seys, Delphine de Jonghe, François Tulkens, “Les principes généraux du droit”, in Isabelle Hachez et al., Les sources de droit revisités (Vol. 2, Bruxelles: Anthemis-Presses de l’Université Saint-Louis, 2019) 493; Georges Morange, “Une categorie juridique ambiguë: les principes généraux du droit”, (1977) Revue de droit public et de science politique 761.
Ghislain Otis, Jean Leclair, Sophie Thériault (dir.), La vie du pluralisme juridique (Paris: lgdj, 2022).
Ibid.
More in Rodolfo Sacco, Il diritto muto (Bologna: Il Mulino, 2015).
Ntahuligana Mwene-Larha Shalukoma, “Du droit” cit., who refers, at 95, how among the Barega (or Warega, a group in Democratic Republic of Congo) the delivery of a wood hook represents the duty of mutual aid, a kinenke leave (a Congolese medicinal plant on which see Kusamba Chifundera, “Antivenomous Plants Used in the Zairean Pharmacopoeia”, (1987) 7 African Study Monographs 21) stands for the submission to the parental authority, or a bone confirms the obligation to fulfil a contractual obligation.
Thomas W. Bennett, “African Customary Law”, in Mathias Reinmann, Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (Ch. 19, Oxford: Oxford University Press, 2006) 641.
Jacques Vanderlinden, “Here, there and everywhere … or nowhere? Some comparative and historical afterthoughts about custom as a source of law”, in Olivier Moréteau, Aniceto Masferrer, A. Kjell Modéer (eds.), Comparative Legal History (London: Edward Elgar Publishing, 2019) 140.
Etienne Le Roy, “Justice africaine et oralité juridique: une réinterprétation de l’organisation judiciaire ‘traditionnelle’ à la lumière d’une théorie générale du droit oral d’Afrique Noire”, (1974) 36 Bulletin de l’IFAN, série B (3) 559.
Etienne Le Roy, “L’esprit de la coutume et l’idéologie de la loi”, in La connaissance du droit en Afrique (Bruxelles: Académie royale des sciences d’outre-mer, 1984) 210.
Firmin R. Rodegem, Structures judiciaires traditionnelles du Burundi (Bujumbura: Université de Bujumbura, 1966).
Thomas W. Bennett, “African Customary Law” cit.
Antony N. Allott, “The African Conception of the Rule of Law”, in John H. Hallowell (ed), Development; for what? (Durham: Duke University Press, 1964) 75.
Jean Poirier, “L’originalité des droits coutumiers de l’Afrique noire”, in Mélanges en l’honneur de Henri Lévy-Bruhl, (Paris: Sirey, 1959) 485.
Ntahuligana Mwene-Larha Shalukoma, “Du droit” cit., at 96 and ff. See also Alexis Kagame, La philosophie bantu-rwandaise de l’Être, (Bruxelles: Mémoires de l’Académie Royale des Sciences Coloniales, 1955).
Thomas W. Bennett, “African Customary Law” cit.
An example is the saying “A father feeds children until they have teeth, children feed the father when he has not teeth anymore” to symbolize the reciprocal obligations to support between father and children and the time when they arise.
The literature about African proverbs is extremely wide. See, inter alia, Pierre Crépeau, Simon Bizimana, Proverbes du Rwanda, (Tervuren: Musée royal de l’Afrique Centrale, 1979); S. S. Ole Sankan, The Maasai (Nairobi: Kenya Literature Bureau, 1988); Harold M. Bergsma, “Tiv proverbs as a means of social control”, 40 (1970) Africa (2) 151; Johan M. Pauwels, “Quelques proverbes jurdiques utilisés à Kinshasa”, 15 (1970) Cahiers congolais de la recherche et du développement (3) 3; Isaac Schapera, “Tswana Legal Maxims”, (1966) 36 Africa (2) 121; Enrico Cerulli, Somalia. Vol. iii, La poesia dei somali (Rome: Ministero degli Affari Esteri, 1964); Michael Pauwels, “Le Munya-Rwanda et ses proverbes”, (1953) Revue Grand Lacs 1; Raffaele Conso, Studi africani (Naples: R. Pironti, 1950).
Harold M. Bergsma, “Tiv proverbs” cit.
Pierre Colle, Essai de monographie des Bashi (Bukavu: Centre d’étude de langues africaines, 1971).
Henri Maurier, Philosophie de l’Afrique noire (2nd ed., St. Augustin: Anthropos-Institut, 1985).
Ntahuligana Mwene-Larha Shalukoma, “Du droit” cit.
Ibid., at 111.
Antony N. Allott, “The African Conception” cit., 82.
Charles Ntampaka, Introduction aux systèmes juridiques africains (Namur: Presses Universitaires de Namur, 2005).
Anthony Kodwo Mensah-Brown, Introduction to Law in Contemporary Africa (New York: Conch Magazine Ltd., 1976).
Jan Vansina, “A Traditional Legal System: the Kuba”, in Hilda Kuper & Leo Kuper, African Law: Adaptation and Development (Berkeley: University of California Press, 1965) 97.
Laura Bohannan, Paul Bohannan, The Tiv of Central Nigeria: Western Africa Part viii (London: International African Institute, 1969), 43.
Paul Bohannan, Justice and Judgement among the Tiv (Oxford: Oxford University Press, 1968).
In the same sense see Antony N. Allott, “The African Conception” cit.
See more in Chapter 4, Section 8.
Max Gluckman, “The Reasonable Man in Barotse Law”, in Max Gluckman, Order and Rebellion in Tribal Africa (London: Routledge, 2013) 178, 197.
Rodolfo Sacco, Il diritto africano, (1985) Turin, utet, at 80.
George B. N. Ayttey, Indigenous African Institutions (2nd ed., Ardsley: Transnational Publishers, 2006) 43. See also William Idowu, African Philosophy of Law: Trascending the Boundaries between Myth and Reality, available at
Charles Ntampaka, “Introduction” cit.
George B. N. Ayttey, “Indigenous” cit.
Jacques Vanderlinden, Les systèmes juridiques africains (Paris: puf, 1983).
Yvonne Makgoro, “Ubuntu and the law in South Africa”, (1998) 1 Potchefstroom Electronic Law Journal (1) 16.
George B. N. Ayttey, “Indigenous” cit.
E. A. Ruch and C. K. Anyanwu, African Philosophy: An Introduction to the Main Philosophical Trends in Contemporary Africa (Rome: Catholic Book Agency, 1981), 375.
Ibid.
William Idowu, op. cit.
Ibid.
Milo Rigaud, Secrets of Vodoo (New York: Pocket Books, 1971).
A description of the different scholarly positions with related arguments in favor or against them can be found in Taslim Olawale Elias, The Nature of African Customary Law (Manchester: Manchester University Press, 1956).
Raymond Verdier, “L’ancien droit et le nouveau droit foncier de l’Afrique Noire face au développement”, in John. N Hazard (cur.), Le droit de la terre en Afrique (au Sud du Sahara) (Paris: Maisonneuve-Larose, 1971) 67.
Todd Sanders, “Reconsidering Witchcraft: Postcolonial Africa and Analytic (Un)Certainties”, (2003) 105 American Anthropologist (2) 338, for example, speaks about the Ihanzu, a group living in Tanzania, who believe that their two royal leaders bring the rain each year, something they can do thanks to the help of the ancestors, medicines, and certain rituals.
Max Gluckman, Politics, Law and Ritual in Tribal Society (2nd ed., London: Routledge, 2012).
Ntahuligana Mwene-Larha Shalukoma, “Du droit” cit.
Todd Sanders, op. cit.
Gray Cavender, “A Note on Voudou as a Mechanism for Addressing Legal Problems”, (1988) 27 Journal of Legal Pluralism and Unofficial Law (1) 1.
Roger Howman, “Witchcraft and the Law”, in Alison Dundes Renteln, Alan Dundes (eds.) Folk Law: Essays in the Theory and Practice of Lex Non Scripta (Vol. ii, Madison: The University of Wisconsin Press, 1995) 637, 639.
The theme is developed in Samir Zimé Yerima, Le droit face au surnaturel. Approche juridique de la question sorcellaire en Afrique (Paris: L’Harmattan, 2023).
Tribunal correctionnel de Boué, 22 April 1964, (2001) Revue du droit des pays d’Afrique (837) 357.
Donald Kisilu Kombo, “Witchcraft: A Living Vice in Africa”, (2003) 22 Africa Journal of Evangelical Theology (1) 73.
Edward E. Evans-Pritchard, Witchcraft, Oracles and Magic among the Azande (Oxford: Clarendon Press, 1976), at 21. See also Theodore S. Petrus and David L. Bogopa, “Natural and Supernatural: Intersections Between the Spiritual and Natural Worlds in African Witchcraft and Healing with Reference to Southern Africa”, (2007) 7 The Indo-Pacific Journal of Phenomenology (1) 1, available at
Onesmus K. Mutungi, The Legal Aspects of Witchcraft in East Africa (Nairobi: East African Literature Bureau, 1977).
Simeon Mesaki, “Witchcraft and the law in Tanzania”, (2009) 1 International Journal of Sociology and Anthropology (8) 132; E. K. Quansah, Religion, Democracy and Civil Society: The Case of ‘Witches’ in Ghana, available at
Cit. in Onesmus K. Mutungi, “The Legal Aspects” cit., at 17.
Simeon Mesaki, op. cit.
See, in this respect, the interesting analysis made by Onesmus K. Mutungi, “The Legal Aspects” cit.
Donald Kisilu Kombo, op. cit.
Edward E. Evans-Pritchard, op. cit.
Thomas W. Bennett & Werner M. Scholtz, “Witchcraft: A Problem of Fault and Causation”, (1979) 12 Comparative and International Law Journal of Southern Africa (3) 288; Onesmus K. Mutungi, op. cit.; E. H. Winter, “The Enemy Within: Amba Witchcraft and Sociological Theory”, in John Middleton, E. H. Winter, Witchcraft and Sorcery in East Africa (London: Routledge-Taylor & Francis, 2013) 277.
J.R. Crawford, Witchcraft and Sorcery in Rhodesia (London: Oxford University Press, 1967), at 122.
Philip Mayer, “Witches” – Inaugural lecture, Rhodes University, Grahamstown, 1954, in Max G. Marwick, Witchcraft and Sorcery (2nd ed., London: Penguin, 1990) 54, defines – at 60 – the witch as “the traitor within the gates”, to underline his consideration within the community.
See also Theodore S. Petrus and David L. Bogopa, op. cit.
Edward E. Evans-Pritchard, op. cit. Although witchcraft is generally invoked for unfortunate events, it may also be associated to extremely fortunate occurrences. This may indicate that the accent is not on the event itself, but rather on its deviation from the regular community life. In this direction see Thomas W. Bennett & Werner M. Scholtz, “Witchcraft” cit.; Max Gluckman, op. cit.
Edward E. Evans-Pritchard, op. cit.
There is a debate among scholars about the meaning of “instruments of witchcraft, whose possession is considered a sign that the owner could be a witch. In general, “instrument of witchcraft” are assumed to be “anything which is used or intended to be used or is commonly used, or which is represented or generally believed to possess the power, to prevent or delay any person from doing any act which he may lawfully do, or to compel any person to do any act which he may lawfully refrain from doing, or to discover the person guilty of any alleged crime or other act of which complainant is made, or to cause death, injury or disease to any person or damage to any property, or to put any person in fear, or by supernatural means to produce any natural phenomenon, and includes charms and medicines commonly used for any of the purposes aforesaid”. See Simeon Mesaki, op. cit., at 137.
Thomas W. Bennett & Werner M. Scholtz, “Witchcraft” cit., list the physical stigmata, warts, red-rimmed eyes, black substances in the intestines, a phyton in the belly among the physical elements to individuate a witch. See also Onesmus K. Mutungi, “The Legal Aspects” cit. who speaks about the fact that witches walk naked at night, cause crops to wither or livestock to die, commit incest, eat human flesh, have cannibalistic tendencies, use human arms to stir beer.
Donald Kisilu Kombo, op. cit.; Thomas W. Bennett & Werner M. Scholtz, “Witchcraft” cit.; Douglas J. Penwill, Kamba Customary Law (Nairobi: East African Literature Bureau, 1972).
E. K. Quansah, op. cit.
In the case R. v Hugo 1940 wld 285 (cit. in Thomas W. Bennett & Werner M. Scholtz, “Witchcraft” cit.) it was already stated that “A belief in witchcraft is not a mental defect as we understand it. But it has something of the same compelling force and the same manifest error according to normal standards that we associate with mental disorders”, to underline how in modern culture witchcraft is considered as erroneous and abnormal.
See, for example, the Ghanaian case R. v. Konkomba (1952) w.a.c.a. 236. Onesmus K. Mutungi, The Legal Aspects cit., observes how in a society with a strong belief that the only remedy to witchcraft is the death of the witch, is questionable that this cannot be used as a ground for self-defence or provocation.
Examples are the 1972 (revised in 2012) Kenyan Witchcraft Act, the 1911 (2015 revised version) Malawi Witchcraft Act, Sections 216 and 210 of the Nigerian Criminal and Penal Codes Act respectively, the 1957 (amended in 1970) South African Witchcraft Suppression Act, the 2002 Tanzanian Witchcraft Act, the 1957 (amended in 1965) Ugandan Witchcraft Act, the 1957 (amended in 1970 and 1997) Zimbabwean Witchcraft Suppression Act.
Todd Sanders, op. cit.
Dirk Kohnert, “Magic and Witchcraft” cit., who cites the case of a judge at the Court of Appeal of Daloa, Côte d’Ivoire who, when taking office, made an appeal for the initiation of judges into the art of witchcraft (cf. Fraternité Matin, 16.11.1993), and that of a staff member of the Faculty of Law at Ahmadu Bello University, Zaria, one of the renowned Nigerian Universities, who – already in the ‘80s – called publicly for a change in the attitudes of Nigerian courts towards witchcraft too.
Donald Kisilu Kombo, op. cit.
Barrie Reynolds, Magic, Divination and witchcraft among the Barotse of Northern Rhodesia (Berkeley: University of California Press, 1963) 165.
Muslims, for example, count the time from the date of the Prophet Muhammad’s abandonment of Mecca and his transfer to Medina, in September 622 ad.
Marco Aime, La terra di nessuno (Turin: Bollati Boringhieri, 2002).
Alassane Ndaw, La pensée africaine: recherche sur les fondements de la pensée africaine (Dakar: Nouvelles éditions africaines, 1983).
Marco Aime, “La terra” cit.
John S. Mbiti, African religions and philosophy (London: Heinemann, 1971).
Anne-Claude Cavin, Droit de la famille burkinabé: Le code et ses pratiques à Ouagadougou (Paris: L’Harmattan, 1998).
Antony N. Allott, “The African Conception” cit.
Chuma Himonga et al., “African Customary Law” cit., at 228.
William Idowu, op. cit.
Antony N. Allott, “The African Conception” cit.
M. Bayona Ba Meya Muna Kimvimba, “Le recours à l’authenticité dans la réforme du droit au Zaïre”, in G. Conac, Dynamiques et finalités des droits africains, (Paris: Economica, 1980) 227.
Makau W. Mutua, “Africa and the Rule of Law”, (2016) 23 sur – International Journal on Human Rights (13) 159, 164.
W. Ivor Jennings, The approach to self-government, (Boston: Beacon Press, 1963). Moreover, Charles-Louis de Secondat de Montesquieu, in his De l’esprit des lois, (vol. 2, Geneva: Barillot & Fils, 1748) at 237, already observed how “les lois doivent être tellement propres au peuple pour lequel elles sont faites que c’est un grand hasard si celles d’une nation peuvent convenir à une autre” (The laws must be so specific to the people for whom they are made that it is a great coincidence that those of one nation may be suitable for another).
Rhoda E. Howard, “Legitimacy and Class Rule in Commonwealth Africa: Constitutionalism and the Rule of Law”, (2017) 17 Third World Quarterly (2) 323.
Peter VonDoepp, “The Rule of Law and the Courts”, in Nic Cheeseman, David Anderson and Andrea Scheibler (eds.), Routledge handbook of African politics, (New York: Routledge, 2013) 38.
Hastings W. O. Okoth-Ogendo, “The nature of land rights under indigenous law in Africa”, in Aninka Classens and Ben Cousins, Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act (Cape Town: University of Cape Town Press, 2018); Chuma Himonga, “African Customary Law” cit.
Ntahuligana Mwene-Larha Shalukoma, “Du droit” cit., at 254.
Rodolfo Sacco, “Antropologia” cit.
Antony N. Allott, “The African Conception” cit.
Jean Poirier, “Les formes monarchiques du pouvoir dans l’Afrique noire pré-coloniale”, in Recueils de la Société Jean Bodin, xxi, La monocratie (Bruxelles: Ed. de la Librairie Encyclopédique, 1969).
Antony N. Allott, “The African Conception” cit.
Chuma Himonga, “African Customary Law” cit., at 230.
Antony N. Allott, “The African Conception” cit., 86.
M. Bayona Ba Meya Muna Kimvimba, op. cit., at 232, “ainsi se trouvent traduits, de manière conforme à notre conception politique traditionnelle, le principe du dialogue, l’esprit de la palabre, dans le souci non de contraindre mais de persuader” (in this way, the principle of dialogue, the spirit of the palaver, is translated, in a manner consistent with our traditional political conception, in order not to constrain but to persuade).
On this issue see Maurice Kamto, Pouvoir et droit en Afrique noire: essai sur les fondement du constitutionnalisme dans les États d’Afrique Noire francophone, (Paris: lgdj, 1987). See also William Idowu, op. cit., about the removal of the chief in the Yoruba society when he commits acts which contradict the ethics of the community; and also George B. N. Ayttey, Indigenous African Institutions (2nd ed., Ardsley: Transnational Publishers, 2006).
Peter Dellus, “Contested terrain: land rights and chiefly power in historical perspective”, in Aninka Classens and Ben Cousins, Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act (Cape Town: University of Cape Town Press, 2018) 214.
Taslim Olawale Elias, “Insult as an Offence in African Customary Law”, 53 (1954) African Affairs (210) 66, 68.
Antony N. Allott, “The African Conception” cit.
Robert S. Rattray, Ashanti Law and Constitution (Oxford: Clarendon Press, 1929), 82.
Jacques Vanderlinden, “Here, there and everywhere” cit., 157.
Antony N. Allott, “The African Conception” cit.
William Idowu, op. cit.
Ntahuligana Mwene-Larha Shalukoma, “Du droit” cit., at 311.
There is a wide bibliography on this issue. In particular, see B. P. Wanda, “The One-Party State and the Protection of Human Rights in Africa with particular reference to Political Rights”, (1991) 3 Revue Africaine de Droit International et Comparé 756; Zogbélémou Togba, “Parti unique et contrôle juridictionnel: des élections législatives en Côte d’Ivoire”, (1990) 2 Revue Africaine de Droit International et Comparé 558; Jackton B. Ojwang, Phoebe B. Okowa, “The One-Party State and Due Process of Law: The Kenya Case in Comparative Perspective”, (1989) 1 Revue Africaine de Droit International et Comparé 177; Ahmed Mahiou, L’avènement du parti unique en Afrique noire, (Paris: lgdj, 1969).
Makau W. Mutua, op. cit., at 167.
Rodolfo Sacco, op. cit., at 189 and ff.
Antony N. Allott, “The African Conception” cit.
M. Bayona Ba Meya Muna Kimvimba, op. cit., at 232.
Hastings W. O. Okoth-Ogendo, “Constitutions without Constitutionalism: Reflections on an African Political Paradox”, in Douglas Greenberg et al. (eds.), Constitutionalism and Democracy: Transitions in the Contemporary World (Chapter 4), (Oxford University Press: New York, 1993) 66.
Peter VonDoepp, op. cit., at 40.
There are several exceptions to this trend: see Peter VonDoepp, op. cit., at 42.
Makau W. Mutua, op. cit., at 168; Peter VonDoepp, op. cit., at 45.
The issue is developed by Alain Moyrand, “Réflexions sur l’introduction de l’état de droit en Afrique noire francophone”, (1991) 4 Revue Africaine de Droit International et Comparé 83. See also Antony N. Allott, “The African Conception” cit.
André Cabanis and Michel Louis Martin, Les constitutions d’Afrique francophone. Évolutions récentes, (Paris: Karthala, 1999); Axmed A. Bootan, “La Costituzione somala del 1990”, in Elisabetta Grande (ed.), Transplants, innovation and legal tradition in the Horn of Africa, (Turin: L’Harmattan, 1995) 131.
Makau W. Mutua, op. cit., at 161.
Sadikou Ayo Alao, De la nécessaire relecture de nos constitutions en Afrique francophone (Cotonou: Ed. du Gerddes, 2013).
Antony N. Allott, “The African Conception” cit.
Mauro Bussani, “Deglobalizing Rule of Law and Democracy: Hunting Down Rhetoric Through Comparative Law”, (2019) 67 The American Journal of Comparative Law (4) 701.
Gordon Woodman, “Droit comparé général” cit.
Tom Bingham, The Rule of Law (London: Penguin, 2010).
Having remembered that “there are almost as many conceptions of the rule of law as there are people defending it” (Olufemi Taiwo, “The Rule of Law: The New Leviathan?”, (1999) 12 Canadian Journal of Law & Jurisprudence (1) 151, 154), a comprehensive indication of the definitions present in the literature can be found in Brian Z. Tamanaha, On the rule of law. History, Politics, Theory (Cambridge: Cambridge University Press, 2004). Other than Bingham’s famous book cited in the previous footnote and Tamanaha’s seminal work just mentioned, on the issue see also Ugo Mattei, entry “Rule of law”, Dig. iv, Disc. priv., sez. civ., (Vol. xviii, Turin: utet, 1998).
Friedrich von Hayek, The Road to Serfdom, (Chicago: Univ. of Chicago Press, 1944).
Friedrich von Hayek, The Constitution of Liberty, (Chicago: Univ. of Chicago Press, 1960).
See Peter Stein, John Shand, I valori giuridici della civiltà occidentale, (Milan: Giuffré, 1981).
As Brian Z. Tamanaha observes in his “The Dark Side of the Relationship Between Rule of Law and Liberalism”, (2008) 139 New York University Journal of Law and Liberty (3) 539, although the improvement of democratic standards is a key point in initiatives to foster development, good governance and structural adjustment programs are clearly anti-democratic in the way they are implemented. Just think of the fact that they are totally de-contextualized, and their adoption is imposed as a conditio sine qua non to receive or maintain economic aid. This leads the receiving States to adopt the programs directly, without verifying the existence of a consensus among the citizens.
Mauro Bussani, “Deglobalizing” cit., at 708.
Mauro Bussani, “Deglobalizing” cit., at 718.
Indeed, the rule of law development programs are carried out in societies where the characteristics of the law in the Western sense are considered absent or, in any case, not sufficient. These are cases in which the presence and authority of the state law can be weak or limited, citizens being wary of the law perceived as something alien or inscrutable, perhaps because it is written in a language that is not the vernacular language used by people. Again, the law can be considered too expensive, or the result of corruption, or made to favor a particular elite, or to be used for purely economic purposes for the exploitation of resources or people.
Brian Z. Tamanaha, “The Rule of Law and Legal Pluralism in Development”, (2011) 3 Hague Journal on the Rule of Law (1) 6.
Mauro Bussani, “Deglobalizing” cit., at 716.
The Human Development Reports are accessible from the website
Id., at 725 and ff.
H. Patrick Glenn, “Legal Traditions” cit., and, in particular, the first two chapters and the last one.
Here the distinction made by Randall Peerenboom in China’s Long March Toward the Rule of Law, (Cambridge: Cambridge University Press, 2002) is adopted. According to this Author “rule of law is the ability of law and legal system to impose meaningful restraints on the state and individual members of the ruling elite, rule by law refers to an instrumental conception of law in which law is merely a tool to be used as the state sees fit” (at 8). See also Gianmaria Ajani, La Rule of Law in Cina, (2006) Mondo cinese 126; Ignazio Castellucci, “Rule of law with Chinese characteristics”, (2007) 13 Annual Survey of International & Comparative Law (1) 35.
The World Bank Worldwide Governance Indicators are available at the website
This discourse is developed by Giuseppe Gabusi, L’importazione del capitalismo, (Milan: Vita e Pensiero, 2009).
Antony N. Allott, “The African Conception” cit., 75.
Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford: Oxford University Press, 2013).
Brian Z. Tamanaha, “The History and Elements of the Rule of Law”, (2012) Singapore Journal of Legal Studies 232.
On the subject see the interesting reconstruction of Sadikou Ayo Alao, op.cit.
With reference, for example, to the implementation of the rule of law in Senegal see Moussa Sarr, “L’effectivité de l’état de droit au Sénégal”, in Harmut Hamann et al. (eds.) Librairie africaine d’études juridiques (Vol. 12, Nairobi: Konrad Adenauer Stiftung, 2012) 15.
Mauro Bussani, “Deglobalizing” cit., at 707, and the related references cited there at footnote n. 24.
For the adaptability of the rule of law to local traditions see Joseph Raz, “The Law’s Own Virtue”, (2019) 39 Oxford Journal of Legal Studies (1) 1.
See again Brian Z. Tamanaha, “The Rule of Law” cit., at 7 and ff.
These adjectives are due to Mauro Bussani, Il diritto dell’occidente, (Turin: Einaudi, 2010) 63.
Mauro Bussani, “Deglobalizing” cit., at 726.
Mauro Bussani, “Deglobalizing” cit., at 714.
As Joseph Raz observes in “The Rule of Law” and Its Virtue”, (1977) 93 Law Quarterly Review 195, 198, “A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. […] It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity with the rule of law”. He also reiterates that “a legal system that conforms to the rule of law principles offered can nevertheless be unjust or fail in some other significant way” (Joseph Raz, The Law’s cit., at 9).
Similar observations, though based on partially different assumptions, are carried out by Brian Z. Tamanaha, “The Rule of Law” cit., at 14 and ff.
The theme is developed in Salvatore Mancuso, Liquidità e comparazione, (2018) Pisa, Pacini Giuridica.
The article in question provides: “The State recognizes the different normative and conflict resolution systems that exist within Mozambican society, insofar as they are not contrary to the fundamental values and principles of the Constitution”.