Wallace G. Mills Hist. 316 13 Law
Law and Tradition
- despite the arguments of ignorant whites that there was little law except the despotic will of chiefs, there was in most African societies a sophisticated conception and system of law; as we noted already, in most cases the chief too was subject to the law.
- as we have already noted more than once, tradition and custom were very important in African societies. One can readily imagine why this might be a special concern in non-literate societies with a desire to maintain continuity from generation to generation.
- the maintenance of tradition and custom was the special concern of the ancestors and the almost universal ancestor cult (the Nuer were one of the few exceptions) meant that powerful religious sanctions were in place to preserve tradition and custom. This bias was also reinforced by the fact that status and power in most African societies, particularly within the family (and families were often highly organised), was correlated with age. There is a strong tendency for people to view the times and people of their youth as a golden age; frequently, they want to preserve that or go back to that time as much as possible.
- custom and tradition were the only basis for law in most African societies as most authorities did not have the right or power to make laws. Authorities were expected to obey and maintain customary law, not change it.
[The English common law, which is the basis for our legal system, is rooted in similar origins.]
- there is a strong legal sense and respect for law in most African societies. You will have noticed how prominent the system of courts and appeal processes are in African political systems; judicial functions were among the most important functions for chiefs and kings.
- moreover, knowledge of law and customs as well as skill in debate and arguing legal issues were very highly regarded in most African societies; this was an important means for gaining status and influence—often the primary means for someone of common birth.
- in most societies, there was no distinction between civil and criminal law, in the sense that we distinguish them. What we would consider criminal offences (especially crimes against the person) were treated as offences against the chief.
- e.g., murder deprived the chief of one of his subjects or people.
- execution was not too common in African societies; the argument was that killing the perpetrator would in fact double the loss to the chief. Instead, a fine was assessed on the individual and his/her kin (usually quite a hefty one with some variation depending upon the wealth and status of the perpetrator and of the victim).
- the payment of the fine was normally to the chief, not to the kinsmen of the victim, but the chief frequently made a ‘present’ to the close relatives of the slain.
- this process of levying and collecting fines was called ‘eating up’— “The chief ‘ate up’ so and so.” ‘Eating up’ not only provided the sanctions for the law and punishment for law breakers, but it also provided a major source of revenue to the chief; incidentally, it also provided a means for cutting down subjects who were threatening to become too rich and powerful.
- the chief was usually assisted by a number of young men who went out and collected the cattle when a verdict and fine had been imposed. Except for witchcraft, most crimes against the person were handled in this way.
- crimes against property (theft, etc.) usually meant a return of the stolen property plus a fine (to the chief or headman hearing the case).
- most other matters were straight civil suits; especially frequent and tangled were matters of inheritance (with polygynous families) and lobola (bridewealth).
- each ‘house’ in a polygynous family had certain property and rights.
- lobola involved substantial amounts of wealth; after several years in case of marriage breakdown or failure to produce children, there would be very tangled problems to sort out. What had happened to the cattle? (Often cattle received as lobola would be used as lobola to assist a brother to get a wife or it might be used to pay back debts, perhaps even for assistance in paying lobola for the girl’s mother!) Had there been any offspring from the cows and where were they? Had there been any children in the marriage? (If there were children, this would reduce or even eliminate the amount of lobola to be repaid.). Fault would also have to be considered in divorce cases; if the woman had been treated badly, then no lobola would have to be repaid; however, if she were at fault, then some or all of the lobola would have to be repaid.
- the crime of witchcraft was in a category by itself. This was often considered the most serious crime. People felt vulnerable because witchcraft was so insidious. A wife who became very unpopular among her in-laws was liable to be accused of witchcraft and sent away back to her family.
- witchcraft against the chief was akin to treason and was punished by death if apprehended. It is notable that when pressure mounted in African societies during white intrusion and conquest (this was very prominent in Xhosa societies during the frontier wars in the 19th C), charges of witchcraft escalated and executions would mount. It was evidence of crisis and desperation as African societies tried to cope; in fact, in the Cape Colony, whites came to recognise it as a sign that a war was coming.
- the death penalty was sometimes invoked for persistent, violent law breakers (usually only after the man’s relatives had concurred because they had not been able to control him themselves).
- however, the more usual punishment was that such people would be disowned by their kin.
- these ‘outlaws’ would have difficulty surviving; anyone could kill them with impunity; they would have difficulty getting food, etc.
- only if they could get accepted in another society could they survive. This was certainly possible, but they would have to change their ways. They were likely to be regarded with suspicion and likely to be charged with witchcraft for anything that happened in the new society.
- there was in African law more emphasis upon group rights and responsibilities than on individuals.
- the family head and family were held responsible for and were liable for the actions of individuals. Fines were levied on the family for crimes committed by family members. This provided support for the individual, but it also gave families very big incentives to control the actions of unruly family members.
- in cattle thefts, the spoor law embodied what we would call a ‘reverse onus’; that is, if the spoor (or tracks) of stolen cattle were followed to your land and territory, then the onus was on you to show that the spoor continued beyond your land. Otherwise, you were held responsible (i.e, guilty until proved innocent).
- this ‘reverse onus’ often applied in witchcraft cases and could apply in other cases too.
- procedures were very open ended; the object was to get at the truth, although, except in a case of witchcraft, torture was not used: anyone who had any evidence even remotely applicable could be a witness; anyone attending could ask questions and cross examine witnesses; anyone could join in the debates over the facts or over the points of law. Cases could go on at great length until a consensus was reached.
- ordeals using oaths or poisons (such as we noted among the Kikuyu) were not universal in judicial proceedings.