Eurocentric Perception of Pre-Colonial Africa Justice Administration Process
Every society has its own methods of controlling the social order to achieve a decorous culture; hence the essence of the legal framework cannot be denied. So, the criminal justice system delivers among other things, corrective procedure by which social deviants are brought in conformity with societal norms.
The African society is not an exception to this precept and in fact an epitome of operative customary criminal justice system, which though largely unwritten before the advent of colonialism, integrated a lush African culture unto its civilization. The post-independence era of most African countries however, bestowed utter aversion to these hitherto entrenched opulent customary criminal justice administration, downrightly reducing the system to nothing including those of the Nigerian customary criminal law.
Influenced by the received English law system, most postcolonial African countries are currently faced with the question of reconciling contradicting and often negating foreign law enforcement methods. The negative attitudes towards the African customary law practices have naturally stemmed from the lack of genuine efforts by the postcolonial African States to manage or resolve the unconventionalities for the overall good of the people, aggravating social instability stemming from breakdown of moral values; personal discontent, alienation, and anxieties of rampant conflict situations.
Nigeria, while not by any means the only postcolonial African State in this situation, typifies immersed brashness of imperialists Eurocentrism that is sequestered in primordial convictions of the Western world. Whereas, successive postcolonial governments have ignored to fervently resist negative tolerance of African indigenous law enforcement and social control mechanisms; thus, the native law systems have persisted and remain widely practiced throughout the continent.
This article hence aims to discuss remodeling of law enforcement in postcolonial Africa to reflect the uniqueness of the indigenous peoples, to remedy foreign abhorrence of the African justice process in insolence of preserving the bath-water after throwing away the baby.
The fields of criminal justice administration and particularly criminology only appreciably developed in the recent years. The main concentration as a consequence, being in the English speaking countries and Western European countries that presaged a state of western dominance of especially the historical criminology, making the western countries to pride themselves of many patterns of work in some areas of these fields.
In Britain for example there are a great number of documented commentaries that relate to the history of crime and crime control (see Emsley, 2002; Gattrell et. al., 1980; Godfrey, 1999). Conversely, the dearth of criminological writings is a stumbling block to the African continent, even if there have been a marked change, as several authors have begun to advance this field (See Ebbe (ed.) 1996, 2000; Onwudiwe, 2000). Yet, the historical criminology of Africa is under-researched.
Additionally, penmanship of pre-colonial African history, especially those of sub-Saharan West Africa were largely ignored by mainstream academia since the authors that contributed to the field (for example, Karenga, Diop, Walker) were (at best) acclaimed for limited inquiry into Black (African) history. Whereas advances that paralleled such historical and concurrent theories of African criminology prior to colonisation could only be acquiesced by a few influential individuals and organizations, ranging from political figures, historians, journalists and the British government itself.
This comparative lack of exploration of African criminology lacking the conventional documentation of pre-colonial Black History provided clamp for the apparent lack of notional test of historical criminal Justice Administration that existed in Africa. That is to say, although the disciplines have not been completely obscured; Diop, Walker and Millar, for example have made references to (criminal) justice, much of which will be amplified by this article.
All the same, developments in this area have been and continue to be blighted by Eurocentric theories, that not only negate the existence of the criminal justice process in Africa prior to colonialism, but essentially endorse that law and order was a gift of it. This phenomenon has the undermining effect of being the conventional view at issue, devaluing the victims of European colonisation and diminishing the likelihood of alternative research being widely accepted or encouraged within this purview.
The regions of the African continent that will be examined for our present purpose will be the domain of the Songhai Empire, underscoring the existence of criminal justice system prior to colonisation. It is important to note at this point that the Songhai Empire should not be taken to reflect the entire continent of Africa (the reasons for which will become clear soon). On the other hand, the proponents of pro-colonial viewpoint describe Africa as a homogeneous entity (including the geographical area covered by the Songhai); which this article will serve to disprove to emasculate the aforementioned European colonialist propaganda and in fact be exposing it to be (however witting or unwitting) a distortion of African history to justify, or rationalise European colonialism.
From the Eurocentric pro-colonialist propaganda perspectives, people have been and continue to be misled to assume that the European colonialists brought the criminal justice system as well as law and order to Africa. Yet there is preponderance of evidence that this not so, as held by the following submissions:
“From a very early date the influence of Islam had made itself felt in the North, and the religious revival of the early years of the nineteenth century had formed the motive for the Fulani conquests, which swept the country from Sokoto in the northwest to Yola, 1,000 miles to the East, and from the Sahara to the confines of the Equatorial Belt. The social and religious organization of the Koran supplemented, and combined with the pre-existing, and probably advanced form of tribal administration handed down from the powerful Songhai Empire, which had extended from Chad to Timbuktu. The courts were served by judges erudite in Moslem law and fearless in its impartial application. The system of taxation was highly developed, and the form of Administration highly centralised”. – F.D. LUGARD: (colonial Governor-General of Nigeria), at paragraph 2.2:Report on the Amalgamation of Northern and Southern Nigeria April 9th, 1919.
Accordingly this article is designed to drawing on academicinvestigations of African history in establishing the concentration and trend of the criminal justice systems in Africa, especially pre-colonial West Africa, earlier than the advent of colonialism. In this context of modern society committed to eradicating the Eurocentric cultural prejudices, this work will perhaps inspire other authors to continue tackling this under-researched area of social crime control mechanism, to reevaluate the distortions of ancient criminal justice in Africa in its right perspectives.
Motifs of propaganda
The malady of confusing and distorting views about Africa is not an uncommon phenomenon and (perhaps expectedly) those responsible are the very much revered Western societies and often the elite class. Expectedly reverberations of opinions continue to be very much promoted in mainstream society and popular news media (in the case of Britain, government publications) disseminating spiteful sentiments that are disdainful of pre-colonial African accomplishments and civilization through bigwigs like Hegel, who in one of his most prominent works stated:
“The peculiarly African character is difficult to comprehend, for the very reason that in reference to it, we must give up the principle which naturally accompanies all our ideas – the category of Universality…The Negro exhibits the natural man in his completely wild and untamed state” (Hegel, 1956:93).
Hegel is an epitome of exclusionist in downgrading of Africa and the entire black race. Who say group behaviors (whether in Africa or elsewhere) do not universally manifest passions for disorderliness? Yet, citing this biased view of Hegel’s is merely to eloquently suggest why it is necessary to point readers to the highpoints of negative perceptions about Africa (Young, 2000; Said, 1993). Similar sentiments of unconstructive allusions to Africa and its people have been peddled by such eminent personalities like David Hume, John Stuart Mill, Winston Churchill, Theodore Roosevelt, and more. In the context of this theme, perhaps one of the most derogatory is that of one of Britain’s most famed historians Arnold Toynbee who stated:
“When we classify mankind by colour, the only one of the primary races…which has not made a creative contribution to any of our twenty-one civilizations is the black race” (‘The Study of History, Vol. 1′, quoted in Jackson: 1972: 184).
Why on earth would anybody think that the colour of man makes him less creative to contribute to humanity? The views espoused by Toynbee and his cronies reverberate the works of other eminent and distinguished historians such as Andrew Roberts, Senior Honorary Scholar of Gonville & Cauis College, Cambridge. Though appearing slightly modest (at least in countenance) than the likes of Toynbee or Churchill; Roberts was rather fervent in defending the issues of British occupation in trying to justify colonization. Unlike Churchill who believes Europeans to be “a stronger race and higher ranking race” (Churchill to the Palestinian Royal Commission, 1937), Roberts’ renunciation of the African accomplishment is based on a rather compulsion for re-colonization, to improve the African lot as suggested by a topical tabloid:
“But in the short time that Britain ran large parts of it [Africa], a system of laws and good government was imposed that meant that endemic inter-tribal massacres were banished” (Daily Mail, January 6, 2005).
Roberts did not however propose any evidence as to why these laws and ‘good government’ needed to be imposed, yet justifies why:
“Churchill and his contemporaries believed that the most developed countries, such as Britain, had an absolute moral duty to bring civilisation to those that were less developed” (ibid).
Whilst Roberts does not also proclaim African values to be unenforceable, his intolerance of pre-colonial African justice methodology is utterly based on Eurocentric fanaticism, supported by another uncouth commentary on Africa:
“Africa has never known better times than during British rule, whereas before-hand there was anarchy and all too often afterwards, tyranny…Might not a reintroduction of the English speaking world’s cultural creed, such as technical expertise, impartial justice, financial rectitude and ethical business practices, be exactly what so many countries – in particular those in Africa – need right now? (Daily Mail, January 8, 2005).
The Daily Mail (according to the Audit Bureau of Circulation Statistics) produced an average daily circulation of about 2.5 million in 2004, making it the second most popular UK Daily National Newspaper (ABC, 2004) – that is to say deliberately distorting Africa and its people to such a catholic audience of readers.
Yet again the contrived ‘lawlessness‘ of pre-colonial Africa is not enlisted in any particular manner. Contrariwise the facts to be established in the fullness of time knock off ingredients out of this spiteful overtone for a re-colonization of Africa for the continent to be relevant in the scheme of global reckoning.
Put tersely, how voguish a statement, and uncharitable distortions of the views of western propaganda? The defamation of Africa as an expanse lacking orderliness is not just the mainstay of neo-colonialist propaganda but a classical attitude of British rule, who also speculated in a contemporary publication that:
“For many indigenous peoples in Africa and elsewhere the British Empire often brought more regular, acceptable and impartial systems of law and order than many had experienced under their own rulers…The spread of the English language helped unite disparate tribal areas that gradually came to see themselves as nations” (Home Office, 2004).
What a deliberate distortion of facts! Evidence abound that the prevailing conflicts tearing Africa into shreds are the consequences of abhorrent European conquest with inconsistent colonial policies. For many centuries, Africa was branded by the Western world as the“dark continent”, denoting an unexplored, savage and untamed region, populated by heathens and wild animals. With this kind of mentality explorers classically roused the desire of traversing a hostile and unfamiliar place, yet Africa was an allure to many European explorers.
The colonization of Africa in this manner, thus produced a lingering history of the most absurd phase of the European Scramble for Africa in the nineteenth century. Therefore, the legacy of British colonisation in Africa with retrospection is largely an unsavory experience; in that most of the former British colonies have found it difficult to build stable liberal democracies to achieve sustainable levels of political and economic stability.
Nigeria for example came into existence on the 1st of January 1914, as creation of Britain and has since then (almost a century of existence) been enmeshed in conflicts and bloodshed that still remain the core roots of ethnic disagreements. The diverse nations and tribes remain hostile, at loggerhead to each other even after achieving independence from Britain in 1960, because the various tribal groups with different cultures, and political affiliations were “forcibly” brought together under British rule to form an entirely unworkable make-believe country.
The volatility and confusion rooted on this mutual suspicion of the ethnic nationalities since the advent of British colonial rule is summed up by a protagonist (ChukwuemekaOdumegwu-Ojukwu) of the Nigerian civil war of 1967 – 1970 thus:
“The true problem with Nigeria is that she is truly embroiled in an identity crisis. The Nigerian of today is a socio-path in search of a society. Our leaders have been and still are politicians in search of a national program. We live in a country in search of a common character. The source of our problem is rooted in our fear of unity… this disunity has distorted, complicated and to a large extent stultified every development effort undertaken by government. The effect of the shibboleth called dichotomy is so very well known that it has become a cancer in our body politic…” (Odumegwu-Ojukwu C: 1989)
Therefore, from Hume to Toynbee and to the present-day, the Eurocentric assumption of Africa’s neediness of civilization or self-worth (or in more recent times), objectivity of law and order that should be substituted with re-colonization is blatantly imprudent and premised on irrational judgments. Quests for evidence in backing of this arrogance accentuate unfounded speculations with regressive interpretations that cannot be of material benefit to Africa of the present age, other than inordinate pursuits for imperialist re-colonization and subjugation.
Apart from history replete with versions civilization starting from Africa (Egyptian pyramids etc.), the Songhai civilization is by design suitable for knocking-off the subjective attitudes implicit in the Eurocentric chauvinisms as shall become lucid shortly; its geographical landmass covers many of the modern countries that were subjected to European (and in effect British) rule. Additionally, it provides some of the most inclusive and indisputable evidence of pre-colonial Africa that were presented in the European languages. But for the purposes of objectivity, a brief explanation of the Songhai Empire is essential before specifics are examined.
Social control in postcolonial Nigeria and most of Africa is largely classified into the indigenous and foreign varieties. In the Nigerian context, the indigenous diversity is rooted in a multiplicity of Nigerian traditions, customs and native laws, while the foreign type takes source from England and bears the hallmarks of European culture. But it is equally true that over the years, the English social control mechanisms adopted for Nigeria has taken on some garb of local African content, the same way it effectively maintains the English and European background – i.e., it is typically alien to the Africans.
To be precise, the modern Nigerian setup for instance imposes an outlandish system that presumes to modulate the lives of local people who are down-to-earth alien to the European culture. The lifestyle and environment of a Nigerian and/or other African is fundamentally different from that of English or other European, for which reason, the English social control practices has not been compatible to policing the African society.
Hence the assertion that the English-based law enforcement apparatuses do not estimably guarantee a stable postcolonial Africa that tends to be supported by prevalence of confusions in the various African countries. To many African observers, the postcolonial modern nation should earnestly pursue social controls that are consistent with the yearnings and aspirations of their peoples and in fact jettison the old-fashioned vestiges of the ex-colonizers’ justice administration systems. Harmonious with this conviction, Africa’s contemporary social control mechanisms must be actually balanced with the modern-day values and not Eurocentric obsolete postcolonial versions of imperialism. Whatever the case may be, social control in postcolonial Africa ought not to be entirely contingent on erstwhile imported British judicial variety.
Since there is really nothing classy about the European social control system – the English system as a model developed from the traditions, customs, and native practices (tribal laws) of the people of England should not be imposed on those of Africa. Accordingly, the English system will be perhaps best suited to adjudicate relationships among the English people, and not among Africa’s wide-ranging ethnic nations. The prevailing postcolonial justice system establishing dual structures (foreign and indigenous if at all allowed) should be scrapped to reflect African peculiarity. Alternatively, African States including Nigeria should improve their legal systems on archaic ordinances that devalue indigenous social control practice in favour of the borrowed foreign techniques.
While the foreign systems reflect alien (usually European) standards instead of the native customs, the average African suffers the perplexities of (normless) condition in which bureaucracies override native rules of conduct that contrast, and disconcerts the local customary practices, as is the case with Nigeria (Okafo, 2005, September 23, Internet sources).
Despite that the African elites’ and official governments’ trends to sponsor and promote European social control systems to the detriments of local African jurisprudence, the traditions still persist with several factors actually being responsible as distinct from the opulent evidence in the subsequent illustrations.
Development of pre-colonial justice system
The Songhai Empire developed in the mid-fourteenth century when Ali Kolon ascended the Songhai throne and achieved independence from the Malian Empire. Songhai remained sovereign until another emperor Sonni Ali Ber captured most of the Malian Empire, annexing additional territories. Several generations after Sonni Ali Ber, the most creative of the Emperors, Askia Muhammad (b. Muhammad Toure, a.k.a. ‘Askia the Great’) came to power. Many scholars have described Askia’s reign in detail based on written evidence of that era, or citation of authors based well-founded facts (see Diop, 1987; Walker, 1999:52-58; Walker and Millar, 2000).
For a clearer picture, modern states that were included in the then Songhai Empire – Senegal, Gambia, Guinea-Bissau, and almost all of modern-day Mali including large parts of Niger, Guinea, Mauritania with small parts of Sierra-Leone, Cote D’Ivoire, Benin, Burkina-Faso, in addition to the northern portion of present-day Nigeria known as ‘Hausaland’. As a result, in terms of land mass the Songhai Empire was the largest West African civilization famed for various academic institutions. In their descriptive account of the Songhai Empire, Robin Walker and Siaf Millar informed that: “The subjects taught at the tertiary levels were mathematics, accountancy, grammar, Islamic law, logic, astronomy, geography, poetry and art” (Walker and Millar, 2000:49).
At this point it is important to re-evaluate how authors have failed to provide evidence of limited accounts, besides vital factual proof of pre-colonial Africa, which serves to emasculate the declarations of distinct lack of realization or contribution to civilization, as asserted by Toynbee. Moreover, the issue of good government and objective law and order – raised by Roberts and the Home Office respectively – can be deflated by examining the facts about Songhai. The Songhai Empire built-in an organized government and administrative system consisting of a number of ministerial positions: Tari-mundio (Inspector of Agriculture); Barei-koi (Chief of Etiquette and Protocol); and Tara-farma (Cavalry Chief). Several other executive positions existed both at central and local level.
Once again, this evidence can be traced back to the period in question, and by the very nature of having ministers for minorities, the notion of the lack of ineffective justice is dented. From these findings we can start to see a pattern emergin on how fitting the phrase ‘Western Thought’ is. Until a clear time-bound evidence that substantively counters the proof offered here emerges, theory is what it will remain to be.
Before examining the Songhai on the subject of criminal justice and the law, it may be useful to echo how the Songhai Empire came to an end in 1529 when Askia Muhammad was overthrown by his son Musa and the Songhai Empire fell into decline. Although several leaders followed, it was eventually destroyed in the wake of a Moroccan invasion in 1591.
Justice and the Songhai Empire
Along with the local ministers designated above, there were also local head-judges or Grand-Qadi. The justice system was two-fold: that of the monarch and that of the Qadi. The Qadi was appointed by the king and dealt with common-law misdemeanors or disputes either between citizens and foreigners or amongst citizens themselves. The disputes were settled by the procedure of a tribunal, administered by the Qadi. The Qadi also had power to grant pardon or to offer protection. Given that the Qadi was a Muslim Head-Judge, the public-law in this context appears to be adminisred through the Islamic (Qur’an) Sharia Law. Diop also affirms that due to large-scale commercial immigration, another judge apart from the Qadi was appointed. This judge was able to settle disputes between the immigrants merchants. (Diop, 1987:124). Evidence of these Qadi’s, judges and their functions is also provided by two authors of that time Kati and Sadi, (see Kati, 1913; Diop, 1987, Hunwick, 1999).
Royal justice concerned crimes such as treason. The king did not always judge the defendants but sometimes insisted on doing so, and in Diop’s book there is reference to two kings doing so: Askia El Hadj and Askia Ishaq II (Diop, 1987:126). The town crier announced results of trials or tribunals that were of public interest. Punishment usually meant confiscation of merchandise, or imprisonment, as there were a number of prisons in the Songhai Empire. In fact:
“There was a state prison for political offenders, which seems to have served a purpose similar to that of the Tower of London, and the courtyard of the prison of Kanato was no less famous in local annals than Tower Hill” – Lady Lugard: 1906:199-200.
In addition to the more common forms of punishments, there were rather some strange ones, such as being buried alive inside a sewn-up bull’s hide (Diop, 1987:126). However, the latter punishment concerned a local minister and may have been awarded him because of his status even though there was no information as to the nature of his crime. The use of the word ‘unusual’ is emphasized because in comparison to those used in Britain at the time it was no more barbaric or uncivilized, nor less acceptable than that carried out in Britain during the same period, as Farringdon highlighted:
“The penalty for not attending church in the time of Henry VIII was the loss of one or both ears…His son and successor, Edward VI [made] the crime of brawling in a church or churchyard…punishable by mutilation…Poor standards of hygiene meant that the punishment of mutilation was tantamount to a death penalty for many” – Farringdon, 1996: 27.
As already mentioned, the Qadi worked at local level with several of them posted to the major cities such as Djenne, or Timbuktu. This was also the case for the assara-mundios who were police chiefs as documented by Diop (1987) and Hunwick (1999), both contemporary writers that documented evidence of a number of Arab scholars including Kati and Sadi (African researchers whose work dates back to the 16th century). Diop indicated that the assara-mundio “was a kind of police commissioner” (1987:111), whereas, Hunwick merely made a passing synopsis in his appendix, suggesting that the ‘ashar-mondyo’ could have been an assistant to the Qadi (Hunwick, 1999:336).
Kati (translated from Arabic to French by Houdas and Delafosse in 1913) mentioned this administrative position a number of times. The translated text referred to the following: “assara-moundio de la ville de Djenné” and “…chef de la police ou exécuteur des jugements…” in the associated footnote (Kati, 1913:60); “Le Tombouctou-moundio” and “…commissaire de police de la ville de Tombouctou” in the related footnote (Kati, 1913:202); and “[L]e moundio et le tassara-moundio” and “inspecteur ou chef de la police de la ville” in the related footnote (Kati, 1913:239), which also contains cross-references to p.60 and p.202.
These phrases translated into English denote “assara-moundio of the town of Djenné”, “chief of the police and executor of judgements”, “police commissioner in the town of Timbuktu”, and “inspector and chief of the police of the town” respectively. There are further references to the assara-moundio, police commissioner and executor of judgements in both the text and the footnotes (Kati, 1913:223).
Despite these sources being interpreted from Arabic, it is strikingly archaicthat it suffices to consider it to be synonymous with the present day’s systems of governments and policing decentralization.
African Justice and the law enforcement before Songhai
The security obligation for crime prevention and general law enforcement duties in the traditional African society devolves on various community members, groups, institutions and nomenclatures. Such responsibilities rest on the structural levels of supervision as the family, the extended family, the village, village clusters, the town and groups of towns based on well understood geographical and jurisdictional capacities under considerations.
At each administrative level, there are provisions for security maintenance, crime prevention and general law enforcement in the entirety of community acting together or, as is more often the case, through their elected or appointed representatives as well as by specialized agencies, such as the Age Grades.
Thus, the natives willingly participated in programs and activities crime control and deviancy in the society; that is to say, members individually and collectively play security roles in each society’s law enforcement drive. The main reasons for this wide acceptance and acceptance of the local law enforcement procedures is that the citizens know their social controls, justice and law personnel well. Like in other aspects of social control, justice and law enforcement in indigenous Africa have strong linkage of the traditional mechanisms for maintenance of law and order.
The pre-colonial Africa instruments of law enforcement varied from one community to another; yet, there was originality of security, justice andfairness in the African way of applying the native controls developed out of the local traditions, customs and native laws. In addition to information on the Songhai Empire itself, there are references to justice in western Africa in several books prior to the Songhai Empire as reported by Muslim scholars and merchants who traveled to West Africa between the 11th and 15th centuries. These traditional African crime control and general law preservation were based on peculiarities of the individual society’s historical antecedences, yearnings and aspirations.
While traveling in Ancient Ghana in the 11th century, Al-Bakri for instance referred to the king’s “court of justice” (Levtzion & Spaulding (eds.) 2003:15). Al-Idrisi, writing a century later, also with reference to Ancient Ghana spoke of the “widely-known justice” of the ruler Takruri, besides, he referred to the people of this region as “black in color with crinkled hair” (Levtzion & Spaulding (eds.) 2003:29). Al-Idrisi moreover described another ruler in Ancient Ghana as follows:
“One of his practices in keeping close to the people and upholding justice among them is that he has a corps of army commanders who come on horseback to his palace every morning…When all the commanders have assembled, the king mounts his horse and rides at their head through the lanes of the town and around it. Anyone who has suffered injustice or misfortune confronts him, and stays there until the wrong is remedied… His riding, twice every day, is a well-known practice and this is what is famous about his justice” – Levtzion & Spaulding (eds.) 2003:32-33.
Ibn Khaldun wrote in the fourteenth century that “Mansa Musa [a king in Medieval Mali] was an upright man and a great king, and tales of his justice are still told” (Levtzion & Spaulding (eds.) 2003: 94). Also, in the fourteenth century Al-Qalqashandi mentioned judges, magistrates and jurists, with reference to the king of Borno, Borno being located in the same vicinity as it is now, in north east Nigeria, although in those times Nigeria did not exist as a state. Furthermore,Ancient Ghana was not situated in the same area as modern Ghana. It was situated where modern Senegal and western Mali stand and was a geographical precursor of Songhai. It is believed to have begun in around A.D. 300
This proof of the existence of justice (despite the lack of detail) earlier than Songhai along with that of Songhai itself proves the existence of the criminal justice process among the inhabitants of Africa, prior to colonial influences. Not merely that, the justice system was well organized by fundamental administrative apparatus (i.e. the emperor) and administered at local level.
For instance, the Youth’s Age Grade among the Igbos of southeast Nigeria could be charged with obligation for security and general law enforcement. The community hence could order and expect the Youth’s Age Grade to apply universally sanctioned vigilantism to foil criminal inclinations by identifying, apprehending, and putting on trial suspected social deviants. In addition they may be required to enforce judicial decisions, such recovery of fines (oriri iwu) or publicly shaming and humiliating a non-conformist (igba ekpe) (Okereafoezeke, 1996; 2002).
Also in the pre-colonial era as in communities of the present day Igbo, the mmanwu (masquerade) among other roles has the obligation of preserving and maintaining law and order in Igbo land as the case might be. The masquerade cult (mmanwu) as [traditional] administrative functionary’s has several responsibilities to ensure submission to punishment meted by the commune on an offender. The masquerades could raid an offender’s residence, and confiscate all his properties until the owner paid the stipulated fine for his crime to repossess his property with additional payments of fine. Some of the intelligent masquerades (iga), also mounted surveillance over strategic village interest like streams during the dry season to prevent abuse of use of water and communal utilities – oral account of Noo Udala (102 years elder statesman), native of Umuaga, Agbaja, Igbo, quoted in Isichei, 1978, 74).
“Informal social controls are prevalent throughout the world, especially in developing countries. They are the cornerstone of law enforcement and access to justice for the majority of populations, especially the poor and underprivileged that usually resolve between 80 and 90 percent of disputes through the Alternative Dispute Resolution (ADR).
Some aspects of the social control mechanisms in contemporary African societies are hence not unlike those of the pre-colonial practices. Through its direct functions, traditional/informal control systems are considered to significantly enhance people’s access to justice especially for the poor and disadvantaged. Access to justice being characterized as:
“ability of people to seek and obtain a remedy through formal or informal institutions of justice and in conformity with human rights standards”.
Four main characteristics of traditional/informal justice systems explain their role in enhancing effective crime control.
- Use of local languages: the language(s) used in traditional/control systems is indigenous and thus familiar to the common people, whereas the formal system generally uses only the official language(s) of the state which may be unfamiliar to many people living in rural communities.
- Geographical proximity: institutions of the formal control systems are usually located in the capital city or regional capitals and are thus geographically remote from people living in rural communities. Traditional/informal control systems on the other hand are located in villages and are geographically easily accessible to people.
- Cultural relevance: formal legal proceedings can be complicated and confusing, whereas traditional/informal ones are more familiar and easily understood; it therefore has a better chance to fit the priorities of the communities and local implications of a conflict; hence, its verdicts may be better accepted.
- Costliness: preference for the formal security system can be costly and time-consuming because it often entails traveling long distances, paying transportation costs and legal fees, all of which are generally very reduced with the traditional/informal control, this system can also be more efficient as it is generally less bureaucratic.
In short, “informal controls are often more accessible to poor and disadvantaged people and may have the potential to provide quick, cheap and culturally relevant remedies.” Moreover, in post-conflict societies, people may use traditional and informal control systems not only because these systems outperform formal ones but also because they often deal with issues that the formal justice system does not, or they find solutions and deliver remedies in ways that are more relevant, effective or socially acceptable.
Factors that promote native social control in modern African States
Citing the Nigerian State to exemplify this segment of the article and to succinctly pinpoint legitimacy for examining reasons for preference of traditional social control method, Okafo (2005), extensively draws on the August 2004 Okija incident (in which the Nigeria Police Force retrieved dozens of human skulls and decomposing corpses from an “evil forest” at the site of Ogwugwu Isiula, Okija, a traditional Igbo shrine in Okija town – southeast, Nigeria) to illustrate the efficacy of traditional social controls bearing evil oddity that is morally reprehensible, and asks:
“Why do the Okija’s … exist and flourish among us?” The fact that Nigeria’s official Criminal Code criminalizes the type of traditional crime management that apparently occurred in the August 2004 Okija incident makes this question particularly relevant. The Code defines this form of native-based crime management as a “trial by ordeal” punishable under sections 207-213. In view of this pungent, negative official attitude toward this traditional process, those Nigerians that persist in managing their civil and criminal cases through the deities must be doing so for compelling reasons.
The prevalence and as many would argue for efficacy of the native social control mechanisms in postcolonial African States is very well established (see Nzimiro, 1972; Okereafezeke, 2002; Elechi, 2006) with (Okafo: 2005, Okereafezeke, 2006) further advancing a number of justifications for the continued resort to spiritualisms and mystical practices approximating the Okija’s and other such indigenous criminal justice process in the society as enunciated by the following explanations:
- (Perceived) Ineffectiveness and Inefficiency of English Law and Justice: In the face of escalating societal crimes (particularly unsolved violent crimes), many, perhaps most Nigerians no longer have faith in the formal crime control mechanisms and view the English system of law and justice as ineffective and inefficient.
- Alienation from the British-Imposed, English System: The imposed English-built common law system of social control lacks the basis as practiced in Nigeria because it is bereft of the cultural essence it enjoys back home in its native England. The common law hence, is a failure for vote of no confidence by the people.
- Pride in Culture: The innovation and persistence of home-grown social control techniques somewhat derives from assorted African natural human inclination to resist British “substitutive interaction” (Okereafezeke, 20: 18-20) policies toward the natives. By their obnoxious policies, the colonialists sought to abolish, emasculate, or substitute the original justice systems and practices with the British versions.
- Mounting evidence against a “Developing, Modern Nigeria”: In virtually every respect, the public institutions and infrastructure of the State (energy, road networks, Medicare, educational institutions, electoral process and organization, etc.) have become very much tarnished. Nowadays, the public utilities and infrastructure are in virtually all respect become decadent far worse than they were under British imperial rule, mainly because of entrenched corruption of the unfeasible colonial heritage.
- Yearning for speedy and cheap dispensation of justice: Justice in the English-based judicial system is too expensive, time consuming, and unresponsive to the aspiration of the common people and indigenous African culture. The continent’s native social control mechanisms on the other hand, appear to satisfy this nostalgia for quicker, informal, less expensive and culturally relevant justice and social order.
These and many more reasons as submitted above for a sustained and enduring appliance of the native social control model support the opinion that the tradition will not die in hurry. There are credible and objective socio-cultural and coherent ethnic cum religious reasons, beside explanations of ineffectiveness of the formal justice administration system over and above peoples’ conceit, and indifference occasioned by resources limitation in favor of the traditional African belief to fall back on their accustomed native social controls, rather than the atypical English-based system. The practice will probably endure and most likely wax stronger as people lose faith in the official English-based system.
As with many African countries, as long as the aforesaid reasons persist, indigenous law enforcement systems and practices and other social control apparatus will continue to thrive and persist even stronger in “modern” African states. With particular focus on law enforcement as with the Nigerian model, the subsequent sections of this article examines the role of indigenous law enforcement as well as the nature of the relationships between the local and the official European-based criminal justice systems.
Eurocentric thought and Afrocentric evidence
Returning to Roberts’ comments, the preponderance of above facts highlight a variety of ministerial positions, a regional structure of the government, Ministers for minorities, judges, Police Commissioners and academics. Not only are these facts very well established they are presented to be of high status known to England of that time, making the comments about the need to impose systems of government or references to anarchy groundless and unwarranted.
Furthermore, they provided services for people in their country something relative to modern the criminal justice concept in Europe. Whilst being mindful of Howe’s disdain for comparing these achievements with modern societies, examining Songhai in tandem with Britain during the 14th and 16th centuries on a purely comparative term would be remarkably curious in the context of knowing how the two were analogous or dissimilar.
What is unclear – perhaps as a result of the Eurocentric slanting of Africa’s past and partial distorting of the information about it – is that there is little evidence provided beyond how these individuals carried out their ministerial or administrative tasks. The supplementary works on Songhai’s antecedents pose further questions for example, as to who created these arrangements and why? Evidence suggest that between 10th and 16th centuries, West Africa advanced a system of criminal justice and governance contrasting what is portrayed by the colonizers, their successors, or modern commentators.
Yet, that is not to say that these are anything comparable to the arrangements obtainable in Britain in the past. But, in addressing the rationalizations of Toynbee, Churchill, Roberts and the Home Office, it does not seem to be the deficiency of good governance or administration, nor the ‘better’ criminal justice systems that need to be imposed that is the kernel of the Eurocentric defamations of Africa, given that Britain was at a point in history at similar stage of development. Again this shows that the African perceptions in contemporary societies (in the UK and/or other Western countries for example) are no different to, and have their origins in pre-colonial sentiments. To be exact, the powers that be should change their negative attitudes towards Africa and to rather prevail on professionals to adopt more investigations of the criminal justice field from the indigenous facets.
Finally, most of the works examined in this article, despite being rooted in primary evidence does not seem to even infer a lack of cultured behavior of the African or the black people en bloc. Whereas evidence and other findings above suggest that:
- In terms of administration and governance there are similarities with Western systems (especially Britain);
- In some instances the Songhai governments surpassed their European counterparts, providing ministers for subgroups in their kingdom, strife or conquest was the criterion of European appraisal of events at that time. The invasion of Mali does not appear odd when examined alongside similar European attempted incursions like the Spanish Armada yet that society in considered more humane than Africa.
This final point that must be made tends to explain interpretations of the Eurocentric theorists: that what occurred in pre-colonial Africa, despite the semblance of events or achievements of the both societies is that they are not viewed as equal.
The evidence provided only serves to demonstrate that not only are these notions (and that is all they are), are not premised on objective facts. This is especially disturbing because these designs are the nearest to the mainstream view in many societies all over the world and moreover impedes the likelihood of an impeccable African Historical Criminology. Unless the one-sidedness is redressed the status quo remains with the recurrent twisted state of affairs.
Society is made of people with diverse cultures, manners and ways of life, yet people must relate with one another in the course of daily existence. By this process, some do intentionally or advertently step on the toes of others. Redress mechanisms has to be in place so as to check the excesses of the lawbreakers and delinquents, if peace and order are to be maintained in an organized society. It is against this backdrop that the state creates the criminal justice apparatuses to regulate the societal conduct.
The Criminal Justice System in Africa has a good history that was developed from sources, the subject matters of which have been examined in great details in this article. In most pre-colonial states of Africa (like Nigeria), there existed some systems of customary criminal law which regulated the standards of behaviour of the people; even though the laws were generally unwritten.
The communities with Islamic religious practices had a highly developed system of Moslem law that regulates societal conducts and crime control with different schools as the Maliki being one of the most prominent. Paganism also with its unique traditional religious practices enforced communal discipline with its peculiar criminal law. But when the modern English common law practice was introduced into the colonies (in the case of Nigeria by ordinance No. 3 of 1863 the Customary Criminal Law was unconditionally abolished by a proclamation articulated in the 1959 Bill of Rights developed and approved by the Colonial Government in London. The various political evolutions in the diverse protectorates and colonies hence manifested transformation of of customary criminal law practice into the English common law system.
Lord Lugard (governor of the Northern protectorate) for example in 1904 introduced by proclamation a Criminal Code which incidentally was made applicable to the whole of Nigeria in 1916 after an ignoble amalgamation of the Northern and Southern Protectorates in 1914. Yet, elsewhere, particularly in some parts of Southern Nigeria, the application of customary criminal law remained in practice. The British Government however incorporated the following clause into section 22 (10) of the 1963 Republican Constitution. That section of the constitution reads:
“No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law”.
The foregoing became basis for later court’s decisions, as in the case of Aoko V. Fagbemi (1961) I All M 400. In that case, the court held that a woman could no longer be convicted of adultery (a morally reprehensible conduct) which has not been elevated to the level of a crime in the Criminal Code, effectively outlawing the unwritten customary criminal law enforcement because the state’s codified the criminal law system (Criminal Code and the Penal Code) supercedes the indegenous criminal law of the people. While for effective administration of Criminal Justice administration, the courts are only authorized to apply the English patterned codified Criminal Procedure code, and the Criminal Procedure Act, Laws of the Federation of Nigeria, created by the custom of the people and decisions of judges in England.
The facts so far presented, climaxes Eurocentric biasedness of the workings of pre-colonial Africa criminal justice system with several aspects of the social control mechanisms permeating contemporary African societies, unlike the pre-colonial practices, the functions of the traditional/informal control systems significantly enhance people’s access to justice especially the poor and underprivileged who cannot afford the grandiure, costiliness and cumbersomeness of the Western type.
One main attribute of this was a two-tier system of justice, where customary law/Sharia law practices was dealt with by the Qadi, and royal justice administered by the King concerning crimes of treason. The regional police chief documented as the police chief assisted the Qadi, with their provincial responsibilities’ law enforcement and justice administration.
This comparison of historical criminal justice in Songhai hence exemplifies a number of parallels with Britain’s criminal justice system of the same period, for example the practice of common-law. That is, the judicial interpretations of local customs (in the case of the Qadi concerning the interpretation of Sharia law) and the decisions made thereof. This has been the foundation of the laws (including criminal law) in many countries around the world, including England and Wales. The similarities in terms of the more common punishments meted out (imprisonment, fine and confiscation of offender’s property) and also the systems of policing were alsoperceptible.
To reiterate, the Songhai Empire was only a small fragment of a vast African continent. In creating an image of the pre-colonial criminal justice process, the extant evidences are quite conclusive. Nonetheless, it may not be suggestive to assert that Songhai reflected other regions of the continent, neither is it possible without further proof to compare and contrast the different regions of Africa at that time.
Finally, with reference to the notion of British open-mindedness and fairness, history is replete with Eurocentric detachment and lack of objectivity of the criminal justice system involving Britain and other western interest (see Mhlanga, 1997; MacPherson, 1999; Bowling & Phillips, 2002; Phillips & Bowling, 2002; Young, 2002; Agozino, 2003). This again serves to undermine the validity of ‘impartial justice’ and the expediency of exploiting this reason to re-colonize Africa just as it were, as an unfortunate, erroneous and subjective justification or explanation with reference to pre-colonial Africa.
James O. Akpeninor
Email: [email protected]