Opinion
We Must Decolonize African Legal Systems
Published
2 years agoon

By
Toyin Falola
It gives me great pleasure to be here again at the University of South Africa (UNISA), one place I can solidly vouch for when it comes to upholding excellence and striving to advance the cause of Africanism. If other leading universities are consistent about their concerns, that is if they have any, especially about decoloniality or its variant in the academia and other facets of African life, then the pace of development might be faster.
Interestingly, I have two books already in production on “Decolonizing African Studies.” The first focuses on “Epistemologies, Agencies, and Voices,” and the second one explores “Ontologies and Methodologies.” In both, I exhaustively launch a full-scale decolonizing war, focusing on the vast means and aspects of African studies. While I will be talking about something similar, this is in no way related to the contents of my books, which focus on methods and practices. Here, join me in examining the Africanization of law and legal practice, which you should understand better the “why” and “how” it should be tackled. This is one area that is not being discussed enough in academia, and I am guilty of this too. However, with this opportunity at UNISA, the hitherto existing silence or inadequate discussion on decolonizing law and legal studies has ended. It is indeed very paramount to our existence, practices, and activities as a people.
Over the years, probably over 40 years now, I have devoted my life to the study and pursuit of decolonizing Africa, African history, African studies, African epistemology, African methodologies, and the list goes on. Perhaps sparingly in the past, but the subject matter of decolonizing the epistemology of law and legal studies is one I have not given enough consideration to. As a matter of fact, in the consortium of decolonial scholars, law and legal studies is one that has not been explored enough within the discourse of decoloniality and decolonization. When I got the invite from the University of South Africa, I assumed it was business as usual until I was informed it would be a congregation of “learned colleagues” of the bar. At this point, I had two options. But rather than still preach the usual using an alternative perspective, I realized there is a semi-lacuna in the examination of the impact of colonialism on the legal system in Africa, hence, the subject matter of the colloquium. I discussed a few things, some of which are stated below.
Across every sphere of Africans’ existence, there is an undeniable impact of colonialism in politics, economy, postcolonial sociocultural evolution, geopolitical configurations, religious dichotomy, and even more in the academy. Thus, there is might be little reason to delve into that anymore. What has been and should be a major concern is that decades after the colonial masters have left many parts of the continent and African countries have gained their independence, there is still every sense of Eurocentric influence widely present in many parts of Africa, especially in places where critical training or decisions are made about the growth and development of the continent.
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The argument further is that due to this established Eurocentric influence, the African system and epistemology have been subdued. As a result, there is little room given for genuine growth and development of the continent. What has been happening is at best described as a vigorous run in circles by Africans in a bid to develop the continent, only to end up wholly adopting the colonial epistemology or subjecting issues in Africa to the validation of Eurocentric views before they are even considered to be achieved by African working systems, which themselves have been patched to tilt in favor of Eurocentric views. Similarly, the same can be said for the practice of law and the legal system. However, while there have been continuous and repeated calls for decolonization, very few have been channeled towards law in Africa. Hence, a need to examine it this time.
Generally, early writings, particularly from Eurocentric scholars, have continued to paint the narrative of legal practice in Africa only at the point of the coming of the Europeans to Africa. Many of the existing accounts focus on what happened from the point of the colonizers’ arrival, while ignoring all accounts of the legal structure of the people of Africa before this widely reported arrival. Although that implies that Africa’s “worthwhile” or “relevant” legal history only started with the arrival of the colonists, there are sundry historical facts to assert that several parts of Africa had a legal structure that controlled the actions and regulated people’s relationships before the colonial masters.
For instance, in South Africa, there were the first inhabitants who were known as First Nations. These inhabitants had an African legal system that played a critical role in their existence and development. Through this, they were able to mete out punishments to offenders, control the actions of inhabitants and, more importantly, maintain law and order within their society. Even though they lived in kinship societies and applied indigenous or unwritten customary laws, they could achieve what a decent society should look like according to their African epistemology. These actions of the first inhabitants developed and reshaped indigenous laws that were applicable at that time. Today, although gradually, those indigenous laws are an important part of the sources of South African laws.
The same can be said of Nigeria. In pre-colonial Yorubaland, a functional and fair judicial system had no input from Western civilization but was similar to the modern concept of fair justice. While the Alaafin (king) sat as the chief judge on serious matters, there was a council with chiefs–the Balogun, Basorun, Iyalode, Asipa, diviner (in related cases), and others–who deliberate with the king on the best punishment to mete out when the accused is found guilty. Fairness, although not popularly pronounced, was a common practice then. As such, when there is a verifiable offence, palace guards were often sent to investigate an accuser’s claims, while witnesses were also entertained. Justice was hardly ever delayed. Denied? Maybe, just as it is now. Thus, Africa’s concept or belief lacked a judicial system, sense of justice, or legal system, among other things. It reeks of ignorance and deliberate mischief to continue to paint Africa as bad and justify their proven-to-be-fabricated narrative of civilizing missions.
However, upon arrival, the Europeans discarded African indigenous practices in favor of theirs, solely to use what works best for them at the expense of what works well for the African countries in which they were imposed, starting with the learning process of becoming a lawyer. The syllabus of teaching, mode of training, and ways of practice were all heavily rigged to ensure the practice of Western appropriateness rather than African relatedness, all at the detriment of African customary laws. Indeed, one could succinctly posit that legal studies are more wrought of Eurocentric views than many other disciplines. This is not farfetched; the body of law that holds force in African countries today is sourced from what is generally known as the Roman-Dutch Common Law. It also has the influence of English and French Common Law, establishing a strong, principled legal framework. For instance, Latin is one of the courses that law students take preceding their qualification. What Latin has to do with the African way of life is yet to be understood. What new epistemology will learning this course add to the general knowledge of law from an African perspective? What will it subtract if it does not add to it? Succinctly, why are deeper words not quoted in African indigenous languages and used in learning and practice?
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There is no gainsaying that Western legal practices have been antithetical to the legal, peacemaking, cultural, and even economies of African countries, the latter through the instrumentality of international law and finances that exploit the existing Western legal framework in African countries to keep them subservient to Eurocentric dictates. We cannot keep talking about the problems alone or spend our entire time discussing what I do not even consider is being discussed or examined enough. However, development is brought about by posing and implementing feasible solutions.
Decolonizing law, legal studies, and practices is no mean feat, and for a start, the importance of legal history should be taught to understand where we come from as Africans and where we are headed. Law students should be educated about African legal jurisprudence as much as they are taught about the influence of western laws on our legal system. Legal education should include living customary laws to revive those laws and create African consciousness about them. Furthermore, the curriculum of legal education must be relative and relevant to students in Africa. Lawyers and prospective judges should be trained to deal with the dominant common-law systems of African countries and living customary laws. It is also important to ascertain customary laws, especially the rules within a judicial decision-making context. Manipulation and distortion of living customary laws must also be addressed, particularly in power relations among different parts of the community living under customary laws. Also to be tackled are the endurance and social legitimacy of living customary laws, as well as the challenge of the universal application of human rights in relation to cultural rights.
When the above is implemented, some of the resultant effects will be that law students and lawyers alike can comprehend the significance and complexity of law within African constitutional frameworks. Future lawyers and judges will have the opportunity to understand important aspects of customary laws, including conceptualization, broad methodology, and the development of customary laws as a system within African constitutional frameworks. If future lawyers and judges are not given appropriate legal training about living customary laws, they will not have the right lens through which they can view these laws in their own right and not from the perspective of other legal systems. To decolonize customary laws, ensure their preservation, and prevent their extinction, they must be taught in the law curriculum.
As you must agree, there is a lot to examine within the concept of decolonizing law and legal studies. While I favor policy-makers taking more interest in reexamining this and tilting towards developmental change, African academics should start giving it more attention as well.
Falola is a Nigerian historian and professor of African Studies. He is currently the Jacob and Frances Sanger Mossiker Chair in the Humanities at the University of Texas at Austin. This article is made up of excerpts from a lecture delivered by Prof. Falola to the College of Law’s Centre for Indigenous Knowledge, University of South Africa on May 6, 2021.
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By Toyin Falola
“I do not feel obliged to believe that the same God who has endowed us with sense, reason and intellect has intended us to forgo their use.” – Galileo Galilei
Religion remains a much-debated issue, especially in Africa. It is one of the determining factors of our identity. It determines who we are, our beliefs, actions and reactions, and even our thought processes. Africans had their own culture and traditional religion until the advent of western civilization, which brought with it the ‘gift’ of Abrahamic religions—,Christianity and Islam—and judged African traditional religious practices as evil, pagan practice and witchcraft. The missionaries did a thorough job of making people believe that their religion was superior and righteous. Africans accepted these imported religions, and their traditional beliefs began to fade. Christianity and Islam are now the new order, and people are extremely devoted to these newly found Gods.
The Toyin Falola Interviews recently played host to music composer and songwriter, Beautiful Nubia. The question of Beautiful Nubia’s stance on religion pops up during the interview. He is known to promote African spirituality but has also defended foreign religions as advantageous. In response, he talks about his ancestral line: his paternal family were Olu Orogbo devotees (the Yoruba god of letters), and his maternal family were Ifa priests and Esu devotees. He said, “religion has always fascinated me like it gets people’s minds.” He opines that spirituality ties into what gets people so much into religion. Although he no longer practices religion, he affirms that these religions have positively influenced people to do good and show kindness to their fellow human beings.
He states, “Any organized religion has a set of dogma or doctrines they use to guide you to put you in there. You are there; it is like a strait jacket to keep you on the straight and narrow. Why I said religion is a good thing is because the purpose of this is to ensure that you stay on the straight and narrow, that you do good things.” We can agree that religion has contributed to the rise of morals to a certain extent, as the fear of God keeps many people from doing evil. It has curbed wickedness and negative traits inherent in humans and made many people see the world in a new light. Religion has spread the message of doing good and becoming a better human being.
Beautiful Nubia
The issue, however, is not the practice of these religions but the ability of leaders to sway people easily. Although imported religions have helped to stop the extremities of African religious practices, it has only accentuated people’s gullibility. Beautiful Nubia further states, “What is wrong with religion is that it gives certain people the power to use their followers. It is not the religion itself; it is the human beings who run these religious organizations who use their power to extract money from them and push them in the wrong direction.” Owning a church is one of the easiest and quickest ways to get rich, particularly in Nigeria. All that is needed to succeed in this business is to be a good actor, have nice clothes (suits, particularly), can win people over with words and give yourself an extraordinary title such as Rabbi.
It is common knowledge that the major reason why people attend church and Jumat services religiously are that they seek solutions to their problems. As much bad governance is enough to seek God’s intervention for various human issues ranging from terminal illnesses, protection, promotion, unhappiness, barrenness, unemployment, and marital problems, to poverty, which is an average African’s motivation to seek God’s face, also cause people to become staunch believers. To get swift, miraculous answers to these problems, many people fall prey to the traps of “men of God”, who only look to fill their pockets and bellies. This explains why a “pastor” would shut down his church after winning a 100 million Naira bet.
Pastors and Muslim clerics are considered mini gods who can do no wrong. The Bible verse, “touch not my anointed and do my prophet no harm,” is an ever-ready response by Christians in defense of their highly revered pastors who would not think twice before taking advantage of their desperation to get their problems solved. They forget that a “man of God” is first a man. Religion has rendered humans gullible to the extent that they excuse things their religious leaders do that are not even in tune with what is written in the Holy books. How do you explain a pastor who sleeps with a woman looking for the fruit of the womb and says his sperm is the anointing that will cause her to have her child? What do we say to a pastor who instructs his congregation to bring a greater percentage of their salaries to him so that God can answer their prayers? Should the man who claims to be an alfa but has exploited so many people in the name of being a ‘wonder healer’ be left alone? Churches and mosques nowadays see the desperation of people and feed off it. Many people come to church for prosperity and get ripped off the little they have, all in the name of miracles, signs and wonders. You could be in a church service and then suddenly hear the pastor say, “I see seven stars. I need seven people who will give the Lord Seven Hundred Thousand to come out now at the count of seven. One, Two…Seven!” You will be amazed at the number of people who will run to the altar to give the ‘Lord’ that amount of money in this present economy. Unsurprisingly, some borrow money to give to their pastors to receive blessings, then struggle to pay back the borrowed money. Monkey dey work, Baboon dey chop.
These men of God add false doctrines to their fraudulent, shady activities. Beautiful Nubia quotes his mother, a Christian singer, as saying, ” any church where they are a lot of people there, you know there are telling them lies there.” He made an example of a Muslim cleric who tells his followers that every other person is evil, an infidel and a pastor who tells his congregation that their Jesus is not a Jesus of poverty, that He died for them to be wealthy. It is now rare to find churches that preach about the kingdom of God and how to live a life that pleases God. Churches today entice and then mislead people.
Sometimes, people realize all these things are wrong but lack the courage to question these atrocities. According to Beautiful Nubia, “…as a child, you are fully indoctrinated, and as an adult, you are scared to question these beliefs.” Asking a pastor why he preaches only prosperity and how to get rich as a Christian would be considered as seeking the wrath of God because the pastor can call down fire to consume his ‘enemy’. Questioning an Imam on why he sleeps with young girls will only attract curses from the Quran on such a person, followed by “who are you to question God’s prophet? The ways and dealings of God are mysterious”. Really, who dares question these men of God? The fear that has been unconsciously programmed into your mind from a very young age holds your voice and makes you look away from the evils of these religious leaders.
This is not to say that there are no genuine men of God, but there is a plague of greedy religious leaders who, because of their power over their members, influence them to bend to their will while satisfying their greed and lust. “We should not focus too much on religion being our enemy. We need to focus more on ourselves, fix ourselves, and we can use traditional wisdom to do that”, says Nubia. The way we question and demand accountability from the government should be the same way we question our religious leaders. Not every “God says” is true. The Bible in 1 John 4:1 says, “Beloved , believe not every spirit, but try the spirits whether they are of God: because many false prophets are gone out into the world.” Many religious leaders are gods of their bellies and are only out to exploit people to put food in their fat stomachs and live expensive lifestyles with their poor congregation’s money. Child of God, shine ya eye!
This is Part 1 of the report on the interview with Beautiful on March 19, 2023. The extensive interview, which has received millions of views across different platforms, talks about the role of music in society. For the transcripts, see:
YouTube
https://youtube.com/watch?v=7fyHlf1QIsI
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By Toyin Falola
I
Death
Twilight-zone, Afterlife, What-Mays, and Whatnots;
Questions that transcend mortal thoughts.
Uncertainties plucked by the hands of certainty
pondering life beyond the galaxy.
Philosophies, religions, and sciences;
Ancient lenses to dissect and ponder.
Beliefs, opinions, and standpoints in their multiplicities;
Scalpels that open the heart of certain death
Blazing free the skins of uncertainty.
Science, a nobility I revere,
But it stammers answering to the afterlife.
For science is knowledge and knowledge from experience
But the dead neither speak, nor take records.
Their journeys, ordeals, triumphs or woes?
No one bears witness.
But as dead, we must all be witnesses;
witnesses that testify not.
So, for now, we survive the knowledge of death.
II
On my Agbàlàgbà head lies my Ọ́kpụ́ Ágwụ́
With eagle feathers, rare and honorable
Adorning it for three scores, a decade, and some more days.
I had flipped my Kente given by the Gaa
And danced to crescendos from Gàngàn drums
I have been celebrated and celebrating
For the miracles, I have worked with pen, paper, keyboard, and brain
I have taken the tales we tell in my village square beyond the Atlantic
Changed the songs that disdain us into appraisals
I have called my brothers not to point to our fathers’ house with their left hands
I have honed Africa and beyond
To answer the calls of the people’s need
I have reached the thinkable and done the unthinkable
So, I danced and keep dancing.
Suddenly, I felt a touch on my host?
Electrifying my hand, leg, brain, and my whole
Telling me that my jur from the Dinka people awaits me.
That my hourglass tells of crossing the bar.
I thought I knew what it was like,
But my grasping convictions of approaching jur were perceptions
Just surviving the death of the knowledge of death
So, arms wide open ready to abound
What was there to fear?
No catacomb of secrets
No palm oil-drenched white garments
I have taken many to my gourmet
To feast and to see.
What was there not to fear?
With medicine men and women,
Syringes, lights, water, ECG, Oximeters, voices, and touches
Hovering around me like a sacred etutu
Making conversations with me and beyond
I was thrown into a pool of reminiscence
one leg and a part of me were already in the boat
It beckoned but I heard another.
A loud voice like my mother’s.
Who takes a journey without locking his home?
Who takes the jur with unpatched palm fronds on his hut?
While the thunder rages up the sky?
The walls are broken and Balogun journeys?
So, I left the sea to clear the cobwebs and light up the night lamb.
The past few weeks have opened new lights of understanding to me. I now see the world from different hills and have helped to reach new resolutions. I know I have written about “transitioning to nothingness,” but my emphasis was on the “nothingness” with lesser attention on “transitioning.” I think we need to continue to ask questions. Philosophies, religion, sociology, psychology, science, and other ramifications are mere perceptions and we are uncertain. The transitioning occurs when death becomes an angel to hug not a beast to fear. We do not know what it entails but one must always endeavor to go with clean hands.
My recovery from an illness may have offered me a fresh opportunity to shout some more, point to societal needs, and settle unfinished businesses. No, not those caused by my personal undoing, but rather those of the people who would be left unguided, and for matters untold about life, society, and individuals. I can say I have passed through the lessons of tantra transfiguration, to use an elegant phrase that I recently came across, to move from secular to sacred activism. No one survives death because of its finality, but when it seems that you did, it is a renewed quest, offering a new purpose.
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By Tony Afejuku
The debate has progressed well so far. Our professors, whose strokes have centred on their fellow professor’s manned INEC have tried as best as they could not to confine their impressions solely to the prism of subjectivity. Even when their impressions seem to be subjective, they still make allowance for contrary views, for opposing views. This obviously gives clarity, objectivity and logic to the subject at hand. Is the will of INEC of a professor minder and mincer of words’ control the will of the people or of the masses? On whose side are the Professors who are as concerned as almost everybody is with what is going – or with what has gone on – primarily about our Presidential 2023 elections? Our Professors who are debating the subject constitute the courageous and prophetic Nigerian voices of our day. Their authentic and responsible thoughts are not restricted to the local or regional. They are also not confined to electoral duties and responsibilities expected of the umpire and the will that belongs elsewhere. The truth about the quality of leadership about our country and elsewhere is also told in the debate of the literati.
Professor (Mrs.) Razinatu Mohamed in her submission, in her salvo-cum-explosion actually, drew attention to Vice President Yemi Osinbajo’s explosive explosion in the presidency. If Professor Osinbajo had provided the right vice-presidential leadership there would not have been the need for him to explode as he did as per a viral video Professor Razinatu Mohamed referred her fellow debaters to. “What has he been doing in the eight years of their administration? Irritated my foot; he is complicit.” Not done, Professor Razinatu drew attention to the kind of leaders that Nigeria and Africa need: “Leaders that understand the rudiments of modern socio-economic development and systems; Leaders that understand the crux of requirements for economic growth. Leaders that could demonstrate to the rest of the world that just as the world needs Africa, African countries need the world in a symbiotic relationship and partnership context where assistance becomes a dual role…..”
Razinata’s concern is clear. Nothing in Nigeria will climb out of its hollow hole. In fact, the will of the people will remain hollow so long as a hollow mincer and minder is in charge of its electoral affairs.
Professor Da Sylva perhaps responds better to Professor Razinatu Mohamed’s algebraic stroke. “Unfortunately, Nigeria’s democracy is trapped in its primordial self-made ethnic and religious sentiments and so, standards, merit, competence and pedigrees are measured by their curious divides of religion and ethnic inclinations. Until we all come to realize that heavens help those who help themselves, Nigeria ain’t going no-where – meeen!”
But below is Professor Da Sylva’s sledge hammer response to Professor Razinatu Mohamed’s Osinbajo hammer blow:
“Prof Osinbajo’s office demands he does what he did. Besides, it shows maturity and spirit of sportsmanship on his part. Every loser in a game “healthily” contested, is naturally expected to do the same. The only difference which again shows Osinbajo’s magnanimity is that in this context, the contest under reference was neither healthy nor just. The umpire seemed compromised and merely worked to a prepared answer. Yet the gentleman did the needful. I guess, brothers and sisters, that we should put all that behind us, and work for our common good, and the wellbeing of the country, provided the mythical Aso cabal will let the President-elect be, and let the masses be, and as such, they should not create any cause for us to think otherwise, lest they provoke our sense of patriotism to take appropriate action! I guess that those were the reading or feelings of the dirty-minded Aso Villa cabal. People that kill with sword never wish that any folk should pass a sword over their heads, a wise saying goes in Yoruba. The human principalities simply suspected that should they allow PMB to give the VP the intended latitude, they might not be able to control him. I remember on his return from London, he commended the efforts of his VP while he was away. He said he would still continue acting while he would still have some more rest at home. The following day everything changed, PMB decided to take charge as the President. I suspected some back door politics was playing out. My co-debaters, quite naturally, you’ll agree with me that, it is not over-ambition or sheer opportunism as you might insinuate for any deputy in an office to aspire to the next higher office, in a legitimate manner, there is nothing really unusual about it, and it would amount to killing a mosquito with a sledge hammer, should Oshinbajo be crucified for that, if at all. And as for his wishing Buhari’s non-recovery, I think that, again, like my Sister R, is a little unkind and not fair to the gentleman who I know to be a servant of God. He knows as much as I do, by our true Christian orientation and Biblical injunctions that, should he ever wish Buhari’s death or wish him any form of misfortune in those trying periods of the President, God Almighty who we serve would deal mercilessly and ruthlessly with him. That is what Psalm 41:1-13 is all about. So rule that out, because it is not, and could never be in his character. I can vouch for him. Rather, I saw him in those times that he acted for his principal, as someone zealous and appreciative of the trust his principal invested in him, and as such he tried to do his very best to merit the trust and the opportunity! I know and I am also sure that this is what an IBK, or a Razinat, would have done too had they found themselves in a similar situation! It does not amount to wishing one’s principal any evil, not at all. Not everyone can be like Chief Obafemi Awolowo who resigned his position under Gowon when the regime became financially reckless shortly after the civil war. Awolowo also gave very profound argumentation to justify convincingly his actions. He also turned down some other appointments including the “49 Wise Men of the Constitution Drafting Committee.” Oshinbajo couldn’t have resigned, normally, and naturally his principal, PMB should have supported him as a capable successor, but again, the President’s ethnic and religious bigotry took the better part of the President. Besides, PMB’s mind was long poisoned against his VP, a clean job by the Aso Villa cabal. IBK, Lady R, until the faceless cabal is permanently silenced the wheel of Nigeria might continue to go round in a circle, and to nowhere in particular”.
And Professor IBK takes the floor: “Prof. DAO, yours is a powerfully convincing submission, at least in a large measure. Now I am willing to hold a slightly different opinion about Osinbajo. Yet, I cannot fathom why he chose to run against Tinubu, days or weeks after the latter had begun his campaign in the party primaries. There’s much we don’t know about why OSBJ decided to run against BAT. Nothing is wrong with that politically but a little problematic from an Ethical or, at least Moral, point of view. Osinbajo did a poor job of it and came out a distant 4th in the primaries. I think he didn’t read the situation correctly and was probably misled by some cabal of sorts. Either way Osinbajo made a politically fatal error in this regard. Perhaps he must have sensed, or was told, that BAT was not the anointed candidate, or that BAT would be crippled by some ill-health or a medical condition. I remember the party’s screening committee publicly recommending that only younger contestants would be recommended to the NWC or such. Clearly there was an attempt to sideline BAT. Whatever the explanation, Osinbajo make the error in his campaign of promising to be more Buhari than Buhari. A man despised by whole sections of the northern population, a man whose reputation for laziness and incompetence was on the ascendant. Anyway, all is now history and Osinbajo has not given a good account of himself in this particular case. Prof DAO, I think your concept of the Trickster should account for Osinbajo’s situation here. FULL DISCLOSURE: a very close family member of mine was drafted to head Osinbajo’s campaign effort in Kano. We discussed extensively about Osinbajo’s pledge to carry on with Buhari’s policies. There was bewilderment and shock within the members. A week later half of the membership resigned on account of Osinbajo’s increasing identification with Buhari’s policies. Many mistakenly thought that Osinbajo was Buhari’s anointed one! I could go on…”
Interestingly interesting and intriguingly intriguing, dear, dearly dear readers: this debate.
To be terminated by the columnist-terminator and terminator-columnist next week after Professor Olu Obafemi’s summation of the debate he presided over.
Afejuku can be reached via 08055213059.
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