Over the course of a month, I have been exploring issues relating to the indigenization of justice in Ghana. In the last post, I spoke about the need and justification for a new model of justice which goes far and beyond the more conventional and tired model of legal pluralism. I discussed the need to keep customary law and customary institutions of justice pure and pristine. Furthermore, I conceded that the conventional state court system as we have it ought to remain hinged on the sole justification of globalization, and if I may add, the need to belong to the community of nations. Then I made an outrageous proposal that we needed a transitory court system that sits between native judicial institutions and state judicial institutions.
In this final post, relating to indigenizing justice, I continue to develop my model of creating a transitory justice system.
Before I proceed, it is important to make a caveat. My use of transitory is not to imply a system of justice with gradations based on the quality of justice delivery. This may sound confusing, so let me explain. What I mean is this: justice is not a spectrum where it is best served at one end (state courts) and least served at another end (customary judicial systems). Both systems of justice are meant to serve a certain constituency. In that same way, my transitory model is meant to serve a certain constituency which I described in my last post as the peri-urban.
Again, the use of peri-urban, I concede, is imperfect; but that is not my fault. Herbert Lionel Adolphus Hart in The Concept of Law says language –words – are open-textured, always subject to interpretation at some point. It is on this basis that I ask your pardon for having grafted a spatial geography term into the entrails of some model of justice. That notwithstanding, there is a certain sense in which the use of peri-urban works well.
When using peri-urban, I am trying my very best to make the point that the corporate entity of intra-country societies and the communal homogeneity of these societies have come under threat by virtue of a multiplication of identities –intra-country heterogeneity – which makes either customary institutions or state courts incapable of handling disputes that emerge from intra-country heterogeneity. That is to say, it is increasingly hard to find places that are purely Akan, Ewe, Dagomba, Gonja etc.
Whereas is was arguably possible many years back, it is no longer true. In those places where it is still true, I made the argument in the last blog post that it is possible, at least in those areas that are still largely homogenous to have customary law and institutions in full swing. I however made the point and I think it bears reiteration that it is much useful to think of this homogeneity as one not bounded by space. When space is not the sole criterion of justifying who falls under the jurisdiction of these customary institutions, persons in the in-country diaspora will also be able to take advantage of these customary institutions. Again, this is the reason why two Ashanti men will prefer to have their disputes settled in Kumasi than Accra.
There is an added feature of this kind of transitory – peri-urban – heterogeneous constituency of mine which is an interesting phenomenon. Where the fecundity of heterogeneity manifests, new social conventions and customs begin to take form. For some curious reason, the most prominent of these is language. If the language that emerged from these interactions was English, this would probably provide a solid justification for the state courts to be seised with jurisdiction. Quite the contrary. New language forms emerge and often it will be some corrupted version of English or some dominant language.
Now, let me provide some illustrations. The contract of carriage between a head porter who is say Dagao and a Ga woman will most likely be concluded in Twi. A land agreement between a Frafra man and Ga man for the sale of a piece of James Town land will most likely be concluded in pidgin. A sale transaction between an Akuapim man and Ewe woman will most likely be concluded in either Twi or pidgin.
The language in which all the parties to these transactions have communicated and expressed their intentions, though most likely not going to be in original languages of either, still demonstrates the utility of using language to make communication work. To many, this is where it should end and where there is a dispute, the state courts should be the forum to resolve that dispute. I think this cannot be for two reasons. First, the autonomy of the parties is erased by a system that uses a language these parties never intended to use. In fact, the use of a language other than English presupposes that the parties never intended to contract in English. If they had wished to do so, they would have hired translators at the time of making the agreement. They did not do so. They made it entirely in a language that made sense to them. Second, this sort of thinking obscures the role of language in justice delivery. This latter point is the springboard that justifies a part of my model.
Language is feeling. I don’t know of others. As for me, when I communicate with my deity in my native language, I feel more connected to that deity than I do when I communicate with that deity in English. One speaks directly to the heart while the other speaks to the mind. In that same vein, when you speak to a man in a language that he has adopted for his own, you speak to his heart. The system is one he chose himself.
Language is dignity. In Something Torn and New: An African Renaissance, Ngugi Wa Thiongo makes an interesting point that has stuck with me since. He says writing in someone else’s language is like storing your grain in someone else’s granary. That is precisely what the use of English is in situations where the parties never expected English to be the forum in resolving their disputes. The contra argument could always be that state courts do provide translators for such people. I disagree. The proceedings are recorded in English, the judgment is recorded in English. You cannot speak to a man’s heart in a language he never chose for himself neither can you secure his dignity by making him liable in a language that was never the basis for any legal transaction concluded.
Language is solidarity and community. There is part of Trevor Noah’s autobiography, Born a Crime where he describes a time in his life when a group of people wanted to rob him. They were speaking in a language they felt he did not understand until he turned and spoke back to them in that language and all was well. Language makes people part of others. Where language is used in a forum persons have adopted for themselves, the degree of acrimony is likely to be far less reduced that it would be. Language is humanity. Language is life itself.
Now, if a transitory court system as proposed is to be implemented, there are a thousand and one questions that emerge. According to which languages must courts be established? What procedure is to be used? What procedure should be used? Do we have to translate all our laws into those languages used? Would the material cost alone not make it unattractive? Et cetera.
I agree these are genuine questions. However, I believe satisfied people reduce cost in the long run than people who feel they have been hard done by the system. To reduce cost nonetheless, I suggest these transitory courts operates as the assizes used to do. These courts should operate as mobile courts, moving from community to community to carry out proceedings. For the languages to be used, a commissioned sociological study will show which languages are dominant and yes, laws should be translated into those dominant languages that define the legal relations of my constituency. Judges for these courts should be knowledgeable in these languages. This the reason why language education in schools should be taken much more seriously than we currently do.
Lest I be charged with marginalizing minority languages, I clarify my position. The languages I talk of as dominant are simply those that have, for reasons of pragmatism and transactional efficiency have become the language of choice for the purpose of organizing some aspects of legal relations. Nothing more, nothing less.
So it is that I conclude this three-part series.