Indigenizing justice: Old Wine in New Wineskins

In the last blog post….

In the very first post about indigenizing justice – whatever that means – I undertook a cursory analysis of how we, as a people, have not quite gotten the issue of going about the organization of our legal system in a way that is native to us, an autochthonous people, right. I discussed illustrative experiences about how people hardly understand what happens in courts (I mean state courts here) and how others, like our own presidential candidate, have genuine wishes of knowing just what happens in court. I said a thing or two about the thorny issues of the introduction of foreign law, the state of customary law and how we have tried to indigenize our justice system by injecting notions of customary law into it.

Prevailing ideas about indigenizing justice

In Ghana, we have conceived indigenization as a form of co-existence with respect to foreign and native systems of law. It is this that the legal academics call legal pluralism. That two or more systems of law exist and operate side by side, each having validity and recognized political and social legitimacy.

Recently, I came across an article from David Pimentel titled Legal Pluralism in Post-Colonial Africa: Linking Statutory and Customary Adjudication in Mozambique which succinctly describes what the approaches to legal pluralism in post-colonial Africa have been. He discusses three main conceptual approaches namely the colonial approach, the superior state approach and the written versus unwritten law approach. The very first approach pertains to the use of the notorious repugnancy clauses which existed in many colonial states to the effect that customary law was only permissible where it was not contrary to justice, equity and good conscience. The superior state model describes the situation where the court system is structured in such a way that prioritizes state courts over native or customary courts. The third speaks for itself. This article even goes ahead to suggest ways of renegotiating the existence of law grounded in legal pluralism by having two streams of courts, the state courts and customary courts existing in equal spheres. There is another proposed alternative which goes on permit some limited interaction between both systems especially in cases where the customary rules to be applied will do injustice or offend a constitution.

In another article that was published in the last edition of the University of Ghana Law Journal, Dr Ama Hammond wrote an article titled, Towards a Socio-Linguistic Approach to Legal Interpretation in a Multilingual Context. In it, she discusses how the Courts can do justice by taking the social coloration of laws into consideration in order to advance justice. She illustrates with the term, ‘inherit me’ as used in one case.

The work of these two writers shows the two facets of indigenization that I have always felt are relevant to making justice felt. In the work of the very first, one notices how access to justice is an integrative task of reworking procedural and substantive models of customary law in a manner which represents customary law as an independent coefficient of a state’s justice architecture. In other words, customary law models can be redeveloped in a way which caters to real issues between ordinary people with the guarantee of state endorsement and support as pertains to the conventional state courts. In the second, we find another attempt to reform the state courts by enabling them to take things such as linguistic influences seriously.

The real question is: how do these approaches, an alternative conceptualization of customary law and customary institutions on one hand and the consideration of social mores on the other advance the cause of indigenizing justice? In my opinion, the answer is uncomplicated. Contrary to what had been expected, customary law has not died. In fact, it is making a re-emergence - at least on the theoretically level – tucked on the clothing line of various intellectual movements. To speak more pragmatically, African countries have discovered a sobering truth: that they cannot properly govern, maintain social order as it were, without the support of customary institutions. The modern African state does not simply have the resources, material or otherwise. Therefore, where a system of justice, readily available, cheap and inexpensive is dressed in the cassock of express state legitimacy and given a statutory mitre, crozier and pallium, there is no limit to what good it can do to actualize justice properly so called. What is more, to go down to the people and find out what influences them in doing A or choosing B will very much be of assistance as to what they mean in terms that make sense to them.

Before I put forth my proposal of what we can do, a word or two about our commitment to indigenizing justice. I appreciate the fact that we have exalted chieftaincy to a certain level of dignity and guaranteed customs, cultures and social practices that make sense to us. Yet when we look at the very core of what indigenization means to us and our associated commitment to it, we see how our so-called modest efforts are at best illusory and superficial. Take article 11 of the 1992 Constitution (every law student's ‘For God so loved the world…’), and see where customary law is found. In the league table of laws, customary law is at the lowest rung, close to relegation and thrown into the arena to contend with other things like common law qua common law and equity. Consider also the language used in describing chieftaincy tribunals as established by statutes such as the Chieftaincy Act of 2008 (they have interestingly taken to mimicking the procedure of state courts). They are referred to in legal terms as inferior/ lower adjudicating bodies. The jurisdiction of these tribunals is constrained as well. They are limited to inquiring to matters or causes affecting chieftaincy. At least the local chief’s court still exist. However, with the decision of the Supreme Court that compelling attendance is unconstitutional, it is doubtful whether chiefs really still do possess so much in judicial power.

Moreover, I need to state that it is not naiveté and ignorance alone which can serve as stumbling blocks to indigenizing justice in state courts. There is also fear. Fear of the judges. Fear of the lawyers. Fear of the wood plated walls. Fear of the boxes. Fear of the language of the court. Fear of the courtroom itself.

I once heard a man confess such fear. His eyes glistening with tear water, his hands shunting from his side to his occiput, as if about to face the guillotine, he said he never wanted to have anything to do with a state court or the law practised in that court. A poet once said something about the sun arguing ice to liquid. The thought of the law, of the court itself, was something that so frightened him. In fact, the power of the court system to evoke such sentiments in men of ordinary fiber has been acknowledged by the judicial system itself. In one case, Justice Kpegah (as he then was known) had this to say:

‘Anybody who has some experience of people’s performance in the court-room will admit that it is not uncommon for a person considered or graded enlightened to be overawed by the court-room environment when they come face to face with the law and, as a result, concede grounds they need not have conceded.’ (case is Amoah v The Republic)

A new conception of sorts?

In view of what I have been trying hard to say all this while, I make a proposal steeped in the interstices of the need to re-conceptualize customary law and its institutions as well as the need to reform state judicial institutions as we have them. I am of the view that what we actually need in this country is a three-court structure.

We need to have customary law courts properly acknowledged and recognized. I even go one more mile to say that the judgments of customary law courts – and I mean the native chief’s courts and not the new, unrecognizable Frankensteins created by statute – should be recognized as final, binding and only subject to an appeal mechanism developed by the customary system that generated the decision. These systems of customary law have the potential to resolve many private disputes on subject matters such as land and marriage or even public interest matters limited to particular communities.

The second category of courts should be the conventional state courts as we have them. In an era of rapid globalization, it will be foolhardy and asinine to believe that customary law should be the basis to resolve disputes which involve multinationals, foreigners and corporations. That cannot be. To those ones, may the blessings of the state courts be with them. For commercial and constitutional disputes, the usual courts should remain.

Where the bulk of my discussion in indigenizing justice is concerns a third transitory tier which sits between customary courts and state courts. It is beyond perfunctory knowledge that nothing is black or white. That grey is a real deal which is very much alive to the mind’s conception of what the color kaleidoscope is. Rural communities are often homogeneous and even where settlers are present, the rules regulating their lives are simple are uncomplicated. To these communities, customary law will be of much help. Urban communities are often more cosmopolitan and the state courts may be useful. That is not to say, some urban communities are not homogenous and suitable soil for the germination of customary justice. It can happen. In the middle of these two, there are peri-urban communities which are a beautiful mess of these two. It is in these communities that you will find people speaking pidgin or communicating in a popular local dialect. Though the concept of space is the basis on which law in these communities developed, it is useful to think of these kinds of communities based on an underlying commonality of shared experiences, values and personal principles rather than thinking of them as bound by space. Thinking of communities in this way will show why two Ashanti men in Accra will prefer to have their native chief settle their dispute in say Kumasi than to have it done through a conventional court sitting in Accra.

I think the constituency of my transitory courts is clear. These courts should combine elements of both systems of law blended with other external influences. I am therefore making the case for pidgin courts and courts of dominant languages.

In my next blog post, I shall explain this proposition in detail with particular emphasis on language.

Where Chege and Ezeulu sent their children to go and learn the ways of the white man, it was not done with a view to destroying the customs and traditions as they were. These men wanted their children to learn the ways of the other side. It was their view that this was the only springboard to defeating their encroaching oppressors.

African states are artificial entities which were forged from force and dissent built on a principle of uti possidetis, a fate worse than a catholic marriage. We have since scurried for that consent and banded together under the banner of one people, one continent. Nonetheless, we have understood what the foreign law now is. Our Udoches and Waiyakis are back. We know now that we cannot revert to what we were before colonialism and somehow we have to find a way to reconcile this foreign animal with our own law. We are in the testing furnace. The iron will soon be out. We will see.