by Alyward Shorter
Generalizations about traditional Africa are always dangerous because of the distances of time and space that are involved. How far, for example, does " traditional Africa " co-exist with " modern Africa or is it wholly a thing of the past? The question is a difficult one. One cannot deny that there are many threads of continuity, linking the past with the present, the old social order with the new, but how important are the elements of discontinuity? One of the assumptions behind this paper is that the discontinuities are of diminishing importance and that traditional concepts survive because they find a new dimension and a new application in the modern situation. Traditional Africa " is now history, mainly oral history, but that does not mean to say it can be ignored. On the contrary, to recognize traditional concepts and to understand their workings in the modern Africa, it is first of all necessary to see them as part of a political and social order which no longer exists in its pure form. That is largely what we shall be doing in this paper. Again, one cannot speak and write about Africa as if it were a single, homogeneous society, or even a series of isolated, ethnic groups, all basically similar or comparable. On the contrary, Africa is (and was) socially and culturally very fragmented indeed. To begin with, there are very diverse physical environments, to which the various human groups have adapted themselves economically and socially in relative isolation. Then, again, there has been no uniformity in these adaptations, but rather a multiplicity of independent traditions and inventions even in the same, or similar, environments. The different traditions and Systems have, moreover, been modified in different ways, according to the impact of historic personalities and the historic contact between ethnic groups. The result is a bewildering variety of social and political systems, of languages, cultures and religions.
In spite of this discouraging pluralism it is possible to discern certain regularities. This is principally because of the extraordinary flexibility and absorbability of traditional African societies, which exchanged ideas and practices over wide areas without the need for great movements of peoples, conquests or reforms. Local cultures accepted ideal on their own terms, integrating them into their own systems of thought and symbolism. The consequence of all this is that, while there is no single concept of social justice which can be called universally African, there are a number of differing experiences which have a relatively wide currency. These experiences relate to different social levels: the family community and the political structure; and to the different styles of life dictated by the various environments and cultural traditions.
Before dealing with these different social experiences in turn, it is necessary to describe the operation of "justice " and " law " in pre-industrial societies in very general terms. This will provide a background for all that follows.
- 1 JUSTICE AND LAW IN PRE-INDUSTRIAL SOCIETIES
- 2 THE SEXES
- 3 THE FAMILY
- 4 NEIGHBOURHOOD
- 5 HUNTER-GATHERERS AND PASTORALISTS
- 6 CHIEFTAIN SOCIETIES
- 7 CENTRALIZED KINGDOMS
- 8 JUSTICE BETWEEN ETHNIC GROUPINGS
- 9 A'TTITUDES TOWARDS STRANGERS, MINORITY GROUPS AND POOR PEOPLE
- 10 T'HE SOCIAL OUTCAST AND THE WITCH
- 11 CONCLUSION
- 12 NOTES AND REFERENCES :
JUSTICE AND LAW IN PRE-INDUSTRIAL SOCIETIES
Notions of Justice and Law ate bound up with the notion one has of society and the purpose of society. In many African societies, particularly, it would seen those of Central Africa, the experiences of society as a clearly bounded group strongly outweighs the experience of ego-centred networks of personal relationships! (1) In such situations the stability and continued existence of the group is a much more important consideration than the rights of the individual. Individual identity is derived from group identity, and group identities establish themselves at different levels of interaction between groups family communities, clans, villages, chiefdoms, sub-tribes and larger political entities. Witch-hunting is a characteristic feature of societies that are strongly group-centred, and, indeed, anyone who places himself outside the life and normal working of the group constitutes a threat to the whole group.
In other types of traditional society a more even balance is struck between group and network. In settled societies there may be an over-lapping of groups and multiple allegiances on an individual basis to professional guilds and associations. Mobility is another important factor, and pastoral societies may be more person-oriented on account of seasonal movement. Some pastoral societies are continually regrouping in the cattle-camps and pastures and personal relationships, such as bond-friendship or the blood pact, may he important principles of association. Among hunter-gatherers with the minimum of social structure, both group and personal network may he equally weak. In such situations, there is a great measure of spontaneity in personal relationships and a reliance on personal attitudes rather than on formal or specific norms of behavior.
Throughout traditional Africa there were no codes of positive law, and society did not make laws " in any literal sense. Decisions concerning social control, and collective decisions taken for the good of the community, were based on cases or precedents. Custom was the guide to present action. However, that did not mean there was no possibility of change or adaptation. On the contrary, there was considerable flexibility, even when the appeal to tradition was made in the form of myths and other forms of oral tradition. Students of mythology are acquainted with the idea of reversible time through which present shifts in needs and relationships are invested with an aura of antiquity. Myths are much more of a charter for the present, than an accurate document about the past.
On the whole, justice in the pre-industrial societies of Africa was devoid of vindictiveness, and there was scarcely an idea of retributive or deterrent justice. Persons caught in flagrante delicto, in the act of theft, for example, or in the act of adultery, might receive immediate punishment, but past crimes were rarely followed tip and there were hardly any penal institutions. Legal action was initiated in most cases by private individuals, supported by a primary group. In spite of that, the idea of crime as an anti-social act certainly existed, and it was the concern of authority in society to restore and promote social relationships. Reconciliation and the restoration of social harmony were the objects of judicial proceedings, not retribution. Hence the importance attributed to compensation, and even ritual feasting as the outcome of a process of reconciliation.
Social justice, in traditional Africa, was also intended to contribute to social stability, and harmonious relationships within the ethnic group, and the lesser groupings of which it was composed. The expectations of the individual were largely dictated by structures, relationship patterns and roles. Social justice, therefore, implied conformity to these things. Each individual was given his due within the scope of his expectations, and in the framework of a hierarchical or highly structured society. Distribution was made to people according to rank, status or function, and although there were no classes in the strict economic sense, there were social strata defined by age and achievement. African traditional society was communitarian, but it was not strictly egalitarian. Egalitarian ideals in modern African socialism, therefore, are developments of traditional concepts under the light of Islamic or Christian egalitarianism. (2)
From the foregoing it is clear that in many traditional African societies the individual was deemed to have any rights over against the community of which he was a part, but it is equally clear, at the other extreme, that in certain other societies, notably those of pastoralists, the individual enjoyed rights peculiar to himself, but was extremely limited in the degree of social support he could expect to help reinforce them against other individuals. A crucial question, therefore, in this paper is: How were decisions affecting social justice arrived at; and if it was the people in power who took the decisions, how representative was the exercise of this power?
Before turning to the family as a whole, it is worthwhile to look at the more basic question of the relationship between the sexes in traditional Africa and the equality or inequality of status accorded them. (3) Early anthropologists, influenced by evolutionary theory, believed that the status of women in any society was an index of civilization, and that the more remote in time or space a society was from 19th century Europe, the lower was the status of women. They painted a fearful picture of the lot of women in primitive societies, including such practices as formal infanticide, marriage by capture and, in general, the treatment of woman as a chattel. Modern studies have proved the early anthropologists wrong. The status of women in traditional Africa was much higher than they imagined; and if women were still at a disadvantage, it was pointed out that nowhere in the world did women really enjoy complete equality or inequality, when women had no apparent ambition to do the things that men did, and men had no ambition to do the things that women did. It may be that the areas of greatest inequality were of the least importance to women. However, criteria of some kind must be used and it is easy enough to ascertain that less compensation was paid for the murder of a woman than for a man, that women relatives received a smaller share of the bride-wealth for a married daughter than the male relatives.., that women could not initiate divorce, that women had practically no public1 political role and that there was an inequality in the moral standards demanded of men and women an inequality giving greater freedom to the male. It has also been noted in some African societies that women are more frequently accused of witchcraft than men, a situation which arises -- at least in part - because the men make the accusations, and preside over the courts at which the cases are heard. On the other hand, in spite of these disadvantages, there are other areas, such as motherhood or the role of bride, where the women as woman received a high status and extensive rights.
In traditional Africa the sexes could not compete for the same occupations. This was largely because their roles were differentiated according to their physical constitution. A woman (and a man for that matter) could not refuse to marry. Child-rearing and motherhood were the occupation of every woman and the length of lactation, coupled with the desire for large families meant that the woman was not free for social or political activities outside the family circle. In a pre-industrial society, moreover, there were no professional or other occupations in which women could compete with men. The occupations of both men and women were [inked with their familial roles, differentiated by sex and there was a very clear-out sex division of labour.
Practically, the only areas in which men and women competed with some equality were those which could be termed " religious or occult ". One could find both women and men as specialists in spirit possession societies, as 'custodians of holy places, priests/priestesses. Sexes were probably on an equal footing there because these situations were exceptional, religious or ritual situations. This was very clear when twins and parents of twins could, on ritual occasions, break the taboos of sex division and mutual exclusiveness of the sexes. Ritual officers and rulers also sometimes went in for this cross-sexual symbolism.
Traditional social structures and symbolic classification reveal on attitude to the sexes in Africa, based on the idea of complementary opposition. Very often, too, in the traditional biological theory, the woman was assigned a completely passive role in procreation. The difference between the sexes was always emphasized and it was on this difference that complementarity was based. We do not find anything approaching the one flesh " idea in traditional African marriage. The idea that male-female opposition was part of the constitution of every human being, be he male, or be she female, was unheard of. (4) So was the idea, present in the Book of Genesis, that each sex represented mankind as a whole, and that the quality of being human was not tied to one sex only, or to both in conjunction. Sex distinctions were regarded as absolute and externalized in physical difference. There could be no theory of marriage, therefore, in which the mutual interiorization of persons of different sexes took place. The nearest approach to it was when, as in the case of the Luguru of Tanzania, the blood-pact was a part of the marriage ceremony itself, or when, as in the case of the Cewa of Malawi, the blood-pact was an optional seal on a marriage that had already lasted many years.
In spite of all that has been said about the inequality of women with men, the woman was accorded high status in traditional Africa from the point of view of motherhood and potential motherhood. The concept of motherhood was very important indeed and one of the most important relationships was that of mother and son. The mother was the effective symbol of life and motherhood was bound tip with the existence of the human individual. The honor accorded to the mother everywhere in traditional Africa was remarkable and fatherhood was not really honored in comparable fashion. The bride, as the precious gift through which a family group perpetuated its existence, was equally honored in the marriage ceremonial.
Obviously, in the modern situation, when there is increasing equality of education and opportunity between the sexes, and when science and child-care have reduced the need for lengthy periods of breast-feeding, and have begun to limit families, there is considerable tension between old and new outlooks on the relationship of the sexes to each other. It is more than ever essential that women be esteemed not simply as women, but as human persons.
It is difficult to exaggerate the importance of the family community in traditional Africa. Although it was defined differently in different societies, according to various types of economy, rules of descent and residence, the family was the basic component of the social structure. Many traditional, African societies were constructed on the principle of lineage segmentation, or experienced a precarious unity, focussed on the political symbolism of a ruling family, related through affinal links to the clans of commoners.
Within the family, there was a strict hierarchy of authority, according to which the males ruled, and held responsibility for, the females. Brothers ruled their sisters, and sons, even their mothers, when they came of age or succeeded to the inheritance. Women did not enjoy any ultimate authority or responsibility for the household. The husband (or in matriliny, the mother's brother) was head of the family and it was clear that this headship was not a joint headship. When matriliny operated in a ruling family and when women were permitted to become chiefs, it was largely a question of politico-religious symbolism, in which - by a legal fiction a woman was treated as a man. The same was the case in the (strange to our eyes) custom of woman marriage ", by which, in order to perpetuate a family, a woman was accorded the legal status of father towards the children of a wife " who had been impregnated by a concubine. This custom was known among the Nuer of Southern Sudan, among the Simbiti of Tanzania, and is recorded as occurring in the Yagba district of Kwara State, Nigeria.
At the level of the family community itself, the group of descendants, having a remembered common ancestor and a living, family head, there was a strong predisposition to favour relatives at the expense of outsiders. In many societies, people preferred to live with their kinsmen and mistrusted all who were not related to them. Among the Kinbu of Tanzania, a man divided all those with whom he came into contact into two broad categories, the relatives (ivadugu) and the non-relatives (ivavisa), and it was clear that the latter group could expect very little from him. This potential hostility between family groups was mitigated by the clan system, according to which an individual belonged to a wider hereditary grouping than the immediate family community, although the genealogical links in most cases were not remembered. The rule of exogamy also helped to mitigate the exclusiveness of the family community, since it obliged men to look for wives outside their own family and clan, thus forging links between different family groupings. It is significant that President Julius Nyerere of Tanzania has taken the family community as the starting point and symbol of a program of socialization. The Tanzanian, according to the philosophy of ujamaa or "familyhood " must learn to extend to his neighbors and fellow villagers the same warmth and readiness to co-operate as he does to his own relatives.
Unfortunately, the ideal of co-responsibility and co-operation within the family community, is undergoing considerable strain at the present day. This is not only because of the mobility of the population and the fact that the family must improvise roles in the absence of its members; but also because a money economy is disrupting the delicate balance of rights and obligations within the family community. Bride-wealth is an obvious example of the process. Formerly bride-wealth contributed to the cohesion of the family, being collected by many on the side of the bridegroom, and shared among many on the side of the bride. Livestock was not destined for the market but for a specific herd, for sacrifice or feasting. Money, on the other hand, when it replaces livestock in bride-wealth, does not have this cultural value, but has virtually unlimited uses to which it can be put by a single individual. Increasingly, bride-wealth is becoming a source of division and contention in the family, instead of cohesion. In many cattle-owning societies high bride-wealth was a function of wider association, since the bridegroom relied on the support of a wide circle of acquaintances to collect it. It is in cattle-owning societies with traditions of high bride-wealth that the abuse of the custom is most keenly felt today. In traditional life there were many family occasions marked by a mandatory distribution of gifts, or the sharing of an animal at a feast. Professor Rigby provides us with a good example of the way a money economy can debase such customs. (5) In Ugogo (Tanzania) sons-in-law are required by custom to help build for their father-in-law. In return, the father-in-law provides an ox which will be slaughtered in the compound as a feast for the living and a sacrifice to the dead. The tendency today is to cheat both living and dead of their share in the feast by taking the ox to market and selling it for money Traditionally, such sacrificial occasions were characterized by a strict distribution, every category of relative having a portion of the animal reserved to him by right.
The African family community is frequently represented as operating to the detriment of the individual parent 5 or spouse's rights and privileges. One must be careful of judging African practices in the light of western standards. Although group interest was strong in marriage alliances and in decisions affecting the rearing of children, it was ultimately expressed through the role of the parents and spouses themselves. The chief burden of implementing family decisions rested with them, and the rights and duties belonged personally to them, although as representatives of the family community. For example, the group might collect bride-wealth and have an important part to play in the choice of the bride, but the husband alone had sexual access to the woman and exercised immediate jural rights over her. Again, it was up to the parents to exercise immediate jural authority over their own offspring, even if the latter were receiving part of their education at the hands of other relatives.
Inheritance assumed considerable importance in traditional Africa. The succession to the headship of the family community was a matter for lengthy consultation and discussion within the family and Formal ceremonies took place to celebrate the decision. There was a very careful distribution of the deceased's possessions, according to seniority, and personal belongings were usually inherited according to sex, sons inheriting from the father, daughters from the mother.
The African village or settlement usually represented a convergence of loyalties that made for a strong sense of community. Very often family ties criss-crossed the village, added to which were the loyalties of chiefdom and ethnic group, as well as those of professional associations. Neighbors co-operated in a thousand ways, working communally on each other's farms, taking part in each other's expeditions for hunting or fishing, celebrating each other's family and social events. Neighbours borrowed tools and utensils from each other, and performed innumerable services for each other. For many African peoples the ideal of the good life was sharing " - " good company " to use the phrase applied by the Wilsons to the Nyakyusa of Tanzania. (6) Neighbours came together not only for work and recreation, but also to solve disputes. The neighbourhood court played an invaluable role in reconciling disputants, in settling quarrels and in imposing sanctions. The court operated on the basis of a thorough personal knowledge of the parties involved and their families, and its interest was in maintaining peace and harmony among neighbours and villagers. A local chief or headman might be responsible for the final decision taken, but it would have to reflect the opinions voiced in the free discussion which had preceded it. Structures like the modern ten house-group system (kumikumi) of Tanzania are an interesting canalization and development of African neighbourhood traditions.
HUNTER-GATHERERS AND PASTORALISTS
The small, roving band of hunter-gatherers, typified by the Pygmies of Zaire and the Hadza of Tanzania, was, perhaps, the most egalitarian of traditional African societies. Isolated, continually on the move, with the minimum of structure, the band of hunters had a continually fluctuating membership. Loyalties were short term and there was no need for elaborate mechanisms of reconciliation. Nomadism applied in varying degrees to the pastoralists. At one end of the scale, the Turkana of Kenya, exhibit considerable mobility and flux in the composition of their settlements and camps; at the other end, the Nandi of Kenya or the Gogo of Tanzania are more sedentary and interested in agriculture. In fact, there is a pattern in the movements of all pastoralists, dictated as it is by the availability of water and grazing. It is a fact, too, that pastoralists carry out a fair amount of cultivation. Pastoralism has always been precarious and conducted in remote and marginal areas. Many pastoralist peoples exploited neighbouring groups of cultivators or classes of cultivator-serfs, denying them full rights of membership of their society, particularly the right to own cattle. The inequality inherent in this situation has had especially tragic consequences in countries with cattle-owning aristocracies such as Rwanda and Burundi.
In general, however, pastoralist societies were more egalitarian than chieftain societies, and stratification was one of their most conspicuous features. The whole society was divided into a greater or lesser number of age-sets or generation-sets, each of which was composed of a number of age groups or batches of individuals initiated annually. Among some peoples, the Nandi of Kenya, for example, the age-sets were cyclical. There were seven, recurring sets among the Nandi, each having a depth of about fifteen years. Of these sets, five would be in existence at any one time. The Jie of Uganda, on the other hand, had only two generation sets, each composed of five age sets with a depth of five or six years, and this situation was comparable to that of the Masai of Kenya and Tanzania with their twofold division of warrior and elder.
Ages-sets and generation-sets possessed public duties. The elders presided over society as a whole, and the junior adults or warriors acted as a disciplinary force. This status of warrior was a means of prolonging adolescence socially in a polygamous society where there was necessarily a wide disparity in the age for marriage. Girls were married young, men married late, thus permitting a greater number of men to be polygamous. However, adolescent rebelliousness had to be canalized for the good of society, and the chagrin of young men at losing their sweethearts to old men had to be softened. The warrior peer-group had all these functions. It acted as a kind of military or police force, with its own common living, its own collective morality and allegiance. In the modern world, of course, it becomes progressively difficult to maintain such an institution in existence. Not only does school education threaten this system, but close administration makes it virtually impossible for the warrior-youths to fulfil their social role.
Other pastoralist societies are divided according to a principle of lineage segmentation, a genealogical abstraction which accounts for the fission and fusion of social groupings on any given occasion. Such segmentary societies characterize the northern Nilotes of Sudan. In still other ethnic groups society is atomized into households and compounds and the lineages are so dispersed as not to count for much in segmentation or fusion. Family groups tend to be more isolated and autonomous. The Luo of Kenya and northern Tanzania offer us an example of this kind of situation. In all of these kinds of society, stratified, segmentary, atomized, government was traditionally at a minimum, and social control was exercised very largely through the blood-feud. Sanctions consisted in the warriors taking revenge on behalf of their clan or settlement and exacting compensation for injuries done. Guilt was deemed to be collective and the obligation to punish or take revenge was also strictly collective. Most of these societies evolved a clan of priest-chiefs or prophets who exercised important reconciliatory functions between warring clans and groups. The priest-chief exercised no permanent office, and had no administrative powers. He was summoned ad hoc to deal with a given situation and to give expression to the will of disputing social groups to bury their differences. Accord was symbolized and effected usually in a sacrificial feast. Sometimes, as among the Tallensi of Northern Ghana, the priest-chief was complemented by another ritual officer, the Custodian of the Earth " whose ritual sphere was more specialized. Some societies, like that of the Masai, had a paramount religious leader, the head of the clan of priest-chiefs, who possessed important prophetic functions. His task was especially to give unity and direction to the action of the whole tribe in moments of national crisis, war, famine and so on. With political and strategical ability, such a prophet could exercise considerable influence over his people.
It appears, therefore, that in these types of society decision-making took place ad hoc and at a reasonably low social level. However, there were recognized norms of behaviour to which people were expected to conform and to which appeal was made when conflicts arose. The role of the priest-chiefs shows this. Moreover, and this is demonstrated by the role of the prophet paramount, such norms did not necessarily apply to alien peoples. Later in this paper we shall look at social justice as it applied between traditional societies. The pastoralist societies offer us a flagrant example of the way in which relationships between ethnic groups were sometimes not subject to any recognized norms. Conflicts between tribesmen could be resolved according to precedent, and on account of the will of the conflicting parties to be reconciled to each other. Conflicts between ethnic groups were implacable. The herds of cattle possessed by neighbouring tribes were there to be plundered; their owners had no rights. One's own tribesmen, on the other hand, had very strict rights over his herds, and compensation for theft could be demanded and enforced.
The pastoralist societies, as already indicated, were not so bound by familial ties as many sedentary peoples. Crazing livestock over vast distances required an understanding between individual stock-owners that neither would molest the other, and that watering and grazing rights would be respected. Associations between individuals based on the magical blood-pact, or on the exchange of stock, afforded the individual a form of security in his movement over vast distances, far away from kinsmen and clansmen. Such pacts or bonds were among the most sacred and inviolable in traditional Africa.
In many African societies political and cultural identity focussed on an individual who was, either totally or mainly, a ritual officer, and even where his political and military functions were more noticeable, they were felt to be expressions of an authority which was basically ritual. The symbolism of the ruler or ritual leader was important, and the chieftains or chiefs of Africa were varied examples of the " divine king " concept first studied by Frazer. (7) The divine king is more than a ruler whose authority is supported by religious sanctions, and more even than a ruler with priestly or mediating functions in worship. The divine king is regarded as a living pledge of divine favour for his people, and the focus of innumerable rituals, rather than the reposition' of real power. Divine kinship is, in many ways, a development of the pastoralist priest-chief and he symbolizes in himself the will of a number of loosely organized family or clan groups to co-operate ritually and politically more or less continually. Divine kingship emerges where the various political segments are bound together by an organization devoid of any real political functions. Political organization then takes on a symbolic form. The chieftains and chiefs of so many sedentary African societies stand somewhere between the two extremes of the stateless, pastoralist society and the highly centralized kingdom with a basic patrimony in land or livestock.
The segmentary state Is one example of a multi-chiefdom society. It is a power pyramid composed of many chiefdoms, culminating at the apex in the original, founder chiefdoms. The proliferation of the chiefdoms takes places as a result of the segmentation of the chiefly lineage, and each chiefdom is a microcosm of the original chiefdom. There are loose relationships between the chiefdoms, and the influence of the original, founder chiefdom decreases the further away they are from the apex.
Other multi-chiefdom societies have segmented according to a number of principles and in their case lineage segmentation may have little or no significance. Segmentation is characteristic of power competition in any form. Sometimes conquest, or the assimilation of settler groups explains the development, at other times the multiplication of centres of operation was dictated by the need to exploit an environment effectively.
There were two main types of single chiefdom society. One of these was the small, traditional chiefdom which, through an accident of geography or history, managed to preserve its autonomy. The other was the empire created by a military leader who welded a number of smaller elements into some kind of political unity. Most empires of this kind were fragile and soon disintegrated unless there was a further process of centralization and the deployment of patrimony. If this happened it was on the way to becoming a kingdom in the strict sense.
Chiefship was very far from dictatorship. In most cases, the chief took no decisions alone, but always relied on the advice of a council, usually drawn from the male members of the royal clan. The widest possible consultation attended the election of the chief himself from among the eligible descendants or relatives of the deceased ruler, and all important decisions and judgements were pronounced by the chief, only after thorough discussion. Indeed, in most cases, the councillors possessed the power of breaking, as well as making, a chief, and the threat of deposition often ensured that the chief was a mere spokesman of his council. Chiefs were deposed for a variety of reasons, for ritual failure, as much as for autocratic behaviour. There are also plenty of cases on record of chiefs being deposed for alleged witchcraft. The power of the chiefly symbol derived from rituals and celebrations which affected the whole community and which were controlled by a variety of specialists as much as by the chief and his council. The frequency of interventions by the chief and his council depended largely on the size of the chiefdom, but in general they were relatively few and reflected the will and the expectations of the majority. A high premium was set on conformity in these group-oriented societies and choices were limited. The non-conformist, the eccentric and the rebel were regarded as a threat to the entire group and were liable to become outcasts or to be branded at witches. For those, however, who accepted the slow pace of change and the quiet monotony of tribal life, there was considerable personal and social fulfilment, and the institutions of chiefship were their principal guarantee.
Relationships between chiefdoms were governed often by ritual and historical considerations, but inevitably some chiefdoms were closer than others. Chiefdom associations provided a more realistic allegiance than a common language and culture, and many of the modern, so-called tri6es " barely existed in pre-colonial times. They certainly had less political importance than they afterwards received from administrators anxious to rationalize and unify.
The centralized kingdom comes into existence when there is the possibility of a patrimony under the control of the chief. Often this patrimony was land. Local administration was tied to grants of populated land and the subordinate chief who received the land understood that he was responsible for its inhabitants, as well as for seeing that the king received tribute from its produce. He himself was also supported from the fruits and tribute of the land he received. A good example of such kingdoms is provided by the Lake Kingdoms of East Africa.
At other times, the patrimony was cattle, and the king theoretically owned all cattle, taking them or granting them at any time, and requiring a tribute from the herds at regular intervals. Such a situation obtained in the Ugandan kingdom of Ankole and in the kingdoms of Rwanda and Burundi. In the empires created by the 19th century war leaders of Tanzania, ivory and the fruits of the ivory trade, were the essential patrimony. Elephants belonged to the king and those who hunted on his behalf were allowed to keep one of the tusks. The tusk that touched the ground went to the king whose land it touched. The king organized all long distance trade and took his toll from merchant caravans that passed through his territory. He distributed the coveted trade goods, cloth, copper wire, beads and fire-arms to his subjects in accordance I with their office, rank and fidelity. In some cases coloured cloth went only to members of the royal family and to war-leaders, while everyone else had to be content with white calico.
It is obvious that when officials are appointed by a patrimonial chief or king, able to reward and impoverish them at will, a much greater force for centralization exists and there is a much greater danger of autocratic rule. Although such kings had larger and elaborate court structures, and a great many officials and advisers, the elective principle in the monarchy ensured that the monarch wielded real political power. A king came to power as the nominee of a court party or parties, and he maintained his position with the help of these parties If he was astute enough he could play one parry off against another. There were many groups with an interest in the monarchy. The "ins" wanted to retain their position, the " outs " to enjoy the fruits of power. The clan leaders, too, wanted more benefices for the members of their own clans, and to acquire a greater freedom of action. Cult specialists vied with one another, and later, traders and early missionaries came to plead for privileges. Mutesa I of Buganda is the classic example of a 19th century, African autocrat who successfully played competing interest groups off against each other, thereby delaying by at least a decade the annexation of his country by a colonial power. In the centralized kingdom social justice was, perhaps, at its most attenuated. Government was by the decree of the autocrat, and expediency and self-interest ruled his policies and decisions. In a kingdom, like that of Buganda, kingship was the central, cultural value. In the final analysis the king was right. His influence permeated the whole of society, to such an extent that a huntsman shouted as he loosed his spear or arrow at his prey: " I kill you in the name of the king! Against the king there was no redress, and the stoicism of the young pages who died as Christian martyrs in 19th century Buganda, even if it was born of a new faith and of a changing social situation, was a traditional attitude for those who fell foul of the King. The capricious cruelties of such rulers, as described by the explorers and other witnesses, make horrific reading. People were mutilated or executed at the ruler's whim, without a court hearing, or any opportunity to defend themselves. What happened at the King's court was repeated in varying degrees in the lesser courts of his appointed officials, and it was the king's official, backed by the power of the king's men, rather than the elders and neighbours of the local community who decided what was, and what was not, just. In the centralized kingdom, the ruler had the most to fear from political rivals, and for this reason no one was permitted to challenge the king openly. Political murders were therefore common in the centralized kingdom as a means of securing the king's position.
JUSTICE BETWEEN ETHNIC GROUPINGS
Ethnic groups in traditional Africa were isolated to a certain extent and their socio-political Systems and patterns of belief formed a cultural whole that was often closed and exclusive. However, the closed and isolated aspect of these societies can be exaggerated. Tribal identity would be meaningless if it were not a category of interaction, and while it is true that such interaction has greatly increased in frequency and scale during modern times, it must be admitted that existed to a limited degree in pre-colonial days. Tribalism is a function of incorporation on a national scale, but principles of association and interaction have always existed between tribes.
Ethnic groups have often shared a great many ideas and experiences and those whose cultures resembled one another were often more favourably disposed towards one another, especially if their territories were contiguous. Ethnic groups with similar languages and cultural institutions often inter-married or offered assistance to each other, and it was even sometimes difficult to decide where one tribal identity finished and another began.
At other times historical factors intervened, and one grouping had a special relationship with another because of historic collaboration, origins, migration or trade. Very often these relationships were expressed on the analogy of kinship or affinity. Such tribes were "in-laws" to one another, or joking-partners ". Peoples that were favourably disposed towards one another certainly accorded each other rights that were upheld by mutual sanctions. On the other hand, hostility, or potential hostility, also existed among rivals for occupancy or exploitation of the same area, and, as we have seen, pastoralists inhabiting marginal and sometimes waterless areas, were especially jealous of their territory, and hostile to any neighbouring group that threatened their monopoly of stock and rights connected with stock raising. In conditions of virtually endless raids and counter-raids, there were no principles of social justice to which to adhere, although war also had its conventions. Exchanges of prisoners sometimes took place, and periodic peace treaties were made when the maintenance of hostilities became burdensome to both parties. However, in the history of such traditional rivals, particularly when pastoralists were involved, there was usually no lasting solution, and peace time was characterised by strong mutual suspicion and distrust.
A'TTITUDES TOWARDS STRANGERS, MINORITY GROUPS AND POOR PEOPLE
We have seen that ethnic identity was a category of interaction and that peoples from different ethnic groups were welcome or unwelcome in varying degrees, according to cultural, historical and economic principles. Stranger " is a relative term. There are those who are strangers in a family, others who are strangers in a village or a chiefdom, and finally there are ethnic strangers. The stranger who was not an enemy was nearly always welcome in traditional Africa - at least for a limited period. The stranger represented the mysterious and the unknown; he was a link with foreign parts. He brought news and new, peculiar information. The stranger was the symbol of man's communication with the world of Cod and spirits, and his coming was a blessing. Many chiefs and rulers justified the rule of their dynasty through a myth charter which told how their ancestor, the first ruler, had come as a stranger from a mystical, faraway place. The Kimbu of southern Tanzania, for example, hail their chiefs as the son of the stranger, who comes from far away ". The further away the stranger's place of origin, the more charismatic he is deemed to be. People are attracted by the stranger, but they also fear not to show him hospitality.
However, there comes a time when strangeness wears off, and when a stranger must either move on, or be integrated in the society to which he has come. A stranger who overstays his welcome becomes unpopular and it is virtually impossible for a rootless man, without family or other allegiance, to integrate himself in a strange society. A person without a family lacks the essential environment for survival in traditional society. People do not feel responsible for him, unless and until, through marriage, or some other means he manages to attach himself to a family community.
What has been said of the stranger overstaying his welcome applies collectively to the minority group. Occasionally there existed a special caste of specialists, blacksmiths for example, who were fully integrated in society, performing a task which was mysterious or in some way taboo for others. Sometimes also, as we have seen, there were exploited minority groups kept in an inferior or servile condition by pastoralists or pastoral aristocracies. When an accident of history brought a group of strangers to a given area, it was with difficulty that they were assimilated, particularly if their own community was a viable one. They did not acquire land and were not allowed to intermarry with their hosts. Even if they had commercial, or other dealings with them, their hosts, were uninterested in them. They led their own social life in virtual isolation, and were always potentially victims of discrimination and social injustice. Such for example, were the groups of Nubians transplanted to the cities and towns of East Africa, after the disbanding of the early colonial armies. Those in Nairobi, in particular, have been consistently prevented from acquiring land, or commercial licences, by local authorities. Refugees in camps and settlements are today in a similar situation. Assimilation is exceptional and tradition did not provide mechanisms for it.
In a society where co-operative production and common consumption were the norms, it was virtually impossible for a class of poor to exist. A person whose idleness or incapacity prevented him from making his work contribution in the family community might be deprived of the fruits of its labour if he was judged culpable, but as a rule, the family saw that its own members did not starve. Mad people and cripples were often harshly treated, being isolated or reviled, or even beaten on occasion, but, again, the family took responsibility for them. There were even instances when crippled strangers without relatives were taken in and cared for. Chiefs were responsible for such cases. The madman or the cripple, however, had no future in society, and marriage and other normal, social relationships were out of the question for them.
T'HE SOCIAL OUTCAST AND THE WITCH
We have seen that in traditional Africa, the innovator was suspect and ran the risk of being regarded as a threat to society as a whole. The fate of the outcast was the worst that could befall anyone in the small, relatively isolated communities of traditional Africa. Usually, the outcast had been branded as a witch and witchcraft was the principle symbol of anti-social activity. Witchcraft symbolized anger, hatred, jealousy, greed, lust, poison, and relentless, secret crime. It was the explanation for otherwise inexplicable misfortune among people who were looking for personalized causes. It was enough to experience such misfortune and to have enemies and rivals, for an individual to suspect witchcraft and get his suspicions accepted by the diviner. Consultation of the diviner was a way of obtaining social approval for retaliatory action that has already been consciously or unconsciously pre-determined. The suspect-witch had no opportunity to defend himself and no redress. Witchcraft being by definition a secret affair, exercised even unconsciously by witches during their sleep, the suspect s denials availed him nothing. His only hope was to confess to witchcraft and to utter mysterious threats which would make people fear to take action against him. In most cases this was a short term defence, and played into the hands of the accusers. Even where it was successful, the suspect became a virtual outcast, isolated from his surrounding community. The fate of witches was death or perpetual exile, the former being, in fact, the kinder alternative. In very few societies did mechanisms exist by which the suspect could neutralize his witchcraft in a ritual that did not compromise his reputation.
The picture presented in this paper of concepts of social justice in traditional Africa, is necessarily a complex one. There were many levels of social experience, many ways of deciding what was just in these different situations, many degrees of obligation to implement the decisions. By and large, the limitations of social justice in traditional Africa were those of the small-scale society in which personal and group relationships were of great importance. No allowance was made for relationships that did not fit into a tight, pre-determined pattern. If pastoralist societies seem to have enjoyed a greater measure of personal freedom and a small measure of arbitrary control, they, nevertheless, exhibited greater inequalities between themselves and other ethnic groups. Sedentary societies, particularly those with centralized kingship appear to have been more oppressive of the individual, but more subtle in their relationships with other human groups. In many ways, the unpretentious and somewhat indeterminate world of the multi-chiefdom society managed to strike a balance between extremes.
NOTES AND REFERENCES :
(1) Cf. M. DOUGLAS, Natural Symbols, London 1970.
(2) W. WILLE, n.d., Socialist Ideologies in Africa (mimeographed, Makerere).
(3) Cf. E. E.Y. EVANS-PRITCHARD, The Position of Women in Primitive Societies and in Our Own, London 1965. (4) S. NOMENVO, Sexualité, Marriage, Famille (mimeographed, AACC, Ibadan) 1972.
(5) P. RIGBY, Cattle and Kinship among the Gogo, Cornell, 1969, pp.278-9.
(6) M. WILSON and G. WILSON, Good Company, Oxford 1952.
(7) J.O. FRAZER, The Golden Bough, London (one volume abridgement), 1922.
- Published in Pro Dialogo Bulletin 12 (1977), 32-51.
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