Table of Contents
African World-view on Crime
The Western Influence on African Criminological Ideas
Lessons from African Criminological Ideas
African Contribution to the Development of Criminological Thoughts *
Criminological ideas are often credited as western creation. This is a position held by many criminology writers and students alike globally, which by so doing denies Africa of a well-deserved acknowledgment of her contributions to criminological ideas. The African ideas have been erroneously regarded as “new ideas” by western nations. It is sad to observe that Africans themselves are contributors to this lack of recognition of their ideas. Africans considered their ideas as belonging to the trash bin of history, as they embrace the criminological ideas of Imperial powers. Unfortunately, the ideas which they rejected were refined by Europeans and sold to them as new wisdom.
This paper sets out to look at the African society before the influx of imperial powers and how their crime and punishment equation had emerged and was implemented in the society before it was eventually swept away by her New Masters.
Keywords: Africa; Criminology; Development; Culture; Crime; Western-influence
The purpose of going back in time is to see how certain criminological ideas developed and manifested in African society. It provides an insight into the lessons derivable from Africa which were unknown to the western nations. African culture is central to its crime and punishment equation. It is common knowledge that culture is the totality of a peoples’ way of life, which would necessarily include those acts frowned at by the public. It follows that applying external factors to determine the acts to be criminalized would result in the criminalization of certain acts which society views as normal and the decriminalization of acts that society frowns at.
Africa is a continent rich with diverse ethnicity and culture. In its diversity, the people are still regarded as one because of their similar ideologies.1 Africa has a distinct world-view on various aspects of human life. This world view is a product of its traditions and culture manifested over time in form of proverbs, myths, legends, festivals, and philosophies. For instance, reconciliation as a criminal justice ideology is encapsulated in this African proverb: “No two people can be friends and not fight occasionally and no two people can fight and not be friends again”
The introductory part would be concluded with the clarification of the following concepts:
This is a generic phrase that encapsulates all ideas relevant in the field of criminology. Ideologies applicable to criminology are products of different stages of development which include; Dark ages; Individualistic period; Medieval period; Liberal period; Classical period; Deterministic period; Social defense; American contribution and African contribution. It is the crime and punishment equation of each period that determines its criminological thoughts. It is widely believed that the liberal and classical periods are the most significant because their impact is still felt today. For instance, the concept of the “imaginary scale” is an idea of the utilitarian’s of the classical period which has a significant impact on criminal responsibility.
This is the scientific study of crime, the agencies of criminal justice administration, and the methods of dealing with crime. Aptly put, criminology is the philosophy of crime and punishment. As a scientific study, it deals with the empirical analyses of crime. It is objective rather than subjective due to the existence of variables such as age, sex, intelligence, wealth, and etcetera. Criminology does not stand in isolation, as it relates with other fields like biology, philosophy, and sociology.
“Crime and Culture”
It is given the nature of the African society that these two concepts are considered in the light of each other. The culture of the people determine the acts to be criminalized. For example, the common law can be regarded as a product of the laws and customs prevalent in Britain, Scotland, and Wales. Culture has been defined as the “customs, arts, social institutions, and etcetera of a particular group of people, or the state of intellectual development of a society.” 2 African customs are largely unwritten and are susceptible to change with the development of society.
Many legal writers have attempted definitions that failed to capture the entire nature of crime. For instance, Glanville Williams3 in defining crime used the concept interchangeably with offence. He defined offence as a legal wrong that can be followed by criminal proceedings which may result in punishment. This definition is inadequate because it fails to establish the elements required to prove the guilt of an accused.4 Due to the imprecise nature of attempting a definition of crime, it is better described, as was done by Cararra5, who described crime as not being an entity in fact but an entity in law; it is not a claim but an infraction. The Criminal Code6 using the word ‘offence’, defines it as any act or omission which renders the person doing the act or committing the omission liable to punishment under the Code or any other enactment. The code limits crime to only those acts which it or any other enactment renders punishable. The effect is that customary criminal law is done away with because it is unwritten. The position of the criminal code is clear injustice to the people because acts that are criminalized ought to reflect the moral turpitude of the people in a given society. To a criminologist, an act is regarded as a crime, if only it can be shown to offend against the strong and definite collective sentiments of the society.7
The question has been, whether Africa had a body of laws before colonialism? A.N. Allot made the following observation: “…There is…no creative conscious evolution of legal principles and doctrines, no written process in the courts”. 8 One may sympathize with the absurd position taken by Allot because he was an English academic and not a native of Africa. This exemplifies the difficulty of persons operating in different cultural backgrounds in understanding the nature of law that arose in a different cultural milieu. The thesis of Von Savigny on the Volkgeist is key in supporting the proposition that law should be the product of a people’s culture. Hence, it is irrelevant that the law in question lacks a formalized outlook.
Body of laws exists based on certain underlying philosophies and principles which are best understood by the natives of the land. The Judicial Committee of the Privy Council in Dawodu v Danmole 9 held that the idi-igi and ori-ojori could not be properly understood outside the polygamous order of marriage that characterised the Yoruba custom.
It was usual in the African society, to have more than one custom governing a particular subject matter. Professor Obilade noted that “on a general subject, there may be two existing customs, one of which may be the general custom and the other the exception.”10
The king was not above the law as he was subjected to institutions of checks and balances. However, some writers have erroneously held a contrary opinion. For instance, Isokun who wrote on Francophone African Customary Law observed that “a concept of justice was essentially meaningless in Black Africa.”11 An illustration of the operation of checks and balances can be drawn from the old Oyo Empire, whereby an Alaafin who was no longer favored in the eyes of the Council of Chiefs (Oyomesi), usually due to a transgression, would be directed by the said Council to open a Calabash. This is another way of ordering the Alaafin to commit suicide.
Flowing from above, it is clear that traditional Africa had its own body of laws which are well-rooted in the customs of the people. Over time, many of these customs have gone out of existence, either because they were outlawed or they simply could not measure up with the western ways. It is important that African customs and traditions do not all go away so that the African identity will be preserved for the coming generation. Sadly, this occurred to the natives of Northern Nigeria whose customs were eroded by Islam.12 There is a growing fear that this may occur in other African societies where the people have embraced the western culture. Customary law is still very essential for the existence of Africans. Oculi observed that “…customary law thus becomes important not because of its rules but because of its underlying values…” 13
African World-view on Crime
It is the world-view of people in a given society that would determine its laws, which necessarily includes criminal law. Africa having her world-view has been proven beyond any shadow of a doubt by various scholars cutting across different fields.14 In African societies, the conduct frowned at determined the act to be criminalised. Crime was a reflection of the common desires of the people.
The spiritual realm was an essential part of African societies. According to a Yoruba adage; “there was a world before we came and the world would remain after we depart”. Life is a cycle, consisting of the dead, the living, and the unborn15. Hence, the ancestors (who are the dead) are still considered as part of the family because they represent the root of the family. Crimes in traditional Africa affect not only the victims but the ancestors (the land).16 It also affects the divinities, who are lesser gods. The divinities are regarded as messengers of God sent to man. The notion of crime in traditional Africa transcends the physical as it encroaches into the spiritual arena. For this reason, sacrifice was a common and important practice in traditional African society, as it was a way of appeasing the gods for any crime committed, especially for those offences that were considered as taboos and abominations17, the former being more grievous than the latter. By carrying out such sacrifice, the offender was considered as cleansed and it was an assurance that the ancestors who were offended by his crime had forgiven him. The spiritual dimension was an important institution in traditional African society.
Criminal matters in traditional Africa closely resembled civil matters of this present time, as such matter created a creditor and debtor relationship between the victim and the perpetrator respectively. The philosophy behind this was to ensure that the victim is compensated and the perpetrator is reconciled back to society. On this premise, the death penalty was abhorred as a disposition method for a crime.
African notion on criminal responsibility was that not all offences came under the same category of blameworthiness. For instance, in the Igbo society, deliberate killing (ochu ogbun) was distinguished from accidental killing (onya ochi) which shows different levels of homicide. The former was considered as premeditated killing to which the perpetrator was held liable, attracting a sentence of death by suicide, but the room was given for the perpetrator to escape from the community by total banishment. In the case of accidental killing, the perpetrator was not held criminally responsible, except where the death was the result of a fight between the perpetrator and the victim, in which case it was regarded as manslaughter and not murder.18 The notion of accidental killing was also recognized in the Yoruba society, where a case of a hunter who brought an antelope’s neck to the king arose. The King ate the antelope and died. It was discovered that there was a poisonous mushroom in the neck of the antelope which was the cause of the King’s death. The hunter who brought the antelope was not punished because the people held the opinion that the King’s death was no fault of his. Under our modern law, the hunter would have been liable for manslaughter since he lacked the requisite mental element for murder which is intention.19
The intention is a major determinant in holding an accused liable for a crime, which is captured in the Yoruba saying, “Aniyan ni siwaju ise” meaning that, intention precedes the act. On this premise, it is recognized that certain persons do not have the capacity of committing a crime, like a child and an insane person. In the case of children, the elders of the community are required to perform rituals for a juvenile delinquent. Amongst the Esan people in the Edo state of Nigeria, such a ritual is known as Atukhiuki. The ritual involved certain items provided by the parents of the child after an inquiry has been made by the elders as to the conduct which was complained about. The child is taken to a secluded spot close to the outskirt where the sacrifice was performed. And for seven days, the child is required not to mingle with other children while staying indoors in his house. The essence of the ritual is to reinforce the parent’s duty in caring for the child and signifies the restoration of the child back to society. It also creates an avenue for the child to think through the gravity of his conduct and provides a deterrent for the child and other children from engaging in such conduct.
In like manner, the family of the insane person is held criminally responsible for his offence. The rationale being that, if they had been observant and dutiful enough, they would have recognized the mental state of the offender and sought the required medical assistance.20 Asides from these peculiar circumstances, criminal responsibility was borne on the individual(s) that perpetrated the crime rather than the collective (involving family members). This is encapsulated in the Yoruba saying, “Ika t’oba se l’oba n’ge”, meaning that, it is the finger that offends that the King amputates. Traditional Africa also recognized defenses available to an accused person such as compulsion or necessity. In the Yoruba society, a hungry man or traveler who stole crops from a nearby farm was not guilty of stealing as he had done so on the ground of necessity. Provided that, he did not take more than he required for the satisfaction of his immediate hunger.
The adjudicatory system in traditional Africa was simple, cheap, speedy, and devoid of those technicalities that characterize the modern justice procedure. The judiciary system was presided over by local chiefs and his council (in Chiefly African communities), or the council of elders (in Acephalous African communities). However, when it concerned more complex issues in chiefly societies, it was adjudicated by the king’s council or king-in-council.21 The King’s court was the apex court, having both original and appellate jurisdiction. The King had vast powers in his court but he was expected to exercise those powers judiciously.22 When the matter was such that offended the gods of the land23, the spiritual institution (such as the Ogboni cult in the traditional Yoruba society) was vested with jurisdiction to adjudicate.
The people in the society found this system convenient because relatable concepts were adopted. The parties in dispute were afforded a fair hearing as captured in this Yoruba saying, “A kii fa ori eni lehin eni” meaning that, “you cannot shave a man’s head in his absence”. Equality of parties was the central theme of this system of justice especially in criminal matters where no party is considered totally at fault or completely culpable. The essence was to ensure that relationships are not severed at the end of the dispute. Gluckman after observing the judicial system of Barotse on the Upper Zambesi made the following remarks: “The society places supreme significance on the fact that the villages must remain united.”24
The social status of the parties in dispute was not taken cognizance of. As the Yoruba people say, “Aso kii tobi, ki oolu ma lu”, meaning that, the cloth cannot be so big or rich that the mallet cannot beat it. The disputants were also afforded legal representation either by a family member or any other person who could bring forth the case of the party before the king-in-council.25
The disposition method in traditional African society was founded on the philosophy of reconciliation and rehabilitation. The parties to be reconciled were the dead, living, and the unborn, which meant that certain physical and metaphysical rituals were required to appease the gods. Physical rituals involved restitution and compensation paid to the victim and apology where appropriate. Sanctions in the form of compensations and restitutions were recurrent, for instance, the Igbos applied restitution (ikwa ochu) for cases of homicide, whereby a boy or girl of the offender’s family would be sent to replace the victim. On the other hand, the metaphysical ritual involved propitiatory sacrifice by the elders to the ancestors or deities, which signified rebirth and assurance of forgiveness.26 The sacrifices were usually carried out in respect to grave offences, which were regarded as offences against the gods of the land. The participation of the elders shows the readiness of the society to accept the offender, underscoring the notion of a “communal bond” that should not be broken. The Yoruba’s believed in the imperfection of man which makes him prone to occasional mistakes for which he should not be treated harshly.27 It is captured in this Yoruba proverb, “Bi a ko ba gbagbe oro ana, a o ni ri ore ba sere” (If we don’t forgive, we shall soon be bereft of any friends).
Deterrence was adopted in appropriate cases, which sometimes manifested whenever the public ridicules the perpetrators of stealing and other miscreants. It was usually the case that the family of the offender would be stigmatized. This is a clear case by which other members of the society would be deterred from perpetrating such crime, as seen in this Yoruba proverb, “Eniti o jin si koto o ko ara yoku l’ogbon” (The person that falls into a ditch warns the others).
* Joel Odili, LLB in view (UNILAG), Associate Member CIARB UK, Final year student, Faculty of Law, University of Lagos, Nigeria.
1 T M. Bande: “Looking at Tradition Through Fiction. Armah’s Exposition of the African World-view” in African Traditional Political Thought and Institution. J. A. A. Ayoade & A. A. B. Agbaje, (eds.) Centre for Black and African Arts and Civilization. 1989 p. 102
2 A.S. Homby; Oxford Advanced Learner’s Dictionary of Current English, Oxford University Press, 1989 (4th ed.) Page 291.
3 G. Williams: Textbook of Criminal Law Oxford, (2nd ed) page 27.
4 These elements are the Actus Reus and the Mens Rea. The former connoting the criminalized act and the latter connoting the guilty mind. In the absence of any, the accused would not be criminally liable for the offence charged.
5 Cararra; Modern Approach to Criminal Law (1945) p. 12.
6 Cap 38 Laws of the Federation of Nigeria 2004, section 2.
7 R. Garafalo: Criminology. Boston: Little, Brown 1914, p 59.
8 A. N. Allot: Essays on African Law, 1996 pp. 61-62.
9 (1962) 1 All N.L.R 702.
10 A. O. Obilade: Nigerian Legal System, Spectrum, 1990, p. 86.
11 M. I. Isokun : How Customary is Customary Law? P. 207
12 Islamic law came with the Arab Jihadists through North Africa in the 11 th Century A.D. The Sokoto Jihad which was led by Uthman Dan Fodio constituted the landmark event upon which Islam spread to other parts of West Africa. In less that twelve years, all the original seven Hausa states had fallen. (Full account: T Falola and B. Adediran, Islam and Christianity in West Africa, University of Ife Press, Ltd., 1983).
13 O. Oculi: “The Limits of Power: Lessons from Egyptology”, in African Political Thought, p. 45
14 O. Onwubiko: African Thought Religion and Culture, Snaap Press, 1991; T. O. Elias: The Nature of African Customary Law, Manchester University Press, 1954; J. B. Danquah: Akan Laws and Customs, London, Routeledge (1928).
15 African societies recognized the physical domain (consisting of the Elders- family- individuals) and the spiritual domain (consisting of the Gods- lesser gods- Ancestors).
16 A. Ibidapo-Obe: The Dilemma of African Criminal Law: Tradition Versus Modernity, West African Traditional Religion, African Universities Press, 1987, p. 15
17 In the traditional Igbo society, taboos were regarded as nso (such as; murder, manslaughter, suicide, and rape) and abomination, as ala (such as; maligning a person, stealing, marrying an Osu – second class citizen, and assault)
18 F. U. Okafor: Igbo Philosophy of Law, Fourth Dimension Publishers, 1992.
19 Section 317 of the Criminal code, Cap C38 L.F.N. 2004, defines manslaughter as when a person unlawfully kills another in such circumstances as not to constitute murder. Those circumstances for murder are outlined under section 316 of the criminal code.
20 F. U. Okafor: op. cit.
21 This was the system operated in traditional Yoruba society, whereby the quarter head (Baale) or the oba-in-council adjudicated over complex disputes.
22 A. Ibidapo-Obe: A Discourse on the Yoruba Philosophy of Law, p. 11.
23 For instance, in the traditional Igbo society, a breach of religious taboo or an abomination offended the gods of the land.
24 M. Gluckman: The Judicial Process Among the Barotse of Northern Rhodesia, in Sociology of Law, Aubert (ed) Penguin p. 16.
25 A. T. Oyewo: Issues in African Judicial Process, Jator Publ. Ltd. 1999, p. 15.
26 A. Ibidapo-Obe: The Death Penalty and African Tradition: Lessons for Modernity, p. 9.
27 A. Ibidapo-Obe: A Discourse on the Yoruba Philosophy of Law, p. 15.