Ani Comfort Chinyere (Mrs.)
LL.B (Hons.) BL; LL.M., Ph. D
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The issue of administration of criminal justice has been with mankind as far back as human memory can go. It is appreciated by many scholars that the contemporary criminal justice practices of many African states are rooted in the previous colonial administrations; however, indigenous African people prior to colonization had their traditional methods of criminal justice. The indigenous African people had their own ideas of right and wrong framed in a sophisticated system and conception of law. To the African tribesman, law is a well known body of customary rules by which everyone regulates his conduct.
The African legal culture frowns at any improper behaviour viewed as capable of being inimical to the legal norms and disrupting the social equilibrium. Deities, shrines, ancestors, kinship, elders, age grade associations and the chiefs are some of the indigenous mechanisms of crime control in nearly all African societies. There is a unanimous credence amongst researchers that in African indigenous communities, there is a preference for the peaceful settlement of disputes along the lines prescribed by the institutions and values of the community. Thus, it is an acknowledged fact that what we know today as Alternative Dispute Resolution (ADR), which stretches into the practice of Victim Offender Mediation (VOM) is practically as old as man and has been used in most societies to resolve disputes through their traditional mediating institutions or by the individuals trying to reach a compromise by negotiation on their own. Traditional African justice systems were based on the restorative approach. Traditional societies in all parts of the world and African in particular, have featured variations of third-party arbitration and mediation. Nwosu argues that the Western world copied the mode of dispute settlement of traditional African societies, ‘rebranded’ and refined it by expanding the skills, and re-introduced it to Africa as ADR.
In the pre-colonial African societies, there was no clear distinction between criminal and civil law. Law was enforced by the machinery of experienced elders, priests, age-grades, chiefs and kings. The Chiefs were sometimes assisted by councillors who sat in the open under the tree. Though one cannot pretend that African indigenous criminal law had homogeneous notions of crime, methods and procedure of dealing with an offender, yet, there are similarities in the various African indigenous perceptions of crime and punishment.
This chapter focuses on the notions of crime and punishment in African indigenous law. In so doing, it considers amongst other concerns, the indigenous justice institutions; features of African indigenous criminal law and procedure; African indigenous punishment and proof of crime under African indigenous law.
WHAT IS INDIGENOUS LAW?
Indigenous law can be defined as the law that guides the social interaction or control of the people of a certain geographical area, the origin of which goes beyond human memory, having its pedigree from the acceptable and prevailing culture before outside influence like colonialism or foreign religion. It can also be regarded as the customary law of a people. Customary law consists of customs accepted by members of a community. Obaseki JSC links customary law to indigenous law when he stated:
“Customary law is the organic or living law of an indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people…”
According to Okany, the customary law of a community is a body of customs and traditions which regulate the various kinds of relationships between members of the community. Ojiako describes customary law as the rules of conduct that govern the legal relations of an ethnic community as established by custom and usage. The Imo State Customary Courts Edict No. 7 of 1984 defines customary law as:
“a rule or body of customary rules regulating rights and imposing correlative duties being a customary rule or body of customary rules which obtain and is forfeited by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question”.
Hon. Justice M.B. Ardo opines that customary law derives its source and roots from the tribe or ethnic group among whom it operates. It is indigenous and diverse and applies to particular ethnic groups as separate systems; accepted as obligatory and recognized by the members of the ethnic group.
WHAT IS A CRIME?
The Criminal Code and the Interpretation Act does not give any definition of the word “crime” rather the criminal code defines the word offence, which is considered a synonym of the word “crime” Section 2 of the Criminal Code defines an offence as as an “act or omission, which renders the person doing the act or making the omission liable to punishment under the code or under any order in council, ordinance, or law or statute.
Hon. Justice Oputa JSC Rtd. had this to say about crime: “Crime is a grave and serious form of anti-social behaviour. It is a wrong against society as a whole rather than a merely the particular victim of the criminal act. To the man of the law, crime is the violation of a right when considered in reference to the evil tendency of such violation as regards the Community at large”. Criminal law must reflect the values and aspirations of the community in which it operates in reflecting the morality of that community; it is thereby reflecting its culture. Therefore, crime is also defined as “an act or omission which amounts on the parts of the doer or omitter, to a disregard of the fundamental values of a society thereby threatening and/or affecting life, limb, reputation and property of another or the citizens, or the safety, security, cohesion and order (be this political, economic or social) of the community at any given time to the extent that it justifies society’s effective interference through and by means of it appropriate legal machinery.
These definitions of crime, though taken from the contemporary statutory and Common Law foundation of criminal law, are not different from what the African indigenous law considers as crime. Under that system, a crime is also a reprehensible action or inaction contrary to the acceptable standard of conduct within the society, which is made punishable. Crimes in the indigenous African jurisprudence includes: murder, witchcraft, incest, assault (minor and serious), theft, Adultery, spousal abuse, arson, evasion of dues, cruelty, etc. The Yoruba society divides crimes into two types: the social and spiritual crime. Social crimes are directed against individuals. Such crimes include adultery, fighting, lying, stealing, geocentricism, etc. Whereas spiritual crimes are those crime that have spiritual undertones, and which affects the gods and goddesses with consequences visited upon the entire community. Crimes in this category include: incest, murder, suicide, killing sacred animals, unmasking the masquerade, speaking evil of elders, etc. The commission of these crimes are believed to have serious consequences on the entire community.
Nevertheless, some contemporary crimes were unknown under the indigenous law. Terrorism, arms smuggling, kidnapping, and illegal abortion, treason, were unheard of. Though individuals owed duties to kings, treason can scarcely be said to exist. Its equivalent, the betrayal of tribal interests, is publicly rebuked, and a curse laid on the offender.
FEATURES OF AFRICAN INDIGENOUS CRIMINAL LAW AND PROCEDURE
It is obvious that African indigenous law is as diverse as the various African ethnic groups. Onuh J. Attested to this when he said that there are as many customary laws as there are ethnic groups, although in certain cases different groups may have the same customary law with little or no variation. While there could be slight variation in the principles of criminology across African cultural boundaries, nevertheless the principles are virtually the same. Many authors are in agreement to the fact that there are some characteristics typifying traditional African judicial procedures.
Generally, the indigenous legal system is characterized by native or lay participation and is less bureaucratic; it relies on unwritten, oral and flexible precedents or rules. Commenting on the character of customary law, Salacuse stated:
“Native law and custom is unwritten, indigenous law; the only law which existed in the land now known as Nigeria before the coming of the British. It is a mirror of accepted usage, a reflection of the social attitudes and habits of various ethnic groups, and it derives its validity from the consent of the community which it governs. Because it has this basis, native law, and custom is not a static but a flexible body of rules and principles changing and developing to meet new conditions”
There is no regular court-house. In almost all villages there is a public shed, or “palaver-house,” which is the town-ball, or public reception room. But a council may be held anywhere,–in the king’s house, in the house of one of the litigants, on the beach, or under a large shady tree.
The council is held at any time of day. African indigenous law procedure is akin to the civil law inquisitorial system. The system permits the judge to descend into the arena and conduct the case, contrary to the position under the common law accusatorial procedure. Some of the other characteristics of African indigenous criminal law and procedure are considered below.
Unwritten in Nature- Whereas modern laws are made by the legislature and are seen as the command of the sovereign, customary law crimes by their very nature are unwritten and depend on its acceptability by the community whose affairs it regulated and who acknowledge it as obligatory on themselves. In substantiating the unwritten nature of customary/indigenous law, Allot declared: “First, the law is unwritten. There is no written memory of the edicts and decisions of past legislators and judges; they exist only in the minds of those who administer, and those who are subject to the customary law…” Though unwritten, the laws were fairly easily ascertained and properly applied to issues as necessary mainly because of the high levels of honesty and integrity among the individuals and groups that had the duty to ascertain and apply the relevant laws. Being unwritten, every indigene of an ethnic group, reasoned Hon. Justice Begho, is presumed to be a repository of the customary law of his group.
By the provision of section 36 (12) of the 1999 Constitution as amended, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty prescribed in a written law…” Some customary law crimes have been made enforceable in Nigeria by enacting them into written law, mostly through the various Local Government Bye-Laws.
Invention of The people– People invent customs wherever there is a tribe or ethnic group that speak the same language, they will develop and evolve their customary law. The rules of law trace back to the habits, customs and practices of the people, which engender and support the norms expressly formulated from time to time from the decision of disputes. Indigenous law and procedure adopts a common sense as opposed to a legalistic approach to problem solving. Hence, the rules there are handed down as tradition, by word of mouth. There are persons who are familiar with these old sayings, proverbs, examples, and customs, and such people are asked to be present in the trial of disputed matters.
Fluid/Flexible- According to Hon. Justice Ardo, customary law is acknowledged as a simple system of law which is not a frozen and a rigid system but one which from time to time develops and modifies itself in order to accord with changes of social conditions. Indigenous law has a capacity for adapting itself to changing needs and circumstances, while relying on oral and flexible precedents or rules.
Involvement of the Victim and the Offender- In African indigenous criminal process, the victim, the offender and the judges are normally involved in complex relations outside the court, hence premium is placed on the continuity of the existing good relationship where possible, depending on the severity of the offence. In contrast to the English Common Law, which pays attention to the role of the state and the offender as parties in criminal proceedings; parties to proceedings under the indigenous law system, are the victim, and the accused person. The court specifically considers the interest of the victim, the accused person, and the society. The underlying desire is usually to promote reconciliation of the disputing parties, rather than merely to rule on the explicit dispute which they have brought to the court. The ultimate aim is to restore social cohesion within the community by promoting reconciliation between the parties.
Reliance on Traditional Religion– Traditional religion was given a remarkable place in African indigenous law process. Religious and ritual beliefs and practices were greatly relied upon in determining legal responsibility. The traditional religion, which brought about sets of belief, not only explain the influence of the supernatural but also showcased religious sanctuaries such as shrines and groves; the venue that turned out to be the spots of many extra-judicial activities. Tradition religion promoted truth, equity and justice which were the primers of conflict resolution in traditional African societies. It is assumed that the deities and ancestors were always present at the scene of conflict resolution.
Simplicity and Lack of Formality- Traditional societies use mostly informal social control embedded in its customary culture relying on the socialization of its members to establish social order. Court procedure is quite informal and minimal, devoid of bureacracy. All the people of a village or district, even women and children, according to the importance of the case, assemble for the hearing. While women are generally not allowed to argue in the case, yet their shouts of approval or protest have influence in the decision, and encourage the parties by outspoken sympathy.
INDIGENOUS JUSTICE INSTITUTIONS
The security maintenance, crime prevention, general law enforcement duties and adjudication in a traditional African community devolve on various community institutions, groups, and members. The obligations fall on such community structural levels of government as the Extended Family, the Village, the Village Group, and the Community, based on well understood geographical and subject matter jurisdictional considerations. Anyacho Obudu and Ugal David account that before colonialism, the Ibos of South Eastern Nigeria, did not just jump into social control. They did not wait for conflict before control; they rather had institutions for controlling the suppression of one weaker person from the stronger. These institutions carried out the task of peace education, peace building, confidence building, peacemaking and peace enforcement as well as conflict monitoring, prevention, management and resolution. They gave a detailed chronicle of Ibo social control institutions thus:
These different institutions performed the role of social control at different levels of human existence and the levels at which adjudication or redress can be sought in the Igbo society. We will proceed to discuss some of these institutions.
The gods (Supreme Being)
The divinities played crucial roles not only in deputizing for the Supreme Being, but also in the enhancement of social stability and harmonious relationship. They were significant anchors of peace making through the invisible order. They instilled psychological fear in the people. Among the Yoruba, for example, Sango (god of thunder) Ogun (god of iron) aiyelala (god of social (justice), had great force on the administration of justice and moral ethics. Amongst the Ibos, the shrine of Ala or other guardian spirit of the community is in the custody of a priest whose declarations of the spirit’s anger against and of the need for expiations of, peace breaking, bloodshed, incest, adultery and other abominations reinforce the judgments of the community concerning the guilt of the offenders and the remedies to be applied.
The Extended Family
Among the Ibos, the extended family was the basic unit for social control. The extended family are descendants of a common ancestor. The extended family’s assumption of responsibility may be both defensive and aggressive. They can share in the responsibility and sanction of the offender. They can also carry out on their own a sanction imposed on the offender. The affairs of this unit are managed by a head or Onye isi. He is usually the eldest male in the family and holds the family ofo (oath) symbol. The elder is often involved in primary socialization of the individual. The linkages within the family facilitate intimate communication with and easy access to the family head. Daryll Forde describes that at each level of the lineage grouping, the senior elder presides over a council of household heads or component lineage elders and other representatives at which the substance of any allegation or dispute is thrashed out and any appropriate restitution, compensation or other penalty is declared.
Matters that cannot be handled at this level will move to the umunna (Adult men in the extended family) or umuada (married daughters of the family) and if necessary Amala (Village tribunal). Family heads had prime responsibility and there was a kind of collective responsibility and liability; e.g., in case of injury or death, the head of the family, not just the perpetrator, would be on trial. Fines had to be paid by the family.
The Umuada can intervene on their own or at the invitation of the family or village unit to resolve such issues as spousal abuse, infidelity or theft, or to admonish erring women who have married into their village. They can impose sanctions such as shaming and ostracism, rebuke and fine on an erring person.
According to Olaoba, in the proceeding of conflict resolution whether at the family, ward or quarter levels, the elders usually showcased: belief in the ubiquitous nature of the ancestral spirit; hope in the impartation of ancestral knowledge and control of the proceeding; application of the norms and customs of African society; and ability to end the feud in focus.
Ottenberg’s study of the Afikpo (Igbo) and Nzimiro’s study of the Onitsha (Igbo) find that community elders, along with the traditional ruler of each community, are the judges in judicial proceedings.
Age Grade Associations– In Eastern Nigeria, various age grade associations performed miscellaneous functions of the police, execution of judgment officers, etc.  Their law enforcement functions included parading, torturing, shaming and humiliating the offenders. Different age grades cooperate in matters affecting the entire village. Age grades also manage conflict, disciplining members who commit theft, show disrespect to an elder, or fail to pay taxes or participate in communal labor. For instance, a Young Men’s Age Grade may be charged with the responsibility of security maintenance and general law enforcement. Community members may mandate and expect the Young Men’s Age Grade to use commonly sanctioned vigilantism to prevent crimes by identifying, apprehending, and processing persons suspected of committing crimes. The Age Grade’s other responsibilities may include enforcement of judicial decisions, such as by means of retrieving judgment fine; publicly shaming and humiliating a criminal.
The Village Tribunal
All allegations of public offences are brought for judgment before a council of elders. Private wrongs were settled through arbitration. Cases are brought to the square presided over by a bench of lineage elders. Decisions as to whether or not an alleged offence could be brought before them, which witnesses should testify, what compensation or penalties should be awarded and how thoroughly they should be enforced, often depended on the interests or the policies of the big man in a village, a village group or a wider district as expressed through open or covert directions to the lineage heads and others.
Sorcery/Secret Cults/Societies/ Masquerade Groups– Sorcery occupies a central place in the administration of justice in traditional African societies as the ultimate court of appeal. In some traditional societies, when the nature of the evidence is extremely inconclusive, and the determination of the disputed facts are essential to the final ruling, the case may be referred with the consent of both parties to a diviner who consults the oracle or administers an ordeal in order to discover the truth.
Also in Ibo land, the masquerade cult mmanwu had traditional government functions. Much of the function of these masquerades is to effect obedience to the sanctions of the town on a culprit. These masquerades could invade a culprit’s home, and seize all his belongings until the owner paid the stipulated fine for his crime, and again reclaimed his property by a further fine..
In Yorubaland, the much feared Ogboni enforced law, adjudicated and administered punishments. According to Alagoa, the South-south zone traditional institutions for social control included council of elders, general assembly of the people, secret societies (e.g. the Ekpe, Obong Ekine, Sekiapu masquerade society) etc. The mmanwu (masquerade) in postcolonial Igbo has, among other things, the task of law and order maintenance in some cases:
Members of the secret societies in Africa are pursuers of truth, enforcers of order and ethics of the society. They are well disciplined and often chastise erring members thus projecting good image of public probity. This was why they often detected antisocial activities and crimes against the supernatural and humanity. Thus, undesirable elements in traditional African societies often received the wrath of the punishment of secret societies across cultural boundaries.
PROOF OF CRIME UNDER AFRICAN INDIGENOUS LAW
Unlike our common law rule of evidence that does not admit hearsay evidence, except when it comes under any of the exceptions to the rule, customary judicial process does not operate any rule against hearsay. The customary courts received hearsay evidence so long as those giving evidence have vital knowledge of the facts of the case. The nature of evidence in simple conflicts became less elastic and less cumbersome. The witnesses always rose to the occasion of telling the truth thereby focusing on early resolution of the conflict (dispute) by the adjudicators. As recorded by T.O. Elias:
“The customary judicial process in Africa recognizes the right of everyone in the community to participate in any proceeding before the court. The judges presiding encourage all those who have vital evidence in relation to any case they are hearing to come forward and assist the court by tendering it; they often exercise the right to cross examine such volunteers with a view to satisfying themselves as to the authenticity of their testimony. Where necessary, corroborative evidence from others present are often invited. Individuals mentioned by the parties to a case who may not be present at the hearing are usually sent for by the court to give evidence on relevant points”
In the Gurage traditional courts of Ethiopia, witnesses are always called upon to testify in cases of slander, arson, burglary and homicide. Hearsay evidence is admissible but it is not sufficient grounds for the court to arrive at a judgement of guilty. To obtain substantial evidence against the accused, especially in cases of theft and assault, the plaintiff will often engage a diviner to seek out the suspect, the goods, or both. Once he has discovered the suspect or goods, the diviner informs the victim and the findings are made open. The diviner appears later in the court as witness against the defence.
Often the onus of proof would be on the accused party; especially in witchcraft cases. This reverse onus is shown in ‘spoor law’; if tracks or spoor of missing cattle were traced to the vicinity of your homestead, the onus was on you to prove that the spoor continued on past your homestead. Otherwise, you would be held responsible.
Ordeal or Juju Swearing – Most African societies recognized ordeal and fetish swearing as acceptable methods of proof. Beliefs in the gods were very predominant and they played a major role in determining guilt or innocence of accused persons. In Ibo jurisprudence, grave suspicion amounted to prima facie proof. Proof in cases like murder was by trial by ordeal or by invocation and intervention of the gods in juju swearing. One popular form of ordeal for a murder suspect was to wash the dead person and collect the water from the bath and compel the suspect to drink some of it. A relative took a sip of this water to ensure that no poison had been mixed with it, and then the accused took a mouthful. If the suspected murderer died within an agreed period usually 12 months, it is a confirmation of his guilt, but if he survived the period, that was seen as a vindication of his innocence.
Shack, writing on the judicial system of the Gurage tribe of Ethiopia, confirms the use of ritual oaths in determining guilt or innocence, especially when there is insufficient evidence to condemn the accused person and the plaintiff’s allegations rest solely on weak grounds of suspicion.. Such oaths are believed to have the ability to bring incurable ritual illnesses that will affect a guilty person that swears with it and his succeeding generations. Hence, the fear of this oath, and the threat of supernatural punishment limits the possibility of presenting perjured evidence. Ordeal was also associated with the extra-judicial methods in traditional African societies. Ordeals unravel whatever doubt or misery that enshrouded the offenders either civil or criminal. Ordeals take many forms from community to community. For example, among the Kalabari, a person accused of witchcraft was asked to swim across a creek full of crocodiles. The Ibibio and the Efik had an Ibiam oath capable of destroying those who swore falsely. Opolot documented that to aid detection of unknown offenders, African societies resort to various expedients such as the ceremonial curse by the Sebei tribe and trial by ordeal by the Ganda tribe.
The dreaded shrines and groves of secret societies, cults, priests and priestesses of ancestral gods and nature spirit among others under the traditional social order commanded so much public confidence that oath taking for whatever reason was considered serious business. Anyacho and Ugal reports that in pre-colonial times, oath taking was very common among the Ibos of South East Nigeria and that it is still practiced today by some Ibo societies. It was a strategy for establishing truth and guilt and discouraging dishonest attitude and evil actions in the society. Oath taking was done at the village shrine before a powerful deity. People preparing for oath taking were often advised not to eat poison out of shame and to search their conscience. This meant that they should accept their guilt if they committed the offence, instead of keeping mute and dying in the bid to avoid shame.
For psychological and other reasons, people believed death could result from drinking agreed portions administered during trails by ordeal. Any such fatality was believed to be evidence of guilt. Accordingly, no offender could take lightly the implications and likely consequences of failure to tell the truth in a charge against him or her. Belief in the ancient supernatural conglomerate of gods, goddesses, spirits and their associated rituals provided the main engine of each communities recognized law and custom. The operative moral code, in each case, had strong religious underpinning. As noted by Wallace, indigenous societies in South Africa did not use oat taking or poisons ordeals like some African societies farther north.
AFRICAN INDIGENOUS PUNISHMENTS
The Black’s Law Dictionary defines punishment as any fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgement and sentence of a court, for some crime or offence committed by him, or for his omission of a duty enjoined by law.
According to Adeyemi, customary judicial processes end in judgements which are never in abstraction from the social and cultural milieu of the particular community. Social control in indigenous African societies is rooted in various traditions, customs, and native laws. Similar to the common law principle, that does not admit vicarious liability in criminal law, African indigenous law, considers a crime an offence affecting the individual that commits it. Punishments are rated according to the degree of the crime, in the order of seriousness of the injury caused. Insults are not punishable by law; the insulted insults in return. If a fight results, and wounds are made during the fight, no fine is required.
One of the dominant attitudes in customary criminal adjudication has always been the desire to resolve the social problem brought to a head by the crime. Punishment was desirable for correctional purposes and preventive measure against re-occurrence of such a misdemeanour in the society. It behoves on the offenders, therefore, to exhibit robust sense of responsibility and maturity towards the acceptability of the verdict whose pronouncement was the collective decision of the adjudicators driven by the customs and norms of the society.
African jurisprudence frowns at punishment being meted out to a person, no matter how vicious he may be, except for some proven offence. Sanctions were also meted out on individuals, families etc, that acted in ways contrary to custom and traditions, especially ways likely to cause strife and bloodshed. Such sanctions were used to deter conflicts and conflict generating behaviours such as stealing, adultery, wilful murder, incest, abuse of elders, wilful damage to property, lying, bearing false witness, poisoning ibu ns) etc. Our traditional criminal justice system, which embodies our values and sentiments, favour non institutional measures like banishment, fine, deportation, discharges (absolute and conditional), destruction, confiscation, forfeiture, restoration, restitution, and compensation. Punishment in traditional Yoruba legal culture just like in other indigenous societies, reports Balogun, can have reformative, retributive and deterrent effect as well as being instrumental to the dynamism of the legal culture.
Types of Punishments
Alan Milner points out that for many offences of varying significance, particular sanctions were not laid down in advance but penalties depended on the circumstances of the individual case. Opolot corroborates this assertion by positing that contrary to the classical school of criminology, the expediency of the traditional criminal law is that there are virtually no fixed sentences for fixed crimes. Besides the heavy punishments such as capital punishment and banishment, there were milder ones like fines, compensation and restoration. There are also less severe punishments against the violations of rules of the land and which may take different forms, such as minimal fines and levies, suspension and expulsion of membership from particular groups or
Writers on African indigenous law are in agreement as regards the non existence of imprisonment as a penalty for an offence. Penal Reform International holds the view that imprisonment has never existed as a penalty for any offence in African indigenous law. T. O. Elias also reported that traditional African societies frowned at imprisonment as a form of punishment. This position is corroborated by Alan Milner by stating that sanction of imprisonment was notably lacking among the range of sanctions in the traditional Nigerian societies, with the result that its introduction by the British administration in the Twentieth Century gave rise to considerable apprehension and confusion. Hence there was no room for institutionalised forms of punishment such as imprisonment for preventive detention. Offenders were left in the care of their families or extended families once the appropriate penalty has been imposed
At various times in the history of customary laws, hanging, beheading, stoning, drowning, burying alive and killing by the identical means used by the murderer had been allowed. Death is the common mode of punishment for the most serious crimes, such as murder, sacrilege and other magico-religious offences. The death penalty has been administered as the ultimate sanction in offences other than murder: recidivist theft, gross troublemaking, witchcraft and treason. If it is capital, the accusers are the executioners. For the Bantus, death is by various modes. Formerly, it was very cruel, e.g., burning, roasting, torturing, amputation by piecemeal; now it is generally by gun, dagger, club, or drowning. For a debt that a creditor is seeking to recover, securities may be accepted. But if the accused then runs away, the person giving the security is tried and punished. Some offences such as murder and witchcraft were considered much more serious than the others, and often attract the death penalty; consequently, they are discussed below.
Murder- Right from the early period of creation up to present day, the offence of murder has been considered a very serious offence. In the biblical story of Cain and Abel, God issued serious punishment on Abel for shedding the blood of his brother Abel. African traditional societies consider murder a very grievous crime that must not be left unpunished. James Opolot in his study of tribal societies in Uganda, found that the Karimojong, sebei, Ganda and Soga tribes treat murder as a major crime within the realm of homicide. A distinction is drawn in cases involving the killing of a human being between deliberate and wilful murder and accidental killing. Oputa accounts that under the Ibo customary law, it is a very atrocious crime for a man to wilfully and deliberately kill another member of the village. If such happens, the houses and property of the whole family of the slayer would be destroyed. In addition, the slayer is expected to hang himself, failing which he may take the option of running away from the village which is considered cowardly and believed that a course of murder is hanging over him wherever he ran. If the killing is accidental, the offender is notified of the death of the victim of his Act and given the opportunity to flee the town. He remains in exile for a period fixed by local custom, usually 3 years, after which he may return if he so desires. If he returns, he pays compensation to the relatives of the person he slew, usually in the form of the family of the accused handing over a girl to the family of the deceased. It is expected that the girl would stay in the family and bear children to redress the social imbalance caused by the death of the deceased. The absconding criminal must remain in exile until the bitter feelings towards him have died down. In some parts of Ibo land, a person guilty of murder was exiled for life while in other parts, the exile was for seven years.
This is the most serious crime in African indigenous society. It involved the use of powerful medicines, magic and the supernatural for harmful ends. It is like poison among us. It was so sinister because the victim would have no idea of what or who was causing the problem.
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 Black’s Law dictionary defines banishment as a punishment inflicted upon criminals, by compelling them to leave a country for a specified period of time or for life. It is synonymous with exilement or deportation, importing a compulsory loss of one’s country. Banishment is one of the penalties resorted to in pre-colonial African societies. Serious crimes such as murder, and witchcraft may attract such penalty. This disposition method is based mainly on the penological theory of elimination. Banishment was regarded as an equivalent of the death penalty due to the fact that it might lead to attacks by animals or to capture by slave dealers. Banishment may be permanent or temporal. The Pastoral Fulani of Northern Nigeria used temporal banishment as a penal sanction. This amounts to sending him into the bush until he repented.
Fine is one of the disposition measures employed by the indigenous African societies in their criminal justice process. The policies pursued in imposing fines are those of retribution and deterrence. The fines had to be paid to the chief. The rationale was that all the people belonged to the chief and the injury therefore was to the chief but the chief would usually give part of the fine to the family of the injured party. For the Bantus, all misdeeds and offences, even capital ones, may be condoned by a fine in goods, except only the murder of a man. In such instances the murderer must forfeit his life. Where fines are required, the fines are paid with goods, each offence having its own regulation price as a punishment.
Among the Bantu people of Kenya, corporal punishment is administered publicly, the townspeople being called to witness it, so as to operate on their fears and cause them to dread the doing of deeds which may bring on them such a penalty. In the, Yoruba legal culture, social crimes attract corporal punishment such as flogging, whipping, tying, putting in the stocks or yoke, lacerating wounds, banishment, castration or emasculation, etc.
As noted earlier, African indigenous justice pays attention to the plight of the victim of crime. It tries to ensure that the crime victim is returned to the position as nearly as possible, which he was before the crime was committed. Hence, it employs the principle of restorative justice in its punishment.
Compensation and Restitution
The major rationale of traditional adjudication is to restore social harmony and reconcile the parties where possible. The penalties therefore largely focus on compensation or restitution in order to restore the status quo, rather than punishment. Alan Milner had reported that compensation and restitution had been popular and acceptable means of disposing cases in Nigerian customary courts than in the British Courts. African criminal justice system employs a tripartite approach to criminal justice administration, namely, focusing on the interests of the victim, the community and the offender. Traditional Nigerian judicial systems attempt to restore broken links and the victim of crime is one of those always considered paramount in the judicial process especially in the case of victims of violence, rape, robbery and murder. Restitution relates to the return or restoration of movable property either stolen or otherwise dishonestly acquired.
Compensation and/or restitution are examples of substitutes for the death penalty. Murder per se, unless the offender shows little or no cooperating demeanour, could in some cases, be subject to the penalties of compensation, and/or restitution and reconciliation and ceremonial cleansing. Opolot reports that in early times, among the Basoga and Baganda of Uganda, while cases of intentional murder were rare, the death penalty could be exacted by the deceased relatives, but the general punishment was the payment of “blood-money”. Elias had also noted in relation to the Nigerian traditional system, that the payment of compensation or “blood money” by the offender to the offended was customary in many cases, even in unlawful killing of a human being.
Also among the Basoga and Bangada of Uganda, generally, no punishment was inflicted on a man who killed his wife or his slave for he is seen as disposing of his property and no one has suffered any loss which calls for compensation. Where a wife’s relatives bring a case against the husband who has killed the wife, and he could not give any excuse for the killing, he is punished by way of a fine only.
Goldschmidt notes that among the Sebei, the clan to which the murderer belongs initiates the action for settlement. A mediator, who is related to both clans is chosen to mediate the matter, through shuttle diplomacy. For the Sebei tribe, a predominant form of compensation is payment in kind for instance, cattle, based on a sliding scale, taking into consideration, the age,, sex, likelihood of more offspring from the victim, criminal record and economic circumstance at the time. Compensation for a woman is less than for a man, depending on her age
In some Nigerian communities, especially among the Ibos, reports Milner, an unintentional homicide or a wounding would be sanctioned only by making the offender pay the cost of the funeral, including the funeral clothes, the animals to be sacrificed and the foodstuffs for the feast or the cost of caring for the victim until he recovered.
Crime and punishment in indigenous African societies were characterized by flexible unwritten rules and procedure believed to have originated from divine inspiration, for the sole purpose of maintaining peace, stability and good relationship in the society. African indigenous criminal justice system when compared with the imported western style criminal justice practiced today in our courts is cheaper, informal, speedy, devoid of technicalities; and justice is seen to be done by the people. Parties are not requird to retain counsel hence, the cost of retaining counsel is not borne by the parties. The proceedings take place within the community, hence parties do not need to trasport themselves to a distant venue for the hearing. The proceedings are conducted in the local dialect which is understood by all the parties thereby dispensing with the need for an interpreter. The procedings are devoid of legal technicalities; conducted in a manner understood by all and sundry and also by peole who are part of the community.
It is a known fact that customary criminal laws are no longer in force in Nigeria and the courts can only impose penalties stipulated in a written law. Majority of the penalties and procedure discussed in this chapter such as trials by ordeal, torture and corporal punishment have been abolished by statute. However, post-independent socio-legal studies on the relationship between the state legal systems and the various types of indigenous justice conclude that customary court judges both validate and invalidate some aspects of the indigenous legal orders, thereby constructing a new set of legalities. While not making a case for a wholesale return to the indigeneous criminal procedure, it is submitted that our present criminal justice system will be enhanced if it is modified by the adoption of some aspects of our indegeneous criminal procedure, especially in the areas of speedy dispensation of justice, decrease in cost of obtaining justice, informality and elimination of technicalities. Our system will also benefit immensely from the full adoption of victim offender mediation (VOM), which is indegeneous to us, but is currently practiced in Western countries.
ª By Dr. (Mrs) Ani Comfort Chinyere, LLB. (Hons.); BL; LL.M. (UNN), Ph. D. (Lagos), Head, Alternative Dispute Resolution Department, Nigerian Institute of Advanced Legal Studies, Lagos. E. Mail: [email protected]
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 Uwazie, Ernest E. “Modes of Indigenous Disputing and Legal Interactions among the Ibos of Eastern Nigeria” op. cit. note 3.