Dr. Anthony Diala with Prof. Dr. Thoko Kaime on legal integration in Africa
Media records
Abstract
- Abstract
- In this latest episode of the Africa Multiple Cluster Dr. Anthony Diala talks with his host Prof. Dr. Thoko Kaime about his fellowship during which he worked on a book project on the theoretical framework for legal integration.
People & roles
Origins & context
- Title
- Dr. Anthony Diala with Prof. Dr. Thoko Kaime on legal integration in Africa
- Language
- English
- Podcast series
-
Cluster Conversations
- Date
- July 31, 2023
Rights & access
- Extent
- 29 minutes, 12 seconds
Identifiers & sources
Further details
- Episode number
- 10
Full text
- Transcript
-
[music]
Cluster Conversations, a podcast by Africa Multiple.
Welcome everyone to this podcast. My name is Toko Kaimbe and I am Chair of African Legal Studies here at Bayreuth and it is my pleasure and honour to welcome our guest who is undertaking a fellowship here with us under the auspices of the Cluster of Excellence Africa Multiple here at Bayreuth. Professor Anthony Diella, Anthony, welcome to this podcast.
Thank you very much.
Yes, where we discuss a few aspects of the work that you've been undertaking here with us so far. I would like to give you the opportunity to introduce yourself for our listeners.
Okay, thank you very much. My name is Anthony Diella. I am with the Beruf Akademie of Advanced African Studies under the Africa Multiple Cluster of Excellence. And I have been here since February 2023. I am working on a project, a book project, an edited collection that seeks to articulate a theoretical framework for legal integration in Africa. So that's the project I have been working on. In South Africa where I came from, University of the Western Cape, I direct the Centre for Legal Integration in Africa. So my project here in Bayreuth fits directly into the work I am doing in South Africa. So for the past five months now, I think, I have been finishing up this edited collection which is ready to go to press this week. And I have also been doing some part-time teaching of human rights in Africa here at the university.
Okay. Before we get into the nitty-gritty of the edited book that you have worked on and some of the papers, chapters that you have contributed towards this book, could you introduce a little bit the work of the Centre for Legal Integration in Africa? What are your current priorities and what is your overall mission?
Yeah, thank you for asking. The Centre for Legal Integration in Africa is a research centre located in the Faculty of Law at the University of the Western Cape. So it was formed in, formally got approval from Council of the University in October 2020. So we are a little bit in our infancy. We are less than two years technically. We started operations formally in 2021 and the same year we managed to obtain a grant from the National Research Foundation of South Africa for a field project which I shall speak a little bit more about later. But in a nutshell, the mission of the centre, the programmatic focus is on teaching, postgraduate teaching. We introduced a new Master of Laws programme titled 'Legal Pluralism and Family Law' which seeks to explore the interaction of indigenous African laws with the statutory laws that were formerly European colonial laws. We also engage in research and postgraduate supervision. We have about six doctoral students registered under the centre and quite a large number of LLM students. Then we engage in community advocacy, community outreach with engaging with traditional leaders, engaging with officials from the Ministry of Justice, not just in South Africa but also in other African countries. Then we engage in academic collaborations with institutions across the world, especially those that deal with African law.
Speaker 1: Yeah, so these are the three focus areas: postgraduate teaching, research, and community engagement. So now back to this field project I spoke about. We discovered that a key problem in many African countries, especially in South Africa, is what is known as conflict of laws. A conflict of laws involves clashes between the laws that were imposed by European colonizers and eventually became statutory laws, and the customs, indigenous customs of African peoples. So because these customs emerged in agrarian social settings where people lived close together and practiced communal life, they had this tendency to cater for the welfare of the group. Unlike state laws, especially the bill of rights, human rights principles that focus more on the welfare of the individual. And also because some principles of these state laws like equality, non-discrimination, et cetera, because they have this binary tendency, they like things to be in black and white, whereas things are more processual under indigenous laws. These tensions arise, these conflicts arise. So we try to find out how we can mitigate conflicts between these two legal orders, these two normative systems, and see how they can work side by side and speak to each other rather than against each other. So our project focuses on ascertaining the foundational values of indigenous African laws in two South African provinces. So we're looking at the Limpopo province and the Eastern Cape province. So since 2022, we have been engaged in fieldwork involving twenty field assistants who go out to collect data on these core values of indigenous laws. Because these values we have found out determine how people practice their customs today. They determine how people adjust their behavior to the demands of state laws. So the project is ongoing and we conclude next year. And we have gotten quite a lot of very useful data from which we can make a preliminary analysis about the interaction of legal orders in South Africa.
Speaker 2: Okay, okay, good, good. I am really excited about this project, as you know, because I think it contributes a lot to what I see as an evolving idea of a common law for Africa. So I guess my next question is related to this idea of applicability of this research to other jurisdictions aside from South Africa. From the data you have gathered so far, how do you see the possibility of extending this work to other jurisdictions across the continent?
Speaker 1: That's a great question because we have found out that this data actually looks very replicable across other African countries. So what we are finding out is that some of these values, these core values, like lobola or bridewealth, it's a token sum that is paid to acknowledge that a woman has joined another family. So customs like bridewealth, customs like initiation of youth or young men into adulthood, customs like male primogeniture, the rule that the eldest male child will inherit property as a trustee for other children of the household. These are values that seem to be common across the continent. So the data that we are obtaining holds quite a great promise for the articulation of common laws in African countries. In fact, we are thinking that when we are done with this project, that we should perhaps approach the African Union and see if they cannot sponsor similar fieldwork across other African countries with the ultimate aim of helping African states to articulate national common laws.
Speaker 2: Yes, and this would fit very well into the Agenda 2063 where there is a clear preference made for indigenous legal systems. I think political support for a project like this is in place.
Speaker 1: Exactly, I agree with you. That's true.
Speaker 2: Yeah. Now, you talk about foundational values. This for me is an interesting idea. Being a human rights lawyer and a constitutional lawyer, I want to get your views about where these...
Speaker 1: foundational values or core values fit within current constitutional frameworks. Where do these ideas sit? Are they complementing the constitution? Are they modifying it? Are they in conflict? I mean, from the data you have so far, what are your impressions?
Speaker 2: Yeah, so we're finding quite some bit of similarities between some foundational values of indigenous laws and some of the values in constitutional bills of rights. So let's just take two examples. So in the bill of rights, most bills of rights across the world, you would have the right to human dignity as a core value. Now, a core value, a core foundational value of indigenous African laws is ubuntu. You know, humanness. It's a concept that denotes humanity. We, I exist because we exist. So it's a vision of shared humanity. Now, if you look at the bill of rights, you would find that human dignity seems to be a little bit focused on one person, an individual. But ubuntu goes beyond human dignity by encompassing a holistic view of the cosmos. A holistic view that takes in the welfare of everyone, not just an individual. So in that way, you can see that it has an advantage over human dignity in the bill of rights. And another example that I can give is also related to ubuntu. It's the right to life. So you see, most constitutions have provisions for rights to life. Yes. And most states across the world have abolished the death penalty. So they don't have the death penalty anymore. Now, if you look at a core value of indigenous African laws, you would find that life is a very, very important cherished principle, cherished value. In fact, research has shown that in many African countries, African communities, not countries now, because people were living in tribal communities before European colonialism, you would struggle to find prisons in the way that we have them today. There were no prisons. Because the justice system was aimed at reconciliation and restoration. So the highest form of punishment that indigenous communities, many indigenous communities used to give in the pre-colonial era is banishment. They send you away from the community. Yes. And then you go wandering in the forest or go to another community and try to make a new life. So they did not kill people. Okay. It's a value, a very cherished value. Yes. And now that we see a return among the international human rights movement to that pre-colonial value of indigenous African people. So these are the advantages and the similarities that we can find in these constitutional bills of rights and the core foundational values of indigenous African laws.
Speaker 1: Okay. Focusing on this idea of, you know, constitutions and constitutionalism. Since we have to accept that any legal system or aspect of the legal system has to be filtered through the constitution. What are your thoughts relating to how some of these foundational values that you are discovering can be filtered through the constitution?
Speaker 2: Yeah, yeah. That's a very tricky question. But we think that these values can fit in with constitutional values if the judges can start substituting some of the human rights principles in the bill of rights with these core values. So rather than applying a binary interpretation of equality, by saying oh, all women must share property with their husbands fifty-fifty unless an ante-nuptial contract was signed. Why don't you rather look at the indigenous way of sharing property by looking at who will be prejudiced, who will be harmed if this property is shared in this manner? Yes. So how about you look at the dependants, looking at the principle like the overall interest of the dependants of these people who are involved in this property sharing. So be it a person who has passed away or a couple that are divorcing, you have to look at how the division of that property will benefit those around them. So we think that if judges can start by emphasizing these foundational values.
Speaker 1: Rather than always using constitutional bills of rights or using the so-called repugnancy clause, remember the clause that says any value that is repugnant to natural justice, equity and good conscience. Some African countries are still using it up till today. These are colonial era standards that should have, you know, been abandoned. So if judges can start looking away from these colonial era standards, start looking away from these individualistic bills of rights principles and start focusing on these foundational values of customary laws, then that would be a great start. And then from there, when enough awareness has been created about these values, then we can take it to the legislature and ask the legislature to codify some of them or to bring them into the constitution itself so that they can operate alongside or in place of constitutional bills of rights.
Speaker 2: Very good, very good. I like the sound of this ambition, if I may put it like that. And you speak about colonialism and how the way we have looked at indigenous legal systems, traditional legal systems as being ultimately colonial. But I want to investigate how this colonial conception of the relationship between the constitution and the indigenous law is reflected in the way we teach. You know, how are we teaching our students? And what are the lessons from this project relating to how we train future lawyers? Because my experience is that the lawyers that we are teaching, especially those in common law jurisdictions, are better suited to working in England than in Nigeria. They are proper English law experts. And they are not experts of, you know, the legal, I mean the indigenous legal systems of Nigeria or Malawi or Botswana, whatever the case might be. So what do we need to do in the law school to ensure that judges, like you said, have got the skills and the comfort to apply these foundational values of indigenous law?
Speaker 1: Yeah, thank you for raising this. It's a very, very important point. It's so important that I actually wrote an article titled Curriculum Decolonization and Revisionist Pedagogy of African Customary Law. When I was invited to the Ghana School of Law in twenty twenty-one, I think, to speak about curriculum decolonisation, I found to, well, not to my shock because I've found something similar also in other African countries, in Nigeria, in Somaliland even, in South Africa, that our students are ignorant about customary laws. And not just ignorant, but also disinterested. They don't care. So what I have found out is that colonialism managed to clone itself. By clone itself, I mean to reproduce all the structures of colonialism. The only difference is that the colour is different. But every other thing remains in place. So it's a great challenge because we have very few teachers who are qualified, who are knowledgeable about these indigenous systems. And without the teachers, what can you do? So it's very difficult. So we need a new generation of students who will one day create a new generation of teachers. And the only way to start is now. So we try to teach customary law, try to teach African law, legal pluralism, interaction of laws in a way that gives students a broad historical holistic view of how laws operate. Because history is quite clear on this matter. What history shows us is that whenever you impose laws on a people, their indigenous laws adapt towards the imposed laws.
Speaker 1: Rather than the other way around. Now, what normally happens is that where the indigenous people fail to take careful systematic steps to preserve their indigenous laws, then these laws eventually would disappear. They will be lost. Yes. They will be lost. It has happened everywhere. I mean, look at the example of the Romans. The Romans were in Britain. They colonized the British. The Scandinavians were also in Britain. They colonized the so-called Norman conquest. They colonized the British. They imposed their laws. English customs adapted towards all these imposed laws and eventually produced the English common law. And then guess what? The English then imposed their English common law on most parts of the world, on Asia, on Africa, even on the almighty United States of America. And so Africans need to be careful. If they don't take these historical lessons into place, then we would end up losing our legal identity completely. So when these common laws that you spoke about, when they are eventually articulated, you might find that they have very little or no indigenous flavor. That they are actually composed essentially of the imposed laws. So the time is now to get the students right. But we don't have enough teachers who are knowledgeable in this space.
Speaker 2: I couldn't agree more with you on this point. I have always argued that we need to make an understanding of our traditional legal systems part of the core curriculum. But in Malawi, in Botswana, in South Africa, these are optional courses. Yeah. In Nigeria too. In Ghana, where I came from, they were shocked to learn that we teach customary law in South Africa as a standalone course. They were shocked. You know, in Ghana they teach it as part of the legal system. A few weeks instruction and that's it. And yet this is the legal system which mediates the lives of the majority of Africans, of the polities. So what are we doing? Are we just catering for the urban elite then? Because that's what essentially the law school was designed for during colonial times. And we have replicated that. So I think there is a mission there for yourself, but also the Centre for Legal Integration in Africa. Beyond like-minded organizations on the continent. Yes. Beyond understanding the place of traditional legal systems within the constitution. Going into how we teach, you know, curriculum revision and decolonizing the curriculum, like you said. Exciting work. I'm really looking forward to these conversations with you as, you know, the years go by. I think there's a mission here. There's a lot of work. There's still a lot of work. There's a lot of work. It makes me really determined to, you know, create this conversation, participate in this conversation about how our constitutions start recognizing the most important legal system within our polities, you know, because this has been missing so far.
Speaker 1: Yeah, and I also forgot to add that I am working on an advisory committee for the South African Law Reform Commission. And what I have found out is this top-down approach to law reform. So while committees are still working, you would see the government already sending out tenders for companies to come and draft legislation when we have not submitted reports. So this sort of top-down approach is not helpful ultimately. So we also need to engage with these judicial policymakers to see how we can work with them more to ensure that we take a grassroots approach to law reform.
Speaker 1: No, I wish you all the best in this project and I'm really interested in seeing the replicability of the work that you've done so far. It's applicable in many, many, many places. We had this conversation about Somalia and their quest for a new constitution and that and of course we are in conversation with colleagues from Somalia, from the Ministry of Justice and Constitutional Affairs and some of the universities there to see what the constitution must look like and I must say I am really heartened to see that they want to put this traditional legal system at the front and centre of the constitution.
Speaker 2: That is good, that is good. So they want to emulate Somaliland. You know, Somaliland broke away from Somalia. So the Somalis, the Somaliland people, what they did was to try and integrate by making these their indigenous systems the core of their legal system and then using the former colonial laws as secondary. So that's what they are doing over there in Somaliland. I spent two months in Somaliland in 2017 and it was an eye-opener on how you can adapt indigenous...
Speaker 1: It's a complete, I mean, in Somalia too, a completely unorthodox way of looking at constitutional making.
Speaker 2: And commendable, very commendable too.
Speaker 1: Yes, very much. Okay, we are now coming to the end of our chat and I just wanted to perhaps give you an opportunity maybe to reflect on future directions of your work, you know, to share with our audience what you think will come out of the current project but also the next steps that you are planning for yourself but also the Centre for Legal Integration in Africa.
Speaker 2: Yeah, thank you very much for that question. You see, one unintentional consequence of the field projects that we embarked on, as I thought and thought creatively about how to integrate legal others in Africa, it occurred to me that there is a possibility of articulating a whole new theory of law. So something that I am calling adaptive legal pluralism that seeks to explain how laws interact in post-colonial societies, in societies that gained their political independence about hundred years ago. So adaptive legal pluralism could well end up being an important contribution to the concept of law, theories of law worldwide. So long term, I plan to write a monograph. I have already started the introductory part and the book proposal. A monograph that I intend to publish in 2025 and it's going to be centred on this theory of adaptive legal pluralism. So the field project could well end up being an important contribution to law from Africa. It would be a very great thing, you know. But in the medium term, we shall have to write a book with my colleagues on the field project. The book will have to deal with these foundational values because we need attention on them. I have published one or two articles that hinted at some of these values but we need something that is comprehensive that will explain how these values informed social life in pre-colonial societies and inform how people adapted to the industrial legal systems imposed on African communities and how people are currently adapting their behaviour to the demands of globalisation, especially with technology and social media and the rest of them. So these foundational values are very important and that book will hopefully shed them quite good light and inform policy in and beyond South Africa.
Speaker 1: Okay, awesome, awesome. Really happy to hear about these plans and I look forward to learning more about adaptive legal pluralism. So Anthony, thank you so much.
Speaker 2: My pleasure.
Speaker 1: It's been our honour here at Bayreuth to have you as a fellow here.
Speaker 2: Thank you very much and I've also enjoyed my stay. I mean, it was here that I came up with the idea of segmented modified segmented teaching. So these experiences, they also help broaden their horizons.
Speaker 1: I'm happy to hear this. Yes. Okay, thank you so much.
Speaker 2: Thank you very much.
Speaker 1: Thank you. Okay, so thank you for listening to this podcast and we look forward to welcoming you to more sessions in the future.
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Speaker 1: Hello everyone, thank you for joining us today. We're going to discuss the upcoming quarterly review and go through some key performance indicators.Value Annotations
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