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THE EARLIEST AFRICAN JUDICIAL SYSTEM

In the chiefless state (stateless society), then, the function of the elders was wholly advisory. For this reason they rarely met as a council, except when called by the Senior Elder to an emergency meeting. Matters involving the members of the same family or clan would be settled by the family council, each family or clan having its own elder. Conflicts between families or clans could be brought before any mutually acceptable elder for settlement. The elder's judgment was not binding, and if there was any remaining dispute additional elders could be called upon to exercise judgment. Moreover the community as a whole was represented at such hearings in the everpresent crowd and would indicate their approval or otherwise.

The constitutional theory and principle here is especially significant, for Williams, because of the important form it took in all African societies in every part of the continent as societies evolved from those without chiefs to centralized states under chiefs, kings and emperors. In this continent-wide constitutional development the chief or king became the mouthpiece of the people and the instrument for carrying out their will. They still had no ruler in the Asian or European sense. In the chiefless societies, on the other hand, the elders were the overseers of land distribution to families. Finally, nothing contributed more to the efficiency and success of self-government without governors than the system wherein each age grade was responsible for the conduct of its members, and that before any misconduct could reach one's age-grade council it was handled by the family council. Stated another way, each family policed itself, each age group policed itself, so there was little the community as a whole needed to do.

It was therefore in the societies without chiefs or kings where African democracy was born and where the concept that the people are sovereign was naturally breathing. Theirs was in fact a government of the people. That this kind of government did “pass from the earth" is what we call “modern progress".

So what does this all imply, for Williams, for the fundamental rights of the African people, as per their original, democratic constitution?

THE FUNDAMENTAL RIGHTS OF THE AFRICAN PEOPLE

Williams, at this point, spells out in more detail what has since been lost by Blacks, starting with the fundamental rights of the African people:

• the people are the first and final source of power;

• the rights of the community are superior to those of any individual;

• elders, chiefs, kings as leaders, not rulers, exercise the will of the people;

• the family is recognized as the primary social, economic and political unit;

• the land belongs to no one; it is God's gift to mankind, a scared heritage;

• each family has a free right to the land, as a means to make a living;

• “royalty" means royal worth – highest in character, wisdom and justice;

• age sets are social, economic and political systems underlying education, roles and responsibilities, division of labour and rights of passage;

• the community is to be conceived as one party, opposition being conducted by leaders of factions formed by different age groups, with debates being held until there is consensus;

• African religion is a way of thinking and living, not a creed or "articles of faith", reflected in all institutions, whereby politically the High Priests who present the prayers of the people and their ancestors are key, and socially, the "rights of passage" via songs and dances are important.

So much for the profoundly original African local grounding. What then is the contemporary implication of such constituting of Africa, today?

 
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