PHIL103: Moral and Political Philosophy

The Igbo indigenous justice system views legal violations primarily as victimizations of an individual or groups of individuals, and secondarily as victimizations of the community and its social order. This approach is vastly different from that of the Western criminal legal system, which places the state as the primary victim and officially records the state as the only victim of crime in court cases. While victims of crime are treated as " witnesses" (at the most) in Western criminal justice systems, the Igbo social justice system views victims of crime as participants in the quest for justice, empowering them to be part of the process of justice and restoration, as opposed to categorizing them as bystanders, silent observers, or witnesses open for interrogation in the "justice" process.

The Igbo also distinguish between crime and tort. These concepts are therefore used here to describe such phenomena as they are conventionally understood. I disagree with Western criminological literature arguing that use of the terms "crime," "torts," and "laws" to describe such practices in precolonial Africa is inappropriate. Maine (1969) and Diamond (1973), pioneer Western researchers of the living habits and social customs of precolonial peoples in Asia and Africa, argue that the customary practices of Asians and Africans are erroneously described as indigenous "laws". The evidence often presented to support this line of thinking is that precolonial African societies lacked centralized governments essential to the formulation and enforcement of laws. The assumption here is that governmental structures that mirror those used in the West can enact and enforce laws.

The inability to understand diverse structures of governance led many Western researchers to erroneously conclude that societies not structured in a hierarchical and centralized Western manner were "less civilized," and thus settled conflicts through violence and blood feuds. They further assumed that, since there was no recognizable central authority, there was no authority at all, concluding that victims of crime took matters into their own hands, and that chaos, not civility, structured and guided nonWestern societies.

Available records suggest that the contrary was the case. The very principles of Igbo justice models recognize the interrelationships between the victim, the offender, and the community, and thus cannot constitute a society that alienates its victims and does not participate with them in the quest for justice. In my view Western conclusions on precolonial African laws highlight the divergence between restorative and retributive justice systems. Whereas retributive systems of justice rely on centralized forms of social control and law-making, restorative systems of justice do not. Most African justice systems incorporate restorative and transformative systems of justice, and thus were not recognized by the Western scholars who were not versed in these frameworks. This lack of recognition led to the assumption that there was a lack of justice.

African societies had agencies, groups, and individuals with authority to make, apply, and enforce laws. Laws served the same purpose in Africa as in other societies, which Gluckman notes is the "regulation of established and the creation of new relationships, the protection and maintenance of certain norms of behavior, the readjustment of disturbed social relationships, and punishing of offenders against certain rules," Eze further points out that "in most traditional African societies the law existed outside the framework of a state in the modern sense. Obedience to the law was maintained through custom and religion as well as established patterns of sanction. These pre-colonial African societies had a high level of organization in which political, economic, and social control was maintained,"

Laws and regulations guiding behaviours and interpersonal relationships, and the procedures for seeking grievances, are defined by the appropriate authorities in Igboland. Actions that are prohibited are clearly defined and stated, and the procedures for enacting and enforcing laws are unambiguously stated by the institutions of society charged with such responsibilities. As Ayittey rightly points out, the African "village meeting under a big tree" and the European "parliament" were simply different forms of the same institution of democracy. What Africans had was participatory democracy; Europeans introduced parliamentary democracy. A unique characteristic of Africa's indigenous system of government was that it was open and inclusive. No one was locked out of the decision-making process. One did not have to belong to one political party or family to participate in the process; even foreigners were allowed to participate.

Most Igbo societies are egalitarian, with decentralized political authority. The power and authority to make and enforce laws are vested in the Council of Elders. A few Igbo societies had a hierarchical political arrangement with the power to make and enforce laws located in the office of the constitutional monarchy and the elders' council. Laws are distinguishable by the types and seriousness of the acts they seek to regulate, such as serious crimes, social obligations, and duties imposed by custom. As Obi, as cited in Okereafoezeke, rightly observes, the Igbo, like other African societies, are able to distinguish among " purely social obligations (such as the duty to honor invitations), duties imposed by custom only (for example, a father's duty to provide his male children with their first wives in order of seniority), and legal duties which can be enforced against the will of the party on whom such a duty lies". Okereafoezeke further notes that a distinction can be made between crimes against public security, such as theft, assault, battery, public nuisance, and violation of rules and regulations governing masquerade displays. Others include crimes against public morality, such as incest, adultery, and the murder of a kinsman, and the defilement of sacred institutions, such as a shrine. Prior to colonialism and the advent of popular education, as Okereafoezeke observes, the laws and procedures for law creation and enforcement were mostly unwritten, so "the natives relied on their individual and collective memories to ascertain the controlling legal authority on an issue. Because of the high integrity and honesty among community members, the absence of written documents as objective statements of the laws was not a major handicap to ascertaining and applying laws".

The Igbo indigenous justice system respects and promotes the rights of litigants. This is because respect for and promotion of human rights are values deeply rooted in African cultural values. As Gyekye rightly observes, the African believes in the sanctity of human life and human dignity, which is an expression of the natural and moral rights of the individual. However, the individual's rights must be appreciated within a communal context, as Elechi notes. This is because the community's rights or interests override those of the individual. That the community right is supreme does not mean that the rights of individuals are in jeopardy or compromised as a result. The individual versus the community rights paradox is eloquently described by Achebe: "In the worldview of the Igbo the individual is unique; the town is unique. How do they bring the competing claims of these two into some kind of resolution? Their answer is a popular assembly that is small enough for everybody who wishes to be present to do so and to 'speak his own mouth/ as they like to phrase it". The African humane and communitarian values make the welfare of one the concern of all. The African humanitarian and communitarian values make it difficult to subjugate anyone or deny his or her rights. Ifemesia, as cited in Iro, describes Igbo societies as communitarian and humane. According to Ifemesia, humane living conditions encompass a "way of life emphatically centered upon human interests and values, a mode of living evidently characterized by empathy, and by consideration and compassion for human beings.... Igbo humanness is deeply ingrained in the traditional belief that the human being is supreme in the creation, is the greatest asset one can possess, is the noblest cause one can live and die for".