You can only aspire for what you can construct as a clear mental picture (vision).
If the mental picture that you aspire to is merely about being an acceptable carbon copy of someone else ( i.e. another person, culture, nation, civilization, race, etc) then you are deep in mental slavery.
If what you know only empowers you to mimic someone else or another culture or race, then you are a victim of knowledge autocracy or knowledge imperialism. Who you really are, could be and should be has been totally erased. Such erasure starts with erasure of memory or history
You do not need to be a lawyer in order to understand that there is something ridiculous with African judges wearing white wigs and red gowns in our sweltering heat or lawyers wearing black gowns , white wigs and gebou(bibs). We inherited this from the colonial era and much more insidious and harmful ideologies about being, becoming and belonging at law.
Our Constitutions are mostly authored from the following assumptions, perspectives and principles :
1. African customary law shall apply in narrow family settings and with regards to the determination of traditional leadership only to the extent that it is not repugnant to general law ( read into this European or Western Law)
2. In other words, African customary law and culture doesn’t apply to issues of property; commerce, technology, education, health and almost every other important aspect of your life. Why ? Because natives were deemed to have no philosophy, no culture really and no values such as would distinguish them from mere brutish animals
3. Such that even when determining land ownership in Zimbabwe in 1918, British Privy Council was of the opinion that “the native has no concept of ownership” . Hence the Chimurenga war mantra that the Liberator was a “Son or Daughter of the Soil” …inseparable from the Land.
The idea that the land – all land – belonged to the colonial State and by parity of reasoning the white minority that presided over the State was made even more ridiculous by the view that mining claims superceded even land ownership by title deed. The mining interests of the colonial elite essentially led to a law that empowered the pillaging mining oligarchy to evict whole villages in order assert their right to dig for minerals. Questions of free prior and informed consent and mutual benefit are very recent developments.
Today we see whole villages and conservancy being pillaged by foreign prospectors protected by State Elites ( albeit Black Elites). What is tragic though is how liberating a country from colonial rule without concurrent decolonization of the law leads essentially to continuation of colonial governance and outcomes long after the white colonialists are gone. If you don’t change the structure, culture and mindset of the judiciary and lawyers you will efficiently echo an Empire long gone! Political and economic scavenging elites will decimate communities and ecology in search of El Dorado!
HISTORY PROVES ALL OF US FOOLISH
We cannot undo the harm done through constitutional, judicial and legal forms, including legal education without pressing the reset button.
If you consider the Chinese, Indian and African civilisations, they were far more advanced in their imagination of law , society and justice than the Euro-American systems that they have become absolutely dependent upon.
For instance, In the early thirteenth century, following a major military victory, the founder of the Mandingo Empire and the assembly of his wise men proclaimed in Kurukan Fuga the new Manden Charter, named after the territory situated above the upper Niger River basin, between present-day Guinea and Mali.
The Manden Charter, is one of the oldest constitutions in the world. It contains a preamble of seven chapters dealing with the following: social peace in diversity, the inviolability of the human being, education, the integrity of the motherland, food security, the abolition of slavery by razzia (or raid), and freedom of expression and trade.
Long after the Empire disappeared, the words of the Charter and the rituals associated with it are still transmitted orally within the Malinke clans. To keep the tradition alive, commemorative annual ceremonies of the historic assembly are organized in the village of Kangaba (adjacent to the vast clearing of Kurukan Fuga, which now lies in Mali, (close to the Guinean border). The ceremonies are backed by the local and national authorities of Mali and, in particular, the traditional authorities, who see it as a source of law and as promoting a message of love, peace and fraternity, which has survived through the ages. The Manden Charter continues to underlie the basis of the values and identity of the populations concerned.
At Great Zimbabwe and Mapungubgwe you will find similar renditions of law (the unwritten but well codified and practiced constitutions) that were key to social harmony, cohesion and prosperity. Our kingdoms and nations traded and inter-married thus borrowing practices from each other. If you travel from Southern Africa to Timbuktu via Lamu/Mombasa, Rwanda, Ethiopia, Ghana and Nigeria you will naturally notice many similarities (universal practices). Our humanities and social sciences guru’s must help us codify and modernise this inert universality. Why not? After all, are we not forced to or happily practice/apply Roman-Dutch common law (read customary law) with touches of German, English and French customary practices in independent Africa?
If we continue to imagine law and justice in Roman-Dutch, German, French colonial images, then decolonization is far from being accomplished. The wigs, gowns and etcetera are mere expressions of deeply internalised coloniality! We need the courage to re-imagine.
The fact that we had and have practices of conflict resolution and conceptions of justice that are restorative in our own cultures and we have despite 60 years of independence not sought to find universal meaning out of these shows that our imagination is deeply damaged by this internalised coloniality! We are proved foolish by history.
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