Africana Legal Linguistics
Patricia Murphy-Geiss, Georgetown University
Introduction
Modern African systems of governance exist in the context of culturally diverse and multilingual societies. Despite this, most African law is written in Western languages. For example, the Angolan and Cabo Verdean constitutions are written in Portuguese; the Burkinabé, Central African Republic, and Chadian constitutions are written in French; the Equatorial Guinean constitution is written in Spanish; and the Kenyan and Rwandan constitutions are written in English. Some countries have included provisions in their Constitutions designating other official languages and mandating that legislative texts be translated into local languages. For example, The Burundi constitution specifies that all legislative texts must have a version in Kirundi, and the Kenyan constitution declares Kiswahili, English, and Kenyan Sign Language to be the official languages of Parliament, with the version signed by the President to prevail in the case of conflicts between different language versions of Acts.[1]
Ultimately, laws aim to create a system of norms that a community recognizes. In this way, law is the codification of societal norms through language. Language is the vehicle for culture, and therefore is an important tool for writing law, and thus communicating norms. As the carrier of culture, language has also been used as a tool of suppression and cultural erasure by Western nations throughout the Maafa.[2]
The use of Western languages in African laws furthers Maafa goals of language suppression. Despite this, a reversion to post-Maafa African systems of governance is not only impossible, but would likely not benefit African peoples in the modern world. Therefore, Africana legal-linguistics should be used to find solutions and ultimately strive to create modern systems of governance in multilingual and culturally diverse countries. However, creating multilingual legislation for diverse communities raises various problems, as illustrated in the European Union (EU). Multilingual legislation forces lawmakers and enforcers to displace assumptions about the relationship between law and language to find universal norms within multilingual texts that may use different terms and apply different historical context to those terms.[3] However, this practice can place more attention on the normative values underlying the development of governance systems across African cultures, ultimately harmonizing law in a way that centers African cultures and connects modern systems of governance to pre-Maafa systems of governance.
Africana Legal Studies
Africana Studies is the study of Africa and Africans wherever and whenever found.[4] Disciplinary Africana Studies incorporates various schools of thought, with four main approaches: African-centeredness, a long view of history, cultural continuity, and Carr’s Africana Studies Framework.
Long View of History
Using a long view of history is the first step in conducting Africana legal-linguistics. The long view of history approach reframes the history of African descendants in the Western Hemisphere as beginning in Africa rather with enslavement.[5] Beginning with a truncated view of Africana history shifts attention away from the impacts of oppression, by erasing what existed before those systems were put into place. This view thereby erases the subsequent losses and frames everything that comes after enslavement as progress. Generally, this approach is applied to Africana Studies in the diaspora, which has historically been framed as beginning with enslavement. However, the long view of history can also be applied to a study of the African continent as well, with a reframing to include pre-Maafa narratives. Just as John Henrik Clarke noted that “when you start history with enslavement, it makes everything else look like progress,”[6] this same error can be made when framing African history as starting with the Maafa. By applying a longer view of history, the present no longer is viewed as superior to the past, and the realities of loss and regression can be appreciated.[7]
Africana legal-linguistics must recognize that modern African legal systems began long before the Maafa. While modern African legal systems have been built on the foundation of Maafa legal systems, they also have roots that penetrate beyond these foundations and connect modern law to pre-Maafa systems of governance.
African-Centeredness
Once the frame of view is expanded to include pre-Maafa systems of governance, Africana legal-linguistics must center African peoples and perspectives. African-centeredness prioritizes African over Western viewpoints.. The primary goal of this approach is to disconnect Africana Studies from Western normative theory, thereby “breaking the chain that links African ideas to European ideas.”[8] African-centeredness therefore rejects the practice of relating Africana as a subject back to the West by centering African frameworks.[9]
An African-centered legal study breaks links between African thoughts on governance and European thoughts on governance.[10] The historical norm in African legal studies has been to focus on Western systems of governance in studying modern African law, with a focus on Maafa systems and language. The point of Africana legal-linguistics, therefore, must be to privilege African languages and culture as the primary vehicles and creators of modern systems of governance.
Additionally, Africana legal studies recognizes that written law is a Western construct that has been inflated and superimposed upon African systems of governance. In fact, pre-Maafa African societies gave rise to a variety of approaches to governance that had nothing to do with law.[11] While reverting to pre-Maafa systems of governance is neither practical nor likely beneficial for modern African nations, recognizing that law is a Western norm allows Africana legal studies to combat the idea that written law is inherently better, but is instead the result of a long timeline of Africana history that includes enslavement, colonialism, and globalization. Additionally, pre-Maafa African systems of governance have traditionally been called “African law,” “traditional law,” or “customary law.”[12] These terms all maintain that law is a human universal while qualifying African law to mark it as different from the standard of Western law.[13] The term “law” is generally understood to refer to Western-created systems of governance, with non-European systems needing qualification as something different.[14] This centering of Western law as the norm and all other law as deviations is the “Qualified Law Orientation.”[15] One way of centering African history and systems is to call African systems of governance something other than “law.” Africana legal scholars have thus used the term “protocol” to describe systems of governance in African societies. This breaks the underlying concept of power in using the term “law” with qualifications that underscore that Western law is the default.
The term “protocol” describes both pre-Maafa as well as modern African systems of governance. However, the term “African law” is still useful in describing written law largely exported from Europe. This recognizes that modern African legal systems have adopted many Western norms of social governance, such as written law. Ultimately, modern African systems of governance are a mixture of Western legal systems imposed during the Maafa and Africana protocol that thrived pre-Maafa. Therefore “pre-Maafa protocol” refers to African systems of governance before Western aggression, while “modern protocol” refers to African systems of governance today that include written African law.
Cultural Continuity
After expanding the frame to include pre-Maafa history and social governance structures as well as centering African perspectives and peoples, the continuity approach guides Africana legal-linguistics. Cultural continuity primarily recognizes that Africans brought ideas about governance with them into the West during enslavement.[16] This approach therefore calls into question the notion that enslavement resulted in a severance between Africans and the diaspora.[17] In doing so, a continuous approach recognizes that “one cannot fully understand African American thoughts or attitudes about American [l]aw without first understanding the unique world-senses and [p]rotocols of their African ancestors.”[18] Therefore, this approach emphasizes that modern Africana culture is a combination of African and European traditions. The cultural continuity framework, like the long view of history and African-centeredness approaches, can also be applied to the African continent, focusing on the mixing of cultures post-Maafa rather than seeing the Maafa as a severance between traditional and modern African society. This framework as applied to the African continent recognizes that the Maafa presented a threat to continuity, but that severance and subjugation were not complete.[19] Africana legal-linguistics must therefore link modern protocol to African precedents and antecedents. This approach also emphasizes the importance of ethnicity in the diaspora. This too can be applied to continental Africana Studies, with an emphasis on ethnic and linguistic diversity within countries. Additionally, a focus on ethnic diversity also recognizes that the creation of nation-states founded on arbitrarily imposed boundaries resulted in the division of people with the same language, culture, and history.[20]
Carr’s Africana Studies Framework
Finally, Carr’s Africana Studies Framework can be applied throughout Africana legal-linguistics. The Framework was developed by Dr. Greg Carr, consisting of six conceptual categories with accompanying questions. These categories include: Social Structure, Governance, Ways of Knowing, Science and Technology, Movement and Memory, and Cultural Meaning-Making.[21] These categories shift the frame from the systems imposed upon African peoples to the systems of African peoples.[22] Many of the accompanying questions can be asked in the context of Africana legal-linguistics including: “what is/are the social structure(s) in place for the people discussed?”, “how did [] Africans organize themselves during this period?”, and “what kinds of systems did African peoples develop to explain their existence and how did they use those systems to address fundamental issues of living?”[23] These questions can be used to center African social structures, governance, and ways of knowing when analyzing modern protocol and interpreting African law.
The Importance of Language
Importance of Language to Culture
Culture is defined by the sharing of ideas, values, and ways of knowing. By sharing and exchanging the contents of the mind, individuals create culture by internalizing commonalities. The primary tool of cultural creation is therefore language, as the means of communication and sharing. Thus, language is the essential vehicle for culture. According to Ngugi Thiong’o, “language is a communication system and a carrier of culture by virtue of being simultaneously the means and the carrier for memory.”[24] According to Wilhelm von Humboldt, “language expresses and shapes the spirit of a people and the soul of a nation – in all that makes them specific.”[25] Language thus plays two key roles: linking people and communities to a single way of knowing, and differentiating between people and communities through the expression of an independent identity.[26] This is especially true in African cultures, given strong oral traditions and the wide diversity of languages.[27] For example, the considerable social role of the “linguist” or the “griot” is an oral tradition that reflects the importance of language in African culture.[28] According to Casely Hayford, the linguist was an especially important person in African cultures along the Gold Coast, in some cases surpassing even the Chief in influence.[29] Linguists would often represent the Chief who did not customarily speak at public functions.[30] The linguist acted as the mouthpiece of the Chief, with the ability to “smooth[] down an angry word . . . or put[] a keen edge to a retort.”[31] Additionally, the linguist was a repository for traditional knowledge and information.[32] In Ashanti culture, for example, linguists such as these were among the most informed and influential individuals.[33]
Importance of Language to Law
Law is the embodiment of cultural norms into a written medium through the use of language. Language is therefore the key to the law, as lawmakers use language to create the law, and must write the law in such a way as to prevent or resolve any conflicts over the interpretation of that language. According to Bentham, the law is an assemblage of signs.[34] However, this is a simplification; in reality, the law is an embodiment of norms through an assemblage of signs whose content is determined by the legal effect that a system of governance ascribes to it.[35] In this way, a law is not a linguistic act, but rather a societal norm that is communicated through language.[36]
Because law includes both the text and the effect placed upon that text, linguistics play a key role at two moments: legal drafting and interpretation.[37] First, lawmakers capture societal norms through language to create laws, which are then communicated to society. Second, society, lawyers, and judges interpret that language to determine the effect of those laws. Though legal interpretation often goes beyond language to consider things like historical context and legislative purpose (much of which may be captured through language as well), legal interpretation generally begins with the text of a law. Controversies arise over textual interpretation regularly. For example, in the case Garner v. Burr, a controversy arose over the term “vehicle.”[38] The legislature had made it an offence to use a “vehicle” on a road without pneumatic tires. Burr fitted iron wheels to a chicken coop and pulled it down the road behind his tractor. The magistrates acquitted Burr, finding that a chicken coop was not a ‘vehicle.’ However, the appeals court reversed, finding that while “a ‘vehicle’ is primarily to be regarded as a means of conveyance provided with wheels . . . and used for the carriage of persons or goods . . . the Act is clearly aimed at anything which will run on wheels which is being drawn by a . . . vehicle.”[39] Based on this interpretation, the coop was found to be a vehicle, and Burr was prosecuted.[40] In both the lower court and the court of appeals, the judges gave effect to the language of the Act, but with two distinctly different results. This illustrates the importance of language to both legal creation and legal effect: the law is written by legislatures who may assume that speakers share a common meaning of the words, but interpreters can disagree over the meaning of those words.[41]
Language and the Maafa
Because of the importance of language to culture and vice versa, language has been used as a tool for suppression throughout history. Ultimately, Western societies subjected African peoples to linguistic conquest throughout the Maafa, where people were deprived, and ultimately starved, of their native languages. Ngugi Thiong’o called this phenomenon “linguifam.”[42] Both traditional systems of oppression and more recent neo-colonialism utilize linguifam to suppress and disempower. Traditional colonizers imposed Western languages on African peoples, often by discouraging and suppressing linguistic diversity and knowledge.[43] Modern forms of suppression, focus on the supremacy of Western language and values, often through education.[44] These systems connect knowledge of Western language to prestige and superiority.[45]
France is unique in the level of importance attached to their language. René Etiemble, a professor at the Sorbonne known for denouncing the anglicization of French, once stated that “[t]he French language is a treasure. To violate it is a crime.”[46] The obsession that the French have with their language was evident in Maafa policy. For example, the decree of 10 May 1924 stated “Le français est seul un usage dans les écoles. Il est interdit aux maîtres de se server avec leurs élèves des idiomes du pays,” (“Only French in use in schools. It is forbidden for teachers to speak with their students in local languages.”).[47] An object, called “le symbole,” such as a box of matches, would be given to students who spoke in local languages. If the student with the object caught another classmate speaking in their native language, they would pass along the object. At the end of the day, the holder of the object was subjected to corporal punishment.[48] By allowing only one language to be used in schools, French became a symbol of education and prestige. Paulin Hountondji called the linguistic behavior of Africans speaking French, a “une névrose,” or a neurosis, where French errors were seen as breaches of duty.[49] As Yves Person, a historian and linguist, noted, “French is the only language in the world where the same word [une faute] signifies a moral offense and a spelling error.”[50] In this way, knowing French was (and still is) a status symbol, with students waiting to call out or pass le symbole onto their peers who made errors.[51]
These policies reflect not only the significance of the French language, but also the belief that language is intimately tied to French identity and the strength of the nation.[52] For this reason, the French used language not only as a tool for education, but also as a means of cultural transformation.[53] In 1993, the French Minister of Culture, Jacques Toubon, stated that French “is their primary capital, the symbol of their dignity, the passageway to integration, the diaspora of a universal culture, a common heritage, part of the French dream.”[54]
While French language policy focused on creating a universal French identity by teaching Africans French, British policy centered on differentiation. British Maafa policy generally accepted and even encouraged the use of local languages in education.[55] Protestant missionaries played an important role in forming this policy, as they transcribed religious, and eventually secular texts into African languages.[56] The British published official guidelines asserting the “primary importance of the use of African languages in its schools.”[57] However, this guideline only applied to early education, with all higher education being taught in English. In this way English, like French, became a symbol of education and prestige. While the French system “unified” peoples under the French language, the British system maintained differences between those who spoke English and those who did not. The French directly suppressed African languages by forcing all to “become” French through the use of the French language, while the British indirectly suppressed African languages by holding English out as different and superior to African languages. In this way, both systems ultimately had the same effect of suppression.
Modern Protocol
While Africana legal-linguistics is important across the African continent, this paper will focus on three specific case studies: Senegal, Togo, and Ghana. These countries all have high levels of linguistic and cultural diversity, both French and British colonial histories, and at least some literature discussing protocol. Additionally, each country provides a different lesson for the development of an Africana legal-linguistic study.
Senegal
Senegal has maintained a particularly close relationship to France, which is reflected in the country’s law. The first president of Senegal, Léopold Sédar Senghor, maintained a close relationship with French language and culture. He was a member of the French National Assembly, a state secretary to the French government, and a member of Académie Française (the French council on French language).[58] Additionally, France maintained a military base in the country up until 2010 and Senegal remains the leading beneficiary of French defense and security cooperation.[59]
This closeness is reflected in the similarities between French and Senegalese law. For example, in a study considering the “Frenchness” of African constitutions, seven of eight exact phrases from the French Constitution were found in the Senegalese Constitution.[60] In a study of the Senegalese Penal Code, several phrases were found to be extremely close to phrases in the French Penal Code. For example, the Senegalese Penal Code states “sera puni des mêmes peines celui qui aura fait usage ou tenté de faire usage de la pièce fausse,” (“will be punished with the same penalties whomever has used or attempted to use counterfeit coin”), while the Afrique Occidentale Française penal code article states “sera puni de la mémé peine celui qui aura fait usage de la pièce fausse,” (“will be punished with the same penalty whoever will have used counterfeit coin”).[61]
While Senegal’s laws are particularly similar to France’s, many West African laws resemble those in France. For example, the constitutions of Cameroon, the Central African Republic, Côte d’Ivoire, Gabon, Guinea, and Mali have always contained language mirroring that in the French Constitution.[62] There are many reasons why this might be the case. First, when a country has more competition between political parties, a country’s constitution is likely to be more French. This is because a single person or party with wide latitude to make decisions can create unique laws, while multiple political parties competing against one another are likely to compromise and choose a model with which they are familiar.[63] Additionally, countries headed by military leaders are more likely to suspend the constitution and rule by decree, making the constitution less French.[64] Other factors also seem to make a constitution more French, including French military interventions, and French education of political leaders.[65]
Overall, the “Frenchness” of Senegal’s laws might indicate that an Africana legal-linguistic study of Francophone countries would actually be a French legal-linguistic study. If African laws are mirrors of European systems, a legal-linguistic study can neither connect modern law to pre-Maafa protocol, nor center Africa. However, while African law may not reflect protocol, African systems of governance may incorporate protocol outside of the law.
Togo
Protocol can be found in Togolese governance outside of the written law. Both the current and former presidents, Faure Gnassingbe and his father Eyadéma Gnassingbe, place pre-Maafa culture at the center of their power. Both emphasize the importance of culture through proclamations celebrating local ceremonies. For example, Eyadéma returned to his home village of Pya every year to participate in ceremonies and consult with village chiefs and elders.[66] The most prominent of these ceremonies is evala, a series of wrestling matches that take place in Kabiyé villages every July. Eyadéma regularly attends matches with his cabinet, and broadcasts the events on state television.[67] Decades ago, these matches were part of coming-of-age rites that spanned five different initiation ceremonies, ɩfalʋ, sɩŋkarɩɣʋ, ɩsɔkʋ, kɛŋtʋ, and ɩkʋlʋ, taking place over the course of almost 10 years.[68] The wrestling matches were, before the intervention of Eyadéma, a relatively minor part of the initiation ceremonies.[69] However, today they are considered the most necessary ceremony, while others have become largely dispensable. [70] The matches have also become state spectacles. Eyadéma, and now Faure, used the events to recruit new soldiers, hand-picking those who were particularly strong.[71] As a result, the military is predominantly Kabiyé; in 2010, 80% of soldiers came from the north, over 50% were Kabiyé, and almost 25% came from Eyadéma’s home village.[72] The wrestling matches are thus used to display Kabiyé might. However, they are also a tool to connect Eyadéma, and now Faure, to local culture and to show Kabiyé peoples that he has not forgotten his roots.
Eyadéma also used pre-Maafa culture to build his own image. For example, when an assassin shot Eyadéma, the bullet was stopped by a small book in his pocket.[73] On another occasion, Eyadéma survived a plane crash, which killed all the other passengers but one.[74] Eyadéma claimed divine protection from the spirit Gu, named the crash site a national monument, visited each year to make sacrifices, renamed a day of the week after the site (Sarakawa), and made the date of the crash a national holiday.[75] Eyadéma continually consulted with powerful diviners and even had a live-in savant who was rumored to be the power behind the throne.[76]
All of this suggests that protocol might survive in African systems of governance outside of the written law. The presence of protocol in the Togolese system outside of the law, along with the similarities between Western and African law in Senegal, implies that an Africana legal-linguistic study may not serve to connect modern protocol to pre-Maafa protocol. If protocol exists only outside of the written law, a study of the written law cannot center Africa.
Ghana
While Senegalese law mirrors French law at least in part, and Togolese protocol exists outside of the law, protocol is written into the law in some African countries. The British colonial system, for example, incorporated protocol into the legal system. The Gold Coast Supreme Ordinance of 1876 declared that “ [n]othing in this Ordinance . . . shall deprive any person of the benefit of any native law or custom existing in the Gold Coast.”[77] However, “native law or custom,” here called protocol, was formally restricted as it was considered inferior to British law. The Gold Coast Supreme Ordinance, therefore, went on to state that “customary law” would only apply when it was not “repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any Ordinance for the time being in force.”[78]
Some protocol was found to be repugnant, and therefore abolished from the legal system entirely. For example, the Bond of 1844 proscribed the custom of adwo, by which a person, upon failing to pay back a debt or fulfill some other obligation, allowed a family member to be kidnapped and held until the debt was paid or the obligation performed.[79] Other conflicts arose from different definitions of terms. For example, in defining the term “child,” the British colonial system rejected protocols that recognized various forms of paternity including where a man with no biological male child claimed paternity over a male grandchild, when a childless widow “married” a wife who procreated on her behalf to continue the family of the late husband, or where a single woman became pregnant and married a different man.[80] This custom of awarding paternity to non-biological fathers was found to be repugnant to natural justice in Edet v. Essien in Nigeria, where the judge refused to uphold paternity of a child to a non-biological father.[81]
Ghana removed these repugnancy clauses in the 1960s.[82] Today, customary law is constitutionally recognized as a source of law in Ghana.[83] However, customary law, or protocol, may still be treated as subordinate. For example, post-independence, customary law was considered to be a question of fact, and therefore had to be proved. In one case, the court stated that “it has to be proved in the first instance by calling witnesses acquainted with native customs until the particular customs have, by frequent proof in the courts become so notorious that the [c]ourts will take judicial notice of them.”[84] Therefore, judges had complete discretion over customary law, and the extensive process required to determine customary law may have incentivized judges to disregard it completely. Additionally, it has led to the evolution of two versions of customary law: one developed by judicial officers, and one practiced by the people.[85] One Nigerian judge stated that “[i]t is bad enough that our customary law has to be proved as a fact in our own country nearly thirty years after independence,” later calling it an “annoying vestige of colonialism.”[86] Today Ghanaian customary law is a question of law, and is therefore presumed to be known by judges through tools such as reported cases, text books, and other written sources.[87] As a result, without a written record of protocol, it is unlikely to be recognized as customary law in court. This is further complicated by the fact that “customary law” is defined within the Ghanaian Constitution as: “the rules of law which by custom are applicable to particular communities in Ghana.”[88] Because customs may vary significantly between Ghanaian communities, courts may not be able to rely on written records of customary law from other regions. In this way, customary law may become homogenized as judges rely on precedent from other regions, even when those customs may not exist within the communities over which they have jurisdiction.[89]
Additionally, courts selectively apply, or fail to apply, customary law. For example, land rights can be transferred informally through customary transactions, but use decisions must comply with statutory law. The government can therefore use statutory laws or customary laws to declare property ownership, and often does so strategically to serve particular interests. For example, the 1993 Local Government Act allows local governments to “prohibit, abate, remove, pull down or alter so as to bring into conformity with the approved plan, a physical development which does not conform to the approved plan.”[90] On multiple occasions, local governments have used this law to demolish structures that are owned through customary law.[91] On the other hand, government authorities in Kumasi often claim eminent domain or allow the lease of the same land to multiple land buyers through the use of customary law.[92]
The legal system in Ghana illustrates that protocol may be present in African law. However, this presence is complicated by conflicts between statutory law, many of which still reflect Western norms, and customary law. Additionally, protocol may still be secondary to written law, as judges have a large amount of discretion, and as the state may ignore customary law to serve particular interests.
European Union Legal-Linguistics
Why Consider the European Union?
In analyzing EU law for the purposes of Africana legal-linguistics, extreme care must be taken not to reinforce west-centric narratives about Africana. Working from within the Qualified Law Orientation resolves the tensions resulting from projecting Western legal constructs onto African cultural traditions by explaining away rather than embracing and centering the unique features of the African world-sense.[93] Therefore, this analysis is done not as a tethering of Africana legal-linguistics to Western constructs and legal theory, but rather as an example of how legal-linguistic studies operates in a setting that embraces multilingual and diverse cultures. To that end, this analysis of EU law aims to resolve any resolving tensions not by explaining away African world-sense, but by embracing and centering the unique features of African culture.[94] Therefore, it is essential to first note the differences and tensions between EU law and African laws. The most important difference is the goals and means of each system of governance.
While the goal of EU law has always been harmonization, the goal of African law during the Maafa period (not to be confused with African protocol) was to subjugate. The foundation of most modern African legal systems remains Maafa law, which was imposed upon African peoples by Western powers who largely had the goal of suppressing cultural diversity. While modern African legal systems have broken from Maafa systems in some ways, vestiges of European systems of governance continue to influence African legal systems, as in Senegal and Ghana.[95] Therefore, unlike EU law, which has the goal of harmonizing legal systems while maintaining diversity through multilingualism, African legal systems at least in part stem from a goal of suppression. The means used by the EU to achieve the goal of harmonizing is the use of multilingual legal text to maintain cultural diversity. In Maafa Africa, the means of achieving suppression has historically been Western language text meant to suppress cultural diversity.
EU law differs from African law in several other key ways. First, EU law can be viewed as a legal scheme that has direct effects over the legal relationships between member states and their subjects.[96] African constitutions, on the other hand, are systems that directly create the legal relationship between the state and its subjects. EU law takes two different forms: regulations and directives. Directives are central rules that must be put into effect within national legal systems. Legislation within African states creates national legal systems without a national enactment step.[97] Legal systems in African states do not go through the process of local enactment, and thus do not allow communities to tailor the directives to their societal norms. EU regulations are more analogous, as they are legislation that applies to Member States without anything being done on the part of the Member State. However, directives are more important and general, while regulations are often narrowly focused and have limited applicability. This may make harmonization in African nations more difficult, as the universal and carefully crafted words creating directives in EU law allow flexibility for individual Member States to choose the means by which they will implement them based on cultural standards and language. Another obstacle in African law-making is diversity. There are 24 official languages in the EU.[98] The vast majority of African countries contain speakers of more than 24 languages. In Togo, a smaller African nation, around 40 languages are spoken including Ewe and Kabiyé.[99] In Nigeria, the most linguistically diverse country in Africa, 522 languages are spoken.[100] Therefore, African nations generally deal with more diversity than the EU.
Despite these differences, both EU laws and African laws were and are created to govern multilingual and diverse peoples. Therefore, some of the same challenges are likely to arise in both settings. Because Africana legal studies is a burgeoning field, little work has been done exploring Africana legal-linguistics. Therefore, while work should be done moving forward to identify the unique challenges created by multilingualism in African legal systems, an examination of the challenges arising in the EU, and some of the solutions to those challenges, is a good starting point.
Legal-Linguistics in the European Union
Because cultural norms shape governance, with European norms shaping law and African norms shaping protocol and to an extent, law, peoples from different cultures are likely to both create and interpret the language of laws differently. For example, French and English laws reflect different societal norms around a variety of issues, including contractual rights.
French contract law generally provides more robust protection to potential buyers than British law. This has led to disparate results in very similar cases arising in each country. In Ruxley Electronics v. Forsyth, the British House of Lords decided that the construction of a swimming pool 22 cm shallower than contracted for did not justify specific performance.[101] In a similar case in France, a couple asked the court to require a construction company to demolish and reconstruct a house due to a 0.33 meter difference between the height stipulated in the contract and the final height of the house.[102] The Cour de Cassation required the house to be reconstructed.[103] French courts often require specific performance in contractual breach cases, a trend that corresponds to a societal expectation that actual performance is the end goal of French contracts. “French consumers are not satisfied with a fungible substitute,” but instead expect the promised result.[104] While the British view on contractual breach is economical, in recognizing that the destruction of a finished product and subsequent re-building of it causes waste. However, consumers, at least in France, often are only satisfied with receiving the promised product. Generally, both systems ascribe to the adage pacta sunt servanda, but give different meanings to the term due to different cultural perspectives. The French deem breaches of contract as breaches of moral duty (ironically similar to grammatical mistakes or les fautes), while the British generally perceive breaches of contracts as morally neutral acts.[105] Therefore, while the French interpret the phrase pacta sunt servanda to equate to the need to enforce performance, the English interpret it to mean that damages must be paid in the event of a breach to compensate for the difference between promise and performance.[106]
These cultural differences effect law in the EU. The primary tool the EU has used to combat this challenge is through a linguistic regime requiring all EU regulations to be drafted in all official languages of the EU institutions.[107] This linguistic regime assumes that translation produces legislation with universal meanings. However, as is evident from the different interpretations of the term “vehicle” in Garner v. Burr, linguistic interpretation is not necessarily consistent even when only one language is involved. Additionally, multilingual groups have cultural differences that often exacerbate this issue, as the same word may not denote the same concept across cultural groups.[108] For example, in a Directive on environmental liability with regard to the prevention and remedying of environmental damage, “damage” means “a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly.”[109] This definition, without clear criteria of adverse change or measurable impairment, could be interpreted in a multitude of ways depending on national contexts, undermining the overall goal the Directive has of harmonizing environmental liability.[110]
Translation further complicates interpretation. For example, a Directive on protection of consumers in relation to contracts negotiated away from business premises provides an example of problems arising from translation. Article 4 of the Italian version governs the right of cancellation (diritto di rescindere) of the contract by the consumer, but not the right of withdrawal (recesso).[111] The French version, in contrast, provides that the consumer has the right to resile from the effects of the contract (son droit de résilier le contrat).[112] The term résilier refers to the possibility of cancelling or withdrawing from a defective contract.[113] This illustrates a lack of consistency across terminology within individual language versions of Directives and across translations. Therefore, legislators with multilingual constituents must find words that are sufficiently neutral across all the cultural groups involved to create universal norms. Ultimately, the goal is “a balance in terms of the interests of the participants and a synthesis in terms of the policy and results sought from the act, expressed through language adapted to a multilingual and multicultural environment.”[114] This is a lofty goal requiring an arduous process including drafting, translation, scrutiny, amendment, and legal-linguistic review and alignment of all language versions.[115] Additionally, languages are not treated equally in this drafting process as EU texts tend to be drafted first in one language, and then translated into the others.[116] Therefore, this base language can have a significant impact on the terms used, even in subsequent translations. French has historically been the principal EU drafting language, though English has become more common in recent years.[117] Therefore, drafters must consider other languages to allow for translation and prevent any difficulties encountered in those other languages. This is where amendment and legal-linguistic review plays an important role, as these problems cannot always be anticipated in advance for every language.
Though legal harmonization is the goal of EU lawmakers when drafting laws, the process continues past enactment to encompass the effect given to the text by courts. In the European Union, the Court of Justice of the European Union (CJEU) plays a vital role in pulling a common set of concepts out of laws written across multiple languages.[118] Unlike the Vienna Convention on the Law of Treaties, which relies on a single language so long as the provisions is clear and unambiguous, the CJEU commonly emphasizes that EU legislation cannot be understood in a single language, but only in consultation with other languages.[119] Under this approach, EU law has a single meaning, as understood through a reading of all the languages together.[120]
Conclusion
Moving forward, Africana legal-linguistics should be done to center African norms, and to connect modern protocol to pre-Maafa protocol. First, Africana legal-linguistics should delve into African legal texts and ultimately expand the frame beyond Maafa law, center African culture, and create continuity across different cultural groups. While some legal-linguistics has been done, as in Senegal, these studies focus on connecting African laws to Maafa laws. However, while African constitutions contain similarities to, and even text copied from, European constitutions, they are not mirror images. Therefore, an Africana legal-linguistic study should note these similarities, but must go beyond the Maafa to find the presence of protocol. In this way, an Africana legal-linguistic study can recognize the areas where African law mirrors Western law, but can also find where the law differs, and might therefore reflect pre-Maafa and/or modern protocol. Second, Africana legal-linguistics should look beyond the written law, to include oral traditions as having at least equal importance in modern protocol. In this way, protocol that exists outside of the written law, such as that in Togo, will no longer be excluded from legal analyses. Additionally, protocol that exists as unwritten customary law might be recognized, and thereby applied, in courts such as those in Ghana.
Additionally, Africana legal-linguistics can lead to African laws that break from the vestiges of the Maafa and capture norms that are universal across diverse cultural groups within African countries. The EU might provide an example of how universal norms can be codified into law in a diverse, multilingual environment. For example, translation might provide a method of making the law more accessible to diverse linguistic groups. Additionally, the use of multiple versions of legal texts translated into different languages can be used to capture truly universal norms across linguistically diverse groups.
There are, however, many challenges to this project. First, the Maafa led to the drawing of largely arbitrary boundaries on top of already diverse language groups. Therefore, constitutions must capture universal norms in settings that are even more diverse than the EU. Additionally, the act of translating legal texts into local languages is more complicated than in the EU, as there are more languages involved, and African languages may not have words to describe the Western legal theories that have been mixed into African law to create modern African systems of governance. Finally, while the use of Western languages to write African law is problematic, the need to develop some lingua-franca is key, even if countries aim to create multiple versions of legal texts, as Burundi and Kenya have done.[121] Ultimately, like in the EU, even if different versions of legal texts are given equal weight, legal texts must first be drafted in a base language. Therefore, Western languages such as French, Portuguese, and English may still be the best option in many countries. However, using Western languages as a base fails to center African languages, and therefore African societal norms, in creating systems social governance. Some countries may be able to find an African base, such as Swahili in Kenya, avoiding this problem. However, many African countries do not have a dominant language, and prioritizing one language over others may cause serious conflict. That being said, the approach taken by the CJEU in using all language versions of a text to give legal effect to laws can be used to incorporate African language versions of legal texts and give them more equal weight despite the use of Western languages as bases.
Ultimately, Africana legal-linguistic studies of both written law and oral traditions can break the vestiges of Maafa law, center African societal norms, and ultimately lead to legal systems that more accurately reflect African protocol.
[1] Constitution of Burundi May 17, 2018, art. 5; Constitution of Kenya May 6, 2010 art. 120.
[2] The Kiswahili term “Maafa” means “disaster” and is here used to mean “the processes of human aggression visited by Europeans upon African people globally over the past half millennium.” Marimba Ani, Let the Circle Be Unbroken: The Implications of African Spirituality in the Diaspora 12 (1980); Greg E. Kimathi Carr, The African-Centered Philosophy of History: An Exploratory Essay on the Genealogy of Foundationalist Historical Thought and African Nationalist Identity Construction, in African World History Project: The Preliminary Challenge 288 n. 10 (Jacob H. Carruthers & Leon C. Harris eds., 1997) Throughout this paper the term “Maafa” is used, rather than the term “colonialism,” to encompass Western oppression more broadly, including colonialism as well as pre-colonial and post-colonial aggression).
[3] Michele Graziadei, Law, Language and Multilingualism in Europe: The Call for a New Legal Culture, in Language and Culture in EU Law: Multidisciplinary Perspectives 17, 18 (Susan Šarčević ed., 2015).
[4] Greg E. Kimathi Carr, African-American History Course: Lessons in Africana Studies 13 (2006).
[5] Angi Porter, Africana Legal Studies: A New Theoretical Approach to Law & Protocol, 27 Mich. J. Race & L. 249, 259-60 (2022).
[6] Id. at 259.
[7] Id. at 259 (citing W.E.B. Du Bois, The Negro College, in W.E.B. Du Bois: A Reader 71 (David Levering Lewis ed., 1995)).
[8] Id. at 257 (quoting Jacob Carruthers, Preface to MDW NTR: Divine Speech: A Historiographical Reflection of African Deep Thought From the Time of Pharaohs to the Present, at xviii (1995)).
[9] Id.
[10] Id. at 273.
[11] Id. at 282-283.
[12] Id. at 273.
[13] Id. at 274.
[14] Id.
[15] Id.
[16] Id. at 265.
[17] Id.
[18] Id. at 286.
[19] Id. at 266 (citing Michael A. Gomez, Exchanging Our Country Marks: The Transformation of African Identities in the Colonial and Antebellum South 9 (1998)).
[20] Ngugi Thiong’o, Something Torn and New: An African Renaissance 88 (2009).
[21] Carr, supra note 4, at 17.
[22] Porter, supra note 5, at 270-273.
[23] Carr, supra note 4, at 17.
[24] Thiong’o, supra note 19, at 20.
[25] Mesmim Tchindjang et. al., Language and Cultural Identities in Africa, 60 Museum International 37, 38 (2008).
[26] Id. at 39; Sayeh Sayedayn, Language & Colonization: Statement of the Problem, 7 J. of Sch. & Soc’y 134, 135 (2021).
[27] Tchindjang, supra note 24, at 38–39.
[28] Id. at 39.
[29] Casely Hayford, Gold Coast Native Institutions: With Thoughts Upon a Healthy Imperial Policy for the Gold Coast and Ashanti 68 (1903) (The Gold Coast included native states of the Ashanti, Fanti, Ahanta, Insima, Ga, Wassa, and others in what is modern day Ghana).
[30] Id. at 71.
[31] Id. at 69.
[32] Id.
[33] Id. at 70–71.
[34] Timothy Endicott, Law and Language,Stan. Encyclopedia of Phil. (Dec. 5, 2002), https://plato.stanford.edu/entries/law-language/.
[35] Von Wright & Georg Henrik, Norm and Action (1963).
[36] Endicott, supra note 33.
[37] Id.
[38] Garner v. Burr, [1951] 1 KB. 31 (Eng.).
[39] Endicott, supra note 33.
[40] Endicott, supra note 33.
[41] Endicott, supra note 33.
[42] J. H. Kwabena Nketia, The Language Problem and the African Personality, 67 Présence Africaine 157, 163 (1968).
[43] Sayeh Sayedayn, Language & Colonization: Statement of the Problem, 7 J. of School & Society134, 134 (2021).
[44] Id. at 135.
[45] Nketia, supra note 40.
[46] Fredric Michelman, French and British Colonial Language Policies: A Comparative View of Their Impact on African Literatures, 26 Research in African Literatures 216, 217 (1995).
[47] Id. at 219.
[48] Id.
[49] Paulin Hountondji, Charabia et Mauvaise Conscience, 61 Présence Africaine 11, 13 & 20 (1967).
[50] Yves Person, Impérialisme linguistique et colonialism, 324-26 Les Temps Modernes 90, 102 (1973); Michelman, supra note 44, at 219.
[51] Hountondji, supra note 47, at 20.
[52] Michelman, supra note 44, at 217.
[53] Thiong’o, supra note 19, at 20.
[54] Marlise Simmons, Bar English? French Bicker on Barricades, N.Y. Times, Mar. 15, 1994, at A1.
[55] Nketia, supra note 40; Michelman, supra note 44, at 218 .
[56] Michelman, supra note 44, at 218.
[57] Michelman, supra note 44, at 219; Albert S. Gerard, African Language Literatures 183 (1981).
[58] Robert Elgie, Exogenous Political Institutions? Constitutional Choice in Postindependence Francophone Sub-Saharan Africa, 65 Political Research Quarterly 771, 780 (2012).
[59] Senegal to ‘take back’ French bases, Al Jazeera (Apr. 4, 2010), https://www.aljazeera.com/news/2010/4/4/senegal-to-take-back-french-bases; France Diplomacy, Ministère de L’Europe et des Affairs Étrangères (last visited May 14, 2022), https://www.diplomatie.gouv.fr/en/country-files/senegal/.
[60] Elgie, supra note 56, at 778.
[61] Elgie, supra note 56, at 778.
[62] Elgie, supra note 56, at 778.
[63] Elgie, supra note 56, at 778.
[64] Elgie, supra note 56, at 778.
[65] Elgie, supra note 56, at 778.
[66] Charles Piot, Remotely Global: Village Modernity in West Africa 91 (The U. of Chi. Press 1999).
[67] Id.
[68] Id. at 80. Ɩfalʋ is the first ceremony, occurring when a boy turns 15. The ceremony begins with the boy seated on the mother’s cooking stool where several sacrifices are made. The boy is confined to the mother’s hut for a period, refuses tchuk (a grain alcohol) offered by a woman of the house, and then runs through the center of the household to disappear into the field. This is a symbolic flight from the female space of the home. Sɩŋkarɩɣʋ takes place three and a half years later, with the initiate singing and playing a flute in the courtyard of the home. The initiate is then pushed even farther from the home during ɩsɔkʋ, making ritual appearances in the fields. Three years later, he becomes kɛŋtʋ and is formally shown the sacred groves where major sacrifices are carried out. After several years of being symbolically exiled from the home, the initiate returns with a ceremony called waaɣa, where he dances as an antelope. At this point the initiate is considered transformed, and people watching the dance will often make comments such as “where is my child?” and “we don’t know who they are.” Two and a half years later, the initiate becomes an ɩkʋlʋ, and may finally build his own home.
[69] Id. at 92. (It is worth noting that these ceremonies were in large part shaped by the Maafa, though they likely stem from pre-Maafa practices. For example, the ceremonies were used to recruit young men to defend their communities. In another village, Kiriwude, a ceremony has been added where the initiates imitate the construction of a road that was built by Kabiyé peoples under the forced labor systems of German and French rulers).
[70] Id. at 90.
[71] Id. at 92.
[72] Charles Piot, Nostalgia for the Future: West Africa After the Cold War 24 (U. of Chi. Press 2010).
[73] Id. at 26 (stating that some claim that the small book was a Bible, reflecting Eyadéma’s ability to mix Western and African culture to cultivate a mythical political personality).
[74] Id. at 24.
[75] Id.
[76] Id. at 27–28.
[77] Gold Coast Supreme Court Ordinance 1876, 39 & 40 Vict. c. 4, § 87 (Eng.).
[78] Id.
[79] Bond of 1844, 7–8 Vict. (Eng.).
[80] Michael Akpa AjaNwachuku, Determination of Paternity of the Nigerian Child – The Law: Past, Present and Future, 5 Rsch. on Humanities and Soc. Sci.182 (2015).
[81] Id. at183.
[82] Melissa Demian, On the Repugnance of Customary Law, 56 Compar. Stud. in Soc’y and Hist. 508, 511 (2014).
[83] Ghana Const. ch. 4, § 11(1)–(2).
[84] Angu v. Attah, (1916) Gold Coast Privy Council Judgments 24 (1874-1928).
[85] E.S. Nwauche, The Constitutional Challenge of the Integration and Interaction of Customary and the Received English Common Law in Nigeria and Ghana, 25 Tulane Eur. & Civil L. F. 37, 44 (2010).
[86] Nzekwu v. Nzekwu, (1989) 2 NWLR (pt 104) 373; Ugo v Obiekwe, (1989) 1 NWLR (pt 99) 566, 583.
[87] Nwauche, supra note 83; see Ghana Courts Act, § 55 (1993).
[88] Ghana Const. ch. 4, § 11(3).
[89] Nwauche, supra note 83, at 45.
[90] 1993 Local Government Act, Ghana Act 462, § 53.
[91] Emmanuel Frimpong Boamah & Clifford Amoako, Planning by (mis)rule of laws: The idiom and dilemma of planning within Ghana’s dual legal land systems, 38 EPC: Politics and Space 97, 106 (2020).
[92] Id. at 109.
[93] Porter, supra note 5, at 281-282.
[94] Id.
[95] Salmon A. Shomade, Colonial legacies endure in Africa’s legal systems—undermining rule of law, The Washington Post, Mar. 18, 2022.
[96] Case 26-62 Algemene Transpor-en Expeditie Onderneming van Gend & Loos v. Neth. Inland Revenue Admin., 1963 E.C.R.
[97] It would be an interesting approach to view African national laws as a centralized scheme that is then put into effect by individual cultural groups using their own language. However, no such centralized system with localized enactment is in place at this time.
[98] Graziadei, supra note 3, at 17.
[99] Statista, Number of living languages in Africa as of 2021, by country, https://www.statista.com/statistics/1280625/number-of-living-languages-in-africa-by-country/.
[100] Statista, Number of living languages in Africa as of 2021, by country, https://www.statista.com/statistics/1280625/number-of-living-languages-in-africa-by-country/.
[101] Ruxley Electronics v. Forsyth (1995) 3 AII Eng. Rep. 268 (Eng.).
[102] Cour de cassation [Cass.][supreme court for judicial matters] 3e civ., May 11, 2005, Bull. civ. III, No. 03-21136 (Fr.).
[103] Code Civil [C. Civ.] [Civil Code] art. 1184 Code Civil (Fr.).
[104] Ruth Sefton-Green, The European Union, Law and Society: Making the Societal-Cultural Difference, in Private Law and the Many Cultures of Europe 37, 52 (Thomas Wilhelmsson et al. eds., 2007).
[105] Id. at 53.
[106] Id.
[107] T.E.U. art. 55(1) (“all language versions of the Treaty are authentic.”) The linguistic regime of EU legislation is set out in Regulation No. 1 determining the languages to be used by the EEC (OJ L 17, 6.10.1958, at 385), as amended (see Art. 342 TFEU). Note, however, that not all official languages of the Member States are EU official languages: Luxembourgish, an official language of Luxembourg since 1984, and Turkish, an official language of Cyprus, are not official languages of the EU. Michele Graziadei, Law, Language and Multilingualism in Europe: The Call for a New Legal Culture, in Language and Culture in EU Law: Multidisciplinary Perspectives 17, 17 (Susan Šarčević ed., 2015).
[108] Graziadei, supra note 3, at 25.
[109] Council Directive 2004/35, art. 2, 2004, O.J. (L 143).
[110] Barbara Pozzo, Comparative Law and the New Frontiers of Legal Translation, in Language and Culture in EU Law: Multidisciplinary Perspectives 73, 77 (Susan Šarčević ed., 2015).
[111] Council Directive 85/577, art. 4, 1985, O.J. (L 372); Pozzo, supra note 108, at 78.
[112] Council Directive 85/577, art. 4, 1985 O.J. (L 372).
[113] Id.; Pozzo, supra note 108, at 78.
[114] Colin Robertson, EU Multilingual Law: Interfaces of Law, Language and Culture, in Language and Culture in EU Law: Multidisciplinary Perspectives 33, 35 (Susan Šarčević ed., 2015).
[115] Id. at 34.
[116] Id. at 44.
[117] Id.
[118] Graziadei, supra note 3, at 28.
[119] Mattias Derlén, A Single Text or a Single Meaning: Multilingual Interpretation of EU Legislation and CJEU Case Law in National Courts, in Language and Culture in EU Law: Multidisciplinary Perspectives 53, 55 (Susan Šarčević ed., 2015).
[120] Case C-298/12 Conféderation paysanne v. Ministre de l’Alimentation, de l’Agriculture et de la Pêche, ECLI:EU:C:2013:630, ¶ 22 (Oct. 3, 2013) (“[T]he necessity of uniform application and, accordingly, of uniform interpretation of an EU measure makes it impossible to consider one version of the text in isolation, but requires it to be interpreted on the basis of both the real intention of its author and the aim pursued by the latter, in the light, in particular, of the versions in all the other official languages”).
[121] Constitution Définitive du Royaume du Burundi [Constitution] May 17, 2018, art. 5 (Burundi); Constitution of Kenya [Constitution] May 6, 2010, art. 120.
