Adedola Adefowoju, Georgetown University
A Long View of History into the Protocols of Traditional African Societies
According to Yoruba folklore, humanity began in a Yoruba city known as Ile-Ife. The first king of Ile-Ife (Oòni of Ife) was believed to be Oduduwa, the creator of the earth and ancestor of all succeeding kings. One of the largest ethnic groups in Africa is the Yoruba people of present-day Nigeria, and their belief system has contributed to the preservation of Yoruba culture. The Yoruba kingship remains today, and the pattern of succession for the Oòni of Ife rotates between four ruling houses: Lafogido, Osinkola, Ogboru, and Giesi. My father is from the House of Giesi. As a proud Nigerian and a prouder Yoruba man, my father’s love for his country and Yoruba heritage has driven his passion for political and social activism in Nigeria. Despite his strong sense of identity and claim to the birthplace of humanity, when asked to give a historical account of the Yoruba people, he was flustered at the realization that he could not assuredly go beyond the year 1914—this was the year Britain formally formed Nigeria as a colony.
The unfortunate phenomenon of placing the history of continental African people at the start of European colonialization, despite the knowledge of antecedent cultural identities, is a prominent view of African history. The African continent is presented through an evolutionary paradigm that posits traditional African societies as societies that lacked structure, rules, and complexity before the intrusion of Europeans. European standards and principles are seen as indisputable truths, impeding the audacious notion that African people also held opinions and thoughts before colonization. This persisting universalist view merely acknowledges African people as human bodies with blank slate minds prior to the European intrusion. Accordingly, when coupling the beliefs that African societies are empty and European ideals are universal, the humanity of African people is computed at the arrival of Europeans on their land. Consequently, “whatever” Africans were doing before no longer has a place in the contemporary world.
The erasure of traditional African practices, reasoning, and organization is particularly apparent in the current systems that govern African countries. Presently, African countries’ substantive rules and institutions are largely influenced by European ideas and perceptions of law. This is not a happenstance. It is a result of the Maafa: the enslavement of African people and the unauthorized occupation of African land by Europeans (colonization). One with a European universalist view will see the imposition of foreign jurisprudence as a positive legacy of the suffering of African people, reasoning that the Maafa brought order to a “formless” continent. However, the works of several African scholars show otherwise as they uncover the abundant history of African social structures and organizations of authority.
Diving into such works, this paper aims to explore “law” through the African perspective by exploring the traditional (pre-Maafa) systems and rules in which African people regulated their societies. First, this paper will discuss the imposition of European jurisprudence in African societies during the colonial era of the Maafa. Second, this paper will assess the continuing manifestations of European jurisprudence in the current legal systems in Africa. Third, this paper will state its thesis and methodology, which contends with the universalist justification of European jurisprudence in Africa. Lastly, the paper will explore “law” from the African perspective by identifying the following: a) traditional African political structures and processes of justice in the Benin kingdom, Yoruba ethnic group, and Ndebele society; b) common principles that guided traditional African societies; and c) methods and means traditional African societies used to resolve conflict.
II. Overview of the Systems That Governed Africa During the Colonial Era of the Maafa
During the unauthorized occupation of African land, indigenous African people were forced to live with their European metropoles’ laws and institutions. In the context of governance, colonization involves the “large-scale transfer of laws and legal institutions from one society to another.” Contrary to the perception of Africa as a “dark continent,” devoid of organization and rules, European metropoles did not view the exclusive application of European jurisprudence as practical. Transplanting colonial law onto African societies was a challenge as African people resisted colonial power. Disguised as a moral quest to guarantee African people their “customs” and “habits,” European courts accommodated their inability to comprehend African people’s traditional rules and languages by recognizing native customs, appointing native assessors to interpret them, and forming native court systems. Hence, to colonize Africa effectively, Europeans sought to control the relations among Africans and between Africans and Europeans through a dual legal system of European jurisprudence and native customary law. However, these two forms of “law” did not operate on equal footing nor genuinely accommodated the indigenous ways of Africans people.
A. Customary Law
First, it must be noted that native customary laws have been identified as a false offering of continuity of traditional African rules and principles that existed before the intrusion of Europeans (pre-Maafa). In actuality, the purported practices and values in native customary laws were shaped in response to colonialism. For example, many native customary laws subjugating women’s rights have been contended as inventions—rather than preservations—of African values. To control the relations among African people, European metropoles sought out Africans to serve adjudicative and administrative positions and often appointed older men to these positions at the expense of women and young men. Gender and generational imbalances in the application of customary laws soon followed as older men, usually emergent African elites, served as the primary sources of proof of African customs. Native assessors were known to modify the interpretation of customary laws, negatively impacting African women at trial. The European introduction of individual property rights, as opposed to the African communal ownership structure, permitted false claims that native customs did not recognize women’s rights to own or transfer property.
In addition to the substantive differences from indigenous African practices, the processes in which customary laws were administered differed from the traditional procedures that African people employed. The oral and communal frameworks in which many traditional African societies governed themselves did not include a fixed subservience to documents or distant concentrations of adjudicatory power. The utilization of written codes, institutionalized courts, and individualized claims of rights was alien and even antithetical to the traditional African rules and principles that customary laws purported to represent. 
Excluding most Africans from interpreting traditional African customs and disorienting the traditional African processes by imposing European procedures made customary laws an effective quasi-imposition of colonial rule. Even if one were to accept customary laws as accurate reflections of traditional African practices, the proffered adoption of these practices was confined to European ideals of morality and justice.
B. Principles and Hidden Goals of European law in a Dual Legal System
The dual court system implemented during the colonial periods of Africa allowed the application of customary laws so long as it was within the framework of fundamental European principles of law. The two types of colonial law that were imposed on African societies were the English common law and European civilian system (civil law).
The English common law system is an adversarial legal system based on the idea of legal precedent. Legal precedent relies on past adjudicated disputes (called cases) and offers the promise that individuals in similar situations will be treated alike. In the common law system, a court resolves disputes within an adversarial system. Parties to the dispute are pitted against each other in an oral contest expecting that one side will “win” the dispute. The court system consists of a judge who is projected to be a neutral arbitrator, a jury of fact-finders who will make the ultimate decision of the case, and lawyers who are legal advocates representing a side in the dispute.
The civilian system is another European legal system that differs drastically from the common law system. The civilian system is based on an inquisitorial system where judges act as fact-finders by gathering evidence and questioning witnesses. Unlike the oppositional oral arguments in a common law system, the civilian system is based on written arguments, and lawyers take on an advisory role to their clients. The trial is a review of a written record of witness testimonies, arguments, and other evidence. Guilt and sentencing are decided by a group of judges or a jury. Because the civilian system is based on written trial records, bureaucracy is an essential factor in keeping all written motions, interviews, testimonies, and arguments together for trial.
Despite the procedural differences between the common law and civilian law, both systems are guided by written codes of law and posit their principles on protecting individual rights. Ironically, the liberties of Africans were ignored as European metropoles sought to apply these European principles under the notion of universalism. Colonial courts were expected to enforce, not particularly law, but the supposed universal notions of morality and justice uncompromisingly.
The dual legal system in colonial Africa, encompassing native customary laws and European law, was implemented with the understanding that native customary laws, along with judgments from native courts and the opinions of native assessors, were subordinate to the principles of European metropoles. European judges effectuated the subordination of customary laws through the repugnancy doctrine. African customs and customary laws were denied recognition whenever they were determined to be repugnant to “natural justice, equity and good conscience” or “general principles of humanity.” 
C. The Legacy of the Dual Legal System at End of the Colonial Era
It is important to note that the history of law in colonial Africa was not a straightforward narrative of domination in which African people were monolithic objects to European powers. Both Africans and Europeans used the dual court system to contest for resources, power, and interpretations of morality; in doing so, Africans took part in the hybridization and creolization of colonial legal cultures. More discourse on this phenomenon is needed, and the methodology of cultural continuity can help shed light on such. As a precursor to such scholarship, this paper hopes to uncover the pre-Maafa rules and principles that Africans employed.
Once African societies gained their independence from European metropoles, the legacy of the dual legal system persisted in the current laws and legal structures of African nations. This was not only the consequence of Africans being forced to live with European legal systems and laws. African elites who worked within the colonial system held an interest in continuing the common law or civil law structures. Therefore, the continuation of perverted customary laws and universalistic views of European laws as superior indicates the absence, or at least the mass unawareness, of pre-Maafa African rules and principles in contemporary African societies. This thereby continues the false notion that the history of continental African people began with colonialization. The current legal landscape in Africa will be briefly discussed next.
III. The Continued Manifestations of European Jurisprudence in Africa’s Current Legal System
At independence, African nations adopted the legal systems of the European metropoles. Currently, the government of most African nations is in the form of a constitutional democracy with codified laws and institutionalized, hierarchical judicial systems. This paper will look at a sample of African countries and their legal systems.
The first sub-Saharan African country to gain independence from European colonization was Ghana. Ghana gained its independence from Britain in 1957. Like many other national constitutions, Ghana’s constitution functions as the supreme law of the land; other forms of laws or regulations that are viewed as inconsistent with Ghana’s constitution are nulled. According to the Constitution of the Republic of Ghana, the law of Ghana consists of the following: constitution, laws enacted by the country’s parliament, existing law, and common law.
The common law of Ghana similarly adheres to the dual legal system implemented during the colonial era. The Constitution provides that “rules of law generally known as the common law [are] the rules generally known as the doctrines of equity, and the rules of customary law.” The language of the Ghanian Constitution is similar to the Supreme Court Ordinance that Britain passed in 1876. The ordinance established the British Supreme Court as a presiding authority over Ghana as a colony and empowered the court to enforce common law, doctrines of equity, and legislative statutes. It also enabled the British Supreme Court to enforce the observance or deprive a person of the benefit of local laws or customs that were not “repugnant to natural justice, equity and good conscience.” The repugnancy clause is not an existing doctrine in the Ghanian Constitution. Rather, the Constitution expressly prohibits customary practices that “dehumanize or are injurious to the physical and mental well-being of a person.”
The reliance on judicial precedent is another principle adopted by the Ghanaian legal system from the English common law. Ghana’s constitution regards the Supreme Court of Ghana as the final appellate court and adjudicating authority. All other courts are treated as subordinate courts bound by the Supreme Court’s decisions and are also bound by the decisions of a reviewing appellate court.
B. South Africa
South Africa’s journey to independence took multiple roads. Part of present-day South Africa, known as the Cape Colony, was formerly under the rule of the Dutch from 1652 to 1814. In 1814, the British Empire took over Cape Colony. By 1910, Cape Colony and other British colonies (Natal Colony, Transvaal Colony, and the Orange Colony) were unified—into what is now present-day South Africa—under British rule. Although South Africa gained its independence from Britain in 1939, African people were still not free. By 1948, apartheid was implemented to segregate Africans from the white minority population that lived in South Africa. The apartheid formally ended in 1994, and the first multiracial election was held. The Constitution of South Africa was adopted in 1996.
Similar to Ghana, the South African legal system is based on the doctrine of constitutional supremacy. The Constitution of South Africa is held as the “supreme law of the Republic” and laws that are inconsistent with it are invalid. The Constitution follows the European notion of individual rights and regards an enumerated list of rights (Bill of Rights) as the “cornerstone of democracy in South Africa.” The Bill of Rights applies to all laws and branches of government.
The Constitution recognizes the legal system in South Africa as a system of two different forms of law, reflecting the continuation of the dual legal system in colonial South Africa. The common law is recognized in the Constitution as it requires courts to apply the common law and permits courts to develop new common law rules. South African common law is a makeup of Roman-Dutch civil law and English common law. Roman-Dutch principles are reflected in private civil cases (such as family law) and criminal laws, while English common law principles are predominately found in South Africa’s laws of evidence. The South African Constitution also requires courts to “apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.” The Constitution also permits the legislature to recognize traditional leadership roles on matters relating to customary law.
The judicial process in South Africa is based on an adversarial system and also follows the common law principle of legal precedent. The Constitutional Court of South Africa has the final say in matters concerning the Constitution, and its decisions bind lower courts.
Kenya gained its independence from Britain in 1963 and adopted a constitution in the same year. Since then, Kenya has gone through multiple redrafts of its constitution, and the most recent draft was implemented in 2010. Kenya follows the doctrine of constitutional supremacy and recognizes the Constitution of Kenya as the supreme law that binds all people and branches of government. Furthermore, “any law, including customary law, that is inconsistent with this Constitution is void.” Unlike Ghana’s and South Africa’s constitutions, the expressed adoption of common law or civil law principles is not present in the Constitution of Kenya. However, customary law is explicitly mentioned in the Constitution.
Still, the Kenyan legal system is a progeny of the British common law system. Similar to the common law, Kenya’s Bill of Rights focuses on protecting individual rights as an integral part of Kenya’s democratic state. Also, a key common law principle that Kenyan courts follow is the principle of legal precedent. The Constitution designated a supreme court as the final judicial authority on constitutional matters and matters of general public importance. All other courts are subordinate courts to the Supreme Court of Kenya, bound by the Supreme Court’s decisions, as well as any intermediary appellate courts within its jurisdiction. Furthermore, the Constitution has a repugnancy clause mirroring the language of colonial repugnancy clauses. Article 159 of the Constitution prohibits traditional dispute resolution mechanisms that conflict with the Bill of Rights, that are inconsistent with the Constitution or any written laws, or that are “repugnant to justice and morality or [result] in outcomes that are repugnant to justice or morality.”
Based on the overview of the current legal systems in Africa, it is clear that English common law and European civil law are dominant influences in the legal structures and laws of Africa. However, the efforts by Africans to resist erasure and maintain their cultural identities in the current era of the Maafa are evident from the explicit recognition of customary laws in their national constitutions. While it is acknowledged that native customary laws do not genuinely reflect pre-Maafa African practices, the recognition of customary laws still provides hope. By formally recognizing African ways of life (accurately or not), legitimate channels to re-introduce indigenous African values and rules are available. In light of the opportunity, this paper will next detail its thesis and methodology.
IV. Africans Had “Law” Prior to the European Intrusion
Assessing the continent of Africa during the colonial era and post-colonial (or current) era of the Maafa, the European universalist view would offer the narrative of law in Africa at the start of colonization. The European universalist view would contend that colonialism brought—rather than imposed—European legal institutions and principles to African societies, and European metropoles accommodated—rather than conceded to—African native customs. This narrative implicitly justifies the Maafa, proclaiming Africa, as the dark continent, benefited from the Maafa by being enlightened to new concepts of “law” and “order.” The universalist justification is simply not true. During the pre-Maafa era, African societies had systems of belief and reasoning and also had organized means of regulating their societies in compliance with those beliefs and reasonings. This may be described as law. But to serve the purpose of understanding governance from the perspective of Africans, this paper will use a term coined by Angi Porter, a law professor and scholar, protocol.
Protocol may be viewed as systems of rules and principles for social living, regulating behaviors, and resolving disputes. To properly observe the ways in which traditional African societies governed themselves, the adoption of the term “protocol” over “law” is needed to push against society’s tendency to qualify African thoughts around Western ideals. “Law” is a term that is implicitly oriented around written laws or codified statutes. This orientation is based on Western ideals and not African ideals. Pre-Maafa African societies were predominately oral and effected their rules by word of mouth from generation to generation. Given how oral societies operated in Africa, written laws interrupted rather helped African societies.
Applying a historicist approach to traditional African practices, Amede Obiora, a Nigerian lawyer and professor, outlined how oral societies applied their rules. Obiora noted that oral societies did not view time linearly and were very much in the present. Patterns of practices were acknowledged and preserved but were not frozen simply for the sake of tradition. The oral mode of effectuating rules allowed traditional African societies to be adaptable and remove past traditional practices that were inconvenient. People interacted with oral sources of rules and imparted their knowledge and viewpoints. African societies were not stagnant by simply recounting rules.  The oral mode of governing allowed for progression and advancement. Thus, constraining rules to mechanical applications of written documents interfered with—rather than improved—how oral societies functioned. The use of the term protocol is a way of “delinking African ideas about governance from the highly-defined rigidity of Law and Western jurisprudence.”
In challenging the notion that Europe brought “law and order” to Africa, the long view of historical methodology will be applied to explore the protocols that governed African societies before the Maafa. This paper will discuss traditional African governance structures, rules, and principles next.
V. Looking at “Law” From the Perspective of Africans
Scholars recognize that legal and political systems are not separable when discussing the rules that societies use to govern themselves. Therefore, to comprehensively understand the protocols in pre-Maafa Africa, it is necessary to discuss the infrastructures that traditional African societies used to govern themselves and the principles used to guide their governance.
Generally, traditional African societies operated on communal power where the legitimacy of one’s authority derived from the consent of those governed. The community operated on an unwritten agreement with those exercising authority that governance is to be administered to maintain harmony and guard against tyranny. African people explained their reality partly through a metaphysical framework (religion or spirituality). Traditional African societies viewed their communities as not only a composition of people physically living among them but also the dead (ancestors), spirits, and gods.
A. Pre-Maafa Political and Justice Systems
The overview of the following African societies dispels the notion that Europeans brought “law and order” to Africa. Before the European intrusion, African people developed organized systems and institutions to govern themselves and resolve conflicts within decentralized and centralized power systems.
1. The Benin Kingdom
The Benin kingdom was an African civilization in the region of West Africa with over 1,400 years of uninterrupted history before the British invasion in 1897. The Benin kingdom was known for its organized form of decision-making. The structure of authority in pre-Maafa Benin was hierarchal and composed of the Oba, the Enogie (village heads), and the Ekhaevben (titleholder or chiefs). The Ekhaevben were further broken down into the following sublevels: Uzama n’ihinron (a seven-member group), the Eghaevbon’Ogbe (palace chiefs), and the Eghaevbo n’Ore (town chiefs).
The Benin kingdom operated through a centralized system of governance where the Oba was the head of state. The Oba had the power to make and execute protocols as well as administer trials and judgments to those who violated them. However, after the 17th-century civil war, the Benin people implemented more uses of checks and balances to limit the power of the Oba. The chiefs, acting as the checks on the Oba’s powers, participated in important political decisions such as crowning a new Oba and waging war on behalf of the Oba.
The Benin kingdom resolved conflicts and administered official judgments on those who violated their protocols through a tribunal process. At the most basic level, members of the community saw themselves as participants in the administration of justice. In Benin, it was a moral wrong to overlook a person that violated the community’s protocols and disturbed the social harmony of the community. For disputes, village tribunals were set up for parties involved in the controversy to come together and resolve the dispute. The Benin village tribunals had a model for resolving a dispute: Ya ru egbe ghe ẹ re a ya bu ohiẹn nẹ Ẹdo (“put yourself in the position of the belligerents concerned”). Hence, an opportunity was provided for the tribunal decision-makers to ask questions to clarify the issue and for parties and witnesses to present their side of the dispute. For serious offenses, justice was inseparable from traditional religion in Benin. The Benin people saw their ancestors and deities as regulators of behavior and interests in the community’s solidarity. The Benin people consulted their deities to enforce protocols against offenses and performed divinations to solicit confessions from the accused. The deities were represented through an Ohen (a priest) who carried out ordeals against an accused. If a person accused of an offense survived an ordeal, it meant that the deities declared him or her innocent.
The Benin kingdom guarded against arbitrary justice. The kingdom conducted hearings for offenses through the use of councils such as the Odionwere-in-Council or Enogie-in-Council. Procedures were in place for the accused to seek protection and escape “summary justice.” An accused had the option to seek temporary sanctuary in a sacred shrine, the king’s palace, or any nearby authority while the matter against him was being heard.
2. The Yoruba Ethnic Group
As mentioned earlier, the Yoruba ethnic group is an African society in the southwest region of what is presently known as Nigeria. In the pre-Maafa era, the Yoruba ethnic group was a highly hierarchical society, and their political structure was organized as a monarchical state. Yoruba people tightly tethered their worldview to their reverence for their ancestors and deities. Yoruba people viewed the community beyond those living among them. The dead (ancestors), generations yet unborn, and deities were also seen as part of the Yoruba society.
At the head of the Yoruba society was the Oba (king) who was viewed as the representative of the gods and ancestors. The Oba was also known asIku baba yeye, alase ikeji orisa (“the one who has control over death and the second in command to the gods”). The Oba worked in a collective government where power was delegated to subordinate authorities. Councils of chiefs and official representatives of the various communities in Yorubaland (village head) assisted the Oba, as subordinate authorities, in governing the Yoruba ethnic group. To assign public duties, the Yoruba people implemented an age-grade system. The elders presided over the community, while the junior adults acted as disciplinary forces.
The “judicial machinery” (the disciplinary and conflict resolution processes) of the Yoruba people followed their preference for hierarchical organization. The councils of chiefs and village heads presided over disputes among families or neighbors. Their authority was not boundless and limited to their respective areas. Neighborhood tribunals were implemented to reconcile disputants, settle quarrels, and impose sanctions. Disputes were appealable to higher chiefs. The court of the Oba, which consisted of his own council of chiefs, functioned as the tribunal of last resort.
The administration of discipline or justice in the Yoruba society was centered on principles of peace and order (social equilibrium). In Yorubaland, an Ofin (official commandment or rule) was inseparable from morality. The Yoruba people believed that the way to a good life was to live in harmony with the rulers of the universe—their deities—through good moral character. To live accordingly to this belief, the elders of the Yoruba society felt it was their duty to “maintain the cord that binds humanity.” Hence an Ofin was not seen as an adjudication of right and wrong but as a means of settlement, promoting future relations between disputants.
3. The Ndebele Society
The Ndebele society was a traditional African society that resided in what is presently known as Zimbabwe. Similar to the Yorubas, the Ndebele’s governance structure was very hierarchical. The Ndebele society was a unique and complex mix of egalitarianism, communalism, and elitism. At the top of the Ndebele’s power hierarchy was the Inkosi (king) who was considered a political figure and a religious leader. Although an Inkosi held immense power as the head of state and supreme judge, the power was not absolute. The Ndebele society established six other forms of authority to check the Inkosi’s rule. From the most powerful to the least, the following are the six governance positions or bodies below the Inkosi: Indunankulu Yesizwe (prime minister), Umphakathi (inner advisory council), Izikhulu (council of prominent men), Izinduna Zezigaba (provincial chiefs), Abalisa (headmen), Abamnumzana (homestead heads).
The theoretical framework of the Ndebele’s governance structure held the Inkosi as the supreme ruler. However, in practice, the Inkosi functioned as a ceremonial figurehead representing unity and conducting religious ceremonies. Policy decisions were debated by the king’s inner advisers, the Umphakathi, and the representative councils of the Ndebele people, the Izikhulu. The provincial chiefs, the izigaba, controlled the military, determined the outcome of difficult disputes and matters of offenses, and were the realistic representation of the “ordinary” people. Despite the representative manner of governance, the succession of power was hereditary. In addition to their political functions, Ndebele governance officials were also administrators of discipline and justice. The officials consulted spiritual leaders known as izanusi (diviners), izinyanga (wise men), and izangoma (magicians). Offenses were categorized into amacala amakhulu (serious crimes) and amacala amancane (minor crimes). The Inkosi dealt with serious crimes while the abalisa handled minor crimes.
The Inkosi, as a centralized power, was in constant conflict with the systems of decentralized power. However, even if the Inkosi differed on the decisions made by the Umphakathi or izigaba, the Inkosi ultimately conceded to the popular view of the advisors and people. The Inkosi’s legitimacy as a ruler required humane dealings with the Ndebele people. The Ndebele society commonly operated through the principles of communalism. The legitimacy of the Ndebele political hierarchy came from the Ndebele people, and the Ndebele people, in exchange for authority, expected their political hierarchy to provide and generously distribute resources to the community. Accountability was based on this expectation.
B. African Principles in the Pre-Maafa Era
Because the continent of Africa was home—and still is—to numerous African societies, the governance structures and protocols varied among traditional African societies. However, African societies did not live in isolation during the pre-Maafa era; they interacted. Hence, ideas and practices were communicated, shared, and adopted. One can find commonality in the principles that guided the various traditional African societies. The following common principles in traditional African societies will be discussed: collectivism, spirituality, and peace (ubuntu).
The shared worldview of traditional African societies was centered around the values of collectivism. In traditional African societies, an individual’s identity was linked to their family, and an individual without a family was seen as an anomaly (Idefiagbon ne ovbi orisa). In turn, families operated as a singular unit, linking their identity to their neighbors and community at large. Through this lens, traditional African societies developed their governances and communities toward the goal of social equilibrium and harmony. This was a form of democracy for African people in traditional societies.
Although authority was exercised by a few, decisions and policies had to be made in consideration of all members of the community. Hence, as seen particularly in the Ndebele society, open consultations amongst the people occurred on various issues. Traditional African societies’ goal of social equilibrium did not include a contest for power where there had to be “a winner and a loser at all costs.”  As seen in the Benin kingdom, Yoruba ethnic group, and Ndebele society, African societies deeply feared tyranny and ensured authority was not boundless by basing the legitimacy of power on the people.
Collectivism also functioned in the administration of justice. African societies followed the concept of collective responsibility. Collective responsibility held that a person’s guilt was shared among his relatives, friends, and even property. This meant families were held accountable for offenses committed by a family member and could share the offending member’s punishment or atonement burden. This functioned as a crime deterrent. Potential offenders contemplated the potential effects of their actions on their relatives and friends, and everyone took on a quasi law enforcement role to monitor the behaviors of others in society.
Traditional African societies informed themselves of the world through spirituality. The “sustenance” of traditional African systems of justice and resolving conflicts was their traditional religious beliefs. Traditional African societies believed in the following saying: “a river that forgets its source will run dry.” African societies connected spirituality to the regulation of conduct as a way to develop moral values such as truthfulness, compassion, trustworthiness, and respect for elders. Because traditional African people revered and feared their deities and ancestors, moral ideals were followed, and governing rules were obeyed to avoid supernatural consequences.
3. Ubuntu (Peace)
Across the sociopolitical landscape of traditional African societies, a common ideology for forming and maintaining peace was followed: “I am because we are, and since we are, therefore I am.” This ideology is known as Ubuntu. Ubuntu isderived from a South African language, Xhosa, but other traditional African societies had similar languages for and concepts of Ubuntu. Ubuntu was an indigenous response to violence and a means of creating empathy and kinship among traditional African societies. A person with Ubuntu assured the other person of their humanity and communicated that they were open to forgiveness and reconciliation. Societies that embodied the principles of Ubuntu also embodied the ideals of collectivism and placed a “high value on communal [life and] positive relations within society as a collective.” Reinforcing the ideas of humanness, compassion, and mutualism, Ubuntu was used by traditional African societies to address various issues such as family disputes, theft, murder, and even war.
C. Protocol and Conflict Resolution
With the understanding of traditional African governance systems and principles, this paper will introduce how traditional African people navigated their principles through their governance systems via protocol. Specifically, this discussion will focus on the protocols used to resolve conflicts in pre-Maafa Africa. Traditional African conflict resolution approaches were centered on peacebuilding, conflict prevention, and deterrence.
Like all other societies, Africans were conscious of the inevitable conflict that occurred when individuals and groups had incompatible interests. However, the robust participation of family members in the conflict management process was peculiar to traditional African societies. As a collective-oriented civilization, African societies involved families in dispute proceedings and resolutions. For example, in the Benin kingdom, protocols—rules unwritten but understood—were in place for collective responsibility. For dispute proceedings, it was understood that families had to guarantee the attendance of their family member(s) involved in the dispute. If the member in question did not show up or fled, members of the family were required to pay a fine or compensate the aggrieved party. Protocols were also in place if the offending family member passed away. If a person committed adultery and died, close relatives were expected to perform a ritual of atonement. If a man desecrated an elder, god, or holy place and later died, it was understood that the eldest son must atone for it. For non-coercive interventions, there were protocols for consulting elders as third-party mediators. For example, the Igbo ethnic group, located in present-day Nigeria, used the Okpara (elders) of an extended family to resolve matters that could not be handled at the nucleus level. These elders were tasked with ascertaining the truth and dispensing blame to the guilty party. A key undertaking in these matters was to ensure that an apology was made and also accepted. If the offense was considered an iru-ala (pollution of the ancestral land), such as adultery or incest, the elders performed a cleansing ritual.
In many traditional African societies, a Palaver was used to settle conflicts. A palaver was a conflict-resolution technique that involved improvised discussions between the parties in dispute. The claims in controversy were investigated for their honesty and transparency. The Toubou society of present-day Chad had their own form of palaver called cofono. In a cofono, council members, made up of men and women, gathered to debate the pros and cons of the conflict at issue. After the debate, a binding decision was given to the parties in dispute. The Beti society, located in present-day Cameroon, called their form of palaver adzo (to say), which typically involved the entire community. The following were three stages that the Beti society took in an adzo: persuading the parties in dispute to bring their matter; permitting the parties in dispute to confront each other in the presence of elders; and rending judgment. Rather than a punishment, the guilty party is required to compensate the other party. An adzo reflected the socialization of Ubuntu, where people sought to live in harmony and “avoid a situation of trying to win at all cost[s].”
Many other forms of protocols were utilized by traditional African societies to resolve conflicts such as oaths, covenants, celebrations, and negotiations. It will be helpful to expand the discussion on traditional African protocols to other conflict-resolution techniques such as marriage, which was used to reduce wars and form alliances, or communal land ownership, which was used to assimilate outsiders into the ruling society. Research applying the Sankofa methodology to discuss the applications of traditional African protocols to issues in contemporary Africa would also help rebuild African history and promote the continent’s future wellbeing.
The long view of African history offered a robust insight into the orientation of African people when their societies were uninterrupted. Traditional African societies had organized governances that encompassed complex systems of authority structures and procedures to administer justice and resolve conflicts. Traditional African societies also had recognized principles which were centered on the values of collectivism, peace, and spirituality. These African societies effectively functioned through unwritten yet regarded rules known as protocols. In conclusion, African societies had organized means of regulating their societies before the intrusion of European jurisprudence.
 Michael Udo, The Vitality of Yoruba Culture in the Americas, 41 Ufahamu: J. Afr. Stud., 27, 29–30 (Winter 2020).
 Id. at 34–35; Johnson O. Urama & Jarita C. Holbrook, The African Cultural Astronomy Project, 5 Proc. Int’l Astronomical Union 48, 50 (2009).
 Tunde Ososanya, Top 10 Africa’s Most Populous Ethnic Groups, Igbo is Number 2, Legit (Jun. 19, 2020, 10:52 AM), https://www.legit.ng/1333717-top-10-africas-populous-ethnic-groups-igbo-number-2.html; Udo, supra note 1, at 34–35.
 Ajibola Amzat, Who Becomes The Next Ooni Of Ife?, Guardian (Sep. 25, 2015, 11:01 PM). https://guardian.ng/saturday-magazine/cover/who-becomes-the-next-ooni-of-ife.
 The interviewee preferred that I not state their name in the publication of this Paper. Telephone Interview with Family Member (Mar. 2022) (Although the interviewee provided the genealogy of the monarchy of Ile-Ife from Oduduwa to the current king, Ooni Adeyeye Enitan Ogunwusi, he could not offer past events reflecting the anthropological, sociological, and philosophical evolution of the Yoruba people before 1914. In contrast, he provided a robust historical account on the British empire dating back to 871 AD.). See also Nigeria as a Colony, Britannica, https://www.britannica.com/place/Nigeria/Nigeria-as-a-colony (last visited May 14, 2022).
 L. Amede Obiora, Reconsidering African Customary Law, 17 Legal Stud. F. 217, 222–24 (1993). See Valerie Strauss, College Board Restores 250 Years to AP World History Course After Outcry Over Plan to Cut 9,000 Years, Wash. Post (Jul. 20, 2018), https://www.washingtonpost.com/news/answer-sheet/wp/2018/07/20/college-board-restores-250-years-to-ap-world-history-course-after-outcry-over-plan-to-cut-9000-years.
 Obiora, supra note 6, at 217–18; Bonny Ibhawoh, Historical Globalization and Colonial Legal Culture: African Assessors, Customary Law, and Criminal Justice in British Africa, 4 J. Glob. Hist. 429, 435 (2009).
 See Ibhawoh, supra note 7, at 445–46; Obiora, supra note 6, at 237–38.
 Obiora, supra note 6, at 222. See Stephanie Busari & Barbara Wojaze, French Doctors’ Proposal to Test Covid-19 Treatment in Africa Slammed as ‘Colonial Mentality’, Cable News Network, (Apr. 20, 2020, 10:32 AM), https://www.cnn.com/2020/04/07/africa/french-doctors-africa-covid-19-intl/index.html (reporting that two French doctors proposed that Africa should be a testing laboratory for the coronavirus vaccine because the continent would be incapable of protecting people against the virus).
 Funmi Abioye, Governance in Pre-colonial African Societies: Extracting Lessons for Today, in Afr. Yesterday, Today and Tomorrow 80, 81 (Nathan Andrews, Nene Ernest Khalema, Temitope Oriola & Isaac Odoom eds., Cambridge Scholars Publ’g 2013); Sandra F. Joireman, Inherited Legal Systems and Effective Rule of Law: Africa and the Colonial Legacy, 39 J. Mod. Afr. Stud. 571, 576–77 (2001).
 Angi Porter, Africana Legal Studies: A New Theoretical Approach to Law & Protocol, 27 Mich. J. Race & L. 249, 255 (2022) (noting Maafa as the centuries-long infliction and continual impact of enslavement and colonization of Africans by Europeans).
 Joireman, supra note 10, at 577.
 Id. at 576.
 Ibhawoh, supra note 7, at 429–30.
 Id. at 435.
 Id. at 429. See Ephrem Yared, The Italo-Abyssinian War (1889-1896), Black Past (Feb. 29, 2016), https://www.blackpast.org/global-african-history/italo-abyssinian-war-1889-1896; Marissa Evans, Aba Women’s Riots (November-December 1929), Black Past (Mar. 27, 2009), https://www.blackpast.org/global-african-history/aba-womens-riots-november-december-1929; The Chilembwe Uprising Occurs, Afr. Am. Registry, https://aaregistry.org/story/the-chilembwe-uprising-occurs (last visited May 16, 2022).
 Ibhawoh, supra note 7, at 432–36; Joireman, supra note 10, at 578–80.
 Joireman, supra note 10, at 578; Obiora, supra note 6, at 224–25.
 Joireman, supra note 10, at 578.
 Joireman, supra note 10, at 579–80; Ibhawoh, supra note 7, at 434. See generally European and African Interaction in the 19th century, Britannica, https://www.britannica.com/place/Southern-Africa/European-and-African-interaction-in-the-19th-century (last visited May 14, 2022) (highlighting the Atlantic slave trade’s effects on African societies and families and the particular adverse effects on women and young men); Leoné Walters, Carolyn Chisadza & Matthew Clance, Slave Trades, Kinship Structures and Women Political Participation in Africa (Univ. Pretoria Dep’t Econ. Working Paper, Paper No. 56, 2021) (discussing the correlations between the gender ratios of the Atlantic and Indian Ocean slave trades and the decreased political participation of women in some African societies).
 Obiora, supra note 6, at 228; Ibhawoh, supra note 7, at 441–43, 447–48.
 Ibhawoh, supra note 7, at 441–44.
 Obiora, supra note 6, at 229.
 Obiora, supra note 6, at 219–21; Abioye, supra note 10, at83–89.
 Ibhawoh, supra note 7, at 444–47.
 Obiora, supra note 6, at 217.
 Ibhawoh, supra note 7, at 446.
 Joireman, supra note 10, at 571–73.
 Id. at 573–74.
 Id. at 574.
 Id. at 575–76.
 Ibhawoh, supra note 7, at 445; Joireman, supra note 10, at 573–75.
 Ibhawoh, supra note 7, at 445.
 Id. at 446.
 Id. at 448.
 Ibhawoh, supra note 7, at 431–32.
 Id. at 447–50.
 Joireman, supra note 10, at 575–81.
 Id. at 576.
 Id. at 592; Ibhawoh, supra note 7, at 437.
 Joireman, supra note 10, at 578; Ibhawoh, supra note 7, at 437.
 Victor Essien, Sources of Law in Ghana, 24 J. Black Stud. (Special Issue) 246, 246–47 (1994).
 Const. of the Republic of Ghana (1992) Chapter 1, art. 1.
 Id. at Chapter 4, art. 11.
 Essien, supra note 50, at 247–48.
 Essien, supra note 50, at 247–48.
 Id. at 247–49.
 Id. at 249.
 Const. of the Republic of Ghana (1992) Chapter 5, art. 26.
 Essien, supra note 50, at 254–55.
 Id. at 255; Const. of the Republic of Ghana (1992) Chapter 5, art. 26.
 Essien, supra note 50, at 255.
 South Africa Timeline and History Overview, Ducksters, https://www.ducksters.com/geography/country/south_africa_history_timeline.php (last visited Apr. 6, 2021).
 South Africa Timeline and History Overview, Ducksters, https://www.ducksters.com/geography/country/south_africa_history_timeline.php (last visited Apr. 6, 2021).
 Alistair Boddy-Evans, A Chronology of Southern African Independence, Thought Co. (Jul. 03, 2019) https://www.thoughtco.com/southern-african-independence-4069435.
 Supra note 62.
 Obeng Mireku, Three Most Important Features of the South African Legal System that Others Should Understand 215-16 (2007) (on file with the International Association of Law Schools), http://www.ialsnet.org/meetings/enriching/mireku.pdf.
 S. Afr. Const., 1996, Chapter 1, Section 2.
 Id. at Chapter 2.
 Mireku, supra note 69, at 215.
 S. Afr. Const., 1996, Chapter 2, Section 8.
 Mireku, supra note 69, at 215.
 S. Afr. Const., 1996, Chapter 12, Section 211.
 Mireku, supra note 67, at 216–17.
 Obi N.I. Ebbe, World Factbook of Criminal Justice Systems: Kenya (1993).
 Constitution (2010) (Kenya).
 Id. at art. 1.
 Id. at art. 2.
 Id. at art. 19–59.
 Id. at art. 159–73.
 Id. at art. 159.
 Porter, supra note 11, at 272-274.
 Id. at 274-284.
 Id.; see Adeyemi J. Ademowo & Adedapo Adekunle, Law in Traditional Yoruba Philosophy: A Critical Appraisal, 3 Caribbean J. of Phil. 2–3 (2013).
 Id. at 31–33.
 Obiora, supra note 6, at 219–20.
 Porter, supra note 11, at 284.
 Id. at 14 (explaining that the “Long View orientation” breaks away from seeing the story of Africans as one of bondage to freedom and provides African experiences and thoughts that represent a condition unencumbered by the impacts of “enslavement, colonization, and the ongoing fallout of white supremacy”).
 Obiora, supra note 6, at 218; Joireman, supra note 10, at 579.
 Abioye, supra note 10, at87–88.
 Id. at 87.
 Id. at 87–88.
 Idahosa Osagie Ojo & Eghosa O. Ekhator, Pre-Colonial Legal System in Africa: An Assessment of Indigenous Laws of Benin Kingdom Before 1897, 5 J. Benin Ẹdo and Stud. 38, 44–46 (2020).
 Id. at 44.
 Id. at 46.
 Id.; see generally Dmitri M. Bondarenko, The Benin Kingdom (13th – 19th Centuries), 14 Soc. Evolution & Hist., Sept. 2015, at 46–56 (detailing the historical transition of the Benin governance from independent local communities to the centralized institution of the Oba).
 Ojo & Ekhator, supra note108, at 46–47.
 Id. at 47.
 Id. at 50, 53–54.
 Id. at 46; see Itohan Mercy Idumwonyi & Solomon Ijeweimen Ikhidero, Resurgence of the Traditional Justice System in Postcolonial Benin (Nigeria) Society, 6 Afr. J. of Legal Stud. 123, 128 (2013) (noting that the Oba of Benin was viewed as a divine representation of social harmony).
 Ojo & Ekhator, supra note108, at50–51.
 Id. at 51.
 Id. at 50–51.
 Id. at 55–57; Idumwonyi & Ikhidero, supra note 116, at 127.
 Ojo & Ekhator, supra note108, at 55–57; Idumwonyi & Ikhidero, supra note 116, at 129.
 Ojo & Ekhator, supra note108, at 56.
 Id. at 57–58.
 Id. at 57.
 Id. at 62.
 Id. at 64. Cf. Idumwonyi & Ikhidero, supra note 116, at 129 (observing that matters in Benin were resolved in the courts of the Okaegbe’s (family head), Edion-Idunmwun (quarter/street head), Enogie (village heads), and Oba).
 Ojo & Ekhator, supra note108, at 62.
 Id. at 62–63.
 Ademowo & Adekunle, supra note 92, at 5–7.
 Id. at 4–5.
 Id. at 7, 8–9.
 Id. at 3, 6–7; Tunde Onadeko, Yoruba Traditional Adjudicatory Systems, 29 Afr. Stud. Monographs 15, 16 (2008).
 Ademowo & Adekunle, supra note 92, at 5.
 Id. at 6–7; Onadeko, supra note 132, at 16.
 Ademowo & Adekunle, supra note 92, at 6–7.
 Id. at 4–5.
 Id. at 6–8; Onadeko, supra note 132, at 17.
 Ademowo & Adekunle, supra note 92, at 6–7.
 Id. at 3–4, 6–7.
 Id. at 4, 6–7. See Onadeko, supra note 132, at 23–25 (discussing the appeal processes of the Olori Ebi’s tribunal, Olori Adugbo’s tribunal, and Oba’s tribunal).
Ademowo & Adekunle, supra note 92, at 6–7.
 Id. at 7. See Onadeko, supra note 132, at 20 (“If the Oba . . . passed judgment, no one dared appeal it.”).
Ademowo & Adekunle, supra note 92, at 6.
 Id. at 9.
 Id. at 10.
 Id. at 11; see Onadeko, supra note 132, at 18 (stating that the “main objective of . . . the Yoruba [people] . . . was to reach a decision that would be accepted as fair by both parties, so that the dispute could be resolved.”).
 Sabelo J. Ndlovu-Gatsheni, Who Ruled by the Spear? Rethinking the Form of Governance in the Ndebele State, 10 Afr. Stud. Q. 71, 71–75 (2008).
 Id. at 80, 86.
 Id. at 75–77, 82.
 Id. at 76–77.
 Id. at 76; see Thamsanqa Moyo et al., Peace, Conflict Management, and the Ndebele Proverb, 5 J. Language and Commc’n 341, 123 (2011).
 Ndlovu-Gatsheni, supra note 148, at 76.
 Id. at 77.
 Id. at 76–77, 82; see Moyo et al., supra note 152, at 348–49 (discussing the Ndebele’s view against the monopolization of power).
 Ndlovu-Gatsheni, supra note 148, at 76–77.
 Id. at 77.
 Id. at 78.
 Sabelo J Ndlovu-Gatsheni, Inkosi Yinkosi Ngabantu: An Interrogation of Governance in
Precolonial Africa – the Case of the Ndebele of Zimbabwe, 20 S. Afr. Humanities 375, 386 (2008).
 Ndlovu-Gatsheni, supra note 148, at 78.
 Id. at 77.
 Id. at 80; Moyo et al., supra note 152, at 344.
 Ndlovu-Gatsheni, supra note 148, at 80–82.
 Id.; see Moyo et al., supra note 152, at 346–48 (comparing the traditional Ndebele’s ideals of equitable distribution to the modern era of Zimbabwe).
 Ndlovu-Gatsheni, supra note 148, at 81–82.
 Id. at 71–73.
 Adeoye Akinola & Ufo Okeke Uzodike, Ubuntu and the Quest for Conflict Resolution in Africa, 49 J. Black Stud. 91, 94–96 (2018).
 Ojo & Ekhator, supra note108, at 54; Ademowo & Adekunle, supra note 92, at 3.
 Ojo & Ekhator, supra note108, at 54; see Ademowo & Adekunle, supra note 92, at 2–3.
 Abioye, supra note 10, at90.
 Id. at 89–90; see Onadeko, supra note 132, at 25 (discussing the Yoruba protocols that were in place to put the king on trial if he committed a heinous crime); Nic Cheeseman & Jonathan Fisher, How Colonial Rule Committed Africa to Fragile Authoritarianism, Quartz Afr. (Nov. 6, 2019), https://qz.com/africa/1741033/how-colonial-rule-committed-africa-to-fragile-authoritarianism-2 (noting that “colonialism reinforced authoritarian elements in African societies while undermining the inclusion and accountability that once balanced them” through practices such as election rigging, concentrating power, and restricting fundamental freedoms through colonial laws).
 Ojo & Ekhator, supra note108, at 48–55; Ademowo & Adekunle, supra note 92, at 12.
 Ojo & Ekhator, supra note108, at 48–49.
 Id. at 52–53.
 Ademowo & Adekunle, supra note 92, at 7.
 Id. at 5.
 Id. at 8–9.
 Id. at 5–6; Ojo & Ekhator, supra note108, at 57–59; see Onadeko, supra note 132, at 16 (stating that “there was no need to prescribe formal laws as deterrents against asocial behavior, because everybody accepted implicitly that any departure from the behavior approved by the deities . . . and the ancestors . . . was punishable.”).
 Akinola & Uzodike, supra note 169, at 95; Moyo et al., supra note 152, at 342.
 Akinola & Uzodike, supra note 169, at 95–97.
 Id. at 93, 95.
 Id. at 95–101.
 Id. at 100–01; Moyo et al., supra note 152, at 342, 353–54.
 Akinola & Uzodike, supra note 169, at 93, 100–01.
 Adeyemi Ademowo, Conflict Management in Traditional African Society (Sept. 2015) (unpublished manuscript) (on file with author).
 Ojo & Ekhator, supra note108, at 51.
 Id. at 50.
 Cletus A. Lanshima, African Traditional Systems of Conflict Resolution, 20 Afr. Anthropologist 262, 275-77, 280-81 (2016); see Onadeko, supra note 132, at 23 (noting a Yoruba saying that “[w]here there are good elders, there is orderliness.”).
 Lanshima, supra note 197,at 280–81.
 Ademowo, supra note191.
 Id.; Abdulrazaq O Hamzat, Policing and Security in Nigeria, The Nigerian Observer (Jan. 31, 2015), https://nigerianobservernews.com/2015/01/peace-mission-%E2%80%A2-policing-security-nigeria.
 Ademowo, supra note191.
 Id.; Hamzat, supra note204.
 Ademowo, supra note191; see Moyo et al., supra note 152, at 350–51 (discussing how the Ndebele society encouraged public involvement in palavers and problem-solving).
 Ademowo, supra note191; see Moyo et al., supra note 152, at 343–44 (discussing the principles of Ubuntu and palavering).
 Ademowo, supra note191; Ndlovu-Gatsheni, supra note 148, at 81.