The African Customary Judicial Process: The Example of the Sukuma of Tanzania (original) (raw)

2022, The African Customary Judicial Process: The Example of the Sukuma of Tanzania

Whether or not the African customary judicial process is still relevant and practical is something that may be said to be a question of fact and of research that 'powers that be' or conquering groups have been afraid, indifferent or dishonest about, and with the stepping aside of the mainstream literature of the duty to find out the applicability of the African system, it has always been accepted with shock and retaliation, indicating the absence of true freedom. Comparative law, nevertheless, that recognize African law as a specific branch of law, confirm and attribute many advantages of this system as the most useful in the African context. The question, with specific reference to African legal processes follows, that is; "Is the conception of 'African' legal theory, jurisprudence or philosophy a possibility, an impossibility or a mere conundrum?" The suggestion, right from the beginning, for a pure African thought is also said to be futile and impossible! 1 African customary criminal law, the subject of this study, falls within this system. The challenge of legacies of European and Islamic overrule that aimed to curtail the traditional powers to deal with crimes and civil wrongs still haunt independent African governments such that they are seen as proxies of powers resting elsewhere. These issues have not been able to deter the fact that African 'social order' still rest on a complex interaction of stimuli and where the forces of moral conviction are more powerful than the fear for punishment that foreign rule imposed in a positivist order brought to Africa, this is the mutuality that make the backbone of legal validity. 2 The traditional African institution for government that discuss, assess and decide upon customary law and all kinds of affairs is the Village Assembly. 3 This assembly has many prominent names, in Usukuma, Tanzania especially areas in northern and central Usukuma, it is known as Dagashida in Ntuzu, Lugiiko 4 as it is known in Bukwimba and other areas around and Long'we 5 in some central areas of former Ng'wagala chiefdom of Maswa, Meyadu and other areas in southern Usukuma. These are different names within one community of the Sukuma people. One can briefly tell that the critical function of the institution is the fact that every matter is brought to test visa -vis its credit, rationality and whether or not it fits the historicity of the community. In the case of East Africa, particularly Tanzania and Kenya, due to various reasons including abolishment of traditional structures of governance or Chiefships and removal of the Kabaka, King of the Baganda in 1960s, the importance of these institutions of traditional dispute settlement were reinforced in the recent past by the coming of the Ndulilu or Sungusungu, although for different reasons and to cure different mischiefs. 6 They have been criticized by those who does not know their functioning, but just as any other system some irregularity are unavoidable. The most important features of traditional dispute settlement procedures are said to depend on the political and economic aspirations and according to the Marxist thought system, the political economy, that is, social relations of production and the ownership of the means of production. That as most of Africa embraces communal property, the essence of property relations in most of Africa still lay claim to the system of dispute settlement. Thus, (i) collective