Decolonising the law: do we have a choice?

Public Agenda is proud to bring to readers perspectives from an international conference on decolonisation of the law, which the paper finds relevant to our current situation. In this piece Shadrack Gutto contends that unless we decolonise our minds, it is going to be very difficult to decolonise our law, legal System and justice system. Read on…

This write-up is divided into two parts: first, a diagnosis of the illness that we have in our legal education; and then in the second part; I will discuss possible suggestions on what is to be done. I would like to indicate that, as legal scholars in Africa and indeed the South who were colonised, we need to go beyond critical analysis. Critical analysis is very important but we need to go beyond that to actually put in place changes that we think would make a difference to us in the world which we share with our former colonisers. Secondly, I would like to make the comments within the context of not only decolonising the law but also looking at the law, legal systems and legal practitioners, and by legal practitioners I also include legal academics. As teachers of law, we occupy a very special space in the society which we usually don't realise, because we do research, we analyse, we critique what is being done in law, we look at what is being done in the legislative sphere, we look at the whole question around justice and therefore we influence all the time other institutions, like the courts, like what areas of the law need legislative interventions and so on. We therefore are privileged but we do not do enough. Instead we are very conservative and we are part of the problem rather than the solution.

When we talk about Eurocentrism, it is a disease which really runs through not just the law but also the legal systems that we inherited and legal systems which were meant to control and oppress us. We took over these systems and we are continuing to preserve them zealously without decolonising them, and that is part of the problem. The Anglo-Saxon legal systems that we have in the former British colonies in Africa and Asia and the so-called continental legal systems based on civil law, the Code Napoleon and so on which we get in Francophone African countries have a whole lot of problems.

If you just take the question of whether you will follow an adversarial or an inquisitorial legal system and you ask yourself what level of justice people get within that system, is it sufficient and does it reflect our traditional value systems of justice and so on? Neither of them does and yet we cling to them and we follow them very religiously.

Inherited inequities

We find in post-independence African countries a situation where we simply inherited the legal systems. Let me use South Africa as an example. In the constitution of South Africa, it is recognised that we have an extensive chapter on human rights, the bill of rights, but when we go to the content part of the law, then we say we do have the common law, customary law and of course others like international law.

When you then go on to ask what this common law is, the common law is Roman Dutch law! The law was imported by the Romans into South Africa, and also applies in Namibia, in Swaziland, to an extent in Zimbabwe and so on. What was 'common' about these were the indigenous laws of the colonisers which they came with and transplanted. Yet now we say we are independent and liberating ourselves and we make this part of our law, separating it from African law, which we call 'customary law' but which was distorted during the colonial period. So we are not even engaged in damage control or in trying to look at what was the basis of that justice. We do not and yet we say that we are professors of law and so on. We are actually pathetic to the societies in which we live. That is an example that one can give and it applies to virtually all former colonies in Africa.

We will still find many of our legal practitioners going to court in robes, in gowns with lapels, and they say that the court is a place of justice. To our countrymen who used to see the colonialist wear things like that, they do not believe there is justice. But we are not sensitive to that because we think this is what it is, we are doing it like they are doing in London and New York and therefore we are civilised and they recognise us and we are invited to go and give lectures as visiting professors at Harvard, and so on and so forth. What I am saying is that we are part of the problem.

In addition to our failure to change what we inherited, there are new areas of law evolving globally today where we are still effectively colonised. I will give two examples. One is the challenge of piracy in the Indian Ocean near eastern Africa. The people involved say they are defending their territory against foreign fishing and so on, but they are in a way both pirates and liberators of their resources. But what is important is that there is no law now, no legal regime where the Somali people who are arrested can be tried. So what has happened is that Kenya and the Seychelles have signed a pact with the US and the EU to prosecute the people who are arrested by the Americans and NATO in those waters on their behalf so that Kenya and the Seychelles can get some aid from the US.

What a ridiculous thing! How can you allow yourself to be a centre of prosecution of people within a legal system which does not exist because they did not commit a crime in your territory? In other words, you engage in illegalities even as we talk about the rule of law internationally. The very same people will tell you how they want to create an international legal regime and so forth.

Another example is the International Criminal Court (ICC). With any little conflict in Africa, the matter is referred to the ICC and then prosecution is suggested. But while the ICC was created before US invaded and destroyed Iraq, none of the crimes committed in Iraq has been referred to it. Neither has the ICC looked into the atrocities that Israel has committed in the occupied Palestinian territories. So an International Criminal Court which we are told is building a regime of justice in the world is selectively being used to depict Africa as the region of criminals while those who do it a hundred times more get off scot-free. Are we teaching these things in our own law schools, are our curricula being transformed? No.

Areas of action

What, then, should be done?

I suggest that, first, we decolonise our minds, it is going to be very difficult to decolonise the law, legal system and the justice system so that our people can begin to feel that they are living in system of constitutionalism and the rule of law. We now have laws but no rule of law, we have constitutions but not constitutionalism. Secondly, let us look at the legal curriculum and ask: Do we want to go with the disciplinary boundaries that have been created to such an extent that a person doing law has no idea of simple areas and issues of agriculture, science, and even elementary math and so on?

When you go to court and you are dealing with legal disputes, some involve scientific and technological issues, some involve environmental issues, some involve financial issues, but the lawyer we produce is half-educated even though he or she may have graduated with honours. We must therefore increase the level of inter-disciplinarity in the way in which we approach education in our universities.

Thirdly, we need to enhance the core values of people around issues of justice – and indeed I have a book here which I recently edited called Shared Values, Constitutionalism and Demo-cracy in Africa. It tries to look at why – because we have not distilled shared values in Africa's historiography before, during and after colonialism – we are not able to build a coherent African vision of justice.

Fourthly, we need also to really begin to look at what are the new areas of development of law. For example, we have the African Charter on Human and Peoples' Rights adopted in 1981 by the Organisation of African Unity, the forerunner of he African Union. It introduced for the first time in the history of the world the right to development as a right. Do we teach it in our universities? No, we don't. Have we developed scholarship around it? No, we have not. Instead we cite the European Court of Human Rights, we cite the American, this and that… We are lazy, we do not do enough scholarship, we do not research and publish in those areas so that we have something better, but we continue saying our curriculum has not changed. Who is going to change it if we do not?

We have from the 2001 World Conference against Racism held in Durban, South Africa, recommendations in the action plan calling for reparation for slavery, for colonialism, and so on. Has any African or Asian legal scholar incorporated these in the curriculum? No. So in other words, we are lazy bums and we are part of the problem.

When the leaders of countries like Libya, Egypt and Tunisia are toppled by their own people's uprisings, then all of a sudden you hear that their assets in the US, in Britain, in Switzerland are frozen, which means that these latter countries had been keeping stolen wealth all along.

We need a legal system in our universities and practice which is going to effectively say,' Declare all stolen wealth that you have in your banks in the North – do not wait for a crisis so that when the people whose money you were keeping and building your economies with are in trouble you say all of a sudden you discovered this money – you would be lying.' In most of our legal systems, anybody who keeps stolen property is one of the criminals. So we are dealing with criminals here and our schools are not teaching us sufficiently to be able to really pursue justice. I will therefore conclude by saying that decolonisation of our law and legal systems in Africa and Asia is something we have no choice but to undertake. If we do not, then we are conceding we want to remain colonised and slaves. *Shadrack Gutto is Director of the Institute for African Renaissance Studies at the University of South Africa in Pretoria. The above is an edited version of his presentation at the International Conference on 'Decolonising Our Universities' held in Penang, Malaysia, in June 2011.