Derecho de acción

Non-Western scholars reject the negativity directed towards Africa and her thought systems and dismiss it as the basis for the scepticism shown by colonial authorities schooled in Western perceptions of philosophies from “other” parts of the world. These scholars blame the racist conceptions that planted the seeds of inequality between Western and African cultures on European anthropological studies which spread16

negative cultural paradigms of the “other”.

African scholars have vented their frustration at being insulted by colonial policies, by pointing out the faults of Western jurisprudence and the role African law can play in improving it. Mahao draws lessons from the pre-colonial history of the Basotho Kingdom, to demonstrate that Westernisation played no role in teaching Africans the values of popular participation in governance, democratic accountability, freedom of speech, and the indivisibility of human dignity. According to Mahao, colonisation has17

stripped African jurisprudence of these indigenous values by keeping Africans imprisoned in the gaol of socio-economic disenfranchised. On this basis, Mahao18

debunks suggestions by scholars such as Keveey that African jurisprudence is unenlightened and inconsistent with the progressive values undergirding the South African Constitution.19

Nhlapo also blames Western domination for the poor status of African law and insists that the latter system indeed embodies attributes such as restorative justice the exclusion of which from the mainstream legal system has robbed South African law of such unique dispute resolution mechanisms as reconciliation which could provide an alternative to retribution. According to Nhlapo the problem lies with the disconnect that20

See Roederer C “Traditional Chinese jurisprudence and its relevance to South African legal thought”

16

in Roederer C and Moellendorf M (eds) Jurisprudence (2004) 499-531 where he refers to legal system s other than W estern as “other system s” in acknowledgem ent of their m enial role in the South African legal system .

See Mahao “O se re ho m orwa ‘m orwa towe!’ – African jurisprudence exhum ed” (2010) XLIII/3 CILSA

17 317-329. Idem 336. 18 Idem 317. 19

See Nhlapo T “The judicial function of traditional leaders: A contribution to restorative justice?”

20

(Unpublished paper presented at the Conference of the Association of Law Reform Agencies of Eastern and Southern Africa (ALRAESA) 14-17 March (2005) 2 at 17.

exists in the minds of Western-oriented human rights activists between African culture and their conception of human rights.21

This view proffers two suggestions to resolve the resultant alienation, namely, such activists must acquire a deeper understanding of the extent of the distortion of African law resulting from Western domination. Secondly, they must desist from pontificating on the worthlessness of the values that Africans hold dear if they indeed wish to avoid popular apathy and to enlist participation from the adherents of African law.22

Biakolo’s analysis of these stereotypes presented by early European anthropologists is that they associate the west with progress and Africa with stagnation; which provides justification for both Africa’s underdevelopment and Europe’s development. The23

European anthropological researchers created notions of Western superiority in the minds of their scholars by affording the status of civilisation only to Euro-American standards and norms to the exclusion of other thought systems. Their point of departure was the art of writing and the phonetic alphabet which were regarded as indicators of social advancement. Consequently, in colonial/apartheid jurisprudence, African law24

depended for its ultimate force and validity on the common law, notwithstanding that the two systems represented totally different cultural orientations.25

These negative perceptions of the “other” philosophies were clearly not restricted to African philosophy, but extended to cover Islamic philosophy, Chinese philosophy26 27

and others. On the basis of their otherness Western anthropologists accorded them28

a status comparable to that of the “step-children” of the “real” discipline, namely Western philosophy. Offering a perspective other than that of the Western life-world deprived these thought systems of the right to be termed philosophies.29

As “other” philosophies they supposedly did not fit the “universal” criteria for acceptance

See Nhlapo T “Hum an Rights – The African perspective” (1995) 6/1 ALR 38 at 41.

21

See Abiodun op cit 78.

22

See Biakolo op cit 1.

23

Ibid.

24

See Abiodun op cit 74.

25

See Pieterse M “Traditional African jurisprudence” in Roederer and Moellendorf op cit 438.

26

See Moosa N and Goolam NMI “Islam ic jurisprudence” in Roederer and Moellendorf op cit 463.

27

See Roederer op cit 499.

28

See Kaphagawani DN “W hat is African philosophy” in Coetzee and Roux op cit 86 at 86.

as philosophies. The seriousness of the dissimilarities between the different thought30

systems was enough to exclude these “others” from the definition of philosophy. This difference convinced early Western anthropologists that other thought systems were un-philosophic. Kaphagawani makes this observation:

For the anthropologists, the situation was that of unphilosohy rather than prephilosophy. What they claimed to have established in Africa were (1) the impossibility of philosophic dialogue and (2) an obvious non-existence of a tradition of organised philosophical systems.31

To the Western philosophers the concept of philosophy was synonymous with Western philosophy. On that basis, African philosophy did not merit the term philosophy, not because it was indeed not a philosophic thought system, but because it did not emphasise the essential features that defined Western philosophy. To justify the32

exclusion of indigenous philosophy from the definition of the discipline of philosophy, everything African was labelled savage or barbaric, while the European was civilised.33

Miller, who writes from the perspective of a native American scholar, ascribes the undermining of the viewpoint of the indigenous peoples of the world to the doctrine of discovery in terms of which Europeans regarded themselves as superior to all the non- European and non-Christian native peoples outside of Europe. According to this34

doctrine, the conquest of indigenous peoples by European and Christian settlers extinguished native rights to and interests in their lands and pre-empted other Europeans from further discovering that land.35

This is echoed by Ruru, a Maori professor, who believes that the doctrine of discovery relied on elements such as Christianity, civilisation and conquest, which were attributed to English and American ingenuity to justify the dispossession of indigenous people of their lands. Expressing his views on the doctrine of discovery, Ruru writes:36

See Roederer op cit 500.

30

See Kaphagawani op cit 86.

31

Ibid.

32

Ibid.

33

See Miller “The doctrine of discovery” in Miller RJ, Ruru J, Behrendt L and Lindberg T (eds)

34

Discovering indigenous lands (2010) 1-25. Ibid.

35

See Ruru J “Concluding com paratively: Discovery in the English colonies” in M iller et al op cit 247

36

Apparently, Europeans believed they possessed the only valid religions, civilizations, governments, laws, and cultures, and Providence must have intended that these people and their institutions should dominate Indigenous people in their countries. As a result, the governmental, property, and human rights of Indigenous peoples were almost totally disregarded as Discovery directed European colonial expansion in our countries. Even in modern times, these assumptions remain dangerous legal fictions.37

Ruru goes further to point out that not only were the aboriginal people of Australia viewed detrimentally when compared to the Europeans; in Darwinian terms, Australia’s indigenous population was regarded as occupying the lowest rung of the evolutionary ladder when compared to other indigenous peoples.38