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26 At the Back of the Black Man's Mind By R. E. Dennett
CHAPTER V. LAW
The Family. - Marriage.-Contracts. -Property. -Crimes and Punishments.-Judicial
Procedure.
NATIVE LAW
THE subject of African Law is a fascinating one and I am tempted to enlarge on it, the
more so as it is but little understood in England, although a knowledge of it is clearly
essential to the right governance of our black fellow subjects. Miss Kingsley has treated
of African religion and law in her West African Studies (abridged edition), among other
writers may be mentioned the late Sir. A. B. Ellis, Sir J. Smallman Smith, and Mr. J. W.
Sarbah in addition. Much material has of course been pigeon-holed by various officials.
But, able though the English works above mentioned are, they do not go deep below the
surface, and are far from being text-books of native customary law, to which the
administration can turn for guidance. Our French neighbours, wise in their generation,
have recently issued a monumental work, Les Coutumes indigènes de la Côte d'Ivoire by
Clozel; and a similar work on the native law of Nigeria compiled by a trained
anthropologist who can give his whole time to his work would undoubtedly be of
extreme value, not only to the student of comparative jurisprudence, but to the official
who comes in daily contact with men who know only the native law, whose life is
regulated by its fundamental principles, and who can be governed only if the English
ruler recognises those principles and deals out even handed justice in accordance with
them.
In some primitive communities there is only one sort of offence which can be regarded
as law-breaking Dr. Codrington shows that in Melanesia tabu takes the place of law; the
infraction of a tabu may bring down on the head of the offender an automatic penalty;
but he may be too strong spiritually; and then the penalty falls upon the innocent. To
provide against this, the society itself of which the offender forms a part inflicts the
penalty for wrong doing and thus satisfies the power whose wrath is incurred by the
infraction of the tabu.
Just in the same way in Africa a violation of the moral law, if I may so term it, is an affair
for the whole of the community. If Nzambi, on the Kongo, is provoked by immorality
especially of a sexual kind, the result, as we shall see in a later chapter, is drought, and
the penalty falls on the community. A violation of the moral law is in native phraseology
a "God palaver"; any outrage on a spirit may be of this nature but in practice a man is
left to settle his own account with a minor spirit, which is hardly powerful enough to
inflict damage on a family or tribe. On the Congo, justice is so far organised, where "god
palavers" are concerned, that punishments are inflicted by the Badungu acting on the
orders of the king.
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