NAME: NALUGGYA SPENCER PROSSIE

STUDENT NUMBER: 1800713813

REGISTRATION NUMBER: 18/U/13813/EVE

COURSE NAME: JURISPRUDENCE 1

COURSE CODE: L4119

DATE: 18TH MARCH, 2022.

Jurisprudence involves the study of general theoretical questions about the nature of laws and
legal systems, about the relationship of law to justice and morality and about the social nature of
law.1 Jurisprudence includes all the answers that lawyers give when asked to explain the
meanings of law, its origins, its nature and its place among other disciplines and these questions
can be asked in all legal systems including African law. Therefore, African jurisprudence is a
thought system that focuses on the meaning, nature, characteristics and functions of African law
and culture.

Africa is not among Hegel’s four civilizations or cultures and from his perspective Africa is said
to be unhistorical, undeveloped spirit still involved in the conditions of mere nature devoid of
morality, religions and political constitution.2 Hegel’s thoughts are that the African has not
reached a level of realizing his own being and the African is natural man in his completely wild
and untamed state.3 From these thoughts Hegel concludes that Africa has no role in world history
until it can exercise a certain level of influence on the environment at a minimum level of
consciousness.

Over the years there has been debate on African philosophy and until the twentieth century
Africans were denied their history, humanity and philosophy. All discussions relating to Africa
were dominated by Europeans and their colonial masters had reduced them to silence even in the
discourse on Africa as a whole. All discussions on Africa were conducted by Europeans who
spoke on behalf of Africa and Africans about their history and philosophy of law.

Westerners founded their denial of African philosophy on the assumption that Africans were
unable to produce logical, critical and rational thinking. Secondly, the denial of African
philosophy by westerners is also from what is often regarded as the absence of any written work
of intellectual worth.4 Africa did indeed have law and African scholars have produced evidence
so as to prove Africa’s ancient philosophical origins.

Senghor (1964: 74) argues that Africans possess a distinct mode of reasoning and reality than
that experienced by Europeans and that European reason is analytical and discursive by

1
Michael Freeman FBA, Lloyd’s Introduction to Jurisprudence, 9 th Edition
2
Ronald Kuykendall, “Hegel and Africa: An Evaluation of the Treatment of Africa in the Philosophy of History
Journal of Black Studies, Vol. 23, No. 4, (1993), p.572
3
Hegel, The Philosophy of History
4
William Idowu, African Philosophy of Law: Transcending the Boundaries between Myth and Reality
utilization whereas Negro-African reasoning is intuitive by participation. African jurisprudence
thrives on the idea of moral solidarity of the community and the group one belongs to therefore it
is the sustained importance of the group that gives the art of law its considerations. Placide
Tempels confirmed what Europeans had learnt from Senghor that Africans are human and
capable of reason and what distinguished the Bantu Philosophy from the European philosophy
was that Bantu Philosophy represented the philosophical ideas of the community rather than
individual thought.5

African philosophy had its origins in ancient Egypt and Ramose (2002{b}: 35) places it far from
being a region of darkness irrelevant to the history of humanity as pre-colonial Africa was the
heart of philosophical rationality and the birthplace of human beings. There is a distinction to be
made when tracking Africa’s philosophical origins between the written philosophical tradition of
Africa north of the Sahara and the oral philosophical tradition of Africa south of the Sahara. The
philosophical history of Africa south of the Sahara is based on oral tradition though most of it
did not survive the disorganization that came along with European and Islamic movements.
Some narratives, values and culture that survived the turmoil were orally passed on from
generation to generation. Oral culture is sacredly guarded and passed on from one generation to
the next and according to Mazrui (2002: 5) oral traditions include details of specific past events
for example outcomes of wars, outbreaks of epidemics, ballads of ancestry among others.
Tempels (1959), Senghor (1964) and other African writers confirm the existence of collective
African philosophy that is firmly embedded in oral tradition.

The philosophy of the north of the Sahara is characterized by long tradition of philosophical,
cultural and religious knowledge and it has always been the focal point of Islamic philosophical
tradition. According to Bell (2002: ix) Egyptian and Abyssinian civilizations have long traditions
of written history and civilizations older than Greek Civilizations for example Egyptian texts that
date back to 300 B.C. This goes to show that indeed African thought is present in jurisprudential
thought.

African jurisprudential thought did exist and it was premised on the natural law theory. Scholars
do agree that natural law cannot be precisely defined, it is defined in Lloyd’s introduction to
jurisprudence as a rational foundation for moral judgement. Natural law consists of the highest

5
Placide Tempels, Bantu Philosophy 1945
principles of morality towards which humanity is striving. The central point of natural law is that
there are certain principles of human conduct awaiting discovery by human reason and man-
made law must conform to them if it is to be valid. Natural law is premised on the supernatural
and it emphasizes the moral and ethical dimension of the law. African jurisprudential thought
therefore is largely premised on Natural law mainly because it also derives its authority from the
existence of a supernatural being and emphasizes morals and ethics playing a major part in the
development of law. The main focus of our discussion on African jurisprudential thought is
going to be religion, truth and justice, Ubuntu, diversity and conception of the higher calling, and
culture.

The whole essence of life for the African is based on its ontology, that is; the study of being to
which the African is force. Africans therefore live, speak and act as if beings were forces.6
African ontology envisages a hierarchical ordering of forces reflecting their primogeniture with
God at the top, then man, then animals, plants and minerals.7 The origin of beings and forces is
thus attributable to God so no force that is greater than the other can diminish it and existence
that comes from God cannot be taken away by from a creature by another created by force.
Natural law emanates from a supreme being the right reason to be adhered to by society.
Although Hegel refers to Africans as sorcerers not yet conscious to a higher power, and states
that African religious practices are characterized by fetishism and the worship of the dead,
religion is a part of all the departments of life that it is not easy to isolate it and it is therefore a
core traditional African value.8 What Hegel refers to as worship of the dead is actually symbolic
and it is seen as a way of remembering the departed. There are different African religions but
they share certain aspects in common for example religion informs Africans of what is right and
what is wrong. Therefore, African religion inspires aspects of natural law in a sense that right
and wrong are perceived in communities by inquiring into what is acceptable to the supernatural
beings considered supreme in the conduct of their life.9

Ubuntu is a South African concept and it is a manifestation of African natural law. It is an

African human rights jurisprudential concept. Ubuntu generally means humanity towards others

6
Placide Tempels, Bantu Philosophy,(Paris: Presence Africaine, 1969), 49
7
Ibid, 51-52
8
John Samuel Mbiti, African Religion and Philosophy
9
Salvatore Mancuso, African Law in action, p.6
and in the case of S v Makwanyane10 and another it was explained that an outstanding feature of
Ubuntu in an African community sense is the value it puts on life and human dignity and that the
death penalty was in fact a violation of Ubuntu in a sense that it did not respect human life and
dignity. Respect for the dignity of another person is an integral part of Ubuntu and therefore
inhumane and cruel treatment is bereft of Ubuntu. Therefore, African human rights are premised
on reconciliation, dignity and respect for human life.11 Under Ubuntu one lives for family and
community and that a human being affirms their humanity by recognizing the humanity of
others.12 Ubuntu is very important in African philosophy because it fosters reconciliatory,
restorative and transitional justice in African society and the concept in itself embodies African
traditional law principles that hav eto be enforced from an Afrocentric perspective.

Further still, natural law emanates from a supernatural being and can be discovered through
exercise of right reason. Despite there being very many different cultures and a lot of diversity in
their religion, culture, morals, languages and traditions there are certain values and practices that
cut across all these different cultures for example Ubuntu and living for the community instead
of living for oneself. It is impossible to speak one language on the African continent as a whole
but this does not mean that there are no cross cutting interpretations of natural law. This further
proved that even Africans could discover natural law with the exercise of right reason because
they did not speak the same language but their conceptions of morality, fairness and justice were
similar in very many ways. This therefore disproves Hegel’s theory that Africa could not
influence the environment through the exercise of a minimum level of consciousness.

The way people in society relate with each other is also an origin of African natural law. The
consistent conduct of people gradually grows into custom, tradition and eventually culture. There
are various aspects of morality and justice under culture that evolve and are established in
particular communities and these inform how matters such as family matters are dealt with in
such a community. Responsibility also goes hand in hand with the aspect of culture because
people are born and bred into the understanding that a person exists for the good of the
community and that the welfare of the community is everyone’s concern.13 African communities
10
1995 BCLR 665
11
Clever Mapaure, Reinvigorating African values for SADC: The relevance of traditional African Philosophy of law in
a globalizing world of competing perspectives p.160
12
Dial D. Ndima, Reconceiving African Jurisprudence in a post imperial society: The Role of Ubuntu in
Constitutional adjudication.
13
Mancuso (supra.)
presume that justice is achieved through compliance to rules grounded in culture when it comes
to problem solving.

The incorporation of customary law and culture in laws that are applicable to our communities
today also proves that there indeed existed law that African communities relied on to maintain
order in their communities. Section 15(1) of the Judicature act provides for observance of
existing customs as long as they are not repugnant to natural justice and not incompatible with
any written law. This provision of the law shows acknowledgement of existing customs that
were law applied in Uganda and this concretizes the fact that there existed law in Africa before
the Europeans even became a part of African history.

African thought should be weaved into the discussion on natural law because from the discussion
above it is evident that there existed natural law in Africa. We cannot continue to deny the
contribution of African thought to contemporary account of jurisprudential thought basing
merely on western assertions that there was no written literature to that effect or that Africans
were unable to exercise right reason therefore they had no law. It is clearly evident that there
existed law even before colonization and we should not only look at Western accounts of
jurisprudential thought because even the African accounts as put down by different African
writers show that Africans could think and had their own laws that were termed as barbaric by
westerners yet were so similar to what they themselves called law for example religion.

In conclusion, Africans did have law and their approach to law was naturalist and that is that
there is a highest point of morality to which humans strive and that its premised on the
supernatural being contrary to Hegel’s assertions of a lack of it. It should therefore be
incorporated into the discussion of natural law because we cannot merely say that it does not
exist basin on western assertions that it’s not written down or because Africans could not
exercise right reason to discover it. This is because Aristotle defines all men as rational animals
because reason is the essence of things. The fact that Aristotle says all men shows that even
Africans are capable of reasoning to come up with their own theories of law and it is not only a
reserved trait for the Western man.