The question of whether there exists an African legal theory or alternatively an African jurisprudence has been a debate that has been raging silently in a small corner of legal scholarship for some time.

When I discovered it as I started to delve into my PhD research, I was surprised to find how vibrant it was — though buried deeply in the farthest corners of Google Scholar and in uncommonly cited, sometimes obscure articles, found both on the internet and at my university’s library, after entering several versions for the same theme in the search engines: African legal theory, African jurisprudence, African legal philosophy, law and philosophy in Africa, African law, law in Africa, African customary law principles and so on and so forth…

I have always been curious about the roots of law in Africa. And the seeds of curiosity that gnawed at me were sown while I pursued my LLB degree in South Africa. Questions like, “What is African law or law in Africa? Why do Africans follow the law? Is there a distinction between African law and African morality?” Questions that were never quite adequately addressed in my otherwise intellectually challenging Jurisprudence classes and that were briefly canvassed during my encounter with what would turn out to be my favourite course at law school — African customary law.

As it happens I would never get the answers to those questions during my LLB degree. I quickly learnt that if I wanted to satisfy this insatiable thirst for the truth about my continent’s legal history and identity, my legal history and identity, I would have to do it intentionally, during my LLM or PhD.

I would have to pursue that knowledge with an earnestness and a stubbornness that would allow me to take the audacious step of pursuing an area of legal scholarship so overlooked and yet so integral, in my opinion, to every person who is a student of the law on the continent, and most certainly every person who intends to practise law on the continent.

I would not learn until my PhD research led me there about the truth that scholars of African law had unearthed on the connection between traditional African ontology, African philosophy and African law. I would not learn of F. U. Okafor (1984) , Olufemi Taiwo (1985) and Adejare Oladosu (2001), some of the most pre-eminent legal scholars on the topic of the existence of African jurisprudence and who were in the Nigerian post-independence period engaged in an enthusiastic tête-à-tête on the notion of separability of African law from African morals — a question that goes to the heart of jurisprudential thought.

I learnt about African customary law in South Africa, but not about African law before it was labelled “customary”. I was not taught of my or my fellow Africans’ laws before the arrival of colonisers, and like the Oxford historian Hugh Trevor-Roper so prejudicially put it, my legal history was taught to me as though “there is only the history of Europeans in Africa. The rest is darkness… and darkness is not the subject of history” (Trevor, Roper, 1964: 9).

I would never encounter writers like William Idowu, John Murungi (2013) and Elias ( 1963), Allott (1960) and Gluckman (1994) before them – who would in their interdisciplinary work, debunk the misconceptions surrounding the non-existence of African jurisprudence as a scholarly field, argue for its relevance to the wider canons of jurisprudence and write inspiringly of a future for African jurisprudence and African law.

What a pity it is indeed that I and others who experienced the LLB curriculum before, during and probably after my time had to enter post-graduate legal studies, before finding our legal identities. Because as John Murungi writes in his book, An Introduction to African legal philosophy, to know what it is to be an African lawyer necessarily entails to know what it is to be African and “what is at stake in being African” (Murungi, 2013: 105).

In this same work he criticises African legal education for its failure in training its legal scholars to be African legal scholars, warning us that “the well-being of the African must be the cornerstone of legal education in Africa” (Murungi, 2013: 34).

One wonders how that well-being can be prioritised when the concept of law as conceived by early Africans is absent from the curriculum and the point of departure of African legal history is colonialism, whose very objective it was to smother out any trace of so-called “native” laws that did not serve the project of the control and subjugation of black people, in preference to its own legal systems.

One wonders how the well-being of the African can be pursued in future, when the LLB curriculum fails to trace for students how the law on the continent was used and perceived as a tool for social, economic and political cohesion since the past until now.

Making the links between how those perceptions have developed from pre-colonial times until this very moment is necessary for students to understand their legal history more comprehensively and to see the role of factors outside of black letter law on its trajectory in South Africa and on the continent — factors such as socio-economics, politics, globalisation and technological advancement. This will no doubt provide legal students with an appreciation of the interdisciplinary nature of legal studies and the necessity of pulling from many fields of scholarship to solve the practical legal problems that our continent faces today.

In Oche Onazi’s work in African Legal Theory Contemporary Problems (Onazi (ed.), 2014) scholars explore the concept of African jurisprudence in some depth. Included in the definitions of African legal theory or African jurisprudence (terms used interchangeably), are the following ideas: “the ways in which law, legal concepts and institutions embody or reflect the most salient and common attributes of life in sub-Saharan Africa, attributes which are most often called Afro-communitarian” (Onazi (ed.), 2014: 1); “questions about the nature of justice or the moral justifications of laws and legal institutions”(Onazi (ed.), 2014: 2); “the scientific analysis of laws, legal concepts and institutions…” (Onazi (ed.), 2014: 3); questions about “African philosophical knowledge” and whether it “allows for scientific reasoning, analysis, deduction or speculation about African Law” (Onazi (ed.), 2014: 3); “a framework for describing the behaviour of a related set of natural or social phenomena” (Onazi (ed.), 2014: 71); and “the clarification of legal values and postulates up to their ultimate philosophical foundation”(Onazi (ed.), 2014).

No doubt, the LLB curriculum as it stands may address some of these questions to some degree, but, I would argue, not to a sufficient extent, and most certainly not to the extent that Western jurisprudence is given attention.

The rebuttal to my sentiments might be that the learning outcomes of the LLB are determined by the required skills for practise of law in South African courts, and since South African courts primarily employ law whose jurisprudential foundation is Roman-Dutch and English law, then the focus should be on that jurisprudence.

My rejoinder would be that the disconnect that is constantly highlighted between African people and the law that is supposed to govern them stems not only from a difference found in practice and on paper, but also in the incongruence in foundational values and understandings of the definitions and role of law between the people and the state. Teaching those foundational values of African jurisprudence to future legal practitioners and legislators could be one way to help to close that gap, and help the practice and creation of law that is more reflective of African needs and the priorities of African people.

Furthermore, a fact often forgotten is that customary law governs the majority of African people’s private lives in explicit and implicit ways. The South African Constitution in section 211(3) and the Constitutional Court in cases such as Bhe, Shilubana and Alexkor, have recognised living customary law as a source of law for South African people. How then can we justify the neglect of African legal theory which is the basis of African customary practice (also disproportionately de-emphasised) in our legal education?

Himonga and Diallo define decolonisation in the context of legal education in their work Decolonisation and Teaching Law in Africa with Special Reference to Living Customary Law (Himonga and Diallo, 2017: 1-19). They argue that it is “a move from a hegemonic or Eurocentric conception of law connected to legal cultures historically rooted in colonialism (and apartheid) in Africa to more inclusive legal cultures” (Himonga and Diallo, 2017:5).

They also argue that “future lawyers and judges need to have an understanding of important aspects of this customary law, including its conceptualisation, its methodology in a broad sense, and its development as a system of law within African constitutional frameworks… Unless customary law is taught in law faculties it will die” (Himonga and Diallo, 2017:9-10).

As calls for the decolonisation of law grow louder and the country’s LLB curriculums fall under heightened scrutiny, the South African legal academy would do well to acknowledge that without a deliberate effort made to include African conceptions of law in legal education, we will fail to preserve and promote that law, and by extension, fail to cultivate legal practitioners suited to do the hard work of law in Africa. DM