Lecture IV: PRELIMINARY OBSERVATIONS

The Nature of Pre-capitalist societies

In pre-capitalist societies, there existed different modes of settling disputes . These

The pre-capitalist society we are talking about here is that one which is less
structured and articulated and social organization is based on kinship . A society in
where the running of public affairs is a matter of concern for the whole community
which is characterized by equality. In this society public power therefore is not
institutionalized but rather a function of the social organization as such . Social rules
in this society are reflected in long experience in those modes of behavior necessary
for the reproduction of social life and for group survival in their struggle with nature .

The social rules in a pre-capitalist society are in the form of customs and are mainly
expressed in religious forms of social consciousness and taboos . Sanctions for their
violation in this society are not implemented by the use of coercive power but
reactions of the whole society , for example, by declaring a deviant individual an
outcast. In this society disputes are settled amicably and the end result is
compromise rather than confrontation.

In a pre-capitalist society land is mainly valued for its use , that is, it has use value
and is the major means of production . Land disputes, therefore, in such societies
normally involve the question who has the legal right to use this land ? But this
question is not asked in the abstract.
The issue will come before the relevant institution involved in settling the dispute
because A claims that he has the right to use the land, but B has dispossessed him.
He claims that he has a better right to use the land than B and the basis of this
claim is that either he has been in possession of the land before B. or has inherited
it or has cleared it from the bush. All the dispute resolution institution be it a
council of elders or a village committee, has to decide who, as between A and B has
a better right to possess the land.

The dispute settlement institution does not have to decide, nor is it necessary in that
society to decide whether A is the "owner" of the land, in any absolute sense, that is
to say, they do not have to decide whether A has the right to the land as against
the whole world. The concern is not "absolute ownership" but possession. The
question of absolute ownership of land in that society does not arise as land is
communal (common) property and every person has access to it.

It is possible that a person, say X, will later come along and be able to prove that he
or his family, have better right to possess the land. Thus even A's right to possess is
relative. Land rights in such society are relative, and depend upon who is suing
whom for trespass. Furthermore, it is almost impossible to distinguish between the
law of property and the law of tort . The right to possession-the main proprietary
right in such a society-is protected by an action by one person against another for
the wrong of possession.

Most African societies still retain some of these features although their traditional
structures were largely affected by the imposition of alien systems of law through
colonization. To a large extent customary rules and institutions co-exist with modern
institutions of government. For example in some areas of rural Zimbabwe and even
Tanzania, compensation in the form of a human being to the family of a slain
person from the family of the murderer is still being.
Methods and procedure of Customary Dispute Resolution

Let us examine, by using some few examples, the methods and procedures of
dispute resolution under the customary dispute settlement system.

i). Mediation and conciliation

Dispose falling under this head were sort of "private" in nature and mediators lead
the parties in reconciling their differences . Gulliver in his book Social Control in an
African Society (1963) writes of the Arusha. He describes a dispute between Kadume
and his father's half-brother, Soine. The following is an example of a dispute in
which the conflicting parties had negotiated strongly against one another. In this
instance the disputants were members of the same inner lineage each attempted to
use the cause of continued lineage unity and the value of the restoration of agnatic
cooperation as a lever against the other. Let us now discuss the dispute.

The Kadume Case

The Kadume dispute concerned land. It was a dispute between Kadume – Makara’s
son, and Soine- Makara’s half brother. Both Kadume and Soine took advantage of
the inner lineage of Mesuji. They therefore aimed at restoring the agnatic
cooperation established by Mesuji.

Kadume's mother had separated from Makara ten years before the dispute arose.
She took her son Kadume and went to live in her brother's home-Kadume's uncle.
Makara's life depended on his half brother - Soine and Soine's wife. On the death of
Makara, Soine took Makara's land. Kadume got married and was given two heads of
cattle and three goats from the estate of Makara. Kadume agreed with Soine that
Kadume herds would graze at Makara's paddock. Kadume was therefore accepted as
one of the members of the inner lineage.
One year after the grazing agreement, Kadume claimed possession of all of his
father's land. Soine refused and a quarrel ensued between them. Soine barred
Kadume altogether from grazing his herd in Soine's paddock. Kadume went to the
lineage counselor to present his case.

The lineage counselor convened the inner conclave of the inner lineage. Further
quarrels ensued and the inner conclave failed to reconcile the disputants. Soine
argued that Kadume has no right over the land because he had not cultivated it.
Soine further argued that since the time Kadume's mother deserted her husband
Makara, Soine had been looking after Kadume and that Kadume has already
acquired land in his uncle's farm while Soine has got only a small plot of land. The
lineage counselor decided in favor of Soine. Kadume was aggrieved with the
decision and insisted that the lineage counselor should convene the internal moot.

At the internal moot Kadume was represented by Kirevi. Kirevi argued that Kadume
was the only adult son of Makara and because he was now a big man-olokitok, and
had inherited Makara's animals, he should also inherit the land. Soine reiterated his
former position and advanced the same arguments he had presented at the
conclave of the inner lineage and emphasized that he had shortage of land, so he
should take the disputed land. Kadume cautioned that in principle "Brothers do not
inherit, sons do. That is a custom of long ago". Soine answered back, "Not always".

Kirevi stood up and advanced three principles:

1. That Soine in refusing to give the land to Kadume was going against
established customs of the ancestors,
2. That Soine must honor the young generation for they will not honor him
when he is dead, and
 3. That Kadume having come of age should be given full responsibility to look
after his own life.

These arguments met with approval from among the members with a word by the
lineage counselor that sons should honor their elders irrespective of what wrong the
elders do to them. This was further reinforced by Olamal, Kadume’s paternal cousin
that Kadume should be given responsibilities as a full and grown up member of the
family and that norms should be honored.

The internal moot finally reached a conclusion after examining all the evidence and
relevant facts and divided the land into two in which both Kadume and Soine got a
share. The internal moot retired for beer in a cordial way and members
congratulated each other for the final settlement of both makara’s inheritance
matters and the land dispute.

 What procedure led up to the settlement of the dispute in Kadume’s case?

What things were taken into account in reaching the result?

On what ground did Soine claim the land? On what ground did Kadume?

What was the end result of the dispute? Did the ‘litigants’ in Kadume’s case accept
the final result of the dispute because they both were persuaded that it was a
reasonable one, or were they in any way ‘forced’ to accept it?

ACTIVITY

Now read the following materials in your course unit cases and materials manual
and try to contrast the types of dispute settlement they illustrate with the one used
in Kadume’s case.
ISSACK s/o NGUVUMALI y. PETRO BIKULAKO (substituted by MIALIKWA s/o
BIKULAKO) [19721 H.CD no 139

KAPASYU y. MWANDJLEMO [0968] H.CD no. 88

In reading these two cases try to find the following:-

1)        The name of the parties

2)        Relationship of the parties

3)        What gave rise to the litigation?

4)        The stages involved in the instituting of the proceedings , that is, the rules
and procedures

5)        The institution which dealt with the litigations at their various stages

6)        The different roles played by the people involved in deciding the cases

7)        The final outcome of the cases, that is, the end result

ii). Contests

Drumming the scandal

This dispute ensued in 1950 between Torgindi of Mba Yar and Mtswen of MbaGishi.
Both were of the lineage contained within MbaDuku. Mtswen who was the
secondary marriage guardian of the wife of Torgindi's son, was accused of
highhanded tactics that caused the marriage to fall through. Mtswen refused to act
as an intermediary to get Torgindi's bride wealth refunded. Torgindi and Mtswen
therefore exchanged harsh words.
Torgindi went home and sung a song in which he said that Mtswen was a skunk.
During the night, Torgindi drummed and sang the song as loud as he could for the
whole countryside to hear. Mtswen, who lived only a quarter a mile away, did the
same the next night and all the members of his compound and other compounds of
his lineage joined in the chorus.

Mtswen had not made up a song of his own against Torgindi, but was not a good
song maker. He hired the best song maker in Sangev Ya to stay at his place and
compose scurrilous songs about Torgindi and all his kinsmen and wives. Torgindi's
inventiveness was also exhausted so he too hired a song maker. The two men held
dances and song contests every night. Each brews beer and made food in order to
attract dancers to come to dance and sing songs directed at the other.

There was a specific rule for these songs that:

“If an act attributed in such a song was possible of human performance, it should be
true, or the slandered person could call a jir (a kind of supernatural powers).
However, if the act was not humanly possible anything could be said.

For example in one of Mtswen's songs, he accused one of Torgindi's wives of

In another song Mtswen told how Torgindi changed himself into a pig at night and
made it unsafe for every sow in the countryside. Torgindi could not actually do that
hence such song could not be the basis for a jir.

The Sangev songmaker had actually thought of some much worse things to suggest
that it was in Torgindi's nature to do but Mtswen had stopped him because what he
wanted was to win the content and not to spoil Torgindi's heart permanently as they
were after all neighbors.

The drumming contest continued every night for more than three weeks before the
mbatarev (village elder) one Change took notice. Change decided that if the contest
was allowed to continue as such it will end up into a fight for which he himself
would be answerable to the District Officer. Change made a note to both Mtswen
and Torgindi that they and their people were to come to his compound the
following afternoon, and both would sing and drum and he Change, as the
mbatarev would decide the case.

Both sides came fully prepared. Torgindi's group dragged a large drum for two and
a half miles in order to accompany their songs and dances. Mtswen song maker and
one of his sons hurried across to Udem and bought two small wooden figurines of
the sort the Udam people use in divination a small black male and a large red
painted female. The black represented Torgindi who was small and a very black man
and the red was his wife who was tall, fat and light coloured. These figurines were
tired together at the top of a long pole in a somewhat compromising position and
were waved frantically in accompaniment to all the songs.

Mbatarev walked back and forth between the two performing groups, noting the
performers and the songs. After two hours he called for attention and said that they
would now hear the jir. Torgindi began his story. The man carrying the two figurines
put them up in the air and waived them a roar of laughter followed. Change took
the figurines from the offender and put them under his chair until the hearing was
over.

Both parties concurred in the judgment. Mbatarev announced the winner of the
song contest. Torgindi won the case and Mtswen had the better songs. He then
advised both song makers to go home immediately and not to return to MbaDuku
for a couple of months until the feelings which had been aroused had died down.

What considerations made the two disputants quite keen to arrive at a compromise?

iii).Ordeal

Rex V Palamba s/o Fundikira 14 EACA 96 (Tanganyika, 1947)

This was a trial by ordeal to discover who had by witchcraft caused the death of the
eleven children of the first appellant in this case. The two appellants were jointly
charged in the High Court of Tanganyika at Kigoma and were found guilty of the
murder of a woman one Warnlunda d/o Kulyungumba, the senior wife of the first
appellant.

The two appellants went to a traditional medicine man (jujuman), a six hour journey,
to get certain traditional medicine called by the witness "MW AVI ". The traditional
medicine man had since died. The MWAVI is a medicine (mtisharnba) used by
witches. If a person takes it and he has done something wrong he will die , whereas
if a person takes it and he or she has not done anything wrong, he or she does not
die but only vomits.

Four women of the family of the appellant were compelled to take this "medicine"
and to swallow large quantities of water. A certain amount of formality was being
observed during the swallowing, with the first appellant presiding with a gun and
intimating that anyone refusing to take the "medicine" would be shot. Of the four
women who took the "medicine", two vomited and survived; the two older women
did not vomit and they died. All four women were in good health before the
administration of the "MWAVI".
 The body of Wamulanda to whom the murder charge relates was apparently burnt
after death so no post-mortem examination could be made to ascertain scientifically
whether she had died as a result of taking MWAVI or not. Except that MWAVI was
administered to each woman by mouth in powder form on the of a knife there was
no evidence at all as to what would constitute a fatal dose of MWAVI, so no proper
proof that the woman died as the result of the dose of MWAVI given to her. Even
on hearsay evidence MWAVI according to local lore of itself is not a fatal poison-it
requires, in order to be fatal, an additional element, namely the guilt of the person
taking it, that is, guilt of witchcraft.

So far as the court was concerned, Wamlunda was innocent of witchcraft for it does
not exist. On this basis, the first appellant ex-hypothesis, believed that the
administration of MWAVI to a person innocent of witchcraft would not cause death
hence this negativated his malice aforethought as per section 200 of the Penal
Code, for the intent to cause death or the knowledge that the act will probably
cause death were absent. The appeal was allowed and conviction and sentences
were quashed.