by Iswamo Kapalu

“African solutions to African problems.” Usually, when you hear those words, they come from a leader who was or is about to be found on the wrong side of the law. The implication is that the solution that has been arrived at isn’t “African.” Very often they are right.

The legal system used for most big problems is imported. In South Africa the dominant system is a mixture of Roman-Dutch and English – with a little liberal constitutionalism thrown in for good measure. Although the Constitution recognises indigenous African customary law, it affects very little public life. It is usually used only to settle the private disputes of those who live in traditional communities.

This is not to say that Roman-Dutch law, constitutionalism and the individualistically conceived ideas of “human rights” are bad. They are just not “African.”

The difficulty with “African solutions,” or at least the process and philosophy by which they are arrived at, is that outside experience they are quite difficult to define. This is both a strength, in that it offers flexibility, and a weakness, in that it is the exact kind of vague idea that is open to abuse.

Five hundred years ago the experience necessary to determine what it is that constitutes an “African solution” and what doesn’t would not have been difficult to come by. Sadly African history, philosophy, development, and thought were interrupted by the five hundred or so years that followed. In this time foreign ideas, languages and philosophy were artificially universalised – usually violently.

What remains now is a body of thought that is known by some, understood by few, and has its virtues either exaggerated by those who wish to abuse it, or diminished by those whose narratives of “the saved dark Africa” are threatened by its existence.

In the field of law and politics, understanding and developing the indigenous, African body of thought- with its philosophy, and its approach to societal organisation and dispute resolution are important. Not only to counter what we deem to be wrong with the ways of thinking that were bequeathed at gunpoint by a colonial history, but so that we ourselves can learn this body of thought to know what it is and know when it’s being abused to, for example, avoid accountability for building a palace among shacks.

Further, it will bridge the “cultural gap” that exists in law that is written in Cape Town and the law that is lived in Hlankomo. This will promote the rule of law, not by normalising “Western” laws, but by building the body of African solutions that have the weight of culture behind them.

The development of African thought, philosophy, law and politics will require us to create the space for these ideas. To do this we will need to critically investigate what, of what we know, is in fact “true” and “good,” and what was made “truth” and “goodness” by culture and forced assimilation. In doing so we must resist the temptation to romanticise and reinstitute the body of thought as it existed before colonisation. Instead, what we must do is develop African thought, philosophy and living for the African who lives today.