Justice is about balance, both within the community and within the cosmos. Rather than being based on rights, justice is based on life itself as it is lived in a community.
There are two words associated with justice in Luganda language in Uganda: bwenkanya and mazima. Bwenkanya means the capacity to equalise. The same word is found in various forms throughout the Great Lakes Region among the Bantu people. The root – enkan – is used to denote equal things.
So, justice understood in this way would mean equal treatment for all, and a judge is just (mwenkanya) if he listens and gives a judgment without favouring any side. Proverbs that recommend impartiality in judgment are many. The Mongo of the Democratic Republic of Congo say: “The knife is not sharpened only on one side”.
The judge, who is called mulamuzi (Luganda) from kulamula (to rule), should listen to both sides. This impartiality is applied even in the case of the relatives of the judge: “You are relatives of the medicine-man but not of the medicine”, as the same Mongo say. The judge should never be taken by emotions: “Do not decide the girl’s case until you have heard the boy’s”, as the Baganda say, knowing that it is not always the weak that are in the right, even if they plead their cases weeping.
In traditional Africa, judgment in the juridical sense is like cutting something and giving each one his/her due. The Luganda expression for giving a verdict is “kusala musango”, literally meaning to cut or split the case. In Lwoo, Uganda, the judge is called “lang’ol kop”, the one who “cuts or splits cases”. The case is conceived as a whole, and judgment in this case means each one getting the part due to him or her. In this sense, “equalising”, bwenkanya means each getting a fair share, many times according to his/her status, age, sex and role in society.
True, in Africa, the law is not the same for all, even if there are proverbs like: “The rain does not fear anybody, it drenches even the mother-in-law” (Ntomba of the Dem. Rep. of Congo).
It sometimes happens that kings, heads of clans, princes or prominent elders are blamed privately by their counsellors but it is very rare that they are taken to courts of law to plead their cases before their subjects. There is a “differentialistic” logic in the conception of justice as an ethico-juridical criterion in the distribution of rights and duties, of goods and social responsibilities. This is a proportional justice. The basic anthropological vision considers people as naturally equal but socially different.
As John Mbiti, a Kenyan philosopher and writer in “African Traditional Religions and Philosophy”, points out, never or rarely does a person or being of a higher status do what constitutes an offence against a person of a lower status. What is considered evil or offensive functions from a low level to a high level, except for a few cases, where something is considered to be evil not because of its intrinsic nature but by virtue of who does it, to whom and from which level of status.
According to this way of thinking, an offence is committed against the community and it can mean disaster to the whole community. Justice is, in the last analysis, balance in the community and in the cosmos. The question of status leads us to the second meaning of justice, mazima, which is often translated as truth. It is cognate to life (buzima) for the Bantu of the Great Lakes Region.
When one is referred to as wa mazima (man/woman of truth), it can mean that the person in question speaks and admits the truth but it can also refer to a just judge. The truth here is connected with a judgement that takes into account the case committed and the hierarchical nature and status of the people involved. Professor Nkafu Nkemnkia, a Cameroonian theologian, in his book, Vitalogy says: “The problem of truth concerns the life of mankind. To seek the truth means to seek the meaning, to know the value of every single thing, to understand life”.
Justice is based not on rights but on life itself as it is lived in a community. Physical health is also a decisive factor in deciding whether one is guilty or not. The case of poison ordeals is well known throughout Africa.
Joshua Ssempebwa, a founder, evangelist, and senior pastor at Agape Intentional Family Church in Kampala, Uganda, has this to say: “…there are two interesting points here to note. Firstly, within the trial procedure itself there is a sense of fairness each party undergoes the same ordeal; and secondly, the ideal of human vitality plays a very important role, in that it is the party whose life or health (bulamu) displays more vitalism in the sense of being well and fit, the party which has more resistance and endurance, which wins the case. To have all these qualities was a necessary condition of being able to go through the ordeal successfully. In the Ganda view, such qualities of human vitality contributed greatly to the moral worth of a person and it is this person who won the case. (J. W.Ssempebwa, African Traditional Moral Norms and Their Implication for Christianity. A Case Study of Ganda Ethics).
Life comes from God through the ancestors, and faith in the justice of the decision by ordeal was absolute, being based upon the participation of the ancestors through the office of a specialist. Another reason for the intervention of the ancestors in the administration of justice is the motive or intention.
Any action done with a sense of responsibility to the societal interests can be said to be of good motive. And one who does something judged as bad without intending it, save the case of wizardry, cannot be punished in the same way as one who commits evil intentionally. Motive is essential to moral evaluation, yet man has no direct access to the motives of moral agents. This is where the spiritual world comes in because it is omniscient.
Justice is a value in African cultures, but wisdom is realistic in pointing out that injustice exists in society and that quite often, power defeats justice. The Peul of Niger say: “The golden ring is not put in every perforated ear”, to mean that the value of justice is not in the heart of every person. And the Rwandese say: “The master orders the dog to catch the beast but not to eat it”. Here, African wisdom reveals a universal phenomenon: justice is often in conflict with politics. Such proverbs and many others indicate that African wisdom is not blind to the plight of the individuals who suffer under communitarian and hierarchical social structures. (Edward Kanyike) – (File swm)
