Afrika’s Earliest Judicial System

These self-governing people did not have a Utopian society in any idealistic sense

In the chiefless states the function of the elders was wholly advisory. For this reason they rarely ever met as a council. A council meeting might be called by the Senior Elder in case of extreme emergency. Matters involving members of the same family or clan could be settled by the family council, each family or clan having its own elder. Conflicts between families or clans could be brought before any mutually acceptable elder for settlement. The elder’s judgment was not binding on the parties to the dispute. This was the constitutional theory. If the case was “big” and serious and the disputants were dissatisfied with the elder’s decision regarding it, they could call in one or more additional elders to hear and pass on the case. Their decision was also advisory and could be disregarded by the parties to the action. Yes, the elders’ advisory judgments could be ignored under ancient African constitutional law.
Yet under practical operation of that same constitution, the disputants could ignore their elders’ judgment only at their peril . For to ignore the elders was considered to be ignoring the community itself. The only exceptions to this were those cases where the elder or elders rendered an obviously bad decision. Even then it was not left to the contestants to say whether the judgment was good or bad. The community decided, because the community was thought to be represented in the ever-present crowd at such hearings. They, the people present, always indicated their attitude by expressions and nods of approval or disapproval of decisions reached .

The constitutional theory and principle here are especially significant because of the important form they took in all African societies in every part of the continent as they evolved from societies without chiefs to centralized states under chiefs, kings, and emperors. In this continent-wide constitutional development the chief or king became the mouthpiece of the people and the instrument for carrying out their will.
They still had no “ruler” in the Asian and European sense. On questions in dispute, he was in the same position as litigants in the chiefless states. Like them, under the constitution, he had absolute power in theory, and in theory he could ignore the Council and do exactly as he pleased.
But in practice, like the disputants, he did not dare defy the Council of Elders, which also had evolved and become “the people”-their direct representatives.

Africans generally prefer to dwell on the constitutional theories and not the constitutional practices. They proudly speak of the freedom and absolute powers of the chief or king.’ Some will even tell you that the king “owned all the land” in the country. They are not trying to deceive. Words of another language often fail to translate the people’s concepts or meaning. When they say the king is supreme or has absolute power they mean that he has absolute power to carry out the will of the people. It was so well understood that supreme power rested in the people that it was never thought necessary to state such a fact. Likewise, they would say, and say proudly, the king “owns all the land in the country” since everybody but a fool knew that he didn’t, that nobody owned the land (again in the Western sense), and that the king’s role was that of custodian and overseer, his principal duty being to see that the land was
fairly distributed among all families.


In the chiefless society the elders were the overseers of land distribution to families. Finally, nothing contributed more to the efficiency and success of self-government without governors than the system wherein each age grade was responsible for the conduct of its members, and that before any misconduct could reach one’s age-grade council it was handled by his family council. This never meant leniency . It meant the very opposite, because each family was jealous of its honor and image in the community, and any member whose behavior reflected unfavorably on the family would be in trouble with their own family first of all. The result of this was that the age-grade councils rarely ever had a case and, obviously, this self-government, beginning with the basic social unit, the family, radically reduced the number of cases that went before the elders. Stated another way, each family policed itself, each age group policed itself, so that there was little or nothing that the community as a whole had to do . Each group elected its own leaders. These met with other age-grade leaders on community matters that cut across age-grade

It was therefore in the societies without chiefs or kings where African democracy was born and where the concept that the people are sovereign was as natural as breathing . And this is why in traditional Africa the rights of the individual never came before the rights of the community. Individual freedom was unlimited until it clashed with the interests or welfare of the community. This is also why the evolution to a highly centralized state still found the king under communal law, not above it, and definitely unable to do as he pleased.

These self-governing people did not have a Utopian society in any idealistic sense. Theirs was a practical society in every way. The laws were natural laws, and order and justice prevailed because the society
could not otherwise survive. Theirs was, in fact, a government of the people; theirs was, in fact, not a theory, but a government by the people; and it was, in fact, a government for the people. That this kind
of government did “pass from the earth” is another fact we now call “modern progress .”

We shall note later the impact of some of the developments previously mentioned on the traditional constitution, particularly as it operated in the reestablished, centralized “migratory” states. Meanwhile, it might be well if we single out some of the key provisions of that constit5tion ; for, again, the aim is to set forth-and set forth in specific terms-the actual all-African institutions that all Africans lost and of which their descendants do not have even a memory . One of the world’s greatest constitutional systems was one of their tragic losses.

Excerpt from Chancellor Williams book “The Destruction of Black Civilization” –


Written by Vizion Jones



Written by PH

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