African Philosophical Values and Constitutionalism: A Feminist Perspective on Ubuntu as a Constitutional Value by Ilze Keevy Thesis submitted in fulfilment of the requirements of the degree DOCTOR LEGUM Faculty of Law University of the Free State Bloemfontein 2008 Promotor: Prof. A.W.G. Raath DEDICATION I dedicate this study to my father, Dr Clyde Matthew Keevy, the most magnificent bull elephant in all Africa. -“for allowing me to be your equal”- Before one appoints oneself as judge of any race of man on earth, one must have a thorough knowledge of the religions and beliefs of that particular race. Mutwa (1998: 552) 2 ACKNOWLEDGEMENTS As this thesis has grown from my immense love for the African continent and my belief in human rights for all, I would, firstly, like to thank God for placing me on this vibrant continent. Secondly, I would like to acknowledge my supervisor Professor A.W.G. Raath for his advice, encouragement and intellectual input in this study. In addition I give sincere thanks and appreciation to the following persons: • My family - my best friend and husband, Nic van Zyl, who has been my source of inspiration and encouragement throughout this study. My sons, Johnahan and Matthew, for their support and doubling up on all the chores. My father and especially my mother, Dalene Keevy, my rock in life, for always believing in me. My brothers, Clyde and specifically Albert, who has always been there for me. • My friend, Constanze Bauer, whose encouragement, time and advice are highly valued. • I wish to express my sincere thanks and appreciation to Paul Kluge, Nanette Lötter, Hesma van Tonder, Reinette Pelser and in particular Christopher Mokhitli for their invaluable assistance in making this study possible. 3 DECLARATION I hereby declare that African Philosophical Values and Constitutionalism: A Feminist Perspective on Ubuntu as a Constitutional Value handed in for the qualification LLD at the University of the Free State is my own independent work and that I have not previously submitted the same work for a qualification at/in another university/faculty. I also concede copyright of my work to the University of the Free State. 4 TABLE OF CONTENTS DEDICATION........................................................................................................ 2 ACKNOWLEDGEMENTS .................................................................................... 3 DECLARATION .................................................................................................... 4 TABLE OF CONTENTS ....................................................................................... 5 DEFINITIONS ..................................................................................................... 10 ABBREVIATIONS .............................................................................................. 15 CHAPTER ONE .................................................................................................. 16 INTRODUCTION ................................................................................................ 16 1.1 INTRODUCTION .............................................................................................. 16 1.2 PROBLEM STATEMENT ................................................................................. 20 1.3 MAIN AND SUPPORTING GOALS OF THE RESEARCH................................ 22 1.4 RESEARCH METHODOLOGY ........................................................................ 24 1.5 CHAPTER OUTLINE ....................................................................................... 25 1.6 KEY CONCEPTS ............................................................................................. 27 CHAPTER TWO DECONSTRUCTING WESTERN PHILOSOPHY’S RELATIONSHIP WITH THE AFRICAN OTHER ................................................ 33 2.1 INTRODUCTION .............................................................................................. 33 2.2 BACKGROUND ............................................................................................... 38 2.3 CLASSICAL GREEK PHILOSOPHY: A PHILOSOPHY OF PREJUDICE ........ 42 2.4 WESTERN PHILOSOPHY: A PHILOSOPHY OF PREJUDICE ........................ 48 2.4.1 Western Philosophy: a Definition 48 2.4.2 Western Philosophy and the Other 51 2.4.3 The Synonyms: White Women and Africans 55 2.4.4 Opposing Worldviews 60 5 2.5 WESTERN PHILOSOPHY: A PHILOSOPHY CONDONING RACIAL PREJUDICE ..................................................................................................... 62 2.5.1 Background 63 2.5.2 Racial Prejudice and Slavery 65 2.5.2.1 Chattel Slaves from Africa 66 2.5.2.2 African Slave Traders 69 2.5.2.3 Slavery and Justice 70 2.5.2.4 Western Philosophers Condone Slavery 71 2.5.3 Racial Prejudice and the Enlightenment 74 2.5.3.1 Background 74 2.5.3.2 The philosophies of Hume, Kant, Hegel, Voltaire, Montesquieu and Rousseau 76 2.5.3.2.1 Hume 76 3.5.3.2.2 Kant 77 2.5.3.2.3 Hegel 79 2.5.3.2.4 Voltaire 81 2.5.3.2.5 Montesquieu 82 2.5.3.2.6 Rousseau 83 2.5.3.3 The Contradictions of the Enlightenment 84 2.5.4 Racial Prejudice and Colonialism 89 2.5.4.1 Background 90 2.5.4.2 British Colonial Rule 95 2.5.4.3 Portuguese and Belgian Colonial Rule 99 2.5.4.4 French Colonial Rule 103 2.5.4.5 German Colonial Rule 104 2.5.4.6 Racial Prejudice and the Christian Civilising Mission 108 2.5.4.6.1 Background 108 2.5.4.6.2 Missionaries, African Culture and Values 110 2.6 AFRICAN LAW VERSUS CUSTOMARY LAW .............................................. 118 2.6.1 African Law 118 2.6.2 Customary Law 122 2.6.3 Colonial Laws and Justice 126 2.7 APARTHEID .................................................................................................. 128 2.7.1 Perpetuating Colonial Philosophy 129 2.7.2 Justifying Unjust Laws 132 2.8 THE LINGERING INFERIORITY COMPLEX .................................................. 135 2.9 SUPERIOR VERSUS SUBHUMAN ................................................................ 139 2.9.1 Background 140 2.9.2 Different Worldviews 141 2.10 CONCLUSION ............................................................................................... 148 CHAPTER THREE AFRICAN PHILOSOPHY: MYTH OR REALITY?........ 152 3.1 INTRODUCTION ............................................................................................ 152 3.2 THE DEBATE ON AFRICAN PHILOSOPHY .................................................. 155 3.2.1 Does Africa Have a History of Philosophy? 159 3.2.1.1 Background 159 3.2.1.2 The Oral Tradition 160 3.2.1.3 The Written Tradition 162 3.2.1.4 Africa’s Ancient Origins of Philosophy 166 6 3.2.2 Do Africans Possess the Ability to Philosophise? 167 3.2.2.1 I Think therefore I Am 168 3.2.2.2 I Feel Therefore I Am 170 3.2.2.3 Emotion versus Reason 174 3.2.2.4 Opposing views 179 3.2.3.1 The universalist view 182 3.2.3.2 The traditional or particularist view 184 3.2.3.3 African philosopher: a definition 186 3.2.3.3.1 Critique of the definition 188 3.2.3.4 African philosophy: a definition 191 3.3 ORUKA’S SIX TRENDS IN AFRICAN PHILOSOPHY .................................... 193 3.3.1 Ethnophilosophy 195 3.3.1.1 Tempels’ Bantu philosophy 196 3.3.1.2 The Trend Ethnophilosophy 198 3.3.1.3 The Critique of Professional Philosophers 203 3.3.1.4 The Critique of African Feminists 208 3.3.1.5 Optimism about Ethnophilosophy 211 3.3.2 Philosophical Sagacity (Sage Philosophy) 214 3.3.2.1 Background 215 3.3.2.2 Sage Philosophy and Sages: Definitions 216 3.3.2.3 Types of Sages 218 3.3.2.3.1 Folk sages 218 3.3.2.3.2 Philosophical Sages 219 3.3.2.4 Critique of Sage Philosophy 220 3.3.2.5 Optimism about Sage Philosophy 223 3.3.3 Nationalist-Ideological Philosophy (Political Philosophy) 224 3.3.3.1 Background 224 3.3.3.2 Oruka and Nationalist-Ideological Philosophy 225 3.3.4 Negritude and Nationalist-Ideological Philosophy 228 3.3.4.1 Background 228 3.3.4.2 The Negritude Trend 229 3.3.4.3 The Critique of Negritude 230 3.3.5 Professional Philosophy 233 3.3.5.1 Background 233 3.3.5.2 Professional Philosophers versus Traditionalists 234 3.3.5.3 Critique of Professional Philosophy 236 3.3.6 The Hermeneutical Trend 241 3.3.7 The Literary Trend 244 3.3.8 Alternative Trends in African Philosophy 245 3.3.9 A Feminist Perspective 247 3.4 IS PHILOSOPHY A UNIVERSAL ENTERPRISE? ......................................... 248 3.4.1 Academic Reality 250 3.4.2 The Universal Truth 253 3.4.3 Is there an African philosophy? 256 3.5 CONCLUSION ............................................................................................... 258 CHAPTER FOUR UBUNTU: THE ROOT OF AFRICAN PHILOSOPHY ....... 265 4.1 INTRODUCTION ............................................................................................ 265 4.2 BACKGROUND ............................................................................................. 271 7 4.3 THE SOUTH AFRICAN CONSTITUTION AND UBUNTU............................... 272 4.4 SOUTH AFRICAN CASE LAW AND UBUNTU .............................................. 275 4.4.1 The Constitutional Court and Ubuntu 276 4.4.1.1 S v Makwanyane and Another 276 4.4.1.2 Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others 287 4.4.1.3 Hoffman v SA Airways 289 4.4.1.4 Port Elizabeth Municipality v Various Occupiers 290 4.4.1.5 Dikoko v Mokhatla 292 4.4.1.6 BHE v Magistrate Khayelitsha and Others; Shibi v Sithole; South African Human Rights Commission and Another v President of the Republic of the Republic of South Africa and Another 297 4.4.2 The Supreme Court of Appeal and Ubuntu 303 4.4.2.1 Baloro and Others v University of Bophutatswana and Others 303 4.4.2.2 Pharmaceutical Society of South Africa and Others v Tsabalala-Msimang and Another; New Clicks South Africa (PTY) LTD v Minister of Health and Another 304 4.4.2.3 Wormald NO and Others V Kambule 305 4.4.3 The High Courts and Ubuntu 307 4.4.3.1 Stagnation of Ubuntu values 307 4.4.3.2 Pharmaceutical Society of South Africa and Others v Tsabalala-Msimang and Another; New Clicks South Africa (PTY) LTD v Minister of Health and Another 308 4.4.3.3 City of Johannesburg v Rand Properties (PTY) LTD & Others 309 4.4.4 Ubuntu as Constitutional Value 311 4.5 UBUNTU: A DEFINITION .............................................................................. 317 4.6 UBUNTU: AFRICA’S PHILOSOPHY OF LIFE ............................................... 319 4.6.1 Ubuntu: a Shared Value and Belief System 322 4.7 UBUNTU AS AFRICAN COMMUNITARIANISM ............................................ 326 4.7.1 Ubuntu as African Communalism 327 4.7.2 Ubuntu as Extended Family 330 4.7.3 Ubuntu as Solidarity 334 4.7.4 Ubuntu and the Individual 335 4.8 UBUNTU AS AFRICAN RELIGION ............................................................... 342 4.8.1 African Religion 346 4.8.1.1 God 349 4.8.1.2 The Spirit World 351 4.9 UBUNTU VALUES ......................................................................................... 359 4.9.1 Ubuntu Values: Universal or Unique? 367 4.10 UBUNTU AS JUSTICE .................................................................................. 374 4.10.1 Ubuntu Justice and Maat 375 4.10.2 Justice and the Elders 379 4.10.3 Ubuntu Justice versus Western Justice 382 4.11 UBUNTU AS LAW ......................................................................................... 387 4.11.1 Ubuntu as Africa’s Constitution 388 4.11.2 Ubuntu, Status and Hierarcy 392 4.11.3 Ubuntu and the Other 397 4.11.4 Law and Community 399 8 4.11.5 Ubuntu and the Constitution 402 4.11.6 Religious Philosophies and the Constitution 406 4.12 THE VOICES OF THE FEMALE OTHER ....................................................... 410 4.12.1 African Women call for Human Rights 422 4.13 WHERE IS UBUNTU? ................................................................................... 426 4.14 CONCLUSION ............................................................................................... 432 CHAPTER FIVE ................................................................................................ 438 CONCLUSION .................................................................................................. 438 BIBLIOGRAPHY .............................................................................................. 468 ABSTRACT ...................................................................................................... 502 OPSOMMING ................................................................................................... 505 KEY WORDS .................................................................................................... 508 9 DEFINITIONS Alien: An alien is someone who has no right of entry to a state because such person is not a national of the particular state (Dugard, 2005: 295). Amende honorable: In terms of Roman Dutch law the amende honorable takes two forms: whereas in the case of palinodia, recantation or retraction the defamer has to withdraw the defamatory statement as being untrue, in the case of deprecatio the defamer has to deliver a public apology that he has wronged another. Closed society: According to Popper (cited by Broodryk, 1997: 88), a closed society is characterised by its belief in magical taboos and superstition whilst an open society gives preference to reason and reflects critically on taboos and superstition. Dichotomy: A dichotomy is a “division into two parts or classifications, especially when they are sharply distinguished or opposed” (Collins, 2004: 438). Ethnocentrism: When one sees one’s own culture as the norm and judges other cultures as sub-standard. In reaction to the superior attitude of Eurocentrism towards Africa, Africa developed its own kind of ethnocentric thinking called Afrocentrism. Genocide: Genocide involves the intentional mass destruction of entire groups or members of a group and is, according to the Rome Statute of the International Court, Act 27 of 2002, the most serious crime against humanity1 (Dugard, 2005: 180 -181). 1 Crimes against humanity are prohibited under7 a ortf. the Rome Statute of the International Crim inal Court. 1998. 10 Kaross: Collins (2004: 865) defines a kaross as a garment [or blanket] of skins worn by indigenous peoples in Southern Africa. Legitimacy crisis: The law should reflect the shared values of the majority of the society. If laws do not reflect the values of the majority of the society, the society may lose its belief and confidence in the legal system. Lekgotla: The lekgotla serves as a traditional parliament where communal solutions are sought and laws are made (Ramose, 2002{b}: 113). Ius taliones: This is a concept from Roman law which advocated retribution: an eye for an eye and a tooth for a tooth. If you lost an eye, however, you could only take an eye, not an eye and a tooth. Manichaeism: Manichaeism was as a system of religious doctrines taught by the Persian prophet Mani about the 3rd century AD. It was based on a supposed primordial conflict between light and darkness, or goodness and evil (Collins, 2004: 981). Morals: According to Collins, morals are principles of behaviour in accordance with standards of right and wrong (2004: 2051). Other: The philosophical category “Other” includes all the “different” or voiceless ones in the Western theory of ideas. Ramose (2002{b}: 1) states the voiceless ones or Other in Western rationality are Africans, African Americans and the indigenous people of Australasia. Western feminists, viz. de Beauvoir, Chodorow, Cornell and others include women in the category “Other”. Patriarchy: It is the rule of society by men. It usually means that women are regarded as a secondary, subordinate and inferior to men. 11 Philosophy: The word philosophy is derived from the Greek words philean (love) and sophia (wisdom): philosophia (love of wisdom). Literally translated, philosophy means the love of wisdom. “The term philosophy is often popularly used to indicate a set of basic values and attitudes towards life, nature, and society - thus the phrase ‘philosophy of life’ because the lines of distinction between the various areas of knowledge are flexible and subject to change, the definition of the term ‘philosophy’ remains a subject of controversy” (Internet {a}: 2007). Physionomics: This is the “basic and most destructive premise that physical variations in color and appearance not only result in ‘intellectual and moral differences’ among people groups, but that such differences account for or cause intellectual and moral differences” (Foutz, 1999: 9). Polygyny: Synonymn for Polygamy. Postmodernism: This is a modern philosophical trend and consists of deconstructing post-Enlightenment Western liberal thinking. Preamble (of a constitution): “A preamble is a solemn declaration which states the basic purpose of the Constitution. Its provisions are not binding, but may serve as a guide to the interpretation of the constitution” (Kleyn & Viljoen, 2006: 226). Racial discrimination: The International Convention on the Elimination of All Forms of Racial Discrimination 1969, art 1(1) defines racial discrimination2 as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of 2 The crime of apartheid has the status of a warec riinm terms of Additional Protocol 1 to the Geneva Conventions of 1949. The International Conventionn t hoe Suppression and Punishment of the Crime of Apartheid of 1973 declared apartheid a crime agt ahiunms anity. 12 human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. Art 4 obliges states to criminalise “all dissemination of ideas based on racial superiority” and “incitement to racial discrimination’. Racism: Collins (2004: 1335) defines racism as a belief that races have distinctive cultural characteristics determined by hereditary factors and that this endows some races with an intrinsic superiority. Reincarnation: This belief represents the following: (1) that on the death of the body the soul transmigrates to or is born again in another body. (2) The incarnation or embodiment of a soul in a new body after it has left the old one at physical death, the embodiment again in a new form, as of a principle or idea (Collins, 2004: 1368). Sage: A sage is “a man revered for his profound wisdom” (Collins, 2004: 1432). Oruka distinguishes between different sages in traditional Africa, viz. ordinary sages and philosophical sages. Syllogism: Collins (2004: 1649) defines a syllogism as follows: “a deductive inference consisting of two premises and a conclusion. The subject of the conclusion is the minor term and its predicate the major term, the middle term occurs in both premises but not the conclusion … some temples are in ruins; all ruins are fascinating; so some temples are fascinating is valid”. Theology: This concept embodies the following: (1) The systematic study of the existence and nature of the divine and its relationship to other beings. (2) The systematic study of Christian revelation concerning God’s nature and purpose. (3) A specific system, form, or branch of this study (Collins, 2004: 1693). 13 Values: According to Collins (2004: 2795), values are the moral principles or accepted standards of a person or group. Worldview: A person’s worldview or philosophy is based on the person’s belief and values. According to Broodryk (1997: 3), a worldview is a person’s comprehensive reality and gives orientation or direction to one’s life. Xenophobia: This phobia typifies a fear of strangers or outsiders. Colins (2004: 1892) defines xenophobia as a fear or hatred of strangers or foreigners or of their culture or politics. 14 ABBREVIATIONS AJ - Acting judge AJA - Acting judge of appeal CEDAW - Convention for the Elimination of Discrimination Against Women CJ - Chief Justice (head of the Constitutional Court) DJP - Deputy Judge President DP - Deputy President of the Constitutional Court FGM - Female genital mutilation, or clitoredectomy, represents the removal of part or all the external female genitalia HIV/AIDS - Human Immunodeficiency Virus / Acquired Immunodeficiency Syndrome J - Judge JA - Judge of the appeal JJ - Justices JP - Judge President NGO - Non-governmental Organisation P - President of the Supreme Court of Appeal PIE - Prevention of Illegal Eviction from an Unlawful Occupation of Land, Act 19 of 1998 PLWAs - People living with AIDS S - Section SAA - South African Airways SADC - Southern African Development Community. Sec.- Section STI - Sexually Transmitted Infection SWAPO - South West Africa People’s Organisation UN - United Nations UNICEF - United Nations Emergency Fund for Children VOC - Dutch East India Company 15 CHAPTER ONE INTRODUCTION 1.1 INTRODUCTION “In Africa, however, what we have to contend with are … multiple oppressions. In appropriating or critiquing culture, coping devices are discouraged as they only play into the patriarchal scheme. What we [women] seek are strategies for transforming attitudes, beliefs and practices” (Oduyoye, 2001: 12). In 1994, the Constitutional Court embarked, in classic Dworkinian style, on writing the first chapter of constitutional theory according to Dworkin’s metaphor of the chain novel. As prescribed in Dworkin’s Law’s Empire, each chapter, though written by different novelists or judges, should fit into the next in such a manner that it seems like the work of a single author. In Chapter One of the chain novel, the Constitutional Court embarked on entertaining “African law and legal thinking”3, as part of the Constitutional Court’s new democratic approach to jurisprudence.4 This was an essential step towards legitimising the Constitution for the new rainbow nation. In S v Makwanyane, the African concept of ubuntu was introduced in an effort “for courts to develop the entrenched fundamental rights in terms of a cohesive set of values, ideal to an open and democratic set of values”.5 Not only did the Court perceive ubuntu as “a notion with particular resonance in the building of democracy” but also that it formed “part of our 3 S v Makwanyane1 995(3) SA 391 (CC) par. 365 per Sachs J. Davisu saecsc Sachs J. of rejecting “a transformative legal enterprise that facilitatese tshcope od societal transformation and enhance s the democratic character of politics and informs paiprtaiction in all forms of social life”. See Davis, D20. 01. Deconstructing and reconstructing the argumenta f obri ll of rights within the context of South Afrinc a nationalism .In Andrews & Ellmann (edsT) he post-Apartheid constitution2s0. 5. 4 In S v Makwanyaniet was argued that “recognition should be giveno atols African law and legal thinking as part of the source of values which sec. 35 eo f1 t9h93 Constitution required Courts to promote”. 5 Ibid par. 302 per Mokgoro J. 16 rainbow heritage”.6 In S v Makwanyane, the Constitutional Court made a paradigm shift; it would no longer entertain only Western thought and jurisprudence but also African thought and legal thinking. Western philosophy and Western jurisprudence were fused with African philosophy and African jurisprudence into what Cockrell (1996: 1) terms, “rainbow jurisprudence”.7 In deconstructing the first chapter of the Constitutional Court’s chain novel it becomes evident that “ubuntu is a prized value” of traditional African societies (Mokgoro, 1998{a}: 21). Madala8 J and Mokgoro, (1998{a}: 22) maintain that African values of ubuntu are “in consonance with the values of the Constitution in general and those of the Bill of Rights in particular” and argues that “[s]ince the values of the Constitution and at least the key values of ubuntu seem to converge, indigenous law9 need to be aligned with these converging values” (1998{a}: 21). Although Chaskalson P indicated that “[c]omparative bill of rights jurisprudence will no doubt be of importance, particularly in the early stages of the transition when there is no developed indigenous jurisprudence in this branch of the law on which to draw”10, there is little evidence of such jurisprudential comparisons. Judges in subsequent chapters of the chain novel have been consistent in citing, not deliberating, S v Makwanyane’s passages concerning ubuntu. Whilst “[t]he object of each novelist [or judge of the chain novel] will be to produce a seamless text, one appearing to have been written by one author” (Van Blerk, 2004: 92), other legal sources, viz. Imbo (1998), Oduyoye (2001), Aidoo (1991) and others suggest the “seamless text” of the chain novel disguises the truth: ubuntu is clearly not in line with “the Constitution in general and the Bill of Rights in particular”. 6 Ibid par. 308 per Mokgoro J. 7 See Cockrell’s definition of “rainbow jurisprudeen”c in 1.6. Key Concepts: values. 8 SeeS v Makwanyane ibipda r 237. 9 Sachs Ji b( id par. 383) emphasises that many aspects and vafl utreasd iotional African law will have to be discarded or developed in order to ensure compliatyt iwbiith the principles of the new constitutionoarld er. 10 Ibid par. 37. 17 Section 35(1) of the 1993 Interim Constitution and sec. 39(1) of the 1996 Final Constitution require that when interpreting the Bill of Rights, courts must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. Since S v Makwanyane, the Constitutional Court has embarked on the novel mission of fusing Western thought and jurisprudence with African thought and jurisprudence as part of the source of values of South Africa’s new democracy. Thanks to the Court’s newly found “rainbow jurisprudence”, or “silent diplomacy”, African philosophical values have not been deliberated in depth in Court. In his critique of the lack of jurisprudential rigour in S v Makwanyane, J.W.G. van der Walt (2005{b}: 253) argues that, a rigorous jurisprudence must remain dissatisfied with the feel-good flavour of a jurisprudence that has done little more than add a local, indigenous and communitarian touch to the Christian, Kantian or Millsian respect for the individual that informs Western jurisprudence. A rigorous jurisprudence would ask more probing questions regarding ubuntu. In order for the Constitutional Court to establish a South African jurisprudence, critical scholarship is essential. If the Court is adamant about protecting South Africa’s fundamental human rights and freedoms, and about deepening its democracy, it must engage in rigorous jurisprudencial discourse which reflects not only the domineering male voices of Africa but also the oppressed female voices of South Africa. Rigorous jurisprudence is what is needed to transform the Constitutional Court’s “seamless text” of meaningless explanations on the concept of ubuntu into a best seller. But in the absence of such rigorous jurisprudence one is left with the caveat of Mbiti (1991: 15), Turaki (1997: 61) and Akatsa-Bukachi (2005: 11), who maintain that individual critique11 is not tolerated by the traditional African worldview, known as ubuntu. 11 Turaki (1997: 1) cites the following warning wh icwhas given by an African to a Christian mission ary: “Do nothing to arouse the anger of the Tribal G oFdosr. if you did, they would destroy both you ande th entire humanity”. 18 In African Philosophical Values and Constitutionalism: A Feminist Perspective on Ubuntu as a Constitutional Value, the researcher attempts to deconstruct ubuntu reality in terms of the relevance of the concept of ubuntu to the South African Constitution. In an effort to reveal the bigger picture which underlies the Constitutional Court’s miraculous fusion of Western and African thought and jurisprudence into its new rainbow jurisprudence, African philosophical values will be deconstructed in terms of its interconnectedness with Western philosophy. This study contributes to much needed critical scholarship on the concept of ubuntu as the feminst perspective is very important and relevant to eventually bring about a South African jurisprudence which will include also traditional African women as equal citizens in our new democracy. The Constitutional Court contends that it is imperative to give recognition to African thought and legal thinking in South Africa’s new democracy. In doing so the Court gives “long overdue recognition to African law and legal thinking as a source of legal ideas, values, and practices” (Sachs cited in Cornell, 2004: 671). This statement reveals that Western and African thought and jurisprudence oppose and differ from each other; yet the Court also claims that ubuntu subscribes to the values of the Constitution in general and the Bill of Rights in particular. Can opposing philosophies be so different and yet so similar? Whilst Judges Sachs and Mokgoro firmly state that “ubuntu is a constitutionally acknowledged principle” (Cornell, 2004: 671), the main contribution of this study lies in the fact that it questions the Constitutional Court’s justification of ubuntu as a constitutional value. Whilst the Constitutional Court must be lauded for bringing African jurisprudence in line with the democratic ideals of South Africa’s Constitution12, it is equally important that it does the same with the ancient patriarchal philosophy of ubuntu. International and regional human rights and gender mechanisms demand that ubuntu be brought in line with “the Constitution in general and the Bill of Rights in particular”. 12See the BHE case in 4.4.1.6 where the Constitutional Court reasdsded African jurisprudence’s “benevolent paternalism” (Shutte cited in Corn2e0ll,0 4: 671) in the rule of male primogeniture byn bgrini g it in line with the Bill of Rights. 19 The reason for the choice of topic is tightly interwoven with the researcher’s postmodernist worldview as a legal feminist. Volumes of texts by African feminists concur that traditional African women are oppressed by the African continent’s oppressive, collective patriarchal worldview. Their evidence stand in stark contrast to our highest Court’s judgment that ubuntu subscribes to South Africa’s Western Constitution and Bill of Rights. This inconsistency compels the researcher to investigate the truth about ubuntu, which appears not to be keenly deliberated in Court. Legal feminists, however, demand that injustices brought about by inequalities should be addressed. The topic of this study, African Philosophical Values and Constitutionalism: A Feminist Perspective on Ubuntu as a Constitutional value deconstructs and investigates oppositions, hierarchies and injustices brought about by oppressive patriarchal worldviews. And as we shall see, patriarchies do not embrace equality. There is a possibility that neither the struggle against apartheid nor South Africa’s post-apartheid democracy have been able to bring about justice, equal rights and human dignity to traditional African women and others who live under the oppressive patriarchal reality of ubuntu. Was the struggle not, as Fanon (1990) would have said, about the battle for freedom for all?13 1.2 PROBLEM STATEMENT Since S v Makwanyane, the Constitutional Court and ordinary courts14 have produced a “seamless text” of rainbow jurisprudence. The concept of ubuntu was upheld as “humanness”; the “moral philosophy” of traditional African societies which was, according to Mokgoro (1989{b}), Tutu (1999) and Bhengu (2006), difficult to explain in a European language. Apart from the fact that the Court represented ubuntu as a communitarian worldview which favours group rights 13 Ncobo (cited in Stewart, 2005: 172) states aso wfosll: “I wonder if it will prove to have been eas tioe r fight the oppression of apartheid than it will e vber to set women free in our societies … Male doamtioin does not burn down”. 14 See footnote 396. 20 and duties above individual rights15 and liberties, the Court also conceded that “ubuntu is in consonance with the values of the Constitution generally and those of the Bill of Rights in particular” (Mokgoro, 1998{a}: 22). This statement does not reflect the view of African feminists throughout sub-Sahara Africa who categorically state that ubuntu oppresses African females and violates their human rights and human dignity. African feminists, viz. Rankota (2004), Oduyoye (2001), Muholi (2004) and many others, expose ubuntu as a hierarchical, patriarchal worldview which is in line with neither international nor regional human rights mechanisms, viz. the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. Cornell (2004) and Bohler- Muller (2005: 278) reiterate the concerns of Western and African feminists who question the “humanitarian ideals of ubuntu”. Whilst the Constitutional Court acknowledges ubuntu as a philosophy which represents the traditional African worldview, the existence of African philosophy is highly contested in the Western philosophical tradition, to the extent that ubuntu, as ethnophilosophy, has been denied the status of philosophy by Western and professional African philosophers. Houtondji (1996; 2002), Wiredu (1996), Oruka (2002{a}) and others deny the existence of a unique collective “African philosophy”. In the light of all the anomalies which underlie the “seamless text” of South Africa’s “rainbow jurisprudence”, it is imperative to deconstruct the intricate and opposing anomalies which are concealed by the seemingly “seamless text” of Dworkin’s imaginary chain novel. As a patriarchal philosophy, Ubuntu experiences opposition from Western philosophers, African professional philosophers16, African feminists, modern Africans and African theologians.17 Whilst the Court omitted to define what it meant by “African thought and legal thinking”, African professional philosophers, modern Africans, African theologians and African feminists make it clear that they oppose the outmoded worldview represented in traditional African thought. 15 SeeS v Makwanyanpea r. 224. 16 See the critique ouf buntu by professional African philosophers and Africaenm finists in Chapter Three. 17 See the critique ouf buntu by African feminists and African theologians in aCphter Four. 21 The following topics beg to be deconstructed within the “seamless text” of the Constitution’s chain novel: • Firstly, the Firstly, the Constitutional Court’s miraculous fusion of Western and African philosophies and jurisprudence by since 1995. Beneath the Court’s “rainbow jurisprudence” lies a volatile philosophical relationship which has resulted in the erosion of African values, African jurisprudence and innumerable injustices against the African Other; • secondly, the volatile oppositions within African philosophy where professional African philosophers and African feminists oppose the traditional African reality or unique philosophy of ubuntu; • thirdly, damning critique against ubuntu from African feminists, African theologians and modern Africans; • fourthly, that despite sec. 15(1) of the Bill of Rights, the Constitutional Court favours ubuntu, a religious philosophy, over other religious philosophies in its deliberations; and • fifthly, the fact that ubuntu, a truly unique collective African philosophy, exists in the face of adversity . 1.3 MAIN AND SUPPORTING GOALS OF THE RESEARCH As very little research has been done on ubuntu, the main goals of African Philosophical Values and Constitutionalism: A Feminist Perspective on Ubuntu as a Constitutional value are to ascertain the following: Does the philosophy of ubuntu exist?; does ubuntu promote values that underlie an open and democratic society based on human dignity, equality and freedom?18 (Does ubuntu comply with “the Constitution in general and the Bill of Rights in particular”?). 18 See section 39(1) of the 1996 Constitution of Sh oAuftrica. 22 The supporting goals of the research include the following: • Firstly, Deconstructing Western Philosophy’s Relationship With The African Other19 deconstructs African philosophical values in terms of the volatile philosophical relationship between two opposing patriarchal philosophies: Western philosophy and jurisprudence versus traditional African thought and jurisprudence. The supporting goal in this chapter is to ascertain whether Western philosophy and Christinity eroded traditional African values. • Secondly, African Philosophy: Myth or Reality20 deconstructs African philosophical values in terms of African philosophy. The supporting goals in this chapter are firstly, to deconstruct African philosophical values in terms of the debate on African philosophy; secondly, to deconstruct African philosophical values in terms of Oruka’s trends in African philosophy; and thirdly, to illustrate that Western philosophers, professional African philosophers and African feminists oppose ethnophilosophy or ubuntu. • Thirdly, Ubuntu: The Root of African Philosophy21 deconstructs African philosophical values in terms of ubuntu philosophy. The supporting goals of this chapter are firstly, to indicate that ubuntu is the ancient collective worldview of traditional African societies in sub-Sahara Africa; secondly, that professional African philosophers, African feminists, African theologians and African modernists oppose the collective worldview of ubuntu; and thirdly, that ubuntu does not represent a moral philosophy but a religious philosophy of life. 19 See Chapter Two. 20 See Chapter Three. 21 See Chapter Four. 23 1.4 RESEARCH METHODOLOGY A qualitative approach is followed with the research methodology being that of a literature study. Sources comprise of books, journals, case law, South African statutes, international and regional legal mechanisms, the internet and a video. The researcher focuses on primary sources throughout the study. As ubuntu reflects the collective worldview of traditional African societies in sub-Sahara Africa, authoritative African primary sources from this region are sought to present the bigger picture in ubuntu reality. The study reflects a holistic view of ubuntu reality and includes views across the African philosophical spectrum. Whilst Chapter Two utilises both Western and African sources, Chapters Three and Four use mainly African primary sources to convey the views of authors on matters of African philosophy. Although few primary sources are available on the philosophy of ubuntu in South Africa, authoritative primary sources, viz. Ramose, Broodryk, Mbigi and Bhengu are invaluable in assisting the process of deconstruction. These South African sources represent the male perspective and idolises the patriarchal philosophy of ubuntu as an idyllic philosophy. Authentic works by Mutwa, Somé and Mbigi represent the unique collective African worldview from respectively a sangoma’s, African shaman’s and African rainmaker’s perspective and provide immeasurable insight and crucial information on this ancient African worldview. The views of African feminists, professional African philosophers, African traditionalists, African theologians and African modernists are utilised in this study to reveal the bigger picture in ubuntu reality. Ubuntu is a philosophical concept. This study, therefore, takes a philosophical approach to ubuntu and embraces Otherness from a postmodern perspective. In contrast with Western philosophy, postmodernism does not speak for Others but allow them to speak for themselves. This study attempts to deconstruct Western history from a decidedly different consciousness, viz. the consciousness of the 24 Other. It also attempts to deconstruct the patriarchal philosophy of ubuntu, concealed in the midst of Others. Electronic sources are used in Chapter One to deconstruct the injustices of Western philosophy versus the African Other. These include Montesquieu’s justification of African slavery and the section on King Leopold’s Belgian colonial rule. Relevant case law of the Constitutional Court and Higher Courts22 are scrutinised in order to understand the Courts’ approach to the concept of ubuntu. This study makes use of the Harvard referencing technique. 1.5 CHAPTER OUTLINE Chapter One: Introduction This chapter contains the problem statement; main and supporting goals of the research; research methodology; key concepts; and outline of the study. Chapter Two: Deconstructing Western Philosophy’s Relationship with the African Other In an attempt to ascertain what African philosophical values embody, the researcher deconstructs the concept in terms of its interconnectedness with Western philosophy. Chapter Two deconstructs African philosophical values in terms of Western philosophy and reveals Western philosophy as a patriarchal and biased philosophy which has not only eroded Africa philosophical values, but also African jurisprudence. Deconstruction of world history reveals African 22 See 4.4.2 and 4.4.3. 25 philosophical values as the antithesis of Western philosophical values. This antithesis branded Africans as subhuman and aided the justification of scientific racism and apartheid. This chapter reveals the devastating psychological effect the superior philosophy had over the inferior: it opposes Western thought and legal thinking with traditional African thought and legal thinking. Chapter Three: African Philosophy: Myth or Reality? In Chapter Three approaches African philosophical values are deconstructed in terms of African philosophy. Deconstruction of Oruka’s famous trends in African philosophy reveals that ubuntu is represented by the trend of ethnophilosophy. Aspects of Negritude philosophy, political philosophy and the narrative trend confirm the reality of traditional African values in African philosophy. Ethnophilosophy is critiqued by the Western philosophical tradition, professional African philosophers and African feminists. Chapter Four: Ubuntu: the Root of African Philosophy This chapter consults relevant case law and other legal sources, as well as extra- legal sources, to deconstruct the concept of ubuntu. Ubuntu, the ancient African worldview, is deconstructed as a philosophy which represents African communitarianism, African Religion, traditional African values, African justice and African law. African feminists, African theologians and modern Africans expose ubuntu as a patriarchal philosophy which is not in line with fundamental human rights. This chapter also deals with the popular question whether ubuntu exists or not. Chapter Five: Conclusion 26 1.6 KEY CONCEPTS Key concepts of the study are postmodernism, Western feminism, deconstruction, values and the Other. Postmodernism: Postmodernism is an attack on modernism, the Enlightenment and modern thought; a negation of universal truths and the accommodation of Otherness. Whilst modernism “incorporates the belief in the objectivity, rationality, universality and liberating potential of the knowledge produced in the Western world” (Roederer & Moellendorf, 2004: 356), postmodernism is understood as a philosophical critique of Western liberalism. Postmodernism rejects the pompous, philosophical style of the Western tradition23 and represents thoughts of Derrida, Lyotard, Rorty, Foucalt, de Beauvoir and others. Postmodernist thought resorts to “disrupting the hold of the dominant liberal discourse of the colonial powers and thus to restore marginalised forms of knowledge as an important step in the political reconstruction of post-colonial societies” (Roederer et al., 2004: 380). Twenty-first century postmodernism does not speak for the Other but allow them to speak for themselves. Postmodernism strives towards philosophical justice, annihilating philosophical hierarchies and reclaiming the status of the Other as rational animals. Postmodernists demand philosophical equality for all lovers of wisdom; they demand that wisdom of the Other should also be inviolable. The study approaches ubuntu from a postmodernist perspective. In an attempt to deconstruct the bigger picture in ubuntu reality not only popular views but also unpopular truths will be entertained. 23 Soloman & Higgens (1996: 301) state that postmnoisdmer “rejects the argumentative mode, with its insistence on proof and dogmatic obsession withta icnetyr , and so postmodernism does not argue ore p rov …The argument often lacks a final conclusion, bhuatt ,t a persistent postmodernist may contend, ti st hjues point …However, it is the interaction between poosdtmernist criticism and the historical tradition tt hgaives postmodernism its meaning and significance”. Acicnogr dto Soloman et al. (1996: 303), postmodernis m is unmistakably Western, but it is not a philosophy. 27 Western feminism: Despite equal rights, Western philosophy continues to regulate the Other in “philosophical pass law categories”. The category ‘Other’ represents everyone but the European male. Western females who attempt to rationalise by criticising or responding to liberalism or sympathising with the Other are classified and branded as feminist and discarded into the “postmodernist shredder”. Legal feminism is a category of Western feminism and engages in law. Legal feminists are concerned with power relationships within law, gender equality and fundamental human rights. They assess the “flexibility and deep-rootedness of the norms on which legal reform rests … and articulate an incentive to pursue (again, still, forever (?)) a process of internal renewal that critically re-evaluates our priorities, strategies and legacy” (Lawrence, 2004: 601). Although law does not always embody justice, legal feminism strives towards just laws, just jurisprudence and just legal systems. Deconstruction: Outlaw (2002: 138)24 argues deconstruction is another strategy to read texts with a decidedly different consciousness.25 By deconstructing we “keep open the threshold to a different destiny” (Cornell, 1999: 202). Deconstruction can only be conceptualised and theorised in the concept of postmodernism. It takes two forms, viz. trashing and delegitimation. This study uses trashing as deconstructive technique. “The point of trashing is to tell the truth – to expose the contradictory sham of traditional notions of justice in order to see all the alternatives available in the search for a substantive notion of 24 “One of the objectives of deconstruction is tot iqcurie and displace the absolutist metaphysics and epistemology which are thought to identify and pidroev knowledge of a rational order of axioms, first principles, and postulates that are the foundaotifo na ll that is, and of knowing what is. The poinft o deconstruction is to show that all philosophicasl tesymizing is a matter osft rategy which pretends to be based on a complete system of self-evident or ctreanndsental axioms. Having their bases in philosoapl hic strategies, such concepts are tchounss tructions ,a product of numerous histories, institutions, parnodcesses of inscription which cannot be transcended by b ecionngceived as absolute, self-evident and axiom Taotic . deconstruct these concepts is to displace them thinet ofabric of historicy out of which they have nb ee shaped and in which we too, have our being; iot ibse t involved in the ‘unmaking of a construct’” (tOlauw, 2002: 138). 25 Foucault (1982: 136) said: “I cannot be satisfuiendti l I have cut myself off from ‘the history of eidas’, until I have shown in what way archaeological asniasl ydiffers from the descriptions of the ‘historfy o ideas’”. 28 justice” (Van Blerk, 2004: 157). Deconstruction signifies a break with ontology, exposes philosophical presuppositions26, and involves the identification of hierarchical oppositions. It is a postmodernist intervention in philosophy which does not reconstruct or render answers, results or recommendations. Deconstruction is a diagnostic process which explores and exposes a disease or malignancy; it diagnoses without offering treatment or giving a prognosis. In law, deconstruction attempts to expose hierarchies, inequalities, patriarchies, the collapse in rigorous jurisprudencial deliberation and the biases to which legal discourse is prone.27 Derrida (1999: 280) defines deconstruction28 as “a way of intervening … not simply a doctrine, not a system, not even a method, but something that is tied to the event”.29 According to Derrida (1999: 281), “deconstruction is on the side of justice, not on the other side … It is in the name of justice that we do what we do when we deconstruct”. Balkin (1987: 744) maintains that deconstructive techniques in law are utilised for the following reasons: firstly, to provide a method for criticising existing legal doctrines; secondly, to show how doctrinal arguments are informed by and disguise ideological thinking; and thirdly, to offer critique of conventional interpretations of legal texts”. Western philosophy is not sympathetic towards feminist deconstruction. Feminism and deconstruction do not go down well in the ivory towers of the academic fraternity. Feminism and deconstruction challenge “the line between 26 Deconstruction is “a means of intellectual discroy,v ewhich operates by wrenching us from our accustomed modes of thought. In fact, Derrida weads tlo this practice of deconstruction by his dissatisfaction with Western philosophical prac tfircoem Plato’s time to our own” (Balkin, 1987: 74 7). 27 “Deconstruction can open the way to new undersintagnsd and accordingly social change, it cannot help to guide the direction of change or to judge whre the change will be better or not” (Radin & Micmhealn cited in Roederer et al., 2004: 366). 28 Elam (1994, 92) posits that deconstruction is tnaoket n seriously because “it fails to conform to pperro scholarly research. Thus it is not really philosyo;p iht’s not really literary criticism; it’s not rellay political science; it’s not even properly interdisciplinary …deconstruction fails to conform sufficiently toe t h standards of any pre-existing [Western] disciplyin parractices and hence is not considered academic”. 29 Derrida (1999: 280) explains deconstruction as]o “t[ nsimply the theoretical analyses of conceptse, th speculative dissemination of a conceptual trad itoiof nsemantics. It is something that does somet hing, which tries to do something, to intervene and tolc owmee what happens, to be attentive to the evehne t, t singularity of the event”. 29 the ivory tower and the world” and are considered dangerous because they are “neither solely in the ivory tower nor in the world, but on the line between them … the two different ways of dismissing academic importance are really two sides of the same coin; the current coin of the established institutional realm” (Elam, 1994: 92). Legal feminists that deconstruct are perceived as a “potentially disruptive force within the academy”; not only because they deconstruct philosophy as a patriarchal plot but also because they rethink law and take position (Elam, 1994: 101). Values: The 1993 Interim and 1996 Final South African Constitutions imposed a duty on South African courts to promote values that underlie an open and democratic society based on freedom, equality and human dignity.30 In the Western theory of ideas it is generally accepted that Western philosophy and its accompanying value system represent universal values.31 Whilst the Constitutional Court maintains that ubuntu values are universal, Broodryk (2007: 40) argues that even though ubuntu values seem universal, they are unique. According to Broodryk, ubuntu’s uniqueness “lies in the intensity and level of living these values; in Africa, these values are practised on a much deeper level”. Postmodernism maintains that communitarian societies reject universal Western values because the communitarian community is its own source of values.32 Whether ubuntu’s unique values promote universal values of freedom, equality and human dignity which underlie open and democratic societies, has not been contested in Court. “[I]t is the role played by ‘values’ in constitutional adjudication which has been seen to set [it] apart from other types of adjudication which involve the mechanical application of ‘rules’” (Cockrell, 1996: 3). When it comes to constitutional values, Cockrell (1996: 11; 12) laments the “absence of rigorous 30 S v Makwanyanef used South Africa’s Constitution, based on Wes teprhnilosophy and Western jurisprudence, with African thought and legal thiningk, better known as African philosophy and Afri can jurisprudence. 31 Ibid par. 58 per Chaskalson P. 32 Walzer (cited in van Blerk, 2004: 200) posits t“htahte normative values of any distinct communitym ceo from within, from common values, and not as libiesrmal claims, from an overarching system of unive rsal values”. 30 jurisprudence of substantive reasoning33, for what we have been given is a quasi- theory so lacking in substance that I propose to call it ‘rainbow jurisprudence’ … the necessity to make hard choices such as this is fudged by rainbow jurisprudence which states baldly that all competing values can, mysteriously, be accommodated within the embrace of a warm, fuzzy consensus”. One can only concur with Cockrell (1996: 12) when he says: “Since ‘logic and precedent’ are of limited assistance, can the Court articulate a theory of substantive reasoning which can guide it in ‘difficult value judgments’?” Other: The term Other34 signifies and asserts a difference; a distance between the same and the Other; a hostility towards every Other human consciousness. It poses an ambigious relationship between the subject and the Other. “From the outset he [the subject] himself has instructively created a gap between himself and the Other (the colonised), as between the master and slave, as the paragmatic subject of absolute difference” (Houtondji, 2002: 125). Derrida describes the Other as “one whose voice has been extinguished by death, a radical absence” (Sallis, 1988: 153). The Other is perceived as the voiceless ones in the Western theory of ideas. Ramose maintains the category Other includes Africans, African-Americans, Maoris and Aboriginees of Australasia. Western feminists include women in the category Other. According to Mudimbe35 (1988: 86-87), “the basic premise of the ideology of otherness” state that history is a myth. To celebrate African Otherness African political thought started celebrating “the black personality”, the “obtaining of certain socio-political rights” and African independence. Sarte’s Black Orpheus is generally perveived as Africa’s first celebration of Otherness. In 1948, Black Orpeus, Sarte’s introduction to Senghor’s Anthology of New 33 Whilst “substantive reason is a moral, economoicli,t ipcal, institutional or other social consideroanti … formal reason, in contrast, is a legally authoirvitea treason on which judges are required to baseec ias idon and which overrides any countervailing substanrteivaes oning arising at the point of application” (Ckroecll, 1996: 5). 34 See Definitions and 2.4.2. 35 Mudimbe (1988) maintains Rousseau was the firsilto spohpher who celebrated Otherness with his notions of the noble savage. 31 Negro and Malagasy Poetry, “transformed negritude into a major political event and a philosophical criticism of colonialism” (Mudimbe, 1988: 85). Céssaire, Damas and Senghor utilised Negritude poetry to celebrate African Otherness. 32 CHAPTER TWO DECONSTRUCTING WESTERN PHILOSOPHY’S RELATIONSHIP WITH THE AFRICAN OTHER 2.1 INTRODUCTION In an attempt to give recognition to African law and legal thinking, which is part of the source of values of South Africa’s new democracy, the Constitutional Court introduced the concept of ubuntu in S v Makwanyane36 in 1995. By acknowledging ubuntu as part of South Africa’s jurisprudence, the Court fused African philosophy and African jurisprudence with Western philosophy and Western jurisprudence. The Court contends that ubuntu and Western philosophy promote human dignity, equality and freedom37 as prescribed by the Constitution. It is common knowledge that Western philosophy and Western jurisprudence embody fundamental human rights. But what does ubuntu or African philosophy and African jurisprudence embody? Notwithstanding the fact that the Court found ubuntu difficult to define in a European language38, Mokgoro J translated the concept of ubuntu as “humanness”.39 As South African courts have hitherto failed to develop the concept of ubuntu as a constitutional value, it seems as if “ubuntu is only used by some of the Constitutional Court judges as a ‘catch-phrase’ in an attempt to ‘strengthen’ a certain judgment” (Bekker, 2006: 337). According to Broodryk (2007), Ramose (2002), Bhengu (2006), Tutu (2002) and many others, the concept of ubuntu is inextricably linked to African philosophy. African philosophy has been intertwined with Western philosophy for centuries. In an attempt to ascertain what African philosophical values embody, Chapter Two deconstructs this relationship. 36 S v Makwanyan 1e995 3 SA 391 (CC). 37 See sec. 39 (1) of the Constitution, Act 108 o9f 61.9 38 See Mokgoro (1998{b}: 49) and Tutu (1999: 34). 39 Ibid par. 308. 33 Deconstruction of Western philosophy’s hegemonic relationship with the African Other is no fairytale and reveals unpopular truths. For centuries the Western tradition of philosophy denied African thought the status of philosophy. According to Oruka (2002{a}: 120), African philosophy is the postcolonial, philosophical attempt by Africans to affirm their humanity, values, religion, history, politics, culture and traditions. African philosophy can therefore be seen as Africa’s postcolonial response to the Western belief of Africa’s inferiority. African philosophy brings a postmodern critique of the ‘universal’ norms and values of Western philosophy. It negates Western philosophy’s dominant ideology of liberalism which eroded African values and justified innumerable injustices against the African Other. From the fifteenth to the twentieth century, African history stands testimony to the prejudice, racism, discrimination, genocides and other human rights violations suffered by Africans at the hands of Europeans. Whilst Western philosophy justified slavery, colonisation and neo-colonialism in Africa as a civilising, Christian mission, millions of Africans suffered uncountable injustices over a period of more than five hundred years. In spite of the fact that the European Enlightenment proclaimed rationalist thinking, human equality and individual liberty in the eighteenth century, Western philosophy continued stereotyping Africans as subhuman for more than two centuries. Western philosophy’s modernist belief of a ‘universal’ philosophy, based on rational thinking and liberal values, was supposed to ensure justice for all, but has dismally failed the African Other. Not only has Western philosophy resulted in the Western denial of ‘pagan’ African humanity, but Western jurisprudence justified human rights violations in the name of Christianity. As Wa Thiong’o (cited by Theroux, 2004: 94) said: “Christianity and Western civilization – what countless crimes have been committed in thy name!” 34 Chapter Two deconstructs Western philosophy in an attempt to bring an understanding of the interconnected nature of Western philosophy and African philosophy. In deconstructing Western philosophy the researcher attempts to expose the biases and fault lines of Western philosophical discourse towards Otherness and to get a glimpse at what African philosophical values convey. As there is little reverence for history in postmodernism, and even less in deconstruction, this chapter strives to give a glimpse of the bigger picture: the philosophical struggle of African communitarianism versus the dominant philosophy of Western liberalism. No study can ever do justice to the full scope of injustices that Africans have suffered as a result of the hegemony of Western liberalism. This chapter reveals the true nature of Western liberalism as the ‘superior’ philosophy: a philosophy condoning discrimination, human rights violations and crimes against humanity against the African Other. It reveals, in brief, the prejudiced nature of Western philosophy: a prejudice that began with classical Greek philosophy and which ultimately culminated in Western philosophical prejudice or racism.40 The following aspects will be discussed in Chapter Two: • Background. • Classical Greek philosophy: a philosophy of prejudice. • Western philosophy: a philosophy of prejudice. • Western philosophy: a philosophy condoning racial prejudice. • African law versus customary law. • Apartheid. • The lingering inferiority complex. • Superior versus subhuman. 40 The International Convention on the EliminationA ollf Forms of Racial Discrimination 1969, art 1(1) defines racial discrimination as “any distinctioenx,c lusion, restriction or preference based on rcaocleo,ur, descent, or national or ethnic origin which has pthuerpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equatli nfogo, of human rights and fundamental freedomsh ein t political, economic, social, cultural or any othfierl d of public life’. Art 4 obliges states to crinmalise ‘all dissemination of ideas based on racial superio arintyd’ ‘incitement to racial discrimination”. 35 • Conclusion. Chapter Two introduces classical Greek philosophy as the origin of philosophical thought in the West. It establishes classical Greek philosophy as an individual philosophy which applies reason, or acquired critical thinking skills, to deduct conclusions from inexplicable phenomena (Law, 2007: 17). Although Greek philosophy was not noted for racial prejudice it did entertain a master-slave culture with strict class divisions (Rattanzi, 2007: 14). Despite the fact that Aristotle proclaimed philosophy a universal enterprise, slaves, women, and ‘barbarians’ were excluded from partaking in classical Greek philosophy.41 Classical Greek philosophy laid a firm foundation for prejudice which was to be followed through by Western philosophy. A definition of Western philosophy reveals that this discipline retained the definition of classical Greek philosophy as a method of individual, critical, reflective and logical enquiry (Oruka, 2002: 120). It seems as if B.J. van der Walt (2003: 203) and Blackburn (2004: xii) concur in their definitions of Western philosophy which state that philosophy in the Western tradition is an academic discipline, as in the days of Plato’s Academy. It becomes evident that Western philosophy is not a universal philosophy but a philosophy tainted by prejudice. De Bouvier (1997), Imbo (1999), Ramose (2002) and others find the exclusion of the Other from Western philosophy to be rooted in the Western male’s perception of the Other as being too emotional and not rational enough to partake in its rational epistemology. Because both Western feminists and Africans are perceived as irrational, emotional and intuitive beings in the Western theory of ideas, they embrace similar postmodern aims and methodologies in their struggle against 41 Nkrumah (1998: 44) argues that although Aristobtelelie ved all men were capable of rational thouhgeh t, “did not believe that each man was able to conteri btou the truth. In this he was reflecting in hhisin tking what was a social fact in Greece. To say that emaacnh was able to contribute to the truth would rreeq uait the social level that each man should have poll itriicgahts. The facts of Greek society were not inc oarcd with this. The democracy of the Greeks was a deamcoyc wr hich was supported in the main by slave la.b our Aristotle criticised neither the inequality of thse xes nor the exploitation of slave labour. He e tvheonught that slavery was right provided the slave was naalltyu rinferior to his master. He enjoined his fell ow countrymen not to enslave Greeks but only an ionrf erraice with less spirit”. 36 their deliberate marginalising (Hegeman cited in Imbo, 1999: 1350). Imbo (1999), Wittgenstein (cited by Bell, 2002), Davidson (cited by Sogolo, 2002) and others find the inability of Western philosophy to embrace worldviews foreign to its own, the reason for its philosophical exclusivity. African history stands testimony to the racial prejudice of Western philosophy. Although no ideology of instrumentalist racism existed up until the droves of African chattel slaves arrived in the West, the African reality entrenched Western philosophy in racial prejudice (Davidson, 1994: 319). The eras of slavery, the Enlightenment, European imperialism and its accompanying Christian civilising mission of the African continent, released the full horror of the onslaught of its superior philosophy on Africa’s ‘uncivilised barbarians’. Codified European laws legitimised the subordination of and discrimination against the African Other and resulted in numerous injustices against Africans. Not only were pre-colonial African laws eroded in favour of European laws but African laws were demoted to the inferior status of customary law, applicable only to rural African societies (Bhengu, 1997: 1). The end of the Second World War resulted in the independence of most African states. Western colonial hegemony was something of the past. For a few states in Southern Africa however, the tyranny of Western colonialism was to be perpetuated. In South Africa more than forty years of “full-fledged indirect rule” lay ahead (Mamdani, 1996). Another dose of Western liberalism’s prejudice towards Africans unleashed the brutality of apartheid on South Africa’s indigenous peoples. After 500 years of African suffering from slavery, colonialism, racism, discrimination, violations of human rights, and genocides, Lamb (1987), Fanon, (1990), Appiah (1992), Wa Thiong’o (2006) and Muendane (2006) maintain that postcolonial Africans suffer from a lingering inferiority complex. Ramose (2002) and Appiah (1992) argue that Africans continue to see themselves through the lenses conferred on them by their European heritage. Although liberation did not restore African humanity in the eyes of either postcolonial Africans or the 37 Western world, Mazrui (2002) argues that it birthed an African solidarity and Afrocentrism amongst African peoples. In an effort to rid Africa of its lingering inferiority complex, African leaders such as Mbeki (1999) advocate the deliberate recovery of African pride throughout the African continent. This is also one of the goals of the African Renaissance. Western civilisation seems to have been conditioned by principles of discrimination which propound that not all persons are on the same intellectual, cultural, historical, philosophical or scientific par. Throughout the mass enslavement of Africans, the Enlightenment, colonialism up to post-colonialism, Western philosophy has stereotyped Africans as subhuman beings. Ramose (2002) claims that the deepest roots of racism in Africa are traceable to Western philosophy. Turaki (1991), Mazrui (2002) and B.J. Van der Walt (2002) ascribe the bias of Western philosophy towards the traditional African reality to the profound differences between the two opposing worldviews. Unspeakable injustices, suffering, humiliation, degradation and denial of African humanity resulted because one worldview perceived itself superior to the other. According to Neugebauer (1991), this situation will prevail unless philosophers destroy the theoretical base of racism. 2.2 BACKGROUND “Terrified and encouraged, praised and abused, defended and condemned, relegated to the category of ‘primitivism’ and lauded as the seat of civilisation, Africa finds herself in the galvanizing shock of favour and hate, confused. Nobody understands her. Nobody lets her alone. Nobody cares for her. Nobody spares her”.42 The time has long gone where Europe can pride itself that humanity’s philosophical and cultural development began, after an Egyptian prelude, with 42 Nigerian author, Orizu, A.A.N. inW ithout Bitterness: Western Nations in Post-wari cAaf,r 1944. 38 the civilisations of ancient Greece and Rome. Africans contend Europeans have deliberately robbed Africa of its history and philosophy; therefore, they are looking at the history of ancient Egypt and the rest of Africa with new eyes. Africans contend the African continent is the seat of civilisation (Diop, 1974). It is generally accepted by the Western philosophical tradition that the foundation of European civilisation and philosophy was derived from classical Greece. Classical Greece acknowledged that it had derived its knowledge of religion, philosophy and mathematics from the ancient civilisations in Africa, especially from Egypt (Davidson, 2003: xvi). By applying the rhetoric of the Greek Sophists the following syllogism can be deduced: European philosophy is derived from classical Greece; classical Greece derived its knowledge of philosophy from especially Egypt; therefore European philosophy is derived from especially Egypt. “To those ‘founding fathers’ in classical Greece, any notion that Africans were inferior, morally or intellectually, would have seemed silly” as it was patently obvious where classical Greece derived its wisdom from (Davidson, 2003: xvii). Whether Western philosophy can be derived directly from Egypt is a contentious issue amongst scholars of Western history and philosophy. Whilst Diop (1987), Bernal (1991), Onyewuenyi (1993), Ben-Jochanan (1994) and Obenga (1992; 2004) argue that Egypt, and not Greece, was the cradle of Western and African philosophical origins,43 Lefkowitz (1996), Houtondji (1996) and other scholars of the Western philosophical tradition argue to the contrary. The fact is, many Greek philosophers, viz. Thales, Solon, Hecataeus Democritus, Herodotus, Plato, Socrates, Aristotle, Hippocrates44, Pythagoras45, Eudoxus and others, attested to having received their philosophical enlightenment from Egypt (Onyewuenyi, 43 See Chapter Three par. 3.2.1.2. 44 Hippocrates, the father of Western medicine, setdu dmi edicine under “the founder of medicine”, Imhpo te of Egypt (Onyewuenyi, 1993: 40). Imhotep is regadr daes the first physician in history and made thrset fi analysis of the human anatomy in 2980 BC. Not odnidly Imhotep excel at science, medicine, architec, tur philosophy, priesthood and mathematics, he was t haels oauthor of the Hippocratic Oath (Muendane, 2: 006 128). 45 Both Herodotus and Diogenus Laertius confirmedt Pthyathagoras studied in Egypt (Onyewuenyi, 1993: 47). Pythagoras spent 22 years in Egypt studyintrgo naosmy, geometry, medicine, philosophy and relnig. i o 39 1993; Law, 2007). Not only did Herodotus describe Egypt as the “Father of History” but Homer states in his Odyssey: “In medical knowledge, Egypt leaves the rest of the world behind” (cited in Muendane, 2006: 129). As the Greek philosopher Thales of Miletus (585 BC) is generally considered to have been the first philosopher in the West, the ancient Egyptian definition of the word ‘philosopher’ found in Egypt, dating from 1991-1782 B.C., could in itself be proof of the existence of ancient Egyptian philosophers predating Thales. This ancient Egyptian definition of the word ‘philosopher’ was found in the Inscription of Antef in the 12th Dynasty, 1991-1782 B.C. The Inscription of Antef states that a philosopher is a person “whose heart is informed about these things which would be otherwise ignored, the one who is clear-sighted when he is deep into a problem, the one who is moderate in his actions, who penetrates ancient writings, whose advice is sought to unravel complications, who is really wise, who instructed his own heart, who stays awake at night as he looks for the right paths, who surpasses what he accomplished yesterday, who is wiser than a sage, who brought himself to wisdom, who asks for advice and sees to it that he is asked advice” (cited in Obenga, 2004: 35). What is clear from this definition of the word ‘philosopher’ is that to have been acknowledged as a philosopher in Egypt, the person had to be exceptionally wise. Not only was such a philosopher wiser than a sage, but he was also able to penetrate ancient writings. Although the definition does not categorically state literacy as a prerequisite for philosophers it can be deduced that certain Egyptian philosophers in 1991-1782 B.C. were literate and therefore able to interpret ancient texts which they shared with others. Clearly, early Egyptian philosophy was not earmarked for ordinary man, rather for the selective few found to be wiser than ordinary sages or wise men. In the real world, not all philosophers were or are literate. As philosophy has been embedded in the oral cultures of different tribes and cultures of the nations 40 of the world the greatest sages known to mankind, viz. Jesus, Socrates, Buddha and Confucius, all partook in the oral tradition of philosophy. The ancient wisdom of sages was rarely written down as writing was not a prerequisite for philosophy. Outlaw (2002: 142), however, contends that “Western philosophy after Socrates continues to be mediated through written texts, principally”. Houtondji (1996) argues that philosophy must be a written praxis46 and that the oral wisdom of Africa does not elevate illiterate sages to philosophers. When the Greek philosopher Aristotle declared all men rational animals with his famous definition of man (Ramose, 2002{b}: 9), it was assumed that all humanity held philosophical beliefs and that philosophy was a universal enterprise. Tracking the history of Western philosophy, one stands in awe of the philosophical wisdom produced by classical Greek philosophers such as Pythagoras, Plato, Aristotle, Socrates and many others. In studying the philosophies of these Greek men a burning question arises: What has become of philosophy? The Greek ideal of a universal philosophy has made way for a pernicious “philosophical apartheid” in the West. Philosophy’s right of way belongs to the epitome of full humanity – the European male. The Other – European females, Africans, American Indians47 and Aborigines and Maoris of Australasia48 – are perpetually regulated by Western philosophy’s “Group Areas Act”. The Other has been branded into “pass law categories”, vehemently reasserting their not being rational or human enough to partake in the ‘universal’ enterprise called philosophy. Notwithstanding philosophy’s claims of universality, its so-called scientific methods reserved its exclusivity for the European male 46 Theron (1995: 62) is of the opinion that “the tsrmanission of knowledge secure enough to be called scientific, requires a material base such as at ewnr ist ign, in accordance with the twofold naturem oafn . The spoken sign is not an alternative on all fowuirtsh this, since the written signs are essentisailglyn s of the spoken sign, at a further remove effected froera tger system and permanence. They are essentially extensionso f the spoken word, corresponding to an extensfio hnu oman knowledge which is at the time a qualitative transformation according to the scifeicn taind hence philosophical ideal”. 47 Nowadays called First Nations. 48 “The belief that ‘man is a rational animal’ was t nsopoken of the African, the Amerindian and the Australasians: all indigenous peoples of their erecstipve countries since time immemorial linger on t hine complex structure of conemporary international trioenlas” (Ramose, 2002{b}: 1). 41 only. Philosophy is, and has always been, the exclusive playground for the European male which renders its claims of universality invalid. Neither the Renaissance, the Age of Enlightenment nor the Universal Declaration of Human Rights, 1948, brought the Other either philosophical freedom or philosophical equality. Art 1 of the Universal Declaration of Human Rights 1948, states that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards each other in a spirit of ‘brotherhood’”. Philosophical equality has, however, not yet been granted to the Other. Western philosophy has placed a gatekeeper between the Other and full humanity: so-called rationality. The root of Western philosophy, classical Greek philosophy, and its prejudice towards the Other will now be discussed. Classical Greek philosophy laid a firm foundation for prejudice which was to be perpetuated throughout Western philosophy, ultimately culminating in racial prejudice towards the Other. 2.3 CLASSICAL GREEK PHILOSOPHY: A PHILOSOPHY OF PREJUDICE Like African philosophy, Greek philosophy originated from a fusion of religious mysticism and mythology (Law, 2007). Greek philosophers of the sixth century B.C. were tired of being at the mercy of their gods. They demanded order and applied logos (reason and logic) to their life and surroundings to make sense and bring order to their lives. The first recorded Western philosopher was undoubtedly Thales, who lived in the Greek colony of Miletus in Asia Minor. Characteristic of Thales’ philosophy was his application of reason whilst searching for answers to inexplicable phenomena. Thales, Western philosophy’s alleged first philosopher and founder of Western science, was well travelled and owed much of his enlightenment to Egypt (Law, 2007: 24) where he studied geometry. 42 Pythagoras (570-495 B.C.)49, the Greek father of relativism, and inventor of the deductive method in mathematics, was the first of the great philosophers who called himself a ‘philosopher’ (Soloman & Higgens, 1996: 28). When asked whether he was a wise man50, Pythagoras replied: “no. I am only a lover of wisdom”. Being a lover of wisdom did not imply that Pythagoras was wise but rather that he loved the activity of thought and that he did not merely accept popular opinions or beliefs of the day but practised self-reflection and actively searched for wisdom (Soloman et al., 1996: 28). As philosophers, both Thales and Pythagoras viewed philosophy as an activity of thought, a process whereby answers to fundamental questions could be obtained by applying reason. Parmenides (515-445 B.C.) added another dimension to Greek philosophy in his epic poem On Nature: “presented in three parts, it produces rational arguments for his metaphysical conclusion concerning the true nature of reality, contrasting this with the way the world appears to the senses of ordinary mortals” (Law, 2007: 239). Parmenides is considered to have produced the first rigorous philosophical arguments and is therefore considered by many as the first true philosopher. Reason and logic became a distinctive trait of Greek philosophy. Plato influenced Western philosophy for over two thousand years. Such is Plato’s intellectual importance that Whitehead (1997: 376) described all subsequent developments within history and therefore Western philosophy, as footnotes to Plato’s work. In his Republic, Plato (427-347 B.C.) shares the view that ‘wondering’ is the beginning of an individual’s quest to philosophise. Like his forebears, Plato emphasises that philosophy is an individual, critical inquiry of the mind. The idea of a whole group philosophising is an open denial of Plato’s maxim that “the multitude cannot be philosophic” (Oruka, 2002: 121). 49 Many of the ancient Greek philosophers acquiredir tshuperior knowledge of mathematics, science and cosmology in Egypt. On advice of Thales, Pythag otroaos left Greece for a visit to Egypt to study mathematics. 50 “According to legend, when someone asked the Dice lOphracle who the wisest man was, it answered: Socrates. When Socrates learned of this, he weonutn dar asking people what they knew. He found theayt th all claimed to know things that, in fact, they d’itd knnow. So Socrates concluded that he really whaes t wisest man, since he knew he knew nothing whiler yeovnee else mistakenly thought they knew something” (Stevenson, 2002: 45). 43 Plato founded the first Academy51 in 387 B.C. where students were schooled in critical thinking skills. “Based on the principle that students must learn to criticize and think for themselves rather than simply accept the views of their teachers, it is generally viewed as the first university” (Law, 2007: 245). According to Law, the finest intellectuals in the classical world, viz. Aristotle, were students at Plato’s Academy. With the founding of the Academy, philosophy was no longer a mere ‘love of wisdom’, as Pythagoras suggested. Plato transformed classical Greek philosophy into a rigorous intellectual enterprise. Students at the Academy were groomed in the academic skills of philosophising: they were taught how to apply rational thinking, criticise and think for themselves. From 387 B.C., Greek male philosophers were given the intellectual edge above all other mortals attempting to partake in the activity called philosophy. Like Plato, Aristotle (384-322 B.C.) insisted that philosophy begins with and continues as a “sense of wonder”. Aristotle’s “sense of wonder” reiterates that philosophy is in essence one’s willingness to question fundamentals. Aristotle was the first Hellenic philosopher to indicate that philosophy was a universal exercise when he defined man as an animal rationale. With these words he declared all men rational animals. Aristotle’s notion of philosophy being a universal exercise was later confirmed by the French philosopher Descartes. Descartes’ (1596-1650) adage ‘I think therefore I am’ confirmed the notion that reason52 was man’s only proper avenue by which to establish knowledge (Law, 2007: 38). Although Aristotle declared all men equal in rationality, all men were 51 Law (2007: 24) states the finest intellectualsth ien classical world, including Aristotle, were sacllh ooled at Plato’s Academy. At Plato’s death the Academys wpassed on to Plato’s nephew where it continu ed to function as a centre of higher education and recshe uanr til it was closed down by the Christian empr ero Justinian in AD 529, nine hundred years after oitusn fding. “As part of his program of violent enfomrcent of Christian orthodoxy, Justinian issued an edeicctl adring; ‘Henceforth never again shall anyoneu lreec ton philosophy or explain the laws in Athens’,” (Moo2r0, 07: 25-26). 52 Augustine maintained that all Greek philosophyo rp rtoi Christianity contained the fundamental erorfo r extolling the power of reason as the highest poowfe mr an. Augustine argues that when one becomes enlightened with a special divine revelation rea istsoenlf is one of the most questionable and ambuigsu o things in the world. Augustine, like Aquinas hiss cdipi le, was convinced that reason would lead to’ sm an peril and temptation unless he was guided and inlluamted by the grace of God. 44 not equal in status.53 Whilst Plato asserted "the intrinsic inequality of men and supported a strict class system, Aristotle54 followed suit with a merit based theory of justice” (Van Blerk, 2006: 2). According to Van Blerk (2006: 8), justice for Plato and Aristotle was awarded each person according to his status. “[D]espite their immense philosophical and scientific enlightenment, they [Plato and Aristotle] had the consciousness of the master-slave culture”55 (Oruka, 2002: 61). The most influential theory regarding the nature of and social position of races, known as the Great Chain of Being56, is generally believed to have originated in Aristotle’s theory that some men are destined for subjugation (Foutz, 1999: 7). According to Aristotle (cited by Foutz, 1999: 7), “the universe resembles a large and well-regulated family, in which all the officers and servants, and even the domestic animals, are subservient to each other in a proper subordination; each enjoys the privileges and prerequisites peculiar to his place, and at the same time contributes, by that just subordination, to the magnificence and happiness of the whole”. Foutz argues that Aristotle was in fact the great architect of physionomics when he attempted to illustrate that physical variation in human appearance results in intellectual and moral differences. Aristotle’s theory maintains that: “[w]hen men have large foreheads, they are slow to move; when they have small ones, they are fickle; when they have broad ones, they are apt to be distraught; when they have foreheads rounded or bulging out, they are quick tempered”57 (Foutz, 1999: 9). According to Foutz, Aristotle’s notion “is clearly racism as understood in modern parlance”. 53 This Greek notion of inequality reverberates ainls uob untup hilosophy. See 4.11.3. 54 In Politics, Aristotle’s doctrine N‘ ature does nothing in vai,n i’s applied “most notoriously to the moral justification of slavery (some men differ from ortsh eas much as the body from the soul or as an al nima from a man), but another clear instance of natduoraml inance and subordination, in Aristotle’s viesw ,t hie relation of men to women – a union of the natur arullyling element with the naturally ruled, for the preservation of both” (Lovibond, 2000: 13). 55 The legal status of a person was determined b py ethrseon’s merit in society. 56 “The Chain of Being by definition denied any gr eriaftt among species as so was often interpreted as denying the category of species altogether. Form epxlea, John locke, in book III oEf ssay Concerning Human Understandingr efuted the idea of systematic divisions since suwcehre merely man-made catgories” (Foutz, 1999: 8). 57 Aristotle’s traits in anthroplogy were derived mfro differences in racial features. 45 The status consciousness of Plato is evident in his prayers to God when he thanks God for the blessings He bestows on him. In his prayers, Plato firstly thanked God that He created him free, not a slave; secondly he thanked God for creating him a man and not a woman58 (de Beauvoir, 1997: 22). Like Plato, Aristotle is the epiphany of a status-conscious, prejudiced and sexist philosopher. In his Politics, Aristotle argues that certain classes of people are by nature ordained to rule over others and that men are to rule over women as masters are to rule over their slaves. Aristotle’s theory of women as deformed or infertile males59 reveals his sexist bias towards women.60 In his work On the Generation of Animals Aristotle posits that the superior one should be separate from the inferior one and envisages the female’s “most perfect functioning involves creating conditions for the male element to prevail” and that women are merely “matter set in motion by and for the soul of the unified male, for the ends of the male species” (Lange, 1983: 11-12). Aristotle maintains that in sexual reproduction the baby’s body comes from the female and soul from the male, therefore “the real parent is clearly the male, since it is he who contributes the human soul” (Lange, 1983: 11). Aristotle (cited in Lovibond, 2000: 13) maintains that “slaves are entirely without the faculty of deliberation”; females possess reason but in a form which is inconclusive; and children possess reason in an immature form. Aristotle argues that women are most probably without a soul: however, should they have a soul, it would not be a rational soul (Spelman, 1983; Lange, 1983). Female individuals who did practise philosophy in classical Greece’s patriarchal society did so through their “male kin or sexual protectors” (Lovibond, 2000: 10). It is evident that Aristotle had no intention of including either slaves or women in 58 Socrates (469-399 BC) makes the point that wom reonle’s in the rational political order is to perfo rtmhe function only of producing children (Lovibond, 20:0 104-15). 59 Females are often depicted as deformed malesz. sNciheet defines feminism as “the operation through which a women desires to be like a man” and De rrdideascribes feminism as “merely a form of phallogocentrism,” (cited by Elam, 1994: 15; 16)h. iWlst Western males continue to speak for Othehres , t truth is, females do not all suffer from penis e.n Wvyhat would we do with a penis anyway? 60 This notion reverberated through Western philosyo. p h 46 his category of rational animals.61 Greek philosophy was clearly earmarked only for free, Greek-speaking male animals62. Aristotle’s sexual and social stereotyping of women and prejudice towards slaves has been reverberating through Western society ever since. Although Greek philosophy distinguished between Greeks, barbarians, free men and slaves it has never been noted for racial prejudice.63 The Greeks classified barbarians64 as people who could not speak Greek, only “barbar” (Rattanzi, 2007: 14). Barbarians represented people who did not accept the Greek ideal of the Politicos but preferred to live under authoritarian rule. Whilst classical Greek philosophy was not noted for racial prejudice it was characterised by definite class divisions. These hierarchical class divisions resulted in discrimination against certain individuals and classes of people, viz. barbarians, women and slaves who were barred from the activity of philosophy. From a postmodern perspective “we know that class divisions explain racial antagonism, it is not the other way round … and that in order to eliminate modern day racism, we must eliminate class division” (McGary, 2002: 589). Greek philosophy’s alienation of certain classes of peoples, viz. women, slaves and barbarians accentuated 61 The Greeks probably also borrowed their entren csheexdism from Egypt. Hypatia is generally noted as the most famous intellectual female Egyptian phoiplohser of antiquity. Not only was she an astrono mer, mathematician and philosopher, but also very ouktesnp oon sexual bias. Apart from her rational, rald ica view on Neo-Platonism, Hypatia is famous for heart abnl t and gruesome assassination by Egyptian monks in 415 (Dzielska, 1995). She too had to practisielo spohphy under the name of her male counterpart. Hypatia is also a philosophical journal on social philosyo pahnd gender issues. 62 Only certain restricted groups of individuals, . vtihze free Greek males in AristotleP’so litics, could engage in philosophical praxis (Outlaw, 2002: 1 41). 63 An example thereof is the African philosopher Asutginue (354-430) of Hippo in North Africa, who produced many philosophical works in the Greek itiroand of philosophy. It must be stated that the eGkrse took pride in their cultural superiority over oth ceurltures. Isocrates statesP ina nygyricus( 380 B.C.): “Our city (sc. Athens) has left the rest of mankind bnedh iin thought and expression, that those who ar e he pupils have become the teachers of others. Shem haadse the name of Greek no longer count as that of stock, but as that of a type of mind: she has mita des ignate those who share with us in our cu,l truarteher than those who share in a common physical typete” d(c iin Theron, 1995: 46). Draper (2008: 39) st ate that the ancient world was devoid of racial precjued. i 64 According to Rattanzi (2007: 14), “Aristotle thohut git possible that cold climates produced popounlast i ‘full of spirit but deficient in skill and intelliegnce’, and therefore incapable of ruling othersi,l ew Ahsians displayed skill and intelligence but no spirit, a tnhdis explained their predisposition to live in jseucbtion and slavery”. 47 inequality. Classical Greece laid the foundation for philosophical prejudice which would reverberate throughout Western philosophy. Even though Aristotle maintained that all men were rational animals, Greek philosophy was not the playing field for all rational animals. As barbarians, slaves and women were marginalised in Greek philosophy, the love of wisdom was reserved for free, Greek-speaking, male intellectuals only. By excluding women, slaves and barbarians from the activity of philosophy, Greek philosophy set the trend as an exclusive prejudiced philosophy. 2.4 WESTERN PHILOSOPHY: A PHILOSOPHY OF PREJUDICE Deconstruction of history reveals that Western philosophy has always been an exclusive academic philosophy unable to accommodate worldviews foreign to its own (B.J. van der Walt, 2003: 203). By denying the Other their worldviews, however, the very idea of philosophy was defeated. Postmodernism reveals the bigger picture in philosophy and argues that there is no universal philosophy or single truth. Truth is something construed by a specific worldview and expressed in its vocabulary. There are however many Other realities than merely the regulated praxis of Western philosophy. This section highlights the following: • Western philosophy: a definition. • Western philosophy and the Other. • The synonyms: white women and Africans; and • Opposing worldviews. 2.4.1 Western Philosophy: a Definition Encarta (Internet {a}: 2007) defines Western philosophy as a “rational and critical enquiry into basic principles”. It divides Western philosophy into four main branches, viz. metaphysics, epistemology, ethics and aesthetics: “metaphysics, 48 the investigation of ultimate reality; epistemology, the study of origins, validity and limits of knowledge; ethics, the study of morality and good; and aesthetics, the study of the nature of beauty and art”. According to Encarta, the two distinctively philosophical types of inquiry have been described as analytic and synthetic philosophy: “analytic philosophy, the logical study of concepts, and synthetic philosophy, the arrangement of concepts into a unified system”. Oruka (2002: 120) defines Western philosophy as “a method of critical, reflective and logical enquiry”. He argues that Western or European philosophy is known to manifest critical and rigorous analysis and logical explanation and synthesis. Oruka (2002: 120) sees philosophical thought lacking in these characteristics to be “basically intuitive, mystical and counter or extra rationalistic”. Western philosophy is clearly defined in terms of its rigorous, analytical and critical method. Despite Aristotle’s efforts to declare all men capable of rational thought, Oruka and other African professional philosophers classify the collective philosophy of traditional African societies as “emotive, mythical and unlogical”. According to them, traditional African philosophy does not represent philosophy in the strict sense (Oruka, 2002{a}: 120). Shutte (1993: 8) defines Western philosophy as “a rigorous, self-critical intellectual discipline”. Shutte (1993: 7) posits that the Anglo-American analytic style of philosophy is now “the most influential philosophical school in the world and has developed hand in glove with science”. According to him, this style of philosophy has abandoned “the two most important parts of traditional philosophy, metaphysics (our overall view of the world or reality) and ethics (our fundamental system of values) … Contemporary Anglo-American analytic philosophy does in fact inculcate a general view of the world of values; it is materialist, liberal-capitalist, utilitarian and atheist” (Shutte, 1993: 8). Western philosophy embodies liberalism, capitalism and individualism. Although the Anglo-American style of analytic philosophy has abandoned metaphysics and views philosophy a universal enterprise, this does not mean that the philosophies 49 of Others are barred from metaphysics or that they view philosophy a universal enterprise. Despite academic definitions of Western philosophy, philosophical reality suggests there is an institutional definition to Western philosophy. B.J van der Walt (2002: 203) defines Western philosophy as “an academic discipline which reflects on a specific worldview in a scientific way”. Van der Walt’s definition of Western philosophy as an academic discipline which reflects on “a specific worldview in a specific way” sidelines not only illiterate and non-academic philosophers but all philosophers entertaining worldviews other than the Western theory of ideas. Western philosophy certainly does not view all worldviews equally significant. Blackburn (2004: xii) defines Western philosophy as “whatever is produced by those who are paid as philosophers in university faculties … Philosophy lies in the eye of the beholder”. The views of Blackburn and Van der Walt seem to agree that Western philosophy has evolved into a very privileged, academic activity of thought.65 By deconstructing history, history reveals that Western philosophy has always been “a very privileged activity of thought”. The Egyptian definition in the Inscription of Antef indicates that Egyptian philosophers had to be “wiser than sages”, disqualifying a great many thinkers from philosophical activity. Since Plato’s Academy was founded, Greek philosophers “received teaching on how to criticise and think for themselves”. The Western philosophical tradition followed suit, as Van der Walt and Blackburn suggest with their definitions of philosophy. By defining Western philosophy as “whatever is produced by Western academics”, Blackburn sounds the alarm to the Others, exposing Western philosophy’s discriminating nature. Others with worldviews alternative to those of Western academic males are perceived pre-scientific, irrational, emotional and mythological. Van der Walt’s definition of philosophy as an “academic discipline” which reflects on “a specific worldview in a specific way” seems to ipsi facto 65 As Plato said: “The wisest have the most auth”o (rLitayw, 2007: 7). 50 exclude thinkers who do not match the Western male’s view on life. Bell’s (2002: 1) appeal to grant the status of ‘philosopher’ also to thinkers with alternative worldviews to those of the West falls on deaf ears. In the Western philosophical tradition, different has always meant inferior. Aristotle’s ideal of philosophy has made way for a pernicious, academic and technical version of philosophy; philosophy is no more accessible to ‘the lover of wisdom’. The Greek ideal of philosophy as a male quest for wisdom is history. Philosophy has become a professional skill. Western philosophy is an exclusive enterprise, closed to all but a handful of like-minded professional academics. It is not difficult to concur with Mannion (2002: 207) when he states “You may have come to the conclusion that philosophy is strictly the purview of that misunderstood and unfairly maligned minority known as dead white men”.66 For Others doing philosophy, Blackburn’s perception of this Western academic discipline is a soothing balm when he states: “the words of even those who stand on the highest pinnacles of the profession have never proved acceptable to more than a tiny minority who understand them … we have to believe in the value of the process rather than the durability of the product, for the product melts as we watch it” (2004: xiv-xv). And postmodernism provides the heat for the meltdown. The prejudiced nature of Western philosophy is evident in its treatment of the Other. 2.4.2 Western Philosophy and the Other Western philosophy’s historical treatment of the Other67 is symptomatic of the tradition’s prejudiced and exclusive nature. Whilst claiming to be a universal68 66 This expression could be seen as a postmoderxnpirset sesion. Postmodernists have according to Sol oman et al. (1996: 300), a decided preference for “pulalnyefss, for stylistic experiment” and for “an u tltaecrk of seriousness”. Postmodernism rejects the Westerlons pohpihical tradition. Oyewumi (2002: 406) mainta ins that “it is next to impossible to create an Afric tahneoretical space when the ground of [philosopl]h ica discourse has been crowded by DWEMs – dead, wEhuitreo,p ean males”. 67 Western feminism contends that philosophy’s hisctaol ritreatment of women as the Other, is itself a symptom of the tradition’s intrinsic bias and limatitons. Feminism is a philosophy that exposes aensids trs the systematic exclusion of women from patriarcshoacli ety and male modes of thinking. It advocateusa el q rights for women and men. 51 and all-inclusive philosophy, Western philosophy has refuted the philosophies of the Other as emotional, intuitive, illogical and pre-scientific. If truth be told, the three-thousand-year tradition of Western philosophy has not been able to accommodate worldviews foreign to its own. Not only European women but Africans, African Americans, American Indians, Aborigines and Maoris of Australasia have been denied their philosophical heritage in the West. Viewing philosophy, there are few women in evidence in this tradition. Western philosophy’s patriarchal tradition is the creation of European men and not women. Women, like all Other, were found to be less suited for philosophy; too emotional, too intuitive and less rational than European men. As in classical Greek philosophy, “in the Western theory of ideas rationality and reason have been presented as an exclusive masculine trait, excluding women from language, religion, [law] and social and political functions” (Soloman et al., 1996: 228). The outcome of Western philosophy’s relentless denial to recognise the philosophies of the Other69 resulted in “women, Africans, African American and other groups at the margins … to be seen as deficient in reason and rationality and thus could not partake fully in humanity” (Imbo, 1998: 137). Denying the Other their worldviews is to reject the very idea of philosophy. Masolo (1995: 158) argues that “philosophy makes part of the definition of man. It is proper to man and forms part of his essence. It is the manifestation of rationality. Through his or her claims for a possession of a philosophy therefore, the African only expresses his or her claims for an entry to this humanity”. 68 “Dominant theories and categories were wrong inmopt lsy in universalizing beyond their scope, i.ea. tt h they were partial in the sense of being limitedt, unnoiversally applicable, but that they were alsaort ipal in the sense of being ideological, interested ando rdteisdt; in short to a greater or lesser degree ”f a(Flsreicker, 2000: 149). 69 Rattansi (2007: 17) confirms that during the Meid dAlges Otherness was associated with “Blackness, wildness and the monstrous” and that this assocni awti ith darkness and evil was perpetuated in Christianity. 52 Western philosophy and the Other are synonymous with the self and the Other; a dualism70 or dichotomy as archaic as consciousness itself. Otherness is a fundamental category of thought71 which is to be found in most of the ancient mythologies and primitive societies. Human consciousness has an intrinsic hostility towards every Other consciousness. According to de Beauvoir72 (1997: 111), the idea of the Other rises at the moment when man asserts himself as “subject and a free being over its object”, the Other. “From that day on, the relation with the Other is dramatic: the existence of the Other is a threat, a danger. Ancient Greek philosophy showed that alterity, Otherness, is the same as negation, therefore evil. Therefore to pose the Other is to pose a Manichaeism”73 (de Beauvoir, 1997: 111). Posing oneself in opposition to the Other, be it sex or race, positions the Other as inferior. According to de Beauvoir, the Other are therefore inseparable from their defect; their inferiority puts ‘right’ on the side of their oppressor, their master. As a result of Western philosophy’s monopoly on freedom of thought, its jurisprudence and legal systems also accentuated Otherness. Historically males have always kept in their hands all concrete powers. Women as Others, were kept in a “state of dependence, their codes of law74 set against her” (de Beauvoir, 70 This duality was not originally attached to thev isdiion of the sexes. De Beauvoir however finds thea t basic trait of being a woman poses her as the O. Itnh eTrhe Second Sesxh e indicates how women have always been defined by male society as ‘the Otahnedr’ how women have accepted this secondary po sition against their own best interest. A woman is to an m“thae Other in a totality of which the two componntse are necessary to one another” (1997: 20). 71 Horton narrates the reaction of the Kalahari pe oopf lthe Niger Delta when they first saw a whiten m, a not an albino by nature, in 1500. Their immediraetaec tion was to apply to their oracles for comfaonrdt enlightenment. “[T]he first white man, it is sawida, s seen by a fisherman who had gone down to thueth m o of the estuary in his canoe. Panic-stricken, he dr ahcome and told his people what he had seen; wuphoenre he and the rest of the town set out to purify theelmvess- that is to say, to rid themselves of thelu einnfce o f the strange and monstrous thing that had intrundteod t hi eir world” (cited in Davidson 1994: 12). 72 Simone de Beauvoir (1997) claims that women arte b noorn to be inferior but socialised to assume the role of the ‘Other’. 73 Law (2007: 256) states that the philosopher Auingeus wt as a member of the Manichaens, a sect fou nd by the prophet Mani who was crucified in 277. Accorgd tino Law, Manichaeanism “characterizes the univ erse form the outset in terms of the struggle betweeond g aond evil”. 74 Until the nineteenth century European, Englishd, Aanmerican law allowed for husbands to complaina to magistrate if his wife nagged or scolded him. Iuf nfod guilty of nagging, the wife was sentenced teo th ‘ducking stool’. The wife “would be strapped into s eaat which hung from the end of a moving arm, and then dunked into the nearest river or lake for ead petrermined length of time”. The number of timees wshas 53 1997: 173). Western legislators, politicians, philosophers, priests and scientists have striven to show that the subordinate position of the Other is willed in heaven and is to man’s benefit on earth. Men believe European male supremacy to be based on the eternal laws of God and made the fact of their supremacy a right by setting their laws and principles against the Other to affirm their inequality to man75 (de Beauvoir, 1997: 22). Two examples in this regard are firstly, the America political doctrine of ‘separate but equal’76 which provided constitutional protection for fifty years against the Other and secondly, South Africa’s apartheid legislation of ‘separate development’ for forty years.77 This kind of segregation of the Other justified the most extreme racial discrimination in the name of legal positivism. Throughout history, fear of the Other has resulted in “malignant dogma, masquerading as a message from God, to unleash the most horrific violence and oppression in the repertoire of hell. Moreover, this deadly form of exclusivist group passion can be virtually invulnerable to reason” (Gore, 2007: 48). The concept ‘Other’ is confirmed in texts of postmodernism, Western feminism, African professional philosophy and African feminism. 78 According to Biakolo (2002: 9), the concept Other confirms the “political project behind the Western construction of cultural paradigms”. submerged would depend on the severity of the ocra spere vious convictions. If the ducking stool waost n punishment enough, the wife would be paraded ar otouwnnd, as a warning to other women, wearing an iron mask clamped onto her head. This mask had a mbaert ainl the mouth to hold her tongue down. The last woman convicted of being ‘a common scold’ was Je Pnnipyes, Leominster, England, 1809 (Pease, 2005: 16-17). 75 Feminist jurisprudence suggests that, because wn ohmavee different world views to men, women bring an innovative and unique perspective on law anids pjururdence to the legal community. “[B]ecause wo men have been excluded from shaping our [Western]l lsetgruacture in general, that structure reflectsis ato drted view of the tension between autonomy and conne catinodn between the individual and society” (Sherry, 1986: 583). 76 In 1883 the United States Supreme Court ruleda vino uf r of racial segregation. Between 1890 and 1900 1100 black people were lynched “especially thosceu saecd of insulting behaviour towards white women” (Rattanzi, 2007: 44). 77 “There are so many laws governing the lives anhda vbieour of black people that sometimes one feealst th the police only have to page at random throughr tshteaitute book to be able to get a law under whtoic h charge a victim” (Biko, 2007: 109). 78 See Mudimbe’sIn vention of Africa (1988) andT he Idea of Africa( 1994); Ramose (2002{b}); Biakolo (2002: 9); Oyewumi (2002: 381) and others. 54 2.4.3 The Synonyms: White Women and Africans Western philosophy characterises females and Africans as essentially the same: as beings deficient in reason and rationality. Whilst Western rationality characterised women as beings that emphasise love, intuition, caring, and compassion over rationality, Africans are perceived as illogical, primitive79, intuitive beings (Imbo, 1999: 136). Both Western feminism and African philosophy80 question and contest Western philosophy’s marginalising categories of ‘women’ and ‘Africans’. In the Western theory of ideas ‘women’ and ‘Africans’ find themselves marginalised by philosophy’s privileged approach to reason and rationality. Whilst Western philosophy claims philosophical universality, its discourse reveals a hierarchy of privilege, domination and oppression. Its philosophical universality continues to speak on behalf of all humanity. Western feminism and professional African philosophy find solidarity in their aims and methodologies in deconstructing Western reality: in revealing its codified forms of discrimination against Western women and Africans. Postmodern approaches adopted by Western feminism and African philosophy challenge the oppressive, traditional ways of thinking within Western epistemology. Hegeman (cited in Imbo, 1998: 136) finds “the connection between issues in feminism and the debate about the existence of an African philosophy striking because both feminists and African nationalists have at times embraced similar, essentialist notions of alternatives for women and Africans respectively”. Western feminists and African professional philosophers find solidarity in the fact that they have been marginalised and denied the right to self representation. As feminists have a broad range of critiques against Western philosophy, they find common ground with the African Other in deconstructing and dismantling 79 The sociologist Lévy–Bruhl characterised Africaans ‘underdeveloped peoples’ with a ‘pre-logic mentality’. In his Les Fonctions Mentales Dans les Sociétés in Féerise (u1r910) andL a Mentalité Primitive (1922) he discusses amongst other things how sieosc ieatre classed as either civilised (Western) or primitive (non-Western) and elaborates on the ml einfteariority of Africans. 80 See 3.3.5. 55 post-Enlightenment liberal philosophy and its Eurocentric hierarchies. Imbo (1999: 135) lists the following feminist critiques of Western philosophy to be used by African professional philosophers for comparative purposes: • Large numbers of philosophers are, and have been, European men. • Men and women bring different discursive resources to their understanding of their environments; therefore there is a bias in the choice and definitions of problems when the process is filtered through masculine views of reason and rationality. • There is a lack of concern for women’s interests. • The implicit assumption that the male represents the species, leads to a bias in interpreting human experience. • There is a neglect of women’s issues. • There is a depreciation of feminine values. • There is a denial of moral agency for women. • There is a devaluation of women’s moral experience. • Radical feminist critiques question the very assumption of objectivity and rationality that underlie Western philosophy. Common ground between Western feminists and the African Other does not only exist in the critique of Western liberalism, but also in the fact that the feminist worldview is Other-directed. In contrast, Western liberalism views Western males primarily as individuals and the communities they form as secondary. Sandel (cited in Tushnet, 1992: 545) describes the Western male’s atomistic vision of autonomy and separation as follows: “What separates us is in some important sense prior to what connects us – epistemologically prior as well as morally prior. We are distinct individuals first, and then we form relationships and engage in co- operative arrangements with others; hence the priority of plurality over unity”. Nozick81 sees his minimal state as an archetypal example of the consequences 81 Nozick’ sees the minimalist state, based on anm iasttoic philosophy, with no room for collectivity: uBt why may not one violate persons for a greater sl ogcoiaod? Individually, we each sometimes choose to 56 of an individualistic philosophy with the ‘root idea’ consisting of different individuals with separate lives. According to Nozick, the minimal state is merely a method of allowing each individual to attain individuality: “The minimal state treats us as individuals …; it treats us as persons having individual rights with the dignity this constitutes … [this treatment] allows us, individually or with whom we choose, to choose our life and to realize our ends and our conception of ourselves, insofar as we can, aided by the voluntary co-operation of other individuals possessing the same dignity. How dare any state or group of individuals do more, or less” (cited in Tushnet, 1992: 563). According to Western feminists, women have a different perspective, or worldview, on life than Western men.82 Psychological studies done since 1982 (Gilligan) reveal that the Western women’s concept of self differs from that of the Western male. While men primarily focus on separation and autonomy, women’s primary concern is with intimacy, connection and community. In contrast with the atomistic European male perspective on life, women exhibit a collective existence. Chodorow (1978) and Gilligan (1982: 60) conclude that women tend to see others as extensions of themselves rather than as outsiders or competitors. “It is the collective that is important to me, and that collective is based on certain guiding principles, one of which is that everybody belongs to it, and that you all come from it. You have to love someone else, because while you may not like them, you are inseparable from them. In a way, it is like loving your right hand. They are part of you; that other person is part of that giant collection of people that you are connected to”. undergo some pain or sacrifice for a greater bte noer ftio avoid a greater harm … In each case, soomste i sc borne for the sake of the overall social good. …t tBhuere is no social entity with a good that undoersg some sacrifice for its own good. There are onlyi viinddual people, different individual people, withe tir own individual lives. Using one of these people tfhoer benefit of others, uses him and benefits os.t her Nothing more”. (cited in Tushnet, 1992: 563). 82 Western feminist scholars identify the followinhgr ete primary dichotomies between men’s and women’s thinking: “while women emphasize connection, sutbivjeitcy and responsibility, men emphasize autonomy, objectivity and rights” (Tushnet, 1992: 582). 57 In stark contrast with post–Enlightenment liberal thinking, Mbigi (1997: 2) explains the African concept of ubuntu as follows: “Ubuntu is a literal translation for collective personhood and collective morality. It is best expressed by the Xhosa proverb, umuntu ngumuntu ngabantu which means I am because we are. We have to encounter the collective we before we encounter the collective I. I am only a person through others. Ubuntu is not just an abstract concept of our African lives. It is expressed in our collective”. Ubuntu is based on strong communitarianism and group rights and contrasts with Western liberalism. It is, however, similar to Western philosophy in the sense that as philosophy, it too is hierarchical, patriarchal and oppressive.83 De Beauvoir posits (1997: 22): “All religions invented by men reflect this wish for domination and use philosophy and theology to suppress women”. It is, however, not only Western liberalism’s approach to reason and rationality that marginalised women and Africans, but its outright superior attitude towards these categories of humanity. Throughout the history of Western liberalism European women and Africans were at most perceived as adults with the status of children. In Rosseau’s seminal work, Emile (1762), he propounds the idea of women’s inferiority when he gives instruction on marriage. “Women’s entire education should be planned in relation to men, to win their love and respect, to raise them as children, to care for them as adults, counsel and console them, make their lives sweet and pleasant”.84 Kipling’s poem You will be a man My Son (cited in Muendane, 2006: 70) reveals the Eurocentric thinking that denigrated also Africans to the level of children: Take up the White man’s Burden Send forth the best ye breed Go bind your sons in exile 83 See 4.11.3. 84 In Rosseau’sT he Social Contrac (t1968:18) this great Enlightenment philosophelrs c hails wife, Thérése Le Vasseur, “backward and stupid and plain”. Mosrteo naishing about this icon of Western philosoph y is the fact that “Thérése bore him five children, wwheor e all dispatched to an orphanage as soon a sw tehrey born”. 58 To serve your captive’s need To wait in heavy harness To fluttered folk and wild Your new-caught sullen peoples Half-devil and half child. Western feminism, as postmodernist philosophy, opposes the dominance of liberalism: its masculine power structures, gender biases and laws that discriminate against the category Other. Feminism is political85 and committed to bring an end to the oppression, subordination, abuse and exploitation of women and the Other. Their aim is to restore to all Other the freedom, equality, autonomy and human dignity that is due to all humanity. Western Feminism adds a new dimension to Western philosophy, insisting that a person’s gender conditions the way he or she approaches the world. Feminists insist that women can do philosophy as well as European men and add the bonus of humanness and intuition. Feminist postmodernism86 and African philosophers claim there are more philosophical realities than the Western male’s claim to reason. They see Western rationality as a tool to monopolise philosophy and dominate humanity. As postmodernism reveals the bigger picture in philosophy, Western feminists and African philosophers argue that “the Western theory of ideas is not the self appointed right to reason, the sole producers of wisdom and the holders of truth” (Ramose, 2002{a}: 2). As categories of the Other, they reject the gatekeeper style of European rationality, its dualism: opposing itself to the Other; its philosophical claims of a single absolute truth and single value system. They are adamant that there is no longer a single universal truth, only different 85 Elam (1994, 1;11;18) states that whilst feminism s eien as a political project, deconstruction s emeomrse philosophical. Whereas “feminist philosophy turnnst o i feminist readings, deconsstrctive philosophy depends upon the deconstruction of philosophy”r;e t hise however “disciplinary crossing”. 86 Feminist postmodernism maintains social identsit y friagmented. “Feminist postmodernism replaces unitary notions of women and feminine gender idtey nwtiith plural and complexly constructed concepsti on of social identity, treating gender as one rele vsatnrat nd among others, attending also to class, race ethnicity, age, and sexual orientation” (Nichols 1o9n9, 0: 34-35). 59 philosophies. Whilst “philosophical apartheid” persists in the West it must be stated that ‘different’ does not mean inferior. The ‘different’ Other calls for a radical renewal of the term philosophy. 2.4.4 Opposing Worldviews Aristotle insisted that philosophy begins with and continues as a ‘sense of wonder’.87 This ‘sense of wonder’ urges the philosopher to reflect on the human experience and search for answers to fundamental questions. A philosopher’s sense of wonder or philosophy, always springs, according to Imbo (1999: 4), “from the society in which the philosopher grows up, with its religious proclivities or the lack thereof, the social class from which the philosopher has been drawn and the events that have shaped the philosopher’s education”. Imbo implies that the human experience does not present itself to us in the same way, rather that different worldviews88 produce different philosophies. One’s worldview is one’s comprehensive reality originating from one’s culture, religion, politics and social class; one’s worldview is one’s philosophy. Wittgenstein says the central aim of philosophy is to see something as it is: “We might say ‘every view has its charm,’ but this would be wrong. What is true is that every view is significant for him who sees it so (but that does not mean ‘sees it as something other than it is’). And in this sense every view is equally significant” (cited in Bell, 2002: 1). In line with Wittgenstein, thinkers have appealed for the so-called Principle of Charity to be applied. This principle states that one should be maximally charitable when judging worldviews, or philosophies, of other cultures. According to Sogolo (2002: 258), one should assume that worldviews from another culture accord “with the standards of one’s own culture and one should assume further that it is consistent and correct”. According to Davidson (cited in Sogolo, 2002: 258), “[t]he Principle of Charity is ‘forced on us; whether 87 In the Republic ,Plato shares the same view as Aristotle when yhse tsha t to wonder is the beginning of philosophy. 88 A worldview is one’s ideology or philosophy whicihs based on one’s set of beliefs or values (weltanschauung). 60 we like it or not, if we want to understand others, we must count them right in most matters”. In spite of Wittgenstein’s plea “that every view has its charm” or the Principle of Charity, Western philosophical reality is that every view is not equally significant. Because of this discriminative philosophical basis, communitarian societies, viz. traditional African societies, American Indians and the Aborigines and Maoris of Australasia have been denied the right to voice their worldviews in the Western tradition. They have been branded as pre-scientific, irrational, primitives and denied the right to voice their theories of ideas. Neither the Greek idea of philosophy being a universal reflective exercise, nor Wittgenstein’s idea of philosophy being a mirror image of one’s worldview, proved itself fruitful in the Other’s quest to be included as equals in the universal enterprise called Western philosophy. As the Western theory of ideas is synonymous with the ideals of democracy and human rights, the West as torchbearer of these liberal ideals, is supposed to comprehend the importance of acknowledging worldviews of the Other. The worldview of a Westerner should be as significant as the African’s view of reality. Negating the Other’s worldview equals a declaration of war. Different worldviews should therefore not make comparative judgments on each other but should strive for tolerance and cross-cultural understanding of each other’s philosophies. Bell (2002: 1) rightfully argues that the time has come to grant the status of philosopher also to those whose customs, history, religions, mode of expression or worldviews are foreign to ‘ours’. This would imply however that the assumed post-Enlightenment fundamentals of Western philosophy are not universal to all humans. 61 Postmodern philosophy argues that traditional approaches in Western philosophy exclude and marginalise the Other. Postmodernism89 and Western feminism compel Western philosophy to bring about an inclusive philosophical approach that would embrace humanity’s different experiences and worldviews. The role of Western philosophy as the advocate of racial prejudice will now be discussed. 2.5 WESTERN PHILOSOPHY: A PHILOSOPHY CONDONING RACIAL PREJUDICE Before the onset of the Atlantic slave trade in the seventeenth century, there was “no racism in the instrumentalist sense” (Davidson, 1994: 337). However, when the droves of chattel slaves arrived from Africa, Europeans began to depict Africans as inferior humanity. The subhuman nature of African chattel slaves sparked a cultural bias, called the “older racism” (Davidson, 1994: 319). In the eighteenth century, the Enlightenment philosophers sparked a “new racism” (Davidson, 1994: 319) which justified slavery and imperialism and condemned Africans as less than human. The Enlightenment rationalised racial superiority and ethnocentrism. Abraham (1962: 160) and Ramose (2002{b}: 28-29) posit that “racism was implanted in Africa through European colonisation” and reshaped Africa in the best interest of European colonial powers. It is suggested that Christian missionaries brought not only Christianity to Africa, but the progressive destruction of African reality. This section gives an overview of the following: 89 Theron (1995: 85) describes postmodernists ask ethrsin who “would simply rejoin that indifferent, we might almost say pre-veridical, state of pre- onr -nCohristian world”. He accuses the modern philosicoaplh movements of the West of collectively represent“ian gla rge-scale apostasy, to which modern philosrosp he such as Spinoza have supplied the metaphysics, Jfrewe-smasons and Protestants working togethern bde hi the scenes, through publishing houses, politics inatnedrnational finance, to destroy the Western Colaict h heritage with its distinctive tenets in favour o Nf eaw Age type of humanism now posing as univerts anlisd anti-colonial”. 62 • Background. • Racial prejudice and slavery. • Racial prejudice and the Enlightenment. • The contradictions of the Enlightenment. • Racial prejudice and colonialism, and • Racial prejudice and the Christian civilising process. 2.5.1 Background As Europeans have historically posed Africa as a continent devoid of history and philosophy, it has become imperative for African scholars to deconstruct and reconstruct90 African history and philosophy in order to establish the African reality. Whilst deconstruction techniques on the one hand confront African scholars with Europe’s colonial incursion and ravage of the African continent, reconstruction techniques bring challenges to establish Africa’s true place in world history, culture and philosophy. The importance of deconstruction is emphasised by Oruka (1978) when he states that African philosophy is the African continent’s philosophical reaction to its colonial legacy. From an African point of view it is essential to point out “the wretchedness that has resulted from [Europe’s] imperialistic deployment and to locate the source of the stench that continues to affect intellectual praxis concerned with African philosophy” (Outlaw, 2002: 139). Whilst Western philosophy views itself as an inclusive, universal philosophy the African Other view it as a Gorgon.91 African philosophy is a philosophy intertwined with the injustices of Western philosophy: a philosophy entrenched in racial prejudice. 90 Outlaw (2002: 139) posits that deconstructive arencdo nstructive practices have been applied in an “attempt to sanitise African intellectual practi coefs their necrophilia: that is, their concern ton sctoruct a self-image in the mirror of a decomposing, putrGidr,e co-European philosophical anthropology that has been embodied in the dominant voices and tradi toiof nWsestern Philosophy”. 91 According to Greek mythology, a Gorgon was a huidse mo onster in the form of a female with wings, tusks protruding from its mouth and snakes for .h Aa isringle glance from a Gorgon could turn anyonheo w saw it into stone. 63 It is generally acknowledged that the term race entered English and European languages in the sixteenth century as “race began to refer to family, lineage and breed” (Rattanzi, 2007: 230). It was, however, not until the eighteenth century that race became entrenched in European society. Davidson (1994: 337) argues that there was “no racism in the instrumentalist sense in which the term is rightly used today” before the onset of the Atlantic slave trade. Although racism was not endemic, people were always biased towards Others as far-away peoples were universally seen to be “abnormal, disliked and not to be trusted”. Davidson (1994: 338) illustrates this notion by going back as far as the histories of Herodotus in 450 B.C., the locus classicus, indicating that peoples far away from ‘the known world’ were universally seen as strange, and as distance widened “they altogether ceased to be human like you and me”. According to Davidson, this universal belief was still evident half a century ago among the Lugbara of Uganda who “found to believe in all good faith that people became hostile, strange, and ‘upside down’ in the measure that they dwelt farther away or far from the Lugbara homeland. The most distant strangers known to the Lugbara, even if known only by hearsay, were believed to be creatures that habitually walked on their heads or hands and indulged in other habits which the Lugbara thought perverse and wicked. Distance multiplied deviation, and all this bespoke customary superstition, distrust of foreigners, various onslaughts on xenophobia, and so on. But it did not bespeak racism”92 (Davidson, 1994: 338). Between the fifteenth and eighteenth centuries, the growing presence of European traders, missionaries, military forces and racial prejudice resulted in the colonial exploitation of sub-Saharan Africa. Portuguese traders were the first to arrive in West Africa between the mid-fifteenth and mid-seventeenth centuries to set up trading posts for slaves, ivory, gold and ostrich feathers (Pakenham, 2005: 16). From the mid-seventeenth century onwards, the Dutch, Belgian, French, German and British also started invading Africa. Meanwhile, in the New 92 African reality also poses a manicheism, or Ot Shere. 4.11.4. 64 World, European investors planted cotton and sugar and soon realised that they needed slaves to work their plantations. Their desperate need of slaves in the New World resulted in the West African slave trade93 and vested European interest in the African continent. The role Western prejudice played during the slave trade will now be discussed. 2.5.2 Racial Prejudice and Slavery Slavery had existed in Africa since time immemorial; long before the onset of European colonialism. Not only did Egyptian pharaohs make use of slave labour to build their pyramids, but Africans tribes in central and southern Africa habitually enslaved each other after armed clashes. These slaves were considered part of the tribe or family and could regain their freedom in various ways. According to Van Dijk (2006: 81), these early forms of slavery cannot be compared with the subsequent trade in African slaves launched by Arabs and Europeans, which began in the fifteenth century. The Arab slave traders from North Africa were the first to launch the international slave trade in African men, women and children from Central Africa. The bitter truth of the magnitude of the slave trade was that “the slave trade was made possible by the co-operation which European slave traders got from Arab94 as well as African slave traders. In many cases African rulers enriched themselves at the expense of their subjects” (Van Dijk (2006: 83). 93 “Like the gold trade it [slave trade] demandedE nuor opean interference in the mysterious affairsth oef [African] interior. Down to the steamy ports of thSelave Coast west of the river Niger came the lionfe s shuffling slaves, to be unshackled and graded, emteadrk, reshackled, loaded and despatched with mmin imu loss (perhaps a third died) to the slave farms roafz iBl, America and the West Indies” (Pakenham, 2: 005 16). 94 “I assure you, the Arab man is not our brother. isH eo ur rapist and our slave master for a thousand years in Africa. He is our devil bastard child, ne vweorse than the white one … The Arabs and the iMmuss l … are without peer the two greatest pressors ocf kB plaeople in world history. No nation of Black moen earth has ever been more abused, more violatedo roer dmehumanised than they have been by this thdo usan years of Arab Muslim racial and religious slavegrye,n ocide and oppression. As I wrote to my beloved Amiri Baraka – if I had to choose between the Asralabv emaster and Caucasoid slavemaster – I would choose the white Caucasoid. For at least he caimn pbree ssed, seduced and mentally manipulated” (Boof cited in Stewart, 2005: 175). 65 This sub-section includes the following: • Chattel slaves from Africa. • African slave traders; • Justice and slavery, and • Western philosophers condone slavery. 2.5.2.1 Chattel Slaves from Africa The European invasion of Africa began in 1415. First the Portuguese, then the Spanish and later the English, Dutch, French, Belgians and Germans joined in the conquest of Africa. In the late fifteenth century, Portuguese traders were the first to trade gold, ivory and African slaves from North Africa on the Iberian market to be sold as slave labourers on the sugar and cotton plantations of the Atlantic islands and later, in the colonies of the New World (Freund, 1998: 37- 38). Slavery was nothing new to the Spanish and Portuguese as they had been involved in slavery even before the new World was discovered, but there were very few chattel slaves. With the discovery of the New World by Columbus in 1492, the English, Germans, French, Portuguese and Scandinavians flocked there in their droves. “After most of the ‘Indians’ of North America and the ‘Indios’ of South America had been wiped out95 [by the settlers], the few survivors were found to be ‘useless’ as labourers and other labourers were urgently required for the extensive plantations which the Europeans had established” (Van Dijk, 2006: 85). According to Davidson (1994: 337), “no ideology of instrumentalist racism existed up until then” but when the droves of chattel slaves from Africa arrived “something more was needed if the slave trade was not to be threatened by abolition”. Europeans had to justify the use of African chattel slaves. 95 According to van Dijk (2006: 91), the original ianbhitants of America had been “dispossessed of their land and their numbers reduced through genocide inafnedctious European diseases, which further demoralised them”. 66 Chattel slavery, a new dehumanising form of slavery, had to be legitimised. Chattel slavey was justified by Europeans by depicting Africans as a pagan people of an inferior humanity; a people who could only benefit from slavery and baptism at the hands of their European saviours. Davidson (1994: 340) narrates how the Catholic kingdoms of Spain and Portugal legitimised African slavery by presenting their arguments for the enslavement of Africans in their distinctive courts. In 1450, Zurara, the Portuguese royal chronicler, assured the Court in Lisbon that West Africans were “sinful, bestial, and because of that naturally servile” and argued that enslavement presented a means of “spreading Christianity, of giving the means of salvation to pagans otherwise condemned, ineluctably, to the fires of hell” (Davidson 1994: 340). Both of these Christian kingdoms presented Africans as subhumans; pagans only fit for enslavement. European slave traders of the triangular trade left Europe in sailing ships in the seventeenth century to barter goods for slaves on the African west coast en route to the New World. Along with slavery came its “twin brother, racism”, also called the “older racism” (Davidson, 1994: 319), which spread around Europe after the Atlantic slave trade reached its peak in 1630. It was easy to justify slavery in European and American societies as they held African humanity in contempt. “Slavery was legitimised by already existing views of Africans as inferior, which were then developed once the institution of slavery became firmly entrenched” (Rattanzi, 2007: 30). “Even men and women of otherwise thoughtful and generous disposition came to think it well and wise that Africans were carried from their endless night of savage barbarism into the embrace of a superior civilisation” (Davidson, 2003: 216). The African Diaspora had begun: twenty million96 African men, women and children were to be shipped off as slaves from Africa across the Atlantic where they were to be auctioned to slavers97 in the New World. Up to the 1800s the 96 Conservative estimates suggest that 20 millioni cAanfr slaves were shipped off by European slave traders. Estimates however, range between 20 mn iallniod 50 million slaves. 97 According to The Economist (February, 2007: 5h9e), rtole Africans themselves played in the ‘trianagr ul trade’ is usually conveniently ignored. Before Ethuer opeans arrived in Africa “the slave trade anadv esrly 67 mortality rate98 of the slaves was so high that whole slave populations had to be replaced every few years (Davidson, 2003: 218). As the inhumane and oppressive conditions of the African slave trade was hidden from the public eye99, the European public was unaware or barely knew about the degradation, humiliation, atrocities and injustices that accompanied this abhorrent trade.100 In Britain, as in Spain and Portugal, it was not difficult to justify African chattel slavery. Slavery was nothing new in Europe as Europeans had traded in east European, Mediterranean and Muslim slaves from North Africa since medieval times. “[N]one of this slavery was chattel slavery, mass slavery [or] plantation slavery; rather, it took the form of what may perhaps be called ‘wageless labour’ – coerced, but in no way subject to any kind of market law” (Davidson, 1994: 336). Davison (1994), Freund (1998) and Rattanzi (2007) confirm that racial prejudice towards East European, Mediterranean and Muslim slaves from North Africa did not exist. But the chattel slaves of West Africa were very different from these slaves. were already integral parts of local tribal econeosm”.i A Ghanaian historian, Akousa Adoma Perbi, ewsr it that “slavery became an important part of the Aes asntatte … For three centuries, Asante became rtghes lta slave-trading, slave-owning and slave-dealing sinta Gtehana”. 98 According to an English captain, when a slaveu sredf to eat at sea “first his mouth was forced obpye n placing a hot coal next to his lips and then a ml feutnanel was inserted in his throat through whiocho df was forced down” (Van Dijk, 2006: 92). Slave mutiny saeta resulted in ‘Negroes’ being shot or drowne d on the spot. The only successful mutiny of Africanv selsa occurred on the Spanish slave shAimp,i stad ,in 1839. These slaves were later charged with mutnindy maurder. In the ensuing court case the slaveh,, Pie made the following impassioned plea in the cou rMt iennde; “We are the people of Africa and there w ere born free. Since the day of our birth we were farnede have the right to be free. That is why we mreumsta in free and not be slaves” (Van Dijk, 2006: 94). Thilme fAmistad, directed by Spielberg, is based on this mutiny. 99 See American Anti-Slavery SocietyA’sm erican Slavery as It Is: Testimony of a ThousWanitdn esses. 1839. New York, for a full account of the horrorfs s olave life. 100 Davis (cited in Hooks, 1981: 27) argues that tahpee r of black female slaves was not just a caseh oitef w men satisfying their sexual lust, but an institnuatiloised method of terrorism which had as goal the demoralisation and dehumanisation of black womeInn .c “onfronting the black woman as adversary in a sexual contest, the master would be subjectingto h tehre most elemental form of terrorism distincstulyi ted for the female; rape. Given the already terror itsetixcture of plantation life, it would be as poteanl tvi ictim of rape that the slave woman would be most unguda. rdFeurther, she might be most conveniently manipulated if the master contrived a random sy sotef msorts, forcing her to pay with ther body foro dfos, diminished severity of treatment, the safety of chheirldren, etc”. According to Hooks (1981: 33), cbkla slave women were seen as the embodiment of femvial laen ed sexual lust and imposed upon the identfi ty o ‘sexual savage’. 68 The Economist (February, 2007: 59) states that in England101, slavers counted on the Archbishop of Canterbury to justify African chattel slavery before God, and on politicians like William Gladstone, to plead their case in parliament. To justify the enslavement of Africans it became necessary to prove that Africans were subhuman, primitive and pagan. The subhuman nature of Africans was the spark that ignited European ethnocentric cultural bias and racial prejudice, the “older racism” (Davidson, 1994: 319). Whilst the European enslavement of whites was at the time deplored as an act of barbarism, the mass enslavement of Africans was justified by the ideology of racial prejudice.102 What Christians and the law alike forbade Europeans to do to other Europeans was justified when done to Africans under this new ideology (Davidson, 1994: 340). 2.5.2.2 African Slave Traders Freund (1998), Lamb (19987), Davidson (1994) and Van Dijk (2006) note that Europeans were rarely involved in procuring African slaves in the African interior. According to Freund (1998: 44-45), “Europeans rarely ventured far from the coast in pursuit of slaves … The trade was an African trade until it reached the coast”. The triangular slave trade birthed an evil alliance between European, Arab and African slave traders who made sure that human stock was in abundance. Portugal, for example, procured African slaves from King Alfonso of the Bakong tribe in the Congo River estuary. Van Dijk (2006: 87-89) narrates how the Portuguese equipped the Bakong king with weapons, firstly to aid the expansion of Bakong territory and secondly, to hunt people in the adjacent regions and sell them as slaves to his Portuguese and European allies. According to Freund (1998: 45-46), Africans from states in West Africa such as 101 The Economist (February, 2007: 59) states thavte sryla was so integral to the British economy “that there were few men and institutions of wealth whido ndot invest in it, from the Royal Family and the Church of England downwards”. 102 Long claimed to have a special knowledge of Afnrisc and stated that Africans were not only a seep arat species but that slavery civilised them. “Long wcaosn vinced that the lower class of women in Engl…an d are remarkably fond of the blacks and worried t hina tt he course of a few generations more, the Eshn gli blood will become so contaminated … till the whonlaet ion resembled the Portuguese and Moviscoes in complexion of skin and baseness of mind” (Ratta 2n0z0i,7: 31). 69 Oyo, Dahomey, Benin and the Asante, the Igbo-speaking country behind the Niger Delta, and the Imbangala of the Angolan hinterland obtained slaves through raiding expeditions, wars, raids, kidnapping, famine and violence on the continent and then traded or sold their slaves to European slavers. 2.5.2.3 Slavery and Justice In 1789 Equiano, an African slave who purchased his freedom, tried to convince the British people of the horrors of the African slave trade and slavery itself. In his autobiography, The Interesting Narrative of the Life of Olaudah Equiano or Gustavus Vasa, the African, Equiano provided a powerful argument against the idea that Africans were different from any other people (Metaxas, 2007: 98). According to Metaxas, Equiano was not only a deeply sensitive, extremely intelligent human being but also a devout Christian. Al Gore (2007: 86) states that neither logic nor morality was sufficient to dispel slavery because of the corrupt understanding of property that lay at the heart of slavery. Because European slave traders had a complete disregard for basic human rights, African slaves were reduced to a mere tradable commodity to be sold at a profit.103 It is common knowledge that the African slave trade was immensely profitable and became synonymous with wealth and profit. Despite the risk of piracy, shipwrecks and disease at sea, “the slave trade was a factor in the accumulation of capital which helped to fuel the industrial revolution … and played its part in laying the foundation of capitalism” (Freund, 198: 42). Dooling (2007) recites how in the seventeenth and eighteenth century South Africa, wheat and wine production in the Cape Colony was carried out under labour-intensive slave regimes. To sustain such labour-intensive regime required “the use of force [which] dominated the relationship between master and slave 103 To regulate the slave trade European slave tr awderes issued with permits. In terms of this coln tro measure African slaves “were no longer considerse idn daividuals but measured in tonnage. The firscth s u permit was awarded in 1518, while a document da ftrinogm as late as 1696 gave permission to the Portuguese Company to transport ‘10 000 tons ofr oNeesg’ annually” (Van Dijk, 2006: 92). 70 and assured the authority of the former … they were routinely beaten, whipped and deprived of the basic requirements of well-being” (Dooling, 2007: 40). Throughout the world, laws regulating slavery were meant to ensure that slaves surrendered their labour to the authority of the masters. Dooling narrates (2007: 41-45) how slave compliance in the Cape Colony was controlled by an elaborate body of laws of the VOC because “maintaining slavery was not incidental but crucial – slavery disintegrated wherever state support was absent”. Justice for slaves in the Cape Colony consisted of a number of placaats which were published in the Cape Colony between 1692 and 1784 to regulate slave labour. The slave code of 1754 for example, stipulated that if a slave or slave women lifted his or her hands to his master he or she would be punished by death. Although slaves in Roman law had limited rights, these rights were locally seen as the intrusion of the state in master-slave relations and a violation of the patriarchal household. Justice for slaves was further impeded by the fact that landdrosts104 in the colony were not independent and frequently worked to the detriment of slaves and servants. According to Reverend Van der Kemp of the mission station at Bethelsdorp, landdrosts and heemraden were biased, favouring their friends and relations; they were sometimes even accomplices in ill-treating slaves and susceptible to bribery105 (Dooling, 2007: 45). Africans soon learned that European laws did not bring them justice. 2.5.2.4 Western Philosophers Condone Slavery Europeans tended to shy away from the truth about slavery as the philosophy of the day had a formidable influence on how Africans were perceived. Hegel 104 “Landdrostsw ere salaried officials of the VOC who effectivealcyt ed as rural judges. In cases that came before the Court of Justice in Cape Town they sde ravse public prosecutorHs.e emradenw ere unsalaried and chosen from among the most notable land- aanvde -solwners in their respective districts” (Dooli ng, 2007: 43). 105 “For example, when Gerrit Visser of Tulbagh stoaocdc used of killing Marsitrie, a ‘bastared Hoten tot’ he made a gift of 125 sheep to tlahned dros,t H. van de Graaff. In return Van de Graaff did bheisst to bury the case. The Circuit Court of 1812 must have huacdh sinstances in mind when it found that some landdrosts, ‘in order to obtain sufficient subsistence accinogrd to their office,’ were forced to make use of means, not at all consistent with the dignity oef sthituation of Landdrost” (Dooling, 2007: 45). 71 (1991: 99) for instance justifies the slavery of “Negroes” as “a phase of advance from the merely isolated sensual existence – a phase of education – a mode of becoming participant in a higher morality and the culture connected with it. Slavery is in and for itself injustice, for the essence of humanity is Freedom; but for this man must be mature”. Hegel describes the Negro race as an inferior savage people where neither tyranny nor cannibalism is wrong. “Cannibalism is looked upon as quite customary and proper … their lots in their own land is even worse, since there a slavery quite as absolute exists; for it is the essential principle of slavery, that man has not yet attained a consciousness of his freedom, and consequently sinks down to a mere Thing – an object of no value” (Hegel, 1991: 95-96). Montesquieu concurred that “slavery was against nature, but nonetheless justified it for its economic value” (Internet {b}, 2007). Hegel (1991: 99) justifies the injustices of chattel slavery as a necessary educating and civilising mission and urges for the gradual abolition of slavery rather than a sudden abolition thereof. Rousseau, in contrast with most Western philosophers, never justified slavery. Rousseau (1991: 53) argues that no man has the right or the natural authority to enslave another. He contends that “the right of slavery is seen to be void” and illegitimate because “the words slavery and right are contradictory, they cancel each other out”. The Hegelian (1991: 99) principle of justice constitutes slavery as an injustice; however, Hegel perceives the enslavement of Africans as “a phase of education” which did not constitute an injustice. Whilst Papal prohibitions at the time declared the enslaving of Christians an injustice, European laws and Christianity too, forbade the enslavement of Europeans (Davidson, 1994: 340). European principles of justice were on the one hand morally bound to obey laws and the church, yet on the other hand, justified the mass enslavement of African chattel slaves as a means of salvation and civilising of the beasts. “Can anybody honestly and seriously suggest … the scales of justice are evenly balanced?” (Mandela, 1994: 312-313). 72 From an African point of view this inconsistency in justice “is immoral, unjust, and intolerable. Our consciences dictate that we must protest against it, that we must oppose it and that we must attempt to alter it … men I think are not capable of doing nothing, of saying nothing, of not reacting against injustice, of not protesting against oppression …” (Mandela, 1994: 317). Another African view of justice, that of the ancient Egyptian King Tutmosis III, 18th dynasty, reveals the following: “Treat the person you know equally with the person you do not … Let men fear you because you offer justice … This is laid upon you” (cited in Theroux, 2004: 228). Thanks to Wilberforce – influenced by the philosophy of Rousseau – slavery was abolished in Britain and its colonies in 1807. Slave trading was abolished in Denmark in 1803, Britain in 1807106, United States in 1808, France in 1818 and South Africa in 1838.107 Although slave trading in the United States was abolished, the slave trade continued until the Thirteenth Amendment to the America Constitution abolished slavery in America in 1865.108 It must be noted that Africa was the only continent from which so many people were forcibly abducted and enslaved. Since the abolition of the Atlantic slave trade, “slavery has been recognized as the most abhorrent violation of a person’s liberty” (Kapstein, 2006: 107). Article 7(1) (c) of the Rome Statute of the International Criminal Court, 1998, classifies slavery as a crime against humanity. 106 In 1807 Britain abolished slave trade in all Bsrhit icolonies. Britian recently celebrated two ceinetsu or f freedom from slavery; the reality is, though, tthhaet modern global slave trade is alive and wellp. sKteain (2006: 103-115) states that the slave trade wa se lnimotinated during the nineteenth century, but tiht at continues to thrive in our modern era of human trsi.g Khapstein accentuates the fact that the modleorbna lg slave trade is as pernicious and much larger thea nA tlantic slave trade ever was and notes theo wfoinllg: The United States government estimates that 60-08,000,000 people are subjected to human trafficking each year; the United Nations states that slavee bs eairng trafficked from 127 countries and explo iitne d137 countries; 80 percent of slaves on the global mt aarrke female of which 50 percent are under 18 y oefa rs age; 43 percent of these slaves are used for sheilxs,t w32 percent are used as unpaid labour; thera agvee price paid for a slave is $12,500. It is estimattheadt 27 million people are currently suffering so fmorem of enslavement (Metaxas, 2007: x). 107 On 1 December 1838, 38 000 slaves were set fr ethee i nCape Colony. “The freed slaves left their masterse n mass”e (Dooling, 2007: 116). 108In 1883 the United States Supreme Court ruled vino ufar of racial segregation. Between 1890 and 1900 1100 blacks were lynched “especially those accuosfe din sulting behaviour towards white women” (Rattanzi, 2007: 44). 73 Although liberal modernity denies its racialised history and prejudiced culture it is a fact that the notion of race rooted itself in European societies from the sixteenth century. The role played by Western racial prejudice and the hegemony of liberalism during the Enlightenment will be discussed. 2.5.3 Racial Prejudice and the Enlightenment By the 18th century, European philosophy had entered into the Enlightenment or the Age of Reason. The European Enlightenment signalled the Age of Reason, an era that would finally shed the shackles of medievalism, authority and superstition. A group of enlightened thinkers109 challenged the tyranny of the feudal societies based on the inherited privileges of kings, the church and nobles. The following will be discussed in this subsection: • Background. • The philosophies of Hume, Kant, Hegel, Voltaire, Montesquieu and Rousseau, and • The Contradictions of the Enligtenment. 2.5.3.1 Background The Enlightened philosophers vocalised the dissatisfactions of the growing middle-class and proposed the ‘rights of man’ against ‘the divine rights of kings’, pointing out the inequalities of a rigid and corrupt feudal society. The Enlightenment emerged in Britain and spread to France, Spain, Italy, Germany and beyond, proclaiming the rule of rational law, the belief in human equality and individual liberty.110 The Enlightenment marked a philosophical paradigm shift: the beginning of the Western love affair with science and technology. Central to the Enlightenment was the assault on religious superstition and the replacement 109 Enlightenment philosophers, viz. Paine, Rousseadu H aunme, questioned and challenged the authority of both church and state. 110 De Tocqueville is of opinion in his thesiDs,e mocracy in America t,hat liberty and equality are not entirely compatible and that the desire for eqyu awliitll ultimately destroy liberty. 74 of God by a new ‘rational religion’. Rationality embodied reason and a scientific worldview void of any religion and superstition. Religion was moved from public life and public authority and reserved for the private sphere and private practice. Enlightenment liberalism signalled the dawn of the modern individualist tradition. With individualism at the centre of the Enlightenment the individual became the creator of truth and reality. Through science and reason, the watchwords of the Enlightenment, philosophers believed they would establish a living paradise on earth: a society in which there would be equality; no more misery or injustice (Soloman et al., 1996: 192). This new intellectual movement brought victory over the authority of the church111; sparked European rationality to claim universality; empowered women to raise the question of their inequality; and challenged the domestic tyranny of men. The down side of this optimism however was that the riches and affluence that made the Enlightenment possible came from the toil of Others, as “the elite members of the European culture built their position on the backs of [African] slaves” (Soloman et al., 1996: 193). The new paradise on earth with its promises of eradicating all forms of misery and injustices were clearly not meant for Others; least of all for Africans. The Enlightenment’s commitment to equality tragically resulted in nothing more than lip service. For the Other, the Enlightenment’s conception of individuality signalled the reality of racial prejudice, patriarchy, class, gender and racial restrictions. With the rise of the Enlightenment dawned a “new racism”, viz. “frantically an anti-Black racism” (Davidson, 1994: 319) which manifested itself through the racist and ethnocentric philosophies of Enlightened philosophers such as Montesquieu, Voltaire, Locke112, Hume, Kant and Hegel. These 111 The enlightenment freed science from morality a“unldti mately nourished the Holocaust” (Rattanzi, 2007: 24) and apartheid. 112 John Locke, the great defender of natural rigwhtass, the owner of a number of slaves (Soloman ,e t al. 1996: 193). Bracken contendsP inh ilosophy and Racismth at Locke “is a pivotal figure in the development of modern racism in that he provides a model whpiecrhm its us to count skin color as a nominally etsiasle n property of men. This comes about because in thuers eco of his formulations of theories of essence and substance it emerges that the essential propeorft imese n are computed like those goof ld. What appears to be a simple system of classification based one tsa lolif observed properties in fact facilitates cionugn ct olor, 75 Enlightenment philosophers were instrumental in the “new racism”: a racial prejudice that justified slavery and imperialism and condemned Africans to being less than human. Kant and Hegel maintained the same view on Africans and proclaimed that only “European modernity grasps the real in contradistinction to the ephemeral non-reality of non-European existence” (Serequeberhan, 2002: 65). The ethnocentric stereotyping of Africans and the prejudices of the Enlightenment philosophers resulted in the intellectual, cultural and psychological divide between Europeans and Africans. The idea of Rousseau’s “noble savage”, the life of American Indians depicted as paradise before the fall, made way for the general racist philosophy of the Enlightenment era: depicting Rousseau’s noble savages as pre-scientific barbarians. The racist philosophies of the Enlightenment proclaimed in “trite and bland prejudice that European existence is, properly speaking, true human existence per se … [and justified] the metaphysical ground for the ‘normality’ and legitimacy of European global expansion and conquest” (Serequeberhan, 2002: 66). The Enlightenment era rationalised and legitimised European imperialism and racial prejudice in Africa. Faber, a scientist at Stony Brook University, found “the Enlightenment model of dispassionate reason as the duty of citizenship empirically bankrupt” (cited in Gore, 2007: 28). It was the same dispassionate reason that ultimately birthed scientific racism, Nazi anti-Semitism and apartheid. 2.5.3.2 The philosophies of Hume, Kant, Hegel, Voltaire, Montesquieu and Rousseau 2.5.3.2.1 Hume The English philosopher, Hume (1711-1776), was a key figure in the age of Enlightenment. He evaluated the moral, rational and intellectual capacities of people by classifying them according to skin colour. Hume believed a profound sex, language, religion, or IQ as ‘essential’. Iendd,e there is no mechanism within the Lockean motod el rule out counting skin color as the ‘essential’ pperroty of men” (cited in Ramose, 2002{b}: 12-13). 76 and fundamental difference existed between different races in not only skin colour but also mental capacity. In his revised version of On National Character (1754) Hume notes: “I am apt to suspect the Negroes in general and all species of men (for there are four or five different kinds) to be naturally inferior to the whites. There never was a civilized nation of any other complexion than white … No ingenious manufacturers amongst them, no arts, no sciences. On the other hand, the most rude and barbarous of the whites, such as the ancient Germans, the present Tartars, have still something eminent about them … Such a uniform and constant difference could not happen … if nature had not made original distinction between these breeds of men” (cited in Rattanzi, 2007:27). Hume alleges that Africans’ lack of industries, arts and sciences justifies its subordinate role in Western society. His “philosophical casting of racial differences between Europeans and Africans framed the African outside of ‘proper’ humanity” (Eze, 198: 214). Hume affirms the inferior and subhuman status of Africans to Europeans. He not only denies the rational capabilities of the African brain but seriously doubts any meaningful intellectual achievement on their part. He compares the intellectual achievement of Africans to those of parrots that can speak a few words. “In Jamaica indeed they talk of one Negroe as a man of parts and learning; but it is likely that he is admired for slender accomplishments, like a parrot who speaks a few words plainly” (Hume cited in Wiredu, 1998: 199). African philosophers, viz Wiredu and Biakolo accuse Hume of racial prejudice. Biakolo (2002: 9) maintains the philosophies of Hume, Voltaire and Montesquieu is ethnocentric. It must however be acknowledged in Hume’s favour that he condemned slavery. 3.5.3.2.2 Kant The German philosopher, Kant (1724-1804), had a profound influence in the areas of philosophy of religion, ethics and aesthetics. Kant, known for his Moral 77 Philosophy and Third Critique, perceived the Enlightenment113 as the age for ‘man’s release from his self-incurred tutelage’. From Kant’s point of view the Enlightenment signalled Europe’s liberation from intellectual oppression and the emancipation of reason. Whilst Enlightenment philosophy challenged the tyranny of feudal societies, the church and nobles in its quest for an equal and just society, Kant, in 1764, clearly indicates his racial bias as follows: “this fellow is quite black … a clear proof that what he said was stupid” (cited in Rattanzi, 2007: 27). Kant believes Europeans to be superior to the rest of the world and observes Africans to be without the faculty of reason and unable to affect ‘man’s release from his self-incurred tutelage’. According to Kant, Europe was to bring enlightenment or civilisation to Africans by giving them the law of reason. Kant (1960:110-111) affirms the ethnocentric bias of Hume in his Observations on the feeling of the beautiful and sublime as follows: “The Negroes of Africa have by nature no feeling that arises above the trifling. Hume challenges anyone to site a single example in which a Negro has shown talents, and asserts that among the hundreds and thousands of blacks who are transported elsewhere from their countries, although many of them have even been set free, still not a single one was ever found who presented anything great in art or science or any other praise-worthy quality, even though among the whites some continually rise aloft from the lowest rabble, and through superior gifts earn respect in the world. So fundamental is the difference between these two races of man, and it appears to be as great in regard to mental capacities as in color”. In Kant’s Von den verschiedenen Rassen der Menschen (1775) he explains the emergence of humanity as originally consisting of the white race. According to Kant (cited in Neugebauer 1991{a}: 247-257), the black race emerged because of humid heat scorching the white skin of the original species. Kant classifies four 113 According to Kant, in theF oundations of the Metaphysics of Moraalns d What is Enlightenmen t, “Enlightenment is man’s release from his self-inrceudr tutelage. Tutelage is man’s inability to makse uof his understanding without direction from anotheer.lf -Sincurred is this tutelage when its cause lieost in lack of reason but in lack of resolution and couer atog use it without direction from anotheSra. pere aude! Have courage to use your own reason” (cited in Rsaem, 2o002{b}: 9). 78 human races: the superior European white race, Asia’s yellow race, Africa’s black race and the red race of the Americas. He finds the races lowest on this racial scale deficient of reason and rationality, in particular the African peoples, and blames anthropological and climatic reasons for Africans being idle and lacking in character. Kant finds the difference in mental capacity between the two races as profound as their difference in colour and fears that by interbreeding the different races, the white race will be disfigured. In his opinion, idle Africans can however be ‘trained’ as servants by means of corporal punishment; flogging them into submission with a split bamboo rather than a whip, inducing the necessary pain on the Negro’s thick skin. Kant’s notion of African people lacking “true rational character, true feeling, moral sense, true worth and dignity” (cited in Serequeberhan, 2002: 69) is questionable since he never left his country or native city, Königsberg, to pay Africa a visit. Whilst both Hume and Kant pose as experts on Africans, their “acquaintances with black people was negligible” (Rattanzi, 2007: 27). Whilst Eze (2002: 430) accuses Kant of producing the “most profound raciological thought of the eighteenth century, Wiredu (1980: 49) maintains Africans needs a certain levelheadedness to deal with Western philosophy as “[n]either Hume nor Kant displayed much respect for the black man”. 2.5.3.2.3 Hegel The German philosopher, Hegel (1770-1831), is known as the foremost philosopher of his time. Hegel, a follower of Kant, explains his profound idea of history114 in The Philosophy of History at Jena in 1821. In his philosophy of history, Hegel concludes that the history of the world is none other than the progress of the consciousness of the world. Hegel (1991: 91-99) concludes that Africa has played a nonexistent role in the history of the world. He observes 114 In 1963, in a series of television lectu roens The Rise of Christian Europe, the Oxford Hisatno,r iHugh Trevor-Roper, dismissed the history of Africa asa mninegless. “Perhaps in the future,” he argued, r“et he will be some African history … But at present, teh eisr none; there is only the history of the Euronpse ian Africa The rest is darkness … and darkness is nsoutb aject of history”. Trevor Roper’s interpretat iwonas part of a long-standing European school of thou gohitn,g back to Hegel and beyond” (Mazrui, 2002:3). 79 African culture and finds that because Africans live in a primitive state, unconscious of themselves, they are incapable of culture, history115 and reason. Hegel (1991: 99) states that Africa has “no historical part of the world; it has no movement or development to exhibit … What we properly understand by Africa, is the Unhistorical, Underdeveloped Spirit, still involved in the conditions of mere nature, and which had to be presented here only as on the threshold of the World’s History”. Hegel finds the characteristic feature of Africans to be the fact that their “consciousness has not yet attained to the realization of any substantial existence – as for example, God, or Law – in which the interest of man’s volition is involved and in which he realises his own being. The distinction between himself as an individual and the universality of his essential being, the African in the uniform, undeveloped oneness of his existence has not attained; so that the Knowledge of an absolute Being, an Other and a Higher than his individual self, is entirely wanting” (Hegel, 1991: 93). Hegel sees the African in Hobbesian terms, as man in the original state of nature, living a short and savage life without rules; a slave to desire and interest. He stereotypes the African as man who “exhibits the natural man in his completely wild and untamed state. We must lay aside all thought of reverence and morality – all that we call feeling – if we would rightly comprehend him; there is nothing harmonious with humanity to be found in this type of character” (Hegel, 1991: 93). Because Hegel finds Africans to be of a “peculiar character” and without reason, “the mind cannot in such be conscious of Universality. The Negroes indulge, 115 In the ‘Fides et Ratio, Vatican 1998’ Pope Johnu l PIIa implies that Africa has produced nothing remarkable or worth recalling in the history of lpohsiophy since antiquity to the contemporary per iod. Neither Composta nor Copleston give credit or st attou African philosophy in antiquity (Ramose, 2002{b}:5). Nkrumah (1998: 62) says “[t]he histoorfy Africa, as presented by European scholars, heeans b encumbered with malicious myths. It was even de nthieadt we were a historical people. It was said that whereas other continents had shaped history, atnedrm diened its course, Africa had stood still, heoldw dn by inertia; that Africa was only propelled into thoirsy by European contact. African history was thfoerre presented as an extension of European history. lH’se aguethority was lent to this a-historical hyposthise concerning Africa, which he himself unhappily hedlp teo promote”. 80 therefore, that perfect contempt for humanity, which in its bearing on Justice and Morality is the fundamental characteristic of the race … Tyranny is regarded as no wrong and cannibalism is looked upon as quite customary and proper” (Hegel, 1991: 95). Hegel suggests Africans should be excluded from philosophical universality and bases his claim on the following: “The peculiar African character is difficult to comprehend, for the very reason that in reference to it, we must quite give up the principle which naturally accompanies all our ideas – the category of Universality” (Hegel 1991: 193). Although he never set foot in Africa, Hegel claims to be an expert on Africans, giving himself the right to conclude “we leave Africa, not to mention it again” (Hegel, 1991: 99). Hegel’s orientation to Africa “was widely shared by many of its earliest European visitors (explorers, missionaries, seekers after wealth and fame, colonisers, etc.), whose travelogues and ‘reports’ serve to validate the worst characterisation as the European invention of Africa and Africans out of the racism and ethnocentrism infecting Europe’s project in its encounter with Africa as a different and black other” (Outlaw, 2002: 142). 2.5.3.2.4 Voltaire Voltaire (1694-1778) and Rousseau are said to be the two most famous and influential French philosophers of the Enlightenment. Together with Montesquieu and Rousseau, Voltaire contributed to the Encyclopédie, a landmark of the Enlightenment. Voltaire not only passionately defended reason and individual autonomy, but also stereotyped Africans as unfit for philosophy. According to Voltaire, “[Africans] are incapable of great attention, they reason little, and do not seem made to enjoy the advantages of our philosophy nor the disadvantages of our philosophy” (cited in Foutz, 1999: 3). Voltaire compares the profound difference between Africans and Europeans as follows: “the Negro race is a species of men different from ours as the breed of spaniels is from that of greyhounds. The mucous membrane, or network, which nature has spread between the muscles and skin is white in us and black or copper in them” (cited in Foutz, 1999: 6). 81 Not only does Voltaire view Africans as inferior, he also belittles the African physique and intelligence as follows: “Their round eyes, their flat nose, their lips which are always thick, their differently shaped ears, the wool on their head, the measure even of their intelligence establishes between them and other species of men prodigious differences. If their understanding is not of a different nature from ours, it is at least greatly inferior. They are not capable of any great application or association of ideas, and seem formed neither in the advantages nor the abuses of our philosophy” (cited in Foutz, 1999: 7). Voltaire is of the opinion that Africans do not possess the intelligence to philosophise. Voltaire’s racist prejudice becomes evident in his opinion of Scripture’s monogenism: “It is a serious question among them whether [Africans] are descended from monkeys or whether the monkeys came from them. Our wise men have said that man was created in the image of God. Now here is a lovely image of the Divine Maker: a flat and black nose with hardly or any intelligence. A time will doubtless come when these animals will know to cultivate the land well, beautify their houses and gardens, and know the paths of the stars: one needs time for everything” (cited in Foutz, 1999: 7). It is interesting to note that according to Foutz, Voltaire too never set foot in Africa and that an analysis of his personal library reveals that out of 3, 867 books only four dealt with Africa. 2.5.3.2.5 Montesquieu The French philosopher, Montesquieu (1689-1755), was of the opinion that all men were created equal but that as a result of temperature changes, heat caused visible and predictable gradations among them. According to Montesquieu, despotism flourished in hot countries, constitutional societies inhabited temperate climates. He explains his philosophy as follows: “You will find in a climate of the north, peoples with few vices, many virtues, sincerity and truthfulness. Approach the south, you will think you are leaving morality itself, the passions become more vivacious and multiply crimes. The resignation passes to the spirit and leads people to be without curiosity, nor the desire for noble 82 enterprise” (cited in Foutz, 1999: 4). Montesquieu was perplexed by the idea that God could place a good soul in a black body. He states that “one cannot take it into one’s mind that God, who is a wise being, has placed a soul, especially a good soul, in a wholly black body” (cited in Baker, 1974: 18). What has to be noted about the great Enlightenment philosophers Kant, Hume, Hegel, Voltaire and Montesquieu is the fact that whilst they, as experts on Africans, stereotyped Africans as subhuman, not one of them ever set foot on African soil. 2.5.3.2.6 Rousseau The French philosopher, Rousseau116 (1712- 1778), was an outstanding writer and philosopher and best known for his political philosophy in his progressive anti-Enlightenment writing, The Social Contract (1762). Rousseau’s (1968: 49) provocative statement in the first chapter reads as follows, “Man is born free but is everywhere in chains. Those who think themselves the masters of others are indeed greater slaves than they”. Rousseau implies that humans are born free117 and uncorrupted in a state of nature but that European civilisation put humans in oppression and bondage. Rousseau appeals to human emotion and indicates how reason has imposed constraints on fellow humans in the process of domesticating or civilising them, leaving them “dependent, oppressed, unhappy and immoral” (Eze, 2002: 435). 116 Rousseau attacked all the social injustices, vbeurtl ooked one. In his seminal work on educatiEomn,i le, (1762) he writes: “Men and women are made for eoathche r, but their mutual dependence is not eq Wuael . could survive without them better than they coulidth owut us. They are dependent on our feelings t,h oen price we put on their merits, on the value we sne t hoeir attractions and on their virtues. Thus wno’ms e entire education should be planned in relation eton .m To please men, to be useful to them w, itno their love and respect, to raise them as children, to car teh efomr as adults, counsel and con sthoelem, make their lives sweet and pleasant” (cited in Rodriques et al.,1 2: 0101). In Emile Rousseau (1966: 131- 135) describes how a woman was “made to be dominated … Once i t bheaesn shown that men and women differ in character and temperament, it follows that theyh ot ungot to have the same education … It is not ehn oug that [women] be beautiful: they must be pleasing”. 117 Menkiti and p’Bitek reject Rousseau’s statemenat tmhan is born free and is everywhere in chainsth. Bo philosophers state that no African is really indnedpeent; that the African person’s reality is an rinwtoeven interdependence in a web of social relationshipisc hw ihncludes the ancestors and spirits. (Imbo, 2: 010423- 149). 83 In Rousseau’s Discourse on the Sciences and the Arts (1750) he argues that human nature and morals are destroyed by the evils bred by European society or civilisation. Because Rousseau viewed society and its effect on humans as bad, he idealised [American] Indians and the ‘uncivilised’ as Noble Savages. The Noble Savage118, Rousseau’s model of humanity uncorrupted by civilisation, was put in bondage and slavery by enlightened Europeans. The duality of European philosophy as both the liberator and enslaver is evident in Rousseau’s philosophy. “Thus for [European] philosophy, which conceives of ‘mind’ as the guide of the world, violence and conquest are masks for the rationality of the real. This then is how European philosophy in general participates in and contributes to the invention of ‘other realities’ – that is, of the replication of Europe as its cultural, material / physical substratum” (Serequeberhan, 2002: 67). In his Discourse on Inequality, Rousseau urges his contemporaries to return to the primeval forests and become Noble Savages again. Rouseau was one of the first philosophers to object to “the depiction of the Khoisan119 as subhumans, the missing link between civilised man and the bestial apes” (Holmes, 2007: 32). Rousseau’s philosophy also had a profound influence on Wilberforce, who brought about the abolition of slavery in British colonies. 2.5.3.3 The Contradictions of the Enlightenment Whilst Enlightenment philosophers proclaimed human equality and individual liberties, Sarah Baartman120 (1789-1815), our female African icon, stands testimony to the exploitation and degradation experienced by the African Other during this period. Whilst working as a domestic servant in Cape Town, Baartman caught the attention of a visiting English surgeon. He acquired her and set off for London in 1810. 118 Biko (2006: 27) reminds liberals in South Africhaa t “the days of the Noble savage are gone; thea t th blacks do not need a go-between in their strugogrl eth feir own emancipation”. 119 In Diderot’s Encyclopedia he described Hottentots as “the most barbarouasg seasv” (Holmes, 2007: 32). 120 We do not know what Sarah Baartman, also knowSna aasr tjie’s, real name was. She was a member of the Khoisan of the Western Cape, derogatively dca Hlloettentots by European settlers. 84 Baartman, the Hottentot Venus from the Gamtoos River in South Africa, became a stereotype of African Otherness, savagery and barbarism as she was paraded throughout Europe. Enlightenment philosophers were instrumental in stereotyping African women for their alleged promiscuity. Baartman’s steatopygia, protruding buttocks, and “legendary extended labia121 attributed to Khoisan women” (Holmes, 2007: 65) became “the most famous theatrical attraction in Piccadilly, London” (Holmes, 2007: 70). Baartman, the black female slave was “offered as sexual tourism dressed up as education” (Holmes, 2007: 84) by her European master. After objections from opponents of slavery she was sold in 1815 to a Frenchman who carried on the same spectacle in Paris. The exploited ‘Noble Savage’ from Africa, died in Europe at the age of twenty-five after a few years of being ‘dependent, oppressed and unhappy’. At her death Baartman was an alcoholic and presumably died from venereal disease. After the anatomical dissection of her body in Paris, with particular interest in her genitalia, leading European scientists De Blainville (1816) and Cuvier (1817)122 superimposed their template of scientific racism upon her remains.123 According to Holmes (2007: 185), scientific racism124 proclaimed that “Europeans were at 121 It was fictitiously believed that Hottentot womedne veloped a piece of leather on their pubic bon e to cover their external sexual organs. The ‘Hottenatporto n’ resulted from the elongation or ‘pulling’ tohfe labia minora and is done manually amongst certain groups. Tyhteh mof the African male’s reknowned large penis was also borne during this period (aRnazti,t 2007: 28). 122 De Cuvier’sR eport on Observation osf Baartman’s medical dissection notes the folnlogw: i“The Negro race … is marked by black complexion, crisp woohllay ir, compressed cranium and flat nose. The projection of the lower parts of the face, and tthhieck black lips, evidently approximate it to theo nmkey tribe: the horde which it consists have always rienmeda in the most complete state of barbarianismh …es et races with depressed and compressed skulls aree mconnedd to a never-ending inferiority .. her moveds ha something that reminded one of the monkey and ehneirt aglia recalled those of the orang-utang” (Hol,m es 2007: 225). 123 “For two hundred years, Saartjie’s skeleton wattsle rda, her brain dissected, her genital matter efrinegd by inquisitive European men who believed that hiecrk lepd organs held secrets that would reveal the mysteries of the ‘dark continent’ of African fem aslexuality” (Holmes, 2007 : 184). Baartman’s distesde c body became one of Europe’s most frequently anda lysspe cimens, propounding the belief that races were biologically different. A wax cast of Baartman wdais played in the Musée de l’Homme in Paris unti7l 41.9 In 1995 the Khoisan and San petitioned the Soutrhic aAnf government to negotiate with the French government to have Baartman’s remains brought btoa cSko uth Africa for burial. On 9 August 2002, Sa rah Baartman was laid to rest in Hankey in the EasCtearpne . Sarah Baartman’s grave was declared a nla tiona monument. 124 According to Holmes (2007: 185), British impersiamli incorporated scientific racism into its ruling ideology in South Africa and “[t]he apartheid regei mfollowed suit”. 85 the top of the human scale of evolution in the Great Chain of Being, Africans at the bottom; and the so-called ‘Hottentots’ and ‘Bushmen’ of sub-Saharan Africa were the missing link to the animal species. “Allegedly degenerate and brutally inferior, ‘Hottentots’ were assigned the ‘lowest’ rank among the admissibly human” (Holmes, 2007: 185). The Enlightenment, renowned for proclaiming individual freedom and equality, birthed Baartman, the ultimate example of “scientific justification to racism’, to European scientists, anthropologists, ethnographers, psychologists and philosophers. Scientific racism affirmed the superior biology of Europeans over the genetic inferiority of the Others. Chamberlain and Gilman (1985: 292) state as follows: “Initially, degeneration brought together two notions of difference, one scientific – a deviation from the original type – and the other moral, a deviation from the norm of behaviour. But they were essentially the same notion, of a fall from grace, a deviation from the original type”. Not only did scientific racism attempt to prove the inferiority of black and yellow nations but also the inferiority of women. “With the growing popularity of the measurement of the skull and brain size, it was often claimed that women’s low brain weight and deficient brain structures were similar to those of lower races, and this explained their inferior intellectual abilities. Women and the lower races were regarded as being impulsive, emotional and unable to engage in abstract reasoning that was the preserve of the white man” (Rattanzi, 2007: 33). The impact of the philosophical reasoning of the Enlightenment philosophers resulted in the European justification of racial superiority and subjugation of the African race. They “established their superior biology as a way of affirming their priviliege and dominance over ‘Others’. Those who are diferent are seen as genetically inferior, and this, in turn, is used to account for their disadvantaged social position” (Oyèwumi, 2002: 390). Western philosophy proclaimed European 86 superiority over African inferiority. The ethnocentrism125 of philosophers such as Hegel, Hume, Kant, Voltaire, Montesquieu and others painted Africans as irrational, unintelligent, brutish, ignorant, idle, treacherous, savage, thieving, mistrustful and superstitious. Philosophers such as Kant, Hegel and Voltaire, denied Africans their status as rational beings and argued for their exclusion from the ‘category of Universality’. These and other discriminating philosophical claims resulted in the conclusion that “skin colour was decisive in conceding reason” (Ramose 2002{b}: 15). The Enlightenment philosophers fuelled the “new racism” and stereotyped Africans as irrational and inferior beings, resulting in the cultural and intellectual ascendancy of Europeans over Africans. According to Masolo (1994: 3), the Western attitude started out as a mere cultural bias but gradually grew into a formidable two prong reality: slavery and the slave trade on the one hand and academic expressions made by prominent European scholars, such as philosophers Kant and Hegel, on the other. The proclaimed superiority of the European race resulted in a continuous process of enculturation, dehumanisation, inferiority, shame and self-hatred in the minds of Africans. According to Irele (2002: 35), Western racial prejudice resulted in “the black man recognis[ing] himself as belonging to an ‘out group’, an alien in relation to the West, which controls the total universe in which he moves … The sentiment of belonging no longer to oneself but to another goes together with an awareness of inferiority, which becomes translated in social terms into a caste and class consciousness”. Modisane (cited in Irele, 2002: 36) captures this inferiority when he says that “[W]hite is right, and black is to be despised, dehumanized … classed among the beasts, hounded and persecuted, discriminated against, segregated and oppressed … by man’s greed. White is the positive standard, black the negative”. The explicit humiliation and 125 Serequeberhan (2002: 74) defines Eurocentrism aa sp e“rvasive bias located in modernity’s self- consciousness of itself. It is grounded in its c ionr ethe metaphysical belief or idea that Europexainst ence is qualitatively superior to other forms of humaifen” l. 87 degradation suffered by Africans resulted in the acceptance of their inferiority and internalisation of self hate.126 Wiredu (1998) shares his emotions by describing how difficult it is for an African philosopher to take the same cultural pride as the Western student in the philosophical achievements of the great Enlightenment philosophers such as Aristotle, Kant, Hume, Husserl or Frege. Wiredu (1998: 198) advises Africans to “be level-headed when studying some of these philosophers like Hume for example that had no respect for the black man”. The principle of discrimination during the Enlightenment created the belief that “not all persons were thought to share the same level of development or potential to realize rationality, especially at its highest levels” (Outlaw, 2002: 141). The Enlightenment’s principle of discrimination led to the belief that only certain groups of individuals or civilizations could engage in philosophy. European philosophers told Africa that its ‘savage’ African minds produced no history, no culture and no philosophy. Although the great European Enlightenment proclaimed individual liberty and human equality, it showed a definite intolerance towards the philosophies, culture values and rights of the African Other. By Christianisation and ‘civilising’ the African, traditional African values were slowly but surely replaced by the individualistic values of European liberalism. African philosophy finds itself in direct opposition to the notions of the Enlightenment philosophers. The Eurocentric racial prejudice of the Enlightenment philosophers would however be perpetuated in the colonies of the European colonisers. The age of reason closed the rational minds of Europeans to the African cries of human suffering. After America’s Declaration of Independence in 1776, its Constitution, based on natural law principles127 proclaimed humanity and equality for all. The inalienable rights of the American Constitution “thus set the precedent for 126 See 2.8. 127 Story (cited in Van Blerk 2004: 55) affirms thiinsv ocation of natural law as follows, “One of the beautiful boasts of our jurisprudence is that Ctiharnisity is part of our common law from which it skese the sanction of its rights, and by which it endeavotuor sre gulate its doctrine”. 88 America’s most lamentable crime of institutional slavery” (Foutz, 1999: 10). The theologian Cone states that “for the black and red peoples in North America, the spirit of the Enlightenment was socially and politically demonic, becoming a pseudo-intellectual basis for their enslavement or extermination” (cited in Foutz, 1999: 10). Throughout the Enlightenment and thereafter, Western liberalism rationalised racial superiority and racial domination to such an extent that it became normalised in the Western philosophical tradition. The role philosophical racial prejudice played during colonial rule will now be discussed. 2.5.4 Racial Prejudice and Colonialism “At a time in Europe when the slave trade became illegal “the experts on Africa yielded to the new winds of change, and now began to present African culture and society as being so rudimentary and primitive that colonialism was a duty of Christianity and civilisation” (Nkrumah, 1998: 62). The Berlin Act of 1885 formalised Europe’s scramble for Africa and took no heed of the ethnic realities in Africa. Europe’s liberation of the “Dark Continent” resulted in the “European cannibalization of Africa” (Outlaw, 2002: 153). Civilised society replaced existing African social structures and values with the model of the European nation state whilst colonial laws maintained control over the African masses. Under European subjugation, Africans were to be deprived of every human right. Racial prejudice and colonial rule will be discussed next: • Background. • British Colonial rule. • Portuguese and Belgian colonial rule. • French colonial rule, and • German colonial rule. 89 2.5.4.1 Background The exploitation and destabilisation of the African continent began with slavery and continued with colonialism and neo-colonialism. Together with slavery and colonialism came racial prejudice and the denial of African humanity. Abraham (1962: 160) draws our attention to the fact that “Europe brought racism into Africa”. Ramose (2002{b}: 28), Mamdani (1996: 19) and Gyekye (2002) agree that “racism was implanted in Africa” through the process of European colonisation. Mazrui (2002: 28) too, emphasises that “the process through which Europe colonised Africa was that of racism”: a process particularly marked by the dehumanising treatment of the black populations of the African continent. The European logic of colonisation was justified by philosophical pronouncements which resulted in scientific racism, Social Darwinism and the eugenics movement.128 In all the imperialist countries, it was regularly said that “colonisation equalled civilisation, and that the brave pioneers out in Africa were helping ‘the natives’ to a better life” (Davidson, 2003: 193). In October 1884 fourteen European countries assembled in Berlin, at the invitation of the German imperial chancellor Von Bismarck, for the Conference of Great Powers. Bismarck called this conference to discuss the increasing rivalry among European states to acquire African colonies. The Berlin Conference of 1884 finalised agreements among European powers and paved the way for the legitimisation of colonial rule in Africa.129 Although no African state was present or represented at the Berlin Conference, European colonial powers reached consensus on their political division of Africa. In 1885 these countries signed the General Act of the Berlin Conference “which provided that any power that 128 Social Darwinism is Darwin’s theory of evolutiony bnatural selection. “Chief amongst social Darwinists was Spencer who coined the phrase ‘vsaulr voif the fittest’, which sanctioned the belieaf tt hthe technological advances and refined customs of thiete w races were proof of their greater ‘fitnessd’ athne natural necessity that they rule over dark, infre raioces” (Rattanzi, 2007: 54). Social Darwinism wsnpead the eugenics movement: “a study of methods of imvipnrgo the quality of the human race especially by selective breeding” (Collins, 2004: 537). 129 For Europeans the practical application of Desecsa’,r t‘I think, therefore, I exist’ became ‘I thin k, therefore, I conquer and enslave’ (Ramose, 20042):. 46 90 effectively occupied African territory and duly notified the other powers could thereby establish possession of it” (Lamb, 1987: 104). In the Berlin Act signatories undertook to “watch over the preservation of the native tribes, and to care for the improvement of their moral and material well-being” (Van Dijk, 2006: 106). The Berlin Act of 1885 took no heed of prevailing ethnic realities in Africa. The entire African continent with its multiplicity of peoples, cultures and languages was carved into different colonies by the capitalist powers of Europe whilst sitting around conference tables in Berlin (Wa Thiong’o, 2006: 4). These colonial powers divided Africa into countries, viz. Tanganyika, Ghana, Kenya130, Nigeria and so forth without considering the existing social, economic or political realities of the African continent. As Britain’s Prime Minister Lord Salisbury, remarked to a London audience: “We have been giving away mountains and rivers and lakes to each other, only hindered by the small impediment that we never knew exactly where they were” (cited in Meredith, 2005: 2). Mazrui (2002: 49) mentions that these artificial geographical divisions are “all fictions … Africa is a geographical fiction … We were all Africans until colonialism split us”. Pre-colonial Africa experienced a oneness131 and knew no borders until the scramble for Africa or, the “European cannibalization of Africa” (Outlaw, 2002: 153). Africa was geographically reshaped in the best interest of European colonial powers. Africa’s geographical division served the purpose of not only avoiding conflict among the colonial powers in the ‘scramble for Africa’132 but also enabling them to exploit their colonies undisturbed. 130 “Actually, Kilimanjaro should today belong to Kean.y But Queen Victoria gave it to her nephew, Ka iser Willie, as a birthday present. That’s how thingsr ew edone in Africa in those days” (De Villiers & Htlier, 1997: 145). 131 An English settler in Africa (cited in Mazrui 20:0 429) states that “the administration of some oefs teh artificial divisions have made a practice of try itnog foster a synthetic patriotism towards ‘Tangaknay’ ior the ‘Gold Coast’ … These loyalties to a wholly faicrtiai l and unrealistic administrative boundary …n dte to obscure and undermine the underlying sense of osnse anceross the continent which I have heard expdr esse in the constantly reiterated phrase “we Africans”. 132 In 1880 The Timest ermed the European invasion of Africa the ‘scraem fbolr Africa’ (Davidson, 2003: 283). 91 African tribes and families were separated and forced together with hostile tribes and peoples with whom they had little in common.133 Khapoya (1994: 109) states: During Europe’s scramble for Africa, external colonial armies, businessmen, settlers and missionaries conquered different African nations, destroyed indigenous networks of community self-government, reorganized long-standing patterns of trade, took over ancestral lands and undermined local belief and value systems. European colonialism in Africa interrupted important continuities of local life as well as the continuing development of great traditions in large-scale political economies throughout the continent. Groups with no common history, culture, language or religion were enclosed in their new colonial territories. Muslim and non-Muslim were thrown together. The Masai for example were split between German-ruled Tanganyika and British- ruled Kenya (Lamb, 1987: 104) and Somaliland was carved up between Britain, Italy and France. Henceforth, Africa was to be defined in terms of European languages, viz. French-speaking, Portuguese-speaking, German-speaking and English-speaking African countries. Except for Liberia and Ethiopia, the rest of Africa was geographically divided by European colonial powers by 1914. The new colonial borders were artificial and separated African people who had been grouped together for centuries. “By the time the scramble for Africa was over 10,000 African polities had been amalgamated into forty European colonies and protectorates. Thus was born the modern states of Africa” (Meredith, 2005: 2). But as Ugandan president Museveni said: “You can’t talk about colonialism without talking about African chiefs. Colonialism walked into an open house. Like a robber coming to a house and somebody opening the door for him” (cited in Van Dijk, 2006: 89). 133 King Moshoeshoe of the Basuto was so fearful oef ethncroaching British settlers in his mountain kingdom that he appealed to Queen Victoria for epcrtoiot n, arguing that his people might be consid ered “fleas in the Queen’s blanket” (Meredith, 2005: )2. - 3 92 The Berlin Conference formalised Europe’s scramble for Africa and the acquisition of Africa’s land, resources and labour. The colonial powers saw themselves as the liberators of the Dark African continent, asserting themselves, the superior colonisers, over the inferior colonised. Norton (cited in Davidson 1994: 326), professor of Colonial History at Oxford University, defended colonialism in 1920 as “the right way … of dealing with the native problem … what had happened was the introduction of order into uninteresting, brutal barbarianism”. In the late twenties Coupland (cited in Davidson 1994: 326), a successor of Norton at Oxford, justified colonialism on the grounds that “the main body of Africans … had stayed, for untold centuries, sunk in barbarism. Such, it might almost seem, had been nature’s decree … So they remained stagnant, neither going forward nor going back. The heart of Africa was scarcely beating”. This kind of academic scholarship fuelled racial prejudice in the colonial model. European colonisers perceived Africa as a static, backward and uncivilised continent and deemed it their Christian duty to civilise and evangelise the Africans. Whereas “Berlin of 1884 was effected through the sword and the bullet … the night of the sword and bullet was followed by the morning of the chalk and the blackboard. The physical violence of the battlefield was followed by the psychological violence of the classroom”134 (Wa Thiong’o, 2006: 9). The devastation brought about by Europe’s civilising mission is confirmed by African writers, African academics and African philosophers alike. Mutwa (1998: 535) explains the colonial civilising process as follows: When all your attempts at exterminating us failed, you tried to ‘civilise’ us, which is only a euphemism for bending thought patterns and life habits to suit your ends, for sacrificing our cultural heritage and individuality and adopting a watered-down 134 Cheik Hamidou Kane describes the civilising prosc aes follows: “On the black continent one began to understand that their real power resided not a itn a tlhl e canons of the first morning but in whatl ofowled the canons. Therefore behind the canons was the s cnheowol. The new school had the nature of both the canon and the magnet. From the canon it took tfhiceie enfcy of a fighting weapon. But better than cthaen on it made the conquest permanent. The canon forcee bso tdhy and the school fascinates the soul” (cinte Wd ai Thiong’o, 2006: 9). 93 replica of your own. You fed us on falsehoods in your places of education. You threatened and cajoled us into accepting your religion,– and, to our eternal regret, we partly did – because today you are not only strongly inclined to doubt the very religion you brought us, but you are calling those of us who still cling to your teachings de-tribalised fools. As European society was the model for civilised society, the colonisers saw fit to replace existing African social structures with the model of the European nation state. To ensure obedience of their African subjects various laws were put in place by the colonial powers. Law became a crucial component for the European minority to maintain control over the African masses. Colonial jurisprudence consisted of one of two systems of European governance: direct rule and indirect rule. Mamdani (1996: 16-17) summarises direct rule135 as followings: No ‘native’ institutions would be recognised. Although ‘natives’ would have to conform to European laws, only those ‘civilized’ would have access to European rights … Citizenship would be the privilege of the civilized; the uncivilized would be subject to all-round tutelage. They may have a modicum of civil rights, but not political rights, for a propertied franchise separated the civilized from the uncivilized … For the vast majority of natives, that is, for the uncivilized who were excluded from the rights of citizenship, direct rule signified an unmediated – centralized – despotism. Indirect rule suggested a dual system of law: whilst European law regulated all public and private affairs under urban colonial jurisdiction, customary law regulated the rural areas. Mamdani (1996: 17) describes the segregation of European and customary law under indirect rule as follows: “Alongside received law was implemented a customary law that regulated nonmarket relations, in 135 Mamdani gives the colonial powers of the Cape Cnyo loas an example of direct rule during the eighteenth and nineteenth centuries. According atom Mdani (1996: 66), the British Governor in the C ape Colony, Sir George Grey, established the preretqeusi soi f direct rule as the “appropriation of land, destruction of communal autonomy and the estableisnht mof the ‘freedom’ of the individual to become a wage worker. Also the single legal order was coendfi nto matters of personal law; in the public re alm, natives were ruled by proclamation and magistrhaetelds absolute power”. 94 land, in personal (family), and in community affairs. For the subject population of natives, indirect rule signified a mediated – decentralized – despotism”. According to Mamdani (1996: 66; 17), direct and indirect colonial rule resulted in the same outcomes: “a mediated – decentralized – despotism”.136 Mamdani argues that the segregation of indirect colonial rule provided the impetus for segregation and ultimately apartheid in the twentieth century. Britain and France were the two major European powers to establish colonial systems in Africa. Whilst Britain, Portugal and Belgium made use of policies of indirect colonial rule, the French made use of a policy of assimilation. African rulers or kings who resisted colonial rule were killed in battle, executed or exiled. Examples of such exiled African kings who were banished from their homelands by European powers include, inter alia: the Mandingo king; King Samori who died in his second year of exile; King Agyeman Prempeh of the Asantehene who was exiled for thirty years; King Cetswayo of the Zulu nation; and King Behazin of the Dahomey (Meredith, 2005: 3). Colonialism came to an end as a result of the Africans’ struggle against colonialism. The process of decolonisation and independence for Africans started in 1950 and continued until 1968. 2.5.4.2 British Colonial Rule The British colonial policy of indirect rule137 segregated the British from the traditional African people. Indirect rule did however, allow for cultural relativism among the different societies. The British were convinced that the most effective way to govern Africa was to rule through African chiefs or tribal authorities. The British appointed African chiefs who were directly accountable to British 136 Davidson (2003: 288) confirms Mamdani’s notion t ththaere was no difference in brutality between direct and indirect colonial rule. See 2.5.4.4 137 British indirect rule was based on the principhlaet tif a society aspired to change direction, iut lwdo be a mistake to do it either totally or in a sudden m.o Aveccording to the Anglo-Irish philosopher, Burke, “political prudence requires political sensitivittoy history”. Indirect rule was based on a Burkearin cpiple of gradualism. As he put it, “People will not loofokr ward to posterity who never look backward toi rt he ancestors” (cited in Mazrui, 2002: 135). Many coialol npolicy makers felt convinced that you could not persuade Africans to look to posterity unless yoesup rected their tendency to look backward to their ancestors. 95 commissioners. These tribal chiefs were recruited as agents of the colonial authorities and ceased to be responsible for their African societies. In exchange for financial benefits and protection, tribal138 chiefs had to enforce colonial laws, collect taxes and provide cheap labour for their British colonial masters. Colonial chiefs often experienced resistance139 from their own people and were easily deposed and replaced by the British. The introduction of chiefs within African societies created not only internal conflict but also ethnic tensions140 among Africans. Khapoya (1994), Anderson (2003), Elkins (2005), Hewitt (2008) and others confirm that British indirect rule created conflict and ethnic tensions amongst Africans. Indirect rule systematically undermined traditional African social structures, played off ethnic groups one against the other and accelerated and manipulated socio-economic differentiation in the African society (Elkins, 2005: 19). An example of the devastating effects that British colonial policies had on African societies is best illustrated by the mass rebellion of the Kikuyu or Mau Mau of colonial Kenya against the British colonial government. This rebellion was a direct result of Britain’s land policy141 in Kenya. Although both British and French governments refused to allocate land to European settlers and companies in 138 Tribalism became the alternative to racism. Trisibma l became the “main way of defining the social, legal’ and political status of the colonized. One tfhace of it, tribe as social litmus had none oef th disadvantages that race did. In fact, its advanst awgere obvious: unlike race, tribe would dissolhve t majority of the colonized into several tribal minitioers; furthermore, tribal identity could be argu teod be both natural and traditional” (Mamdani, 1996: 9 0 M). amdani (1996: 91) sees “the recognition of neast iv as belonging to tribes” as the root difference beetnw French and English systems of control. 139 “The introduction of chiefs brought with it a beirtt internal conflict within the Kikuyu community, a conflict that only intensified over time … The coemtiptive environment that spawned the chiefs was a direct result of the intense internal competitioonr fresources and wealth that peaked at the time of colonization. The chiefs merely capitalized on othpep ortunities that came with the power they der ived from colonial rule … To add insult to injury, theh iecfs were rewarded for their loyalty to the col oannyd the Crown with larger and more fertile parcels aonf dl in reserves, superior seed, licenses to co nduct internal trade and access to local cheap labo irn, garlel dients for success in the peasant agricul lstuercator” (Elkins, 2005: 19). 140 Colonialism and the subsequent capitalist penioentr aint to Africa led to the interruption and disriuopnt of indigenous modes of production as well as thtea belished values and social relations in general (Mangena, 1996:17). 141 Pakenham (2005: 677) describes the land issue niny aK aes such: “But the grievance that touched them [Kikuyu] most widely was the land. More than haolff Kenya is barren steppe and desert. The British settlers had reserved exclusively for themselve sb tehst farmland, the cool, green ‘White Highlanodns ’t he highway to Uganda”. 96 West Africa, land was taken from Africans in French Equatorial Africa, the Belgian Congo, British East Africa and Central Africa and sold to Europeans and European companies (Gordon, 2001: 50). Colonial rule deprived Kikuyu of political rights, their land and their religion. Consequently, Kikuyu led their armed rebellion against Britain’s colonial government, demanding firstly, the return of their land and secondly, their freedom from colonial oppression.142 Davidson (cited in Teffo et al., 2002: 168) cites how the KiKuyu “lost all control over ancestral forests and fields that had been theirs from ‘time out of mind’: they lost, it could be said, their environment”. Davidson concludes: “[T]his sense of degradation, the product of dispossession, is the nearest we will get to an explanation of phenomena such as Mau Mau. As was the case among other subjected peoples, colonial dispossession led to a more or less complete disjucture from previous Kikuyu history. With a contemptuously dismissive hand, the ancestors were banished to realms of impotence and anonymity from which there seemed no way of recalling them, and so, for ‘the living and the yet unborn’, there was no way of concerving the notion of community as these people had learned to understand”. During the Mau Mau143 uprising144 of 1952-1956, 32 European settlers145 and 1 800 African loyalists died at the hands of the Mau Mau. The British, however, 142 Anderson (2003: 300-301) indicates that 46 000 yKaenn Africans lost their lives in British service between 1914 and 1918. The French mobilised 211 A 0fr0ic0ans from West Africa of whom 24 762 died that were deployed in the Western Front in FranMcaez. rui (2002: 31) states that the total number of Africans killed in anti-colonial wars in Africa taoltled three million. 143 According to Mutwa, (1996: 582) the Kiyuyu regathrde wild cat as a sacred animal. The name Mau Mau was derived from the sounds the cat makes. 144 The Mau Mau massacred 2 000 Kikuyu and maimedh aenr o1t 000; “black savages, slashipnagn gas , cruel hacking, murderous assault – a pitiless, ndceefless, helpless nightmare untill they were left dismembered in a pool of blood” (Hewitt, 2008: 2.9 H5)ewitt (2008: 20-21) says: “All the killing and savagery of the Mau Mau uprising was little diffnetr efrom what had been going on in darkest Africa between various tribes for centuries past … By ewrens tcodes and values, everything witnessed and suffered during Kenya’s emergency was primitives,e insate genocide or homicidal mania. But what wt as i by tribal African measure?” 145 Elkins (2005) Hewitt (2008) and Anderson (2006s) pdeil the myth that the Mau Mau violence was primarily directed at European settlers. Hewitt 0(82:0 296) states that during the emergency, Euro pean security forces suffered 164 casualties of whicho -ftiwfths were killed. By 1955 Europeans had sufdfe re 222 casualties whilst the loyal African bore thuen bt rof the Mau Mau onslaught. 97 killed 12 000 Mau Maus and held more than 70 000 Kikuyu supporters of the Mau Mau in detention camps, in detention without trail, at the peak of the struggle (Anderson, 2006). According to Anderson, 150 000 Kikuyu were detained in detention camps during the course of the rebellion. 1 090 Kikuyu were hanged and many executed by soldiers. “Between 1952-1960, when the fighting was at its worst, the Kikuyu districts of Kenya became a police state in the very fullest sense of that term” (Anderson 2006: 5). The response of Britain’s colonial government towards the Kikuyu rebellion was to detain one and a half million men, women and children in either detention camps or concentration camps. The concentration camps confined the Kikuyu in “villages ringed with barbed wire and portrayed and treated them as sub-human savages” (Elkins, 2005). According to Elkins, “a hundred thousand or more [Kikuyu] died from the combined effects of exhaustion, disease, starvation and systematic physical brutality” in these camps.146 One of the few examples of an African victory over European colonial rule occurred when Cetshwayo, the Zulu king, defeated the British army in 1879. Van Dijk (2006: 100-102) narrates how, after the British conquered the Ashanti in Ghana and the Xhosa in the Eastern Cape, they wanted to take active steps to check the arrogance of King Cetshwayo. On 11 December 1878, the British government presented Cetshwayo with an ultimatum to disband his forces. Cetshwayo replied as follows: “The king has, however, declared and still declares 146 A similar example of the devastation which resdu lftreom British colonial rule occurred at the hei gohf t British imperial rule in South Africa when Britasine t out to include the Boer republics of the Tranasl vand Orange Free State into the British Empire. It rteesdu lin the three-year Anglo Boer War of 1899-1902 where Boers responded to the British with guer rwillarfare. The British retaliated with scorched he art tactics to impoverish and break the will of the Brso. eThe British burned and razed Boer farmhous ethse t o ground and slaughtered livestock on a massive .s 1c1a6le 000 Boers were rounded up in 40 concentr ation camps where 26 251 women and children and 1 67e6r lye ldmen perished from disease, starvation and exposure (L’ange, 2005: 145). Some 115 000 Afri cwaenrse also herded into 66 concentration camps w here 20 000, mostly women and children, died whilst k ienp tconditions “even worse than in white camps” (L’ange 2005: 145). This incident sparked Afrika neartionalism amongst the Boers. After conquerineg th Boer republic, Britain had virtually the whole oof uSthern Africa under its domination. 98 that he will not commence a war but wait till he is attacked before he enters into a defensive campaign”. In January 1879 the British launched their attack which resulted in 20 000 Zulu warriors descending on them. The British were defeated on 22 January 1879.147 “The myth that white people could not be defeated was dealt a decisive blow” (Van Dijk, 2006: 102). Cetshwayo’s forces were destroyed in July of that year. He was captured by the British and banished to Cape Town from where he wrote numerous letters to petition his release from Queen Victoria. In 1881 he wrote: “I have done you no wrong, therefore you must have some other object in view in invading my land” (cited in Van Dijk, 2006: 103). Cetshwayo even undertook a trip to London in 1882 to petition the Queen but by then his Zulu kingdom was reduced to dismal numbers. 2.5.4.3 Portuguese and Belgian Colonial Rule The Portuguese and Belgian colonial governments controlled smaller areas in Africa and also made use of policies of indirect rule. Their colonial policies were no less violent nor less destructive than those of other colonial powers. The Belgians were notorious for their paternalistic colonialism; their curfews148; and forced labour which continued in the Congo until the 1950s. Belgium however, made provision for one rare exception in colonial rule: children were taught not only in European languages in mainly Catholic missionary schools but also in their ethnic languages (Internet, 2007{c}: 2). The most atrocious example of the ravage that resulted from the Berlin Conference, however, occurred in the Congo and involved King Leopold II of Belgium. In 1876, King Leopold II of Belgium declared an enormous territory of 2 344 000 square kilometres (Internet{b}, 2007: 3) in the Congo under Belgian administra- 147 See GreavesC’ rossing the Buffalofo r an account of the 1879 Zulu war. 148 The Belgians were notorious for their “kind of Artphaeid” curfews and other restrictions for Congoel es ‘natives’ (Internet, 2007{c}: 2) 99 tion. In 1885, Leopold II secured the Congo Free State in his private capacity, at the Berlin Conference. King Leopold’s Congo Free State was not a colony of Belgium but the king’s private business enterprise, run by the King Sovereign, one of Europe’s richest men. The reality was that “there was hardly any other colony which was so relentlessly exploited for the private gain of a European ruler as the Belgian Congo” (Van Dijk, 2006: 105). King Leopold II’s Congo Free State149 was exploited for rubber, copper, uranium, ivory and other minerals. He ruled the state with an estimate of 30 million people until it was annexed by Belgium in 1908. Leopold II’s rule in the Congo Free State gave rise to a reign of unprecedented terror150, mass killings151, slave labour, rape, corruption and bribery in Africa. Under pressure of missionaries who reported Leopold’s atrocities, the Belgian Foreign Office sent Casement to investigate the situation (Davidson, 2003: 291). The Casement report152 found that workers were not paid; were tortured and killed; and that soldiers would collect baskets full of chopped of hands153 and ears to prove that they were carrying out their orders and not wasting their bullets while policing the rubber plantations (Internet{d}, 2007:1). European and United States press agencies exposed the atrocities committed by King Leopold II to the world in 1900 (Internet{b}, 2007:9). Further investigations led to the Janssen’s Report, which confirmed the Casement findings but also “blamed the Catholic 149 King Leopold named his estate the Congo Free S–t“aintetended to imply [tax] free trade there for European merchants” (Davidson, 2003: 285). 150 Joseph Conrad’s novHele art of Darknessa nd Mark Twain’sK ing Leopold’s Soliloqu yattest to Leopold II’s colonial regime of mass killings, rape andv sel alabour. 151 One such example of indiscriminate killings occeudr rwhen the soldiers punished a village that had protested against working conditions. A Danish mioinsasry gave the following account of what occur red: “The white officer in command ordered us to cut tohfef heads of the men and hang them on the village palisades, also their sexual members, and hangw othmee n and children on the palisade in the form of a cross” (Internet{b}, 2007: 6). 152 According to Casement, indiscriminate wars, sttaiorvna, reduction in births and diseases, viz. slnege pi sickness contributed to the depopulation of theg Coo Fnree State (Internet{b}, 2007: 6). 153 Forbath is cited as follows: “The baskets of saelv ehrands, set down at the feet of the European post commanders, became the symbol of the Congo Frete …StaThe collection of hands became an end in itself. Force Publique soldiers brought them to the stations in placreu bofb er; they even went out to harvest them instead of rubber … They became a sort ofe cnucryr. They came to be used to make up for shosr tfall in rubber quotas, to replace … the people who wderme anded for the forced labour gangs; andF tohrec e Publique were paid bonuses on the basis of how many hahnedys c tollected” (Internet{b}: 2007: 6). 100 missionaries for keeping silent about the atrocities they had witnessed” (Pakenham, 2005: 657). Public and diplomatic pressure on Belgium led to the end of King Leopold II’s rule. Belgium then annexed the Congo Free State as a colony of Belgium. The Belgian plunder of the Congo continued and the “Congolese were hardly better off than when colonized by Leopold II” (Internet{d}, 2007: 1). An official Belgian commission reported in 1909 that the population of the Belgian Congo was reduced by half154 since the beginning of the Congo’s European occupation in the 1880s (Davidson, 2003: 291). Although sources differ on the Congolese death toll, a conservative estimate is 3 million. In the absence of a census (the first was made in 1924), it is even more difficult to quantify the population loss of the period. British diplomat Roger Casement’s famous 1904 report set it at 3 million for just twelve of the twenty years Leopold’s regime lasted; Forbath, at least 5 million; Adam Hochschild, 10 million; the Encyclopedia Brittanica gives a total population decline of 8 million to 30 million.155 On 24 May 2006, a motion was presented to the British Parliament whereby Britain ackowledged the mass killings caused by Leopold II, King of Belgium in the Congo Free State, as genocide. The British Parliament called upon Belgium to apologise to the people of Congo for the mass killings orchestrated by Leopold II (Internet{b}, 2007: 1). The following example of Belgian indirect rule illustrates how Belgium initially fuelled and later condoned ethnic killings between the Hutus and Tutsis in Rwanda. The twentieth century witnessed one of the worst crimes against humanity: the genocide in Rwanda which was unleashed on 6 April 1994 when the Hutu proceeded on their quest to exterminate the Tutsis. 800 000 154 Davidson’s estimate is confirmed by Vasina. “Jana siVna, professor emeritus of history and anthropology at the University of Wisconsin, show tehdat the population halved during this period” (Internet, 2007{b}: 6). 155 See Internet{b} (2007: 6). 101 Tutsis were subsequently killed in 100 days of the Rwandan genocide.156 The origins of these killings date back to the early 1930s. Although the Hutus and Tutsis share the same religion, language, customs, food, dress, culture and names, the Tutsi minority had dominated the Hutu majority for several centuries. At the Berlin Conference, Burundi and Rwanda were declared part of German East Africa. The Germans ruled this area through the established Tutsi-dominated social and political order. After World War 1, Rwanda, a German colony, was transferred to Belgium. Like the Germans, the Belgians favoured the Tutsi ruling class through their system of indirect rule. In the 1940s and 1950s, Belgium Catholic Church leaders sought to redress the inequity of the minority dominating the majority. “These church leaders, imbued with modern concepts of democracy and fundamental human rights, sought to redress the imbalance by promoting education, jobs and access to power for the subjugated Hutu. The restructuring of political, social and ethnic order coincided with the sweeping changes across Africa that brought independence and self rule to the former colonies” (Khan, 2001: 4). When the Tutsis demanded independence however, the Belgians withdrew their support of the Tutsis and “began stoking the long-smouldering embers of Hutu hatred of the Tutsi for their oppression … In 1959, Belgian support led to the uprising of more than two million Hutu peasants against 300 000 Tutsi living in Rwanda” (Van Dijk, 2006: 195). 50 000 Tutsi men, women and children were murdered whilst Belgium looked on. In the period leading up to independence 120 000 people, primarily Tutsis, fled to neighbouring countries to escape the violence of the gradual coming to power of the Hutu. By the end of the 1980s more than 480 000 Rwandans had become refugees in Burundi, Uganda, Zaire and Tanzania (Khan, 2001: 5). 156 Genocide involves the intentional mass destru cotiof nentire groups or members of a group and is, according to the Rome Statute of the InternatioCnoaul rt, Act 27 of 2002, the most serious crime asgta in humanity (Dugard, 2005: 180 -181). 102 On I October 1990, the Tutsis marched on the Rwanda capital, Kigali, to exterminate the Hutus. The Hutu leader, Habyarimana, asked France for assistance. France responded swiftly and with the assistance of French and Zairian forces fended off the attack. The only solution to the ethnic tension was either compromise or confrontation. In 1994, despite the Arusha Accord, the Hutus engaged in their carefully planned massacre or ethnic cleansing. The international community, the United Nations Security Council and the Organisation of African Unity looked on as Rwandans engaged in the genocide of almost a million Tutsis (Van Dijk, 2006: 197). 2.5.4.4 French Colonial Rule In contrast to Britain’s indirect rule, France established a colonial policy of assimilation. The French policy of assimilation held that Africans were not to be segregated as was the case with Britain’s indirect rule. For Africans, assimilation157 comprised of a three-stage process of first, dismissing traditional African culture; second, converting to French culture; and third, becoming citizens of France. “The French have never doubted that the best thing that could happen to an African is to become French” (cited in Theroux, 2004: 70). During this process of acculturation the French colonial power asserted its European superiority over the indigenous African peoples. According to Davidson (2003: 288), the French destroyed traditional authority wherever they went, “concentrating all powers in the hands of their own commanders and administrators”. Gordon (2001: 48) mentions the rationale of centralised French assimilation as follows: “French administration maintained the necessity of deliberately creating an African elite that would accept French standards and then become ‘associated’ with the French rulers in the work of governing the colonies”. 157 The first president of Moçambique, Samora Machdeel,s cribed French assimilation as follows: “Assimilation was not merely the fascist caprice a o sfenile dictator, but was in fact mental enslaevnetm to the foreigner in its purest form, a deliberate persosc of negating all culture, history and traditi onf sour people. A man thus spiritually destroyed becamivei nag l corpse, a docile receptacle for the colon’siz weray of thinking, acting and living” (cited in Therou2x0, 04: 94). 103 The French ideal of assimilation became apparent in their education policy in Africa: a policy deliberately limiting African education to primary school levels and geared only towards semi-skilled occupational training158 (Gordon, 2001: 49). Although Gordon suggests that British indirect rule had been more respectful of African traditions and culture than French assimilation, Davidson (2003: 288) is of the opinion that for Africans on the receiving end, the difference was far less obvious than for the theorists in Europe. According to Davidson, both Britain and France relied “in almost every case upon a combination of direct and indirect rule through a European officer and indirect rule through local collaborators or agents”. The only difference between Britain and France was in their methods of exploitation (Davidson, 2003: 291). To name but one documented example of French exploitation we turn to France’s Congo-Océan railway. To build the French colonial Congo-Océan railway, 127 250 Africans were recruited to work on the line between 1921 and 1932. According to official figures (Davidson, 2003: 293), 14 000 African men perished whilst working on the railway. Coquéry-Vidrovitch (cited in Davidson, 2003: 293) however places the true total that perished on the line at 20 000 Africans. Coquéry-Vidrovitch reminds us that recruitment for the railway was carried out “by no gentle means by police operations”; that it was impossible for the recruits to escape and that their recruitment was a probable “condemnation to death”. 2.5.4.5 German Colonial Rule Before the Berlin Conference, Germany had already declared Luderitz and other territory in South West Africa a German possession and placed it under protection of the German Empire. In 1884 Germany proclaimed South West 158 According to Davidson (2003: 319), for the majyo roitf Africans “colonial education either had no meaning, because it did not touch them, or nonet wthas useful as an instrument of cultural enlightenment”. 104 Africa159 a German Protectorate or Schutzgebiet.160 Togo, Cameroon and Tanganyika were soon to follow. In Von Papen’s words: Colonies are an economic necessity for Germany … To afford her an opportunity of spreading culture and civilization” (cited in Theroux, 2004: 71). A typical example of what German colonial rule entailed is illustrated by the Herero rebellion against German South West Africa. In 1893, soon after the Germans invaded South West Africa, the land of the Herero, Nama and Ovambo, they had their first clash with the Nama. As there were continuous reports of cattle thefts and insubordination to white settlers, reservists were called up. After the German settlers confiscated cattle and land belonging to the Herero in 1904, the Herero “declared outright war on the Germans” (Davidson, 2003: 298) and besieged Windhoek, Omaruru and Okahandja. “No one in Germany could explain why these simple Herero tribesmen, as docile as their cattle for a decade, had suddenly turned on their masters like hungry wolves” (Pakenham, 2005: 604). 18 January 1904 signalled the beginning of the Herero rebellion against German colonial rule. The uprising lasted only a few months. German General, Von Trotha, a man with a reputation for ruthlessness, was entrusted with the task of putting down the unruly Herero and the Nama.161 Von Trotha writes the following on his experience with the peoples of German South West Africa: “I know these African tribes … They are all the same. They respect nothing but force. To exercise this force with brute terror and even with ferocity was and is my policy. I wipe out rebellious tribes with streams of blood and streams of money. Only by sowing in this way can anything new be grown, anything that is stable” (cited in Davidson, 2003: 298-299). Von Trotha and his Schutztruppe entrapped the Herero and Nama in the Waterberg region and 159 German East Africa, Togoland and the Cameroon wneorte acquired for colonisation but for their resources and comme r(cCeana, 1916: 361). 160 Walvis Bay was not included in the German protreactteo as it had been British since 1878. 161 All ethnic groups in South West Africa were oppsreeds by the Germans. Germany declared Ovamboland a reserve in 1906 and assumed cont rtohle o rfegion. “In 1908 Captain Viktor Franke sought ‘declarations of obedience’ from various Ovambod eleras. Ovambo men were secured for the diamond mines … and the traditional political and economstircu ctures of the Ovambo no longer functioned u nder the authority of its own leaders” (Cooper, 20069: )1. 1 105 relentlessly drove them into the Omaheke desert. Von Trotha sealed the wells behind them and declared a no-go zone which made it impossible for the Herero to escape. While they were trapped in the Omaheke, Von Trotha (cited in Pakenham, 2005: 611) issued the following proclamation to the Herero: I, the Great General of the German soldiers address this letter to the Herero people. The Herero are no longer considered German subjects. They have murdered, stolen, cut off ears and other parts from wounded soldiers and now refuse to fight on, out of cowardice. I have this to say to them … the Herero people will have to leave the country. Otherwise I shall force them to do so with guns. Within the German boundaries, every Herero whether armed or unarmed, with or without cattle, will be shot. I shall not accept any more women or children. I shall drive them back to their people – otherwise I shall order shots to be fired at them. Von Trotha signed the proclamation as “The Great General of the Mighty Kaiser, Von Trotha”. Von Trotha boasted about his policy – extermination. The systematic extermination of the entire Herero nation had begun. Half the population of 80 000 Herero and 20 000 Nama men, women and children were left to die of starvation and thirst In the Omaheke (Pakenham, 2005: 614). Herero that were encountered by German soldiers were shot and bayoneted as a matter of duty. Herero who surrendered were sent to labour camps. Those who escaped death were put into concentration camps where over half of the 15 000 Hereros and 2 000 Nama died as a result of the inhumane conditions (Pakenham, 2005: 614). According to Davidson (2003: 299), Von Trotha’s terror killed 75 000 Herero and Nama between 1904 and 1911. German governor Leutwein justified these killings as follows, “Colonisation is always inhumane. It must ultimately amount to an encroachment on the rights of the original inhabitants in favour of the intruder” (cited in Theroux, 2004: 73). When Von Trotha returned to Germany the Kaiser rewarded him with the Order of Merit for devotion to the Fatherland. 106 The German policy of extermination resulted in the first ethnic genocide of the twentieth century. As 80% of the Herero and 50% the Nama162 were killed, “their land was transferred to German Settlers with longstanding loans subsidized by the German government. These farms remain the heart of Namibian agriculture today” (Cooper, 2006: 114). The tragedy of the German and all other European civilising missions become evident in the words of a Herero to a German soldier during the 1904 Herero rebellion: “The missionaries say that we are the children of God like our white brothers … but just look at us. Dogs, slaves, worse than baboons163 on the rocks … that is how you treat us” (cited in Pakenham, 2005: 602). The German Protectorate in South West Africa lasted until the outbreak of Word War 1. After the war South West Africa was handed over to South Africa for administration. In 2001, the Herero instituted a claim164 for reparations against Germany for the genocide of 65 000 Herero during the German colonisation of South West Africa, 1904-1907 (Cooper, 2006: 113). European colonial powers saw the colonisation of Africa by European imperialism as its colonial gift to the uncivilised Dark Continent. From an African point of view, Africans perceive the goals of Africa’s colonial subjugation as being the offloading of Western civilisation and Christianity. The process through which Europe colonised, civilised and Christianised Africa was, according to Africans, clearly marked with an air of racial, moral, cultural and religious supremacy. From an African point of view, European colonial policies resulted in the destruction of African authority, culture, values, tribal and family life and led to the infusion of 162 According to a census of 1911, only 9 800 out 0o f0 200 Nama of a decade before and only 15 000 out of the original 80 000 Hereros survived the ethknililcin gs. 163 In 1904 the Germans sent Colonel Von Leutweine, aac pemaker, to the Hereros. “Leutwein was the first to deplore what he privately called the ‘barbaro cuosn’duct of white settlers - the brutal floggingnsd athe reckless murders, many of which went unpunishedd, athne rape of Herero women, which was commonplace. (The settlers prevented any case beevinerg brought to justice). At best, the Herero who worked for the Germans had to suffer systematici lhiautmion. They were called ‘baboons’ to their fa cTeh.e settlers told the government in a petition thawt aits ‘almost impossible to regard them as humang bse’. in Leutwein deplored this, yet thought it unavoidab (lPea” kenham, 2005: 607). 164 The Chief Hosea Kutako Foundation instituted aa ll ecglaim of $2 billion against the German government and another $2 billion against threem Gaenr companies in reparations resulting from then ice th genocide against the Herero (Cooper: 2006:1). 107 ethnic rivalry. Not only was European sameness forced onto Africans but African reality, humanity and values were totally ignored. Their land was taken; their human rights and human dignity violated; their customs, religion, law and traditions scoffed at and eroded. Colonisation “had no more regard for the interests of African human beings than it had for those of African animals, and sometimes even less” (Davidson, 2003: 293). In their state of subjugation African were to be deprived of every human right. Could Africans have asserted themselves against colonisation? Mutwa (2003) and Muendane (2006) are of the opinion that it was impossible for Africans to repay Europeans, an eye for an eye. Muendane (2006: 48) argues that “Africans could not have been as cruel and brutal as the Europeans because they saw them as human beings; one cannot treat another human being as an animal unless one dehumanises that human being in one’s mind”. 2.5.4.6 Racial Prejudice and the Christian Civilising Mission “When the white man came They had the bible and we had the land Now we have the bible and they have the land” (African saying cited in van Dijk, 2006: 116). This subsection deals with the following: • Background. • Missionaries and African culture. 2.5.4.6.1 Background Ancient African Christianity was brought to in 42 A.D. and flourished in Northern Africa for seven centuries. When Islam was founded in Arabia in the seventh century it spread rapidly through Egypt, North and North West Africa and wiped 108 out most of Ancient except in Egypt and Ethiopia.165 During the fifteenth and sixteenth centuries, Spanish and Portuguese Catholic missionaries brought Christianity to Western Africa but it died out after two centuries as Europeans missionaries found it difficult to cope with warfare, disease and primitive conditions. The nineteenth and twentieth centuries however, saw a concerted effort of paternalistic endeavour166 and self sacrifice by Christian European missionaries to bring Christianity to the whole of Africa. Their fervour brought not only Christian values but also Western culture which would ultimately change the character of the entire continent. “By 1900 there were few large regions where Christian [Catholic and Protestant] missionaries had failed to arrive and settle” (Davidson 2003: 282). By 1910, 16 000 European missionaries were stationed in Africa south of the Sahara (Meredith, 2005: 7). On the one hand, these missionaries were instrumental in getting slavery abolished in the colonies; on the other hand, their civilising efforts resulted in the undermining of all African cultures and values. The colonial goal of civilising Africa went hand in hand with its complementary goal of evangelising Africans. According to Ramose (2002{b}: 36), “colonisation took place under the banner of the Christian religion, a religion professing love, compassion and tolerance, but after the cross was offloaded by the colonialists the humanity of the indigenous African people was questioned”. The establishment of Christianity disrupted traditional African societies as its Christian values opposed Africa’s traditional social structures, religious beliefs, cultural practices and African values. Africans had to denounce what missionaries considered “the evils of African traditions such as polygamy and female 165Rastafarianism is a combination of Ethiopian Chiarnisity, Old Testament Judaism and traditional African religion. 166 Dr Albert Schweitzer, a French Protestant clergny maand medical doctor, writes as follows in 1921, “The Negro is a child … and with children nothinagn c be done without the use of authority … With redg a to Negroes, then, I have coined the formula: I aomur ybrother, it is true, but I am your elder brort”h (ecited in Lamb, 1987: 142). 109 circumcision and were authoritarian and paternal in their approach to Africans” (Lamb, 1987: 142). During the nineteenth century and the beginning of the twentieth century, explorers, anthropologists and theologians, viz. Tempels167, reported on the primitive and savage nature of pagan Africa. Influenced by their reports of the darkest heathenism, European missionaries brought Christianity to Africa. These missionaries shared the common European philosophy that Europe’s civilising effort in Africa could lift Africa out of its pagan beliefs and primitive savagery. Nineteenth-century missionaries in Africa faced many setbacks, of which the greatest was the fact that they had no resistance to malaria168 and other fevers and diseases endemic to Africa. “As many as fifty-two missionaries are said to have succumbed to one or other fever along the West Coast in 1825 alone, but the flow of volunteers never failed” (Davidson 2003: 282). 2.5.4.6.2 Missionaries, African Culture and Values Christian missionaries played a leading role in the colonial powers’ civilising mission throughout the empire. It was the white man’s burden169 to bring Christianity and civilisation to the Dark Continent of Africa. They were determined to convert the Africans not just to Christianity but to the Western way of life. Elkins (2005: 20) describes how different Christian denominations in Kenya established mission stations “which included churches, schools and medical clinics, condemning the heathenism of Kikuyu religion and cultural practices and preaching the values of Christianity, commerce and civilisation. For the European colonial governments, missionaries offered civilisation on the cheap”.170 167 Father Placide Tempels (19 6197:1-172) justifies the Christianisation of the Acafrni s by saying: “our civilizing mission alone can justify our occupat ionf the lands of uncivilized peoples. All our wnrigtis, lectures and broadcasts repaeda tn auseamo ur wish to civilize the African people”. 168 Kwame Nkrumah (cited in Stewart, 2005: 69) sugegde sbt uilding a monument in Accra for the Anopheles mosquito, carrier of the deadly diseasaela rmia, which made Europeans reject West Africa as unsuitable for colonisation. 169 From Rudyard Kipling’s poemY: ou will be a man my s.o n 170 Elkins (2005: 20) states that all education orf awrel services provided to the local African popiuolna t were delivered largely by missionaries. 110 Mission schools were foremost in providing Western education, culture, morals and Christianity to receptive young African minds. In the missionary schools African languages were gradually replaced with colonial languages. Wa Thiong’o (2006: 11) describes how his language, Gikùyù, had to bow before English: One of the most humiliating experiences was to be caught speaking Gikùyù in the vicinity of the school. The culprit was given corporal punishment – three to five strokes of the cane on bare buttocks – or was made to carry a metal plate around the neck with inscriptions such as I AM STUPID or I AM A DONKEY. Sometimes the culprits were fined money which they could hardly afford. The outcome of these colonial language policies was that indigenous African languages were systematically suppressed by the compulsory use of the ‘superior’ colonial language. The compulsory use of colonial languages and the deliberate suppressing of African languages were by no means accidental or merely because they served practical purposes. Habermas argues that no language is purely linguistic. He says: “Language is also a medium of domination and social force. It serves to legitimate relations of power … [T]o hypostatise language in a manner of linguistic and hermeneutic philosophy, is to fall into the conservative clutches of a naïve and submissive idealism” (cited in Van Blerk, 2004: 227). Although colonial languages were portrayed as neutral universal languages, the use of English or French for that matter legitimised Western liberal values in African societies. By downplaying African culture and communal values, colonial languages positioned themselves as neither neutral nor universal languages. Colonial missionary schools alienated African children from their African identity, values and culture and replaced it with European history, culture, values, its literary tradition and the Eurocentric view on life. Mutwa (2003: 30), a product of colonial missionary education, has the following to say about his Christian education: “I found that Western education conditioned us to despise Africa, 111 which is why we never realized the tremendous store of knowledge that lies hidden in the minds of those people called sangomas or traditional healers”. In the 360 degree change needed to civilise Africans, missionaries launched attacks on African culture, African Religion, values and customs and questioned the very existence of the African. Colonial education inculcated European values and signified a clear break with the recipients’ traditional African past. Missionary schools became instrumental in proclaiming European superiority and African inferiority. Biko (2007: 119-120) rightly asks: “How can an African avoid losing respect for his tradition when in school his whole cultural background is summed up in one word: barbarism?” Fanon (1990: 169) states, “colonialism is not satisfied merely with holding a people in its grip and emptying the native’s brain of all form and content. By a kind of perverted logic, it turns to the past of the oppressed people, and distorts, disfigures and destroys it”. The destruction of everything held dear by Africans resulted in the painful transformation to colonial reality. Africa would never be the same. The Kikuyu Chief, Kabongo, leader of “the subjugated, put forth their own interrogative to the vacuity ‘constructed’ by Europe”. Chief Kabango said: “We elders looked at each other. Was this the end of everything that we had known and worked for?” Indeed it was! (Serequeberhan, 2002: 66). The colonial civilising and evangelising role of European missionaries was to convert Africans from their communal pagan past171, African Religion172, to 171 “Before one appoints oneself as a judge of anye roafc Man on earth, one must have a thorough knowledge of the religions and beliefs of that ipcaurltar race. The reason people from beyond the seas judge the Black Man so very wrongly is that theyv eh anot the slightest inkling of the true naturet hoef religions of Africa’s sons and daughters. Ask anf yth oese wise ones from abroad what the Bantu p eople believe in, and they will say the Bantu worship sthpeirits of their dead ancestors; they will tellu y tohat the Bantu are a fetish-ridden, superstitious race siunn tkh e lowest levels of heathenism. And they wiell b utterly wrong” (Mutwa: 1998: 552). 172 Mutwa (1998: 559) states that for all races of ,m eaxncept Africans, medicine, politics, science,i tmariyl affairs, economic affairs and religion are set ta pfraorm one another. For the black man, “everythhineg does, thinks, says, dreams of, hopes for, is modu lidnteo one structure – his great belief. Thingse lik disbelief, doubt, agnosticism, atheism, and disoiebnecde are entirely unknown, unfathomable, sens,e less within the framework of the Great Belief”. 112 Christianity.173 African Religion, a religion that embraces God, animism174, ancestors, reincarnation and communalism was confronted with Christianity, a religion based on an individual relationship with God. Christianity is in stark contrast with African Religion’s palpable presence of ancestors as guides of wisdom, its spirits, witches and sangomas which Christianity deems as pagan. Whilst Christianity demonises the tokoloshe175 and African Religion’s ancestors, witches, sangomas, and other spirits, Mutwa (2003: 27) affirms that in African reality, sangomas have always been the spiritual leaders of the African people. According to Mutwa, they made it possible for Christian missionaries “to operate freely in Africa, because we told our people to accept these foreign men with strange ideas. It was at our sanction and with our permission that they came; but, ironically enough, the very missionaries we welcomed into Africa turned around destroying us”. As in the case of Mutwa, Ogot (cited in Davidson, 2003: 296) confirms how the Luo of eastern Kenya accepted British rule without armed resistance. Ogot narrates how “the diviners foretold of the coming of the red strangers who emerged from the sea”. The Luo were told by their diviners not to show hostility to the intruders “lest they incur the wrath of the ancestors”. Although many of the initial African encounters with colonialism did not meet with violence, violence and destruction became synonymous with the colonial period. Episodes of colonial resistance all over Africa were settled by sharp swift actions. 173 Greaves (2005:76) narrates how disgruntled Norawne,g Gi erman and British missionaries campaigned and petitioned the British to lead a war againsntg K Ci etshwayo of Zululand. The missionaries’ endeuarsv o over many years to convert the Zulus had met wiitdhe swpread resistance from the Zulus. With equal fervour Bishop Colenso argued against the missieosn’a rcampaign for war as a prerequisite for Christianity. On 2 April 1878 Durnford wrote to h misother on this subject: “These missionaries a rteh ea t bottom of all evil. They want war so that they mti gtahke the Zulu country, and thus give them homne as i good and pleasant land. They have not been turunte. dT hoey came of their own accord. The Zulus do not want them and I for one cannot see why we shoualmd ctrhese men down their throats”. 174 “African tribal societies typically embrace animi,s the belief that entities throughout nature are endowed with souls, often thought to be souls ocfe astnors who are no longer individually remembered. Nature, for most traditional Africans, is full oivf ilng forces. Spirits dwell within it and human nbgesi can interact with them … The African conviction thatm haun beings are intimately connected to nature rits pa and parcel of the traditional belief that natur e sisentially spiritual” (Solomon & Higgens, 19967:1 1). 175 The tokoloshe is a fearful, aggressive, short creature that isapliseecs in sexually assaulting African women. 113 The prominent goal of the Christian missionaries was to effectively replace African Religion and its value system with Christianity and its Western value system. For Africans, life was not far removed from the domain of their ancestors as “life from birth to death was a series of transitions rites176 that brought [them] nearer and nearer to their ancestors (Achebe, 1986: 87). In utter ignorance of African Religion, missionaries proclaimed: “Your gods are not alive and cannot do you any harm … they are pieces of wood and stone. … but who will protect us from the anger of our neglected gods and ancestors if we leave our gods?” (Achebe, 1986: 105). In their civilising quest, these missionaries not only belittled African Religion but also destroyed African customs, rituals and values dear to them. Moravia (cited in Lamb, 1987: 141) cites the reality of the Christian civilising mission as follows: It is dangerous … to destroy a religion at a single blow, rather than allow it to die from old age and unreality, especially a primitive religion, which is at the same time both a faith and a culture. I believe, in fact, that there is no greater suffering for man than to feel his cultural foundations giving way beneath his feet. They have destroyed something they do not understand. The erosion of African values and the devastating effect the colonial Christian civilising mission had on the African psyche is illustrated by one of South Africa’s great political philosophers, Biko (2006: 103) when he writes: It was the missionaries who confused the people with their new religion. They scared our people with stories of hell. They painted their God as a demanding God who wanted worship ‘or else’. People have to discard their clothes and their customs in order to be accepted in this new religion. Knowing how religious the African people were, the missionaries stepped up the terror campaign on the emotions of the people with their detailed accounts of eternal burning, tearing of 176 Mutwa (1996: 14) states that initiation schoolasc the Africans the deepest spiritual mysteries ofic Aafnr people and Africa. “We are taught that the reashoant otur forefathers told us that our gods and gsosdedse were capable to change shape, or be part anim apl aarnt dhuman being, is that they wanted to ins ttilh ien minds the oneness of the human being, the aninmda tlh ae deity”. 114 hair and gnashing of teeth. By some strange and twisted logic, they argued that theirs was a scientific religion and ours a superstition – all this in spite of the biological discrepancy which is at the base of their religion. This cold and cruel religion was strange to the indigenous people and caused frequent strife between the converted and the ‘pagans’, for the former having imbibed the false values from white society, were taught to ridicule and despise those who defended the truth of their indigenous religion. With the ultimate acceptance of the Western religion down went our cultural values! Biko suggests Christianity was responsible for the erosion of African values. As African values could not hold its own against universal Western values it is evident African values were unique. Kenya is an excellent example of the devastating effect orchestrated Christianisation had on African values. During colonial times in Kenya, protestant missionaries throughout the British Empire launched an attack against the African cultural practice of clitoridectomy177, FGM or female circumcision.178 According to Elkins (2005: 20), clitoridectomy “was the glue that held social life together, binding families over the longer term in relations of obligation and reciprocity. The challenge to [prohibit] clitoridectomy therefore seemed, to many Kikuyu, to be a direct challenge to the reproduction of their society”. In the 1920s, several missionaries banned this practice for their converts, which later led to prominent Protestant churches declaring clitoridectomy an evil practice that was to be suspended by Christian churches (Anderson, 2006: 19). In 1929, thousands of Kikuyu in Kenya protested against Christian interference in this cultural issue. Kikuyus left Christian churches and schools in droves to continue their cultural practice of clitoridectomy. 177Anderson (2005: 18) mentions that “Kikuyu customld h tehat a woman could not marry until the operation and the rites associated with it had bpereonperly carried out. Any women who refused the operation would therefore not find a Kikuyu husb.a Wndithout clitoridectomy there would be no trans ofef r bridewealth- the exchange of livestock and goods given to athmei lfy of the groom”. “Clitoridectomy is a mark of femininity, erasing anything that detrafcrotsm women’s beauty, health, or the performanceh eorf traditionally encoded role as wife and would-be hmeor”t (Ogunyemi, 2003: 238. ) 178 Feminists and gender activists refer to clitortidoemcy as female genital mutilation or FMG. 115 Clitoridectomy was one of the issues that sparked the national liberation struggle in Kenya in 1940 and led to the Mau Mau rebellion179 against British colonial rule. Whilst missionaries tried to eradicate polygamy in African societies, Mutwa (1998: 633) states that in accordance with “Bantu law” a man may have no sexual relations with his wife during menstruation or for the duration of her breast feeding an infant. According to Mutwa, Christian “[o]pposition to polygamy encourages extensive immorality and destruction of Bantu family life and traditions”. As Christianity forbids polygamy, missionaries forced African men to forsake their culture and have one wife only. Mutwa is of the opinion that this endeavour of the missionaries to force Africans to live by colonial standards, not only forced African men into the arms of prostitutes and mistresses, but also disintegrated African family life and led to the spreading of sexually transmitted diseases. Mutwa (1996: 24) also mentions the example of a thousand-year-old African ritual that was eradicated by missionaries. The African ritual called “feeding the grandmother” was stopped and forbidden by “over-zealous and ignorant missionaries” in his childhood days. Feeding the grandmother was practised by many tribes in Africa during winter when leftovers from the tribe’s meals would be gathered over three days and then ceremoniously buried in their infertile fields. As this ritual enabled tribes to fertilise their barren fields, all fields were hereafter left infertile and resulted in smaller crop yields. Another example of a “savage, pagan custom” that was banned was the ancient Zulu custom, Ukwetshwana, or first fruit ceremony. This Zulu custom was banned after the British defeated King Cetshwayo, king of the Zulu nation, at the battle of Ulundi on July 7, 1879. The annual ceremony of the first fruits was initiated in the Zulu king’s Royal Palace with the king’s tasting of the harvest. If the harvest was to the king’s liking he 179 In Kenya, the bitter and violent Mau Mau rebell iaognainst British rule saw the death of thirty-twhoi twe settlers and 12 000 Mau Mau rebels. At the peatkh eo fs truggle Britain held more than 70 000 Afric ainn s detention camps without trial (Anderson, 2005).e SEelkins’ Britain’s Gulag: Britain’s Dirty War in Kenya and the End of Empir eand Anderson’sH istories of the Hanged; the Brutal end of Empinre K ienyaf or a full account of the rebellion. 116 would instruct the Zulu nation to proceed with the harvesting.180 As part of the ceremony young warriors had to kill a black bull with their bare hands to gain a bond with the regional ancestors. By forbidding these and other cultural practices, Africa was rudely reminded by missionaries that “pagan customs” had no place in civilised society. When one looks at the bigger picture it has to be acknowledged that Christianity, a gospel propounding love and tolerance, furthered all the philosophical ideals of the Western philosophical tradition. Not only did Christianity erode African values and sanction patriarchal rule in Africa but it also became the mouthpiece justifying the stereotyping and marginalising of Africans. In spite of what Africans have suffered as a result of Christianity, Mbiti (1991: 183) reminds Africans of the following: The Christian Gospel and Christian faith brought Africans its teachings, its ideals, and the schools, [churches] and hospitals which have accompanied the preaching of the Christian gospel. It was in these schools that the majority of African leaders of today were educated. It is also by the Christian ideals of justice, human dignity, love and brotherhood that African leaders were inspired to fight against colonialism and foreign domination. It is through the same ideals that they still continue to fight against the remaining forms of colonialism, racism and exploitation.181 180 King Zwelethini, King of the Zulu nation, has roersetd this ancient Zulu custom at his eNyokeni R oyal Palace since December 1992. The restoration o fa tnhnisual ceremony at the Royal Palace sparked aic p ubl outcry from animal activists and animal lovers. TShuenday Tribune (December, 2004: 12) reported on Beauty Without Cruelty and the Humane Educations Tt rwuho protested against this “barbaric custom”. During the ceremony young Zulu warriors have tol ak ilblack bull with their bare hands to prove t heir manhood. According to the Sunday Tribune, the bisu lkl illed within forty minutes by “gouging out its eyes, tying its penis in a knot, breaking its tpauill,ling out its tongue and stuffing dirt down tihtsr oat before breaking its neck”. 181 Mbiti (1991: 183) is optimistic that Christian iadles will also “inspire the fight against tribalis m, poverty, corruption, exploitation, unemployment aontdher ills which afflict the independent African nations today”. 117 2.6 AFRICAN LAW VERSUS CUSTOMARY LAW In colonial Africa a dual system of law lay at the heart of colonial rule: a European legal system and European-made ‘customary law’. When speaking of customary law it must be borne in mind that African jurisprudence regulated African existence long before the first colonialists appeared on the African horizon. But the new custodians of the law eroded traditional African jurisprudence which had existed since time immemoria. This section covers the following: • African law. • Customary law, and • Colonial laws and justice. 2.6.1 African Law Africa prior to colonisation was not a lawless continent in a permanent state of anarchy. On the contrary, Africans observed rules of law which, although not codified, formed part and parcel of the fabric of local tradition (Ebo, 1995: 139). Ebo maintains that indigenous law was the possession of a restricted group and “its jurisdiction was coterminous with cultural boundaries and defined each of the cultural entities as a jural community; a panorama of indigenous law would appear as a kaleidoscope of shifting types”. In spite of these variables, however, Ebo states that certain conceptions and principles of law are common to all African groups. This notion is confirmed by Ojwang (1995: 56) when he writes that “the laws of various tribes have a considerable basis of uniformity”. Ojwang (1995: 44) defines African law as the unwritten law of tribal societies which rests upon face to face relations, mediation and conciliation, and a common ideology shared by the people. According to Ojwang (1995: 45), African law reflects not only the social control systems and the cultural orientation of the society, but also African beliefs and value systems. African law has its origins in African culture 118 and “holds the seeds of local values and community morality” (1995: 56). Nhlapo (1995: 162) notes that African law has always had a patriarchal basis. Pre-colonial “High Laws of the Bantu” (Mutwa, 1998) or African law, differed profoundly from the colonial laws of the European colonial powers. As African law and jurisprudence was transmitted orally it differed profoundly from the codified Western jurisprudential tradition. Mutwa (1998: 624) states that the fundamental difference between black and white people of Africa becomes evident when one studies the laws that govern their lives. He distinguishes between “the white man’s legal code which is based on the Ten Commandments and the High Laws of the Bantu which consist of hundreds of commandments from the ancestors and which are common to all Bantu races in Southern, Central and East Africa”, to illustrate the difference. Ebo (1995: 145) confirms this notion by stating that African law is not only the law of the living, but also the law of the dead. According to Ebo, “an act of rebellion against the legal status quo is regarded as odious and scandalous in the eyes of not only the living contemporaries but also of the ancestral spirits who perpetually hover around the edge of the community”. African law is inextricably interwoven with African spirituality. Nduka (1995: 25) maintains that the “mystical and symbiotic relationship between the living and the ancestors” provides a theoretical support for the belief in natural justice. One of the profound differences between African law and European law is that African law is positive and not negative. African law does not say: ‘Thou shalt not’, but rather ‘Thou shalt’ (Ramose, 2002: 93). According to Ramose, African law is positive and does not create offences or criminals, but directs individuals and communal behaviour towards each other. “Its whole object is to maintain an equilibrium, and the penalties of African law are directed, not against specific infractions, but to the restoration of this equilibrium”. Justice is not served by the prescription of penalties, but by the “restoration of the balance upset by an unjust act”; the primary object to maintain equilibrium between the interests and forces 119 of the society (Ebo, 1995: 34). According to Driberg (1934: 232), African law is always constructive and palliative. Pre-colonial African law differed profoundly from Western concepts of law. Whilst colonial concepts of justice embraced individual rights and punishment, African justice focused predominantly on group rights, duties, restorative justice and the sense of shame instilled in the offender and his family. A guilty person would be shunned, ostracised and ridiculed or “regarded as a non-person”, losing his status in the community, no longer in a position to participate in communal activities, till his offence was purged and his status restored (Ebo, 1995: 39). Mazrui (1989: 256) argues that the emphasis in African law lay firstly, in the protection of the innocent; secondly, in compensating the victim; and thirdly, in the sense of shame the community instilled in offenders. The African social value of collective shame served as an effective deterrent for potential offenders as it did not only affect the offender, but also shamed his group who had to take collective responsibility. Dealing with crime and disputes in Africa was a process which involved the whole community. “Ubuntu-botho182 did not allow perpetrators to escape the necessity of confessing and making restitution to survivors, since it placed the needs of society – the restoration of relationships – at the heart of reconciliation” (Tutu, 2006: 347). Restorative justice is a characteristic of African law. Traditional modes of dispute resolution resembled modern day mediation tribunals and always resulted in peaceful win/win solutions to problems. Judgment in traditional African societies was not given by a learned academic individual but by the chief and elders of the tribe. Achebe (1986: 65; 67) describes how judgment was given by African elders: Judgment would be given after “[w]e have heard both sides of the case … Our duty is not to blame this man or to praise that, but to settle the dispute”. African justice does not only involve 182 According to Ramose (2002: 81u)b, untu is the basis or foundation of African law. 120 the community but also the spiritual dimension or ancestors of the relevant persons. Mutwa (1998: 627) maintains African law and African spirituality is interrelated. He states that if an African man wanted to divorce his wife he is compelled to confer with both his and his wife’s ancestors, without his wife’s knowing. The man had to lay before the ancestors the reason why he wanted to dissolve the marriage. Only after having consulted with the necessary ancestors would he take the problem to his family and seek their advice. Any matter in Africa was only settled after the spiritual dimension had also been attended to. African legal codes and its underlying philosophy maintained spiritual and social equilibrium in the community. The purpose of justice in traditional Africa was to restore equilibrium and harmony in communitarian societies as soon as possible. Although African justice was predominantly restorative183, punishment184 was not unknown. Mutwa (1998: 627- 631) relates how in Zululand all rapists, perverts and adulterers185 were given the ant death. According to him, “this simply consisted of opening an anthill and the condemned man was spread naked over it with his hands and feet pegged to the ground and honey spread on his belly”. All witches and wizards were thrown from high cliffs; adulteresses fed to crocodiles; adulterers castrated and a thief caught stealing oxen, tied hand and foot in the opening of the cattle 183 Restoration primarily involved the payment of compensation hbey tperpetrator’s family to the injured party or injured family. Restorative judgment, aa rcahcteristic of African jurisprudence, focused ohne t victims of crime, and restitution and reconciliant iwoere considered as crucial to right the wrongs ecadu by crime while imprisonment was not an option. Afric fanmilies took collective responsibility for oneo athner and if the matter could not be settled within thaem ifly circle, community members assisted the reconciliation process. Both the victim and offern dparticipated actively in the justice process.e Th offender was required to compensate the injuredty paanrd then partake in a ritual meal in which th ose present ate one of the animals imposed as a fNinaeu. d(e, 2006: 102). Naude points out that reconticoinlia was not always sought in cases where disputesv iendv osltrangers or outsiders.. 184 Mutwa (1986: 22) narrates the following punishm geinvten by King Jobe of the Mthethwa people, to a young man who had the offensive habit of urinatiinn ga ny river or stream he came across. The man was given huge volumes of marula beer, a diuretic, rtinok d and fed a huge meal of corn cakes and fat’ sg oat meat. A piece of raw hide was tied around the m apne’nsis which prevented him from urinating and a mealie cob was placed in his anus. The man was bthuerined up to his waist in the ground. As he was unable to relieve himself he “suffered horribly fsoerveral days before the king dispatched him w ith a savage battle-axe blow to the head”. 185 Ebo (1995: 25) states that a man found guiltyd oufl taery in Nigeria had to compensate the husban d by paying a fine. 121 pen and the herd driven over him (Mutwa, 1998: 631). Mutwa states that if anyone “called another man’s wife, mother, sister or daughter names or insulted their womanhood”, the injured man was bound by African law to kill186 that person. According to Mutwa (1998: 632), justice could sometimes only be done when the member or members of a family against whom the crime was committed, executed the criminal. If for example a man raped another man’s wife, the perpetrator would be brought before the elders and if found guilty, be handed to the injured man or his family to execute. “The Bantu consider it utterly ridiculous for a judge or a state executioner to punish a person who had done them no wrong. Bantu execution is not merely punishment; it is a sacrifice to appease the ancestral spirits of a family, who cry out for revenge” (Mutwa, 1996: 18). Not only man but also ancestral spirits can punish a person. African law has a spiritual dimension that has to be attended to before a matter can be finally set to rest. According to Ebo (1995: 39): The spirits of the ancestors also have their share of the stake and commitment in ensuring law is preserved intact against anything that would derogate from its plenitude of authority and control … the authority behind the law is so overwhelming as to make enforcement by means of a body of officials such as police unnecessary. 2.6.2 Customary Law Pre-colonial African jurisprudence was not the African customary law of today. Mamdani (1996), Bhengu (1997) and Roederer et al. (2004) agree that the official versions of customary law represent corrupted versions of what pre- colonial African jurisprudence or African law is said to have embodied. In the 186 Mutwa (1996: 631) narrates how witchdoctors who kber the law were killed by sewing up the condemned person in the wet skin of a slaughtexre adn od left in an exposed position. “Although he lcdo u breathe through the gaps, the skin would shrink salonwd ly squeeze him. By sunset he would be dead”. Mutwa (1986), Nduka (1995: 23) and others narraotwe thhe birth of twins was regarded as an abomina tio against human custom and divine law. In most incsetsa nboth the babies and in some cases even the rm oth was killed. 122 BHE case187 it was pointed out that customary law has become so distorted, it is out of step with the real values and circumstances of the people they are meant to serve. A key term in African jurisprudence has always been the concept of ubuntu. Bhengu (1997), Johnson (2001: 206) and Ramose (2002) confirm that ubuntu forms the basis of African law. Bhengu (1997:1) adds that the ancient ubuntu philosophy of Africa was eroded by “the European colonial conquest with its obsession to be the custodians of the Law”. During the colonial period customary law was documented by Western anthropologists and academics “who lacked nuanced understanding of many of the rules and practices they were recording … but it is the most accessible source from which African jurisprudence may be extracted”188 (Roederer et al., 2004: 449). Mamdani (1996: 22) argues that there was not one set of customary rules for all Africans, but as many customary laws as there were tribes and that whilst colonial authorities selected certain forms of customary law they suppressed others. According to Mamdani (1996: 22), Customary law was defined as the plural, as the law of the tribe, and not in the singular, as a law for all natives … The genius of British rule in Africa was in seeking to civilise Africans as communities189, not as individuals … the African was containerized, not as a native, but as a tribesperson … More than anywhere else, there was in the African colonial experience a one-sided opposition between the individual and the group, civil society and community, rights and tradition. Customary law became an “administratively driven affair” (Mamdani, 1996: 2) which set Africans and their customary practices apart from the laws of ‘civilised 187 2005 (1) BCLR 1 (CC) par. 82. 188 Roederer et al. (2004: 441) mentions three so uorcf eAsfrican jurisprudence in the South African context, namely African customary law, academic jaunrid ical engagement with the conceptu obfu ntua nd the African Charter of Human and Peoples Rights. 189 Dame Margery Perham (cited in Mamdani, 1996: 7a7 h)i,s torian of indirect rule “congratulated Brit ish rulers on having ‘corrected the nineteenth cenctuormy placency about the universal superiority of owunr ideas and institutions’. According to her, “[t]here pservation of native law and custom is not an ienn d itself, but a transitional stage by which Africamnsa y in their own right become members of the cziveidli world, not as individuals, but as communities”. 123 society’ and “played an inferior role in relation to European laws in colonial Africa”. Whilst colonial laws regulated civil society, the codified European version of African law, or customary law, regulated traditional or rural African societies. In practice, colonial laws regulated the private and public sphere whilst “customary law regulated190 non-market relations in land; in personal (family) and in community affairs” (Mamdani, 1996: 211). Law in colonial Africa consisted of two radically opposed types of jurisprudence. According to Kagame, this dual system of law caused great confusion amongst African people. Kagame (cited in Mudimbe, 1988: 150) states: First, there are juridical laws that the society controls through the judges and lawyers. They do not bind individual consciences, and whoever can escape them is considered intelligent. Second, there are taboo-laws191, principlally of a religious nature; these are generally negative and clearly specify what should be avoided. They contain in themselves an immanent power of sanction, and God is the sole judge. Therefore whatever the transgression, no human being – not even chief, priest, or king - can sanction or forgive the taboo sin. The problem and its resolution lie between the transgressor and God and also between his or her still existing familyon earth and the departed ancestors. Mamdani is of the opinion that the compartmentalisation of customary law on the one hand and the laws of civilised Western society on the other hand, “institutionalised racism in Africa”. According to Mamdani, the differentiation between urban and rural subjects inspired segregation and eventually, apartheid in South Africa. Because of the “inferior role customary law played during colonial and apartheid rule, its development as a formal legal discipline has been stifled, and the official version thereof is said to have little in common with the way that cultural practice and ritual manifests itself in reality” (Roederer et al., 2004: 450). According to Roederer et al. (2004: 449-450), current versions of customary law 190 According to Mamdani (1996: 22), the African ch uienfder colonial rule had “the right to pass rules (bylaws) governing persons under his domain, hoe eaxlsecuted all laws and was the administrator sin hi area, in which he settled all disputes. The auttyh orfi the chief thus fused in a single person aollm ments of power: judicial, legislative, executive and admtirnaistive”. 191 See 4.10.3. 124 have been crippled by colonialism, modernisation, urbanisation, politically imposed poverty and socio-economic hardship and resulted in the fact that customary law is perceived as “both dysfunctional and distanced from the traditional values it is meant to represent … This means that codified versions of customary law should be treated with suspicion when attempting to ascertain the content of African jurisprudence”.192 Customary cases in colonial Africa were heard and settled by native courts, specially established by British authorities. The British added two more innovations to customary law: firstly, the right of appeal from native courts to higher courts with judges trained in civil and criminal justice as presiding officers and, secondly, the use of imprisonment as a sanction for transgressions. “Native customary law” was described by a British judge in a West African case as “more or less in the same position as foreign law and it must be established by an expert before courts other than native courts” (cited in Mamdani, 1996: 112). Mamdani (1996: 112) narrates how in British- and French-controlled African territories judges sat with African assessors who had a lived African experience of African law to inform them about the customary law principles in question. The main difficulty of it all was that, according to Rattray, a famed British administrator-anthropologist, neither the judge nor the assessors knew what the African past was really like. Those who “did possess the required knowledge … are illiterate, and in consequence generally inarticulate for practical purposes, except when approached by the European who has spent a life time among them and has been able to gain their complete confidence”. Governor Cameron states that it was sometimes very difficult to find out what the customary system was, because although the “assessors know perfectly well, but for one reason or the other, they may not tell you” (cited in Mamdani, 1996: 112). 192 “In the context of the customary law of succes siino nSouth Africa for instance, Mbatha shows how codification of cultural practice has served tor encth gender discrimination, and that ‘living’ coumstary practice has adapted beyond the rigidity of coadtifioicn to operate significantly more fairly towards women” (Roederer et al., 2002: 450). 125 2.6.3 Colonial Laws and Justice The colonial legal system confronted urban Africans with the police, arrests, detentions, court procedures, appeals, imprisonment193 and capital punishment. Whenever urban Africans punished their perpetrators in accordance with African law, they were persecuted and punished in accordance with colonial laws. A British colonial district commissioner (cited in Achebe, 1986: 139) described the Western process of justice as follows to urban African people: We have brought a peaceful administration to you and your people so that you may be happy. If any man ill-treats you we shall come to your rescue. But we will not allow you to ill treat others. We have a court of law where we judge cases and administer justice just as it is done in my own country under a queen. I have brought you here because you joined together to molest others, to burn people’s houses and their place of worship. That must not happen in the domain of our queen, the most powerful ruler in the world. I have decided you will pay a fine of two hundred bags of cowries. Colonial laws and justice were senseless in the eyes of African people. According to Achebe (1986: 125), African prisoners in the colonial era would for example, have to clear government compounds, fetch firewood for the white Commissioner or perform other menial tasks whilst serving prison sentences. “Some of the prisoners were men of title who should be above such occupation. They were grieved by the indignity and mourned their neglected farms”. Colonial justice did not represent African justice and remained a foreign concept to indigenous African people. 193 “The substitution of the cage for the villain teop rlace compensation for the victim, the insisteonnc e objective guilt as against subjective shame, thceu sf oon personal individual accountability as agta ins collective responsibility have all resulted not yo ninl escalating violence, and criminality, espelcy iainl African cities, but also in the relentless deca yt hoef police, judiciary, legal system and prisonu cstturres” (Mazrui, 1989: 257). 126 Contrary to Western concepts of law, African law confers no rights and liberties on its legal subjects, only group rights, duties and responsibilities. In Western law, the concept of rights assumed central importance as Western liberalism secured rights for its individuals in order to lead its atomistic lives without disadvantaging anyone else. Locke’s Enlightenment liberalism culminated into what Rawls194 and Dworkin calls rights-based theories of justice where individuals have the right to protect their interests. Africa was confronted with the dichotomy between a rights-based jurisprudence and its own jurisprudence of community. In colonial Africa, Africans soon learned that a rights-based jurisprudence was the norm. Under colonial rule justice was done “once the delinquent was subjected to deprivation of his liberties for a term, as by imprisonment, or of his life, as by sentence of death” (Ebo, 1995: 35). The colonial powers did not give a hoot about what Africans thought of all of this. As Westerners deemed African law “primitive law ascribed to pre-literate peoples” (Ebo, 1995: 139) a burning question arises: did colonial laws bring justice to Africans? The mere fact that colonial rule necessitated a dual system of law in Africa is an indication of the irreconcilable ideals of Western and African jurisprudence. Western jurisprudence’s concept of rules, depicted as neutral and universally valid, found little or no application in traditional Africa. When Ojwang (1995: 351) compares Western and African jurisprudence, he finds that whilst Western jurisprudence centres on the rights and liberties of the individual, “community as such dissolves, as a possible bearer of rights; the individual takes the upper hand”. African jurisprudence, however, ensured social control, unity and harmony for the communitarian African society. The conferring of rights upon individuals took second place. It must also be noted that Western jurisprudence during colonial times was positivistic and separated law and morality from one another. In African jurisprudence however, law and morality are inseparable as morality, or African Religion, is the source of African law195. As colonial legal 194 See Rawls’sA Theory of justice(1 971). 195 See 4.11. 127 doctrines were not reflective of the shared moral values of the African community, the rights consciousness of Western liberalism undermined the notion of African communitarianism. Colonial laws did not embody justice for all its subjects. Wacks (1995: 451) maintains that the neutral nature of the Western judicial function has long been exposed as a myth, “as the American realists demonstrated that judges are not untainted by personal predilections or political predispositions”. As rights are not politically neutral it is crude to deduce that colonial laws in Africa “served nothing more than ideology” (Wacks, 1995: 465); they furthered liberal ideology and were not concerned with bringing justice to Africans. The injustices brought about by the white man’s superior form of law only became evident when ‘civilised law’ under the influence of Western legal positivism resulted not only in American racial segregation and the Holocaust in Nazi Germany, but also in the atrocities of apartheid South Africa. Law itself became an oppressor. Western jurisprudence eroded traditional African jurisprudence. 2.7 APARTHEID The Second World War resulted directly in the liberation of Africa. African independence from European colonial powers commenced with the independence of Egypt, Morocco, Tunisia and the Sudan in North Africa.196 The strongholds of white settlers who remained in Africa were concentrated in Rhodesia, South West Africa197 and South Africa. In South Africa “Afrikaners did 196 When the last Portuguese colonies became indenpte nind e1974 no African country remained under colonial rule. 197 After Germany’s defeat in the First World War, tLheague of Nations granted the Union of South Africa a mandate to administer South West Africaft.e Ar the Second World War, South Africa refused to hand over South West Africa to the United Natio nTsh. e oppressed black majority (SWAPO) in South West Africa fought for their county’s independen cre,sulting in the UN declaring South Africa’s occupation of South West Africa illegal. In 1968 eT hUN recognised the former South West Africa as 128 not regard themselves as colonists or colonial rulers. For them South Africa was quite simply their country: they were born there, and had no direct links with Europe anymore” (Van Dijk: 2006: 134). Unlike other settlers who left Africa for Europe in their droves after African independence, the Afrikaners of South Africa were here to stay (Van Dijk: 2006). For Africans in South Africa, however, independence after five hundred years of slavery and colonisation was not yet in sight. They had to endure another forty years of exploitation and dehumanisation under the National Party’s white apartheid rule. This subsection deals with the following: • Perpetuating colonial philosophy, and • Justifying unjust laws. 2.7.1 Perpetuating Colonial Philosophy In 1945, the Allies found the Nazi leaders guilty of crimes against humanity at the Nuremberg Trials: “The enormity of the atrocities committed by the Nazi regime dramatically changed the nature of international law” (Dugard, 2005: 309). According to Dugard, the atrocities of the Nazis compelled statesmen to accept a new world order where “the state was no longer free to treat its own nationals as it pleased”. The Charter of the United Nations of 1945 proclaimed a new world order which recognised the protection of human rights as its primary goal. South Africa, sadly, did not follow in the fresh footprints of the Western tradition, but preferred to walk Western jurisprudence’s well-trodden paths of yesterday – and declared South Africa a pariah state in 1948. The ideology of apartheid198, traditionally seen as the brainchild of Verwoerd, was not, according to Mamdani (1996), a South African invention. If anything Namibia. In 1965 Ian Smith’s white minority goverennmt unilaterally declared Rhodesia independent from Britain. After a civil war in Rhodesia in the 197, 0Rshodesia gained its independence in 1980. Zimbea bw was liberated and Mugabe was held in high estee tmh eb iynternational community. 198 Art 1 of the International Convention on the Sruepspsion and Punishment of the Crime of Apartheid (1974) declared apartheid as a crime against hutym. aAnirt II criminalises the principle features of 129 “apartheid idealized a form of rule that the British Colonial Office dubbed ‘indirect rule’ and the French, ‘association’” (Mamdani, 1996: 7). When the National Party came to power in 1948 in South Africa, “full-fledged indirect rule” (Mamdani, (1996: 89) was introduced. According to Mamdani (1996: 27) apartheid, as was the case with indirect colonial rule, reinforced ethnically bound institutions of control which “ruled along a double divide: ethnic on the one hand, rural-urban on the other.” Mamdani (1996: 29) sees apartheid since the 1940s as the “upgrading of indirect rule authority in rural areas to an autonomous status combined with police control over ‘native’ movement between the rural and urban areas”. What gave apartheid its “particularly cruel twist”, according to Mamdani, was the de-urbanisation of thousands of Africans through legalised forced removals, pass laws, the Group Areas Act and the homeland policy199. He argues that although the repression of Africans by the white minority of South Africa has been ‘exceptionalised’ by the world, apartheid was not an exception to African colonialism. According to Mamdani (1996: 30-31), “the notion of South African exceptionalism could not be an exclusively South African creation … Its brutality in a semi-industrialized state notwithstanding, apartheid needs to be understood as a form of state, the result of a reform in the mode of rule which attempted to contain a growing urbanised-based revolt, first by repackaging the native population under the immediate grip of a constellation of Autonomous Authorities so as to fragment it, and then by policing its movement between country and town so as to freeze the division between the two”. Mamdani believes that the urban-rural tensions and uprisings of Sharpville (1960), Durban (1973), Soweto (1976) and elsewhere can only be understood once one understands the struggle between state repression and urban uprising as uprisings against the indirect rule of Native Authorities. Mamdani maintains apartheid such as murder, torture and arbitrareys atsr rof members of a racial group to legislativea smueres calculated to prevent a racial group from partitcinipga in the political, social, economic and cultlu lrifae of a country, when committed for the purpose of estahbinligs and maintaining domination by one racial gr oup over any other racial group and systematically eospspirng its members (Dugard, 2005: 161). 199 Independent homelands, or Bantustans, existedra ins Tkei, Ciskei, Venda and Bophutatswana. 130 that apartheid South Africa was not an exceptional form of state; rather a state that reached a stalemate when colonial indirect rule could no longer repress the uprisings of the black majority.200 As the Western world shunned and turned its back on apartheid South Africa, Mamdani reminds us of the double standards of the West. Was apartheid South Africa indeed a proverbial chip off the old colonial block; a continuation of Western philosophical bias, racial prejudice and injustice? After five hundred years of injustices suffered by Africans as a direct result of the ideology of Western philosophy, South African black peoples had to endure a further dose of Western liberalism’s ingrained bias towards Africans. As the cancerous growths of racial prejudice seem to have infiltrated all Western rationality, the Europeans in South Africa too, viewed Africans inferior. Apartheid and its ideology of “full-fledged indirect rule” suffered from Western philosophy’s “new racism” and its accompanying superiority complex. As Western philosophy’s liberal ideals were paramount to white South Africans, not only Western racial prejudice but also capitalism and Christianity were implanted throughout South Africa. With the discovery of gold and diamonds in South Africa an industrial revolution was created after the European model (Nolan, 1989). Nolan posits that, as in Europe, two classes of people were created: the owners and the workers. The only difference was that in South Africa the workers were black South Africans. As discussed earlier201, Christian missionaries played a leading role in the colonial powers’ civilising mission throughout the empire, and were instrumental in justifying European colonisation of Africa. These missionaries shared a common philosophical ideal: lifting Africa out of its pagan beliefs and primitive savagery. As in the case of colonialism, the ideology of apartheid too, was justified by the South African Christian clergy. “The theology of apartheid 200 By 1990 half of South Africa’s black populationv elid in Bantustans which comprised of only 14% of South African land. 201 See 2.5.4.6. 131 received theological justification from the Calvinist Dutch Reformed Churches to which most Afrikaners belong. From the early days of colonialism the fact that Christianity was part of European culture contributed to the assumption of European superiority” (Shutte, 1993: 114). With the blessing of the church, apartheid’s dehumanising characteristics took root. The horrors of apartheid compare well with those of colonialism. Apartheid’s education policies, group areas act, influx control, detentions without trial and other injustices do not stand back for colonial education policies, Britain’s detentions without trial in Kenya and human rights violations and crimes committed in both South West Africa and the Belgian Congo. Indirect colonial rule could well have served as an initial blueprint for the ideology of apartheid, as Mamdani suggests. Like colonialism, it eroded African law, African Religion, African culture and tradition, and traditional African values. 2.7.2 Justifying Unjust Laws As was the case in colonial Africa, apartheid South Africa also introduced a dual system of law: South African law and customary law. South Africa merely followed the colonial blueprint created by indirect rule in Africa. As colonial laws served Western ideology, so apartheid’s laws served the ideology of apartheid: an ideology grounded in the biases of Western philosophy. Both colonialism and apartheid imposed Western liberalism and its accompanying values and legal institutions as the dominant culture in Africa and ensured that Western culture, Christianity and individual autonomy prevailed. History confirms that neither neutral laws202 nor neutral judges existed either in colonial Africa or in apartheid South Africa’s legal system. Dugard (1978: 401-2) acknowledges that for African people under apartheid simbolised repression. He maintains the following: 202 The critical legal studies movement (CLS) whiche ergmed in America in 1977 argued that law was political and not neutral. 132 The South African legal system was a repressive system imposed without consultation and enforced by an array of instruments of coercion – the army, the police, and the legal-administrative machine. It is therefore small wonder that blacks do not share the admiration of the white South African for the majesty of South African law, the mysteries of the Roman Dutch tradition, and the impartiality of the South African judiciary and administration. If then, neither colonial laws nor apartheid’s laws ensured just legal systems, the question must be asked why judges did not resign in apartheid South Africa? Surely, there must have been a moral clash between a judge’s conscience and his calling. Wacks (1995: 469) answers this question by arguing that the matter was not so simple, for a judge’s resignation would have been a clarion call: “a statement of judicial despair and outrage. It would be an assertion of the judge’s absolute fidelity to justice, a protest against the abuse of law. In a repressive legal order it would constitute an act of faith in the face of unconscionable legislation”. The bitter truth for those believing in the neutrality of the judiciary is that no South African judge ever resigned203 in apartheid South Africa (Wacks, 1995: 467). In S v Werner204, and many other cases, the Appellate Division was given the opportunity to limit the injustices of the Group Areas Act.205 In this case the coloured accused and his wife moved from an overcrowded and unhygienic designated area to a neighbouring white area with adequate housing, which resulted in Werner’s conviction under the Group Areas Act. In a unanimous judgment the court conceded that although the application of the act was unfair, the unfairness was foreseen by the legislator. In making this and other judgments during the apartheid era it became clear that South African law did not embody justice. 203 Wacks (1995: 468) notes that the resignation odfg ejus in Southern Rhodesia on moral grounds had “almost no effect at all on the events in that ctoryu”n. 204 1981 1SA 187 A. 205 Act 36 of 1966. 133 South African judges were influenced by the dominant jurisprudential approach to law during the eras of colonialism; America’s separate but equal policy; scientific racism and the Nazi Holocaust, namely legal positivism. In applying this approach to law, Western jurisprudence separated law and morals from each other; it was irrelevant whether law was just and fair.206 Dugard (1995: 440) maintains that Western jurisprudence’s legal positivism “failed tragically in a number of other occasions involving racial equality; for, arguably, slavery207, Nazism and colonialism208 have also benefited from the vulgar outlook on the part of lawyers and judges”. In a critical assessment of apartheid’s Bench, Van Blerk (2004: 103-105) cites the following critique: • Cameron critiques former Chief Justice Steyn for being influenced by policy considerations rather than principles and standards expressive of individual rights. • Wacks critiques the “offensiveness of judges, who are unelected officials, wielding legislative power … over a disenfranchised majority who can neither change the law nor the lawmaker”. Wacks maintains that apartheid’s repressive rights viz. racial discrimination and security legislation were representative of the community morality of white South Africans only. He laments the fact that judges who regarded apartheid as unjust had no option but to resign. By remaining in office however, morally-inclined judges lent legitimacy to apartheid’s unjust legal system and delivered ‘lying judgments’. 206 Saint Augustine, Saint Thomas of Aquinas, MahatGmhaa ndi, Martin Luther King, Bram Fischer, Nelson Mandela and many others maintained “an ut nlajuws is no law at all”. In their approach to law, justice could only be served if legal rules hado ar aml content. 207 In a thorough study of anti-slavery and the juadli cpirocess Cover acknowledges that legal positi vism determined the complicity of judges as “the preinvagi lcourse of action of the antislavery judge woa s t speak in conclusory terms of the obligation to ya p‘tphle law and the law alone’; of the obligation r teofrain from considering conscience, natural right, or sintijcue” (cited in Dugard, 1995: 440). 208 During the Mau Mau uprising against British indcitr erule in Kenya, 1952-1960, legal positivism justified the detention of one and a half millionik uKyu men, women and children in concentration csa mp which resulted in more than one hundred thousaneda t hds from exhaustion, disease, starvation and systematic, physical brutality. 134 The evils of apartheid cannot be ignored, for Africans could not turn away or escape the pain and dehumanisation associated with it. Ramodibe (1990: 44) claims that apartheid fostered the “static culture of the [African] patriarchal system in order to legitimise itself and to divide and oppress people in a society where racism was used to benefit capitalism”. African women were not only discriminated against on the basis of race, but also on the basis of their sex. “Being black was tough and being a [black] woman was even worse” (Zuma, 2007: 32). Oduyoye (2001: 109) argues that apartheid’s unfair laws eroded the dignity of Africans and made slaves of black women. She gives the example of South Africa’s Land Act which not only forced black males into cities and mines, but also onto the farms of white people to sustain life. According to Oduyoye, the South African society made laws which turned “women into slaves in their homes as was the lot meted out to Blacks in South Africa; slaves in the land of their ancestors. This kind of suffering is exploitation; it is suffering that goes to enrich others while the victims are dehumanised. Here there is neither the element of choice nor of mutual enrichment, nor even the joy of seeing others live, because you let go”. Slavery, Christianity, colonialism and apartheid eroded the reality of traditional African people. Although apartheid was declared a crime against humanity as early as 1974, the door to the abolition of apartheid was only opened in 1990 by the National Party. In 1994, South Africa became a democratic state. But even though the people were free, more than five hundred years of repression and oppression of African peoples resulted in their scarred collective consciousness. 2.8 THE LINGERING INFERIORITY COMPLEX “I no longer have a borrowed soul. I no longer have borrowed thoughts or ideas. I no longer speak in a borrowed language” (Mobutu Sese Seko cited in Theroux, 2004: 94). 135 Uhuru! Africa is ululating and free at last from European colonial rule. Africa is finally liberated from the yoke of imperialism. But political freedom, according to Lamb (1987), Fanon, (1990), Appiah (1992), Bhengu (1996{a}), Wa Thiong’o (2006) and Muendane (2006), is but skin deep. According to them, more than 500 years of European oppression left postcolonial Africans with a scarred collective consciousness. “[T]he dominance of one social bloc over another, not simply by means of force or wealth, but by a social authority whose ultimate sanction and expression is a profound cultural supremacy” (cited in Mudimbe, 1988: 185). It was not racial prejudice, discrimination, the violation of their human rights, or the genocides that resulted in the scarring of the African collective consciousness. It was something more subtle and more destructive than an atom bomb. The West has wielded its greatest weapon, the “cultural bomb”, against the collective consciousness of Africans. Its aim was to “annihilate a people’s belief in their names, in their languages, in their environment, in their heritage of struggle, in their unity, in their capacities and ultimately in themselves” (Wa Thiong’o, 2006: 3). This “veritable Apocalypse” (Fanon, 1990: 202) Africans have been caught up in, or as Mutwa (1998: 691) and Wa Thiong’o (2006: 3) respectively calls it the “hydrogen bomb” or “cultural bomb”, resulted in despair, despondency and a collective death wish amongst postcolonial Africans. More than five hundred years of slavery, colonialism, apartheid and neo-colonialism left deep emotional and intellectual scars on the psychological mindset of Africans that linger even today. According to these sources, Africans are still suffering from mental slavery and mental colonialism and their attitudes towards themselves can best be described as “self-denigration and self hate” (Muendane, 2006: 51; Bhengu (1996{a}: 19). 136 Although slavery, colonialism and apartheid are things of the past, Muendane (2006: 50) argues that Africans suffer from a continued acceptance of their inferiority. Whereas Africans are supposed to have taken up their place as equals in the West, reality suggests that Africans have not been freed mentally. Although colonial powers have relinquished their political stronghold on Africa, the dehumanising experience of slavery, colonialism, apartheid and neo- colonialism still holds African minds captive. Bhengu (1996{a}: 19) maintains the element of Africanness within Africans have been killed. “It killed Ubuntu within us, it killed our African personality, and we became neither fish nor fowl. We became an empty shell”. According to Muendane (2006: 51), Africans still subscribe to white supremacy and African subservience. The reason for this behaviour lies locked up in the psychology of imperialism. Lamb (1987: 140) states that after colonisation the “cruellest legacy left behind on the African continent was a lingering inferiority complex … a confused sense of identity because African peoples were told that, as subhumans, they could never be as capable or clever as their colonial masters”. Any inferiority complex, if left to linger too long, becomes a self-fulfilling prophecy. This self-fulfilling prophecy is confirmed by Ramose (2002{b}: 36) who states that the colonial experience denigrated the indigenous African people to such an extent that they suffer from an injured and humiliated consciousness and perceive themselves as an injured and conquered people. In short, “Africans see themselves through the lenses conferred on them by their European heritage” (Appiah, 1992: 136). Muendane, Lamb and Ramose’s notions of the disturbed psychology of the African mind are supported by Fanon, the psychiatrist, who has since 1954 drawn attention to the psychiatric phenomena affecting the behaviour and thought of the colonised peoples in Algeria. Fanon (1990: 200-204) describes the mental pathology of his African patients as “a reactionary psychosis which is the direct product of oppression”. According to Fanon (1990: 200), “colonisation resulted in a systematic negation of the other person and a furious determination to deny the other person all attributes of humanity; colonialism forces the people 137 it dominates to ask themselves the question constantly: in reality, who am I?” Fanon (1990: 201) states that when the sum total of harmful stimuli oversteps a certain threshold, the African’s defensive attitudes give way and result in mental pathology. “Over the years they [Africans] have accepted that they need to be civilised because their traditions, their customs, their cultures, their religions, their languages and even their colour were not the right ones” (Muendane, 2006: 50). Constant dehumanisation, abandonment of their African reality and the embracing of a foreign European culture, Christianity and Western values they ill understood, resulted in what Fanon terms “the mental pathology of the African people”. Five hundred years of Western indoctrination and humiliation are ingrained in the minds of indigenous Africans. Muendane (2006: 51) argues that “Africans continue to be racially exploited, disposed and humiliated nationally and internationally” even in the twenty first century. Although Africa’s decolonisation and independence from European colonial powers brought Africa freedom from political and socio-economic oppression in the mid-twentieth century, it did not restore African humanity in the eyes of the Western world. Five hundred years of slavery, colonialism, apartheid and neo-colonialism birthed an African solidarity and Afrocentrism209 amongst African peoples. Mazrui (2002: 37) claims that the greatest service Europe has rendered to the African people was not Western civilisation or Christianity but the supreme gift of African identity. “The humiliation and degradation of Black Africans across the centuries contributed to their mutual recognition of each other as ‘fellow Africans’. An identity was born and started its search for unity” (Mazrui, 2002: 38). A black consciousness was born in response to the racial prejudice and discrimination of European ethnocentrism. In an effort to finally rid Africa of its lingering inferiority complex and the deliberate recovery of African pride throughout the African continent, African 209 Ethnocentrism means that one sees one’s own ec ualtsu rthe norm and judges other cultures as sub standard. In reaction to the superior attitude uorfo Ecentrism towards Africa, Africa developed itsn o kwind of ethnocentric thinking called Afrocentrism. 138 leaders accentuated the importance of Afrocentrism. Mbeki (1999: 10) airs his views on the importance of recovering African pride as follows: “An enormous challenge faces all of us to do everything we can to contribute to the recovery of African pride, the confidence in ourselves that we can succeed as well as any other in building a humane and prosperous society. None of us can estimate or measure with any certainty the impact that centuries of the denial of our humanity and contempt for the colour black by many around the world have had on ourselves as Africans. But certainly it cannot be that successive periods of slavery, colonialism and neo-colonialism and the continuing marginalization of our continent could not have had an effect on our psyche and therefore our ability to take our destiny in our own hands. Among other things, what this means is that we must recall everything that is good and inspiring in our past. Our arts should celebrate both our humanity and our capabilities to free ourselves from backwardness and subservience. They should say to us that if we dare to win, we will win”. In an effort to overcome this lingering inferiority complex, the African Renaissance, Moral Regeneration Movement, Batho Pele, Ubuntu Plege, Heartlines Project and other projects aspire to restore eroded African values by reviving the concept of ubuntu. 2.9 SUPERIOR VERSUS SUBHUMAN Since the Enlightenment, European academic scholarship has provided mounting evidence that Africans are not on the same intellectual, cultural, historical or scientific par with their intrinsic superior Western counterpart. This evidence suggests that Africans are inferior and subhuman. Western civilisation has been conditioned by these principles of discrimination, believing that “not all persons were thought to share the same level of development or potential to realize rationality, especially at the higher levels” (Outlaw, 2002: 141). Are 139 Africans subhuman210 or is it Western philosophy’s dualism that poses Africans as the Other, the Manichaeism? The following will be discussed in this subsection: • Background, and • Different worldviews. 2.9.1 Background The French philosopher and sociologist Lévy-Bruhl marked a watershed in Western anthropology in his works Les fonctions mentales dans les sociétés inférieures (1910) and La mentalité primitive (1922) when he paved the way from his predecessors’ evolutionary quests to bring a new understanding of the African Other. Instead of indicating a society’s evolutionary progress from stage to stage, Lévy-Bruhl classified human societies in two types: the primitive and the civilised. He found the key indicating the difference between savage and civilised cultures, between Western and non-Western civilisations. Lévy-Bruhl (as cited in Biakolo, 2002: 10) states the following: “The collective representations of primitives, therefore differ profoundly from our ideas or concepts, nor are they their equivalent either. On the one hand, as we shall presently discover, they have not the logical character … On the other hand, they see many things there of which we are unconscious”. Lévy-Bruhl invented the concept of “primitive mentality” suggesting that primitive people are not governed by reason but by their emotions. Lévy-Bruhl’s terms “primitive mentality” or “pre logic mentality” stereotyped African intellect as inferior. His works “composed an articulated western discourse on Africa, which emerged as the antithesis of Europe in the structure of ideas and images by which the colonial ideology was sustained” (Irele, 2002: 114). 210 The International Lesbian and Gay Association db ains eBrussels estimates that Africa has more th4a n 2 million active homosexuals. According to The Econisotm (April, 2007: 46), most African leaders call homosexuals “subhuman” and “unAfrican” whilst Zimbbwae’s Robert Mugabe calls them “worse than dogs and pigs”. 140 To have justified slavery, colonialism and apartheid Africans were stereotyped as primitives of a savage, pre-logical and mystical nature. In contrast, the Western civilised culture was pictured as individualistic, logical, scientific and literate. In the most widely read account of the Mau Mau rebellion, Ruark writes in his 1955 bestseller, Something of Value, that “to understand Africa you must understand a basic impulsive savagery that is greater than anything we civilized people have encountered in two centuries” (cited in Anderson 2006: 1). Africans would never agree with the Lévy-Bruhl’s or Ruark’s depiction of the African Other as subhuman, primitive savages. In Mudimbe’s The invention of Africa (1988) and The idea of Africa (1994), he draws our attention to the deliberately construed Western “political project”, to pose Africans as Others. African philosophers agree that the deliberate racial prejudice directed at Africans was implanted in Africa through colonialism. Ramose (2002{b}: 28) finds “the deepest roots of racism in Africa traceable to Western philosophy”. In the quest to restore their human dignity Africans therefore find themselves combating the ideology of Western philosophy. 2.9.2 Different Worldviews The difference between the African Other and its European counterpart became so entrenched in Western philosophy that ‘difference’ signified inferiority. Mazrui (2002: 18) states that “the whole issue of race, and therefore racism, is steeped in value, belief and symbolism”. Mazrui argues that Africans are not only discriminated against because of their skin colour but also because of the different worldview211 they hold. The term worldview signifies a person’s image of reality and “encompasses the whole of man’s life” (B.J. van der Walt 2002: 40). All persons hold worldviews which they perceive to be the truth. In fact, worldviews are so descriptive and prescriptive that they become a person’s blueprint of reality. According to B.J. van der Walt (2002: 41), all worldviews are 211 “A worldview is an integrated, interpretive set coofnfessional perspectives on reality which unedse,r li shapes, motivates and gives direction and meanoi nhgu mt an activity” (B.J. van der Walt, 2002: 39). According to Turaki (1991{a}: 133), the African wlodrview, or reality, is derived from the African sript i world and is embodied in African culture, religi ocnu,stom, values and tradition. 141 “pre-scientific” and “not to be confused with sciences or disciplines such as Philosophy212 or Theology”. A person’s worldview provides the understanding of reality and of man himself and distinguishes between friend and enemy: “Should a worldview get into a crisis its proponents are shaken to the depths of their being” (B.J. van der Walt, 2002: 54). Different worldviews, therefore, look at reality through their own prejudiced spectacles and feel comfortable only with the view they have been conditioned to see. The European and traditional African worldviews are two such typical opposing worldviews: one perceived as right and superior whilst the other is viewed as inferior and substandard. Whilst the Western worldview epitomises liberalism with its characteristics of individualism and capitalism, the traditional African worldview represents a communitarian way of life based in the spiritual realm. B.J. van der Walt (2006: 126) summarises his comparative study of Western and traditional African worldviews as follows: Component Western Worldview African Worldview God A secular, materialistic, capitalistic Distant creator god, god. not demanding responsibility, replaced by unpredictable spirit world. Post-Christian Pre-Christian Norms Individual autonomy Communal autonomy Subjectivism (things are laws) Subjectivism (the kinship Self-interest, individual egoism group is the law) Group interest, group egoism 212 B.J. van der Walt (1999: 9) posits that, like ar lwdvoiew, philosophy provides a total picture of lriteya and a conception of the whole, but that it alsofe drsif from a worldview. Whereas a worldview is more implicit, philosophy is explicit. Van der Walt se ae sworldview as pre-theoretical or first order tkhining and philosophy as theoretical, second order thinkin gs,c iaentific reflection about a worldview. “… a curlet arrives at full self-consciousness in philosophhyi.l oPsophy could be defined as the self-consciouss noef sa culture”. 142 Man A reductionistic anthropology A reductionistic anthropology characterised by individualism, in which one aspect (the materialism, hedonism, etc. communal) is absolutised and the individual aspect subordinated, suppressed. Community Atomistic-liberalistic: Organic-communalistic: Individual liberty and rights first. First communal equalities and duties. Destroys communality, finally Destroy individuality, leads results in totalitarianism. directly to totalitarianism. Nature Viewed anthropocentrically: Viewed holistically: Separate from man; to be used Man a part of nature; it should and exploited for wealth. therefore be revered and not interfered with. Time and A commodity to be measured and Something to be shared and History used for one’s own benefit enjoyed with others Future-oriented (progress) Past-oriented (repristination) By comparing Western and traditional African worldviews the difference between these philosophies become evident. The Western worldview emphasises individual autonomy and independence whilst the traditional African worldview embraces communal213 life and values. Western liberalism protects the individual’s rights and liberties whilst African communalism protects group rights and duties.214 Whilst the Western worldview is scientific and task-oriented the traditional African worldview is community-oriented and reveals pre-scientific or religious modes of thought. When viewing the difference between the Western and traditional African worldviews, the clash between the individualistic value 213 Mbiti (1990: 140) describes being African as fowlslo: “I am because we are, and since we are, threr efo I am”. 214 Menkiti (1979: 167) stresses that whilst Westenrnd iviidualism is based on individual rights and freedoms, Africa gives priority to duties: “In thAefr ican understanding priority is given to the deust iwhich individuals owe to collectivity, and these rightwsh, atever they may be, are seen as secondary to the exercise of their duties. In the West, on the o thaenrd, we find a construal of things in which cienr ta specific rights of individuals are seen as antencte dtoe the organization of society, with the funcnt iof government viewed, consequently, as being the cptriotne and defense of these individual rights”. 143 orientation of the West and the traditional African communal culture becomes evident. In describing the traditional African worldview, Imbo (1999: 9) acknowledges that it is intricate and complex. “The beliefs, myths and cosmology of the Bantu are interwoven with their moral codes. In this mix one finds a religious dimension of Bantu beliefs about ancestors, gods and spirits; how the Bantu see the world and understand their place in it”. In the African worldview the spirit world has a profound influence on every aspect of African life. According to Turaki (1991{a}: 135), the “spirit world is in control of all existence. It is the power that acts on the human world, anything material and immaterial”. Turaki (1991{a}: 135) summarises the characteristics of the traditional African worldview as follows: • Social and spiritual phenomena can be explained by the law of the spirit. • The world/nature is held in balance by the spiritual laws and therefore should not be tampered with. • The moral and spiritual obligation of man is to live in harmony with and in obedience to spiritual forces in the human and the non-human world. • The orientation is towards the glorious, perfect, primordial state of the past and less to the unknown, uncertain future. • The world of the ancestors is always better, closer to the perfect origin and therefore has more potency than the present or the future. Thus, anything passed down from the ancestors, such as culture, religion, technology, education, values, social institutions, etc. must be maintained, preserved, protected and eventually passed on to the next generations. • The moral obligation to conform to traditions and conventions overrides any desire for change or non-conformity, and • The conception is that the best in life lies in the past, the world of the ancestors and the origin. In contrast to the traditional African worldview, the Western worldview promotes rights, democracy, individualism, capitalism and Christianity. Stevenson (2002: 144 30) maintains the following factors are responsible for promoting individualism in the Western worldview: • Western religion focuses on the individual’s relationship with God. • Western philosophy from Plato to the seventeenth century focuses on the individual relationship to ideal truths. • Western science focuses on the individual’s relationship to the physical laws of nature. • Western capitalism has focused on the individual as an economic unit. • American [Western] democracy sees all individuals as equal and free rather than connected to each other in a specific way. In the Western philosophical tradition, ‘different’ means inferior, but different does not have to be inferior. ‘Different’ can be different. As long as one worldview remains ignorant of the Other or refuses to acknowledge the Other, ethnocentrism will prevail. Guhrs (2004) reflects an objective attitude towards the African worldview and states that “as long as we insist on judging it from a Western perspective, we will be outsiders – we will be forever baffled by it. The complexities of African attitudes that seem to confound us are perhaps not so complex after all; it is their very simplicity that we fail to understand. On the road to a civilised enlightenment, have we lost the ability to see life in its most fundamental essence?” Our opposing worldviews have become our prisons as we seem to be unable to appreciate the worldviews of the Other. Reality confirms that there is not only one reality, but many different ones. The worldview of the Westerner is therefore as significant as that of the Other, and in this sense, every view is equally significant. If every view is not equally significant, Wittgenstein’s philosophy should be filed in the dustbin of fantasies. From the African margins comes Taylor’s plea that “[t]he white man must at least respect the African’s right to be different, even if he is too slow to realize how much the world needs the African 145 vision” (cited in Theroux, 2004: 95). Excluding the worldview of the Other as part of the universal reality, goes against the spirit of the Universal Declaration of Human Rights. Art 1 of the Universal Declaration of Human Rights, 1948, states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards each other in a spirit of brotherhood”. According to the Universal Declaration of Human Rights, the Other are human215 and therefore entitled to their worldview. The unspeakable injustices – suffering, humiliation, degradation and denial of African humanity as a direct result of Western philosophical doctrine – have to be noted and accounted for. These injustices will unfortunately be perpetuated as long as one worldview views itself superior to another. Neugebauer (1991{b}: 248) is of the opinion that it is “the philosopher’s duty to destroy the theoretical base of racism” and that “unless it is done, racism will be present”. According to Neugebauer, meaningful philosophical activity will only take place once racism has been acknowledged and dealt with. From a traditional African perspective, Mutwa points out that an unbridged divide exists between the values of Western liberalism and African communitarianism. African High Sanusi, Mutwa (1998: 624), blames ignorance of each other’s worldviews as the primary source of conflict between Europeans and Africans. Mutwas (1998: 624)says: The disease afflicting Africa today is the direct result of the blundering ignorance of both the white man’s ancestors and mine, the direct result of different races living together and each thinking it could turn the other into a replica of itself. The bloody wars that the white man’s ancestors and mine have fought, the hatred and the 215 Holmes (2007: 186) states that the “discovery oNfA D molecules in the 1950s proved that race is a socially constructed phenomenon with no biologibcasl is”. DNA studies confirm that “there are no inferior races”, destroying the scientific basisr froacism and eugenics. According to Holmes, Uness co’ international meetings of scientists in 1950 an5d2 1 “9declared that race was a social myth, not alo gbicoal fact, and that humans belong to a single speHcoiems o sapiens … the facts of biology had made racism indefensible and that humans are one and the saromuep ; gthe likenesses among men are far greater than their differences”. 146 bitterness still exist, could all be avoided – if only we had known better, known each other better. I know from experience that complete trust, friendship and integrated co-operation between Black and White is inherently impossible. Our different backgrounds, present ways of life and future ambitions are far too ingrained in our various cultures, conditioned over many hundreds of years. These differences cannot be wiped out in a matter of decades. Let alone by the stroke of a pen. But surely it is possible to achieve peace between races no matter how different their outlook, or their ideals and creeds. In concurrence with Neugebauer and Mutwa, it must be stated that it surely is the philosopher’s duty to destroy prejudice, the theoretical base of racism and to seek peace. We expect of liberal modernity to deny Otherness and overcome what it has been instrumental in fabricating. In postmodernity, race should be irrelevant: but all is race. As Cole (1997: 94) states: there is a “discrepancy between rhetoric and action”. Whilst modernity aspires to implant principles of liberty and equality into the world’s complex social reality, Cole (1997), Carter (1997) and Rattanzi, (2007) bring evidence which supports their notions of the emergence of a new racial prejudice216 among Europeans of the twenty-first century. African philosophy then is the philosophical attempt of Africans to come to grips with their traumatic history and injustices suffered at the hands of Others; an attempt to recover eroded values; the deconstruction of the African experience and reconstruction of African history, African reality and African humanity. But after more than five hundred years of indoctrination by Western rhetoric, Europeans posed the following arrogant question to postcolonial Africans: Is what Africans term as ‘philosophy’ really philosophy in the strict sense of the word? 216 Cole (1997) ascribes the current emerging racnis mEu irope to the fact that myriads of immigrantsm f ro Africa and other third world countries to Europgen sails Europe’s transition to a multicultural wo rld. 147 2.10 CONCLUSION The South African Constitution compels courts to promote all values that underlie its democratic society. In an effort to give recognition to African law and legal thinking, as part of the values that underlie this democracy, the Constitutional Court fused the concept of ubuntu into Western jurisprudence in S v Makwanyane. Giving recognition to African law and legal thinking is imperative in South Africa’s young democracy. The incorporation of the concept of ubuntu into South Africa’s Western legal tradition seems insignificant, but in philosophical terms it is of the utmost significance. With the incorporation of ubuntu into South African jurisprudence, Western philosophy and African philosophy meet on equal terms for the first time in history. In the real world however, Western philosophy and African philosophy are anything but equal. Western philosophy and African philosophy have always been portrayed as opposites of one another: the superior versus the inferior; human versus subhuman; scientific versus mystic. In deconstructing the traumatic relationship between Western and African philosophy it becomes evident that Western philosophy has, since its classical Greek inception, always been biased towards the Other. Classical Greek philosophy was however not racist, as the African philosopher Augustine of North Africa can attest. He produced many philosophical works in the Greek tradition of philosophy. The situation changed between the fifteenth and eighteenth centuries, however, when a desperate need for slaves emerged in the New World. Although slave trading had existed between Europe, Eastern Europe, the Mediterranean and North Africa since medieval times, racial prejudice towards these slaves did not exist. However, when the droves of African chattel slaves arrived in Europe, their Otherness evoked an “older racism” in Europe’s civilised Christian superiors. The “subhuman nature” and pagan values of Africans ignited a fuelling ethnocentric bias and racial prejudice towards these people of an inferior humanity. 148 A “new racism” became entrenched in Western society in the eighteenth century when Enlightenment philosophers propounded freedom and equality, justified slavery and imperialism, and condemned Africans as less than human. This entrenched racial prejudice was transplanted to Africa through Europe’s colonising mission and Christianisation of the African continent. The scramble for Africa resulted in British, Portuguese, Belgian, French and German colonial rule and resulted in the destruction of African authority, African Religion, African values, African law, culture, tribal and family life and led to the infusion of ethnic rivalry. In their state of colonial subjugation Africans were deprived of every human right. After the Second World War, most African states gained independence from European colonial powers which brought political freedom to a ravished continent. But not all were liberated from the yoke of imperialism. After five hundred years of European oppression, Africans in Rhodesia, South West Africa and South Africa had to endure more bias, racial prejudice, exploitation and dehumanisation. Non-white South Africans were to experience another forty years of “full fledged indirect rule” under the National Party’s white apartheid regime. In 1994 South Africa eventually became a democratic state and Africans were liberated from political oppression. But freedom from racial prejudice, discrimination, and violations of basic human rights did not render Africans free. There values were eroded. The West’s greatest weapon, the “cultural bomb”, had eroded and in some cases annihilated African beliefs, values and culture over centuries of Western oppression. Despite the fact that the Rome Statute of 1998 decared slavery a crime against humanty; despite the British parliament’s acknowledgement of the mass killings of Africans in the Congo Free State under the Belgian King Leopold II as genocide; despite the Herero claim for reparation against the German government for the genocide of their people in 1904-1908; and despite the fact that apartheid was decared a crime against humanity by the International Convention on the Supression and Punishment of the Crime of 149 Apartheid, Africans throughout the African continent confess that they are still suffering from mental slavery, mental colonialism and self hate. Africans have been discriminated against for more than five hundred years, not because of their skin colour, but as a direct result of their pagan, unscientific, mystic worldview. In the Western philosophical tradition there is one scientific universal truth and different means inferior. The African worldview, African Religion, African laws and communal values represent the antithesis of Western liberalism. The South African Constitution, however, does not take the history of philosophy into consideration. The Constitution compels courts to promote all values that underlie its open and democratic society based on human dignity, equality and freedom. Western philosophy entertained in Court is no longer the patriarchal philosophy of the past. International human rights mechanisms have subjugated Western philosophical thought and jurisprudence to its creed. Despite its history, Western thought and legal thinking has made a 360 degree turn to embrace fundamental human rights. Deconstruction exposed Western philosophy’s historical biases towards the African Other. Centuries of oppression of the African Other were justified because Africans were perceived as pagan, unscientific, entertained ‘barbaric’ rituals, believed in clitoridectomy and polygamy, could not think for themselves and practised an inferior type of law. Western philosophers, missionaries and politicians justified racial prejudice and subjugationof the Other by posing Christianity and Western values as the antithesis of African Religion and African values. The injustices against the African Other did not go by unnoticed. Apart from the fact that slavery and apartheid have been categorised as crimes against humanity, the genocides of the Herero and Congolese people received recognition in the Western theory of ideas. It was, however, not the physical killing of Africans but the erosion of their communal values which resulted in the 150 destruction of their collective psyche and resulted in their lingering inferiority complex. The “seamless text” of South Africa’s “rainbow jurisprudence” conceals the volatile philosophical relationship between Western liberalism and traditional African reality: two opposing realities. 151 CHAPTER THREE AFRICAN PHILOSOPHY: MYTH OR REALITY? 3.1 INTRODUCTION The concept of ubuntu has received recognition from the Preamble of the 1993 Interim Constitution, the Constitutional Court, Higher Courts, the legal fraternity, legal academics, philosophers and South African government programmes, viz. the Moral Regeneration Movement217, government Imbizo Programmes, Letsema and Batho Pele principles. Ubuntu is described by Ramose (2002{b}: 40) as the root of African philosophy; by Archbishop Desmond Tutu (Wilkinson, 2002: 356) as the essence of African philosophy; and by Rhoederer et al. (2002: 442) as the crux of African philosophy. Broodryk (2007: 45), Ramose (2002{d}: 230), Bhengu (2006) and others talk of the “unique” (Broodryk, 2007: 39) concept of ubuntu as “the philosophy of ubuntu”. The Constitutional Court describes ubuntu as traditional Africa’s moral philosophy.218 Both the Interim and Final Constitutions of South Africa imposed a duty on South African Courts to promote values which underlie a democratic society based on freedom, equality and human dignity. In S v Makwanyane219 the Constitutional Court emphasised that recognition had to be given to African law and legal thinking as part of the source of values which sec. 35 of the 1993 Constitution (sec. 39 of the 1996 Constitution) requires the courts to promote. According to Sachs J, one of the values of an open and democratic society is that the values of all sections of society must be taken into account and given due weight when 217 See the Moral Regeneration Movement aUnbdu ntu Pledge, compiled by the National Religious Forum and the Heartlines Project which was initiated hbey Nt elson Mandela Foundation to promuobteu ntuv alues (Broodryk, 2007: 48). 218 Mokgoro J,I bid par. 308 . 2191995 (3) SA 391. 152 matters of public importance are being decided.220 The court however lamented the fact that traditional African jurisprudence and its accompanying values had not been researched for the purposes of the determination of the issue of capital punishment.221 The constitutionality of capital punishment in South Africa was determined by inter alia the concept of ubuntu, even though very little research had been done on this concept. From a South African point of view the concept of ubuntu seems to be inextricably linked to African philosophy. Seen from a global perspective, Western and professional African philosophers deny the existence of ubuntu as a unique philosophy of traditional African societies. They perceive ubuntu as pre- scientific myth; not philosophy. Because academic or professional African philosophers view philosophy as a universal enterprise and subscribe to the philosophical criteria of Western philosophy, only their texts are generally viewed as philosophy. Are what they produce as philosophy truly African philosophy, or merely Western philosophy produced by Africans? Ubuntu philosophy, or the collective philosophy of African traditionalists, is denied the status of African philosophy. Professional African philosophers vehemently deny, firstly, that their texts do not constitute African philosophy and secondly, that any unique ubuntu philosophy exists in traditional Africa. Apart from the global debate on African philosophy, a regional debate has also been raging between professional African philosophers and traditional African philosophers. True to the Western tradition of philosophy, professional African philosophers deny the existence of Africa’s unique philosophy of ubuntu. Ubuntu, or ethnophilosophy, is labelled as inferior, degenerate, retarded and debased: an outmoded traditional African belief system. According to Houtondji (1996: 120), ethnophilosophy is a myth, but for Constitutional purposes it is essential to deconstruct the myth. 220 Ibid par. 368. 221 Ibid par. 252. 153 Chapter Three attempts to deconstruct African philosophical values in terms of African philosophy. Deconstruction aims at ascertaining first, whether there is an African philosophy and second, why ubuntu is not acknowledged as African philosophy. Although African humanity has always been perceived as subhuman and inferior and its worldview denied the status of philosophy, postmodernity demands that the voices of the Other be heard. For centuries, Europeans have denied Africans their history, science, dignity, humanity, values and philosophy. The Belgian missionary priest, Placide Tempels, turned the tables on the European notion of Africa’s inferiority when he ‘discovered’ that Africans possess a unique collective philosophy. Tempels’ Bantu Philosophy sparked a heated philosophical debate in 1945 and placed the pervasive denial of African humanity under scrutiny. The following aspects will be discussed in this chapter: • The debate on African philosophy. • Oruka’s six trends in African philosophy, and • Whether philosophy is a universal enterprise? A heated philosophical debate was ignited by Tempels’ Bantu Philosophy when he revealed the existence of a unique collective philosophy amongst the Baluba of the Congo in Africa.222 This debate is still raging between Western and African philosophers on the one hand and professional African philosophers and African traditionalists on the other. The debate addresses the following: Does Africa have an ancient tradition of philosophy? Do Africans have the ability to philosophise? What is African philosophy and is ubuntu philosophy uniquely African? In an attempt to structure the discourse on African philosophy Henry Odera Oruka identifies six trends in African philosophy.223 Oruka’s initial four trends in 222 See TempelsB’ antu Philosophya t 3.3.1.1. 223 See Henry Odera Oruka’s six trends in African opshoilphy at 3.3. 154 Four Trends in African Philosophy (1987) categorise African philosophy as follows: ethnophilosophy; sagacious philosophy (sage philosophy); national- ideological philosophy (political philosophy), and professional philosophy. Oruka added two additional trends, viz. hermeneutics and the narrative trend to his traditional Four Trends in Sage Philosophy (1990). A variation of these trends in African philosophy will be introduced by academic intellectuals in 3.3.8. As ubuntu seems to form part of African philosophy it is imperative to locate which of Oruka’s trends represent ubuntu, the collective philosophy of traditional African societies. Western philosophy will be continuously scrutinised to assess whether it is in fact a universal inclusive philosophy, as proclaimed by Aristotle and Descartes. The academic reality of teaching a ‘decontextualised’ Western philosophy in African educational institutions will also be brought forward as well as the answer to the question of whether African philosophy exists. Chapter Three brings evidence that African philosophy has come full circle. In an era of postmodernism the original idea of philosophy, as depicted by Aristotle and Descartes, is deconstructed, not only to bring full humanity to Africans but also to acknowledge the existence of African philosophy. African philosophy will be introduced as Africa’s postcolonial response to the Western denial of Africa’s humanity: the affirmation of African culture, religion, politics, tradition and values. In an attempt to deconstruct the truth about African philosophy and African philosophical values, we have to start at the very beginning – the debate on African philosophy. 3.2 THE DEBATE ON AFRICAN PHILOSOPHY Until the latter half of the twentieth century, Africans were subjected to the intellectual denial of their history, science, dignity, humanity and philosophy. Up until then, all discourse relating to Africa had for centuries been dominated by 155 Europeans. As ‘pre-scientific savage barbarians’, Africans had no voice in the discourse on Africa. European history, Western philosophy and their European colonial masters had reduced Africans to silence. Discourse on Africa was conducted by Europeans, speaking on behalf of Africans and Africa. However, one can now state that “the wind of change is blowing through this [African] continent”.224 There is no turning back. Africa is affirming its humanity, history, values and philosophy. For the past fifty years, a lengthy philosophical debate has been raging between Western intellectuals and African scholars on whether Africans have in fact produced philosophical thought that could be termed African philosophy. The philosophical debate on African philosophy was ignited after the publication of Catholic missionary, Placide Tempels’, Bantu Philosophy in 1945. Whilst ministering among the Baluba people of the lower Congo in the 1930s, Tempels observed a coherent collective philosophy among the Baluba that governed their everyday life. Tempels found this oral collective philosophy225 to be based on reason226 and grounded in the philosophy of “vital force”.227 Moreover the Baluba’s collective philosophy was very different from contemporary Western philosophy. Tempels (1969: 167-168) writes: 224 Prime Minister of Britain, Harold Macmillan’s proheptic speech addressing both houses of South Africa’s parliament in Cape Town, February 2, 19 6A0lt.hough [this speech] is usually remembered as heralding the new nations of Africa onto the wosrtlda ge, it was in fact intended as an attack ont haepiadr (Anderson, 2006: 3). 225 This idea of a whole group philosophising is ane no pdenial of Plato’s maxim that “the multitude coatn n be philosophic” (Oruka, 200{a2}: 121). 226 A significant number of African intellectuals we rveery pleased with the publication oBf antu philosophy since “the humanity of Africans was defended anindd ivcated: Africans too, were reasoning beings, thus very human, even more important, s ain Ecueropean said so” (Outlaw, 2002: 143). 227 Tempels (1969: 61-63) describes a Bantu ontolohgayt dt ifferentiates between beings in a spiritual hierarchy which he calls “forces”. He ranks thfeosrec es in relation to their ability to influence eo nanother, viz. God (Spirit or Creator), the first fathers mofe n or founders of the different clans, the dea tdh eo ftribe or living dead, human beings, animals, vegetabnleds mainerals. African tribal societies typically ermacbe animism ,the belief that entities throughout nature areo ewnedd with souls, often thought to be souls of ancestors who are no longer individually rememb.e Nreadture, for most traditional Africans, is full loivfing forces. Spirits dwell within it and human beingsn cinateract with them. The African conviction thautm han beings are intimately connected to nature is pnadrt paarcel of the traditional belief that nature sis entially spiritual (Solomon & Higgens, 1996: 171). 156 This discovery of Bantu philosophy is so disconcerting a revelation that we are tempted at first sight to believe that we are looking at a mirage. In fact, the universally accepted picture of primitive man, of the savage, of the proto-man living before the full blossoming of intelligence, vanishes beyond the hope of recovery before this testimony … We feel that we should speak from one school of wisdom to another, from one ideal to another, from one conception of the world to another conception of it. The gods are dethroned, the disinherited stand before us as equals. Tempels confirmed what Europeans had learned from Senghor’s poetic Negritude: Africans are human and capable of reason. What distinguished Bantu philosophy from European philosophy was that Bantu philosophy did not represent individual thought but rather the philosophical ideals of the community. Tempels named the Baluba’s communal philosophy, “Bantu philosophy”228 and was henceforth considered the European founder of African communal or collective philosophy. Whilst Oruka (1990{a}: 28) termed Tempels’ Bantu philosophy “folk philosophy”, Houtondji (2002: 125) later renamed Bantu philosophy, by coining the term ethnophilosophy.229 Tempels claimed that it was impossible for the Baluba to formulate their collective philosophy as Bantu vocabulary and language could not hold up to Aristotelian and Thomistic thinking – the standard for universal philosophy (Imbo, 1999: 10). As Baluba communal philosophy was an oral philosophy, Tempels articulated this newly found Bantu philosophy by writing it up as Bantu Philosophy. In the last chapter on Bantu Philosophy, Tempels states the goal of his book: “Bantu Philosophy And Our Mission To Civilize” (Tempels, 1969: 167), 228 Bell (2002: 22) states that the famous book o fB theelgian Priest Placide TempeBlsa, ntu Philosoph yis the most important work in this early genre of eotphhnilosophy. According to Irele, “[t]he attractioonf Tempels’ work resides not only in its apparent vicinadtion of the African claim to an elevated systoefm thought but also in its providing a conceptualm ferawork for the African mode of thought. The vitat lis emphasis of Bantu philosophy ties in very well w tihthe epistemology implicit in SenghorN’sé gritude” (cited in Bell 2002: 23). 229 Ethnophilosophy takes a culture-specific view hoifl opsophy and finds African philosophy in folk tas,le proverbs, myths and sculptures of traditional cruelstu. Professional African philosophers deny thes texnice of ethnophilosophy. 157 which represents the European ideal to equip European missionaries with insight into indigenous African philosophy and the African way of thinking. Tempels (1969: 169) argues that in contrast with the “European idea that we stood before them like adults before the newly-born. In our mission to civilize, we believed that we started with a ‘tabula rasa’, though we also believed that we had to clear the ground of some worthless notions, to lay foundations in a bare soil”. Tempels (1969: 184) was a great proponent of the Christian civilising mission in colonial Africa by “colonials of goodwill only” and saw Bantu Philosophy as a necessary tool with which to equip missionaries to aid them in converting Africans to Christianity. He warns, however, that the “superficial Europeanization of the masses can only kill Bantu culture”, but that Christianity can serve “to purify and to ennoble a real Bantu civilization” (Tempels, 1969: 187). Bantu Philosophy aimed to establish a point of reference between Bantu philosophy and Christian theology and “to reconcile Africa and Europe at the level of spirituality and indeed, of mind” (Irele, 1983: 16-17). A heated philosophical debate erupted between Europeans and European and African intellectuals after the publication of Bantu Philosophy. The debate centred on the following questions: • Does Africa have a philosophy? • Does Africa have an ancient tradition of philosophy? • Do Africans have the ability to philosophise? • What is African philosophy? • Is African philosophy uniquely African? One of the most contentious questions in the debate on African philosophy is: Does Africa have a history of philosophy? This question is usually brushed aside by Westerners who assume that philosophy originated in Greece. As Africans are in the process of reconstructing their history, they feverishly seek the answer to these questions. 158 3.2.1 Does Africa Have a History of Philosophy? For anyone to ipso facto deny the existence of the history of philosophy in Africa equates discrimination and the rejection of the idea of philosophy itself. The following will be discussed in this section: • Background. • The oral tradition. • The written tradition, and • Africa’s ancient origins of philosophy. 3.2.1.1 Background Despite the outright rejection of the history of African philosophy by the Western philosophical tradition, there is mounting evidence that African philosophy had its origins in ancient Egypt. Ramose (2002{b}: 35) posits that “far from being a region of darkness irrelevant to the history of humanity, pre-colonial Africa was both the heartland of philosophical rationality and the birthplace of homo sapiens”.230 Diop (1974; 1987) argues that ancient Egyptian civilisations were in fact a Negro-African achievement and attempts to prove that the West owes its enlightenment to Africa.231 Whilst Houtondji (1996), Okolo (1990) and Lefkowitz (1996) deny the existence of philosophy’s ancient African heritage, Diop (1974: 1987), Bernal (1991), 230 Freeman (2003: 6) states in hTihse Closing Of The Western Mind: The Rise Of FAainthd The Fall Of Reason that archaeological evidence from South Africavne csa indicates that Africans were able to provide “rational adaptations to their changing environm 7e0n t000 years ago”. Oppenheimer (2003) argueOsu itn of Africa’s Eden: The peopling of the wortlhda t all non-Africans can be shown to have sprurnogm fa single successful exodus “out of Africa”. Accord itnog science, this massive global African diasporrinag bs proof that every human descends from Africa (Ma,z 2ru0i02: 27). 231 See Diop, C.A.T he African origin of civilization: myth or reali t(y1974), Precolonial Black Africa (1987) and Obenga, TE. gypt: Ancient History of African Philosop hwyhere he states that it is mere prejudice to believe that the philosophy of humya nbiet gins first among the Greeks in the fifth ceyn,t ur because that implies that other ancient people sn odti dengage in philosophical thought. AccordingD tiop , Egyptian thought made the greatest achievementthse i nfi elds of philosophy and science (Obenga, 2 004: 31; 55). 159 Summner (1994), Onyewenyi (1993), Obenga (1995: 2004) and others confirm Africa’s ancient written tradition of philosophy. On tracking Africa’s philosophical origins, a distinction has to be made between the written philosophical tradition of Africa north of the Sahara and the oral philosophical tradition of Africa south of the Sahara. 3.2.1.2 The Oral Tradition The philosophical picture presented by Africa south of the Sahara is very different from that of North Africa. Africa south of the Sahara is based on the oral tradition of traditional African societies. Tracking African history, it becomes evident that the cultures of Africa south of the Sahara were either abruptly broken up or destroyed by European and Islamic incursions during the last 500 years (Bell, 2002: ix). Although some of these Southern African cultures had great kingdoms and civilisations, very few of their written texts survived the turmoil in the region. The sub-Sahara region was ravaged and oppressed by slavery, foreign religious dogma, diseases, wars and European colonial rule. Fortunately some of the artefacts and icons of these oral African traditions, viz. narratives, culture, music, values and art were preserved and handed down orally from generation to generation. According to Kapagwani (1991: 182), the oral tradition of Africa embodies the “traditional wisdom, institutions, myths, folktales, beliefs, proverbs and languages in Africa”. Oral traditions include details of specific past events, such as the outcomes of wars, outbreaks of epidemics, and romantic versions of the past as embodied in African legends, ballads and stories of ancestry (Mazrui 2002: 5). It must be noted that this oral tradition is not characteristic only of Africa south of the Sahara but is symbolic of the entire African continent. In the absence of written texts, it is easy to understand why the uninformed doubt the accuracy, reliability and validity of the African oral tradition. Professional African philosophers, viz. Houtondji, Masolo, Towa, Keita, Imbo and Karp, regard only written texts of philosophy as philosophy in the strict sense. These African 160 philosophers regard the oral tradition, characteristic of traditional African thought, to be void of any philosophy. The truth about African oral culture is that it is a meticulously preserved tradition where every ancient word or skill is sacredly guarded and passed on from generation to generation. Apart from the traditional wisdom, myths, folktales, beliefs, proverbs,law, art and values which are synonymous with the oral tradition of traditional African societies, there is far more to this tradition than meets the stranger’s eye. Certain aspects of the oral tradition are, according to Mutwa (1998), kept secret by traditional societies. South Africa’s well known Zulu High Sanusi232, sangoma and sage, Credo Mutwa, reveals some of the ancient secrets surrounding the oral tradition of traditional African societies. Mutwa (1998: 654) discloses that the “Great Knowledge” or the total of all African knowledge of history, legends, mythology, philosophy, psychology and spiritualism “with a strong leaning to the occult”, are controlled by the “Chosen Ones”233 or “High Custodians” of traditional Africa. According to Mutwa (1998: 555), only certain pieces of knowledge are passed on from the Chosen Ones to the High Ones of the tribe and only if their duties require such knowledge; little knowledge is passed on to the ordinary or “common people” of the tribe and no knowledge is ever revealed to “strangers”234 or outsiders (Mutwa, 1998: 556). The “Chosen Ones” are sworn to secrecy under “High Oath”, to impart their secret knowledge235 only to their sons and they, to their sons, “without adding or subtracting a single word” (Mutwa, 1998: 556). The Chosen Ones or “High Custodians form a Hidden Brotherhood” is a secret society that oversees that the 232 A sanus,i or sangoma, is according to Mutwa (1996: xv), esonme who is “accountable both to the natural and supernatural realms, and ultimatelyth eto entire patterns of the universe.” As HiSgah nusi , Mutwa leads more than 500 traditional healers. 233 Mutwa (1998: 555) reveals that the Chosen One sm aerdeicine-men, tribal narrators, blacksmiths, woodcarvers etc. of traditional Africa. He uses ethxeample of how a blacksmith, as a Chosen One, ld w ou be told everything about the history of metal wnogrk, i the characteristics of various metals, the nledgs,e rites and ceremonies a blacksmith must performt haen dla ws that pertain to his trade. 234 See 4.11.3. for a definition of a stranger acicnogr dto ubuntur eality. 235 Mudimbe (1988: 186) maintains ethnophilosophy o[gr] n“osis is by definition a kind of secret knowledge”. 161 Chosen Ones forget nothing of the oral tradition; impart only relevant knowledge to chiefs, elders and indunas; and leak no knowledge to strangers (Mutwa, 1998: 556). The Chosen Ones report annually to the Hidden Brotherhood for “additional checks, clarification, confirmation and to receive new knowledge acquired in the meantime” (Mutwa, 1998: 556). The Hidden Brotherhood also meets when young Chosen Ones are initiated236 under oath237 before assuming their duties. “The Chosen Ones are forbidden from revealing the identity of the High Hidden Ones of the Hidden Brotherhood who are respected as Lesser Gods” (Mutwa, 1998: 556) by the Chosen Ones. These male custodians of the secrets of the oral tradition are the essence or heartbeat of the African oral tradition. Because so little of the essence of the oral tradition is ever revealed to “strangers” much of what it encapsulates is concealed from public scrutiny. For centuries the Western philosophical tradition treated the oral traditions of traditional Africa as pre-scientific, pagan, mystical and superstitious and, therefore, not philosophical in the strict or true sense of the word. Contrary to this notion, Kagame (1956), Tempels (1959), Abraham (1962), Senghor (1964), Nyerere (1968), Mbiti (1991), Mutwa (1998), Somé (1999) and others confirm the existence of a collective African philosophy which is firmly embedded in the oral tradition. Africa’s oral tradition cannot be overemphasised as it provides evidence that Africans have been and are philosophical people, as Tempels and others suggested. 3.2.1.3 The Written Tradition Philosophy north of the Sahara is characterised by a long tradition of written philosophical, cultural and religious knowledge. Not only is North Africa seen by 236 Although it is, according to Mutwa, forbidden toiv eg too much detail about the initiation of Chosen Ones, Mutwa (1998: 556) reveals that the ceremoansyts l fourteen days. During this time “effective methods” are implemented to ensure that none o ifn tithiaetes ever forget what they were taught. 237 According to Mutwa (1996: xviii), he, Ogotomellni da Somé (1998) felt compelled to break their sa cred oaths and disclose their tribal secrets. Mutwa awfarasi d that the lore of his people would die witihm h and be lost forever and therefore “decided to openk hniosw ledge to the planetary community”. According to Mutwa, he is despised by African people for doion.g s 162 Diop (1987), Bernal (1991), Onyewuenyi (1993), Ben-Jochanan (1994) and Obenga (1992: 2004) as the cradle of African and Western philosophical origins, it has also always been a focus point of the Islamic philosophical tradition. According to Bell (2002: ix), Egyptian and Abyssinian (Ethiopia238 and Eritrea) civilisations “have long traditions of written history and civilizations older than Greek civilizations; they also have a philosophical and religious literature of considerable interest”. Philosophical sources which predate the modern era include for example, Egyptian texts that date back to 300 B.C.; a collection of treatises from Abyssinia dating back to the seventeenth century A.D. (Hallen, 2002: 4); and the moral teachings of Ptah-hotep 2400 B.C. Part of Ptah-hotep’s manuscripts of the fifth Dynasty contain his moral principles for correct moral behaviour, called Maat.239 These principles of Maat are also evident in the Yoruba moral epistemology as recorded by Hallen and Sodipo (Hallen, 2002:7) and the moral values of ubuntu (Broodryk, 2002: 142; 2004: 88; 2007: 42). Sumner has published many volumes of Ethiopian philosophy since 1974 and champions a collection of medieval and early modern texts from Ethiopia which include the story of Skendes written in 1438-68 AD and the seventeenth century philosophy The Treatise of Zera Yacob (Presby, 2002: 361). Presby states that “even the most critical sceptics of the African oral tradition must pause at Sumner’s findings of medieval and early modern texts of philosophy from Africa”. The philosophical reflections of Ptah-hotep, Zar’a Ya’aqob and Amo fly in the face of any person who denies or ignores Africa’s ancient written philosophical achievements. 238 It must be noted that Ethiopia was never colon iasned has a long tradition of philosophy. The most notable of Ethiopia’s preserved manuscripts inc luthdee work of Ya’ecob, a contemporary of Descartes. Ya’ecob’s philosophy “used a rational method toc odviser the basic principle, the basic goodness mofa hnu nature, which he then developed into a theologhyi,c se tand psychology” (Carel et al., 2004: 100). 239 The holy belief Nechtar Maat was associated weitvhe sn virtues and forty-two Admonitions of Maat. According to Broodryk (2002: 142u),b untus hares the same seven virtues as Maat, viz. piebrilfietyc,t truth, justice, propriety, harmony, balance, reciprocintyd aorder. Although the admonitions of Maat weret twenri 1 500 years before the Christian Ten Commandmenetrse wdiscovered, it is believed that the Ten Commandments were deduced from these admonitio nsM aoaft (Broodryk, 2002: 144). The Ten Commandments form the essence of Jewish law aned, wacecrording to the Bible, given to Moses by God on Mount Sinai. 163 These and other writings sparked the Afrocentric debate by Diop (1987), Bernal (1991), Onyewuenyi (1993), Ben-Jochanan (1994), Obenga (1992: 2004) and others who argue that ancient Greek philosophy was directly derived from Egyptian civilisation.240 Their claims are substantiated by inter alia, Homer’s Iliad which recounts the visit of Zeus and other Greek gods to their annual banquet in Ethiopia; Herodotus’ writings which affirm that Pharaonic cultures were derived from inner Africa241, from the lands of the long-lived Ethiopians; Aristotle’s confirmation that “Egypt was the cradle of mathematics”242 and Diodorus of Sicily who writes in 50 BC that the Ethiopians were the first of all men and that Egyptians were in fact colonists sent out by the Ethiopians (Davidson, 1994: 324). Diodorus of Sicily writes in his historical summaries in 50 BC that “the black peoples were the first of all men; and the proofs of the statement, say the historians, are manifest. As for the Egyptians themselves, the Greek historians of those times - of the last four or five centuries BC - accepted what the Egyptians had told them: that “the Egyptians are colonists [i.e. immigrants] sent out by the Ethiopians, meaning by ‘Ethiopia’ not the peoples of the geographical Ethiopia 240 See James’Ss tolen Legacy: Greek Philosophy is Stolen Egypptihainlo sophy; D iop’s Precolonial Black Africa: A Comparative study of the Political andc Siaol Systems of Europe and Black Africa from Anityiq u to the Formation Of Modern States; The African Oinr igof Civilization: myth or reality;B ernal’s Black Athena: the Afroasiatic Roots of Classical Civitlizoan; Onyewuenyi’s The African Origin of Greek Philosophy: an exercise in AfrocentrismB;e n-Jochanan’sA frica, Mother of Western Civilisationa nd Obenga’s Ancient Egypt and Black Africa: a student’s handkb ofor the study of ancient Egypt in philosophy, linguistics and gender relatio; nEsgypt: Ancient History of African Philosoph Oy.benga argues that ancient Egypt contributed significantly to lpohsiophy and ethics as well as to the world consscnioeuss of later times by receiving and educating many Gk rseceholars and philosophers. According to Obenga, (2004: 31; 55) prejudice could make one believet thae philosophy of humanity originated from the Greeks in the fifth century, implying that otherc aiennt peoples did not engage in philosophical thot.u g Diop argues that ancient Egyptian thought madeg rtheea test achievements in the fields of philosopnhdy a science. See also DrapeBr’sla ck Pharaoh.s 241 Herodotus concluded on his travels in 450 BC tEhgayt pt’s cultural origins lay in continental Africa (Davidson, 2003: 15). “On the subject of circumocnis, i for example he remarked that ‘as between the Egyptians and the Ethiopians (by which he meanst et hsoince called Negroes), I should not like to say which learned from the other” (Davidson, 2003: 15). 242 Ammianus Marcellinus (cited in Alford, 2002: 53e)v realed the following in thet h4 century A.D: “But if anyone in the earnestness of his intellect wishoe sa ptply himself to the various branches of divine knowledge, or to the examination of metaphysics ,w hilel find that the whole world owes this kind of learning to Egypt”. 164 we know today but, generally, the inhabitants of inner Africa south of Egypt” (Davidson, 2003: 27-28). There is a general tendency amongst Westerners to leave Egypt out of the history of Africa. This tendency has been generally defended by nineteenth- century European thought which stated that Egyptians were not Africans (Davidson, 2003: 25). According to the African historian, Davidson, little can be said for this view. “[I]t now seems perfectly clear that the vast majority of pre- dynastic Egyptians were of continental African stock, and even of central-western Saharan origins, there is likewise serious dispute among the authorities even as to whether the hypothetical ‘dynastic race’ associated with the foundations of Pharaonic Egypt had come from outside Africa” (Davidson, 2003: 26). It is common knowledge today that the Kushite or Nubian pharaohs of the Nubian Pharoanic Dynasty (New Kindom, 1570-1070 B.C.) that ruled central Egypt were indeed Black pharaohs. On viewing Western philosophy itself, most of the Greek philosophers of the Classical Age acknowledged the cultural primacy of Egypt243 and submitted themselves to Egyptian wisdom, guidance and inspiration. In his Republic (1997) Plato (427-347 B.C) recorded that Thales (624-546 B.C.), the founder of Greek philosophy, geometry and astronomy was educated in Egypt under Egyptian priests. According to Law (2007: 24), “Pythagoras was advised by Thales to visit Egypt to learn about mathematics”. Diop (1987) argues that ancient Egypt was a Negro-African civilisation which brought enlightenment to Greece whilst Bernal (1991) presents empirical evidence to confirm interactions between Greek and African peoples. 243 In the fifth century BC Herodotus stated that tEhgey ptians were the best historians of any nation. “Herodotus pointed out that the Egyptians gave hthimei r historically written records at Memphis containing the names of three hundred and thirtyn amrcohs who succeeded Min, the first king of Egypt” (Davidson, 2003: 25). 165 The Afrocentric claims that Egypt is the seat of ancient African philosophy and that Western philosophy originated in Egypt are, however, dampened by countless counterclaims by Western scholars, such as Lefkowitz (1996), who claim that Egypt did not produce philosophy; rather philosophy originated in ancient Greece. Professional African philosophers, viz. Houtondji (1996: 33) and Okolo (1990: 27-28) add fuel to the fire by insisting that African philosophy has no ancient history and that the history of African philosophy can only be traced for fifty years or more. 3.2.1.4 Africa’s Ancient Origins of Philosophy From a hermeneutic point of view, it is interesting to note Davidson’s comments on the existence of an ancient African philosophy. Davidson (1994: 320-322) and Bernal (1991) argue that before 1830, it was universally held by Europeans that ancient Egypt was an African civilisation and the source of Greek civilisation. After 1830 however, ancient Egypt suddenly ceased to be seen as part of Africa. Philosophers and propagandists of the new imperialism accentuated the subhumanity of Africans which resulted in, as Davidson (1994) claims, a sea change in history that was racist-motivated. This new imperialism with its characteristic racial bias, “shoved whatever the ancient Greeks had thought and written about African origins under the academic carpet and lost it there” (Davidson, 1994: 22). This new imperialism set about constructing an Aryan model which proclaimed Greece as the original source of Western civilisation and confirmed that “Egypt … does not belong to the African Spirit” (Hegel, 1956: 99). In an effort to tell the true history and achievements of Africa prior to slavery and imperialism, Mazrui (2002) confirms that Afrocentrism244 attempts to re-establish the role and place of Egypt and Africa in the development of classical Greek and Western civilisation. In the midst of the ongoing debate about the origins of 244 According to Mazrui (2002), Afrocentrism is thteu dsy of the African human condition and confronts Eurocentrism from an African perspective. Afroceisnmtr emphasises the impact of Africa on the world an accentuates the uniqueness of the African peopflreo.c eAntrism argues that ancient Greek philosophdy an science originated from the ancient Egyptian csivaitlion. 166 African philosophy, it is however, evident that Africa was never devoid of philosophical thought. As Onyewenyi (1993: 286) states: “Africa originated the discipline of philosophy and taught the same to the Greeks”. Contrary to Western philosophical teaching, Greece no longer seems to be the cradle of philosophy as many ideas of Greek philosophy, viz. mathematics, geometry, astronomy and the Greek concept of the soul, were imported from Egypt (Law, 2007).245 Contrary to popular Western belief, African scholars have produced substantive evidence in an attempt to prove Africa’s ancient philosophical origins. This evidence can no longer be ignored by the philosophical fraternity as it denounces the Western philosophical notion of Africa as a continent historically void of philosophy. Based on the evidence of both the oral and written traditions of philosophy in Africa, one can conclude that Africa has a history of philosophy. One of the grounds upon which Westerners founded their denial of Africa’s philosophical history was the Western assumption that Africans are unable to produce logical reasoning. The arrogant question continually posed by Westerners during the debate is: Do Africans have the ability to philosophise? In short, are Africans deficient in critical, rational thinking? 3.2.2 Do Africans Possess the Ability to Philosophise? Descartes, the French father of modern philosophy, held the opinion that all human beings have the ability to reason. For Descartes “the essence of man lay in being a purely thinking being” (Law, 2007: 279). Like his Greek predecessor Aristotle, who proclaimed all men rational animals, both of these acclaimed philosophers pronounced philosophy a universal enterprise. Despite the wisdom of Aristotle and Descartes, Africans have been perceived by Westerners as “emotive, mythical and unlogical” beings (Oruka, 2002{a}: 121). Obenga (2004: 31) argues that it is wrong to assume that some races are superior to others. 245 See Obenga, T.’Asf rican Philosophy of the Pharaonic Peri o(1d989). 167 According to him, such reasoning constitutes racial prejudice which is “founded on the belief that one race is superior to another”.246 According to the Greek philosophers, Aristotle and Descartes, all humanity has the ability to reason. However, whilst Descartes experienced Greek reasoning as an analytic exercise, Senghor experiences African reasoning as an emotional experience. The following different ways of comprehending reality will be discussed next: • I think therefore I am. • I feel therefore I am. • Emotion versus reason, and • Opposing views. 3.2.2.1 I Think therefore I Am247 African philosophers such as Ramose (2002{a}), Masolo (1995) and Outlaw (2002) posit that the question of whether there is an African philosophy, is superficial. According to them, there is a much deeper philosophical struggle at stake. They argue that the real philosophical struggle between European and African is the struggle over the Aristotelian concept of ‘reason’; “a struggle that created the great divide, dividing civilised and uncivilised, logical and mystical, Western and non-Western” (Masolo, 1995: 1). Outlaw (2002: 128) claims that the struggle for reason is the struggle over the words “man” and “civilised human” as defined according to the Greek standard. According to Outlaw, the Greek standard for civilised man was set by Aristotle, the most advanced Greek intellect 246 Serequeberhan (2002: 67) comments on Africa’sa slloe-dc deficiency in reason and states that “in this gauging of the ‘lack of reality in reality’ Europne acivilization is both the standard and the modye wl bhich this deficiency is first recognized and then remeedd”.i 247 I think therefore I am, o r“Cogiti ergo sum”, defined reason for Descartes. According to Descartes, reason could be relied upon to tell us what is taruned what is not (Stevenson, 2002: 18). “Desca rtes’ solution to the epistemological problem of what cwaen know is calledra tionalism. It’s the belief that the mind is capable of knowing things even without erxiepnece” (Stevenson, 2002: 18-19). 168 of his time. Aristotle defined all men as rational animals because reason to him was the essence of all things. African philosophers posit that although Aristotle’s universal definition declared all men rational animals, Western philosophy claimed reason as the Western male’s exclusive, distinctive trait, elevating him to a position of superiority. Ramose (2002{a}: 5) states that the Western standard for rational man became the civilising standard of the European: “Philosophy became the self appointed norm of this rationalisation and was off-loaded to Africa through greed and imperialism, guided by the cross and domination”. According to Ramose, Aristotle’s definition became the cornerstone of the struggle for reason: “the reason for the struggle between colonialists and Africans and the foundation for the struggle between men and women” (Ramose 2002{a}: 2; 5). Reason and rationality became the Western male’s trait, the defining criterion of being human. The Other – all Africans248, American-Indians, aborigines of Australasia (Ramose 2002{b}: 16-17) and European women – were branded as irrational, emotive and devoid of logic. According to Ramose, Africans are perceived neither as rational animals nor as fully human. Whilst Western philosophy proclaims philosophy to be a universal enterprise, primitive, emotive and illogical Africans are denied entry into this enterprise. The ongoing philosophical struggle of the Other to be recognised also as rational animals, flies in the face of both Aristotle and Descartes. Oruka (1990{a}: xxvii) argues that the dichotomy between reason, rationality and intuition has been a tendency in Western academic circles where intuition, perceived as a primitive method of understanding and judgment, has been played down against rationality. Oruka believes that this is wrong. Both Oruka (1990{a}; 1990{b}) and Wiredu (1998) agree that Africans possess reason. Aristotle, Descartes, Oruka (1991{a}: 25; 2002{a}: 120) and Wiredu (1998: 195) 248 Freeman (2003: 6) states that archaeological necveid efrom South African caves shows that African individuals were able to provide rational adaptnasti oto their changing environment 70 000 years a go. 169 are of the opinion that rational thinking is not an exclusive Western trait, but present in all humanity. All of these philosophers accentuate that rational and critical thought prevail in Africa. Oruka argues that logic and individuality cannot be replaced by emotion and communality. He challenges anyone “to show the exact examples of African philosophy or at least the areas of African culture where it can be found” (2002{a}: 121). Oruka sees philosophy as “a discipline that employs analytical, reflective and rationative methodology and is therefore not seen as a monopoly of Europe or any one race but as an activity for which every race or people has a potentiality” (Hallen, 2002: 120). Wiredu (1998: 195) finds “that rational knowledge is not the preserve of the modern West, nor superstition a peculiarity of the African”. The answer to the question of whether Africans can or cannot reason is best captured by Mutwa (1997: 538) when he notes that “[t]he reason people from beyond the seas look upon the Black Man of Africa as stupid is that we have all along been afraid to show to them that we too can think, that we too have ideas of our own. There is nothing a Black Man fears more than ridicule”. Mutwa and others maintain that Africans can rationalise, but that it involves a different methodology than Western rationality. 3.2.2.2 I Feel Therefore I Am Like Oruka (2002{a}) and Wiredu (1998), Senghor (1964) finds Africans to possess reason. Senghor (1964: 74) maintains Africans do possess reason, but that it is a different type of reason and reality than that experienced by Europeans. Contrary to professional African philosophers, Oruka and Wiredu, however, Senghor, a traditionalist, argues that Africans do not possess the classical, analytical, European type of reasoning which makes use of the object, but a distinct African mode of reasoning. Senghor (1964: 74) argues that whilst “European reason is analytical, discursive by utilization; Negro-African reasoning is intuitive by participation”. In contrast with Europeans who comprehend reality by utilising analytical, critical, reflective and logical methodology, Africans possess a “distinctly African epistemology with its own methodology for comprehending the universe” (Imbo, 198: 12). 170 Senghor (1964: 72) compares the difference between European and African reasoning as follows: Let us consider first the European as he faces an object … He first distinguishes the object from himself. He keeps it at a distance. He freezes it out of his mind. In a way, out of space. With his precision instruments he dissects it in a pitiless factual analysis … He makes a means of it. With a centripedal movement he assimilates it. He destroys it by devouring it … From our ancestors we have inherited our own method of knowledge … In contrast to the classic European, the Negro African does not hold it at a distance, nor does he merely look at it and analyse it. After holding it at a distance, after scanning it without analysing it, he takes it vibrant in his hands, careful not to kill or fix it. Senghor distinguishes between the European “precision instruments of reason” and logic and the intuitive African “method of knowledge” inherited from the ancestors. Senghor poses Western scientific methodology and African intuitive methodology as opposing methodologies or reasoning techniques. In contrast with European reality, Senghor (1964), Fanon (1990), Somé (1994; 1997; 1999), Mutwa (1998), Kaunda (cited in Biko, 2006), Biko (2007) and others find Africans to comprehend reality through their senses249 and not their intellect. Senghor is convinced that intuitive African reality is a richer and deeper experience than the superficial discursive reality experienced by Europeans. According to Senghor, (1964:75), the European’s “[d]iscursive reason merely stops at the surface of things; it does not penetrate their hidden resorts, which escape the lucid consciousness. Intuitive reason is alone capable of an understanding that goes beyond appearances of taking in total reality”. Senghor (1964: 73) finds the African non-rational way of comprehending reality, embodied in African intuition and emotion. He illustrates the interaction between intuition and emotion as follows: “The Negro African inherits from his ancestors a consciousness of the 249 Rousseau (cited in Jimack, 1983: 57) advocatets “ [twhae] must learn to feel …t o produce the most complex kinds of knowledge” by using the senses. 171 world according to which the subject and object of observation, the natural and supernatural, the mundane and divine, the material and the spiritual, are united in an inseparable oneness. This oneness is comprehended using the gift of emotion”.250 The mere fact that African logic differs from European logic does not prove that Africans are inferior or that their minds are incapable of critical reflective inquiry. What it does prove is that “Africans, in contrast with Europeans, have a distinct African epistemology” (Imbo, 1998:12). Senghor finds emotion251 as African as reason is Greek. Apart from African reality being intuitive and emotive, Senghor perceives it as dualistic, consisting of the visible and invisible universe. According to Okolo (2002: 211), the invisible or immaterial universe of African reality consists of the following: God, the highest being; the ancestors (souls of the heads of clans and the departed relatives); and nature gods or spirits. The visible or material realm consists of human beings, animals, plants and innate beings. Fanon (1990: 44) explains that “certain wise men find the native a hysterical type because of the interplay between intuition and the emotional sensitivity of the native. This sensitive emotionalism, watched by invisible keepers who are however, in unbroken contact with the core of the personality, will find its fulfilment through eroticism in the driving forces behind the dissolution of the crises”. Fanon seems to concur with Senghor that emotion and intuition lie at the core of African reality and accentuates that African problem solving involves the invisible keepers, or ancestors. “For Senghor, this African mode of appreciating reality through the senses rather than the intellect is at the root of his direct experience of the world, of his spontaneity. The African’s psychology helps to determine a different form of mental operation from the Western, a different kind of logic” (Irele, 2002: 46). It is suggested that this 250 Senghor says “It is the gift of emotion that exinpsla Negritude … For it is their emotive attitudew taords the world which explains the cultural values of Athfericans” (Reed & Wake, 1965: 33). 251 According to Senghor (1964 “),emotion is black as much as reason is Greek”. Soern egxhplains that “[T]his does not mean that the black man has go rte naoson as others make me say but rather thaet ahsiso nr is not discursive but synthetic; it is not antagsotinci, but sympathetic. This is another way of knnogw. i While the European reason is analytic by utilizna,t iothat of the black man is intuitive by particiipoant” (cited in Masolo, 1995: 26). 172 “different form of mental operation” or African logic represents a “different kind of logic” to European rationality. Like Senghor (1964), Kaunda (cited in Biko, 2006) believes that European and African reasoning differ from one another. Kaunda (cited in Biko, 2006: 48) compares Western and African modes of thought and comes to the following conclusion: [The European] is vigorously scientific in rejecting solutions for which there is no basis in logic. He draws a sharp line between the natural and the supernatural, the rational and non-rational, and more often than not, he dismisses the supernatural and non-rational as superstition … Africans being a pre-scientific people do not recognise any conceptual cleavage between natural and supernatural. They experience a situation rather than face a problem. By this I mean they allow both the rational and non-rational elements to make an impact upon them, and any action they may take could be described more as a response of the total personality to the situation than the result of mental exercise. Kaunda finds that whilst European reasoning is merely a scientific mental exercise of applying logic to a problem, Africans apply the pre-scientific method of “total personality”: applying intuition and the supernatural252 to solve a problem. Biko (2006: 48) contrasts the European and African attitudes to problems presented by life in general as follows: “Whereas the Westerner is geared to use a problem-solving approach following very entrenched analyses, our approach is that of situation-experiencing”. Biko (2006: 49) acknowledges the essential difference between the European and African approaches to reality. He perceives the African mode of thinking as positive, saying: “the African personality with its attitude of laying less stress on power and more stress on man is well on the way to solving our confrontational problems”. This African mode of comprehending reality is confirmed by Mutwa 252 Chapter Four brings evidence which confirms thtael vroi le the supernatural plays uinb untur eality. 173 (1998: 612) who maintains that “a man who lives with his soul and who lets his soul rather than his brain guide him, is better equipped to face the mysterious and supernatural things because the soul understands these things while they bewilder the brain. The brain drags them into the quicksands of materialism”. Mutwa is of the opinion that it is to the African’s advantage to be guided rather by his emotional “soul” than his logical “brain”. Mannion (2002: 210) states that man cannot live by reason alone in the African worldview as “intuition and imagination are regarded as valid, and logic is not stressed as the path to wisdom; emotion plays a more important role”. Professional African philosophers253, viz. Houtondji and Wiredu, object to Senghor and other traditionalists as sell-outs “playing into the hands of the West” by emphasising that the African reality consists of emotions and irrationalism (Imbo, 1999: 30) rather than analytical, critical, reflective and logical inquiry. In the West, imagination and emotion are regarded as attributes only of madmen and children (Somé, 1997: 2). The Western theory of ideas negates the notion of emotional and intuitive reasoning. Emotional and intuitive reasoning does not constitute philosophy, it represents African mysticism. Western philosophy’s universal truth, or rationality, opposes traditional African modes of reasoning. This diabolical philosophical dualism reveals the paradox between Western philosophy and African ‘myth’. Whilst traditional African thought is branded as emotional spirituality, Western philosophy itself will prove to be all but pure rational thought. 3.2.2.3 Emotion versus Reason The great Enlightenment philosopher Jean Jacques Rousseau defended the philosophical value of emotion along with reason. Contrary to rationalist thinking during the eighteenth century Age of Reason, Rousseau did not see reason as the only avenue by which to establish knowledge. Rousseau did not believe reason to be the sole solution to social and philosophical problems (Stevenson, 2002: 171). Rousseau states that reason, when unaccompanied by the 253 The term professional philosophy will be discus usneder Trends in African Philosophy. 174 considerations of the heart or emotions, acts in an insensitive and unproductive way. Rousseau argues that emotions must be allowed to surface because as soon as the importance of emotions is suppressed, problems arise: “Many Enlightenment thinkers regarded the emotions as dangerous forces that needed to be reigned in by means of reason, but not Rousseau” (Stevenson, 2002: 171) . For Rousseau, reason was neither characteristic nor prerequisite for civilised man. “With original man, this faculty of self perfection, of each man striving to realize his human qualities, remains dormant. Finally reason, passion and free will, also characterize man and contribute to the desire for self-perfection. But throughout most of history, Rousseau believed, reason and will have been ruled by desire. That is to say, reason acts only in response to problems created by desire. Thus, man progressed from a state of primitive savagery but only by responding to his physical and social environment rather than through reason, attempting to take control of it” (Lively & Reeve, 1989: 118). Rosseau maintains European rationality is not ruled by logic alone. Whilst Rousseau claimed that reason and will have been ruled by desire, Freeman (2003) discloses an important aspect of Western rationality. Freeman maintains that, contrary to what philosophers make us believe about Western rationality, Christianity suppressed the Greek intellectual tradition of reason or rational thinking in the West. According to Freeman (2003: 343), the dawn of Christianity and the rise of Christian faith in the West, resulted in the “fall of reason and the closing of the [Western] mind”.254 Freeman maintains it is a Christian characteristic to be able to reject rational thought and even the evidence of empirical experience when it comes to faith255, as “the subversion of the natural order of things by miracles becomes one of the distinguishing features of Christianity and necessarily goes hand in hand with the waning of 254 Freeman (2003: 343) argues that the Roman Empbisreo rbaed and sustained the Greek intellectual tradition. A century after Constantine’s convers iton Christianity, an alliance between church anadte s t restricted freedom of thought and the traditionG oref ek rationalism, which was intrinsic to it. Acdcoinrg to Freeman, the revolution of fourth century Chrisitiya nled to the closing of the Western mind. 255 Plato condemned faith as a means of finding thueth .t rThe only secure way of understanding the immaterial world was according to Plato through uthse of reason (Freeman, 2003: 119). 175 scientific thought” (2003: 119). This revelation that Western thought does not comprise of logic only, seems to confirm the notion of Isaac Newton when he remarked that “it is the temper of the hot and superstitious part of mankind in matters of religion ever to be fond of mysteries and for that reason to like best what they understand least” (cited in Alford, 2000: ii ). Theron (1995: 57) argues that despite claims of rationality, Western thought, through the influence of Christianity, is ultimately theological. He argues that although Western reason is posed as opposed to faith and scripture, it too is divine. “Now reason, though most often opposed to scripture or faith, is yet analogous to faith as that to which one subjects oneself, as becomes apparent in the practical sphere with the doctrine of natural law.256 But any speculative principle can be stated as law. This is the deeper truth behind the Thomistic synthesis, that reason too is divine, a reflected divine light, which after a certain manner also calls upon man to renounce himself, to adopt a noble stance”. Theron maintains that the Christian church has been crucial in the preservation and maintaining of Western philosophy. “Philosophy it can be said, has been largely maintained for the sake of theology” (1995: 64). Rousseau, Freeman and Theron bring alarming evidence to the table and suggest that reason, the foundation stone of Western philosophy, does not comprise of male logic only, but that it is “ultimately theological”. It seems as though reason is definitely not a constant in Western thinking as Western thinking does not apply logic only in reasoning or decision making. More and more scientific proof accumulates and indicates that emotion and reason are applied in human thought processes.257 In certain instances reason can be shut 256 In contrast with legal positivism natural law haa sm oral dimension. “The characteristic featureh oisf t approach is that there is a moral code or a semt orfa l principles that exists irrespective of human interaction or positive law … If positive law coincftls with these norms it is unjust. An unjust lasw n io law at all. The legality of legal rules for natural lyaewrs depends on the moral content of the laws” y(nK l&e Viljoen, 2006: 12). 257 Ramose (2002{b}: 47) maintains “African philosop hwyould not subscribe to the radical opposition between reason and emotion.” According to him, gthhot uis a wholeness which includes the dependen ce of the rational and the emotional. 176 down completely in rationalising, viz. in situations of fear.258 The New York neuroscientist, Joseph LeDoux (cited in Gore, 2007), found emotion to be part and parcel of the Western thinking process and maintains that emotion has a profound influence in our decision making. LeDoux found that “connections from the emotional systems to the cognitive systems are stronger than connections from the cognitive systems to the emotional systems” which proves that emotions are frequently utilised during rationalising (cited in Gore, 2007: 28). In fact psychologists have studied the way Westerners make decisions in the presence of uncertainty and found that humans make judgments based principally on emotional reactions rather than considering all options and making choices carefully (Gore, 2007: 29). As thinking is therefore not devoid of emotions, Rosseau was spot on when he defended the philosophical value of emotion along with reason. The mere fact that logic and reason can be overridden by religion, desire and fear suggest that there is more to the struggle for reason than meets the eye. Western feminists defend the moral relevance of emotion and maintain that Western philosophy’s denigration of emotion was part and parcel of the cultural devaluation of women. Whilst Western moral philosophy tends to view the moral point of view based on reason, “emotion was regarded not merely as irrelevant but as a cause of bias and distortion in moral understanding … Defending emotion, including its role in moral understanding, has become for feminists part of the project of evaluating cultural esteem for women” (Friedman, 2000: 209). The diabolical struggle to deny the Other their philosophical status on the grounds of the absence of literacy and/or reason does not hold water in postmodernism of the twenty-first millennium. There is more behind the struggle for reason than just so-called rationality. 258 Al Gore (2007:1; 23) argues that although Ameruicsau ally strives to apply truth and reason “[r]ea, son logic and truth seem to play a diminished role imn eArican decision making”. Gore quotes Burke say ing, “No passion so effectively robs the mind of al l pitoswers of acting and reasoning as fear”. Gore lcuodnecs that the American politics of fear, secrecy andn db lifaith has subverted American decision making, degraded democracy and imperiled America and threld w. o 177 Céssaire (cited in Masolo, 1995) maintains that the Other’s struggle for reason is not a struggle between reason, emotion, myth and logic, but that the struggle symbolises something more sinister. Céssaire (Masolo, 1995: 24), Outlaw (2002{a}) and Ramose (2002{a}), find the struggle for reason to be used as an instrument of discrimination. Outlaw (2002: 141) seems to support this notion of Céssaire when he contends that Western civilisation is conditioned not by reason, as posited, but by the principle of discrimination. Ramose (2002{a}: 4-5) claims that despite democracy and the culture of human rights, the foundation for the struggle for reason remains unshaken. Ramose states that the struggle for reason is founded on Western racism which calls into question the humanity of Africans. He posits that reason became the judge, favouring Western thought over African modes of thought. In spite of Aristotle, Descartes and the Papal Bull Sublimis Deus, who declared all men rational animals and philosophy a universal enterprise, “philosophy failed to eradicate and erase the struggle for reason from the social consciousness of successive generations of the former colonizers” (Ramose, 2002{a}: 3-4). Africans feel that the time has come for the Western philosophical tradition to accept Africans’ humanity and openly declare as Aristotle did, that all men are rational animals! This yearning amongst Africans to be recognised as equal rational animals was also expressed by Nelson Mandela (1994: 322) whilst defending himself at the Rivonia trial in 1964, when he uttered these famous words: “I have fought against white domination and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if need be, it is an ideal for which I am prepared to die”. But the scales of justice are not in equilibrium, as Western philosophers keep tipping the scales in their favour, towards exclusivity. 178 3.2.2.4 Opposing views Because Western philosophy is depicted as a universal enterprise, it is generally presumed in the Western tradition of philosophy that all people’s thought processes are governed by the same principles of logic. As logic is one of the core areas of philosophy it has been presumed over the years “that the ability to reason logically and to draw valid inferences is an essential characteristic of all races” (Sogolo, 2002: 244). It has been presumed that “all cultures operate within the same framework of logical principles and therefore have to conform to the rules of formal logic” (Sogolo, 2002: 245). However, the Western tradition of philosophy does not enable all humans to take part in the activity termed universal philosophy. Despite the fact that humanity has been declared rational animals, Western philosophy adds extra criteria or rules of formal logic to estimate whether thoughts are indeed rational and philosophical enough to enter its ‘universal’ domain of reasoning. The paradox for Africans is that despite their classification as rational animals, traditional African thought is branded by Western philosophy as irrational and mystic and, therefore, void of philosophy. According to Western philosophical ‘rules of formal logic’, African thoughts do not comply with the scientific standards of Western rationality. The dominant feature of Western philosophy, its so-called universality, is criticised by postmodernists. Postmodernists do not view rationality as the only avenue towards reliable knowledge. Postmodernism negates the notion that rationality can be “certain of success in yielding correct, final answers if its methods are promptly followed” (Teffo et al., 2002: 162). Can knowledge be obtained or be dependant not only on reason, but also senses, as Africans suggest? On the one hand we have the Western view that knowledge can only be obtained through reason or rationalism whilst on the other hand we have the view that knowledge can be obtained through the senses or experience. Rationalists believe that it is possible to have knowledge without 179 relying on the six senses. According to Law, (2007: 67) rationalists believe “that it is possible for us to know (some) facts of how the world is outside our own minds, about morality, metaphysics, or even the material world, without relying on our five senses”. Empiricists, however, argue that it is impossible to have or obtain knowledge without relying on experience and the senses. Empiricists argue that “all knowledge of the world outside the mind is based on sense- experience” (Law, 2007: 67). These opposing views are evident also in the debates among philosophers. Postmodernity takes note not only of different ways of obtaining knowledge but also of the epistemological difference in thought between traditional and professional African philosophers. Okolo (2002: 212) states that the African theory of reality or metaphysics “differs significantly from that of Aristotle, for instance, with its individuated, discrete existences – ‘substances’ he called them – existing in and by themselves, separate from others”. Okolo argues that Africans experience the existence of both the spiritual and the material, physical universe as their realities; realities which constantly interact with one another.259 Do Africans possess the ability to philosophise? Apart from the fact that the question itself demonstrates a superior attitude towards Africans, it is arrogant for any one group to judge the reasoning capabilities of another. It must however be noted that Africans themselves are of two minds as to how they perceive reality. Whilst professional African philosophers profess an analytical thinking process, the traditional African approach professes an emotional and intuitive reality. As this debate has not burned itself out, one has to concur with Aristotle, Descarte and the Papal Bull, Sublimis Deus that every person (rather than man) is a rational animal. 259 Okolo (2002: 212) states that the “physical, mialt eurniverse is real for the African, not just an epiphenomenon or shadow of the real, as Plato mainaeindt in some of his dialogues”. 180 The most controversial question to ask an academic philosopher in South Africa is: Does Africa possess a philosophy? Like his European counterpart in the Western philosophical tradition his reply will be: What is African philosophy? 3.2.3 What is African Philosophy? The debate on African philosophy does not only include the discourse between Westerners, between Westerners and Africans, but also between African professional philosophers (academics) and African traditionalists. The debate between professional African philosophers and African traditionalists centre on the following issues: firstly, whether the collective philosophy of traditional African societies forms part of the universal enterprise of philosophy; and secondly, whether it constitutes a single or unique philosophy or no philosophy at all. In an attempt to comprehend the struggle for an African philosophy, one has to understand not only the history of Africa but also the internal philosophical struggle between universalists260 and traditionalists; the struggle to define who the African philosopher is; and the struggle to come up with a single definition for African philosophy. The following will be discussed in this section: • The universalist view. • The traditional view. • African philosopher: a definition. • Critique of the definition, and • African philosopher: a definition. African philosophy is generally seen as “Africa’s postcolonial response to the Western belief of Africa’s inferiority”. It is a philosophy intertwined with slavery, European colonialism, Western imperialism apartheid and a myriad of challenges of modern-day Africa that confront the African continent. African philosophy can 260 Professional African philosophers, also calledv eurnsialists, believe philosophy should adhere to the prerequisites of universal philosophy as practbisye dth e Western tradition of philosophy. 181 be regarded as proof of the hermeneutical process by which Africa’s colonial legacy is deconstructed and the African identity reconstructed. It is a philosophy which illustrates a deep connection with nature and an understanding and respect for the inexorable cycles of African life (Mannion, 2002: 210). African philosophy is “an ontological memorial of the ways our scholarly ancestors thought and lived life through the way they attempted to understand and master themselves and their world” (Osuagwu, 1999: 22). Oruka sees African philosophy as the philosophical attempt by Africans to affirm their humanity, values, religion, history261, politics, culture and traditions. According to Oruka (2002{a}: 120), there are two usages of the term African philosophy. African philosophy is defined either as uniquely African and the opposite of Western philosophy, or it is viewed as philosophy in general “in the strict sense”. In an attempt to interpret these two usages of the word African philosophy, terms such as universalist, particularist, African philosopher and African philosophy need to be clarified. 3.2.3.1 The universalist view The term African philosophy represents two distinct modes of African thought. Philosophy in Africa is perceived either from a universal or a traditional perspective. Universalists represent African professional philosophers, or academic philosophers, whilst particularists or traditionalists, represent traditional African modes of thought. African philosophers, who have been trained in Western philosophy and have adopted its analytical methodology, adopt the universalist definition of philosophy. They view Western philosophy as a measure for all philosophy. These professional African philosophers, or universalists, believe philosophy must have the same meaning in all cultures. They assert the universal nature of 261 See Hallen’sA Short History of African Philosophy anBde ll’s Understanding African Philosophy: a Cross-cultural Approach to Classical and Contempryo rIassues. 182 reason and logic and are opposed to African philosophy seeking its own single or unique philosophy. Wiredu (1996: 145), a universalist, holds the opinion that “[t]he post-colonial era in African philosophy is the era of professionalism”. Although professional African philosophers might differ with regard to their subject matter, they share a concerted rejection of traditionalists, or ethnophilosophy262, the so-called communal philosophy of traditional African societies (Imbo, 1999: 39). Professional African philosophers, viz. Houtondji, Oruka, Wiredu and Bodunrin fiercely oppose ethnophilosophers such as Tempels, Mbiti, Gyekye and Keita. Bodunrin (1981: 173) sees African philosophy as criticism which involves “rational, impartial and articulate appraisal whether positive or negative”. Bodunrin argues that African philosophers should oppose traditional African cultural beliefs and folk wisdom just as Socrates and Plato opposed popular beliefs and opinions in the ancient Greek context. Professional African philosophers utilise European techniques of logic to criticise African philosophy. Houtondji (1996: 120; 2002: 125) sees African philosophy as a universal enterprise; a critical discourse which consists of a body of written texts addressed to Africans. He denies the existence of a unique263 or collective African philosophy in traditional African societies which depends on the oral transmissions of their philosophy. Houtondji (1996) identifies four criteria to which ‘universal’ African philosophy must comply: • African philosophy must be written texts not oral philosophy. • African philosophy must be scientific. • It must be exclusively of African geographic and ethnic origin, and • African philosophy must be purely dialectical. 262 The term ethnophilosophy will be discussed inu 3n.d3e r Trends in African Philosophy. 263 Bell (2002: 43) states that “[t]he growing consuesn sis that there is no single ‘African’ philosop hy, partly because African culture is highly pluralcis atind partly because the nature of philosophyf iits esluch as to divert attention from singular and simpleu tsiolns or unitary systems to particular problem s”. 183 Like Houtondji, Bodunrin (cited in Hallen, 2002: 20) contends that African philosophy is “a scholarly enterprise, [which] is critical argumentative and reactive in character”. According to Bodunrin, philosophy cannot be based upon values and beliefs of Africa’s indigenous cultures. Professional African philosophers or universalists, argue that philosophy in the strict sense should involve reflection, argument, criticism, systematic thinking and be in a written format. According to them, African philosophy should comply with universal standards for philosophy which is the analytical methodology of Western philosophy. Universalists see African philosophy as the “scientific reconstruction of African philosophy concerning diverse matters of its identity and difference, problems and project, its objectives, discoveries, development, achievements and defects or failures” (Osuagwu, 1999: 25). The universalistic approach to African philosophy is favoured by Houtondji, Wiredu, Bodunrin, Boulaga, Towa, Keita, Serequeberhan, Appiah and Cabral. 3.2.3.2 The traditional or particularist view African traditionalists oppose the philosophical views of professional African philosophers. They oppose the notion of philosophy as a universal enterprise. African traditionalists264 view the philosophy of communitarian African societies as uniquely African and define African philosophy from a historical and cultural specific point of view.265 They believe that African philosophy represents the unique reality of Africa’s collective philosophy.266 Africa’s collective philosophy is best illustrated in Oruka’s trends, viz. ethnophilosophy, sage philosophy and literature of the Negritude movement. Traditionalists are of the opinion that African philosophy’s “moral” definition proves its uniqueness. Imbo (2002: 91) and Kapagawani (1991: 82) argue that African philosophy is embedded in the 264 African traditionalists are proponentsu obfu ntu. 265 Teffo and Roux (2002: 163) state that “there isst rao ng tendency to approach philosophy in a cu lture specific way, which describes and discusses thwes v oief the different cultural groups, and not to ceo ump with views that are supposed to apply to all cuelstu orn the continent”. 266 Theron (1995: 47) is of the opinion that “the Acafrni advocates of a dynamic, racially collective worldview are simply refusing to adopt the philohsiocpal mentality as such”. 184 oral traditions of African culture, viz. the history, traditions, customs, religion, values, rituals, myths, songs, dances, poetry, proverbs, parables, stories, art and folk tales of traditional African people. Included amongst the traditionalists are Tempels, Ogotemmeli, Mbiti, Senghor, Gyekye, Griaule, Mutwa, Kagame, Somé, Mbigi and others. The traditionalist approach to philosophy is based on the traditional African worldview and perceptions of reality which are irreconcilable with the Western worldview’s notions of individualism, capitalism and analytical methodology. In support of the existence of Africa’s unique philosophy, Soloman et al. (1996: 298) note that “until recently philosophy has been treated as a uniquely Western tradition but that there is a strong move towards multicultural and comparative philosophy”. Professional African philosophers stand in direct contrast to African traditionalists. Whilst professional African philosophers proclaim the universal character of African philosophy, African traditionalists emphasise African philosophy’s unique or single African character. This constant criticism of professionalists and traditionalists of one another undermines the notion of an African philosophy. Professional African philosohers see their body of texts as individual rational, critical reflections on philosophy which comply with criteria set for universal philosophy of the Western tradition.267 Universalists characterise the intellect and mentality of indigenous African cultures as “precritical, prereflective, protoratorial, prescientific, emotive, expressive, poetic and so forth” (Hallen, 2002: 17). It seems as if the Western bias against African philosophy is perpetuated by professional African philosophers. Typical of the Western tradition, professional African philosophers268 support the claim that there is no single or unique African philosophy, just philosophy. 267 Ramose reminds us that the philosophical char aocft etrhe Western tradition “was intent upon establishing and maintaining, in all the colonizpeadr ts of the world, the European conception of itrye,a l knowledge and truth. The European colonial entseerp rwi as a philosophical urge to impose a universal sameness” (2002{b}: 36). 268 Oyewumi (2002:403) describes universalists as i-“naanttivists because of their very critical stance toward any espousals of an African culture. Thee ro tghroup, who entertains a notion of an African woaf y being, is referred to as nativist in their orieinotna.t For the anti-nativists the problem of the advaonice of central issues stems from the fact that many Anfr itchainkers are cultural nationalists; the charg eth aist 185 Like feminism, traditional African philosophy is viewed as a Manichaeism. How does one equate African philosophy based on the Western tradition with traditional African views based on ubuntu philosophy and “vital force”? Was it not Aristotle himself who understood metaphysics, or first philosophy, to be theology? Ramose (2002{b}: 97); (2002{c}: 643) argues that “ubuntu philosophy … is the continuation of religion and not theology”. St Thomas of Aquinas states the following in De Potentia I, IV (cited by Theron, 1995: 52): “For wisdom is twofold: namely, worldly wisdom, which is called philosophy, which considers lower or caused causes and judges according to them; and divine wisdom, which is called theology and which considers higher or divine causes and judges accordingly”. Even in the Western theory of ideas the chasm between Western science and Western spirituality is closing and the reason might be what postmodernists observe as a “growing boredom and rejection of positivism, formalistic scientism and systematic and rigorous philosophizing” (Mannion 2002: xii). Philosophy or wisdom does not, however, only encapsulate the thoughts and worldviews of Westerners. Postmodernism propounds a universal translucent philosophy where even the transcendental thoughts of the African, American- Indian, Maori and Aborigine can be accommodated. As Mannion (2002: xii) puts it: the wisdom of the ancients is missed in the twenty-first millennium. But who and what are these wise men called African philosophers? 3.2.3.3 African philosopher: a definition Before a definition of African philosophy can be offered the question of who an African philosopher is must be clarified. Professional African philosophers, viz. Houtondji (1996), Serequeberhan (1991) and Ramose (1994) see the African philosopher as follows: Houtondji (1996: 65-66) emphasises the “essential point” when defining African philosophers as “the criterion now being the geographical these thinkers are unwilling to acknowledge Afrsic afa’ ilures and European technological superiornitdy a thus focus simply on how different Africa is fromhe t west. The anti-nativists argue further thatn tahteiv ists set themselves apart from the West in order toe s uhpo rtheir self-esteem”. 186 origin of the author rather than an alleged content”. Houtondji (1991: 121) draws the line “between African and non-Africans [philosophers], not because one category is better than the other, or because both might not, in the last analysis, say the same thing, but because the subject being African philosophy, we cannot exclude a geographical variable, taken here as empirical, contingent, extrinsic to the continent or of significance to the discourse”. Houtondji defines the African philosopher in geographical terms and sets as prerequisite that such a person should be African. Serequeberhan sees the task of an African philosopher as a calling. Serequeberhan (1991: xxii) sees the African philosopher as someone who has experienced a calling to do African philosophy. In his view the African philosopher must bring proof of his lived history in the African struggle for liberation against European oppression. According to Serequeberhan (1991: xxii), [T]his call comes from a lived history whose endurance and sacrifice – against slavery and colonialism – has made our present and future existence in freedom possible. The reflective explorations of African philosophy are thus aimed at further enhancing and expanding this freedom – at thinking the origins of its possibility and the deficiencies of its actuality and thus in its further development and growth. Ramose (1994: 2-3) sees the African philosopher as “an individual of geographically African origin, whose historical circumstance is particularly African in nature, and who can claim to subscribe to African culture and custom, can be given consideration as an African philosopher”.269 Ramose views the African philosopher as one who subscribes to African culture and custom. Oruka’s (2002{a}: 120) definition of an African philosopher seems to be less discriminating when he states: “African philosophy is seen to exist not as a peculiar phenomenon (for most philosophical problems transcend cultural and 269 Ramose (2002{b}: 37) posits that the African phsoilopher must base his philosophical reflections upon the culture and experience of African people. 187 racial confines) but only as a corpus of thoughts arising from the discussion and appropriation of authentic philosophical ideas by Africans or in the African context”. Houtondji, Serequeberhan and Ramose implicitly state that for a philosopher to qualify as an African philosopher, he must be African. Whilst Houtondji and Ramose accentuate the philosopher’s geographical African origin as prerequisite, Serequeberhan and Ramose require an African way of life; proof that such person has supported the struggle for liberation and has a lived experience of African culture, values and customs.270 3.2.3.3.1 Critique of the definition Outlaw (2002), B.J. van der Walt (2006) and Shutte (1993) view Houtondji’s definition of the African philosopher as “very narrow”, “particularly disturbing” and “at best naïve”. To add fuel to the philosophical debate, Houtondji (2002: 128) states that “African philosophers aim to define themselves and their peoples in the face of Europe, without allowing anybody else to do it for them, to fix and petrify it at leisure”. This is a direct threat to everybody else, other than Africans born and bred on the African continent, to maintain a hands-off approach when it comes to African philosophy. The policy of “philosophical apartheid”, practised by the Western tradition of philosophy, gave rise to a new exclusive group called professional African philosophers. Houtondji (1996: 56-66) proclaims that a radically new definition of African philosophy has been produced with “the criterion now being the geographical origin of the author rather than an alleged specificity of content”. Outlaw (2002: 151) finds Houtondji’s definition of an African philosopher “particularly disturbing and at best naïve”. Outlaw (2002: 151) uncovers that Houtondji uses the word 270 Whilst professional African philosophers profesos stupport a universal philosophy, their narrow definition of an African philosopher is restrict ivaend typical of a closed society (see 4.11.3). cAafnri feminists suffer from the same restrictive sympt oamnds definition as African philosophers (see 4. 1 2). 188 “African as a signifier not just for geographical origins but also for race/ethnicity. This attempt to circumscribe ‘African’ is frustrated by the play of forces that brings on a deconstructive encounter with the ‘white mythology’ infecting philosophy. At the core of this mythology is a substance-accident metaphysics grounding a supplemental philosophical anthropology: the soul, consciousness or person is regarded as the essence of the human being; their race, ethnicity, or gender is secondary or accidental”. Outlaw (2002: 152) argues that Houtondji’s ethnic and racist bias towards non-Africans who attempt to do African philosophy “leaves philosophy without universality and unity”. Whilst professional African philosophers proclaim on the one hand that philosophy is a universal praxis they propound on the other hand that African philosophy is exclusively African. Are African philosophers after all also bias and racist? Indeed, it seems as if African philosophers are not only ethnic and racist biased, but also sexist. According to Imbo (1999: 138), patriarchy in African societies is so deep-seated that African women are not considered philosophical. B.J. van der Walt’s (2006: 212) general impression of the definition of the word ‘African philosopher’ is that “many professional philosophers in Africa are of the opinion that only real (black) Africans can produce a genuine African philosophy. I think this very narrow definition of an African philosopher should be broadened to include philosophers from other continents who know the relevant issues of our continent”. This narrow definition of an African philosopher reveals the same ethnic, racist and sexist bias African philosophers and African feminists271 have accused Western philosophers of. The definitions of professional African philosophers, viz. Houtondji, Serequeberhan and Ramose are discriminating and very non-universal. Houtondji’s definition in particular, functions as a two-edged sword. Houtondji (1996: 66) sees African philosophy “as a methodical inquiry with the same universal aims as those of any other philosophy in the world. In short, it destroys the dominant mythological conception of Africanness and restores the simple, 271 See 4.12. 189 obvious truth that Africa is above all a continent and the concept of Africa an empirical, geographical concept and not a metaphysical one”. Whilst Houtondji hails the universal philosophical character of empirical Africa, it immediately excludes all the “everybody else” philosophers. Not only does his universal definition reveal racial discrimination against all non-Africans per definition but it also excludes all philosophers that subscribe to the African oral tradition. Not only are non-African philosophers of the universal tradition of philosophy discriminated against but traditionalists, although African, are found to be not logical or Western enough in Houtondji’s eyes to be seen as African philosophers. African traditionalists might be African, but according to Houtondji’s definition, not rational272 enough to qualify as African philosophers! 273 It is ironic that whilst professional African philosophers and African traditionalists find it hard to reach consensus on the existence and definition of African philosophy, American academics are producing “Africana Philosophy”.274 Africana philosophy is according to Outlaw (2004: 90-92), an effort by academics in the United States of America to systematise works from anybody who has “the same philosophical concerns as African-descended people”. Thanks to American philosophers, the universal playing field of African philosophy can now be entered by non-Africans. It is interesting to note that whilst Africans accuse the Western white male of philosophical racism, African philosophers, clones of 272 More (2004: 155) argues that if African philoso pish yperceived as philosophy of geographical Afr ica, then philosophy by white South Africans must alseo r ebcognised as African philosophy. He suggestts tha philosophical works produced by white South Afrisc acnoncerning problems related to Africa and Europe should qualify as African philosophy. Kaphagawa1n9i 9(9: 185) views Houtondji’s geographical definnit io of African philosophy as biased as it excludes avbaleu and potential contributions from being made by “exterior” philosophers of the world. 273 See 4.11.3 for an understandingu obfu ntua nd the Other. 274 Lucius Outlaw (2004: 90-92) speaks of the termr i“cAafna Philosophy”. He sees Africana Philosophy as an effort by professional philosophers in the Udn itSetates of America to “collect and organize philosophical and related articulations (writingssp,e eches, etc.), practices (of research, confenrge,n ci teaching, etc.), and traditions of Africans and ppleso of African descent”. The difference howeve trh iast works of people not African or not of African densct,e but who have the same philosophical concer ns as African-descended people, can contribute to Afraic aPnhilosophy. Outlaw finds the development of an excellent graduate programme in Africana Philoso ipnh tyhe USA a pressing need. According to Mazrui (2002: 21), the termA fricana indicates that it involves the Black world as ao wleh. 190 these Western white males’ universal analytical philosophy, suffer from the same deformity: discrimination. 3.2.3.4 African philosophy: a definition Finding the definition for African philosophy seems to be as daunting a task as it is finding the definition for philosophy. There are as many definitions of African philosophy as there are African philosophers. Definitions of African philosophy are given from either a universalist or a traditional African perspective. From a universalist point of view, professional African philosopher, Houtondji (1996: 120), defines African philosophy as follows: “By ‘African philosophy’ I mean a set of texts, specifically the set of texts written by Africans and described as philosophical by their authors themselves”. Houtondji (2002: 151) adds that African philosophy is conceived “as a methodical enquiry with the same universal aims as those of any philosophy in the world”. Oruka (2002{a}: 120) defines African philosophy as not “a peculiarly African phenomenon but only as a corpus of thoughts arising from the discussion and appropriation of authentic philosophical ideas by Africans or in the African context”. Oruka (2002{a}: 120) views philosophy as “a discipline that, in the strict sense, employs the method of critical, reflective, and logical enquiry. African philosophy then is not expected to be an exception to this meaning of philosophy”. While both Houtondji and Oruka see African philosophy as a universal philosophy employing analytical methodology, Oruka, in contrast to Houtondji, does not require written texts as a prerequisite for African philosophy. According to Oruka (1990{a}: xxiii), writing should not be a prerequisite for philosophy275 as philosophy does not depend on literacy and therefore includes the oral philosophy of philosophical sages as African philosophy.276 Oruka (1990{a}: xvi- 275 In the introduction toS age Philosoph yH, outondji remarks that Oruka’s work is “in conttr atos the claim that philosophy is and can only be a written enrtiseerp” (Oruka 1990{a}: xv). 276 Philosophers who characterise philosophy as at ewnr ipt raxis only, seem to have lost track of the African reality. The Mail and Guardian (2007, Novbeemr 23-29: 10) reports that in South Africa alon,6e 9 million adults are illiterate. “Of these 4,7 milnlio have never been to school and are considereldly tota 191 xvii) defends the philosophical thought of the illiterate sages by referring to the philosophies of both Thales and Socrates who did not write their thoughts down: this was “a function carried out by others”. From a traditional African or particularist point of view, Gyekye (1995: 33) defines African philosophy as an “acquired appellation” which is based on its “philosophical reflections upon the culture and experience of African peoples” (Gyekye, 1995: 33). Mbiti (1990: 2) defines African philosophy as “the understanding, attitude of mind, logic and perception behind the manner in which African peoples think, act or speak in different situations in life”. The definitions of both Gyekye and Mbiti represent the traditional African worldview. Professional African philosophers perceive the traditional African worldview as unscientific, “emotive mystical and unlogical” (Oruka, 2002{a}: 121; Houtondji, 1983: 66). The traditional African worldview represents the collective or ubuntu philosophy of Africa’s indigenous people. These definitions clearly illustrate the philosophical divide between professional African philosophers or universalists and African traditionalists. Whilst universalists subscribe to individual critical thought, traditionalists support a collective philosophy. Kiros (1999: 5) gives an alternative inclusive definition of African philosophy when he defines African philosophy as “a set of written texts, when available, as well as orally transmitted texts, that deals with the human condition in Africa on which Africans and non-Africans reflect”. Kiros’ inclusive definition of African philosophy provides a springboard from which meaningful discourse on African philosophy can take place, especially as this definition includes the philosophies of universalists and traditionalists. illiterate; another 4,9 million dropped out of scohl obefore grade seven and are termed functionally illiterate”. 192 The question of whether African philosophy is a uniquely African philosophy or just part of the universal enterprise called philosophy277 depends whether one supports the universalist or the traditionalist viewpoint of African philosophy. Whereas African traditionalists propagate the uniqueness of African philosophy, professional African philosophers argue that African philosophy “is viewed as a universal activity of philosophy” (Oruka, 2002{a}: 120). Professional philosophers such as Oruka (2002{a}:120) are adamant that “the talk of a uniquely African conceptual framework or way of thinking (African mentality) with respect, at least, to the discipline of philosophy is not entertained”. In an attempt to discern between the different categories in African philosophy, Oruka’s famous trends in African philosophy will be discussed. 3.3 ORUKA’S SIX TRENDS IN AFRICAN PHILOSOPHY During the debate on African philosophy Kenyan philosopher, Henry Odera Oruka, identified the need to structure the discourse on African philosophy. Oruka saw African philosophy as the African continent’s philosophical reaction to its colonial legacy. In 1978, Oruka presented his seminal paper, Four Trends in Current African Philosophy’278 and introduced his famous four trends or approaches which were to become the template for African philosophy. Oruka’s Four Trends in Current African Philosophy is perceived as the first attempt to construct the history of African philosophy. Oruka (2002{a}:120) observes African philosophy “in terms of Africa’s past, current, or potential contributions to philosophy in the strict meaning of the term”. Since Oruka, various other attempts 277 Theron (1995: 41; 44) is of the opinion that “[ is]no far as Africans have not become used to making abstractions at the level required for philosophheyy t should not be encouraged to imagine that i nn athtuere of things there must be an African philosophy. Teh iesr only philosophy, as there is only physics. rTeh e was no Jewish physics, only physics as inciden tiaf lvlyery well practiced by Jews. And if there shdo ul emerge such matter thought up by Africans aloneen, this will be entirely non-signifying with respt etco its truth or falsity… So for African philosophy btoe come a reality of note … it will have to take thuep task of abstractive analysis, a procedure that disc lonsoethsing distinctively African, English, French aonr ything else, even though an African may find his own ndcisttiive way of performing this common task as in the main, Latins do it differently from Germans”. 278 Henry Odera Oruka’sF our Trends in Current African Philosop,h wy as presented at the William Amo Symposium in Accra, 24-29 July 1978. 193 have been made “to construct a mental map of African philosophy, laying out the various forms and arguing for the primacy of one over the others … [laying] claim to territory by implicitly wrestling it away from ‘universalist’ Western philosophy” (Janz, 2004: 109). Oruka’s four trends in African philosophy include: • Ethnophilosophy. • Philosophical sagacity or sage philosophy. • Nationalist-ideological philosophy or political philosophy, and • Professional philosophy. Ethnophilosophy represents the collective or folk philosophy of traditional African societies. Oruka (2002{a}: 121) defines ethnophilosophy as “works or books which purport to describe a world outlook or thought system of a particular African community or the whole of Africa”. Sage philosophy represents the individual philosophies of sages in traditional Africa. Oruka (1990{a}: 5; 2002{a}: 121) defines sages as “rigorous indigenous thinkers … men and women (sages) who have not had the benefit of modern education. But they are none the less critical independent thinkers who guide their thought and judgments by the power of reason and inborn insight rather than by the authority of the communal consensus”. National-ideological philosophy or political philosophy is the post-colonial philosophical perspective of African politicians and statesmen who led the struggle for independence in Africa. Oruka (2002{a}: 122) finds this trend to consist of African philosophical literature from politicians and statesmen and that “some of works in it are not in the strict sense, really philosophical”. Professional African philosophy consists of the work of academic African philosophers from Africa who were educated in the Western philosophical tradition. Oruka (2002{a}: 123) defines this trend as “works and debates of the professionally trained students and teachers of philosophy in Africa”. Oruka’s four trends provide a conceptual framework for African philosophy and must not be seen as four 194 different types of African philosophy but rather as four methods used in African philosophy (Kapagwani, 1991: 181). Outlaw (2002: 146) sees Oruka’s “currents” in African philosophy as very “useful for initial surveys of the field of African philosophy, but they only provide a rough view of the landscape”. In Sage Philosophy, Oruka (1990{a}: xx) added another two trends to the existing four trends, viz.: • The hermeneutical trend; and • The artistic or literary trend. According to Oruka (1990{a}: xx), the hermeneutical trend consists of a “philosophical analysis of concepts in a given African language to help clarify meaning and logical implications arising from the use of such concepts”. The literary trend consists of the narrative element in African philosophy (Oruka. 1990{a}: xxi). These trends will be discussed in more detail. 3.3.1 Ethnophilosophy Ethnophilosophy represents the collective worldview of traditional African societies. Broodryk (1997: 33) incorporates ubuntu in the “brotherhood of ethnophilosophy279 because it represents the collective personhood and collective morality of the African people, best described by the Xhosa proverb, umuntu, ngumuntu ngabantu or I am a person through other persons”. Ubuntu, as etnophilosophy, represents the collective philosophy of either a specific African community or traditional African societies as a whole. This trend is the only of Oruka’s six trends which represent the collective worldview in African philosophy. Oruka’s other trends represent individual philosophies. This subsection deals with the following: 279 Shutte (1993: 15) describes ethnophilosophy, ma tceorined by Nkrumah, as “a worldview or system of thought of a particular African community or languea group or even of the whole of Africa. Strictly speaking ethno-philosophy only acquires systemwartitct en formulation in the works of modern writers (Senghor and Tempels for instance) who combinek tnhoew ledge of African traditional thought and a European philosophical education in their work”. 195 • Tempels’ Bantu philosophy. • The trend ethnophilosophy. • The critique of professional philosophers. • The critique of African feminists, and • Optimism about ethnophilosophy. 3.3.1.1 Tempels’ Bantu philosophy The founder of ethnophilosophy, the Belgian priest Tempels, believed his discovery of the Baluba worldview in 1943 affirmed the idea that Africans have a collective philosophy. He found the Baluba’s collective philosophy totally different from Western philosophy and documented his observations as Bantu Philosophy (1945). In Bantu Philosophy, Tempels believed that he had not only disclosed the collective worldview of the Baluba but also provided an understanding of African people (1969: 21). Tempels (1969: 75) describes the most fundamental and basic concept in Bantu thought as “vital force” or African spirituality, saying that “mythological Bantu philosophy, namely the wisdom of the Bantu based on the philosophy of vital force280 is accepted by everyone; is not subjected to criticism, for it is taken by the whole community as the imperishable truth”. Temples maintains ethnophilosophy is based on African Religion. Bantu Philosophy represents the Baluba’s worldview as a spiritual or religious philosophy in which man occupies the central position. African Religion, life force, or “vital force” sees everything “[f]rom God through man, down to the grain of sand, as a seamless whole. Man in his role as person, is the centre of this universe” (Tempels, 1969: 46). According to Tempels, Africans see God as the creative Force that endows every human, animal, vegetable and mineral with 280African tribal societies typically embrace vitalr cfoe or animism. Animism is the belief that entities throughout nature are endowed with souls, oftenu gthot to be souls of ancestors, who are no longer individually remembered. “Nature, for most tradnitaiol Africans, is full of living forces. Spirits dwll e within it and human beings can interact with them T…he African conviction that human beings are intimately connected to nature is part and parcf ethl eo traditional belief that nature is essenti aslplyiritual” (Solomon et al, 1996: 171). 196 vital or life force; all forces281 are connected and affect each other (Tempels, 1959: 58-60). “Force” and “being” are intimately linked in African culture: “Force is the nature of being; force is being, being is force” (Tempels, 1969: 51). Everything in Baluba reality interacts with the metaphysical. Different forces are distinguished from one another in an orderly manner. (Tempels, 1969: 55). According to Tempels, Bantu wisdom or knowledge consists of the “Bantu’s discernment of the nature of beings, of forces; true wisdom lies in ontological knowledge” (Tempels, 1969: 71). He sees Bantu knowledge as metaphysical in nature (Tempels, 1969: 73) and Bantu moral standards depend “on things ontologically understood” (Tempels, 1969: 121). Tempels (1969: 21-24) attempted to convince Europeans that a comprehension of the collective African worldview or Bantu philosophy was essential and had to be taken into account in the conversion of Africans to Christianity. For Tempels, the conversion of Africans could only be successful if there was a fusion between African Religion and Christianity: “The moral system that we wish to teach them, should be linked up with this supreme final cause, this absolute norm, this fundamental concept: vital force” (Tempels, 1969: 179). Tempels advocated for the integration of Christianity into traditional African thought. He (1969: 187) warned that the “superficial Europeanization of the masses” will lead to the destruction of African culture.282 Not only Tempels but also Nkrumah foresaw that Christianity would erode traditional African values. Nkrumah (1998: 69) emphasises the fact that “man in Africa is regarded as primarily a spiritual being, a being endowed originally with a certain inward dignity, integrity and values. It stands refreshingly opposed to the Christian idea of the original sin and degradation of man”. 281 According to Tempels, these life forces are hicehriacral. At the top is God, followed by the forefeartsh, the dead of the tribe or intermediaries, the liv ainngd then the lower forces, viz. animals, vegetsa balned minerals. 282 Tempels formed theJ amaa Movementa, n interdenominational religious movement in therm feor Belgian Congo in an attempt to translate the mees osaf gChristianity into the African context. 197 Through Bantu Philosophy283, Tempels proved that Africans possess a well- developed collective philosophy and that Africans are indeed capable of philosophical thought. It is said that “a significant number of African intellectuals were very pleased: the humanity of Africans was defended and vindicated; Africans too were reasoning beings, thus were human, even more importantly, since a European said so” (Outlaw, 2002: 143). By disclosing this new-found truth about the Baluba to Europeans in Bantu Philosophy, Tempels placed Africa on the philosophical agenda of the West. His construction of a unique collective African philosophy stirred heated philosophical debate between the West and Africa. Most important, Bantu Philosophy “challenged the rationalizations of the colonisation, enslavement, and exploitation of Africans and the resources of Africa” (Outlaw, 2002: 143). Tempels’ Bantu philosophy, or folk wisdom as Oruka (1990{a}: 23) named it, was renamed as ethnophilosophy by Houtondji. Houtondji (2002: 125) finds Tempels Bantu Philosophy to be “an ethnological work with philosophical pretensions, or more simply, if I may coin the word, a work of ethnophilosophy”.284 Houtondji categorises works of anthropologists, sociologists, ethnographers and philosophers based on the myths, folklores and folk wisdom of the collective worldview of African peoples as ethnophilosophy (Oruka, 1990{ a} : 164). 3.3.1.2 The Trend Ethnophilosophy Ethnophilosophy embodies the collective attempts of Tempels, ethnographers, anthropologists and ethnophilosophers who endeavoured to identify specific worldviews (weltanschauung), wisdom and philosophies in African societies. The aim of these attempts was to bring an understanding of African identity and its 283 According to Irele (cited in Bell 2002:23), “[t]h aettraction of Tempels’ work resides not only ins it apparent vindication of the African claim to an vealteed system of thought but also in it providin g a conceptual framework for the African mode of thotu. gThhe vitalist emphasis of Bantu philosophy tine s i very well with the epistemology implicit in Sengh’so rNégritude”. Houtondji (1991: 34-44) discusses the role Tempels’ Bantu Philosoph yplayed in the development of African philosophye. llB (2002: 22) describesB antu philosoph yas the most important work in the early genret honf oephilosophy. 284 Shutte (1993: 15) claims Nkrumah coined the wothrdn oephilosophy. 198 collective philosophy since pre-colonial times. These philosophical attempts aim at analysing “the traditional cultures of Sub Saharan Africa, such as the Bantu and the Yoruba, using terms drawn from European philosophy” (Carel et al., 2004: 101). Ethnophilosophy reflects the collective African worldview of a specific group or tribe, viz. Yoruba philosophy and Dogon philosophy, or the collective philosophy of the whole of Africa. Ethnophilosophy reflects the communal or collective philosophy of traditional African societies and is also known as ubuntu (Broodryk, 1997: 33). As ethnophilosophy represents the collective philosophy of traditional African societies, individual philosophies are not entertained in this trend. Oruka (2002{a}: 121) defines ethnophilosophy as “works or books which purport to describe a world outlook or thought system of a particular African community or the whole of Africa”. Oruka (2002{a}: 121) finds ethnophilosophy’s “folk philosophy” very different from Western philosophy’s individualistic, scientific and logic tradition. The collective worldview of traditional African societies juxtaposes Western rationality. In ethnophilosophy, “communality as opposed to individuality is brought forth as the essential attribute of African philosophy” (Oruka, 2002{a}: 121). In contrast with Western individualism, African communitarianism is portrayed by African proverbs, viz. the Xhosa proverb umuntu, ngumuntu ngabantu and the Sotho proverb motho ke motho ka batho which negates Western individualism and affirms that a person can only be human through other persons. African proverbs affirming “I am because we are, and since we are, therefore I am” (Mbiti, 1991: 123); a ‘person is a person through other people’ and ‘injury to one is injury to all’ emphasise that the traditional African person is not seen as an individual but as part of the whole, or community. Membership of the African community defines the African person. An African individual obtains personhood285 only through membership of the community and ceases to be a person if detached from the community (B.J. van der Walt, 2006: 113). 285 See 4.7.4. 199 The collective African worldview is represented by an oral philosophy. As the Baluba, Dogon, Yoruba and other traditional African societies were illiterate, Tempels, anthropologists and ethnographers utilised different methods to extract and transcribe ethnophilosophy from the sources of these oral cultures. Hallen (2002: 50) states that the sources of ethnophilosophy are embodied in the “authentic traditional culture of the pre-colonial variety of Africa prior to modernity”. These “pre-colonial” and “pre-scientific” sources are embedded in the oral accounts of traditional African societies. Kapagwani (1991: 182) finds the sources of ethnophilosophy to be “embodied in the traditional wisdom, institutions, myths, folktales, beliefs, proverbs and languages in Africa”. Okot p’Bitek sees the sources of the oral tradition286 “as expressed through their songs, dances and material culture” as the primary texts that constitute the record which he calls “the people’s philosophy of life” (cited in Imbo, 2002: 91). The sources of ethnophilosophy are: traditions, customs, values, law, rituals, myths, songs, dances, poetry, proverbs, parables, stories, art and folk tales of the African people.287 Ethnophilosophy is embedded in African Religion. Mbiti (1991) states: “African philosophy is African Religion”.288 Oruka (1990{ a} : 9) states that the works of Tempels, Kgame, Senghor, Mbiti, Horton, Ruch, Onyewuenyi and Anyanwu can be regarded as ethnophilosophy. Tempels’s Bantu Philosophy; Mbiti’s African Religion and Philosophy; Griaule’s Conversations with Ogotemmeli; and Hallen and Sodipo’s research among the 286 Mazrui (2002: 5) states that by the oral tradithioen means two things: “on the one hand, the handing down, by word of mouth, from one generation to ntheex t, of details of specific past events, suchh aes t outcomes of wars, outbreaks of epidemics, etc. oan dt,he other hand, the romantic versions of thset pa which take the form of legends, ballads, and ssto orife ancestry. Clearly it is more difficult to gaeu gthe accuracy and reliability of these oral stories –t tbhuat is simply a new challenge. It does not doeys thr e validity of the material”. According to Mutwa (20:0 3xxv), the keepers of traditional stories are ecda ll “guardians of the tribal history”. To become thiisn dk of storyteller requires “an aptitude for prec is memorisation” and also the dramatic and artistcicit aretion of stories. 287 “Thoughts of the individual men and women of inletcetl (sages, philosophers, poets, prophets, ssctise,n ti etc.) constitute the critical part of a traditiorn coulture while beliefs and activities of the tyfpoeu nd in religion, legends, folk tales, myths, customs, srsutpiteions, etc. constitute the uncritical part” u(Okar , 2002: 121). 288“The distinction between philosophy and religiosn ,w aell as the distinctive notions of reason antdh fiasi a Western concept” (Soloman et al. 1996: 80). 200 Yoruba medicine men, are all regarded as prime examples of ethnophilosophy. The philosophical contributions of Mbiti, Mutwa, Senghor, Gyekye, and Kagame also represent the trend ethnophilosophy.289 Kagame’s La philosophie Bantu- Rwandaise de l’ être (1956) reconstructs the philosophy underlying the Rwandan worldview and concurs with Tempels that all Africans in traditional African societies share the same collective philosophy. Abraham’s The Mind of Africa (1960: 4) confirms the “communal mind” of traditional Africans people. Mbiti’s African Religion and Philosophy (1991: 5) confirms that all traditional African people share a communal existence based on African Religion. Mbiti maintains traditional African people are deeply religious.290 According to Mbiti (1991), it is impossible to separate African Religion from African philosophy in the traditional African context. Nkrumah’s Consciencism (1998) confirms that ethnophilosophy represents Africa’s ccllective philosophy, either as the worldview of a specific African community or of Africa as a whole. Not only Nkrumah but also Nyerere “developed ethnophilosophical observations about the communal character of African societies into African socialism which they used to solve concrete political problems in Ghana and Tanzania” (Carel et al., 2002: 101). Ethnophilosophers are convinced that the collective thought of the African traditional people represents a unique or single African philosophy.291 They see ethnophilosophy as “a blend between European and African traditions in order to create theories that can be effectively applied to the problems of the modern state” (Carel et.al., 2004: 101). B.J. van der Walt (2006: 208) states that the aim of ethnophilosophy was to: 289 B.J. van der Walt (2006: 208) notes the followincga tegories of ethnophilosophers: White ethnophilosophers: Tempels and Apostel; Black epthnilosophers: Kagame and Mbiti; African persona lity philosophers: Blyden; Negritude philosophers: Crées ani d Senghor. 290 Mutwa (1998), Bhengu (2006) and Mbigi (2005) cormnf ithat the communal worldview of traditional African people is representedsu ibnu ntu philosophy. 291 Oruka (2002{a}: 120) finds two distinct senses of the expressAiofrnic an philosophy. In the debased sense African philosophy is explained uansiquely African, radically different from European philopshoy, and considered non-rational, intuitive and mys.t icIna lthe strict sense philosophy is viewed as av eurnsial discipline, critical, reflective and logical. Bedseis the two broad senses, he detects a third swehnisceh, has aspects of both, but is not clearly articulated. 201 • revive amongst Africans a respect and appreciation for their indigenous culture; • note that the sole purpose of ethnophilosophy was to convince Europeans that Africans are human beings and capable of philosophical thought; and • remind us that ethnophilosophers invented a unique African philosophy to prove that it was radically unEuropean. According to B.J. van der Walt (2006: 208), ethnophilosophers first tried to revive respect and appreciation for African culture among Africans and then tried to prove to the European public that Africans are human and capable of philosophical thought. Professional African philosophers deny the existence of ethnophilosophy’s unique or single African philosophy and describe it as “emotive, mystical an unlogical” (Oruka, 2002{a}: 121). Although philosophers such as Senghor, Nyerere, Nkrumah, Tempels, Kagame, Hallen and others are convinced of the existence of a unique collective African belief system in traditional African societies, professional African philosophers question ethnophilosophy’s methodology and claims. According to them this collective belief system is outmoded and irrelevant in modern day Africa. Ethnophilosophy was unfortunately ‘invented’ by Tempels. The mere fact that Bantu Philosophy served as textbook on how to convert Africans to Christianity, seems to have outlawed this trend. Reality is, however, that although the trend as such is in disregard, nothing has changed concerning the fact that Africans in traditional societies practise a collective philosophy called ubuntu. In these closed societies292 throughout Africa, ethnophilosophy or ubuntu represents the unique or collective philosophy or worldview of indigenous African people.293 Ubuntu is unique in the sense that it differs dramatically from Western 292 Traditional African societies are generally cateisgeodr as closed societies. See 4.11.3. 293 Ubuntu is the shared value and belief system of traditl ioAnfraican societies. See 4.6.1 202 philosophy.294 Ubuntu, the collective African belief system of traditional African societies, exists, just as Senghor, Nyerere, Nkrumah, Kagame Broodryk, Mbigi and Bhengu proclaim. Mutwa, Mbiti, Somé and African feminists295 confirm the existence of indigenous Africa’s oral collective philosophy or ubuntu. In these indigenous communitarian societies, ubuntu philosophy’s group consensus is its survival mechanism. The community is also its source of values (Van Blerk, 2004: 200). This “outmoded traditional belief system” is not irrelevant to either Africa as a whole or South Africa. One of the goals of the African Renaissance is to revive traditional African culture and its accompanying value system which had been eroded by slavery, colonisation, neo-colonisation and apartheid in the case of South Africa. The Moral Regeneration Movement in South Africa strives towards the revival of ubuntu and its accompanying African values. 3.3.1.3 The Critique of Professional Philosophers The philosophical tradition of the West and professional African philosophers negates the existence of a unique African philosophy. They deny that the philosophical notions of traditional African societies represent “philosophy”. They are biased against ethnophilosophy and regard it as ‘inferior, degenerate, retarded and debased’. The attack of professional African philosophers on ethnophilosophy is firstly based on the trend’s assistance of colonisers in their civilising mission of Africans in the Belgium Congo; secondly, on the fact that ethnophilosophy exerted itself to convince the European public that Africans are not subhuman but human after all; and thirdly, on the idea that there are no philosophical notions in Tempels’ so called “collective philosophy” or Oruka’s “folk philosophy”. 294 Chapter Four highlights the difference betweuebnu ntua nd Western thought. 295 See 4.12. 203 Professional African philosophers view philosophy from a Western point of view and define philosophy as an individual critical inquiry296, opposing ethnophilosophy’s notion of being a collective or folk philosophy. Oruka’s view of philosophy is that it should reflect “the method of critical, reflective, and logical inquiry” (Oruka, 2002{a}: 120). According to Oruka (2002{a}: 120), ethnophilosophy does not comply with the universal standards set for Western philosophy and does, therefore, not constitute philosophy in the strict sense. Professional African philosophers regard ethnophilosophy as an oral, non- rational, pre-scientific, intuitive, emotive297 and mystic philosophy which differs radically from philosophy in the strict sense or critical tradition. According to Oruka (2002{a}: 121), the “[t]houghts or works of the individual men and women of intellect (sages, philosophers, poets, prophets, scientists, etc.) constitute the critical part of the tradition while beliefs and activities of the type found in religions, legends, folk tales, myths, customs, superstitions, etc. constitute the uncritical part”. Oruka (2002{a}: 121) finds that the shortcoming of ethnophilosophy lies in the fact that it represents the group’s mythical, uncritical298 and emotive part of the African tradition.299 Oruka’s (1990{ a} : 43) critique against ethnophilosophy lies therein that he regards it as a “communal consensus. It identifies with the totality of customs and common beliefs of a people. It is a folk philosophy … it is not identified with any particular individuals … It is at best a form of religion”. Because ethnophilosophy does not represent individual thought Oruka does not 296 In this sense African philosophy is not regardesd u aniquely African, but as a corpus of “authentic philosophical ideas by Africans or in the Africaonn ctinent”. SeeF our trends in currant African philosop hy (2002: 120) 297 Senghor states that whilst Greeks utilise logric p fhoilosophical enterprise, Africans in contraspt eaapl to emotion. 298 According to Oruka (200{2a}: 121), the “[t]houghts of the individual men ando mwen of intellect (sages, philosophers, poets, prophets, scienetitsct.s), constitute the critical part of a traditionr coulture while beliefs and activities of the type found einli grion, legends, folk tales, myths, customs, ssutpiteiorns, etc. constitute the uncritical part”. 299 Irele (cited in Bell, 2002: 23) finds the vital iesmt phasis of Bantu philosophy to tie in well wihthe t epistemology implicit of SenghorN’se gritude. 204 entertain it as philosophy.300 As a critic of this trend, Oruka denies ethnophilosophy philosophy status. Oruka (1990{ a} : xv) argues that this trend leaves the impression that Africa “is a place of philosophical unanimity allowing no room for a Socrates or Descartes”. According to him, ethnophilosophy suggests that indigenous Africans cannot detach themselves from beliefs and taboos to offer a critique of such beliefs. In Sage Philosophy, Oruka opposes the notion of ethnophilosophy as a folk philosophy by contending that individual rational thought does exists among African sages. In contrast to other professional African philosophers, Oruka critiques only the fact that ethnophilosophy represents a folk philosophy and not the fact that it represents the oral tradition. Most professional African philosophers such as Houtondji, Wiredu, Bodunrin and others reject ethnophilosophy as African philosophy. Professional African philosophers do not accept that the whole community can philosophise as it is “an open denial of Plato’s maxim that the multitude cannot be philosophic” (Oruka, 2002{a}: 121). Houtondji (1996: 120), one of the fiercest critics of ethnophilosophy, was the first African philosopher to criticise ethnophilosophy’s communal approach to philosophy, stating that ethnophilosophy is no philosophy but merely a “Eurocentric response to European critics of African philosophy”.301 He perceives ethnophilosophy as a myth, a trend that “maintains the fiction of a collective philosophy” (Houtondji, 2002: 128). Houtondji (2002: 128) is adamant about excluding ethnophilosophy from African philosophy because Bantu philosophy was aimed at Europeans - colonials and missionaries – and is therefore a myth (2002: 131). According to Houtondji (2002: 132), “the ethnophilosopher made himself the spokesman for All-Africa facing All-Europe”. He denies ethnophilosophy philosophical status, as the oral transmissions of traditional African societies are not regarded as philosophy in the strict sense of 300 As the father of sage philosophy Oruka defends e txhisetence of Africa’s individual rational thinke, rs the sages or wise men and women. 301 Houtondji (2002: 126) argues that on closer sncryu tiit becomes clear that ethnophilosophy is not addressed to Africans, but to Europeans, “and cpualartri to two categories of Europeans: colonials and missionaries”. 205 the word. Because ethnophilosophy lacks both writing and rational inquiry, Houtondji characterises it as a “pseudophilosophy”. Houtondji (1996: 120) defines ethnophilosophy as a “pre-philosophy mistaking itself for a metaphilosophy, a philosophy which, instead of presenting its own rational justification, shelters lazily behind the authority of a tradition and projects its own thesis and beliefs on that tradition”. According to him, philosophy must neither be confused with the traditions and worldviews of folk wisdom nor should it create the belief that all Africans share the same thought patterns.302 Houtondji criticised Kagame’s research which supported Tempels’s view of the collective African consciousness, as ‘mythological in nature’. He finds Kagame “on the whole the prisoner of an ideological myth, that of a collective African philosophy” (Houtondji, 1983: 42). Another ground on which Houtondji denies ethnophilosophy the status of philosophy, is the fact that Tempels was not African: “A work like Bantu Philosophy does not belong to African philosophy, since its author is not African” (Houtondji, 1883: 64). Bodunrin (Bell, 2002: 27) argues that “African philosophy must be as opposed to traditional cultural beliefs and popular folk behaviour as Socrates and Plato were opposed to popular beliefs and opinions”. Houtondji sees philosophy as a universal enterprise which should consist of written texts by Africans. Houtondji’s hard-line stance on writing is supported by universalists Bodunrin, Keita and others who require written texts as a prerequisite for African philosophy (Imbo, 1998: 57). Professional African philosophers such as Houtondji, Masolo, Towa, Keita, Imbo303, Eboussi-Boulaga Karp and others agree that ethnophilosophy304 is not philosophy. they are adamant that no unique “philosophy” exist in Africa, only beliefs. 302 Imbo (1999: 71) supports Houtonji’s view statin[gc ]o“ ntemporary Africa is not the Africa of our ancestors”. 303 Imbo agrees with Houtondji’s assessment of ethinl ospohphy as Eurocentric. Imbo however criticises Houtondji by saying that “his own procedure is ellqyu Eaurocentric” (Imbo, 1998: 22). 304Bell (2002: 23) subdivides ethnophilosophy into tcwaotegories, viz. universalistic ethnophilosophdy an pluralistic ethnophilosophy. (a) Universalistich neot philosophy assumes all Africans share the anticim is 206 Like Oruka and Houtondji, Hallen (2002) and Wiredu (1980) see ethnophilosophy as a pre-scientific philosophy. Ethnophilosophy creates a standard “that excuses African thought and philosophy from having critical, reflective rational, scientific, and progressive content produced by individual thinkers” (Hallen, 2002: 51). Wiredu (1980: 39) finds traditional African societies comparable with societies in the pre-scientific stage of development and therefore finds the interest anthropologists have shown in African thought, understandable. However, he says “instead of seeing the basic non-scientific characteristics of African traditional thought as typifying traditional thought in general, Western anthropologists and others besides have mistakenly tended to take them as defining a peculiarly African way of thinking, with unfortunate effects”. Wiredu is adamant ethnophilosophy does not represent all African modes of thought. Serequeberhan (1991) harbours the same attitude towards ethnophilosophy as other professional African philosophers. He sees ethnophilosophy’s only aim to expose the African mentality to European missionaries who were tasked with civilising the African. Serequeberhan (1991: 17) questions the racist agenda of Tempels and other ethnophilosophers who see themselves adequately trained and fit to document the African worldview, as embodied in its religion, customs and rituals. According to him, traditional African people are posed as not having the capacity of philosophical thought to record their folk philosophy. Serequeberhan says ethnophilosophy boils down to a “method of control” of the African people. He deduces this “method of control” from Bantu Philosophy where Tempels found the Baluba people unable to formulate their folk philosophy as they did not possess either the necessary philosophical skills or vocabulary to articulate their philosophy. In Bantu Philosophy Tempels (1969: 36) reveals: “We do not claim, of course that the Bantu are capable of formulating a philosophical treatise, complete with an adequate vocabulary. It is our job to proceed to such worldview, e.g. TempelsB’ antu philosophyw, here the animistic worldview is universally appdl iteo all African thought patterns; (b) pluralistic philosoyp ahims to indicate culture differences within thefr icAan context. 207 systematic development. It is we who will be able to tell them, in precise terms, what their inmost concept of being is. They will recognise themselves in our words and will acquiesce, saying ‘you understand us: you know us completely: You ‘know’ in the way we ‘know’”. Professional African philosophers, viz. Appiah, Towa, Mudimbe, Eboussi- Boulaga and others argue that Tempels’ Bantu philosophy is not African philosophy. According to them, it is the Thomastic-Catholic philosophy of a Catholic missionary who could not distinguish between philosophy and a pre- scientific worldview. The Negritude poet Césaire critiques ethnophilosophy as a “diversio”. According to Césaire (cited in Houtondji, 2002: 127), “ethnophilosophy diverts attention from the real political problem experienced by Africans - the reality of colonial exploitation – by fixing it on a level of fantasy”. Césaire accuses Tempels of “ignoring the stark historical situation by prescribing the spiritual values of the Bantu peoples as a universal remedy for the ills of the former Belgian Congo”. When one views professional African philosophers’ critique of ethnophilosophy it is comprehendible why some conclude that traditional Africa has collective philosophy and “that the African mind is the savage mind, accessible to Western anthropology, but not to philosophy” (Janz, 2004:107). African traditionalists, however, hold a different viewpoint. 3.3.1.4 The Critique of African Feminists Whilst ethnophilosophers claim their stake in African philosophy, professional African philosophers deny ethnophilosophy its philosophical status by pronouncing it a ‘degenerate, retarded and debased’ trend which is irrelevant to the discourse of African philosophy. In the midst of this never-ending philosophical struggle between ethnophilosophers and professional African 208 philosophers, African feminists305 bring a new dimension to the discourse on ethnophilosophy. They criticise ethnophilosophers for concentrating on the collective belief system in traditional African societies whilst “ignoring the structures in African societies that oppress and marginalize women. To uncritically accept those belief systems is to take an approach that ignores the experience of women in patriarchal and male dominated societies. In societies that have been dominated by men, dehumanizing and oppressive customs, taboos and traditions are the ‘normal’ cultural elements.306 African women have always suffered from these patriarchal structures” (Imbo, 1998: 68). According to Imbo, feminists viz. Oduyoye, Ramodibe, Zoe-Obianga and others agree African men in traditional African societies are regarded superior to African women and that women are kept in a state of submission whilst oppressive gender relations are perpetuated.307 African feminists agree ethnophilosophy or ubuntu has a disregard for human rights, gender equality and human dignity of African women. African feminists criticise ethnophilosophy for revealing only the traditional African belief system but not its underlying oppressive, marginalising structures that discriminate against women. A few examples are given by African feminists who illustrate how sources of ethnophilosophy contribute to female oppression in African traditional societies (Imbo, 1998: 68): • Most of the African parables, proverbs and myths illustrate the superiority of men.308 305 “African feminists look to traditions to create wn emyths that redefine what it means to be an Anfr ica woman. African women thus begin by examining thaegier ncy within the domestic space of family and clan and extending outward to the public space of thtieo n”a (Imbo, 1998: 87). 306 Unigwe (cited in Stewart, 2005: 171) says: “I amng ray that many societies have different rules of conduct for women. I am angry that Igbo proverbast tdheal with women tend to negate them (unless that woman is a mother. What of less fecund women?) Ia anmgry that in Igbo societies, a male’s birth is celebrated more lavishly than a female’s. That moyth mer told me proudly that having given birth toth iard son in a row, an Igbo husband would have killedo at gfor me. I am angry that someone very close eto m was send out of her matrimonial home for havinge eth draughters but no son”. 307 Ethnophilosophy’s link with gender opression wbiell addressed in 4.12. 308 Oduyoye (2001: 31) confirms this notion as follo: w“[sT]here are many sayings such as ‘there is no woman as beautiful as the obedient one’ and ‘womaren t he servants of men’ which women cannot help 209 • Myths about skill in magic illustrate how women leave havoc, war and destruction in their wake; these myths are meant to raise suspicion when dealing with women. African feminists emphasise that traditional African women are not permitted to question the status quo in their societies. According to them, ethnophilosophy condones and sustains firmly entrenched sexism in traditional African. (Imbo, 1999: 72). African feminism brings the following criticism against ethnophilosophy: • Ethnophilosophy fails to “examine oppressive cultural practices”. • From an intellectual point of view it remains a discourse controlled by Europeans. • From a hermeneutical point of view, ethnophilosophy has failed to contribute to “cultural, social, and political liberation”. Oduyoye (1995; 2001) applies cultural hermeneutics to scrutinise the oral tradition in Africa. She posits that cultural hermeneutics does not only affirm positive aspects and history in African culture, but also “challenges inhuman and domesticating customs and traditions that subjugate and oppress African women”. According to Oduyoye, folk talk309 or philosophy, “shapes women’s lives in traditional societies, criticises women who seek equality, anti-polygamy and are too demanding”. Whilst Odoyuye and others attests to the richness of oral hermeneutics, she laments the fact that although oral philosophy is prevalent throughout Africa, African males do not critique or “pay attention to this important dimension of philosophy”. but object to if they have any sense of self … wonet icnue to struggle with how the images of womandh oo rule our lives”. 309 Oduyoye (1995: 35) says folk talk aims at shapcionmg munal values and behaviour. “For me, African myths are ideological constructions of a by-gone athgat are used to validate and reinforce societal relations. For this reason, each time I hear ‘inr coulture’ or ‘the elders say’ I cannot help ask, infogr whose benefit? Some person or group or structurset mbeu reaping ease and plenty from what followse”e. S also Nnaemeka, O. 1994. From Orally to Writing: icAafrn Women and the Inscription of Womanhood. Research in African Literature2s,4 : 4. 210 It is important to note that whilst African feminists criticise oppressive marginalising structures in traditional African societies, they neither negate the claims of ethnophilosophers nor the fact that a collective philosophy exists in traditional African societies. These allegations of African feminist need to be addressed as, according to the Constitutional Court, all values which underlie our democratic society should promote equality, freedom and human dignity.310 3.3.1.5 Optimism about Ethnophilosophy In spite of all the criticism of ethnophilosophy, a positive outlook on this trend prevails among certain African philosophers. Both Keita (1991) and Kapagawani (1991) see ethnophilosophy in a positive light and acknowledge its valuable contribution to African philosophy. Layele (2002) has a different point of view to Appiah, Towa, Mudimbe and Eboussi-Boulaga and states that there can be no doubt about the sincerity of Tempels’ intention in formulating the Baluba’s philosophy. Layele (2002: 86) acknowledges the “deeprootedness of philosophical activity within the whole of humankind’s mental existence” and agrees with Tempels saying that anyone who refuses to admit “the existence of black thought, in so doing exclude(s) blacks from the class of human beings”. Deacon (2002: 108) claims that African philosophers hold a bias against ethnophilosophy because “it is seen as a contribution to the colonial tyranny and subjugation of Africa, for it is assumed to express the pre-logicality and primitiveness of Africans and their thought”. According to Deacon (2002: 108), the mere fact that Tempels was accused of having “diabolic colonialist connections” resulted in ethnophilosophy being viewed by professional philosophers as “being too degenerate to be regarded as a meaningful contribution to the discourse of African philosophy”.311 Deacon (2002: 110) and 310 SeeS v Makwanyan ea t 4. 4.1.1. 311 Irele (cited in Bell, 2002: 23) mentions that h“[et] attraction of Tempels’ work resides not onlyi tsin apparent vindication of the African claim to an vealteed system of thought but also in its providin g a 211 Mudimbe (1988: 141) both speculate that if Tempels had not included the word philosophy in the title of Bantu Philosophy, his contribution “would perhaps have been less provocative”. Deacon (2002: 111) holds that ethnophilosophy definitely has potential in the area of culture philosophy.312 According to Deacon (2002: 111), “ethnophilosophy can present to the discourse of African philosophy both interesting and useful material on which to draw for analyses of the traditional and cultural manifestations of African existence”. She contends that because much of Africa maintains its traditional basis, ethnophilosophy cannot be ignored. Certain sources argue that viewing African philosophy from a culture-specific perspective illustrates how much it has in common with ethnophilosophy. The work of Mazrui, Teffo et al., Hallen and many others stands testimony to the fact that there is a tendency to approach philosophy in a culture-specific way. Although the approach to philosophy from a culture-specific perspective does not confirm a collective African culture or folk philosophy, it does “describe and discuss the views of specific cultural groups such as the Akan, the Igbo, the Yoruba or the Zulus” (Teffo et al., 2002: 136). In light of Africa’s dream to realise an African Renaissance and the African Dawn as well as efforts being made by South Africa’s National Heritage Council313 to preserve, protect and promote African oral culture, ethnophilosophy has a major role to play. Mazrui (2002: 13) maintains that philosophy in the end is not just about all its techniques and methods of research but primarily about discovering how conceptual framework for the African mode of thotu. gThhe vitalist emphasis of Bantu philosophy tine s i very well with the epistemology implicit in Sengh’so Nr égritude”. 312 Mazrui (2002: 18) states that the cultural parmad igncludes the perspective of the primacy of va,l ues beliefs, symbols, modes of communication, lifesst,y letc. According to him, African studies have pelda ya major role “in re-establishing the Africans a hrisictoal people; in linking Africans to the paradigmf o science”; and re-establishing that Africans arel iag irous people. 313 The vision of the National Heritage Council isc troe ate an enabling environment for the effectivde an efficient preservation, protection and promotion Soof uth African heritage for present and future generations. 212 Africans lived. Because African Religion and culture have been demonised by Western society for centuries, the reconstruction of the traditional oral culture has, according to him, only just begun. The process of deconstructing and reconstructing every facet of African reality and humanity is the essence of the hermeneutics of African philosophy. According to Mazrui (2002: 13) “African studies lead the way in developing techniques for using the oral tradition and oral history as documentation for modern historiology”. Mazrui (2002: 18) maintains the cultural paradigm in African studies has played a major role in re-establishing Africans as a historical people; in linking Africans to the paradigm of science; and in re-establishing that Africans were practising African Religion long before Christianity or Islam arrived in Africa. Ethnophilosophy therefore, has a decisive role to play in bringing an understanding of traditional African societies while they still exist. Ethnophilosophy has an important role to play in presenting Africa’s moral or religious philosophy. As folk philosophy, ethnophilosophy, or ubuntu, exists in the religion, legends, folk tales, myths, customs, superstitions, etc. of traditional African people (Oruka, 2002{a}: 121). Ethnophilosophy is the only trend which accommodates the collective philosophy of ubuntu of traditional African societies and cannot be ignored. Whilst sec. 39 of the Constitution compels courts to promote values which underlie all sections of society, ubuntu values which underlie traditional African societies must be researched. In spite of international and national debates on the existence of Arican philosophy, the ubuntu “moral philosophy” of communitarian African societies clearly illustrates the existence of a collective African philosophy. Bodunrin (cited in Deacon, 2002: 111) emphasises the philosophical reality of ethnophilosophy by saying that the “African philosopher cannot deliberately ignore the study of the traditional belief system of his people” 314. 314 Serequeberhan (1994: 6) insists that “every ceu lthuars the right to define itself and claim its own philosophical heritage”. 213 It is understandable why professional African philosophers regard the trend ethnophilosophy as too degenerate to be regarded as a meaningful contribution to the discourse of African philosophy. As the term ethnophilosophy holds too many postcolonial memories, time has come to reconstruct this most important trend which represents the collective philosophy of ubuntu. A perplexing question remains: why do professional African philosophers deny the collective philosophy of traditional African societies so vehemently? Both Mutwa (1998) and Somé reveal (1999) that they are despised by their people for exposing sacred traditional African knowledge to strangers. Could it be that Africans do not want their sacred knowledge debated in the public domain? There might be far more to the denying of ethnophilosophy than meets the stranger’s eyes. Section 4.11.4 reveals that, according to ubuntu philosophy, traditional African knowledge is not to be revealed to strangers; ubuntu laws and justice do not apply to strangers and no stranger can convert to African Religion. These notions are characteristic of a closed society, as is its definition of an African philosopher and African philosophy. Although Oruka and other professional philosophers deny the existence of a unique collective philosophy in the ethnophilosophical trend, Oruka, contrary to the others, upholds the existence of individual critical thought in traditional African societies. According to Oruka, individual wisdom does prevail in Africa. Individual wisdom or sage philosophy will be discussed next. 3.3.2 Philosophical Sagacity (Sage Philosophy) Whereas Tempels became famous for ethnophilosophy, Oruka is synonymous with sage philosophy. Oruka’s thesis Sage Philosophy: Indigenous Thinkers and Modern Debate on African Philosophy stands in contrast to Bantu Philosophy’s collective philosophy of traditional African societies. According to Oruka, sage philosophy represents individual critical thought amongst the sages of traditional Africa. Sage philosophy is fundamentally different from ethnophilosophy in that it is “both individualistic and dialectical” (Oruka, 2002{a}: 122). Oruka’s Sage 214 Philosophy confirms the existence of individual thought in traditional Africa and gives ethnophilosophy “an all-acceptable decisive blow” (Oruka, 1990{b}: 36). This subsection discusses the following: • Background. • Sage philosophy and sages: definitions. • Types of sages: folk and philosophical sages. • Critique of sage philosophy, and • Optimism about sage philosophy. 3.3.2.1 Background Oruka spent more than twenty years in Kenya doing research on illiterate traditional African sages and concluded that certain sages possess individual, critical thought and are able to philosophise. Oruka suggests that, contrary to ethnophilosophical claims, Africans can produce philosophy in the strict sense of the word. Wiredu (1996: 150) praises Oruka’s research as “one of the most important developments in post-colonial African philosophy”. Sage Philosophy brings proof of the existence of individual philosophies among traditional African indigenous people. Sage philosophy contrasts with ethnophilosophy’s collective philosophy of traditional African societies. Sage philosophy creates an individual, rational philosophy which “suits the African context and rebuts the claims of those that insist that the philosophical enterprise of Africa must be a mirror image of philosophy in the West” (Hallen, 2002: 52). Oruka brings a counterclaim to professional African philosophy, which suggests that philosophy in the strict sense does not always have to be in writing. As a proponent of oral philosophy, Oruka (1990{a}: xxiii) argues that “writing should not be a prerequisite for philosophy315 as philosophy does not depend on literacy”. Oruka (1990{a}: xxvii) posits that it is wrong to associate sages with “primitive societies and philosophers with civilised, developed societies. It is a mistake”. Oruka (1990{ a} : 315 In the introduction toS age Philosoph Hy outondji remarks that Oruka’s work is “in conttr atos the claim that philosophy is and can only be a written enrtiseerp” (Oruka, 1990{a}: xv). 215 43) contends that Africans are neither pre-logical, pre-scientific, pre-literate primitive men with primitive mentalities nor is their philosophy at best a pre- philosophy or a myth. Oruka maintains African sages are not self-professed wise men or women, but are rather recognised as such by their respective communities. They are wise elders, firmly grounded in African culture and tradition and although illiterate, knowledgeable about the history, customs, traditions, African Religion and values of their communities. They are regarded as sources of philosophical insight and consulted by their people for wisdom and counsel. African sages are people “who can demonstrate their ability and practise in critical thinking … at best, a good narrator of traditionally imposed wisdom and myths” (Oruka, 1990{a}: 5). In his thesis Sage Philosophy: Indigenous Thinkers and Moderate Debate on African Philosophy, Oruka (1990{a}) explains that sage philosophy focuses on the wisdom of traditional African sages that consists of “a reflective exercise that re-evaluates culture philosophy without the benefit of writing or contact with Europe” (Hallen, 2002: 52). According to Hallen, Oruka suggests that apart from the task of a philosopher to analyse and criticise, sages must also be able to “intuit and postulate insights”. Oruka argues that the gift of intuition distinguishes between great and common philosophers in the West. 3.3.2.2 Sage Philosophy and Sages: Definitions Oruka (1990{a}: 28) defines sage philosophy as “the expressed thoughts of wise men and women316 in any given [African] community and is a way of thinking and explaining the world that fluctuates between popular wisdom (well known communal maxims, aphorisms and general common sense truths) and didactic wisdom; an expounded wisdom; and a rational thought of some given individuals 316 Presby (1996: 1) notes that only one of the tw eslavgees consulted by Oruka in his research in Kenya happened to be female. She questions Oruka’s s awmhpicleh indirectly implies that women are not as ew is as men. 216 within a community. Whilst popular wisdom is often conformist, the didactic wisdom is at times critical of the communal set up and the popular wisdom”. Oruka emphasises that sage philosophy can be expressed in either written or oral form. Oruka (1990{a}: 44) stresses, however, that being a sage “does not necessarily make one a philosopher”. He states that for a sage to become a philosopher he must be able to “go beyond mere sagacity and attain philosophic sagacity”. Oruka (1990{a}: 38) defines a sage as a wise person who is acknowledged by the community to possess special knowledge of culture and tradition.317 Koka (1996: 2) defines sages as “men revered for their profound wisdom, counselling and guidance”. Kapagawani and Malherbe (2002: 227) define sages as “the elders of the tribe, people whose wisdom and knowledge of traditions, the folklore, values, customs, history habits, likes and dislikes, character and thought, of their people is very great”. According to Kapagawani et al. (2002: 227), “sages are the mouthpiece of their culture and sought for authoritative judgments and decisions on various matters”. Despite their illiteracy, these traditional sages reveal “wisdom within the conventional and historical confines of their culture” (Oruka, 1990{a}: 51). Apart from their special knowledge of African culture and tradition, certain sages apply reason and logic to bring wisdom and insight to their communities. Oruka sees the existence of sages in Africa as proof of Africa’s ancient history of philosophy. Two prime examples of sage philosophy is Griaule’s Conversations with Ogotemmeli and Oruka’s Sage Philosophy: Indigenous Thinkers and Modern Debate on African Philosophy.318 Bodunrin (1991: 71) includes Hallen 317 Hallen and Sodipo (1997: 13) find philosophy enecda isn the traditional wisdom of the Yoruba sages. “One finds theo nisegun being asked to give advice and counsel about ebsus indealings, family problems, unhappy personal situations, religious problemsd, tahne future, as well as about physical and mental illness”. 318 Oruka’s interviews with the sages are publishe hdi sin thesis,S age Philosoph y . 217 and Sodipo’s work on the Yoruba concept of a person as sage philosophy.319 “The oral tradition was central to the discovery that Africans had been a philosophical people all along – although they might not necessarily have known they were engaging in philosophizing” (Mazrui, 2002: 13). 3.3.2.3 Types of Sages Oruka distinguishes between two types of traditional African sage, namely folk sages and philosophic sages. Oruka (1990{ a} : 28) sees a folk sage as a “master of popular wisdom” and a philosophic sage as “an expert in didactic wisdom”. 3.3.2.3.1 Folk sages A folk sage is a traditional wise person who possesses special knowledge and wisdom of African culture and tradition. The folk sage is revered by the community as a wise person usually because he uses his wisdom to the advantage of the community (Oruka, 1990{ a} : 31). Oruka (1990{ a} : 28) views a folk sage as “a person who is well versed in the culture, customs, values and beliefs of his people and whose thought, though well informed and educative, fails to go beyond celebrated folk wisdom”. According to Oruka, a folk sage is a wise person “merely skilled at articulating communal belief” (Imbo, 2002: 38). A folk sage does not apply critical objection to the folk beliefs and taboos and is therefore regarded by Oruka as a “master of popular wisdom”. The wisdom, advice and counsel offered by the folk sage are passed down orally from one sage to another from generation to generation. As the folk sage is regarded as the keeper of traditional wisdom he may not deviate from the traditional knowledge passed on to him by his predecessor. Oruka (1990{ a} : 44) describes folk sages as persons that “may not be wise (rational) in understanding or solving the inconsistencies of their culture nor coping with the foreign innovations that 319 Oruka (1990{a}: xxv)i regards Hallen and SodipoK’sn owledge, Belief and Witchcra(f1t 986) and Gyekye’s An Essay on African Philosophical Thou g(h1t987) as ethnographical beliefs because they did not directly associate with particular individualg ses. 218 encroach upon it. In other words, they are spokespersons of their people, but they speak what, after all, is known to almost every average person within the culture”. He perceives folk sages as “wise within the cultural and historical confines of their culture” viz. sages who are “simply moralists and merely historians” (1990{ a} : 44). Folk sages do not transcend folk wisdom and display an uncritical attitude towards their traditional culture and worldview. Being a folk sage, according to Oruka, does not necessarily render one philosophic. Oruka (1990{ a} : 28; 46; 83) refers to Marcel Griaule’s Ogotemmeli; Kamau, the Dogon sage; and Hallen and Sodipo’s320 Yoruba Onisegen (herbalists and traditional healers) as typical examples of folk sages. Oruka (1990{ a} : 28) categorises the views of folk sages as first order philosophy. First order philosophy, according to Oruka (1990{ a} : 45), “explains and maintains the prevailing culture and includes the sagacious thoughts of the likes of poets, herbalists, medicine men, musicians, fortune tellers, and so on”. 3.3.2.3.2 Philosophical Sages321 Oruka (1990{a}: 44) defines a philosophical sage as “a person who is (1) a sage, and (2) a thinker. As a sage, this person is versed in the wisdoms and traditions of his people and very often he is recognised by the people themselves as having this gift”. According to Oruka (1990{ a} : 28-29), philosophical sages hold the same beliefs and wisdoms as those of the folk sage but are able to make critical assessments of what the people take for granted. Philosophical sages transcend the folk wisdom of their communal cultures, traditions and beliefs by applying rational, critical, reflective thought and insight; they re-evaluate their collective philosophy. “They transcend communal wisdom and go beyond mere 320 Hallen and Sodipo’s research among the Yorubas s iasg eproof of “philosophy encased in traditional wisdom, not just mythology and stories” (Bell, 20: 0324). 321 The notion of philosophical sagacity was exposne Md ai rcel Griaule’sC onversations with Ogotemm eli (1965) and Hallen and SodipoA’sn African Epistemology: The Knowledge-Belief Dnicsttiion and Yoruba Thought( 1981). 219 sagacity and attain philosophic sagacity” (Oruka, 1990{ a} : 44). Sages who possess this “philosophic inclination” make a critical assessment of their culture and its underlying beliefs. “By using the power of reason rather than the celebrated beliefs of communal consensus and explanation, the sage philosopher produces a system within a system, an order within an order” (Oruka 1990{ a} : 45). Oruka (2002{a}: 122) maintains philosophical sages apply rational thinking to their conventional beliefs and wisdom to produce wisdom which exceeds mere sage or cultural philosophy. According to him, philosophical sages “combine the conventional quality of wisdom with the dialectical and critical attribute of free philosophical thinking” to transcend and transform traditional culture. For Oruka (1990{ a} : 28), philosophical sages are independent, critical thinkers and masters of didactic wisdom. Oruka (1990{a} : 45) views these masters of didactic wisdom in the second order of philosophy as worthy of the label philosophy. Oruka (1990{ a} : 29; 117; 128) names Mbuya Akoka, Kizito and Ranginya as typical philosophical sages. According to Wiredu (1996: 150), these sages “are the present-day exemplars of our ancestral philosophers”. Oruka (1990{ a} : 45) categorises the wisdom of philosophical sages as second order philosophy.322 In contrast with first order or culture philosophy, second order philosophy is a critical reflection of the first order; it is open minded, critical, rational and sceptical of communal consensus (Oruka, 1990{ a} : 45). 3.3.2.4 Critique of Sage Philosophy Oruka defends the existence of philosophical thought amongst sages in the African oral tradition. According to Oruka, some of these sages demonstrate 322 Oruka’s Sage Philosoph ydistinguishes between folk sages (Chapter Six) pahnidlosophical sages (Chapter Seven). Ogotommelli, the Dogon folk saagyes :s “After God made women, he gave her bad blood which has to flow every month”, whilst Mbuya Ako ka ,Luo philosophical sage, makes his own rational deduction despite his community’s cultural bias inasgta women. “A man has the physical capacity to run faster than a woman. But on the other hand, a wo hmaasn the physical capacity to undergo the pains of carrying and bearing a baby which a man lacks. eS oc awnnot correctly say one is superior or infetroio trh e other … In truth, the two sexes are naturally e qour ablalanced” (199{0a}: 45-46). 220 philosophy in the strict sense despite their illiteracy. Oruka contends that neither literacy nor writing should be prerequisites for doing philosophy. In the introduction of Sage Philosophy, Houtondji (cited in Oruka, 1990: xv) says Oruka’s work stands in “contrast to the claim that philosophy is and can only be a written enterprise”. Oruka indicates that the philosophies of renowned sages such as Thales and Socrates survived despite the fact that they were not written by the philosophers themselves. The same can be said for the oral philosophies of many other sages, viz. Budda, Confucius and Jesus which were only written down much later by others. Professional philosophers Houtondji (1996), Bodunrin (1991)323 and Keita (1991) dismiss the existence of philosophy without the support of a written text, a prerequisite for Western philosophy’s universal enterprise. They dismiss sage philosophy as philosophy on the grounds of it allegedly being unwritten and unscientific (Oruka, 1990{b}: 36). Keita observes that even Oruka, the defender of the oral tradition, presents his evidence in writing (cited in Imbo, 2002: 57). Oruka (1990{a}: xvii) responds to Keita by saying that Socrates324, the famous sagacious philosopher, is evidence of a sage who never wrote down his philosophy. “Keita needs to be reminded that Socrates’ philosophy, for example, did not exist just because Plato and others gave birth to it through their pens. Plato and others wrote it down (even if they distorted much of it) because it existed in the first place. And such is the case with Sage philosophy in Africa. It exists independent of Odera Oruka or anybody else, so we search for it and write it down as this is the modern practice of keeping thought” (Oruka, 1990{a}: xxiii). 323 Bodunrin (1991: 82-83) says: “Writing is not a rperqeuisite for philosophy but I doubt whether philosophy can progress adequately without writ iHnagd. others not written down the sayings of Socsr,a te the pre-Socratics and Buddha, we would today ngoat rrde them as philosophers, for their thoughts w ould have been lost in the mythological world of provse arbnd pithy sayings”. 324 “Socrates was not only engaged in doing philosowphithy his fellow citizens in the streets of Athens, but the very form ofe lenchusc aught in his dialogues and the literary form oaf lodgi ue itself shaped the thought of scores of philosophers who followed hinim a distinctly Socratic mode. Even though we ha ve written literature from these followers, they werneg aged in the active search for truth and tryoin jgu st tify and ground the concepts of justice, virtue, pibeteya, uty, knowledge, and truth, in a manner reminits ocef the oracular lifelong quest of Socrates in thaeg ora of Athens and thus hoping to draw the reader tihneto dialogue” (Bell, 2002: 111). 221 Outlaw supports Oruka by highlighting the fact that writing is not a prerequisite for philosophy. Outlaw (cited in Oruka, 1990{a}: 20) contends that these professional philosophers suffer from “selective amnesia” as they tend to forget that Socrates did not write down his philosophy but they criticise the illiterate sages. Wiredu posits that although writing is necessary for developing philosophy as an academic discipline, “one can still do serious philosophy without writing” (cited in Gyekye, 1995: xxxiii). Oruka turns on professional philosophers and accuses them of submitting African philosophy to Western techniques of philosophy (1990{b}:36). Keita and Bodunrin agree with Oruka that sages are capable of philosophical dialogue and that critical and analytical thought exist in Africa, but according to them, they found no proof of “African philosophers in the sense of those who have engaged in organized systematic reflections on the thoughts, beliefs and practices of their people” (Bodunrin, 1991: 74). Presby (1996: 1) criticises Sage Philosophy firstly by questioning why only two of the twelve sages interviewed by Oruka happen to be female, and secondly (1995: 17) by asking why Oruka seems reluctant to criticise the philosophy of the sages. Although Oruka defines a sage as a wise person and seems to be gender sensitive by including women in his sample, the 1: 6 ratio of his sample illustrates the contrary. Presby points out that although Oruka lays down rational and critical criteria for sage philosophy, he hesitates to apply his criteria to the sage elders. Presby (1995: 18) finds it strange that he comments on and criticises the philosophy produced by professional philosophers yet has only praise for the sages. Presby’s criticism, along with the criticism of feminists of ethnophilosophy, leaves one with the impression that women are not treated equally to men in traditional African societies. One wonders whether Koka’s (1996: 2) definition of sages reflects the true state of affairs - the gender bias in these societies - when he defines sages as “men revered for their profound wisdom”.325 325 Imbo (1999: 138) maintains women are not consdid eprheilosophical in African societies. 222 The methodology used in Oruka’s Sage Philosophy can surely be questioned. Oruka’s thesis has not proven beyond reasonable doubt that only certain sages possess rational thought and others not. Oruka has neither lain to rest the claims of Tempels’ collective philosophy nor Aristotle’s or Descartes’ claims that all men possess rational thought. He must, however, be lauded for exposing individual critical thought in traditional Africa. Apart from the above-mentioned criticisms, Oruka (2002{a}: 122) voices two important additional objections: firstly, “that sagacity, even if it involves an insight and reasoning of the type found in philosophy, is not philosophy in the proper [or strict] sense”, and secondly, “that recourse to sagacity is a fall back on ethnophilosophy”. 3.3.2.5 Optimism about Sage Philosophy Oruka attempts to prove that Africa has a lived history of sage philosophy and that philosophical thought has existed in Africa since the beginning of time. The oral tradition is “central to the discovery that Africans had been a philosophical people all along – although they might not necessarily have known they were engaging in philosophizing” (Mazrui, 2002: 13). Although written texts of philosophy do not exist throughout Africa, there is no proof that Africa is devoid of philosophical thought. On the contrary, according to Oruka, Sage philosophy is proof that individual rational thought prevails in Africa and brings evidence of its ancient culture of philosophy. Oruka (1990{a}: xvii) identifies the following roles for sagacity: firstly, he notes that certain valuable sagacious contributions are worth the attention of professional African philosophers; and secondly, that sagacity provides raw data for further philosophical reflection. Sagacity’s third role lies in the area of socio- economic development. According to Kalumba (2004: 274), “Oruka urges African leaders to enlist the input of traditional sages in the process of designing and implementing policies and programs. This is because he believes the sages understand their people’s culture and the nature of their problems better than most people”. Kalumba (2004: 274) notes a fourth role as suggested by Hallen 223 and Sodipo: because Western philosophy developed independently of the rest of the world, “it has tended to absolutize many untested presuppositions” which sagacity has the potential to “validate, invalidate, or modify”. Broodryk (1997{b}: 3) finds sage philosophy a useful and most exciting trend in African philosophy and urges “that sage philosophy needs acknowledgement, encouragement and support from academic institutions in Africa”. Whilst Senghor maintains that emotion326 is as African as reason is Greek, Oruka affirms that reason is as African as it is Greek! 3.3.3 Nationalist-Ideological Philosophy (Political Philosophy) This subsection discusses the following: • Background. • Oruka and Nationalist-Ideological Philosophy. 3.3.3.1 Background Whilst African soldiers fought alongside their European masters in World War II, African political consciousness peaked. With the creation of the United Nations in 1945 “the ideas therein contributed to the new visions of the right to freedom from colonial rule that Africans began to voice” (Gordon, 2001: 50). From 1945 - 1960, national political parties took hold in Africa and spawned liberation struggles for the decolonisation and independence of the African continent. African nationalists, viz. Nkrumah, Touré, Azikiwe, Kaunda, Nyerere, Senghor, Houphouët-Boigny, Kenyatta and Moi pressured for political rights and independence (Gordon, 2001: 51). After independence during the 1960s, African leaders developed their own anti-colonial, pro-independence socio-political 326 According to Sengho (rcited in Masolo, 1995: 26 )“,emotion is black as much as reason is Greek.” He explains that “[T]his does not mean that the blmacakn has got no reason as others make me say hbeurt rat that his reason is not discursive but synthet iics; nitot antagonistic, but sympathetic. This is ahenor tway of knowing. While the European reason is analytic btiyli zuation, that of the black man is intuitive by participation”. 224 ideologies. Orukas’ trend, Nationalist-Ideological philosophy, personifies the African liberation struggle and can be seen as the political facet of African philosophy. Nationalist-Ideological philosophy or political philosophy represents the political, or liberation philosophies of African statesmen and politicians, viz. Senghor’s African socialism; Kaunda’s African humanism; Nkrumah’s Consciencism; Kenyatta’s Haraambe ; Nyerere’s Ujamaa and Moi’s African Nationalism. Wiredu (2004: 180) calls the first post-independence leaders, viz. Nkrumah, Touré, Nyerere, Senghor and Kaunda, “Africa’s philosopher kings”. These philosopher kings produced African socialism that was “a political philosophy that combined their understanding of Africa’s cultural heritage and certain elements of Western political thought such as Marxism and Leninism” (Wiredu, 2004: 180). According to Bell (2002: 37-38), Marxism was the inspiration for the renewal of the African continent as it “was more compatible with communalism or African humanism327 than capitalism”, whilst “socialism or African humanism328 was used to affirm African values and the combined struggle of the exploited African peoples against colonialism”. 3.3.3.2 Oruka and Nationalist-Ideological Philosophy Although Oruka did not describe this trend in detail, he sees it as the affirmation of traditional African values by African statesmen and politicians. Oruka (1990{a}: xxi) classifies the following philosophical texts as examples of political 327 “African humanism is quite different from the ‘Wtesrn, classical’ notion of humanism. The Western, classical notion of humanism stresses a particcuolanrc ept of education and civilization; it is preemdis on ancient Greek ideals such as balance of the ardt ss cainences, cultivation of individual virtues, atnhde exercise of rational self-control. It places a piruem on acquired individual skills a, nd favours a social and political system that encourageinsd ividual freedom and civil righ…t African humanism, on the other hand, is rooted in traditional values of mutualp reecst for one’s fellow kinsman and a sense of poons iatind place in the larger order of things: ones’os cial order, natural order, and thec osmic order. African humanism is rooted ilniv ed dependencies(”S enghor cited in Bell, 2002: 40). 328 Bell (2002: 37) states: “The founder base of Aafnri chumanism and socialism however, includes the ideological works of Franz Fanon, a particular es toylf socialism or communalism, and the inspiratoiof n such founding national leaders as Kwame Nkrumahliu, sJ uNyerere, Leopold Senghor, and Kenneth Kaunda”. 225 contributions under this trend: Kwame Nkrumah’s Consciencism; Julius Nyerere’s Ujamaa; Leopold Senghor’s Nationhood and African Road to Socialism; Ali Mazrui’s The African Condition; Franz Fanon’s The Wretched of the Earth; Oginga Odinga’s Not Yet Uhuru and Arap Moi’s Nyayo Philosophy. The works of Senghor, Nkrumah and Nyerere represent a unique political theory which is “based on traditional African socialism and familyhood” (Oruka, 1990{ a} : 164). These men strove for freedom, liberation from imperialism and colonialism and a return to African values and “genuine and authentic African humanism”. According to these political philosophers (Oruka, 1990{b}: 17), the true nature of African philosophy will be obscured unless the continent becomes liberated, independent and a genuine humanist social order established. Oruka (2002{ a} : 122) states that although most of the literature of this trend is contributed by African statesmen and politicians, not all of the works are “in the strict sense, really philosophical”.329 Nkrumah’s Consciencism and Nyerere’s Ujamaa were based on African communitarianism and show a similarity with ethnophilosophy; they confirmed the existence of a collective philosophy in traditional African societies. According to Oruka, (2002{ a} : 122), national-ideological philosophy differs, however, from ethnophilosophy in the following ways: firstly, it does not imply that European thought is different from African thought, and secondly, although the philosophy is based on communitarian values, it is the philosophy of the author concerned, and not the philosophy of an African community. Thirdly, this philosophy addresses problems of individual and national freedom whilst ethnophilosophy is an “apolitical and free-for-all metaphysics”. A definitive trait of this trend is the rekindling of traditional African values in communitarian societies in traditional Africa. The political philosophy of Nyerere, Ujamaa, led to Tanzania’s independence in 1961. According to Nyerere (1968: 12), Ujamaa or familyhood, was rooted in the restoration of the collective 329 Oruka states that not all of the works are “in sthtreict sense, really philosophical” (200a2}:{ 122). This implies that works that are not “in the strict see,n sreally philosophical” are not regarded as Afnri ca philosophy by Oruka or professional philosophers. 226 consciousness of African societies, communal values, and rural socialism. Ujamaa strove towards the abandoning of capitalism: towards a position where there would be no rich individuals in Africa; a position where wealth would belong to the family; a position where “the whole nation live as one family” (1968: 78). Nyerere’s vision of society was one in which “mutual respect and obligation bound members together, with a central authority or father figure acting as a final arbiter” (Thompson, 2000:46). Nyerere helped to overthrow Idi Amin and supported liberation struggles in Apartheid South Africa, Zimbabwe, Mozambique and Angola. Nkrumah’s (1998) Nationalist-Ideological view of philosophy, Consciencism, sees African socialism as the social revolution of Africa330: eradicating imperialism and capitalism, emphasising traditional African communalism and traditional African values. Nkrumah (1998: 93) believes that, if African socialism could be brought to fruition, the colonial mentality of the African could be erased and the African restored to his pre-colonial state. He advocated the pan-African cause and encouraged “African colonies to independence and supporting the Organisation for African Unity that he had helped form in 1963” (Thompson, 2000: 42). Nkrumah developed the concept of neo colonialism331 and had a vision for the rebirth and renewal of Africa, championed by what he termed the New African Renaissance (Ramose, 2002{c}: 604). Nkrumah believed that his Consciencism would one day form “the collective philosophy of Africans: the African philosophy” (Houtondji, 1996: 149ff). 330 Nkrumah (1998: 81) sees philosophiCcaoln sciencism as the social revolution enabling “African soc iety to digest the Western and Islamic and the Euro-sCtiahnri elements in Africa, and develop them in sau ch way they fit into the African personality”. 331 By the concept neo colonialism Nkrumah meant “rtehlea tionship of inequality that exists after a country has granted political independence to oan cyo bl ut continues to dominate its economy” (Thomnp, so 200: 43). 227 More (2004{a}: 207) posits that South Africa has its own “philosopher kings”332, viz. Biko, Lithuli, Sebukwe, Tutu and Mandela, who struggled against colonialism, imperialism, racism and apartheid. In their pursuit of human dignity, justice, equality and democracy “they realized the peculiarity of their situation and therefore did not generalize claims about the entire continent” (More, 2004{a}: 207). 3.3.4 Negritude and Nationalist-Ideological Philosophy The Negritude movement was founded in Paris in the 1930s by Senghor, Césaire and Damas and flourished as a reactionary philosophy among African and Afro- Caribbean students who rebelled against the alienation of slavery and French colonial domination. This subsection includes the following: • Background. • The Negritude trend, and • The critique of Negritude. 3.3.4.1 Background The Negritude movement was spearheaded by Leopold Senghor, the politically conscious student and poet from Senegal who studied in Paris. While famous for his poetic Negritude philosophy, it must be noted that Senghor distinguished himself as an ardent African socialist who aspired to unify French West Africa. Senghor (1963: 13) defined negritude as “the sum total of African cultural values” which emphasised the uniqueness of African racial and cultural consciousness. According to Senghor (1963: 13), “Negritude is the whole complex of civilized values, economic, social and political – which characterize the black peoples, or more precisely, the Negro-African world. All these values are essentially informed by intuitive reason. Because this sentient reason, the reason which comes to 332 Whitehead characterised the entire history of Werens pt hilosophy since ancient Greek philosophy as a footnote to Plato. Plato can be seen as “a king nagm pohilosophers. In fact, he actually believed that philosopherss hould be kings!” (Stevenson, 2002: 49). 228 grips, expresses itself emotionally, through the self-surrender, that coalescence of subject and object, through myths, by which I mean the archetypal images of the collective soul”. Sarté (cited in Bell, 2002: 26) defines Negritude “as an attitude towards the world – a subjective disposition expressive of the black man’s total apprehension of his peculiar situation”. Senghor sees Negritude philosophy as an intuitive, emotional333 philosophy which represents the collective African consciousness and “identifies the collective trait of Africans as ‘emotion sensitivity’” (Bell, 2002: 25). For Senghor, emotion334 is as completely Negro as reason is Greek. He justifies Africa’s unscientific, non-rational approach to reality by stating that Africans apprehend reality through intuition rather than intellect. Senghor (1964: 72), the great Negritude poet, affirms traditional African values335 and discloses the source of African knowledge by saying: “[f]rom our ancestors336 we inherited our method of knowledge”. 3.3.4.2 The Negritude Trend Oruka implies in African Philosophy: the Current Debate, that Negritude should be included in the National-Ideological trend in African philosophy. Negritude philosophy established itself as a political literary reaction of African writers and poets who aspired to liberate Africans from the pervasion of colonialism. Mudimbe (1988: 93) describes Negritude as the “intellectual and emotional sign 333 Fanon (1990: 171) states that Negritude “was tmheo tieonal if not the logical antithesis of that inlts u which the white man flung at humanity”. 334 Senghor posits that Africans perceive the worfldfe rdeintly from Europeans and grounds his philoso phy of negritude on the idea that Africans experienhcee wt orld through emotion. He held that Africans ew er different from but not inferior to Europeans and tleo the negritude movement defending an “unscfiec,n ti unanalytical and untechnical African mind” (Imbo9,9 18: 12). 335 Fanon (1990: 171) states: “The unconditional mafafitrion of African culture has succeeded the unconditional affirmation of European culture. Ohne twhole the poets of Negro-ism oppose the ideaan of old Europe to a young Africa, tiresome reasonin gly rtiocism, oppressive logic to high-stepping na,t uarned on the one side stiffness, ceremony, etiquette saknedp ticism, while on the other frankness, livelisn,e s liberty and - why not? – luxuriance: but also irproenssibility”. 336 “The Africans’ mystical conception of the world fiosr Senghor his principal gift, and derives fromis h close links with the natural world. Because thei cAafnr identifies with the life force, the universse a i close system of forces ... Senghor believes the Africoacnie sty is the ‘sum of all persons, living and de wadh,o acknowledge a common ancestor” (Irele, 2002: 4 7). 229 of opposition to the ideology of white superiority”. According to Mudimbe, Negritude asserted itself as a “racial negation: rejection of racial humiliation, rebellion against the rationality of domination, and revolt against the whole colonial system”. The Negritude movement aspired “to demonstrate the existence of black culture and its great moral achievements” (Oruka, 2002{b}: 62) by reaffirming African culture and values (Masolo, 1994: 3) in the wake of its virtual extinction by colonialism. Negritude philosophy consists of a canon of nationalistic literature which aims firstly at reclaiming and restoring black identity in the face of the colonial337 rejection of Africans, and secondly, at developing nationalism in Africa. The philosophy of Negritude is said to embody the Africans’ “symbolic progression from alienation, through revolt, to self-affirmation and from subordination to independence” (Irele, 2002: 35). Not only did Senghor’s Negritude change the way Europeans perceived Africans but it succeeded in creating a collective African identity which was later confirmed by the ethnophilosophical trend. English and Kalumba (1996: 57) commend the work of Senghor and describe Negritude as “one of the most insightful and controversial themes in African philosophy”. Whilst many philosophers posit that the debate on African philosophy originated from the discovery of ethnophilosophy, Masolo (1994: 10) is of the opinion that Senghor’s Negritude was “the legitimate origin of philosophical discussion in Africa”. Masolo is quite right in assuming that Senghor and not Tempels, was the first to introduce African humanity to the European public. Masolo’s notion is affirmed by Fanon (1990: 35) when he acknowledges that Senghor was the first person to introduce African reality to Europeans. Fanon says: “Senghor is Africanizing the Europeans”. 3.3.4.3 The Critique of Negritude 337 Senghor (1964: 80) statesO inn African Socialism“: Let’s stop denouncing colonialism and Europe and attribute all our ills to them. Besides not beinngt ire ly fair, this is a negative approach, revega lionur inferiority complex, the very complex the coloni zineor culated in us and whose accomplices we thearereb y secretly becoming ”. 230 The critique of Negritude started in the 1950s with attacks first against Sarté and later against Senghor’s Negritude philosophy. Both philosophers were criticised for their “theory of a black racial self and the creation of an African collective identity propounded by Negritude and endorsed by ethnophilosophy” (Irele, 2002: 117). According to Irele, Frantz Fanon338 was one of the fiercest critics of the Negritude movement. In Fanon’s Black Skin, White Masks (1993) and The Wretched of the Earth (1990), he embodies his critique against the Negritude movement. In Black Skin, White Masks, Fanon, the psychiatrist and revolutionary, utilises the language of revolutionary awareness by revealing the true state of colonial dislocation, depredation, domination and defilement of culture and territory suffered by blacks. According to Fanon (1993: xi), “[t]he analysis of colonial depersonalization alienates not only the Enlightenment idea of man, but challenges the transparency of social reality”. Fanon (1993: xiv) articulates the colonial cultural alienation by comparing “the Negro enslaved by his inferiority [and] the white man enslaved by his superiority”. In The Wretched of the Earth, Fanon (1990) deplores Negritude’s racial and cultural consciousness and advocates violence against colonialism. In Fanon’s339 (1990: 175) call for a violent struggle he argues that songs, poems, collective values and folklore will not set African “natives” free. Fanon laments the fact that rather than “ensure his salvation and escape from the supremacy of the white man’s culture the native feels the need to turn backwards towards his unknown roots and to lose himself at whatever cost in his own barbarous people”. Oruka’s objection to Negritude is “the movement’s blindness to class differences within the black world”. According to Oruka (2002{ b} : 62), “Negritude leads to the assumption that all black people form a cultural unit share the same consciousness, class, emotions and tastes” and maintains Negritude has no 338 Sarté acclaimed FanonT’sh e Wretched of the Ear tahs “the greatest masterpiece of the anti-colonial struggle; the Third World f inds itself and speaks to itself through this veo” ic(Fanon, 1990: 258). 339 Imbo states that Fanon’s work “has become a roadp fmor freedom fighters around the world, an instrument to help peoples of the world in forgtinhge ir own sense of identity” (Imbo, 1998: 37). 231 deep roots among the African masses. According to Oruka, Senghor addressed the French public through Negritude, rather than the traditional African masses. Okot p’Bitek (cited in Oruka 2002{ b} : 62) argues that Negritude appealed only to the “alienated intelligentsia; it speaks to alienation and not to exploitation; to the individual and not to the masses; to the modern and not the traditional”. Wiredu (1980: 42) upholds his criticism against Negritude for defining Africans as unscientific, unanalytical and untechnical people. According to Wiredu, “the principle of rational evidence is not entirely absent from the thinking of the traditional African …The truth, then, is that rational knowledge is not the preserve of the modern west, nor is superstition a peculiarity of the African”. Not only did Negritude reinforce the difference between European and African thought, values and culture but its critique later resounded in the vehement theoretical attack on ethnophilosophy. Whilst Negritude emphasised African morals, culture and values, ethnophilosophy became synonymous with traditional Africa’s colective philosophy and interconnection with African Religion. Both Negritude and ethnophilosophy confirmed the existence of a communal or collective African consciousness, the uniqueness of African culture and values, and aspired to restore African identity during the colonial340 period. According to Houtondji, (1991: 118-19) Negritude and ethnophilosophy “appear as a by- product of underdevelopment, a consequence, among many others, of cultural amnesia”. Although certain African philosophers view Negritude as redundant, it forms a definitive branch of the history of African philosophy. Not only does it embody the reality of Africa’s political philosophy, it also represents aspects of Africa’s cultural and moral philosophy. The time has arrived for African philosophers to acknowledge the importance of both Negritude and ethnophilosophy for defining the roots of African philosophy and for their invaluable contributions to the history of African philosophy. 340 According to Bell (2002: 25), Negritude and ethhniolopsophy are related because both identify “common, fundamental characteristics that were gthot uto be specifically African or Negro”. 232 3.3.5 Professional Philosophy Oruka (2002{ a}) states that this trend consists of works and debates of professional philosophers from Africa who have been schooled in the Western tradition of philosophy. This subsection discusses the following: • Background. • Professional African philosophers versus African traditionalists, and • Criticism of professional African philosophy. 3.3.5.1 Background Oruka (2002{ a} : 123) sees professional philosophy as literature that “has been produced or can be produced by African thinkers or in the African intellectual context in any branch of philosophical thought in the strict sense”. Oruka (1990{ a} : 164) defines professional philosophy as “philosophy done by African philosophers whether it is in the area of logic, metaphysics, ethics or history of philosophy”. According to Oruka, work by African philosophers will qualify as African philosophy if it “engages in debates on Plato’s epistemology, or on theoretical identities”. He sees African philosophy as a tradition of philosophy in the strict sense which is characterised by criticism and argument.341 According to Oruka (2002{ a} : 123), philosophy in the strict sense must involve critical, reflective and logical inquiry and “cannot depend just on racial or regional make- up”. Professional African philosophers see philosophy as a universal enterprise that must have “the same meaning in all cultures, even though the epistemological, metaphysical, and ethical questions prioritized in these cultures are different” (Imbo, 1998: 39). Although professional African philosophers follow the Western philosophical tradition, Oruka foresees cultural differences between African and 341 Oruka names himself, Kwasi Wiredu, Paulin Houtoi nadnj d Bodunrin as examples of African philosophers who practise philosophy in the stsreicnt se. 233 Western philosophy. Sogolo (1993: xiv) for instance argues that “raw materials of any tradition of philosophy are to be found in the totality of the practitioners’ own culture and life experience. For this reason the search for an African philosophy has to be home based and conducted from within the African experience” (Sogolo, 1993: xiv). Oruka (1987: 24-29; 1990: 9) includes Bodunrin, Houtondji, Wiredu and himself as professional philosophers. Imbo (1998: 39) adds to Oruka’s list of professional African philosophers by including Keita, Towa and Serequeberhan342 to this trend. 3.3.5.2 Professional Philosophers versus Traditionalists Professional philosophy is characterised firstly, by the professional African philosophers’ universalist definition of philosophy and secondly, by their rejection of ethnophilosophy. Professional African philosophers believe that philosophy in the strict sense should exhibit a universal character and comply with standards prescribed by Western philosophy, viz. the individual, written, reflective and critical inquiry of knowledge. Professional African philosophers are “usually identified by their credentials as doctors of philosophy” (B.J. van der Walt, 2006: 208) obtained from Western universities and they align themselves with academic philosophers from the West. They perceive the universalist vision for African philosophy as the only philosophy from Africa and reject philosophical contributions from African traditionalists. Universalists accept Western standards of philosophy, they emphasise the importance of science and technology and conveniently ignore culture and African Religion as part of the life of traditional Africans. Bodunrin is hostile to the idea that African philosophy could possibly be based upon “values and beliefs of Africa’s indigenous cultures” (Hallen, 2002: 20). Like Bodunrin, Houtondji wants intellectual liberation from notions of Africa’s collective philosophy or ethnophilosophy. As one of the fiercest critics of 342 Serequeberhan (1994: 5) criticises Houtondji, Wduir eand Bodunrin for adopting the Western tradition of philosophy in the African context. 234 ethnophilosophy, Houtondji (1983: 56) argues that African philosophy cannot abandon the universally accepted maxims of Western philosophy applicable to the rest of the world. Houtondji denies the existence of a collective African philosophy because traditional societies depend on oral transmissions of their philosophy. Although African knowledge is meticulously recorded by these oral cultures, Houtondji rejects oral philosophy as philosophy because, first, it is not written and second, it is not written by Africans.343 Houtondji (1996: 43) criticises Kagame for being “the prisoner of an ideological myth, that of a collective African philosophy” and argues that Kagame’s La Philosophy Bantou-Rwandaise is therefore no true philosophy. Houtondji (1996: 46) pleads for a scientific approach to African philosophy that could liberate it from the shackles of the myth of ethnophilosophy. Professional African philosophers are adamant that not all Africans share in traditiobal Africa’s collective philosophy, as proposed by ethnophilosophers. Like Plato, professional African philosophers oppose the idea of group philosophising and argue in typical Western style, that philosophy is the prerogative of the individual. According to them, the fact that ethnophilosophy is based on oral traditions hampers scientific evaluation of this trend. Wiredu (1980: 32) posits that traditionalism in Africa stints modernisation of the continent. He maintains scientific endeavour only can bring forth much needed improvement in traditional African existence. According to Wiredu, African philosophers have an appreciation for the methods of science not only because of its intellectual qualities but also because it is necessary for the modernisation and transformation of the African continent. Wiredu (Hallen, 2002: 27) sees the task of the professional African philosopher as one “whose aim is to encourage the introduction of novel, warranted, assertable truths about the origins of our belief, as well as to re-evaluate, revise, or discard old beliefs and to introduce new ideas that might possibly achieve the status of truth”. In contrast to 343 Professional philosophers Towa and Okolo rejecut tHonodji’s hard line stance on philosophy as wri tten texts. According to Towa (cited in Imbo, 1998: 3 1“H),outondji’s strategy fails because it now redu ces Africans themselves to defending Western stereost yapbeout the lack of philosophical complexity in traditional Africa”. 235 Bodunrin, Houtondji, Wiredu344 and other universalists, African traditionalists argue that professional African philosophers should shed the shackles of reason and trust their intuition. Whilst professional African philosophers are seen as protagonists for a scientific approach to African philosophy, Mazrui (2002: 13) assures us that “scientific techniques are currently being utilised to extract Africa’s oral tradition and oral history to reconstruct documentation for modern historiology”. Not only Mazrui and African studies utilise scientific techniques to extract African philosophy but Gyekye (1995) too, is said to have used an analytical approach in his An essay on African Political Thought: an Akan Conceptual Scheme. According to Hallen (2002: 27), Gyekye “set a precedent for how material of philosophical substance can be identified in and derived from Africa’s indigenous cultures”. Hallen (2002: 32) finds Gbadegesin’s African Philosophy: Traditional Yoruba Philosophy and Contemporary African realities (1991) good examples of “conceptual analysis and the critical evaluation of fundamental methodological techniques”. Hallen argues that there has always been an individualistic, reflective, and critical dimension to the formation and reformation of such beliefs and practices in African cultures. On the evidence gathered by Mazrui and Hallen it seems scientific techniques are currently used to extract philosophy from traditional African societies. The ‘scientific’ arguments by professional African philosophers do, therefore, not hold much water. 3.3.5.3 Critique of Professional Philosophy One of the criticisms brought against professional African philosophers is that they are academics that have all been schooled in Western philosophy and therefore represent Western thought and not traditional African modes of 344 “Wiredu is out to knock down the fences that habvee n erected to intellectually segregate the Anfr ica mentality as somehow idiosyncratic … He has alwbaeyesn fundamentally committed to the notion tha t all of humanity shares certain basic rational attrisb uatned that the exploration of the consequencesh eosfe t attributes for human understanding should be aesdsi gthne highest priority for those committees (asre Wdui certainly) to a vision of philosophy that truly csrsoes cultures” (Hallen, 2002: 22). 236 thinking. Oruka (2002{ a} : 123) voices the criticism often levelled at professional philosophy, that it reflects Western and not African philosophy; as well as the fact that professional philosophers have “learnt hardly anything about African philosophy. So the criticism goes, he comes and treats the latter from a purely European angle: he employs ‘European logic’ and principles to criticize or create what he likes to call African philosophy”. According to Oruka (2002{ a} : 123), professional African philosophers have two responses to this criticism. Firstly, some philosophers would argue that Western philosophical thought originates from ancient Egypt and therefore “the thoughts of ancient Egypt are the heritage of black Africans”. This answer implies that Africans have a share in European philosophy. Secondly, other philosophers would argue that intellectual principles and knowledge belong to every race or culture of the world and cannot be monopolised by any one race or culture. Therefore, logic and philosophy do not belong to the West but to all students of philosophy. According to Oruka, professional African philosophers ascribe to the universality and rationality of philosophy and are, therefore, opposed to African philosophy seeking a unique collective form of oral philosophy. They see African philosophy as part of a universal philosophy.345 Universalists who support this view include Bodunrin, Towa, Keita, Houtondji and Sogolo. Oruka argues the trend, professional philosophy, has certain limitations. Firstly, Oruka (1990{ a} : 42) states that the trend lacks “subject matter of its own” as it is mostly characterised for its criticism against ethnophilosophy. He urges professional African philosophers to start addressing specific African issues rather than discussing mere possibilities of African philosophy. Secondly, he 345 Teffo et al. (2002: 163) state Tinh emes in African metaphys itchsat epistemologists want to account for knowledge in general, as a universal, and not eansc Fhr or English knowledge. They find that “[i]n Wteersn philosophy practicing philosophy on ethnic or geaopghrical lines ,there is no prevailing tradition of presenting and although the irse talk of Greek, British, French, or German Phoilpohsy, the assumption is that these are aspects of a common activity antd o pf aarn ongoing tradition”. Teffo et al. find phsilophy on the African continent not to apply universaloly atll groups on the continent, but rather that et hies rat present a strong tendency to approach philosop hay c iunlture specific way. They state: “There is enaos ron why all peoples on a continent, or even all mem boef rsa cultural group, should think the same about metaphysical matters”. 237 laments the fact that African philosophy lacks a history and urges professional African philosophers to actively partake in the preservation of the history of African philosophy. Thirdly, Oruka encourages professional African philosophers to “enhance its degree of self-criticism”, viz. to intensify the debate between themselves and between themselves and others. Outlaw finds it intriguing that whilst professional African philosophers proclaim the universality of philosophy, they nonetheless define African philosophy according to the geographical origins of its practitioners. Outlaw (2002: 151) posits that Western philosophy, or “philosophy proper”, as a universal praxis, “is the same, regardless of where it is engaged in, or by whom”. Professional African philosophers maintain that “philosophy is a capability shared by all persons, their race of ethnicity notwithstanding. ‘African’ philosophy, then, by this argument, is distinguished only by the geographical origins of its practitioners, not by a content somehow made different by their Africanness’” (Outlaw, 2002: 151). Outlaw finds Houtondji’s definition of African philosophy “particularly disturbing” when Houtondji makes the African origin of the authors the criterion for African philosophy. According to Outlaw (2002: 151), Houtondji uses “African as a signifier not just for geographical origins but also for race/ethnicity”. Whereas race, ethnicity and gender should be accidental to philosophy proper, Houtondji sees it as a prerequisite for doing African philosophy. Houtondji affirms that it is essential for African philosophy to comprise of written works by Africans (Masolo, 1995: 196). Serequeberhan (1994: 119) criticises professional African philosophers for not recognising the African struggle for liberation as a primary concern of African philosophy. He sees the deconstruction of African philosophy as the “undoing of the Eurocentric residue on the level of theory”. Serequeberhan views African philosophy as an attempt by Africans to “free themselves from European categories and the propensity to unwittingly embrace a Eurocentric worldview … African philosophy is recourse to violence” (Imbo, 1998: 29). From a 238 hermeneutical viewpoint Serequeberhan and Imbo criticise professional African philosophers “for not coming to terms with the inescapable violence that has characterized the intercourse of Europe with Africa” (Imbo, 1998: 29). Imbo posits that as philosophy is the “hermeneutics of the existentiality of human existence”, both ethnophilosophy and professional philosophy have failed as philosophy. As professional African philosophers align themselves with the philosophy practised by Western academics, it is interesting to note that both Western and African academic philosophers share the same prejudice towards African traditionalists. They render the traditional African mind too uncivilised, unscientific and tribal to produce critical, rational and logical thought. In contrast with academic philosophers, viz. Somé346 (1999), a shaman from West African Dagara, and Mutwa (2003), High Sanusi and sangoma of Kwazulu Natal, affirm that traditional Africans do not only think differently from Westerners but their collective philosophy differes vastly from that of Westerners.347 Both of these revered men affirm the African collective and spiritual approach to African reality. Somé (1999; Freke, 1999: 27) discloses that “in [traditional] Africa … life is shamanism”348; life is the ancestors. Mutwa (2003; 1998: 579) affirms that “ordinary Bantu are firmly rooted in the beliefs of their forefathers, no matter how educated or civilized they are”. These notions are confirmed by Mbiti (1990: 5) when he notes the deeply religious nature of Africans. According to Mbiti, African Religion is so interwoven with African philosophy that it is impossible to 346 Malidoma Patrice Somé holds three master’s de gareneds two doctorates from among others the Sorbonne and Brandeis University (Freke, 1999: 24). 347 The African-American, Jeremiah Wright, pastor hoef tTrinity University Church of Christ, pastor ohfe t American presidential candidate, Obama, stateda: c“kbsl are different from whites, but not deficie nt”. Wright ascribes this difference itnot er alia the fact that African-Americans are more right inb roariented and whites more left brain oriented (CNN, 2007: 1090H, 29 April). According to Th eEconomist (May, 2008: 57), Jeremiah Wright “argues that blacks wanhidte s have different learning styles, further pf rtohoat he endorses the racist theory that blacks and sw hiateve differently wired brains”. 348 “Shamanism is not part of life, but provides and eurnstanding that embraces all of life. Shamanis m is more than beliefs and rituals. It is an experiel nintivaestigation of the visible spirit world whichiv ges rise to the tangible world of the senses” (Somé cited ienk Fe,r 1999: 27). 239 separate African Religion from African philosophy. The deeply religious nature of Africans is confirmed by Wiredu (2002: 20) who acknowledges that Africans are “profoundly religious people”.349 In contrast with professional African philosophers, traditionalists Somé, Mutwa, Mbiti, Wiredu and others confirm that African Religion is African reality for traditional African people. B.J. van der Walt (2006: 208) suggests that whilst professional African philosophers criticise ethnophilosophers for inventing a unique collective African philosophy for the European audience, they fall into the same trap by inventing a rational philosophy in order to prove to Westerners that Africans are neither different nor inferior. According to Van der Walt, professional African philosophers “succumbed to Western pressure by insisting that real African philosophy should comply with the standards prescribed by Western philosophers”. Mudimbe (1988: 185) states that since professional African philosophers “received a Western education, their thought is at a crossroads of Western epistemological filiation and African ethnocentrism”. Van der Walt (2006: 212) sees professional philosophy as mainly a criticism of ethnophilosophy and observes that this trend lacks a literature of its own. According to him, professional philosophy “can only hope to progress in the future when it switches from predominantly a protest against ethnophilosophy to a more positive study of specific philosophical issues and problems”. B.J. van der Walt (2006: 211) maintains “professional philosophers are busy with a kind of metaphilosophy which has very little relevance to the concrete problems of the continent”. Whilst Wiredu and Houtondji proclaim the advantages of scientific progress350 for Africa, one wonders whether the adoption of scientific thought in Africa would necessarily bring about a paradigm shift in the Western perception of Africans as inferior. Whilst professional African philosophers on the one hand assure mere 349 Senghor (1964), Nkrumah (1998), Mbiti (1991), Mau tw(1998; 2003) and Somé (1999) affirm the communal and spiritual nature of African societ i e s. 350 Blackburn (2002: xv) states that whilst academphicil osophers advocate the importance of scientific philosophy “they do not actually do science themvesse,l nor necessarily offer any more insightful interpretations of science than those that sciewnrcite rs and journalists manage for themselves”. 240 mortals of the universal character of African philosophy, African traditionalists on the other hand vouch for the uniqueness of African philosophy. Philosophers who subscribe to the Western tradition propound individualism, capitalism, science and racial prejudice, whilst in traditional “Africa things are quite otherwise, since African civilization is characterised above all by solidarity, communitarianism, traditionalism and participation” (Maurier cited by Teffo et al., 2002; 173). Is it as Gordon suggests, that African philosophy is much broader in scope than Western philosophy? He states: “Now, although this governing fiction suggests at first that ‘real philosophy’ is Western, there is a logic that can show that African philosophy is broader in scope than Western philosophy because it includes the Western in its self articulation. In practice Western philosophy may be a subset of African philosophy” (cited in Hallen, 2004: 130). In Sage Philosophy, Oruka (1990{a}: xx) adds another two trends to the existing four trends, viz. the hermeneutical trend and artistic or literary trend. 3.3.6 The Hermeneutical Trend The debate surrounding the existence of African philosophy and the discourse on Oruka’s famous four trends have been dominated largely by academics of the Western philosophical tradition. In response to the Western discourse on African philosophy, African philosophers attempt to illustrate that Africans too possess reason, logic, and the ability to philosophise by adopting Western philosophy’s universal methodology for philosophy. The hermeneutical trend affirms that, contrary to Western positivism, “the interpreter and his text cannot be detached from the particular cultural context, and that, to a large extent, understanding is determined by the cultural context” (Van Blerk, 2004: 209). Gadamer, the father of hermeneutics, states that it is impossible to read anything out of context. In Truth and Method (1960), Gadamer (Law, 2007: 330) argues that the author and interpreter are conditioned by their respective historical situations. Gadamer sees interpretation as “a two-way process in which the 241 perceptions of the author and interpreter merge into a fusion of horizons which has to remain open to new interpretations and cannot be pinned down to a set of methods”. Foucault (1982: 179) defines hermeneutics as a “discipline which deals with deep meaning, meaning necessarily hidden from the subject, but nonetheless accessible to interpretation”. Foucault maintains the deep meaning of texts is cultuarally constructed. Oruka (1990{a}: xx) sees the hermeneutical trend as consisting of a “philosophical analysis of concepts in a given African language to help clarify meaning and logical implications arising from the use of such concepts”. In African philosophy, the hermeneutical approach takes the lived African experience as starting point. Hallen (2002: 70) notes a common concern shared by hermeneutical philosophers in the African tradition in their determination to come to terms with the damage done to Africa by colonialism and Western intellectual imperialism. According to Hallen (2002: 70), hermeneutics is perceived as a deconstructive term which symbolises “different aspects of the struggle of African people to control their identity”. Hermeneutics deconstructs and reconstructs African history from its liberation struggles, viz. “from neo- colonialism, repression, subordination and social exploitation” (Imbo, 1998: 28) to current problems. “Rooting themselves in what is traditional to Africa, they seek to escape the enslavement of the past by using that past to open up the future … and call into question the real relations of power in Africa” (Imbo: 1998: 27). Deconstuctive hermeneutics has a postmodern concern with Western universalism and the Western ideology of liberalism. In deconstructing351 351 Ryan (cited in Outlaw, 2002: 153) describes detcrounctsion as follows, “In very broad terms deconstruction consists of a critique of metaphsy,s tihcat branch of philosophy … which posit firstd a finnal causes or grounds, such as transcendental id emaliatyte, rial substance, subjective identity, consc ious intuition, prehistorical nature, and being concedi vaes presence, from which the multiplicity of eexniscte can be reduced and through which it can be accdo ufnotre and given meaning. Standard practice in metaphysics … is to understand the world using rby inoappositions, one of which is assumed to be prior and superior to the other”. 242 hermeneutics oppose the scientific, positivistic352 analytic methodology of Western philosophy. The term deconstruction was coined by the French philosopher Derrida, who used this technique of “involving close readings of texts to open up the fluidity of meaning by focusing on seemingly incidental details and so uncovering their hidden or unthought aspects” (Law, 2007: 344). The deconstructive hermeneutical approach no longer asks what African philosophy is. Such a question “forces us to justify and identify it from an external perspective” (Janz, 2004: 101). According to Janz (2004: 101), “hermeneutic philosophy replaces Western discourse to the situation in African philosophy which focuses on living and creating philosophy in the African place”. Hermeneutic philosophers distinguish the hermeneutic trend from both ethnophilosophy and universalist philosophy. They see the deconstruction and reconstruction approach to philosophy as imperative “to demonstrate how Western philosophy is used as an ideological weapon to denigrate the intellectual significance of non-Western, in particular, African cultures” (Outlaw cited in Hallen, 2002: 69) and to unmask and undo the “Eurocentric residue on the level of theory” (Serequeberhan, 1994: 119). Outlaw (2002: 139) argues that African philosophy has been deconstructive and reconstructive in its attempt “to sanitize African intellectual practices of their necrophilia: that is, its concern to construct a self image in the mirror of a decomposing, putrid, Greco-European philosophical anthropology that has been embodied in the dominant voices and traditions of Western philosophy”. Serequeberhan (1994: 19-11) gives Fanon and Cabral as examples of non-Western intellectuals who utilise hermeneutical philosophy from an African perspective. Hallen (2002: 70) perceives the following African philosophers as hermeneutic philosophers, viz. Fanon, Serequeberhan, Outlaw, Towa, Okere, Okolo, Gordon and Bernasconi.353 352 Coombe (cited in Van Blerk, 2004: 291) states ”thoante cannot logically explain human behaviour and the laws governing natural events in the same waanyd, therefore the positivistic arguments that all explanations must conform to the same deductivee ml coadnnot be effectively defended”. 353 See Fanon, FT. he Wretched of the Ear t(h1990); Serequeberhan, T.h e hermeneutics of African Philosophy (1994), Our Heritage: The Past in the Present of African-eArimcan and African Existence (2000); Okere, T.A frican Philosophy: A Historic-Hermeneutical Inviegsattion of the Conditions of its 243 3.3.7 The Literary Trend Oruka states that the literary trend consists of what Wamba dia Wamba and Wole Soyinka refer to as the narrative element in African philosophy (1990{a}: xxi). Oruka acknowledges that many African literary intellectuals represent this trend, but names only the following as examples of the narrative trend: Chinua Achebe, Wole Soyinka354, Ngugi wa Thiongo, Okot p’Bitek and Taban Lo Lo Liyong. The narrative part of African philosophy reflects the struggle of the African continent to rid itself of colonialism, imperialism, apartheid and other forms of domination. Ngugi wa Thiongo for example, accentuates the importance of reviving the African philosophical tradition through African languages. In his book Decolonising the Mind (1986), he says “farewell to English as his language of writing” and embraces his native Kenyan language, Gikuyu. The Nigerian writer, Chinua Achebe, an advocate of European languages, points out the practical aspects of writing in English on a continent with so many diverse cultures and languages. In his first novel Things Fall Apart (1986), he addresses the negative impact of colonialism on Igbo traditions. In No longer at Ease (1962) Achebe examines the negative impact of Western concepts on African values and traditions and in Arrow of God (1986), he illustrates the clash between Western values and traditional African rituals. African writers of the literary trend confirm that Christianity and Western values have eroded traditional African values. There are, however, many more contemporary African writers to add to the narrative trend in African philosophy. What is significant though is the fact that no female African writer has been identified in Oruka’s narrative trend. There is possibility (1983); Outlaw, T.A frican Philosophy: Deconstructive and Reconstrvuec tCi hallenges(2 002); Wiredu, K. Conceptual Decolonisation in African Philosop(h1y9 94); Osuagwu, I.MA. frican Historical Reconstruction(1 999) and Masolo, D.AA. frican Philosophy in search of identi(t1y9 95). 354 The Nigerian Nobel Laureate poet Whole Soyinkak niosw n for excellent African literary scholarship viz. The Open Sore of a Continent: a Personal Narratoivf et he Nigerian Crises( 1996) in which he diagnoses the ills of his country, Nigeria. 244 no trace of Ama Ata Aidoo, Buchi Emecheta, Flora Nwapa, Grace Ogot, Bessie Head or any of the many other female African writers. African feminists accuse African philosophy of representing only the male voice of Africa. In scrutinising the exciting trends in African philosophy, the researcher laments the fact that this accusation seems to be spot on. The narrative trend, as well as the rest of the trends in African philosophy, represents only the male voice of Africa. Like Western philosophy, African philosophy also is characterised by the icon of logic: the male. 3.3.8 Alternative Trends in African Philosophy Although Oruka’s six trends were a first attempt to construct a map of the history of African philosophy, it was certainly not the last. A number of intellectuals have subsequently attempted to reconstruct Oruka’s six trends or approaches to African philosophy. Their attempts to reconstruct Oruka’s trends are insightful as it stands proof of the effort to deconstruct African philosophy. Outlaw (2002: 147) notes that all suggested notions of change “whether through the meaning(s) they give to the term, or on the basis of their interpretations of the works of others, or in terms of the actual efforts of those who do African philosophy the consequences are the same: the deconstruction of African philosophy”. Some of the proposed efforts to deconstruct the playing field of African philosophy are represented here by Mudimbe, Serequeberhan, Deacon, Imbo and Nkombe, and Smet: a) Mudimbe (Outlaw, 2002: 146-147) identifies three categories in African philosophy: • In the first category Mudimbe includes philosophical contributions in the wide sense. He includes ethnophilosophy and ideologico-philosopy (political philosophy) in this category. • In the second category he includes philosophy in the strict sense. Mudimbe includes texts of Eboussi-Boulagwa, Towa, Houtondji, Adotevi, Ngoma and himself in this category. 245 • The third category represents philosophical hermeneutics. Mudimbe includes texts of Atangaga, Njoh-Mouelle, certain texts of Eboussi- Boulagwa, Nkombe, Tsiamalenga, Leleye, Kinyogo and others in this category. b) Serequeberhan (1991: 3-23) argues that African philosophy should consist of only two approaches, namely: • The historical-hermeneutical approach which he views as representative of African traditions and African society, and • The scientific approach. Serequeberhan views the scientific approach representative of rational, scientific and analytical philosophy. c) Imbo (1998: 34) divides African philosophy into the following approaches: • Firtsly, the ethnophilosophical approache to philosophy as represented by Tempels, Kagame, Senghor, Griaule, Diop, Nyerere, Nkrumah and Mbiti. • Secondly, universalist definitions as represented by Wiredu, Oruka, Houtondji, Bodunrin and Gyekye, and • Tirdly, hermeneutical orientations as represented by Fanon, Serequeberhan Towa, Okolo, Mudimbe and Outlaw. d) Deacon355 (1998: 396-7) suggests African philosophy should be categorised as follows; • The historical approach, represented by ethnophilosophy; political philosophy and Negritude. 355 Deacon (2002: 98-99) raises a number of objec ttio nOsruka’s four-trend classification. Deacon fi nds Oruka’s trends static and she sees the trends if“faesre dnt aspects of the ongoing philosophical de bina t African philosophy”. She objects to Oruka’s suggioens that African philosophy followed a linear patahyw from ethnophilosophy to the professional trend laanmde nts the fact that Negritude is categorised wthieth National-Ideological trend. She finds Negritude i“masportant as the four trends”. 246 • The hermeneutical approach represented by African political philosophy; philosophic sagacity and African literary philosophy, and • The scientific approach represented by philosophical sagacity and professional philosophy. e) Nkombe and Smet (Outlaw, 2002: 146) suggest the following four trends for African philosophy: • Their first trend represents the ideological category and includes African Personality, Pan Africanism, Negritude, African humanism, African socialism, scientific socialism, Consciencism and authenticity. • Second, they include philosophy in traditional Africa. • Their third trend represents what Nkombe and Smet term the critical school. This trend represents the theoretical reactions against the first and second trends, and • They identy hermeneutics as a possible fourth trend. 3.3.9 A Feminist Perspective Whilst Oruka and other Africans are to be lauded for their contributions to the field of African philosophy, it is the researcher’s duty to present the bigger picture of philosophy in Africa. One cannnot portray only the views of professional African philosophers but should also consider the marginalised voices which represent African reality on the African continent. As the perception of African feminists will be dealt with in Chapter Four, it suffices to say that African philosophy is regarded by African feminists to be repressive and representative of only the male voice of Africa. African feminists (Imbo, 1998: 69) state: [T]he literature in African philosophy at present may lead to the conclusion that there are no [African] feminists. The keen observer would be hard-pressed to name more than one or two philosophers engaged with the African problematic whose focus could be considered feminist. That signals major problems for the 247 contemporary practice of African philosophy insofar as traditional belief systems enable, sustain, and perpetuate the silence of feminist voices. Whilst Western feminists and African philosophers have accused Western philosophy of portraying the voice of the European male, African feminists are coming to the fore and accuse African philosophy of portraying the voice of the African male. Imbo (1999: 137-138) states the following: There is an inherent bias in the very enterprise of defining African philosophy. In that patriarchal environment, additional burdens and restrictions fall on women … One must suspect that the standards adopted for defining African philosophy are inherently biased. African women therefore call for an examination of the tradition within African philosophy that runs from Tempels, the ‘father’ of African philosophy, to the modern professional philosophers. This places Western feminists in a peculiar situation. In their eagerness to oppose the oppressive, patriarchal, chauvinistic, racial analytical European male philosophers of the West, have they sided with the oppressive, patriarchal, chauvinistic, racist male philosophers of Africa? In the light of all the controversy the logical question to pose would be: is philosophy universal? 3.4 IS PHILOSOPHY A UNIVERSAL ENTERPRISE? Although the Greeks did distinguish between themselves and Barbarians, Rattansi (2007: 14) vouches that the Greek distinction had nothing to do with skin colour or physical appearance. Aristotle, father of systematised positive thinking, pronounced all human beings and therefore all races, capable of logical reasoning and assumed that philosophy as a universal enterprise, operated among all cultures356 (Sogolo, 2002: 244). 356 According to Sogolo (2002: 244), Aristotle’s “foarml logic has been described as the systematic formulation of the instinctive logic of common sen”.s 248 Western philosophy reiterates the Greek notion of philosophy as universal enterprise but simultaneously bars the Other from taking part in philosophical discourse. As universal philosophy, Western philosophy presents itself as a neutral philosophy yet makes statements on behalf of the Other’s humanity. Taking a neutral stance, however, does not prove Western philosophy’s neutrality. From the viewpoint of the Other, Western philosophy has never been neutral. As one of the marginalised voices excluded from participating in the universal exercise of philosophy, Africans maintain that they too are capable of philosophical thought. Western philosophy however, reasons that in traditional Africa “the mind of Africa is so intellectually malstructured that it does not accord with some presumed universal principles of reasoning. Such principles do not exist” (Sogolo, 2002: 244). Not only do Africans, viz. Sogolo and others, question the existence of “principles of reasoning” but the Western philosopher, Blackburn (2004), comes to the fore and makes the shocking revelation that no such principles or tools, exist. Whilst Western philosophy dominates the philosophical scene, presumably because its philosophers seem to possess the principles, or tools, to produce a philosophy in the strict sense, Blackburn (2004: xvii) discloses the following: “[W]hether we read Wittgenstein, or Kuhn, or Sellars, or Quine, or Goodman in the analytic tradition, or Nietzsche, or Freud or Foucault in the continental tradition, we keep tripping on the fact that there is no such authoritative set of tools, but only ‘suspicion’: militant scepticism about whether any such set of tools could exist”. Blackburn states that Western philosophy is in urgent need of an active methodology and an authoritative set of tools with which to react to a stimulus. Two frightful questions face us. Has one set of imaginary tools or methods dominated all modes of Western thought? Or has an imaginary set of 249 tools been ingeniously positioned as gatekeeper, a Cerberus357, between the Other and full humanity? Gratton’s observation on the ‘universal’ relationship between Western philosophers and professional African philosophers is also noteworthy. According to him, “the only African philosophers read in the West are those trained in the main lines of inquiry such as metaphysics and epistemology. In other words, Africans were taken to be raw materials for inculcation into Western modes of thinking, following earlier forms of military colonialism” (Gratton 2003: 61). Gratton notes that despite all the current philosophical talk of Western philosophy’s effort to engage the Other, its relationship with Africa has been one- way. In the light of the above, it is most satisfying to observe that certain professional African philosophers in South Africa, such as Ramose (2002{b}), argue along different lines from the African academics or professional African philosophers in the United States of America and Britain.358 In contrast with the general discourse of professional African philosophers, Ramose argues for “the liberation of African philosophy from the enslavement and dominance of the Western epistemological paradigm” (2002{b}: 37). Ramose denies that Westerners are superior to Africans or that they have an exclusive right to reason, and finds it morally questionable to expect of the African tradition to follow the Western tradition (2002{a}: 7). “The two philosophies are not and cannot be identical, since to be identical they must dissolve into one philosophy only” (Ramose, 2002{a}: 7). 3.4.1 Academic Reality 357 Cerberus was the three-headed dog from classirceaelk G mythology, with a mane consisting of serpe nts, who guarded the entrance to Hades. Cerberus preedv ethnet living from entering the underworld and wsoa s dreadful to behold that anyone who looked upon thuirmne d to stone. 358 It is interesting to note that according to Solonm eat al. (1996), professional Western philosoph[tehres philosophers denying the existence of African pshoilpohy] were once located in Cambridge (Englandt) , bu are now located in Cambridge (Massachusetts),b Puirtgtsh, Chicago and Berksley. 250 African philosophers contend that whilst Western philosophy professes its universal character, African students of philosophy in African universities have only been entertained on the superiority of Western analytic philosophy359 and that few African students are aware of the existence of African philosophy or its body of texts which constitute analytical thought on the continent. Shutte (1993: 6) posits that academic philosophy in South Africa has not proven its human worth, as philosophers have “taken refuge from the struggle in the streets and townships and shut themselves up in ivory towers”. He perceives the biggest problem with philosophy in the South African context to be embedded in the style or tradition in which most philosophers stand. According to Shutte (1993: 7), South African academics do philosophy in the European tradition, or what he calls the “Anglo-American analytical part of that tradition that became popular in Oxford and Cambridge” which is “deeply influenced by the philosophy of science and has abandoned metaphysics, and ethics of traditional philosophy”. Shutte (1993: 7) argues that academic philosophy in South Africa inculcates materialism, liberal-capitalism, utilitarianism and atheism and has lost touch with “experience, action and the world of values” and does not engage in “a systematic way with the most fundamental questions and issues of life, as these appear to the vast majority of humanity”. The decontextualised manner in which Western philosophy is taught by academics at African universities is a matter of concern to African philosophers such as Ramose, Wiredu and More. Ramose (2002{a}: 4) laments the fact that African philosophy is persistently being ignored and excluded from university curricula on the continent. According to Ramose, the deliberate exclusion of African philosophy denies Africans “the experience of being-an-African in Africa”. More (2004{b}: 155) is of the opinion that African philosophy was never on the agenda of white academic philosophers in South Africa.360 In the light of what 359 Kwame Appiah (1992) laments the fact that Afric asnese themselves and their situation, at least partially, through the lenses conferred on themth bey t ransmission of the European heritage. 360 More (2002: 155) states that neither of the twoilo pshophical journals published in South Africa has ever published a single piece of African philoso.p hHye finds the obvious reasons firstly to be “the 251 Ramose describes as the persistent exclusion of African philosophy from academic institutions, both Ramose and Wiredu (More, 2004{b}: 150) call for the liberation and transformation of African educational systems. Ramose (2002{a}: 4) argues that “there is neither a moral basis nor a pedagogical justification for the Western epistemological paradigm to retain primacy and dominance in decolonized Africa”. Ramose argues that the teaching of the African experience will be an act of liberation and that to evade it is to condone and perpetuate racism in academic institutions. The urgency to transform African academic institutions is also emphasised by p’Bitek. p’Bitek (1972: 7) defines the two tasks of African scholars as follows: firstly, “all false ideas about African peoples and culture that have been perpetuated by Western scholarship”361 should be exposed and destroyed and secondly, “the African scholar must endeavour to present the institutions of African peoples as they really are”. In the light of the above accusations made by Ramose, Wiredu, More and p’Bitek, one has to concur that little has been done to enlighten philosophy students in South Africa about “the experience of being- an-African in Africa”. For African academic institutions to teach philosophy from a Western context only, is to condone racial prejudice and negates the notion of Western philosophy as a universal enterprise. The burning question for any reader to answer is: Does such blatant discrimination exhibit reason? Teaching a contextualised African philosophy presents many challenges. Not only is African philosophy a political activist philosophy but its essence lies inter alia in the reclaiming and affirming of African reality, identity and humanity. African philosophy affirms the ancient history of the continent of Africa and deconstructs colonialism, imperialism and other ideologies through the European construction of the African as the abseo Olutther” and secondly that “Africans supposedlyk lac what both the European and philosophy share: raltiitoy”n. 361 Dlamini (1992: 598-599) deconstructs South Afnri claegal education and finds that it is self- contradictory and ideologically-based. Not only hleagsal education in South Africa ignored inequeaslit iof race, but also social end economic equality. Acicnogr dto Dlamini, South African universities’ currilcau emphasise what legal practitioners in the first ldw oarre required to know, viz. common law princsip loef Roman-Dutch law, procedural and commercial lawtl;e l iat ttention is given to African customary law. 252 deconstruction of Western philosophy. African philosophy affirms Otherness and puts Western philosophy in the spotlight. Teaching African philosophy will inevitably force academics out of the comfort zones of their ivory towers as they will have to face the African reality of teaching the “African-experience-in-Africa” to the African audience.362 Whilst exposing Western philosophy as a biased philosophy, it has to be acknowledged that African philosophy itself is biased. Like Western philosophy, African philosophy is biased, racist and sexist. Professional African philosophers’ definition of the term ‘African philosopher’ presents the racist agenda of certain African philosophers. Such racism is reiterated by many African scholars such as Imbo (2002: 165) when he states as follows: “African scholars have a pressing duty to challenge bad European and American white scholarship. It is imperative that the field of African philosophy does not become the lucrative cottage industry for whites to study Africans”. 3.4.2 The Universal Truth Whilst Western philosophy continues to reiterate its universal and inclusive nature, the Other have bombarded it with accusations to the contrary. As one of the marginalised voices of the Other, indigenous Africans accuses Western philosophy of discrimination and of privileging Western analytical thoughts over the collective religious, mystical thoughts of traditional African societies. African philosophers such as Ramose maintain that racism, and not logical reasoning, has marginalised traditional African thought. Hallen (2002: 70) too, is of the 362 The complexity of philosophy in Africa is best uislltrated by Mudimbe (1988: 185-186): “Today, philosophy and sociology journals and universityp adretments have become tlhoec i not only for academic exercises, but also for questioning the meaninpg oolift ical power and interrogating all power-knowgled systems. In the year 1968-1969, the humanist Ser ncglhoosed the University of Dakar to silence this questioning. Mobuto of Zaire, in 1971, moved thep aDretment of Philosophy and the School of Letteros tw thousand kilometers from the capital. Ahidjo of Cearmoon and Houphouët-Boigny in Ivory Coast considered themselves magnanimous for permittien ge xthistence of departments of philosophy, histonrdy a sociology they opposed. Kenyatta of Kenya felt lsaimrlyi and his successor closed the University onf yKae at the first social disturbance that challenged phoislitical power. These examples provoke a que:s tion where does one place philosophy and the socianl csecsie in Africa, if, as a body of knowledge and as a practice of essentially critical disciplines, thseeye m to be marginal in the power structure?” 253 opinion that “Western philosophy has failed to achieve its most radical and well- publicised goal – to achieve a ‘rational’ truth that transcends all of humanity’s cultures”. Western philosophy has failed to achieve its “most radical and well- published goal” because quite simply a rational truth transcending all humanity’s cultures is only achievable if stakeholders reach consensus. While the Other philosophise from the margins, there is no evidence of reaching consensus or universality. Outlaw (2002: 152) contends that “unity and universality can only be achieved via the consensus of discursive practices”. Deconstruction of the term ‘universal philosophy’ reveals that not only logical reasoning but liberalism itself, forms the philosophical basis of analytical philosophy. Philosophical liberalism stretches from Hobbes, Locke, the Enlightenment, Bentham, Mills, Nozick to Rawls. Although there were “deep philosophical differences between the social contract theory, and libertarianism, deontology and utilitarianism, as well as rights based and welfarist accounts”, liberals were united by the following core set of ideas: individualism and equality (Goldberg, 1993: 5). Although Western philosophy professes rationality, individualism, equality and its universal character, it denies its racialised history. According to Goldberg (1993: 10), “race became naturalised in the Eurocentric vision of itself and racist domination came to be normalised in the Western philosophical tradition”. Western philosophy’s history typifies Africans as illogical, pre-scientific peoples, and nullifies its liberal, universal claims of equality. Universal philosophy exclaims that “[r]ace is irrelevant, but all is race” (Goldberg, 1993: 5). One has to contend that not only rationality and racial prejudice but the very core of universalism, viz. liberalism, disqualifies traditional Africans from taking part in Western philosophy’s universal enterprise. Whereas liberalism upholds logic, individualism363 and equality, traditional African societies uphold a Manichaeism: 363 Stevenson (2002:30) gives the following factorast thave promoted individualism in the West over the centuries: “Western religion focuses on the induivaild relationship to God; Western philosophy froma toP l 254 communalism, African Religion and its discriminating “patriarchal structures”364 (Imbo, 1998: 68). Whilst Westerners proclaim universalism, Africans such as Senghor, Mutwa, Biko and others deny Western philosophy’s universal principles of reason. Sogolo (2002: 248) states that although Westerners and Africans seem to share the “same basic features of the human species”, there is a vast difference “in the ways the two societies conceive of reality and explain objects and events. This is so because they live different forms of life. And it is for this reason alone that an intelligible analysis of African thought demands the application of its own universe of discourse, its own logic, and its own criteria of rationality”. The West’s philosophical alienation of Africans is palpable in 2008 when Ramose (2002{c}: 607) exclaims: “you are still in the renaissance, we have long made the transition to man as a rational animal. We have established ourselves in the Age of Reason”. The researcher, a female Other, contends that firstly, a universal philosophy has never existed, and secondly, that it has become obsolete in the age of post- modernist philosophy. Postmodernism365 represents the philosophy of twentieth century thinkers such as Lyotard, Foucault, Kierkeraad, Nietzsche and others who negate the values of the Enlightenment; have a distrust of Western scientific thinking and logical reasoning, and a “suspicion of the notion of objective to the seventeenth century focuses on the indivl’isd urealationship to ideal truths; Western sciencaes h largely focused on the individual’s relationship p thoysical laws of nature; Western capitalism hacsu sfoed on the individual as an economic unit; and Amer icdaenmocracy sees all individuals as equal and free rather than connected to each other in any spe wcaifiyc”. 364 Maurier (cited by Teffo et al., 2002: 173) explsa itnhe difference between Western and traditional African societies as follows, “The west has use din adnividualistic and objectivist framework, and t hhaas given it a civilization where the individual is poewrful, where liberty is a good that is absolute,e wreh there is room for the play of free enterprise, where nstcifiiec and technological progress covers the wowriltdh achievements. In Africa things are quite otherw sisinec, e African civilization is characterized aboavlel by solidarity, communitarianism, traditionalism, pcairptiation”. 365 The term postmodernism was coined by Lyotard wshiogn “aled the rise of a new subjectivism and a distrust of human reason as the route to humana tsioanlv” (Law, 2007: 341). 255 knowledge or a single truth”366 (Law, 2007: 43). Wittgenstein’s (1968) belief that truth is contextual is confirmed by Gadamer (1975) who claims that no pure objective truth exists. Gadamer views truth contextually and posits that the belief systems of all humans are rooted in language and history. Like Law, Wittgenstein and Gadamer, postmodernism challenges Western scientific thinking and negates the idea of a single objective truth.367 Postmodernism questions the foundational concepts of Western philosophy and challenges the idea of one reality for all humanity. It objects to the so-called universal fundamentals of philosophy which originated with Aristotelian logic. The fact is, Western philosophy’s principles of rationalism, universal values and individual autonomy have excluded and marginalised the Other. Postmodernism holds that there is no single absolute truth; there are only philosophies (Soloman et al., 1996: 300). In contrast to Western philosophy’s exclusive approach to philosophy, postmodernism calls for an inclusive approach through deconstructing the original Greek ideal of philosophy and reconstructing all of humanity’s experiences. “[A]fter twenty-five centuries of trying to move away from primitive animism to a more mechanical, more scientific view of the world, we have come around full circle, back to beliefs that are shared by the ancient animists and many so-called primitive peoples” (Soloman et al., 1996: 299). Does this signal freedom and a new dawn for ubuntu: traditional Africa’s ‘pre-scientific, collective, religious philosophy? 3.4.3 Is there an African philosophy? To question the existence of African philosophy is to perpetuate racial prejudice. After scrutinising some of the volumes of texts of African philosophy one has to contend, with African philosophers, that there is an African philosophy! African philosophy is a current philosophical reality. African philosophy exists and 366 Nietzsche viewed the Western “idea of truth asis ag udise for power, and rationality as an imposi toiof n human distinctions on an irrational world” (Law,0 270: 43). 367 Critical theory rejects the claims of classical sWteern philosophy. Critical theorists claim thesr en oi such thing as objective truth, as all truth is tcered aby human beings. 256 reaffirms the history, dignity, humanity, values and experience of Africans in Africa as a philosophical people. There seems however, to be neither a single definition of African philosophy nor a single or unique African philosophy. There is also a Western perception that African philosophers and African philosophy are facing a crisis of relevance. Higgs and Smith (2007{a}: 83) maintain that African philosophy is a Western hybrid as “all they [professional philosophers] succeed in doing is to imbibe ideas from, or contribute to, a philosophical tradition they can hardly claim as their own”. According to African philosophers, African philosophy must be produced by an African, be universal in character and philosophical in nature. “By philosophical in nature is meant that it should be related to the core ideas of Western philosophical tradition, such as epistemology, metaphysics, logic, philosophy of language, and philosophy of science. In this sense, any articulation of African philosophy could not be philosophy in the real sense, except if it were to come out as an extension, or better still, a copy of Western philosophy”368 (Higgs et al., 2007{a}: 84). African traditionalists view philosophy as unique and culture-specific, and oppose the universalist definition of professional African philosophers. Whilst traditionalists argue that a unique culture-specific369 African philosophy exists, professional African philosophers deny these pre-scientific mystical claims and vouch for African philosophy’s analytical methodology as part of universal philosophy. As a professional philosopher, Oruka (2002{a}: 120) shares the opinion that African philosophy is not uniquely African but is rather a “corpus of authentic philosophical ideas by Africans or in the African continent”. Oruka sees African philosophy as a “discipline that employs analytical, reflective and rationative methodology” which is not seen as a ‘monopoly of Europe or any one race but as an activity for which every race or people has a potentiality”. Oruka views professional African philosophy as a universal enterprise which employs 368 Higgs et al. (2007{b}: 49) critiques African phsilophy for: not challenging power structures; not accepting women as men’s equals; not encouragintigca cl rthinking; ignoring the needs of the indiviadlu person and tolerating cruel superstitious prac,t ivciezs the burning of witches. 369 Gyekye (1987) maintains philosophy is a culturhael npomenon grounded in cultural experience. 257 critical, reflective and logical inquiry. He does not entertain the traditionalist view which experiences African philosophy as a single conceptual framework or unique African way of thinking. The collective African philosophy of African traditionalists is considered to be “basically intuitive, mystical and counter or extra rationalistic” (Oruka, 2002{a}: 120). Oruka challenges anyone who professes the uniqueness of African philosophy to demonstrate both the nature and uniqueness of their African contribution. The researcher takes up Oruka’s challenge to investigate whether there is any unique collective African philosophy in traditional African socieities. As professional African philosophers have vouched that there is no unique African philosophy in the analytical approach to philosophy in Africa, the researcher will turn to the mystical, emotional, intuitive thoughts of traditional African societies. Contrary to what Westerners and African professional philosophers believe, there is no truth “in the belief that after colonialism, traditional Africa no longer was in existence” (Oruka, 1991: 18). This quest leads the researcher to investigate the essence, the crux, the root of African philosophy – the philosophy of ubuntu.370 3.5 CONCLUSION The 1994 South Africa Constitution landed the courts with an interesting obligation. South African courts have to promote all the values in South Africa which underlie an open and democratic society based on human dignity, equality and freedom. Not only has the Constitution placed Western and African philosophy and jurisprudence on equal ground for the first time in history, but courts also have to promote African law and legal thinking as part of the source of values which underlie our democracy. The court faces a difficult task for the following reasons: firstly, African sources suggest that customary law does not 370 Tutu viewsu buntua s thee ssenc eof African philosophy (Wilkinson, 2002: 356); Rasmeo (2002{b}: 40) describesu buntu as ther oot of African philosophy; and Rhoederer (2004: 442s) cdriebesu buntu as the crux of African philosophy . 258 represent African law; secondly, courts have to deliberate African values whilst very little research has been done on the topic; and thirdly, African feminists leave courts with the suspicion that ubuntu does not represent the values of either the Constitution or the Bill of Rights. Since the inception of Plato’s Academy, Western philosophy was re-engineered into an exclusive academic enterprise for European males to ponder on life in their ivory towers. They and they alone were seen as the custodians of reason. Aristotle’s maxim on rational animals conveniently ignored, the Other were categorised as bereft of logic. Notwithstanding this philosophical apartheid, Western philosophy is observed as a universal enterprise, a single truth for all, philosophy anyone can do, provided you possess the skills to philosophise in the strict sense. The fact is, Western philosophy’s universal truth does not apply to all humanity. The door to Western philosophy’s exclusive club was opened to a few African males who submitted themselves to be taught the skills of philosophy in the strict sense. Not only were Western philosophy’s skills cloned into them, but unfortunately also its racial bias. Instead of being grateful after acquiring the tools for philosophy, they bit the very hand that fed them. African philosophers are now acclaimed professional philosophers of Africa, and have barred all but black Africans, from taking part in their philosophical stake: African philosophy. But what they practise is not African philosophy. They are merely perceived as (black) Africans fortunate enough to philosophise under the banner of Western philosophy. African philosophy is Africa’s postcolonial response to the Western belief of Africa’s inferiority: a philosophy exclaiming its disillusionment with European imperialism. African philosophy is Africa’s philosophical response to centuries of slavery, colonialism, neo-colonialism and apartheid suffered at the hands of Europeans. It is Africa’s philosophical response to uncountable injustices effected by Western philosophy’s racist, oppressive philosophical agenda. 259 The father of Western philosophy, Plato, defined philosophy as an individual critical enquiry of the mind. It is therefore impossible for any group to philosophise; doing so would be an open denial of Plato’s maxim that the multitudes cannot philosophise. In 1943 another father, Father Tempels, turned the tables on Western philosophy when he announced his discovery of a unique communal philosophy amongst the Baluba of the lower Congo, in Africa. Tempels’ Bantu Philosophy stands testimony to the fact that traditional Africans are human and capable of reason too. Tempels revealed the Baluba’s collective mythical Bantu philosophy, based on the philosophy of ‘vital force’. The Baluba’s folk philosophy did not represent individual thought, but propounded the philosophical ideals of the entire indigenous community: Plato’s worst nightmare. Because the Baluba’s vocabulary and language did not hold up to Aristotelian and Thomistic thinking, Tempels transcribed their thoughts into what Nkrumah called ethnophilosophy. Ethnophilosophy sparked a heated international debate in philosophical circles; a storm still raging between philosophers in the Western tradition and African philosophers on the one hand, and professional African philosophers and African traditionalists on the other. How can the mystic thoughts of a pre-scientific communal people constitute philosophy? Thanks to the Kenyan philosopher, Oruka, the discourse on African philosophy was structured. Oruka identified six trends in African philosophy of which only ethnophilosophy represents the collective, folk philosophy, or ubuntu philosophy, of traditional African societies. Apart from Tempels’ Bantu Philosophy; Senghor’s Negritude; Kagame’s La Philosophie Bantu-Rwandaise de l’être; Mbiti’s African Religion and Philosophy; Abraham’s The Mind of Africa; Nkrumha’s Consciencism; Griaule’s Coversations with Ogotemmeli and others, also constitute ethnophilosophy. In spite of the fact that Senghor, Nyerere, Kagama, Nkrumah, Tempels, Hallen and others attest to ubuntu’s collective belief system in traditional African societies, professional African philosophers question ethnophilosophy’s methodology and label it as a pre-scientific and outmoded 260 traditional belief system: a myth irrelevant in modern Africa. Have South African courts saddled themselves with a dying dinosaur by insisting that these outmoded traditional beliefs be taken into account to nurture values for a new South Africa? Professional African philosophers are adamant that philosophy should be critical, argumentative and not based upon the values and beliefs of Africa’s indigenous cultures. Ethnophilosophy, or ubuntu, represents the collective worldview of either a specific African community or traditional African societies as a whole. As ethnophilosophy, ubuntu forms part of the oral tradition and embodies traditional wisdom, history, tradition, customs, myths, songs, dances, folktales, stories, beliefs, proverbs, rituals, religion and values. The oral tradition is characteristic of the African continent and is a meticulously preserved tradition where every ancient word or skill is guarded and passed on from generation to generation. Little of the oral tradition is however revealed to strangers. It is suggested that ubuntu’s moral principles are derived from the Egyptian principles of Maat, as evident in Yoruba moral epistemology. African sources maintain that Africans in traditional African societies possess reason, but that it is a different type of reason or logic than that experienced by Europeans. Traditional Africans do not comprehend reality through their intellect but through their senses, in the form of intuition and emotion. Many sources agree that intuition and emotion underlie ubuntu reality. Ubuntu reality is dualistic and involves the visible and invisible universe; it does not compartmentalise the natural and supernatural. Problem solving in communitarian African societies involves interaction with the ancestors who are the custodians of knowledge. In contrast with European logic which is ‘merely’ a scientific method, ubuntu reality is a pre-scientific method which applies intuition, emotion and the supernatural to solve problems. In Africa, life is the ancestors. Traditional African people are viewed as very religious; so much so that it is difficult to distinguish 261 between religion and philosophy. African traditionalists believe African philosophy represents the unique collective reality of communitarian African societies which is irreconcilable with Western realities notions of individualism, capitalism and analytical methodology of philosophy. Ubuntu philosophy is portrayed in the Xhosa proverb umuntu ngumumtu ngabantu, which means “I am because we are and since we are, there I am”. This ubuntu notion acknowledges that a person can only be a person through other persons and opposes Western liberalism’s atomistic existence. African traditionalists oppose the idea of a universal philosophy as prescribed by African professional philosophers, because it undermines the unique notion of ubuntu. According to Western and professional African philosophers, philosophy is an analytical, critical, reflective, and logical enquiry. They view ethnophilosophy, or ubuntu, as an oral, non-rational, pre-scientific intuitive, emotive and religious reality which differs profoundly from philosophy in the strict sense. Professional African philosophers perceive ubuntu at best as a folk philosophy or a form of religion. Professional African philosophers negate the idea that a group can philosophise and see ethnophilosophy as nothing more than Tempels’ ideological myth. African feminists too, bring damning critique against ethnophilosophy or ubuntu philosophy. According to African feminists, African philosophers are concentrating so hard to disprove the unique collective belief system of traditional African societies that they ignore the dehumanising and oppressive customs, taboos and traditions characteristic of this patriarchal worldview. Oruka’s sage philosophy defines the difference between folk and philosophical sages. Whilst a folk sage is regarded as a master of didactic wisdom, a philosophical sage is perceived as an expert at didactic wisdom. Sage philosophy proves that rational thought prevails in traditional African societies. Not only Westerners, but also traditional Africans too possess the ability to reason. 262 Political philosophy highlights the importance of communal life, traditional African values and African Religion in communitarian societies. Nkrumah’s Ujamaa and Nyerere’s Consciencism emphasise the existence of a coherent communal philosophy which inspired their followers to rekindle eroded traditional African values. Like ethnophilosophy, this trend affirms the existence of collective values, beliefs and a communal philosophy amongst indigenous Africa’s. Senghor’s Negritude affirms traditional African values. As an ardent opponent of colonial rule, Senghor demonstrated to the European public that Africans are human too. In his quest to prove the existence of African culture and values he confirmed the existence of a communal value and belief system within traditional African societies. Whilst the hermeneutical trend attempts to deconstruct and reconstruct the damage done to Africans by Western hegemony, the literary trend confirms that African reality consists of a collective philosophy which aspires to rekindle its collective values and beliefs. In an age of postmodernity the foundational concepts of Western philosophy are scrutinised. Not only are reason, logic and universality dissected, but the imaginary tools of Western methodology are questioned. Man cannot live by reason alone: the Others utilise logic, intuition and emotion on their path to wisdom. This study is proof of the fact that a universal philosophy does not exist. As long as philosophical apartheid prevails there will only be different philosophies. It is evident that African thought and legal thinking does not only consist of traditional African thinking or ubuntu thinking. Professional African philosophers and African feminists oppose the pre-scientific, mystic thoughts entertained in traditional African societies. African feminists disclose that ethnophilosophy or ubuntu reality harbours patriarchal structures in African societies that oppress and marginalise African women. 263 264 CHAPTER FOUR UBUNTU: THE ROOT OF AFRICAN PHILOSOPHY 4.1 INTRODUCTION The 1996 South African Constitution imposed a duty on South African courts to promote values that underlie an open and democratic society based on freedom, equality and human dignity.371 With the incorporation of the Bill of Rights in the 1996 Constitution, South Africa embraced a culture of human rights to protect the human rights of the individual against the government.372 In S v Makwanyane373 it was argued that “recognition should be given also to African law and legal thinking as part of the source of values which sec. 35 of the 1993 Constitution requires Courts to promote”.374 South Africa’s Black Consciousness leader, Steve Biko (2007: 167), said the following: “We reject the power based society of the Westerner that seems to be ever concerned with perfecting their technological know-how while losing out on their spiritual dimension. We believe that in the long run, the special contribution of Africa will be in this field of human relationship. The great powers of the world may have done wonders in giving the world an industrial and military look, but the great still has to come from Africa – giving the world a more humane face”. Biko rejected most Western values since he regarded them as foreign to African values. He perceived Western values as the root cause of the destruction of African values and Africa’s most cherished belief: ubuntu. Like Biko, Dhlomo 371 See section 39 of the Constitution of South Af,r i1c9a96. 372 The United Nation’s commitment to human rightsm iasd e clear in the Preamble to the United Nations Charter which affirms ‘faith in fundamental humaignh rts, in the dignity and worth of the human per, sionn the equal rights of men and women’. Article 55 goebsli the United Nations to promote ‘universal rets pec for, and observance of, human rights and fundaml efrneteadoms, for all without distinction as to ra cse,x, language or religion’. 373 1995 (3) SA 391. 374 Ibid at 393. 265 (cited by Broodryk, 1997{a}: 33) regards “ubuntu’s greatest strength as that of bringing an indigenous, purely African, philosophy of life. It is not imported from Eastern or Western Europe: it is something out of Africa and all African languages throughout the continent do have a word that defines the person (umuntu)”. Biko saw ubuntu as the new world philosophy which would emerge from Africa to bring freedom, understanding and peace to the world. Biko, Broodryk (2007), Bhengu (2006), Mbigi (1997) and many others share Biko’s vision on ubuntu as an alternative universal or world philosophy. Broodryk (2005: v-vi) is adamant that “[t]he time has arrived for Ubuntu to be exported to the international arena … Although Ubuntu philosophy has its origin in Africa as a practical worldview that determines everything a man does and thinks, and the way a man acts, the basic values of Ubuntu are so universal that the whole world could apply them to all aspects of life, management included”. Bhengu (2006: 101-102) describes ubuntu as “Africa’s great gift to the global world of thought … ubuntu advocates a renewed concern for the human person… [gives] a new and profound meaning to the debate on human rights … and recommends the same spiritual resources as remedy for the ills of the wider world”. Ubuntu, Africa’s ancient mystic philosophy, formulated even before the discovery of the Christian Ten Commandments (Bhengu, 2006; Broodryk, 2002), is proposed as a soothing balm for a world ripped apart by a philosophy of rational or universal truth.375 The word ubuntu has been so commercialised that every South African has taken note of it; most businesses associate with it, either as part of their brand name or in its pledge to customer service. Umuntu ngumuntu ngabantu376 is said to represent Africa’s “humanness”, its brotherhood, its ethic of care. But where is ubuntu, Africa’s “humanness”, its brotherhood, its ethic of care in South Africa, Uganda, Zambia, Zimbabwe, the Democratic Republic of the Congo, Kenya, 375 Outlaw (2002: 141) states that Western philososp hdye’ep-rooted project is to “condition by a prinlec ip of discrimination, the basis of which is the ra/ceiathlnic/cultural identity of the voice in which iist articulated: not all persons or peoples are tho utog hsthare the level of development and/or pote ntoti al realize rationality, especially at its highest llesv”.e 376 An often quoted line from John Mbit i’Asfrican Religions and Philosop,h my eaning: “I am because we are, and since we are, therefore I am”. 266 Darfur, Rwanda, Algeria, Liberia, Sierra Leone?377 Or does ubuntu apply only to the clan or the tribe, and not to strangers or outsiders, as M’Baye (1974), Nyirongo (1997), Turaki (1997), Mutwa (1998; 555-556), Imbo (1999) and Oduyoye (2001: 95) suggest? The question then: what is ubuntu?378 According to Ramose (2002{b}: 50-51), the wholeness of ubuntu can only be understood in terms of three interrelated dimensions or a “inseparability trinity” (2002{b}: 122). The first dimension is that of the living; the second dimension those who have passed away from the living through death; and the third dimension is that of the yet-to-be-born. “The ontology of individable things is thus the basis of ubuntu metaphysics”.379 If the reader cannot comprehend Ramose’s explanation of ubuntu, let us try Mbigi’s and Broodryk’s. Mbigi’s (1997: 30; 2005: vi) explanation gives ubuntu as: “our way of life, our collective solidarity, born out of our kinship culture and it is the heart and soul of our existence … The cardinal belief of Ubuntu is that a man can only be a man through others. In its most fundamental sense it stands for personhood and morality”.380 Broodryk (2002: 139) describes ubuntu as “an ancient philosophy and worldview with its roots anchored in traditional African mystic”. One should not despair, for Tutu (1999: 34), Koka and Teffo (cited in Bhengu, 2006: 46) and Mokgoro (1998{b}: 49)381 find ubuntu a very difficult 377 How reconcileable isu buntu with the notion of ethnic cleansing and violent fcliocnts in Africa? See Kaarsholm’s (2006V) iolence, Political Culture & Development in Afri.cOaxford: James Curry. 378 Broodryk (2007: 60) mentions that if you ask So Autfhricans aboutu buntu,t hey will immediately refer you to how their fathers and the fathers of thaetihr ef rs, and their fathers before them grew up. 379“Umuntu cannot contain ubuntu without the intervioen t of the living-dead .The living-dead are important to the upkeep and protection of the fay moifl the living. This is also true with regard thoe t community at large. For this reason, it is impevrea ttihat the leader of the community together whiteh t elders of the community must have good relationtsh wthi e living-dead. This speaks to the ubuntu understanding of cosmic harmony. It must be preesde ravnd maintained by translating it into harmon ay lil n spheres of life. Thus African Religion, politicsd a lnaw are based on and suffused with the exper ieancde concept of cosmic harmony. Religion, politics aanwd lmust be anchored upon understanding of the cso smo as the continual strife for harmony … And thish ise tbasis for consensus as the distinctive featfu ureb uontu philopraxis. Peace through the concrete realiz aotifo jnustice is the fundamental law of ubuntu phoilpohsy” (Ramose, 2002{b}: 51-52). 380 Mbigi (2005: VI) maintains “the most pervasive a fnudndamental collective experience of the African people is their religious experience”. 381 Mokgoro (1998{b}: 49) laments the fact thuabt untu is not easily definable: “Because the African worldview is not easily and neatly categorized adnefdin ed, any definition would only be a simplifiicoant of a more expansive, flexible and philosophically amcmcoodative idea”. 267 concept to explain in a Western language. Bhengu (1996{a}: 10) states that “after so much has been written [on ubuntu], the concept still is an enigma. That is why we who own the word and the concept shudder when we behold: fools rush in where angels fear to tread”. Perhaps the truth about ubuntu lies in what Mutwa (1998: 555-556) suggests, viz. that much of ubuntu has been “veiled in a heavy kaross of mystery”; that “[t]he High Laws of the Bantu forbid [Africans] to go into too much detail”. But we all need to know what ubuntu entails382, because ubuntu forms part of South Africa’s new rainbow jurisprudence.383 Chapter Four deconstructs the concept of ubuntu as the root of African philosophy. This chapter deals with the following: • Introduction. • Background. • The South African Constitution and ubuntu. • South African case law and ubuntu. • Ubuntu: a definition. • Ubuntu: Africa’s philosophy of life. • Ubuntu as African communalism. 382 Moellendorf et.al. (2004: 445) accentuate the icinatre and expansive nature of the philosophy of ubuntu, and find it not surprising that attempts to offlilcyi aincorporate it into formal jurisprudence have been only partly successful. “Rather than recognngi zuibuntu as a philosophy, courts and commentators have attempted to treat it as a uni-dimentionaul ev.a Al ccording to them, it has led to commentatonrds a courts emphasizing only those aspects of ubunttu f ith waith the purpose for which it is invoked, wh ithe result that it is often appropriated in a piecem aenadl inconsistent fashion”. 383 See Cockrell’s Rainbow Jurisprudenc e(1996). “[T]he absence of ari gorous jurisprudence of substantive reasoning for what we have been gisv ean q iuasi-theory so lacking in substance that pI opsreo to call it rainbow jurisprudence”. Cockrell (19961:1 ) gives the following examples of this rainbow jurisprudence: InS v MakwanyaneM, okgoro J par. 307 says the following: “In inteertpinr g the Bill of Fundamental Rights and Freedoms … an all incluvsaivluee system, or common values in South Africa, can form a basis upon which to develop a South Africhaunm an rights jurisprudence”. Sachsi bJid, par. 362, says the following: “This evaluation must neceslys atraike place against the backdrop of the value s of South African society as articulated in the Conustitoitn and in other legislation, in the decisions o oufr courts and, generally, against our own experienacse sa people”. According to Cockrell, “rainbow jurisprudence beguiles us with its lack of subseta anncd denies the existence of deep conflict inr ethaelm of substantive reasons, assuming as they do thati tcuotinosntal adjudication is all about normative harnmy o rather than normative discord. My point is that sstuabntive reasons are difficult reasons; they reeq huairrd choices to be made between moral and political evsa lwuhich are inherently contestable and over which rational people will disagree”. 268 • Ubuntu as African Religion. • Ubuntu values. • Ubuntu as justice. • Ubuntu as law. • The voices of the female other. • Where is ubuntu?, and • Conclusion. The 1993 and 1996 South African Constitutions urge South African Courts to promote values that underlie South Africa’s open and democratic society based on freedom, equality and human dignity. In S v Makwanyane the Constitutional Court contended that African law and legal thinking had to be included as part of the source of values required by the Constitution. In an attempt to deconstruct the meaning of ubuntu, case law of the Constitutional Court and ordinary courts were scrutinised for a definition and meaning of the word. Tutu (1999), Mokgoro (1998{a}; {b}) and Bhengu (2006) argue ubuntu cannot be defined in a European language. According to the courts, ubuntu means “humanness”, “African communality” and “African morality”. As courts in general do not deliberate the values of ubuntu, a definition of ubuntu was sought in extra-legal sources. African sources, viz. Broodryk (1997{a}), Ramose (2002{b}), Turaki (1997) and others emphasise that ubuntu reflects Africa’s unique collective philosophy of life. As ethnophilosphy, ubuntu reflects the shared value and belief system of Africans across the African sub-continent. As collective philosophy, ubuntu encapsulates concepts such as African communitarianism, the extended African family, traditional African values, African Religion and group solidarity. Ubuntu does not represent Western individualism as the African individual is not ipso facto regarded as a person. Personhood can however be obtained through different rites which shape the African individual into personhood. 269 Ubuntu is generally defined as “humanness” or “morality”. Oduyoye (2001), Oruka (2002{b}), Mokiti (1988), Mbiti (1991), Ramose (2002{b}), Mazrui (2002) and others acknowledge the inextricable link between ubuntu and African Religion. The African spirit world, which includes God, ancestral spirits, nature spirits and evil spirits, defines the African worldview. Ubuntu’s values are shared by all traditional African societies. Gyekye (1996), Oruka (2002{b}) and Mbiti (1991) state that all African values are derived from African Religion. Although the Constitutional Court argued in S v Makwanyane that ubuntu values are universal, Mbigi (2005); Broodryk (2007); Koka and Teffo (cited in Bhengu, 2006), Ngubane (2006) and others confirm the dilemma that ubuntu experiences with hermeneutics. Not only are ubuntu values perceived as more intense than Western values but also unique. Ubuntu as justice reveals that traditional African justice is derived from the ancient Egyptian moral principles of Maat. The role of the elders as advisors, councillors, judges and mediators of justice will be discussed. It will be argued that ubuntu’s concept of justice differs from the Western concept of justice. According to De Tejada (1979), M’Baye (1974) and Ramose (2002{b}), traditional African systems of law are similar to one another. Ngubane (1979), Bhengu (2006) and Ramose (2002{b}) maintain ubuntu serves as constitutional law to African societies. Ramose (2002{b}) posits that ubuntu law, like ubuntu justice, is a continuation of African Religion. Ubuntu law applies to the group. Ubuntu law is applied according to a person’s status or place in the communal hierarchy but does not apply to the stranger. As in the case of ubuntu justice, it will be argued that ubuntu law differs from the Western concept of law. With regard to the Constitution, Western philosophy and jurisprudence oppose ubuntu reality. Whilst African sources generally portray ubuntu as an idyllic philosophy which respects equality and human dignity, African feminists bring damning evidence that ubuntu is not only entrenched in patriarchy but violates human rights of 270 females in traditional African societies. Not only is ubuntu not in line with international and regional human rights mechanisms but in terms of the South African Constitution, it does not uphold the Constitutional values equality and human dignity. In spite of numerous sources decrying the loss of ubuntu, African feminists testify that female oppression continues under ubuntu’s oppressive patriarchal philosophy. It will be argued that courts have to start deliberating ubuntu values as a source of values of South Africa’s open and democratic society. 4.2 BACKGROUND In 1999, President Mbeki urged South Africans to undergo a paradigm shift and to embrace traditional African values and in particular, ubuntu.384 President Mbeki’s Vision, Mission, and Objectives of the African Renaissance385 demand “a shift in the consciousness to re-establish our diverse traditional values and in particular ubuntu, embracing the individual’s responsibility to the community and the fact that he is, in community with others, the master of his own destiny”. Mbeki links ubuntu to African communitarianism, the extended African family and traditional African values. Whilst Mbeki connects ubuntu with traditional African values, Broodryk (2007), Bhengu (1997; 2006), Deputy President Mlambo- Ngcuka (2006:4) of South Africa and others, define ubuntu as the ancient value system386 of traditional Africa. Nyerere (1975: 28) describes ubuntu as a collective philosophy propounding communal ownership, sharing and equality for all men. It can therefore be deduced that ubuntu is generally associated with traditional African values and a communitarianism. Bhengu (1996{a}: 1) states that since time immemorial, Africans lived by ubuntu philosophy – until European 384 Ramose (2002{b}: 7) argues that “the time has locnogme for Africa to abandon the path of mimetic philopraxis – the uncritical imitation of the lifoef non-Africans – and pursue the route of the anuttihc e liberation of the continent”. 385 With the wave of xenophobic attacks which havee spweed trough South Africa the Mail & Guardian (2008, May 16-22: 30) maintains “it is clear ther iAcaf n Rennaissance remains a pipedream when South Africans kill and rape their African brothers anisdt esrs purely for not being South African”. 386 Morals are values (Higgs et al., 2007{a}: 8). 271 colonialists became the “custodians of the Law” and eroded it. As Biko, Bhengu and many others maintain that traditional African values stand in contrast to Eurocentric values387, ubuntu seems to be part and parcel of traditional African existence. The ancient African concept of ubuntu confronts not only European and professional African philosophers, but also Eurocentrism with its notions of human rights, individualism, capitalism, and universal values, to embrace the Afrocentric perspective of group rights, duties and its accompanying traditional African value system. 4.3 THE SOUTH AFRICAN CONSTITUTION AND UBUNTU The Postamble of the South African Interim Constitution388 provided that: “The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross human rights, the transgression of humanitarian principles in the violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for revenge, a need for ubuntu but not for victimisation”. Although the 1993 Constitution did not define what is meant by the “need for ubuntu”, it can be deduced that the concept of ubuntu seeks reconciliation among all South Africans. Section 35(1) of the Interim Constitution urged South African courts389 to promote the values which underlie South Africa’s open and democratic society based on freedom, equality and human dignity. The Constitution urged courts to promote not only Western values underlying South Africa’s open and democratic constitutional state or rechstaat390, but also traditional African values based on freedom, equality and human dignity. The Interim Constitution’s Postamble stated that there is a need in South Africa’s new dispensation for understanding, but not for revenge; a need 387 Chapter Two brings evidence that Eurocentric vsa loupepose traditional African values. 388 Constitution of the Republic of South Africa, A2c0t 0 of 1993. 389 Section 4(1) declares the Constitution the ‘super elamw of the Republic’ which binds all legislati ve, executive and judicial organs of the State, s 4(2). 390 See the Preamble of 1993 Interim Constitution. 272 for ubuntu but not for victimisasion. The 1993 Postamble supposedly entrenched the values to which the South African Constitution, Act 108 of 1996391 must adhere. Unlike the Postamble of the 1993 Interim Constitution which referred to the concept of ubuntu, the 1996 Constitution makes no reference to ubuntu. Whether the South African 1996 Constitution deliberately omitted the concept of ubuntu in its preamble392, or whether it assumed that the values of the Interim Constitution are entrenched in the final Constitution, sec. 39 of the 1996 Constitution imposes a duty on courts to promote the values underlying our open and democratic society based on freedom, equality and human dignity. The 1996 Preamble emphasises the establishment of a society based on democratic values, social justice and fundamental rights which should promote values that underlie an open and democratic society based on freedom, equality and human dignity. The Bill of Rights, Chapter 2 of the 1996 Constitution, protects first, second and third generation rights.393 As the Bill of Rights is based on Western individualism, its flexibility in terms of accommodating ubuntu will hopefully not result in a legitimacy crisis. Vellem (1998: 129) sees the Bill of Rights as a test for the South African Constitution. He argues that the weakness of the Bill of Rights “lies in the fact that it is based on individual ethics. On the ground of its hegemonic claim of individualism, it fails as a measuring rod for human rights. Society becomes morally incidental and decision is left to the individual. [Individualism] … runs against the belief of missions of Africans who believe that umuntu ngumuntu ngabantu/ motho ke motho ka batho. Ubuntu ethics does not demarcate between what is individual ethics and the welfare of the entire society”. Whilst Vellem is not optimistic that the Bill of Rights will be able to accommodate traditional 391 Constitution of the Republic of South Africa, A1c0t 8 0f 1996. 392 Moosa (2000: 131) posits “[t]he omission uobfu ntu must therefore mean that the Constitution was de- Africanised in the re-drafting process. With thhaet treligio-cultural values of African people ares oa l devaluated. Thus the desire to formulate a corael lseygstem which encapsulates the multiple valuete smys in South Africa was not necessarily accomplishe tdh ein final Constitution”. 393 Third generation or collective rights have beesne artsed by developing countries. Third generatiognh trsi feature in the African Charter on Human and Peosp Rleig’ hts. 273 African values, or ubuntu, Roederer et al. (2004: 439) has a more positive outlook on the South African Bill of Rights and its accommodation of traditional African jurisprudence. Roederer et al. are of the opinion that some of the values underlying the Bill of Rights reverberate with both Western and traditional African jurisprudence whilst others correspond more with one than the other. Because of the Western ideological bias towards meaningful engagement with African societies, “the content of traditional African thinking has thus far been comparatively neglected in legal academic writing” (Roederer et al., 2004: 439). The fact is, the 1993 Interim Constitution facilitated an arranged marriage between Western and traditional African value systems. Through a process of reconciliation394 it fused not only Western and African philosophy, but also Western and African jurisprudence.395 After more than five hundred years of oppression and injustices suffered by Africans, as a direct result of the clash between the opposing scientific and pre-scientific philosophies of life, Western liberal values are confronted to fuse with traditional African values. Ubuntu has been injected into the mainstream of South African jurisprudence (Lemmer, 2000: 143). Section 39(1) of the 1996 Constitution assures us that South African courts promote the values underlying our new open and democratic society based on freedom, equality and human dignity; therefore the courts have to reconcile tensions between these values. In an attempt to understand the ancient African value system of ubuntu, the root of African philosophy, we turn to the South African courts to enlighten us on ubuntu. As the learned judges of the Constitutional Court396, Supreme Court of Appeal and the High Courts have to 394 The Truth and Reconciliation Commission createfdo ruam which addressed the atrocities committed during South Africa’s apartheid regime. 395 Appiah ( 1992: 174) describes this mutual inteerdnedpence as follows: “For us to forget Europe is to suppress the conflicts that have shaped our idieesn;t ist ince it is too late for us to escape eache ro, twhe might instead seek to turn to our advantage theu aml uintterdependencies history has thrust upon us”. 396 Section 166(a) – (e) of the South African Constitoitnu sets out the structure of the South Africaunr ctso as follows: s 166(a) the Constitutional Court; s6 1(b6) – (d) ordinary courts and s 166(e) speciaulr tcso. The Constitutional Court has its seat in Johannregs abnud is the highest court with respect to countsiotint al 274 promote the values of our new democracy, they are the social engineers steering our Constitution values. 4.4 SOUTH AFRICAN CASE LAW AND UBUNTU The 1993 Interim and the 1996 Final Constitutions of South Africa imposed the duty on South African courts to promote values which underlie a democratic society based on freedom and equality. The Constitutional Court emphasised that recognition was to be given to African law and legal thinking as part of the source of values which sec. 35 of the 1993 Constitution and sec. 39 of the 1996 Constitution required the courts to promote. The duty which was imposed on the courts to promote ubuntu values imposed an additional role: that of social engineer and social and legal philosopher.397 And as we know a philosopher is a person “whose heart is informed about these things which would be otherwise ignored, the one who is clear-sighted when he is deep into a problem, the one who is moderate in his actions, who penetrates ancient writings, whose advice is sought to unravel complications, who is really wise, who instructed his own heart, who stays awake at night as he looks for the right paths, who surpasses what he accomplished yesterday, who is wiser than a sage, who brought himself to wisdom, who asks for advice and sees to it that he is asked advice”.398 The court’s legal philosophers will enlighten us as to what the concept of ubuntu entails. Judgments of the following courts will be assessed: • Constitutional Court. • Supreme Court of Appeal, and • High Courts. matters. The Constitutional Court has jurisdictwiointh in the whole geographical area of South Afraicnad its judgments bind all other courts, including Sthuep reme Court of Appeal. According to sec. 211o(f3 t)h e Constitution, customary law is subject to the Ciotuntsiot n. 397 SeeB aloro and Others v University of Bophutatswana aOnthders1 995 940 SA 197 (B). 398 See theIn scription of Ante fin 2.2. 275 4.4.1 The Constitutional Court and Ubuntu The Constitutional Court is South Africa’s highest court with respect to constitutional matters. Judgments of the Constitutional Court set precedents399 that bind it and the ordinary courts400 with regard to constitutional matters. 4.4.1.1 S v Makwanyane and Another401 The Constitutional Court delivered a landmark judgment in S v Makwanyane and Another on 6 June 1995. Not only did this case overturn the constitutionality of capital punishment in South Africa, but it also introduced traditional African jurisprudence to the South African legal system for the first time. The enactment of the Constitution of the Republic of South Africa, Act 200 of 1993, signalled a new era which was to cultivate a culture of respect for human life and dignity, based on the values reflected in the Constitution. The ethos of the new culture was expressed in the provision on National Unity and Reconciliation contained in the Constitution, which suggested a change in mental attitude from vengeance to an appreciation of the need for understanding, from retaliation to reparation and from victimisation to ubuntu.402 In S v Makwanyane and Another, the applicants appealed to the Constitutional Court to determine whether the death sentence, in terms of s 277(1)(a) of the Criminal Procedure Act 51 of 1977, was in conflict with the provisions of the Constitution of South Africa Act 200 of 1993 or not. To come to a judgment the court referred, inter alia, to international law, comparative law and judgments of courts of foreign and international tribunals. The court emphasised that recognition had to be given to African law and legal thinking as a source of 399 The doctrine of judicial precedents, sotar re decisi,s originates from English law and underlies the l egal principle that the law that was applicable to at acienr factual situation in a case must be applie adl lt ofuture cases with similar factual situations. Court judgnmtse or case law that have set precedents are reedg arsd a source of law in South Africa. 400 These ordinary courts include Higher (Supreme Ct ofu rAppeal and High Courts) and Lower Courts (Regional and District Courts). 401 1995(3) SA 391 (CC). 402 Ibid par.223. 276 values, notwithstanding the fact that law reports403 and legal textbooks contained few references to African sources as part of South African law.404 According to the Court, it appears that indigenous African societies did not in general utlise capital punishment as punishment for murder.405 In its judgment the court issued an order which declared the provisions of s 277(1) of the Criminal Procedure Act 51 of 1977 and other legislation sanctioning capital punishment inconsistent with the Constitution and invalid,406 and declared the death penalty unconstitutional. It was argued that the death penalty was in opposition to the spirit of ubuntu. In a campaign to legtimise the Constitution, Sachs J led the court “to take account of the traditions, beliefs and value of all sectors of South African society when developing South Africa’s jurisprudence”407, because “[i]n broad terms, the function given to this Court by the Constitution is to articulate the fundamental sense of jurisprudence and rights shared by the whole nation as expressed in the text of the Constitution”.408 According to Sachs J, one of the values of an open and democratic society is that the values of all sections of society must be taken into account and given due weight when matters of public import are being decided.409 Despite the fact that few law books and law reports contain “references to African sources as part of the general law of the country”410, Sachs J led the court to cultivate an indigenous source of jurisprudence under the banner of ubuntu411 (English, 1996: 335). As the constitutionality of capital punishment in South Africa was determined by inter alia the ethos of ubuntu, the 403 Ibid par. 224. 404 Ibid par. 371. 405 Ibid par.377. 406Ibid par. 151. 407 According to Sachs J, the “preamble, post-ambdle t haen principles of freedom and equality espousne d i ss 8, 33 and 35 of the Constitution require suc ha patnitude of vision. The principle of exclusivityh inses through the language provisions in s 3 and undse rthlie provisions which led to the adoption in sn 3d a underlies the provisions which led to the new falangd anthem and the selection of public holidayIbsi”d ( par. 363). 408 Ibid par. 262. 409 Ibid par. 368. 410 Ibid par. 371. 411 Bekker (2006: 335) is of the opinion that the Ctiotuntsional Court only uses the conceptu obfu ntu in its reasoning process to justify its decision on nolnit-ipcaol grounds. 277 question has to be asked: what is ubuntu? In an attempt to answer this vital question we turn to the learned judges in S v Makwanyane. In S v Makwanyane, the separate judgments of Madala, Mohammed, Mokgoro and Langa JJ introduced the Other’s jurisprudential concept of ubuntu to South African jurisprudence. In an effort to promote the underlying values of our democratic society in terms of sec. 39 of the Constitution, Madala, Mohammed, Mokgoro and Langa JJ emphasised the importance of ubuntu, an indigenous African value, whilst deliberating the constitutionality of capital punishment. Langa J concurred in the judgment of Chaskalson and emphasised that a culture of respect for life and dignity, based on the values of the Constitution, had to be engendered by the state. Langa argues that although the Constitution does not define ubuntu412, an outstanding feature of ubuntu in a community sense, is the value it puts on life and human dignity. “The dominant feature of ubuntu is that the life of another person is at least as valuable as one’s own and that respect for the dignity of every person is integral to this concept”. Langa J states that during violent conflicts and times when violent crime is rife, distraught members of society decry the loss of ubuntu, therefore heinous crimes are the antithesis of ubuntu. Treatment that is cruel, inhuman or degrading is bereft of ubuntu.413 Langa J defines ubuntu as a cultural principle that embodies the values of communitarian societies.414 According to Langa J, ubuntu recognises a person’s status as a human being; a human being entitled to unconditional respect, dignity, value and acceptance from the members of the community he happens to be part of. Ubuntu also entails the converse, however, says Langa J. “The person has a corresponding duty to give the same respect, dignity, value and 412 Ibid par. 223. 413 Ibid par. 225. 414 Langa J cites the following remark made in theg jmudent of the Court of Appeal iTnh e Republic of Tanzania in DPP v Pe:t e“The second important principle or characteri sttoic be borne in mind when interpreting our Constitution is a corollary of trheeality of co-existence of the individual and seotyc,i and also the reality of co-existence of rights and edsu toi f the individual on the one hand, and the ctoivlle of communitarian rights and duties of society on tthhee ro. In effect this co-existence by the rights adnudties of society, and vice versaI”b (id par. 224). 278 acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all”. He emphasises that in communitarian societies, community members do not only have rights, but also corresponding duties towards members of the community. In spite of the fact that ubuntu seems to embrace a culture of communalism the court leaves one with the impression that ubuntu values are universal. J.W.G. van der Walt (2005{a}: 111) argues that a rigorous jurisprudence must remain dissatisfied with Langa J’s definition of ubuntu which “has done little more than add a local indigenous and communitarian touch to the Christian, Kantian or Millsian respect for the individual” in Western jurisprudence”. Madala J concurred in the judgment of Chaskalson P but held that the death penalty rejected the possibility of rehabilitation of the convicted person and that such rejection is not in accord with the concept of ubuntu.415 Madala J emphasised the fact that the concept of ubuntu permeates the Constitution generally, and more particularly, “embodies the entrenched fundamental human rights”.416 According to Madala J, ubuntu represents “humanness, social justice and fairness”. Madala J further states that ubuntu “calls for the balancing of the interest of society against those of the individual for the maintenance of law and order, but not for dehumanising and degrading the individual”.417 Madala J also mentions the fact that traditional African jurisprudence and its accompanying values have not been researched for the purposes of the determination of the issue of capital punishment’418 and that such research should not be confined to South Africa only but should be applied to Africa in general.419 Although Madala J does not clearly define ubuntu, he associates ubuntu with humanness, social justice, fairness, human rights and the interest of society. 415 Ibid par. 241. 416 Ibid par. 237. 417 Ibid par. 250. 418 Ibid par. 252. 419 Ibid par. 259. 279 J.W.G. van der Walt (2005{a}: 109) finds Madala J’s substantiations on ubuntu “jurisprudentially vague, to say the least as they say nothing more than what Christian morality has been endorsing with regard to capital punishment for 2000 years”. What is of importance though, is Madala J’s statement that ubuntu calls for “the balancing of the interest of society against those of the individual for the maintenance of law and order”. In reality, Madala J emphasises the essence of ubuntu: group rights opposing individual rights. Madala J’s request for research on the values of traditional African jurisprudence, leaves the impression that ubuntu is a concept known not only to South African indigenous people, but to indigenous people throughout the African continent. Mohammed J concurred in the judgment of Chaskalson. In his judgment he defines ubuntu as the “expressed ethos of an instinctive capacity for the enjoyment of love towards our fellow men and women; the joy and the fulfilment involved in recognizing their innate humanity; the reciprocity this generates in interaction within the collective community; the richness of the creative emotions which it engenders and the moral energies it releases both in the givers and the society which they serve”.420 Mohammed J’s definition of ubuntu does not portray ubuntu as a unique set of African values, but one gets a glimpse of the words “collective community”, “creative emotions”421 and “moral energies” from under the kaross, signifying something not deliberated in court. Does Madala J refer to Ramose’s “three interrelated dimensions?” 422 Whereas the reciprocity of ubuntu and the collective community is emphasised by Mohammed J, it is not clear from either Madala J or Mohammed J how the concept of ubuntu serves either the individual or the community with reference to capital punishment. J.W.G van der Walt (2005{a}: 110) views Mohammed J’s substantiations a “utopian rendition of ubuntu”. Van der Walt questions the 420Ibid par. 263. 421 Senghor (1964: 447) said: “Emotion is completeelyg Nro as reason is Greek…Yes, in one way, the Negro is richer in gifts than in works”. 422 See 4.1. 280 relevance of ubuntu to the jurisprudential question of violent crime and ceases to see how ubuntu “differs from Christianity so as to warrant the conclusion that the latter’s historical endorsement of capital punishment cannot be reconciled with the former”. Capital punishment was not, and is not, foreign to ubuntu jurisprudence.423 It is a pity the court introduced the concept of ubuntu in such a piecemeal manner without the necessary rigorous jurisprudential deliberation. If ubuntu represents the worldview of the majority of South Africans, surely it must be important enough to justify research on traditional African jurisprudence and its accompanying value system for the purposes of the determination of the issue of capital punishment. According to Madala J, this, sadly, did not happen. Mokgoro J concurred in the judgment of Chaskalson and emphasised the importance of the courts’ recognising indigenous African values, as indigenous value systems are not irrelevant to the task of promoting the values of a democratic society based on freedom and equality.424 According to sec. 35 of the Constitution, indigenous African values are embodied in the Constitution and impact directly on the death penalty as a form of punishment.425 Mokgoro J emphasises that the Constitution makes it imperative for courts to develop the entrenched fundamental rights in terms of a cohesive set of values, ideal to an open and democratic society.426 Furthermore, Mokgoro J argues that South Africa’s indigenous value systems are a premise from which we need to proceed and are not wholly unrelated to our goal of a society based on freedom and equality.427 She describes ubuntu as “a shared value and ideal that runs across cultural lines”.428 Mokgoro J explaines the concept of ubuntu as follows: “Generally ubuntu translates as ‘humanness’.429 In its most fundamental sense it translates as personhood and ‘morality’. Metaphorically, it expresses itself in 423 Sachs J mentions that ‘[t]here are a number oefr erenfces to capital punishment and I can only re peat that it is unfortunate that their import was necvaenr vassed in the present matteIbr’i d( par. 375). 424 Ibid par. 304. 425 Ibid par. 300. 426 Ibid par. 302. 427 Ibid par. 304. 428 Ibid, par. 307. 429 Mokgoro J translateusb untua s “menswaardigheid” in Afrikaans cultural herit a(Igbeid par. 308) . 281 umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to the basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation”.430 Mokgoro J notes that ubuntu has become “a notion of particular resonance in the rainbow nation of our new democracy”431 and that the concept reiterates the need to develop “an all-inclusive South African jurisprudence”.432 She makes reference to the Preamble of the International Covenant on Civil and Political Rights which refers to the inherent dignity of all members of the human family and concludes that human rights derived from the inherent dignity of the human person is not different from what the spirit of ubuntu embraces.433 But why consider the value systems of the formally marginalised sectors of society in creating a South African jurisprudence434 when there is no difference between the human rights of Western jurisprudence and ubuntu? Mokgoro (1998{a}: 17; 19; 22) states that “ubuntu is a prized value … The values of ubuntu are an integral part of the value system established by the Interim Constitution … African values that manifest themselves in ubuntu are in consonance with the values of the Constitution generally and those of the Bill of Rights in particular”. In reality however, there is a marked difference between fundamental human rights endorsed by Western jurisprudence and the spirit of ubuntu. ‘The spirit of ubuntu’ determines that the legal status of each individual depends upon his/her position within the hierarchy of his/her group, clan or tribe. According to Mbaye (1974: 139) and Mqeke (1999: 369) Africans assign no importance to the individual’s human rights.435 430 Ibid par. 308. 431 Mokgoro J ,I bid par. 308. 432 Ibid par. 306. 433 Ibid par. 309. 434 Mokgoro J,i bid par. 306. 435 See 4.11.1 282 Whereas Madala and Mokgoro JJ define ubuntu as “humanness”, Mokgoro J goes a step further and links ubuntu, the concept that envelops the key values of African group solidarity or collective community, to African morality. Mokgoro J expresses ubuntu in the metaphor, umuntu ngumuntu ngabantu, which means a person is a person through other people; emphasising the interrelatedness of ubuntu with community. What can be deducted from Mokgoro J’s judgment is that she and Langa J, Mbeki (1999), Broodryk (2007), Bhengu (1996{a}; 2006), Mlambo-Ngcuka (2006) and Higgs et al. (2007) are in agreement that ubuntu represents traditional African values and is inextricably linked to “African morality”.436 Mokgoro J, however, refrains from indicating the difference between Western and African morality. J.W.G. van der Walt (2005{a}: 109) finds Mokgoro J’s definition of ubuntu “thin and jurisprudentially vague, to say the least”, as her “sentiments of humanness, solidarity, personhood, compassion, morality, unity and conformity … do not as such communicate anything markedly different from the Christian morality that has been endorsing capital punishment for almost 2000 years on end. Of the values listed here, ‘unity’ and ‘conformity’ would seem to echo the worst of this Christian morality’s medieval excesses”. Sachs J concurred with the judgment of Chaskalson P and emphasised that, firstly, recognition should be given to African law and legal thinking as well as to traditional African jurisprudence437, as part of the source of values which the Constitution requires the courts to promote in terms of sec. 35438, in spite of the fact that, as Madala J inferred, neither South African law reports nor legal textbooks contain more than a few references to African sources as part of the general law of the country.439 Secondly, Sachs J held that members of the Court were to “pay due regard to the values of all sections of society, not to confine us to the values of one portion only”.440 Sachs J explains the concept of ubuntu as values that place an emphasis on communality, and the interdependence of the 436 Ramose (2002{b}: 50-51) affirms that the concefp ut bountu is of deeply religious significance. 437 Ibid par. 373. 438 Ibid par. 354. 439 Ibid par. 371. 440 Ibid par. 370. 283 members of a community. Ubuntu recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from members of the community such person is part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of the community. More importantly, it regulates the exercise of rights by the emphasis it places on sharing and co- responsibility and the mutual enjoyment of rights by all.441 Sachs J holds that the time has come “to take into account the traditions, beliefs and values of all sectors of the South African society when developing jurisprudence”.442 He refers to the following principles of ubuntu to illustrate how disputes were solved and punishment meted out in traditional African societies: • Amongst the Cape Nguni “the death penalty was practically confined to cases of suspected witchcraft443, and was normally spontaneously carried out after accusation by the diviners … The Cape Law Journal notes that summary executions were usually inflicted for assault on the wives of chiefs444 or aggravated cases of witchcraft, but otherwise the death sentence was seldom followed445 even for murder, when committed 441 Ibid par. 224. 442 Ibid par. 361. 443 Mqeke (1996: 176) describes how amongst the Xhpoesoap le capital punishment was imposed in cases of witchcraft and rebellion. 444 Mutwa (1998: 638-653) reveals how Piet Retief ahnisd V oortrekker men were executed as a result of strict tribal Zulu laws. According to Mutwa, one of the men in Retsie pf’arty committed an “attempted offence” against the High Wives of Chief Dingaan thoef Zulus. Zulu narrative has it that Halsteade, th guilty party, was known to the Zulus as the “Cusri oPueeper” because of the way he went creeping da roun the Zulu kraals to gather information about Zulus tcoums and especially, weapons. It is alleged tnhea t oof Dingaan’s wives almost miscarried as a result olfs tHead who peeped over the stockade where Ding aan’s concubines lived. One of the High Wives subsequy eanptlproached Dingaan and “persuaded him to believe that the White men were at his kraal with evil nintt eand that they were scheming at his weak spoist – h wives”. Greaves (2005: 76-77) narrates how the soof nZsulu Chief Sihayo ka Xongo captured two of rth ei father’s wives who have been accused of adultenrdy , paublicly clubbed them to death in accordanceh wit Zulu law. 445 Mutwa (1998: 632-633) narrates how many of the d“ OTlribes” frowned upon the death penalty. According to Mutwa, these tribes knew that insteoaf dt he death penalty being a deterrent, it actu ally invited criminals to commit crimes. “When a Bantuur nts criminal he does so as a direct challenge to constitutional authority or society in general”. tMwua states that one thing Africans fear more th an a thousand deaths is to suffer public humiliation. 284 without the aid of supernatural powers; and as banishment, imprisonment and corporal punishment are all unknown in (African) jurisprudence, the property of the people constitutes the great fund out of which debts of justice are paid”.446 • King Moshoeshoe, King of the Sotho, was opposed to capital punishment even in cases of witchcraft.447 • The “relatively well-developed judicial processes of indigenous societies did not in general encompass capital punishment for murder. Executions that took place were the frenzied, extra-judicial killings of supposed witches, a spontaneous and irrational form of crowd behaviour that has unfortunately continued to this day in the form of necklacing and witch- burnings … where judicial procedures were followed, capital punishment was in general not applied as a punishment for murder”.448According to Sachs J the concept of ubuntu in S v Makwanyane restores “dignity to ideas that have long been suppressed or marginalised”.449 In this watershed case the Constitutional Court fulfilled the duty imposed on it by sec. 35(1) of the 1993 Constitution. The learned judges attempted to promote not only Western, but also traditional African values that underlie South Africa’s open and democratic society based on freedom, equality and human dignity. Sachs J states that “in broad terms the function given to this Court by the Constitution is to articulate the fundamental sense of justice and rights shared by the whole nation as expressed in the text of the Constitution”.450 Although some see S v Makwanyane as merely a politically motivated decision that was essential to protect the legitimacy of the new South African constitutional order (Bekker, 2006: 335), others feel that an attempt was made to “cultivate an indigenous 446Ibid par. 377. 447 Ibid par. 378. 448 Ibid par. 381. Mutwa (1998: 630) states that the Christian prilnec iopf forgiveness does not apply to ubuntu .According to him, Africans live by the principlef roevenge: an eye for an eye. 449 Ibid par. 365. 450 Ibid par. 362. 285 source of jurisprudence under the banner of ubuntu”451 (English, 1996: 642). Apart from the fact that the full bench attempted to legitimise the Constitution by establishing a South African jurisprudence, based on the values of ubuntu, the court failed dismally in linking ubuntu to the constitutionality of capital punishment. J.W.G. van der Walt (2005{a}: 109) laments the lack of jurisprudential rigour and argues that “a rigorous jurisprudence would engage with specific norms regarding capital punishment in cultures informed by the idea of ubuntu” (2005{a}: 111). Van der Walt criticises S v Makwanyane’s lack of research into the profile of capital punishment in African culture and African law and states that research might have proved that: • Individual lives might be less worthy of protection in traditional African cultures than in Western cultures, and • African culture often or at least sometimes exacted a fine of a number of head of cattle as punishment for murder on the one hand and capital punishment for the theft of cattle, on the other.452 J.W.G. van der Walt (2005{a}: 114) suggests that “if ubuntu continues to be used in South African jurisprudence, critical inquiry and critical thinking is needed to distil from it a different understanding of constitutionality”. Although the Constituional Court failed to link ubuntu as a constitutional value to the abolition of the death penalty in S v Makwanyane, the judgment indicates certain differences between Western and African jurisprudence. Ubuntu juxtaposes the atomistic individualism of Western jurisprudence with the 451 In adapting Dworkin’s metaphor of the chain notvoe tl he Constitution, we might say the Constitutilo na Court is “writing the first chapter in the great uStho African novel of Constitutional review” (Cockllr,e 1996: 1). 452 J.W.G. van der Walt (2005{b}: 259) reminds us ththaet African culture endorsed thiues taliones as widely as the Western culture “irrespective of heoxwa ctly the frequency rate of actual executions ldw ou compare these two cultures over the ages”. Accgo rdtoin Van der Walt (2005{b}: 260), the following African sayings reflect its endorsement in Africlan guagess: etopa ka setop(aN orthern Sotho), a corpse for a corpsel;e gotlo le lefa ka setopoa, mouse pays with its carcass (meaning a murdearyesr wpith his life) and botshelô bo tswêlwê ke botshelô, thlôgô ke th, laô gliôfe yields to a life, a head to a head. 286 communitarian interdependence of African jurisprudence. The arguments of the learned judges concerning ubuntu as an African value system did not render ubuntu values much different from those of Christian or Western morality. If ubuntu is “just another example of a universal phenomenon it is no longer a separate concept that needs to be articulated and applied” (Kroeze, 2001: 260). In S v Makwanyane the Constitutional Court failed to indicate the difference between the ubuntu value system and the Western value system which underlies our new democracy, but the court is adamant about creating “a South African jurisprudence”.453 4.4.1.2 Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others454 In this case the applicants appealed to the Constitutional Court to declare sec. 20 (7)455 of the Promotion of National Unity and Reconciliation Act 34 of 1995 unconstitutional on the grounds of its inconsistency with the right to have justiciable disputes settled by a court of law or independent and impartial tribunal in terms of sec. 22 of the Constitution. The applicants contended that amnesty infringed upon the fundamental right of victims to seek redress through the courts. In its judgment the court found that the limitation of powers in terms of the Constitution had not been exceeded and that the Truth and Reconciliation Act was not unconstitutional. The Constitutional Court concurred with the judgment of Mohammed DP who emphasised that in the pursuit of national unity, South African citizens required reconciliation between all its people, as the divisions and strife of the past must be transcended.456 Mohammed DP observed that Parliament’s enactment of amnesty legislation was inspired by the philosophy of ubuntu which favours reconciliation over victimisation. Mohammed DP quotes the 1993 Constitution 453Mokgoro J,i bid par. 306. 454 1996 (4) SA 671 (CC). 455 In terms of sec. 20 (7-9) a person who had beean tegdr amnesty in respect of an act, omission or offence, could no longer be held criminally or cllyiv iliable for damages sustained by the victim. 456 Ibid par. 3. 287 which states that national unity can be addressed because “there is a need for understanding but not vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimisation”.457 Although the Deputy President of the Constitutional Court made no new contribution towards the understanding of the concept of ubuntu mentioned in the postamble of the 1993 Interim Constitution458, he emphasised that in order for the Constitution to evade the prospect of continuous retaliation and revenge, the Constitution built a “historic bridge”459 for victims and culprits to cross to the new society at the end of the bridge.460 “It was for this reason that those who negotiated the Constitution made a deliberate choice, preferring understanding over vengeance, reparation over retaliation, ubuntu over victimisation”.461 Mohammed DP reiterates this phrase when he argues what the makers of the Constitution have contemplated with regard to the ordinary liability of the state in respect of damages sustained by others in consequence of the acts of servants.462 In Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others the Constitutional Court upheld the constitutionality of the Truth and Reconciliation Commission’s practice of granting amnesty to perpetrators of gross human rights violations during apartheid, in exchange for truthful accounts of these violations. This judgment underpins restorative justice463, a characteristic of traditional African jurisprudence. The court however made no effort to rationalise or develop the concept of ubuntu as a constitutional value in its ruling. 457 Ibid par. 3. 458 Constitution of the Republic of South Africa, A2c0t 0 of 1993. 459 In the first paragraph of the provisions on Naatilo nUnity and Reconciliation which the 1993 Constitution concluded, the Constitution made psriovnis for a “historic bridge between the past of a deeply divided society characterized by strife,f lcicotn, untold suffering and injustice, and a fut uforeunded on the recognition of human rights”. 460 Ibid par. 18-19. 461 Ibid par. 19. 462 Ibid par. 48. 463 Restorative justice is generally regarded as a owfa “yhumanizing justice, of bringing victims and offenders together in ways that provide opportu nfoitry victims to receive explanation and reparataionnd for offenders to be accountable to the victim ahned ctommunity”. This shifts thinking away from puivneit justice and is referred to as community justiceu (dNea, 2006: 101). 288 4.4.1.3 Hoffman v SA Airways464 In an appeal to the Constitutional Court the appellant challenged the constitutionality of South African Airway’s refusal to employ him as a cabin attendant on the grounds of his HIV-positive status. Sections 9(1) and (3)465 of the Constitution of the Republic of South Africa Act 108 of 1996 were applicable. The full bench concurred in the judgment of Ngcobo J and the appeal was upheld. In his judgment, Ngcobo J made a passing remark that people living with HIV must be treated with compassion and understanding and that ubuntu must be shown to them. 466 “PLWAs467 should not be condemned to 'economic death' by the denial of equal opportunities in employment, but should rather be treated with compassion and understanding”.468 In this appeal which concerns SAA’s inconsistency in terms of the provisions of the Bill of Rights, Ncobo J missed a golden opportunity with regard to the interpretation of ubuntu as a constitutional value. Whilst sec. 39 of the 1996 Constitution imposes a duty on courts to promote values underlying South Africa’s open and democratic society, the Constitutional Court did little more than flaunt the concept of ubuntu as representative of traditional African jurisprudence. It seems as if ubuntu has become little more than a catchphrase in judicial dicta. The concept of ubuntu is regularly flaunted in court but never deliberated. Perhaps ubuntu is, as Tutu and Mokgoro claim, a difficulty concept to explain in English. The Constitutional Court yet again failed to enlighten both the higher and 464 2001 (1) SA 1 (CC). 465 In terms of the right to equality and right no tb teo unfairly discriminated against. 466 Since Gugu Dlamini, from KwaMashu, Durban, died a ossf ault in 1998 because she disclosed her HIV status PLWAs fear for their lives, face assaultm f rmo embers of their community and fear they migh t be evicted from their homes. Otive-Igbuzor (2007: 2 m10a)intains that women infected with HIV/AIDS “fac es new forms of violence – accusations, battery, b eminagde homeless, being poisoned and killed - tht e lis goes on”. More than 62 percent of PLWAs in sub-Sr a hAafrica are young women between 15 and 24 years of age. 467 People Living With Aids. 468 Ibid par. 37. 289 lower courts in its dicta concerning the concept of ubuntu, which according to S v Makwanyane, represents the indigenous value system of indigenous African societies. 4.4.1.4 Port Elizabeth Municipality v Various Occupiers469 In Port Elizabeth Municipality v Various Occupiers, the Port Elizabeth Municipality applicants appealed to the Constitutional Court to make a ruling on whether the eviction of sixty-eight unlawful occupiers of privately owned land within the municipality of Port Elizabeth, compelled the municipality to provide the unlawful occupiers with alternative accommodation. In the court’s judgment, there is one reference to ubuntu. In the judgment of Sachs J, he argues that the Constitution and PIE470 confirm that we are not islands onto ourselves. Sachs J states that the spirit of ubuntu is part of the deep cultural heritage of the majority of the population and that ubuntu suffuses the whole constitutional order, combining individual rights with communitarian philosophy. According to him, “ubuntu is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern”.471 Sachs J argues that ubuntu filters through our entire constitutional order, a Constitution clearly premised on Western liberal values, and combines Western individual rights and African communitarian philosophy. Justice Sachs does not explain how the Constitution combines individual rights and group rights, which are synonymous with ubuntu’s communitarian philosophy. The Constitution does accommodate communitarian views as is evident in the provisions of the Constitution to restore indigenous law to its legitimate status, as well as in the 469 2005 (1) SA 217 (CC). 470 Prevention of Illegal Eviction from an Unlawful Ocucpation of Land Act 19 of 1998. 471 Ibid par. 37. 290 provisions on equality, human dignity, transparency and openness. As ubuntu represents the African value or moral system, Sachs J leaves the impression that African communal values or morals are synonymous with Western values and morals. Whilst the courts have been unable to indicate how traditional African values differ from Western values, Dibodu (1995: 22) warns about a clash between the individualistic value orientation of the West and communal values inherent to Africa. Dibodu states that “[t]he emphasis laid by the African Charter on people’s rights is often defended by African intellectuals who argue that such group rights protect the inherently communal, group-orientated African societies against the unbridled individualism which they see as characteristic of Western capitalistic society.” Sebidi (1998: 63) too stresses that as ubuntu is anti-individualism and pro-communalism, its collective values cannot be compromised. According to Sebidi, “[u]buntu is more than just an attribute of individual human acts that build a community. It is a basic humanistic orientation towards one’s fellow human beings … one’s humanity; one’s personhood is dependent upon one’s relationship with others. Therefore ubuntu, however inchoate in terms of strict philosophical formulation, certainly rejects the rugged individualism that seems to be encouraged by some philosophical systems and ideological persuasions. Ubuntu is anti-individualism and pro-communalism. Put differently, ubuntu is some kind of humanism – a form of African humanism”. Sachs J also makes no effort to explain his reference to ubuntu’s “human interdependence”. Bekker (2006: 337) argues that “statements like these (without any elaboration) do not take into account the inherent differences that exist between Western law and original indigenous law”. Bekker posits that there is a vast difference between how Western and indigenous societies interpret “human interdependence”. In Western societies rights are exercised with due regard to the rights of others as well as mutual respect for each other as long as the individual’s personal space is not invaded. The individual, and not the group, is 291 the cornerstone of Western society. Bekker contrasts the above with the position in indigenous African societies. Because the group, and not the individual, is emphasised in indigenous African societies, the group and not the individual has rights. The word “interdependence”, according to Bekker, relates to the fact that the “individual in indigenous societies cannot survive without the group”. Bekker (2006: 337) suggests that ubuntu is only used by some Constitutional Court judges as a catch-phrase to strengthen a certain judgment. 4.4.1.5 Dikoko v Mokhatla472 The applicant applied to the Constitutional Court for leave to appeal against the judgment of the High Court in regard to respondent’s award of satisfaction against the applicant for defamatory statements made by him. The appeal was against the finding of liability as well as the quantum of damages awarded by the High Court. Leave to appeal was granted. The Constitutional Court dismissed the appeal. In a minority judgment, Mokgoro J linked the Roman Dutch remedy of amende honorable with the concept of ubuntu. Mokgoro J held that: In our constitutional democracy the basic constitutional value of human dignity relates closely to ubuntu or botho, an idea based on deep respect for the humanity of another. Traditional law and culture have long considered one of the principle objectives of the law to be the restoration of harmonious human and social relationships where that has been ruptured by an infraction of community norms. It should be a goal of our law to emphasise, in cases of compensation for defamation, the re-establishment of harmony in the relationship between the parties, rather than to enlarge the hole in the defendant’s pocket, something more likely to increase acrimony, push the parties apart and even cause the defendant financial ruin. The primary purpose of a compensatory measure after all, is to restore the dignity of a plaintiff who has suffered the damage and not to 472 2006 (6) SA 235 (CC). 292 punish a defendant. A remedy based on the idea of ubuntu or botho could go much further in restoring human dignity than an imposed monetary award in which the size of the victory is measured by the quantum ordered and the parties are further estranged rather than brought together by the legal process. It could indeed give better appreciation and sensitise a defendant as to the hurtful impact of his or her unlawful actions, similar to the emerging idea of restorative justice in our sentencing laws.473 Mokgoro J reminds the court that two considerations should be borne in mind when it comes to defamation cases. Firstly, reparation sought by the plaintiff is essentially for injury to his/her honour, dignity and reputation and not to his/her pocket. Secondly, courts should attempt to re-establish a dignified and respectful relationship between the two parties. According to her, ubuntu addresses both of these considerations as follows: Because an apology serves to recognize the human dignity of the plaintiff, thus acknowledging, in the true sense of ubuntu, his or her inner humanity, the resultant harmony would serve the good of both the plaintiff and the defendant. Whether the amende honorable is part of our law, or not, our law in this area should be developed in the light of the values of ubuntu emphasizing restorative rather than retributive justice. The goal should be to knit together shattered relationships in the community and encourage across-the-board respect for the basic norms of human and social interdependence. It is an area where courts should be proactive, encouraging apology and mutual understanding wherever possible.474 In a separate judgment Sachs J concurs with the minority judgment of Mokgoro J concerning the excessive awarding of damages for defamation of character. Sachs finds that monetary compensation alone is not appropriate relief for defamation and that the courts should explore ubuntu or botho’s indigenous 473 Ibid par. 68. 474 Ibid par. 69. 293 values of restorative justice.475 In order to achieve the principle goals of repair rather than punishment in defamation cases, Sachs J suggests the constitutional value of ubuntu-botho should be acknowledged.476 Sachs J explains the constitutional value of ubuntu as follows: Ubuntu-botho is more than a phrase to be invoked from time to time to add a gracious and affirmative gloss to a legal finding already arrived at. It is intrinsic to and constitutive of our constitutional culture. Historically, it was founded on the spirit of reconciliation and bridge building that enabled our deeply traumatized society to overcome and transcend the divisions of the past. In present day terms it has an enduring and creative character representing the element of human solidarity that binds together liberty and equality to create an affirmative and mutually supportive triad of central constitutional values. It feeds pervasively into and enriches the fundamental rights enshrined in the constitution.477 Sachs J finds the values of ubuntu to be on par with current international notions of restorative justice, based on reparative rather than purely punitive principles. Sachs J describes the key elements of ubuntu’s restorative justice viz. encounter, reparation, reintegration and facilitation as follows: • Encounter facilitates dialogue between victims and offenders. • Reparation focuses not on punishment but on repairing damage done. • Reintegration depends upon the achievement of mutual respect for and mutual commitment to one another, and • Participation allows people close to the parties to participate in the process. According to Sachs, J these concepts harmonise well with processes related to traditional forms of dispute resolution, processes that have long been, and 475 Ibid par. 86. 476 Ibid par. 112. 477 Ibid par. 113. 294 continue to be, underpinned by the philosophy of ubuntu-botho.478 Sachs J argues that although the philosophy of ubuntu-botho has been invoked especially with reference to child justice in criminal law, there is no reason why it should be restricted, as it has already influenced our jurisprudence with regard to capital punishment, the eviction of people unlawfully occupying land and a homicide case where the High Court combined a suspended custodial sentence in a homicide case with an apology from a senior representative of the family of the accused, as requested and acknowledged by the mother of the deceased. Sachs J points out that although ubuntu and the amende honorable are expressed in different languages intrinsic to two separate legal cultures they share the same underlying philosophy and goal. Ubuntu and the amende honorable are directed towards the face-to face encounter between the parties to facilitate resolution of their differences in public and to restore harmony in the community. Both legal cultures strive towards creating conditions to facilitate an apology offered, and generously accepted.479 Sachs J is of the opinion that “[i]n the light of the core constitutional values of ubuntu-botho” courts should be encouraged to shift their emphasis from quantum to reparatory remedies.480 Sachs J concludes: A good beginning for achieving greater remedial suppleness might well be to seek out the points that overlap between ubuntu-botho and amende honorable, the first providing a new spirit, the second a time-honoured legal format. Whatever renovatory modalities are employed, and however significant to the outcome the facts will have to be in each case, the fuller the range of remedial options available the more likely will justice be done between the parties. And the greater the prospect of realising the more humane society envisaged by the Constitution.481 478 Ibid par. 114. 479 Ibid par. 116. 480 Ibid par. 118. 481 Ibid par. 121. 295 Previous Constitutional Court cases were unable to define ubuntu as a constitutional value. In Dikoko v Mokathla, Mokgoro and Sachs JJ successfully linked ubuntu to the constitutional values of reconciliation and restoration. Not only did both these judges indicate that the principles of reconciliation and restorative justice are inherent to traditional African jurisprudence, but Sachs J also indicated that restorative justice is a “rapidly evolving international notion” in Western jurisprudence. Restorative justice is however not a new concept to the West. Restorative justice was the dominant criminal justice system in ancient Greek, Roman and Arab civilisations as well as in the indigenous communities in Canada, Australia, New Zealand and South Africa (Naude, 2006: 101). According to Naude, restorative justice was re-discovered by Western countries in the mid- seventies and by the 1990s most Western countries482 had legalised restorative justice programmes. South African legislation provides for restorative justice programmes as is evident in The Probation Services Amendment Act 35 of 2002, the Child Justice Bill, the Sexual Offences Bill and the Sentencing Framework Bill. The 2001 United Nation’s Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-First Century also emphasises the importance of establishing regional, national and international plans in support of victims, such as mediation and restorative justice programmes, the development of support services and awareness campaigns on the rights of victims, and the establishment of compensation funds for victims as well as victim protection policies (Naude, 2006: 103). As a victim-centred response to crime, restorative justice provides opportunities for those most directly affected by crime to respond to the harm caused by it. This process involves not only the victim and offender but often also their families or representatives of the community.483 Whilst European restorative justice predominantly explains its values through a secular emphasis on our common 482 Britain, Ireland, United States, Australia, New aZlaend, Germany, Norway, Belgium, Denmark, Sweden, Finland, Spain and France. 483 Bekker (2006: 342) emphasises the fact that “nito its so much the individual that is harmed when o hr is her rights are infringed upon, but the group ash ao lew. It is therefore necessary to restore harmto ntyh e group”. 296 humanity, restorative justice in the African context explains the equilibrium of justice in terms of religion. For Ramose (2002{b}: 97; 2002{c}: 643), the “ubuntu philosophy of law is the continuation of religion”; restoring equilibrium or justice by incorporating also the forces of life, the living dead. Ramose (2002{b}: 93) cites Griaule as follows: The altar gives something to a man, and part of what he received he passes on to others … A small part of the sacrifice is for oneself, but the rest is for others. The forces released enter into the man, pass through him and out again, and so it is for all … As each man gives to all the rest, so he also receives from all. A perpetual exchange goes on between men, an unceasing movement of invisible currents. And this must be so if the universal order is to endure … for it’s good to give and to receive the forces of life. The concept of restorative justice can therefore be successfully linked to values intrinsic to both African and Western jurisprudence. As such it can play an important role as a constitutional value in the future adjudication of both public law and private law disputes (Bekker, 2006: 343). 4.4.1.6 BHE v Magistrate Khayelitsha and Others; Shibi v Sithole; South African Human Rights Commission and Another v President of the Republic of the Republic of South Africa and Another484 The applicants in all three of these cases applied to the Constitutional Court to confirm the orders of the respective divisions of the High Courts. The applicants challenged the constitutionality of sec. 23(10) of the Black Administration Act 38 of 1927; sec. 1(4)(b) of the Intestate Succession Act 81 of 1987 and the customary principle of male primogeniture.485 484 2005 (1) BCLR 1 (CC). 485 This rule implies that only men who are relate dth teo deceased qualify as intestate heirs. InB tHheE case, Langa DCJ quotes (par. 76) the principle aolef mprimogeniture as follows: “In monogamous faemsi li the eldest son of the family head is his heir,i nfagi lhim the eldest son’s eldest male descendanet.r eW th e eldest son has predeceased the family head wiltehaovuitn g male issue, the second son becomes h ehier; if is dead leaving no male issue, the third son sudcsc aened so on through the sons of the family heahde. rWe the family head dies leaving no male issue his efra tshucceeds … Women generally do not inherit in customary law. When the head of the family dies hheisir takes his position as head of the family and 297 The customary rule of male primogeniture, or subsidiariti, prevented not only two daughters from inheriting the estate of their deceased father in the BHE case, but also Ms Shibi who was precluded from inheriting the estate of her deceased brother in the Shibi case.486 The South African Human Rights Commission and Women’s Legal Trust brought the third case on behalf of all women and children prevented from inheriting as a result of the rule of male primogeniture. In this trilogy of cases concerning the application of indigenous law of succession, the Constitutional Court ordered sec. 23 of the Black Administration Act 38 of 1927 inconsistent with the Constitution and invalid; the Regulations for the Administration and Distribution of the estates of deceased Blacks to be invalid; the customary rule of male primogeniture inconsistent with the Constitution, and sec. 1(4)(b) of the Intestate Succession Act 81 of 1987 invalid. In the court’s majority judgment Langa DCJ argued that although aspects of customary law more than justify its protection by the Constitution487, customary law principles depend on its consistency with the Constitution and the Bill of Rights.488 Lang J found that the rule of male primogeniture unfairly discriminates against women, and against children born out of wedlock; that it violates their constitutional rights, primarily their rights to human dignity and equality.489 Langa J set a precedent ruling that it is inappropriate to develop the rule of male primogeniture, and that the Intestate Succession Act should govern all customary intestate deceased estates formerly governed by s 23 of the Act.490 becomes owner of all the deceased’s property, mleo vaanbd immovable; he becomes liable for the defb ts o the deceased and assumes the deceased’s pos itgiouna radsian of the women and minor sons in the fa.m ily He is obliged to support them and maintain them n,e icfessary from his own resources and not to expel them from his home”. 486 In Mthembu v Letsela1 997 (2) SA 936 (T) the constitutionality of thel er uof male primogeniture in indigenous law was tested and found not to contes tiutunfair discrimination. 487 Ibid par. 45. 488 Ibid par. 46. 489 Ibid par. 45. 490 Ibid par. 131. 298 According to Langa J, “[c]ustomary law places much store in consensus-seeking and naturally provides for family and clan meetings which offer excellent opportunities for the prevention and resolution of disputes and disagreements. Nor are these aspects useful only in the area of disputes. They provide a setting which contributes to the unity of family structures and the fostering of co- operation, a sense of responsibility in and of belonging to its members, as well as the nurturing of healthy communitarian traditions such as ubuntu”.491 As Langa DCJ put it, ubuntu is a culture which “regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights”.492 In the minority judgment, Ngcobo J argues for the rule of male primogeniture to be developed and brought in line with the Bill of Rights,493 as it is a central feature of indigenous law of succession.494 Ngcobo is of the opinion that, should members of a community decide that succession of the deceased is to be governed by indigenous law, indigenous law must govern the succession. In the case of a dispute as to whether indigenous law is applicable, the matter must be resolved by a magistrate who must enquire into the most appropriate system of law. “In conducting such an enquiry, the Magistrate must have regard to what is fair, just and equitable and must have particular regard to the interests of the minor children and any other dependant of the deceased”.495 Ngcobo J links indigenous law of succession to the concept of ubuntu. He defines ubuntu as a dominant value in traditional African culture which encapsulates communality and the interdependence of members of the community on one another. “It is this system of reciprocal duties and obligations 491 Ibid par. 45. 492 Ibid par. 163. 493 Ibid par. 139. 494 Ibid par. 146. 495 Ibid par. 240. 299 that ensured that every family member had access to basic necessities of life such as food, clothing, shelter and healthcare”.496 The diverging approaches of Langa DCJ and Ngcobo J to the customary rule of male primogeniture reflect the familiar discourse between professional African philosophers and African traditionalists. Langa DCJ contends that the principle of male primogeniture symbolises a system deeply embedded in patriarchy which deems women to be subservient subordinates who are regarded as perpetual minors.497 Langa DCJ posits that members of modern communities are no longer structured along these traditional lines498 and that the official system of customary law of succession is incompatible with the Bill of Rights and therefore unconstitutional.499 Customary law of succession does not comply with international instruments that protect women against discrimination, viz. CEDAW500, the International Covenant on Civil and Political Rights and the African Charter on Human and People’s Rights.501 It is surely not in compliance with Art. 21 of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. Ngcobo J admits that the rule of male primogeniture is not in line with the Constitutional right to equality502 but argues that it should be brought in line with the Bill of Rights, as it is a central feature of indigenous law of succession. He describes how the rules of indigenous law, and in particular, the law of succession, have their origin in traditional African societies of which the traditional family unit is the nucleus503 and in which individual interests are submerged. The law of succession guarantees the preservation of the family504, 496 Ibid par. 163. 497 Ibid par. 78. 498 Ibid par. 80. 499 Ibid par. 97. 500 Convention for the Elimination of Discriminationg Aainst Women. 501 Ibid par. 209. 502 Ibid par. 220. 503 Ibid par. 162. 504“[W]omen were always regarded as persons who woeuvledn tually leave their original family on marriage, after the payment of roora/lobola, ton jtohie family of their husbands. It was reasonedt itnh a their new situation – a member of the husband’si lyfa –m they could not be heads of their original filaiems, 300 family property and the obligation to care for family members. The obligation to care is a vital and fundamental value in African social systems. This value is entrenched in the African (Banjul) Charter on Human and Peoples’ Rights. The Preamble to the African Charter urges member states to take into consideration the virtues of their historical traditions and values of African civilisation which should inspire and characterise their reflection on the concept of human and peoples’ rights. Article 27(1) provides that every individual shall have duties towards his family and society. Article 29(1) provides that individuals have the duty to preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect their parents at all times, and to maintain them in case of need.505 Whilst Ncobo J links male primogeniture to ubuntu, Ramose (2002{b}: 40) states that ubuntu forms the basis of African law. Langa DCJ states that the law of succession is embedded in patriarchy and therefore views women as subservient subordinates who are regarded as perpetual minors. If African law is entrenched in patriarchy, so also is ubuntu, the basis of African law. According to Langa DCJ, the law of succession and therefore ubuntu, does not comply with international instruments that protect women against discrimination, viz. CEDAW, the International Covenant on Civil and Political Rights and the African Charter on Human and People’s Rights. Therefore, ubuntu is also not in line with the Constitutional right to equality. Equality lies at the core of human rights and opposes patriarchy. Nyirongo (1997: 139) maintains that “equality in communitarian African societies means equality only in terms of material blessings, consensus decision making and solidarity based on blood relationships” and not in terms of equal rights. Those outside the clan or tribe are not perceived as brothers or equals. If traditional African jurisprudence, and therefore aspects of ubuntu, are found to be unconstitutional as suggested, how as they were more likely to subordinate the inttesr eosf the original family to those of their new fialym. It was therefore reasoned that in their new situatthioeny would not be able to look after the originaaml fily”. (Ibid par. 168). 505 Ibid 166. 301 will the court balance “the interest of society against those of the individual for the maintenance of law and order” as called for by Madala J in S v Makwanyane? In S v Makwanyane, the Constitutional Court highlighted the fact that there is a need to develop an all-inclusive South African jurisprudence. Mokgoro J posits that in spite of South Africa’s history of deep divisions, strife and conflict, ubuntu “runs across cultural lines in South Africa”.506 In order to avoid a legitimacy crisis the values of the majority of the South African society should be reflected in the country’s supreme law, the Constitution. Mokgoro J and Sachs J linked ubuntu to the constitutional values of reconciliation and restoration in the Dikoko case, and in the Makwanyane case capital punishment was found to be irreconcilable with ubuntu. The concept of ubuntu is not only, according to Mokgoro J, linked to African morality, but according to Langa J, to African communitarianism noted for reciprocal duties and obligations. Mokgoro J maintains that the spirit of ubuntu embraces the same human rights as those embodied in the Constitution. In the PE Municipality case Sachs J finds ubuntu to be a combination of Western individual rights and African communitarian philosophy with a unifying motif of the Bill of Rights. In the Dikoko case, Sachs emphasises that ubuntu creates an affirmative and mutually supportive triad of central constitutional values which feed pervasively into and enrich the fundamental rights enshrined in the Constitution. In the BHE case, the tables are turned when Langa DCJ claims that traditional African jurisprudence is embedded in patriarchy and regards women as perpetual minors. Not only are aspects of ubuntu incompatible with the Bill of Rights, but also with international human rights mechanisms that protect women against discrimination. Ncobo J admits that aspects of traditional African jurisprudence are not in line with the Constitutional right to equality. How do the Higher Courts interpret ubuntu in the midst of all the above contradictions? In an attempt to ascertain the meaning of ubuntu we venture into 506 S v Makwanyanep,a r. 307. 302 the court rooms of South Africa’s Higher Courts. The Higher Courts consist of the Supreme Court of Appeal and the High Courts. 4.4.2 The Supreme Court of Appeal and Ubuntu As the highest ordinary court in South Africa, the Supreme Court of Appeal in Bloemfontein is bound by the precedents set by the Constitutional Court. The Supreme Court of Appeal binds not only itself by its previous judgments if they are not wrong but all subordinate courts in the country. As the Supreme Court of Appeal sets precedents for the ordinary courts to follow, the court’s definition and interpretation of ubuntu is essential as a guide to both higher and lower courts on this matter. 4.4.2.1 Baloro and Others v University of Bophutatswana and Others507 The applicants challenged the interpretation of the Constitution of South Africa, Act 200 of 1993, concerning the horizontal application of fundamental human rights. The applicants were members of the academic staff of the first respondent with valid contracts of employment. Their applications for promotion were placed under a moratorium because they were not South African citizens. In its judgment the court stated that the conduct of the respondent was a violation of sec. 8 of the Constitution. In his judgment, Friedman JP emphasises that the courts and specifically judges have the additional role of social engineers and social and legal philosophers, to promote values referred to in sec. 35 of the Constitution. Friedman JP reiterates sec. 35 and adds that there is a desire by the legislature to establish a new society based on the foundation of new and noble aspirations. He emphasises the court’s quest to apply just laws and affirm moral values in our new and just society and to safeguard the values contained in the Constitution. 508 The court affirms the importance of safeguarding the values of our new democratic society, 507 1995 (4) SA 197 (B) 508 Ibid p235 E-F. 303 but makes no effort to interpret the concept of ubuntu or link it to the case in question, other than to reiterate the postamble of the Interim Constitution. The court failed dismally in its additional role as social engineer and social and legal philosopher, to promote ubuntu values and to guide subordinate courts concerning the concept of ubuntu. 4.4.2.2 Pharmaceutical Society of South Africa and Others v Tsabalala- Msimang and Another; New Clicks South Africa (PTY) LTD v Minister of Health and Another509 The applicants applied for leave to appeal regarding the validity of the Regulations relating to a Transparent Pricing System for Medicines and Scheduled Substances as promulgated by the Minister of Health in terms of sec. 22G of the Medicines and Related Substances Act 101 of 1965. In its judgment the court upheld the appeal and declared the Regulations relating to a Transparent Pricing System for Medicines and Scheduled Substances invalid and of no force and effect. In a concurring judgment, Harms JA referred to the conclusion of Hlope JP’s judgment in the Provincial Division of the High Court with reference to “the spirit of ubuntu in interpreting statutes”. Harms JA affirmed that the word ubuntu appeared in the Interim Constitution where it dealt with national unity and reconciliation510, but emphasised that the word ubuntu did not appear in the Constitution in expressed terms. He admits that although ubuntu has many dimensions, its application to statutory interpretation is novel.511 509 2005 (3) SA 238 (SCA) 510 Ibid par. 38. 511 Ibid par. 39. 304 4.4.2.3 Wormald NO and Others V Kambule512 Appellants appealed against the judgment of the High Court which dismissed their application firstly to evict respondent from a residential property under the provisions of PIE and, secondly to declare the customary marriage between the respondent and her husband, from which she claimed her right to occupy the property, null and void. Because the customary marriage was not registered in terms of the Transkei Marriage Act 21 of 1978, the Supreme Court of Appeal declared respondent’s marriage to the deceased invalid. Respondent was therefore an unlawful occupier. The court granted the appeal. Maya AJA argues that the court has to balance the opposing rights of a traditional real right and a person in dire need of accommodation. Maya AJA contends in his judgment that PIE requires the court to infuse elements of grace and compassion into the formal structures of law, as it is called upon to balance competing interests in a principled way and to promote the vision of a caring society based on good neighbourliness and shared concern. “The spirit of ubuntu, part of a deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalized and operational declaration in our evolving new society of the need for human interdependence, respect and concern”.513 Whilst South Africa’s 1996 Constitution514 is clearly premised on Western liberal values, ubuntu’s communitarian philosophy accentuates the importance of group rights as represented by the African Charter on Human and People’s Rights. The Preamble of the African Charter on Human and People’s Rights stipulates that 512 2006 (3) SA 562 (SCA). 513 Ibid par. 36-37. In theP ort Elizabeth Municipality casSe achs J stated thuabt untu is part of the deep cultural heritage of the majority of the populat ioand that i tsuffuses the whole constitutional order, combining individual rights with communitarian pohsilophy (Ibid par. 37). 514 Chapter Two of the Constitution, referred to aes Bthill of Rights, makes provision for first-geneiorant, second-generation and third-generation rights. 305 the virtues of member states’ historical traditions and the values of African civilisation must be taken into consideration and convinces them of ‘their duty to promote and protect human and people’s rights and freedoms taking into account the importance traditionally attached to these rights and freedoms in Africa’. In contrast with Western liberalism which guarantees the individual’s fundamental human rights, ubuntu “is about recognising the rights of groups, because the group precedes and supersedes the individual” (Broodryk, 2007: 104). In the Preamble of the African Charter it recognises on the one hand “that fundamental human rights stem from the attributes of human beings which justifies their national and international protection and on the other hand that the reality and respect of people’s rights should necessarily guarantee human rights; considering that the enjoyment of rights and freedoms implies the performance of duties on the part of everyone”.515 In contrast to the South African Constitution which entrenches human rights, the African Charter emphasises the rights and duties of African society as follows: • Art 27 states that every individual has a duty towards his family and society, state and community, and • Art 29 stipulates that every individual has a duty to respect his parents and to serve his community. It is evident that after more than a decade, neither the Constitutional Court nor the Supreme Court of Appeal has been able to develop the concept of ubuntu as a constitutional value. The concept of ubuntu has been raised in court but the ordinary courts and the people of South Africa are still in the dark concerning the meaning and relevance of ubuntu as a constitutional value of the new South Africa. 515 Menkiti (1979: 167) opposes Western and Africanci estoies with one another, based on the fact that whilst African societies entertain the concept uotfi eds, whilst Western societies propound individ ruigahl ts. “In the African understanding priority is given tthoe duties which individuals owe to collectivityn, da their rights, whatever these may be, are seen as secyo tnod athre exercise of their duties. In the West,t hoen other hand, we find a construal of things in whiccehr tain specific rights of individuals are seen as antecedent to the organisation of society, with futhnection of government viewed, consequently, aisn gb e the protection and defence of these individual trsi”g.h 306 In a last effort to obtain clarity on the concept of ubuntu, we seek the wisdom of the High Courts of South Africa. 4.4.3 The High Courts and Ubuntu Each province in South Africa has a High Court and some also have local divisions of the High Court. All High Courts are bound by the precedents set by the Constitutional Court and the Supreme Court of Appeal. If no applicable judgment exists in a specific factual situation, the High Court’s judgment will set a precedent. This precedent will bind the High Court and the lower courts516 of the specific province, unless it is wrong. Precedents set in one province do not bind the judgments given in other provinces. Precedents set in High Courts have only persuasive force in the Supreme Court of Appeal. 4.4.3.1 Stagnation of Ubuntu values In Qozeleni v Minister of Law and Order and Another517; S v Williams and Five Similar Cases518; Azanian People’s Organisation and Others v Truth and Reconciliation Commission and Another519; Ryland v Edros520; Dulabh and Another v Department of Land Affairs521; Pharmaceutical Society of South Africa and Others v Tsabalala-Msimang and Another; and New Clicks South Africa (PTY) LTD v Minister of Health and Another522, sec. 35 of the Interim Constitution was merely reiterated without any attempt from the courts to interpret the concept of ubuntu. 516 The judgments of lower courts do not set precesd. ent 517 1994 (3) SA 625 (E). 518 1994 (4) SA 126 (C). 519 1996 (4) SA 562 (C). 520 1997 (2) SA 690 (C)R. yland v Edroso verturned the Appeal Court judgmentI sinm ail v Ismai lwhich held that a marriage by Muslim custom was polygasm aonud therefore void. IRn yland v Edro sit was found that it is unconstitutional for one group to imp oitse values on another. 521 1997 (4) SA 1108 (LCC) A. 522 2005 (3) SA 231 (C) 307 In Ryland v Edros, Farlam J defines ubuntu in terms of Langa J’s exposition in S V Makwanyane and Another, as “a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such persons happens to be part of”.523 In Dulabh and Another v Department of Land Affairs, Meer J explains ubuntu in terms of Mokgoro J’s judgment on S v Makwanyane as a concept “which carries in it the ideas of humanness, social justice and fairness”.524 In BHE v Magistrate, Khayelitsha, and Others525, Ngwenya J argues that sec. 23 of the Black Administration Act 38 of 1927 is unconstitutional and invalid as it lacks basic humanity, the hallmark of ubuntu. 4.4.3.2 Pharmaceutical Society of South Africa and Others v Tsabalala- Msimang and Another; New Clicks South Africa (PTY) LTD v Minister of Health and Another526 The applicants in the above two cases applied to the Provincial Division of the High Court for an order to set aside the Regulations relating to a Transparent Pricing System for Medicines and Scheduled Substances promulgated in the Government Gazette. The court consolidated the two cases because of the importance of the matter for both the state and the public. In a majority judgment the Provincial Division held that the Regulations relating to a Transparent Pricing System for Medicines and Scheduled Substances were invalid and of no force and effect. The court dismissed the application but granted leave to appeal. In his judgment, Hlope JP referred to sec. 39 (1)(a) of the 1996 Constitution which provides that when the Bill of Rights is interpreted, a court, tribunal or forum must promote the values that underlie an open and democratic society, based on dignity, equality and freedom. Hlope JP emphasised that one of the values of sec. 39 (1)(a) is ubuntu, a value which according to Bhengu, is a way of 523 708 H. 524 Ibid par. 54. 525 2004 (2) SA 544. 526 2005 (3) SA 231 (C). 308 life that contributes positively towards sustaining the well-being of a people, community or society. He concludes by saying; “Clearly ubuntu requires that medicine must be accessible to all South Africans, rich and poor”.527 Ten years after S v Makwanyane, the concept of ubuntu is still referred to in case law as a sec. 39(1)(a) value of the Constitution but the court in this case made no effort to define the concept nor to indicate how ubuntu aids in interpreting the statute. One has to concur with Bekker that ubuntu seems to have become a popular concept to flaunt in court; a concept which has remained jurisprudentially vague and evoked no rigorous jurisprudential engagement. Or is ubuntu in the words of Mokgoro (1998) and Tutu (1999: 34) just very difficult to render in a Western language? It seems as though the courts have generally accepted ubuntu as a communitarian philosophy which subscribes to democratic values that underlie an open and democratic society. In spite of Langa DCJ’s arguments in the BHE case, which proved traditional African jurisprudence to be unconstitutional, courts have omitted (perhaps on purpose), to deliberate the concept of ubuntu as it is supposedly “very difficult to render in a Western language”. 4.4.3.3 City of Johannesburg v Rand Properties (PTY) LTD & Others528 Several applications were made by the City of Johannesburg to evict a large number of people from the inner city. The applications were based on the National Building Regulations and Building Standards Act 103 of 1977. The applicant had no housing policy in place which could address the needs of homeless people. The court directed the applicant to implement a suitable housing programme to realise the respondent’s right to housing. 527 237 G-H. 528 2006 JOL 16852 (W). 309 Jajbhay J emphasises that the constitution requires courts to weave humanity and compassion within the formal structures of law in order ‘to promote the constitutional vision of a caring society … based on a democratic, universalistic, caring and inspirational egalitarian ethos … and a spirit of ubuntu.529 Jajbhay J describes ubuntu as follows: The culture of ubuntu is the capacity to express compassion, justice, reciprocity, dignity, harmony and humanity. Ubuntu speaks to our interconnectedness, our common humanity and the responsibility to each that flows from our connection. This in turn must be interpreted to mean that in the establishment of our constitutional values we must not allow urbanisation and the accumulation of wealth and material possessions to rob us of our warmth, hospitality and genuine interest in each other as human beings. Ubuntu is a culture which places some emphasis on the communality and on interdependence of the members of the community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community that such a person may be part of.530 Jajbhay J views the applicant’s suggestion that respondents be relocated to informal settlements to be against the concept of ubuntu. According to Jajbhay J, ubuntu is a “universalistic ethos” which should promote ubuntu equality. According to Nyirongo (1997: 139), ubuntu equality is fundamentally different from the right to equality as understood in Western jurisprudence. Nyirongo, M’Baye (1974: 141) and Turaki (1997: 61) maintain the right to equality does not exist in traditional African societies because every person fits into a social hierarchy. Ubuntu’s social hierarchy determines the rights and status awarded to such a person. African societies are not “inspirational egalitarian” as Jajbhay suggests, but rather inegalitarian. M’Baye (1974: 139) posits that traditional African jurisprudence is not, as Jajbhay J suggests, “universalistic”, but fundamentally different from Western law and its universal values. 529 Ibid par. 62. 530 Par. 63. 310 4.4.4 Ubuntu as Constitutional Value Section 35(1) of the 1993 Interim Constitution gave no content to the textual concept of ubuntu. As a definition or meaning of the concept of ubuntu is not to be found in the 1993 Constitutional text or even referred to in the 1996 text, South African courts had to seek the extra-textual meaning of ubuntu. Sad to say, but South Africa courts have as yet been unable to extract the values associated with the concept of ubuntu. Is ubuntu nothing more than a “universalistic ethos”531; a “shared value and idea that runs like a golden thread across cultural lines”?532 Has it just become a tool with which to legitimise the Constitution and persuade post-apartheid South Africans that it is their document? (English, 1996: 641). In S v Makwanyane, Mokgoro J translates ubuntu as “humanness, which in a fundamental sense translates to personhood or morality” and describes the significance of group solidarity. Mokgoro J lists the key values of ubuntu as: group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity; values reflecting a universal philosophy.533 Madala J expands this understanding of ubuntu by defining it as a concept containing the ideas of humanness, social justice and fairness.534 The majority of judges emphasise that the values underlying ubuntu are not unique to South Africa. According to these Justices, the concept of ubuntu is part and parcel of a universal phenomenon, embracing a universal value system.535 In Dikoko v Mokhatla Sachs J finds “the philosophy of ubuntu a philosophy which represents the element of human solidarity that binds together liberty and equality to create an affirmative and mutually supportive triad of central constitutional values which enrich the fundamental human rights enshrined in the 531 Jajbhay J inC ity of Johannesbur gpar. 62. 532 Mokgoro J inM akwanaynep ar. 307. 533 Jajhbay J also maintainusb untui s “universalistic”. SeeC ity of Johannesburg case. 534 Ibid par. 237. 535 Walzer (Van Blerk, 2004: 200; 201) denies the texnicse of universal values and argues that “norme ativ values of any community come from within, from comonm values, and not as liberalism claims from an overarching system of universal values”. 311 constitution”.536 In Port Elizabeth Municipality v Various Occupiers, Sachs J defines ubuntu as “a combination of individual rights with communitarian rights which unifies the motif of the Bill of Rights”. In Wormald NO and Other V Kambule, Maya AJA comes to the same conclusion, stating that “the spirit of ubuntu combines individual rights with a communitarian philosophy and serves as a unifying motif of the Bill of Rights”. The values of ubuntu, it seems, subscribe to fundamental human rights and therefore to the Universal Declaration of Human Rights. This notion is affirmed by Chaskalson P in the same case when he equates the values of Western case law to the values of South Africa’s Constitution “and the new order established by it” and finds that they are consistent.537 The minority judgments of Mokgoro J and Sachs J in Dikoko v Mokathla emphasise the importance of ubuntu as a concept of reconciliation and restorative justice. Although restorative justice is not exclusive to African jurisprudence, it could represent a universal constitutional value familiar to both Western and African jurisprudence. In S v Williams538 and S v Makwanyane, the court held that South Africa’s open and democratic society is founded on the values of comparable Western democracies. Are ubuntu values consistent with the American value system, subscribing to a universal philosophy, or are they culture-specific? Whilst Mokgoro (1998: 10) states that “ubuntu botho are in consonance with the values of the Constitution generally, and those of the Bill of Rights in particular”, Mokgoro J indicates in S v Makwanyane that ubuntu denotes African morality. Ramose too suggests there is far more to this alliance between ubuntu and morality or African religion, than has surfaced in South African courts. According to Ramose, the ubuntu philosophy of law is the continuation of African Religion. M’Baye (1974: 138) states that traditional African jurisprudence is “rarely a 536 According to the postamble of the 1993 Interim sCtoituntion, it strives to build a bridge between the past of a deeply divided society and a future foeudn odn the recognition of human rights. 537 Ibid par. 58. 538 1995 3 SA 632 (CC) par. 77 states that “senten ocfin ogffenders must conform to decency recognized throughout the civilized world”. 312 legitimate claim supported by a pre-established rule. It is rather and above all the opportunity given to all, to live under the protection of the community of men and spirits”. Bohler-Muller (2005: 275) suggests that “[i]n their attempt to legalise the value of ubuntu, the Constitutional Court Justices in Makwanyane remained silent about indigenous spiritual wisdom, magic, mythology, legends and proverbs as these teachings do not fit easily into [Western] legal discourse”. As the 1996 Constitution guarantees rights of religious freedom in ss 15 and 31, the courts surely would not entertain specific religious values539 over others. The BHE case revealed that the rule of male primogeniture or subsidiariti, fosters patriarchy540 and gender inequality. Such benevolent paternalism is, according to Bohler-Muller (2005: 278), “bothersome to feminist and human rights activists who seriously question the humanitarian ideals of ubuntu”. If ubuntu values are consistent with values of American liberalism, yet at the same time representative of communal values541, what are ubuntu values? The courts have given content to certain of the values by referring to the concept of ubuntu in S v Makwanyane. In this 1995 case, the Constitutional Court identified dignity not only as a right, but as a Constitutional value. The fact that the 1993 Constitution did not mention dignity as a right but as a value is noteworthy. In Makwanyane, Chaskalson P argues as follows: “Respect for life and dignity, which are at the heart of s 11(2), are values of the highest order under our Constitution. The carrying out of the death penalty would destroy these and all other rights that the convicted person has”.542 Mokgoro J also seems to confuse rights with values, and says: “respect for and protection of human dignity has been a central value in South African jurisprudence”.543 Has the court simply confused values with rights, or are values more valuable than rights? (Kroese, 539 In Christian Education South Africa v Minister of Edauticon 200 (4) SA 757 andP rince v President of the Law Society, Cape of Good Hope, and Oth1e9r9s8 8 BCLR 976 (C) the respective courts held tthea t constitutional right to freedom of religion can ibnefr inged if the infringement is reasonable andt ifjuiasble in terms of s 36 of the Constitution. 540 Patriarchy and the right to equality are irrecolanbclie ideals. 541 S V Makwanyanpea r. 224 (per Langa J). 542 Ibid par. 111. 543 Ibid par. 310. 313 2001; 270). According to Kroese, the “law making” in Makwanyane “was not only accepted but also included in the text of the 1996 Constitution”. Kroese (2001: 270) contends that the court also held the following rights as values in the text of the Constitution: • Respect for life in the context of the death penalty.544 • Values of the constitutional state, or “regstaat” as laid down in detail in s 33 of the 1993 Constitution.545 • The fact that the prosecution must prove the guilt of an accused is regarded as a “fundamental constitutional value.546 • The prohibition of arbitrariness.547 • “The values of openness and tolerance enshrined in the Constitution”.548 • The separation of powers.549 • Public accountability, openness and democracy,550 and • “Freedom of expression, …freedom of conscience, religion, thought, belief and opinion are also constitutionally protected values”.551 The above, according to Kroese, are in addition to the triad of values: equality,552 freedom and dignity, which are constantly repeated as a mantra by the court.553 Kroese’s (2001: 271) conclusion is that the court’s formalism presumes that 544 S v Makwanyan pear. 111 (per Chaskalson P). 545 Ibid par. 156 (per Ackerman J). 546 S v Mbaal; S v Prinslo o1996 (2) SA 464 (CC) par. 7. See aSls ov Coetzee1 997 3 SA 527 (CC) par. 14.“The presumption of innocence is acknowledgead f uan damental value in the criminal justice systoefm comparable democracies”. 547 S v Lawrence, S v Negal , S v Solb1e9rg9 7 (4) SA 1176 (CC) par. 33 (per Chaskalson P). 548 S v Lawrence, S v Negal , S v Solb1e9rg9 7 (4) SA 1176 (CC) par. 164 (per Sachs J). 549 De Lange v Smuts N1O9 98 (3) SA 785 (CC) par. 178. 550 Pretoria City Council v Walke1r 998 (2) SA 363 (CC) par. 56. 551 National Coalition for Gay and Lesbian Equality vin Mister of Justice1 999 (1) SA 6 (CC) par. 38. 552 Albertyn and Goldblatt (1998: 249) argue that eliqtyu as a right and equality as a value are ce ntotr al the task of transformation. Whilst as a value, elitqyu gaives substance to the vision of the Consitoitnu,t it provides the mechanism for achieving substantivuea leitqy as a right. According to the authors, thiesr ea relationship between a right and value: “The vaislu ues ed to interpret and apply the right; it metahnast the right is infused with the substantive content oef vthalue”. 553 Section 39(1) of the 1996 Constitution require sju odfges interpreting the Bill of Rights in any cto, ur tribumal or forum to promote the values that unidee arln open and democratic society based on human dignity, equality and freedom. 314 values exist in some reified form somewhere where its meaning can be ascertained objectively: a naturalistic vision of universal American values. “And it’s really nice to think that constitutional decisions are made based on a ‘self- conscious commitment to different values’ that can be known objectively. Nice but totally unbelievable” (Kroese, 2002: 271). To follow the court’s legal arguments on Constitutional values is to say the least, very confusing. The Constitutional Court’s lack of clarity on what South Africa’s new democratic values embody has evidently reverberated through the ordinary courts. One has to concur with English’s (1996: 646) conclusion on the concept of ubuntu when she says as follows: “Is ubuntu then, a genuinely useful jurisprudential tool, or does it simply mean all things to all men”? In deconstructing the courts’ inconsistencies surrounding the concept of ubuntu one has to conclude that the social engineers will have to put in more effort to reconstruct a representative South African jurisprudence. Although the 1996 Constitution assures South Africans that values554 form the foundation of the South African state, reference to ubuntu was omitted in the text. According to Lenta (2001: 179), the 1996 South African Constitution is an amalgam of the written Constitutions of the United Sates of America and Europe, heavily influenced by constitutionalists of the first world. Although our Constitution conforms to liberalist universalism, it cannot ignore the culture- specific communitarian jurisprudence of the African community, which in itself is a source of South African law. Whilst indigenous law has been restored its legitimate status in the 1996 Constitution, individual autonomy continues to undermine communal values. African communitarianism continues to challenge the traditional Enlightenment goals of universal liberalism, represented in South Africa’s Constitution, to accommodate communitarian values in a new jurisprudence. Whilst liberalism seeks self interest, communitarianism 554 Section 7(1) of the Constitution describes thel oBfi lRights as a cornerstone in the democracy ouft hS o Africa which enshrines the rights of all peopleo iunr country and affirms the democratic values omf ahnu dignity, equality and freedom. 315 subordinates self interest to the morality of the community: “two diametrically opposed types of substantive political society build upon equally polar principles of association” (Van Blerk, 2004:202). Only by deconstructing opposing truths555 can we open up oppositions to dialogue and deliberation and reconstruct pluralism and a representative rainbow jurisprudence. Mokgoro (1998{b}: 53) maintains that ubuntu should become central to a new South African jurisprudence and to the revival of sustainable African values as part of the broader process of the African Renaissance. Since March 2004, the Ubuntu Project explores the use of ubuntu as a justiciable project, both as a founding legal ideal and as a working legal principle (Cornell, 2005: 195). In Bantu Philosophy556, Tempels presented seriti or ubuntu, as an alternative philosophy or metaphysics to Western philosophy’s idea of universal truths. The African worldview however, seems to be a well-hidden truth; a worldview not deliberated557 in court. According to Mutwa (2003: 21), the reason for this is that African people feel that “white people’s attitude, belief or disbelief regarding whether there is anything valid or important in our culture affects our soul. That is why we are sometimes very guarded or careful around white people. They mistake it for fear or reserve, but we feel the white people are not sensitive to things of the soul as we are”. According to Mutwa (1996: 9; 2003: xv), any African who discloses the secrets of traditional African societies is despised by his or her people. In an effort to overcome this ideological bias standing in the way of meaningful legal and philosophical engagement regarding the concept of ubuntu, it is 555 According to Van Blerk (2004: 216u),b untu values that express African humanity and frate rhniatyve been systematically underprivileged in the pasta ubseec of the dominance of Roman-Dutch law. 556 According to TempelsB, antu Philosophyd iffers from European or Western philosophy in thit aits founded on the philosophy of vital force, a grour pf oolk philosophy, accepted by everyone as theh trfourt the community. 557 Mutwa (1996: 9; 2003: xv; xviii) reveals that nont ly he, but also Dogon Ogotomelli and Marcel Griaule felt compelled to break their vows of seccyr eto open up their knowledge of tribal secretsm f ro traditional societies. They have all seen the ctr apgoissibility that the tradition of their people uwldo be lost forever “through cultural death and dismemberme nt”. 316 necessary to venture into African philosophy’s “exclusive territory” and deconstruct the meaning of ubuntu: to unveil ubuntu which has up to now been “veiled in a heavy kaross of mystery”. 4.5 UBUNTU: A DEFINITION As in the case of African philosophy, there are many definitions of ubuntu. Ubuntu is generally defined as umuntu ngumuntu ngabantu; motho ke motho ka batho or humanness. The concept of ubuntu encompasses brotherhood, culture558, African Religion, traditional African values, justice and law. Bhengu (1996{a}: 5) defines ubuntu as a “humanistic experience of treating all people with respect, granting them their human dignity”. According to Bhengu, the non-racial philosophy of ubuntu encompasses values like universal brotherhood, sharing and respect for other people as human beings. Bhengu (2006: 42) also defines ubuntu as a “moral philosophy” and “humanness” (1996{a}: 5). Mbigi (1997: 2) defines ubuntu as “a literal translation for collective personhood and morality.559 It is best described by the Xhosa proverb, umuntu ngumuntu ngabantu, which means I am because we are. We have to encounter the collective we, before we encounter the collective I. I am only a person through others”. Mbigi (1997: 30) defines ubuntu as “our way of life, our collective solidarity, born out of our kinship culture and it is the heart and soul of our existence”.560 Broodryk (2006: 17) defines ubuntu as “a comprehensive ancient 558 The different cultures in Africa are not homogesn oaund will not be discussed. More emphasis will be laid on shared experiences amongst all Africans. 559 In S v Makwanyan eMokgoro J definedu buntu as follows: “Generallyu buntut ranslates as ‘humanness’. In its most fundamental sense it translates aso pnheorsod and ‘morality’. Metaphorically, it expres sitesself in umuntu ngumuntu ngabantdue, scribing the significance of group solidarity sounr vival issues so central to the survival of communities. While it envelophse tkey values of group solidarity, compassion, erects,p human dignity, conformity to the basic norms andll ecotive unity, in its fundamental sense it den otes humanity and morality. Its spirit emphasises rets pfoerc human dignity, marking a shift from confrotniotan to conciliation”. 560 Mbigi (1997: 31) illustrates the African notion ocfollective solidarity with the following African proverb: “The power of the fish is in the water”.b Migi posits that it is almost impossible for ther iAcaf n elite to be empowered without collective solida raitnyd collective empowerment. 317 African worldview based on values of intense humanness, caring, sharing, respect, compassion and associated values, ensuring a happy and qualitative community life in the spirit family”. Makhudu (cited by Broodryk, 2006: 21) defines ubuntu as follows: “Every facet of African life is shaped to embrace ubuntu as a process and philosophy which reflects the African heritage, traditions, culture, customs, beliefs, value systems and extended family structures”. Khanyile (cited in Broodryk, 2005: 14) defines ubuntu as “the common spiritual ideal by which all Africans south of the Sahara give meaning to life and reality”. In these definitions Bhengu, Mbigi and Khanyile define ubuntu as a moral philosophy and Broodryk and Makhudu define it as an African worldview. Broodryk and Mbigi emphasise that ubuntu represents African values and collective personhood. Ubuntu is the ancient African worldview which represents African morality and its accompanying value system of its communitarian societies. In S v Makwanyane Mokgoro J states that ubuntu is generally translated as “humanness”.561 Broodryk (2007), Koka and Teffo (cited in Bhengu, 2006) and Ngubane (2006) are of the opinion that “humanness” does not convey the essence or meaning of ubuntu or umuntu ngumuntu ngabantu. Koka et al. (cited in Bhengu, 2006: 46) argue as follows on the use of “humanness” as synonym for ubuntu: “Asking an African philosopher for the meaning of ubuntu, a European will hear that ubuntu means ‘humanness’. However, ubuntu has more to it than this polite and forbearing answer, an explanation of ubuntu needs all kinds of associations, images and experiences; ubuntu resists the dictate of Western logic and Western rites of argumentation with their demands for distinctive definitions”. Their dissent is a clear indication that the English word “humanness” is insufficient to describe the rich concept of ubuntu. Ngubane too, laments the simplistic English translation of ubuntu, as the English translation does not encompass ubuntu as a moral philosophy. Ngubane (cited in Bhengu, 2006: 42) laments the superficial translation of ubuntu as “humanness” and says: 561 Ibid par. 308. 318 “This is too simple an understanding, touching only the visible aspects of ubuntu in operation. More completely understood, the word refers to a moral philosophy deriving from the dictum that umuntu ngumuntu ngabantu - a person is a person through other people”. The word “humanness” does not describe the concept of ubuntu. Like Mokgoro and Tutu, Koka et al. confirm that ubuntu is difficult to define as “ubuntu resists the dictate of Western logic and Western rites of argumentation with their demands for distinctive definitions”. Mokgoro, Tutu and Koka et al. agree that ubuntu represents African spirituality or Africa’s moral philosophy. Although ‘humanness’ seems to be a general English translation for the African concept of ubuntu, it is important to note that Africans do not regard the English translation as representative of the African meaning of ubuntu. Ubuntu seems to be inextricably linked to African morality, something never deliberated in court. 4.6 UBUNTU: AFRICA’S PHILOSOPHY OF LIFE562 Where does ubuntu563 fit into African philosophy?564 In Oruka’s Four Trends, he distinguishes between the trends in African philosophy, viz. ethnophilosophy, philosophic sagacity, nationalistic-ideological philosophy and professional philosophy. According to Broodryk (1997{a}: 33), ubuntu represents the “recovery of the logic of brotherhood in ethnophilosophy” for ubuntu represents the collective personhood and collective morality of the African people, best described by the Xhosa proverb, umuntu, ngumuntu ngabantu or I am a person 562 Bhengu (1996: ix) describeusb untu as follows: “Ubuntu is an African product. It isd iingenous African philosophy. It is an African way of life. It was tn oimported from Eastern or Western Europe. It is something out of Africa”. 563 The Zulu refer to African collective unity or bhroetrhood asu buntu; ubuntu or umuntu in Xhosa ,botho in Sesotho;b unhui n Tsonga;v huthui n Venda;n umunhui n Shangaann; unhui n Shona;u tu in Swahili, and abantu in Ugandan (Broodryk, 2002: 27). Broodryk (2007:) 2tr3anslatesu buntu in Cape Afrikaans as “Menslikgeit” and in Afrikaans as m“ ede-menslikheid. ”Ubuntu is translated as “humanness” in Engl i sh. 564 Bhengu (2006: 101) viewusb untua s a form of African philosophy. 319 through other persons.565 Ethnophilosophy is the only trend which reflects the religious and collective philosophy of indigenous African people or ubuntu philosophy. Mbiti (1991) translates this Xhosa proverb umuntu, ngumuntu ngabantu as “I am because we are: and since we are, therefore I am”. The African idea of personhood “I am because we are: and since we are, therefore I am” and “I feel therefore I am”566 are vastly different from the Western idea of personhood embodied in Descartes’567 “I think therefore I am” (Okolo cited in Imbo, 2002: 140). Nkruma’s Consciencism represents Africa’s collective philosophy, either as the worldview of a specific African community or that of Africa as a whole. Nyerere’s Ujamaa568 as vision for the ideal African society based on traditional African family values also represents this collective philosophy, or ethnophilosophy. The philosophical contributions of Mbiti, Mutwa, Senghor, Gyekye, Kagame, Tempels and others are examples of ethnophilosophy. Oruka (2002{a}: 121) defines ethnophilosophy as “works or books which purport to describe a world outlook or thought system of a particular African community or the whole of Africa”. He (2002{a}: 121) finds this “folk philosophy” very different from Western philosophy’s individualistic, scientific and logic tradition. In ethnophilosophy, “communality as opposed to individuality is brought forth as the essential attribute of African philosophy” (Oruka, 2002{a}: 121). Oruka’s (1990{a}: 43) critique against ethnophilosophy lies therein that he regards it as a “communal 565 In this proverb other persons’ include the ancress. tToheron (1995: 34 -35) critiqueusb untu as follows: “Quite simply, if a person is a person through opnesrs then no one is a person. The closest thing p teor saon seems to be a tribe. For the proverb certainly dnooet ssimply say, nor does it mean, that a persolyn on comes to beth rough other persons. Rather, it says that amhoen ga pt pearances of human beings only those are persons, and thus possesses of the correspg odnidginity, who are in a certain relation with otsh er persons, who are not, for example, cut off from ttrhibee … A sound philosophy of personality, tha, t hisas to be biologically, not socially, still less triblya lbased. Then the invidious question, who is o nr oist a person does arise. As for the ethical implicati otnhse, proverb simply side-steps the slow Western development of the idea of personal responsibili tTy…he proverb teaches Africans to evade respontsyi,b ili rather, to hide behind the collective decisionh oef ttribe”. 566 Senghor (1963: 447) said: “Emotion is completeleyg Nro as reason is Greek … Yes, in one way, the Negro is richer in gifts than in works”. 567 The French philosopher Rene Descartes, the faotfh mero dern philosophy and best known for his thesis on dualism, “uttered perhaps the most famous sceen teinn the history of philosophy: ‘I think therefo Ir e am’”, signifying the essence of Western Philosop “hthye: thinking of the thinker” (Mannion, 2002: 27. 3) 568 See Nyerere, J.K. 197U9.j amaa-Essays on SocialisAmru. sha: Oxford University . 320 consensus. It identifies with the totality of customs and common beliefs of a people. It is a folk philosophy … it is not identified with any particular individuals … It is at best a form of religion.” According to Oruka (2002{a}: 120), ethnophilosophy does not comply with the standards set for universal Western philosophy and does therefore not constitute philosophy in the strict sense. Oruka (2002{a}: 121) finds that the shortcoming of ethnophilosophy lies in the fact that it represents the group’s mythical, uncritical and emotive part of the African tradition. African feminists criticise ethnophilosophy for portraying the collective belief system in traditional African societies “whilst ignoring the structures in African societies that oppress and marginalize women” (Imbo, 1998: 68). African feminists, viz. Oduyoye, Ramodibe, Zoe-Obianga, agree that traditional African societies are entrenched in a patriarchial worldview that keeps African women in a state of submission. African feminists agree that the African worldview, called ubuntu, violates human rights and shows no respect for gender equality and human dignity of African women. Ubuntu highlights the stark contrast between African communalism and Western individualism. Whereas a person in the West is defined as an individual, the African worldview defines a person as a member of the community. Truth, says Ramose (2002{b}: 124-125), is not embodied by individualism, but by strong communitarianism. “Thus the search for the truth about the universe must begin from the realisation that placing the ‘self’ at the centre of the universe is already to obstruct the path to truth. To place the ‘self’ at the centre of the universe is to stand at the very edge of the precipice of authoritarian absolutism and dogmatism”. According to B.J. van der Walt (2006: 28), “[t]he kind of collective action that the West calls ‘community’ fails to fulfil the communal aspect of human personhood. In the West individuality, which also belongs to personhood, is highly developed, but communality remains severely underdeveloped”. In traditional Africa ubuntu means African solidarity, an indivisible whole. Africans do not distinguish between spiritual and physical existence. They have a holistic 321 worldview which is defined by the spirit world. Turaki (1997: 54) states that “the spiritworld defines the African worldview and life”. Every facet of traditional African life embraces ubuntu, the African philosophy of life.569 Ubuntu is a philosophy reflecting African heritage, traditions, culture, customs, beliefs, values and the extended family570 (Broodryk, 1997{a}: 30). According to Dlomo (as cited by Broodryk, 1997{a}: 33), ubuntu’s greatest strength is that it is “an indigenous, purely African, philosophy of life”: something novel out of Africa. Because ubuntu is perceived to represent the African worldview, or philosophy of life, ubuntu is described as the essence, crux or root of African philosophy. Ramose (2002{b}: 40) argues that ubuntu is the root of African philosophy; not only because it is the “being of an African in the universe inseparably anchored upon ubuntu but also because the African tree of knowledge which stems from ubuntu is connected indivisibly to it”. According to Ramose “[u]buntu therefore is the wellspring flowing with African ontology and epistemology. If these latter are the bases of African philosophy then African philosophy has long been established in and through ubuntu”. Ramose regards ubuntu as the basis or root of African philosophy571, “the philosophical foundation of African practices among the Bantu speaking peoples of Africa” (2002{b}: 8; 43). 4.6.1 Ubuntu: a Shared Value and Belief System As Africa’s philosophy of life, ubuntu represents the African subcontinent’s shared valued and belief system. Abraham (1962), De Tejada (1979), Ramose (2002{b}), Mbiti572 (1991), Gyekye573 (1996), Broodryk (1997{a}; 2002), Cabral (Hallen, 2002) and others concur the indigenous people of Africa share 569 Broodryk (2007: 112) calls Africa’s philosophy loiffe “the sacred philosophy oufb untu”. 570 Senghor sees the uniqueness of the Negro’s phpihloys oin the fact that, unlike the West which compartmentalises human experience, it does nfoetr edniftiate between philosophy and culture. 571 Serequeberhan (1991: 17) defines African philoys oapsh a philosophy incarnated in the mythical or religious conceptions, worldviews and lived praecsti cof ethnic Africans. 572 Mbiti (1991: 5) confirms that all African peoplere a deeply religious. 573 Gyekye (1996: 55-56) maintains that certain va luarees shared across the board by all indigenous African societies. 322 fundamental beliefs and values. Ramose (2002{b}, 40-41) agrees with De Tejada that ubuntu philosophy extends “from the Nubian desert to the Cape of Good Hope and from Senegal to Zanzibar”; that ubuntu represents the worldview of all “Bantu speaking peoples of Africa” (Ramose, 2002{b}: 8; 43). It is common knowledge that African cultures differ from one another, but Cabral maintains that despite cultural differences, Africa’s distinctive indigenous worldview stretches “from Carthage to Zimbabwe, from Meroe to Benin and Ife, from the Sahara to Timbuctoo to Kilwa, across the immensity and the diversity of the continent’s natural conditions” (cited in Hallen, 2002: 76). Phalafala (Broodryk, 2007: 19) agrees that ubuntu is found “all over Africa and in South Africa this ubuntu tendency is called Batho Pele”. Khanyile (cited in Broodryk, 2005; 14) states that ubuntu is “the common spiritual ideal by which all Africans south of the Sahara” live. Ubuntu represents the indigenous African worldview of all Bantu speaking people in sub-Sahara Africa. “The philosophy of ubuntu also explains the solidarity of African states and nations. The concept of ubuntu is found in all African languages in different words, but all are embracing the same values” (Broodryk, 2007: 8). Like all religious philosophies, ubuntu has a place of origin. Bhengu (2006: 20) posits that ubuntu came from God to the Egyptian gods: “interpreted and written down by Toth Hermes; disseminated to the people by all Egyptians kings and priests and then spread throughout the whole world”.574 Bhengu describes that as people moved away from the encroaching Sahara desert, Africans migrated to the sub-Sahara region, West Africa, Central Africa, East Africa and Southern Africa.575 According to Bhengu, “ubuntu philosophy was within them, and they lived it day and night”. Ubuntu therefore underlies every indigenous culture in South Africa and represents “a family atmosphere, a kind of philosophical affinity and kinship among and between the different indigenous people of Africa … the 574 See 4.10.1. 575 SeeT he Mfecane Aftermath; Reconstructive Debates uinth Seorn African History(.Ed.) Hamilton.1995. Johannesbyrg: Witwatersrand University Press. 323 blood circulating through the family members is the same in its basic sense” (M’Baye, 1974: 138). Broodryk (2002: 17) describes ubuntu as a universal African concept which is found amongst all African cultures and in all African languages, and although different languages have different names for ubuntu, its basic meaning and worth remains the same. The notion of ubuntu as the African worldview, or African weltanschauung is confirmed by Oruka (1991), Ramose (2002), Broodryk (1997{a}), Mbigi (1997), Mutwa576 (2003) and Bhengu (2006). Ubuntu as a worldview is “fundamentally holistic” (Ramose, 2002{b}: 93), an indivisible whole which consists of “the construction of myths and oral traditions, and the rules of good behaviour which have been taught to our children for centuries” (Oruka, 1991: 49) and which engenders a spirit of community and caring for one another (Bhengu, 2006: 43). Most important, the African worldview or reality has a deep spiritual dimension to it. For Kgamphe-Kgamphe (cited in Bhengu, 2006: 31), the African spiritual dimension differentiates ubuntu from other worldviews. According to Kgamphe- Kgamphe, no worldview, be it Afrocentric, Asiocentric or Eurocentric, has such a deep involvement of the soul as ubuntu. In African reality social and religious systems are not compartmentalised. African Religion is so integral in the traditional African worldview that “our entire lives as blacks are based and influenced by our religious beliefs in both thought and practice, both consciously and unconsciously (Mbigi, 1997: 33).577 This deeply religious nature of African people is so central to African living that it is difficult to separate African Religion 576 Mutwa (1998: 559) states that for all races of mexacnept Africans, religion, medicine, politics, esncci e, military affairs, economic affairs and religion asre t apart from one another. For the Black man, “everything he does, thinks, says, dreams of, h ofopre, sis moulded into one structure – his greati ebf.e l Things like disbelief, doubt, agnosticism, athei sdmis,obedience are entirely unknown, unfathomable, senseless, within the framework of the Great B”e. li eCf redo Mutwa is a sage, philosopher, seer, well known sangomai,n yanga, healer ,and a psychic. He is a HigSha nus i(‘clairvoyant and lore-master’ or pejoratively called “witch doctor”) and the leadoefr over 500 traditional healers; a guardian oveibra tl r history; a keeper of traditional stories and ane ellexcnt storyteller (Muwa, 1996: 9; 2003: xv). 577 Nyirongo (1997: 2) illustrates this notion as ofowlls: “If for example, a man wears a tooth of a lion around his neck, he has at his command the pow tehre o lfion itself; if he rubs the remains of a co binrtao the skin of his arms and hands, he is bound tos bdee adly as the cobra’s venom during a fight agt ahiinss enemy. If, during a hunting expedition, a hunterirk ests the foot marks of a buffalo with a spear,h haes actually made the buffalo impotent so that it isa bulne to run away. If a man does anything evil tnoa ail or hair of his enemy he is sure of harming him”. 324 from African philosophy: “religion is in their whole system of being” (Mbiti, 1991: 3: 5). Justus Tsungu emphasises the inextricable link between ubuntu and morality as follows: “Africa’s most powerful moral way of living to others: ubuntu!” (cited in Broodryk, 2007: 3). African philosophers, viz. Bhengu and Ramose, see ubuntu not only as Africa’s indigenous collective philosophy which propounds caring, sharing and respect for one another, but as a potential world philosophy that can contribute to world peace. Bhengu (2006: 101) posits “[u]buntu is a tool for transformation in a context of globalisation … Ubuntu as a form of of African philosophy thus blends in with other potential, imagined or actual gifts of Africa to the wider world”. Ramose (cited in Bhengu, 2006: 101) argues that ubuntu can inspire the wider world “to give a new and profound meaning to the global debate on human rights”. Ramose (2002{b}: 128) argues that ubuntu “can make a significant contribution to world peace by leading the way to the restoration of botho; the first essential step to peace with oneself as well as world communal peace”. This utopian male view of ubuntu is however contradicted by African theologians Nyirongo (1997), Turaki (1997) and Oduyoye (2001), as well as African feminists. Apart from the whitewashing of ubuntu, says Nyirongo (1997: 149), “they have said nothing at all about the violence that goes on within the tribe because of its faulty view of office, authority, power and irresponsibility. This in my view is an illusion … the caring and sharing atmosphere we see is not as innocent as it appears!” African feminists, as will become evident, agree that ubuntu represents a patriarchal philosophy entrenched in gender-based violence, oppression, and human rights578 violations. 578 From anu buntu point of view, Ramose (2002{b}: 145-148) describheusm an rights as follows: “All theories of human rights regard the fact of beiunmg ahn – humanness – as their starting point. Humigahnts r theories then proceed to ascribe value to or deinter mthe worth of the fact of being human. It ise cpisr ely at this level of valuation that disputes arise ceornicng the meaning of human rights. Accordingly i,s it value orientation to humanness which constitutes f othundation of conflicting theories of human risg h…t the west appears intent on imposing upon othetrhse i nn ame of democratisation, universalisation omf ahnu rights and globalisation. But the particular exepnecrie and history of the West cannot be a credirb le o absolute substitute for the history of the whole rldw.o Underlying this tendency is the practice of absolutising certain values on the one hand anodg am datic unlinear conception of human history on the other. Furthermore, the fragmentation of the humbeain g into a pastiche of rights may be interesftrinogm 325 4.7 UBUNTU AS AFRICAN COMMUNITARIANISM Unlike the Greek idea of man as a rational animal and Western philosophy’s notions of Western liberalism and humanism, traditional African societies define the African person in terms of community. This section will look at the following: • Ubuntu as African communitarianism. • Ubuntu as extended family. • Ubuntu as solidarity, and • Ubuntu and the individual. Whilst Western philosophy propagates individualism, ubuntu is anti- individualistic and communitarian. Because individualistic behaviour is not encouraged and people have to adhere to group behaviour, communitarian societies are regarded as closed societies. Popper (cited in Broodryk, 1997{a}: 88) defines a closed society as a society characterised by belief in magical taboos and superstitions. Open societies give preference to reason. As the ubuntu worldview is “essentially spiritual” the community has a “moral obligation to conform to traditions, and conventions override any desire for change or nonconformity. The conception is that the best in life lies in the past; the world of the ancestors and the origin” (Turaki, 1997: 49). Ubuntu communitarianism represents collective solidarity and rejects Western atomistic individuality. Western individualism ultimately results in the disintegration of ubuntu and the destruction of communal solidarity and the Western philosophical point of view. Howevehr,e tconcept of a human being based upon this fragmentation is philosophically tenuous. It arabriitlry detracts from the fact that at any given monmt ien time the human being is a wholeness and not fragtsm toen be pieced together into a theory of right sa nads when the free enterprise economic system dictat essin …ce the domestic household is anterior bothd eina i and in fact to the gathering of men into a commoanltwhe, the former must necessarily have rights and duties which are prior to those of the latter, awnhdic h rests more immediately on nature. If thez ceintis of State – that is to say, families – on entering ianstsoociation and fellowship, experienced at thed sh aonf the State hindrance instead of help, and found thgehirt sri attacked instead of being protected, suchc iaastisoons were rather to be repudiated than sought after”. 326 brotherhood. Ubuntu only manifests through interaction with others in the community, and is best illustrated by the Shona proverb “A thumb working on its own is useless. It has to work collectively with the other fingers to get strength and be able to achieve anything”. Senghor579 (1964: 93-94) describes the African sense of community as follows: “Negro- African society puts more stress on the group than on individuals, more on solidarity than on the activity and needs of the individual, more on the communion of persons than on their autonomy. Ours is a community society”. Ubuntu580 can be described as a way of life that contributes to the common good of society (Bhengu, 1996: 10). Ubuntu is African humanism.581 Whilst Western humanism propagates individual liberties and civil rights, African humanism is rooted in traditional African values (Hallen, 2002: 40), African Religion and community.582 Senghor, Kenyatta, Nkrumah, and Nyerere with his idea of Ujamaa, familyhood or African socialism, believed in the unique features of African communitarianism. 4.7.1 Ubuntu as African Communalism “One of the fundamental aspects of our culture is the importance we attach to man. Ours has always been a man-centred society. Westerners have on many occasions been surprised at the capacity we have for talking to each other”. Biko (1998: 26) propounds the essence of African society as African communitarianism. As Mbiti (1992: 2) posits: “To be human is to belong to the whole community, and to do so involves participating in the beliefs, ceremonies, 579 Senghor (1964: 73) describes the “Negro-Africanc iestoy as collectivist, or communal, because it reflects the communion of souls, rather than thger eaggate of individuals”. 580 Tutu describesu buntu as “the essence of being human, it is part of tifht eA gfrica will give the world. It embraces hospitality, caring about others, beinlglin wg i to go the extra mile for the sake of otheWrse. believe a person is a person through another p,e rtshoant my humanity is caught up, bound up and inextricable in yours. When I dehumanize you, Ix ionreably dehumanize myself. The solitary human b eing is a contradiction in terms and therefore, your ahnuimty comes into its own community, in belonging” (cited by Wilkinson, 2002: 356). 581 African humanism has been a current theme in dssisiocun over the years, attempting to identify va lues and life-practices that distinguish indigenous cAafrni people from Westerners. The spirit of African humanism isu buntu. 582 Strong communitarianism endorses communal life vaanludes and maintains it is a more satisfying way of life than individualism offered by liberalism.t rSong communitarianism rejects the notion of unsivael r foundations of truth; it views community as the rscoeu of truth and values (Van Blerk, 2004: 195-1 96). 327 rituals and festivals of that community”. Like Biko, Nyerere and Kaunda emphasised the importance of African communalism and its accompanying values caring, sharing and respect for one another. Communitarianism583 is the cornerstone of ubuntu.584 The African community is ubuntu: there is no ubuntu without community. The features of African communitarianism are not only unique if compared to Western liberalism585 but are the defining characteristics of traditional African life. African communitarianism, or strong communitarianism, posits that communal life and values are more fulfilling than Western liberalism. Van Blerk (2004: 202) views strong communitarianism and Western liberalism as “two diametrically opposed types of substantive political society built upon equally polar principles of association”. According to Van Blerk, strong communitarianism does not only focus upon community as the source of value, but also upon which value to follow. Strong communitarianism is not concerned with the “mere presence of shared values, but the content and scope of the shared values”. Strong communitarianism does not respect the plurality of values among diverse communities, but emphasises the “cultivation of the single value of substantive community” (Van Blerk, 2002: 202-203). Strong communitarianism represents what traditionalists argue: a single or unique set of collective values. Ubuntu’s unique values stand in stark contrast to universal Western values. 583 Gyekye (2002: 306) describes African communitaisriman as “radical or excessive communitarianism” Ramose, (2002{b}: 115) describes communalism also wfosl: “Communalism is the doctrine that the group constitutes the main focus of the lives of the vinidduial members of that group, and that the extef ntht eo individual’s involvement in the interests, aspiorantsi , and welfare of the group is the measure otf tha individual’s worth. This philosophy is given insuttiitonal expression in the social structures of cAafnri communalism”. 584 Biko (2007:113) describes the African community aa s“true man-centered society whose sacred tradition is that of sharing. We must reject, as h waeve been doing, the individualistic, cold apprho taoc life that is the cornerstone of the Anglo-Boer cultu re”. 585 Communitarianism opposes the idea of individua linsm Western liberalism. Liberalism is the epitome of individual autonomy, individual freedom and fuanmdental rights. Communitarianism regards community as the basis of life and opposes indiavli dauutonomy divorced from the group. “Personhoo d in the communitarian sense means presence and patritoicni pin the life of the community. Individual ritgsh presume the liberal conception of the self as adne pinendent being who joins social life only to hfuerrt self- centred interests and values” (Van Blerk, 2004:) .1 95 328 Two of the cardinal principles of ubuntu are the principles of collective confidentiality and collective transparency. Collective sharing of relevant information is the basis of the spirit of collective trust which is the cornerstone of African communitarianism (Mbigi: 1997: 102). The unique sense of community between persons of traditional African societies is a direct consequence of their communitarian social arrangements, their religion586 and values; their unique collective philosophy of life. The African community is, according to Somé (1997: 52), based on the following characteristics: unity of spirit; absolute trust; openness; love and sharing; respect for elders;587 respect for nature and the cult of the ancestors.588 Ubuntu reality defines indigenous African as community and juxtaposes itself with the Western reality of society as atomistic individuals. Ubuntu reality or strong communitarian societies are regarded as closed societies (Nyirongo, 1997: 139; Turaki, 1997: 61) because they are characterised by belief in magical taboos and superstition on the one hand, as Popper suggests, and on the other hand because the worldview applies only to the tribe or clan. In ubuntu reality individualistic behaviour is not encouraged. Individuals have to adhere to group behaviour589 because “the group is the dominant determining factor prescribing values, rules and morals” (Broodryk 1997{a}: 99). According to Gyekye (2002: 298), the life of the African person “totally depends on the activities, values, projects and practices, and ends of the community; and consequently, it diminishes his/her freedom and capability to choose or question or re-evaluate the shared values of the community”. The status quo and equilibrium is maintained without much effort. The African community is however not just one homogenous group of people as Tempels suggested; the 586 The community and its traditional way of life a“rcelo sely bound up with African religion” (Mbiti, 1991: 10). 587 Elders are the pillars and collective memory oef cthommunity. They hold the wisdom and traditions which keeps the community together. They initiahte tyoung ones, prescribe the rituals for various occasions and monitor the dynamics within the comnimty.u 588 “The ancestors live in the spirits in the commyu.n Tithey are reborn into the trees, the mountaihnes , t rivers and the stones to guide and inspire the cuonmitmy” (Somé, 1997: 52). 589 Even ownership of land is vested in the commu nTithye. highly prized Western principle of self- actualisation is therefore not attainableu binu ntur eality. 329 homogenous group consists of a “whole maze of relationships” (Nyirongo, 1997: 103) which is organised in a social hierarchy. Strong communitarianism results in closed communities which are characterised as hierarchical,590 status-conscious and centralised societies (Nyirongo, 1997: 149). According to Nyirongo, the chief is the symbol of the tribe’s glory and is perceived as a divine being. The chief and his ‘indunas’ are in charge of every social unit – family life, religion, economic activity, medicine and so forth. Authority in all social relations is delegated to the chief, and office bearers such as parents, priests, blacksmiths etc. are accountable to the chief as overall authority. Nyirongo (1997: 151) argues that because the chief and his governing body dominate all social units, society fails to develop normally. According to him, totalitarian rule emerges to inhibit all other legitimate authorities. 4.7.2 Ubuntu as Extended Family In traditional African communities591, the concept of family plays a crucial role, not only because it is the smallest unit in African society but also because values, religion and tradition are passed on from generation to generation. The survival of these communities is dependant on families. Unlike Western nuclear families, the African family embraces all those who have blood ties. Kaunda (cited in Broodryk, 1997{a}: 77) explains the extended family as follows: “I do not restrict the title ‘father’ to my male parent. I also address my father’s brothers as ‘father’. And I call my mother’s sisters ‘mother’ also. Only my father’s sisters would I address as ‘aunt’ and my mother’s brother as ‘uncle’. My ‘brothers’ would include not only the male children592 of my father but also certain cousins and even 590 See 4.11.3. 591 Mbigi (1997: 124) states that a person is “accde,p rtespected and given dignity simply because yreou a a human being and not because you are rich or yh iqguhal lified”. According to Mbigi, strangers are welcome and enjoy unconditional hospitality in Acafrni communities. They are however always perceived as strangers, as none of the tribal laws applhy etom t (Turaki, 1997: 61). 592 Khapoya (1994: 49) stresses the importance odf rcehnil in ubuntu society because they perpetuate the family name and social values and norms handed dboyw tnhe ancestors. Because children belong to the parents and the community “the kind of possessisvse ntoewards children that one finds in the Western world is rare”. It is common practice for Africanh ilcdren to be sent to relatives in other villagoe sli vte with 330 members of the same clan who have no blood relations to me at all”. The extended family or “inseparable trinity” (Ramose, 2002{b}: 122) stretches over many generations and includes the dead, the living and generations yet to be born. Because communitarian societies are hierarchical, the aged are respected. Old age is associated with wisdom, experience and knowledge. Any infant born into the indigenous African community belongs to the community. The community undertakes to bring the child up “according to the ideals of the tribe” (Mutwa, 2003: 164) and to turn it into a well-humanised member of the community.593 In ubuntu’s collective approach or extended family ethic, every community member becomes the mother, father, brother or sister of such a child and nurtures and cares for it as a member of the community. In ubuntu reality, relatives and elders have the same authority over the child as its natural parents and can therefore discipline the child.594 The reason for this is that, according to Mutwa (2006: 166), the family by itself is helpless in confronting misbehaviour. The extended family595 involves “three interrelated dimentions” (Ramose, 2002{b}: 47); not only persons who are alive, but also those who have passed away and others yet to be born.596 Because ubuntu reality is dualistic,597 the them. This practice is “an illustration of the haornmy and consistency in cultural values” and strheenngst kinship bonds. 593 According to Mutwa (2003: 165), it was the duty thoef grandmother to entertain children with sto ries and myths. Children were instructed about tribadl faanmily history by the brother of their mother , ointher words, their uncle. That is why the uncle is ca lmleadlumey, or teacher, in Zulu. “So it is the duty of the uncle, and not the father or mother, to teach thhiled rcen about sexual matters in Africa. I think st hisi because their parents have always hidden sexuatel rms afrtom the children when they were little, anodld t them babies arrive on the backs of great whitee esa. g…l This may raise some eyebrows in modern Eu rope and America, but even today in Zululand, a younglu Zguirl who is about to be married, first pays tau aril visit to the home of her uncle. There she is incstetrdu in finer ways of lovemaking and caring for the husband, the children who will come, and of carfionrg h erself”. Oduyoye (2002:101) cites Wamui’s report of approval of premarital sex for women as follo w“Asm: ong Akamba, a virgin is taken to her parent s as she is seen as not prepared for a husband. Thgise stusg that girls are expected to have their firosttu cs with a man who is not going to be a marriage partne fra. cInt the report states categorically that ‘Akammbaak e their girls have sex before marriage with a difnfet rme an’ ”. 594 “ I would send my son for a few months to my brotsh evril’lage to learn the law under new surroundings … when a child who was wayward and naughty founed e tnhtire family against him, he used to toe the lin immediately. This is why in Africa you found maneyl artives coming together to rebuke a naughty c hild” (Mutwa, 2003: 166). 595 Ubuntu’s extended family juxtaposes the nucleur family of Westernl irtey.a 596 The belief in reincarnation is a very significapniltl ar in African religion. When someone dies, he continues to live among his relatives as an anacle sptririt who protects them from danger and att etnod s 331 communal relationship of family reaches beyond the grave. “The constant communication between the living and living dead (ancestors) speaks once again of … the triad of the living, the living dead and the yet to be born which forms an unbroken and infinite chain of relationships which are characteristically a one- ness and wholeness at the same time” (Ramose, 2002{b}: 94). This relationship between the living and the dead is sacrosanct and unbreakable598 (Sebidi, 1998: 63). Every facet of African communal existence is shaped to embrace Africa’s philosophy of life. Ubuntu philosophy is reflected throughout the African heritage: traditions, culture, customs, beliefs, values and the extended family (Broodryk, 2002: 24). Ngubane (cited in Bhengu, 1996: 8-9) describes the meaning of ubuntu principles in traditional Africa as follows: • my neighbour and I have the same origins; same life-experience and a common destiny; • we are the obverse and reverse sides of one entity; • we are unchanging equals; • we are mutually fulfilling complements; • we have simultaneously legitimate values; their daily needs. In return, some spiritual saiccerisf are made in honour of the Spirit. People wheore w influential before their death may choose a sueit ahbolst or medium to possess regularly during apripartoep ceremonies and rituals. In African Religion, reirnncaation is viewed as an important opportunity fhoer t Spirit to return to its people, tribe and family b(Migi 1997: 52). 597 “As in the Platonic tradition, reality for the Acfrai n is dualistic, namely, the invisible and theib vleis or the experienced universe. But unlike the instantiateodrl dw in Plato’s theory of reality, for the Africatnh is world or the phenomenon is real, not a mere shadow o fi ntvhiesible. In the invisible or immaterial univer, se according to African ontology, dwells God, the heigsht being; the ancestors, or souls of the heacdlsa nosf and of the departed relatives; and nature gods, orit s.p Tirhis material real, on the other hand, const ahinuman beings, animals, plants, and inanimate beings” (loO, k2o002: 211). 598 “The ancestral spirit will constantly come back l otok after the living relatives as an invisiblee ergny centre. The ancestral spirit may enter and occuepoyp lpe, places, animals and trees. Ancestors araey sa lw alive, without bodies, and still play a major pianr to ur social life. We have to venerate them beec athuesy can act for either good or evil on behalf of thowsheo are still living in bodies. The belief in thpei rsit and reincarnation is central in our African way of l,i fceonsciously and unconsciously. Spirit possessbiyo n ancestors is a common event and sight in our Alifse .b lacks we live and act in a religious and supairli t world. Our social and religious systems are stryo ningtlerrelated, so that it is difficult to discuosnse without the other” (Mbigi, 1997: 32-33). 332 • my neighbour’s sorrow is my sorrow; his joy is my joy; • he and I are mutually fulfilled when we stand by each other in moments of need; his survival is a precondition for my survival; • no community has any right to prescribe destiny for other communities; • never prescribe destiny for another person; • my neighbour is myself in a different disguise; • equals do not prescribe destiny for each other; • to be inhumane is to be an animal [isilwane]; • all that one lives for is to be the best one can be; • every moment in one’s life one evolves, for perpetual evolution is one’s destiny; • every person extends himself/herself into humanity; • humanity is the blanket that covers one’s body, it is one’s flesh, it is the matrix in which one grows. It is the face of the infinity which sees itself; • wealth must be shared; • your neighbour’s poverty is your poverty; • allow no racism in our mind; • no race is great or small; • one’s mother is his/her Law; • one’s father is his/her Law; • one’s relatives and neighbours are the Law; • my society’s Law is my Law; • law is my sceptre; • knowledge is the challenge of being human so as to discover the promise of being human; and • to know the Law is the glory of being human. Ubuntu philosophy and its communitarian ideals oppose every facet of Western atomistic liberalism. Western liberalism juxtaposes the African communitarian view on community, law, spirituality, being a person, and equality. 333 4.7.3 Ubuntu as Solidarity In African societies the king599 and chief600 are the respective figureheads of the tribe and the village. Although the king’s kinship is hereditary, he is dependent upon the consensus of his tribal council and the lekgotla. The survival of traditional African communities is dependant on its collective brotherhood, collective values and consensus. If an important issue has to be addressed “every qualified male” (Ramose, 2002{b}: 113) has to attend the lekgotla. No one can be silenced as freedom of expression is paramount at the lekgotla.601 Sithole (cited in Bell, 2002: 113) emphasises the importance of freedom of expression at group meetings as follows: “Those who have lived in Africa know that the African people are democratic to the point of inaction. Things are never settled until everyone has had something to say. The [tribal] council allows the free expression of all shades of opinions”. Freedom of expression is tolerated within the group and is called the “law of participation and is basically emotive” (Senghor, 1964). As the well-being of the community is at stake, the individual’s judgment is not cultivated as wisdom, for “wisdom is not in the head of one person”.602 When important decisions have to be made, the will of the individual is submitted to the collective. For indigenous communities to survive, the communal ethos of African culture places a great value on solidarity. As tribal unity and solidarity lie at the heart of ubuntu, the solution or decision is seen as the achievement of the group as a whole. Ubuntu reality is grounded in communal solidarity known as consensus democracy. Consensus democracy in traditional African societies is based on the philosophy of ubuntu; “[u]buntu philosophy underpins democracy in African societies” (Bhengu, 1996: 23). 599 Mbiti (1992: 183) maintains kings are not merei tpicoall heads, but divine or sacral rulers who asc t a reflection of God’s rule in the universe. 600 In the community the chief and hinisd unas take charge of religion, economic matters andic jeu.s t 601 The following expression prevails for deliberatsio ant al ekgotla: “Le seke la mo tlhakola pele a fetsa go nyela which means the unclean anus of someone defe cmatainyg not be cleaned until the person has completed the process” (Ramose, 2002{b}: 113). 602 An Akan proverb. 334 “Bantucracy” or “African consensual democracy” is “based upon the inseparable trinity” of ubuntu (Ramose, (2002{b}: 122). Ubuntu’s consensus democracy603 differs from the concept of majority rule604, a charcteristic of Western democracies. The principle of majority rule is foreign to traditional Africa’s ubuntu reality. 4.7.4 Ubuntu and the Individual In contrast with Western liberalism which propounds atomistic individualism, ubuntu advocates that there is no life without community. Individualism “is a real European personality which is against African personality” (Abraham cited in Bhengu, 1996: 19); African personhood can only be defined in terms of wholeness (Ramose, 2002{b}:64). Kenyatta (cited in Gyekye, 2002: 297) has the following to say about Western individualism: “According to the Gikuyu ways of thinking, nobody is an isolated individual. Or rather, his uniqueness is a secondary fact about him; first and foremost he is several people’s relative and several people’s contemporary” 603 “This was the African form of democracy. Accord itnog Kenyatta, among the Gikuyu there was a ‘spirit of collectivity’ in the council’s meetings. No onsep oke in terms of the personal pronoun ‘I’. Inst eadch individual reverted to the ‘WE’. The ‘we’ stood oa lsfor the members of the lineage represented b y the elders because ‘it was the voice of the people uobrl icp that ruled the country. Individualism and f-sel seeking were ruled out, for every respective esldpeork e in the name of his particular group” (Mang, ena 1996: 58). According to Mbigi (1997: 28), “[t]ratidoinal African political systems and values treaesdu r democracy, freedom of expression, consensus, groraost s - participation, consultation and institutionalization to preserve the collective idsaorl ity of ubuntu above confrontation, foreign ideologies and personal cults; this ensured political stayb ailint d unity. These elements remain crucial andv arenlte to the task of nation building in modern Africa. 604 Mandela (1994: 21) describes how democracy is rusntodoed: “everyone who wants to speak is entitled to do so and everyone is heard whether it is cohrie sf ubject, warrior or medicine man, shopkeeper or farmer, landowner or labourer. In the African enovnimr ent, people spoke without interruption and mnegest i lasted for hours since all men were free to vohiceeir topinions and were equal in their value asz ecnitsi . Such meetings would continue until consensus wasc hreed. They ended in unanimity or not at all. “Democracy meant all men were to be heard and ias idoenc was taken together as a people. Majority rule was a foreign notion”. Mangena (1996: 56) stateast, tahccording to the oral tradition, women were not necessarily refused attendance at communal gagthse. rTinhey were however expected to listen only aontd n talk. 335 African communitarianism views the individual as secondary to the community and human rights as secondary to group rights; therefore, the welfare of the community is paramount over that of the individual. Imbo (2002: 146) states that no African is ever really independent. Imbo describes how the relational web of community begins before birth, because it is believed that constant interaction between spirits and the living persists everywhere. Imbo maintains “[p]ersonality is thus moulded through the relations with the spirits, ancestors, and the living (reincarnated ancestors) … p’Bitek is right that people are not born free”. Imbo (2002: 149) argues that freedom is won from the chains of societal life only in slow stages,605 and then never completely. According to Imbo, freedom at the beginning of life is symbolised by the umbilical cord: “a chain that later gives way to the chains of family, relatives, clan and society. Even though individuals do not choose their chains, it is those chains that free them”. Individuals are never free to account to themselves, but remain accountable to their ancestors and blood relations (Turaki 1997: 69). Individuals are free to make ethical choices, but their choices are subordinate to ubuntu’s shared code of ethics and the judgment of the superiors (Ephirim-Donkor, 1998: 119-120). As the individual does not have an identity of his own, he has to wait for the group to make decisions on his behalf. According to Nyirongo (1997: 61), the maxim ‘I am because we are and since we are, therefore I am’ illustrates that “the individual is only conscious of his own being, duties, privileges and responsibilities towards himself and other people in terms of other people”. Disobedience of an individual incurs the wrath of the ancestors. In Western liberalism, the individual defines the person he will eventually become but in African communitarian societies, the community plays a crucial role in the individual’s attaining of personhood. In Western reality the group does not determine the individual’s identity. As an autonomous person, he or she chooses his or her own identity. In contrast with Western society where man is the 605 Whilst Rousseau propounds that man is born fruete i,s b everywhere found in chains, p’Bitek mainta ins that for indigenous Africans, the chains precedrteh baind outlasts life. 336 architect of his life, the African individual in a strong communitarian society is not complete without the group. In the quest to obtain personhood the African individual has to progress from one social category to the next and only the group can qualify the individual for the next social category. “Personhood is however also something at which individuals could fail” (Menkiti, 1979: 159). In traditional Africa it is the community that makes the individual; on his own the individual has no existence.606 The African view is that “a person does not exist all by himself: he exists because of the existence of other people. The philosophical formula proclaims: “I am because we are, and since we are therefore I am” (Mbiti, 1991: 108). Contrary to Western reality, the African baby is not regarded as a person at birth. Whilst Western babies acquire human rights at birth, African personhood can only be achieved after successfully completing a prescribed step by step process. According to Mutwa (1998: 568-569), a child is born without a self or ena607 which only “builds up slowly of the memories and thoughts and the experiences as it grows up into a man or woman”. A child who dies without an ena cannot become an ancestor. In order to become a person, according to traditional African thought, such an individual has to go through “various community prescribed stages, and be part of certain ceremonies and rituals. Only at the completion of all prescribed stages does the human individual acquire the status of a person” (Ramose, 2002{b}: 65). Prior to all this, according to Ramose, the individual is regarded only as an “it” to indicate that the individual is not incorporated in the body of persons. Philosophies of Presidents Senghor, Nyerere, Nkrumah, Kaunda and Kenyatta 606 Tempels (1959: 103; 108) emphasises that “[t]hnet uB acannot be a lone being. It is not a good en ough synonym to say that he is a social being. No: heels feand knows himself to be a vital force, at tvheisry time to be in intimate and personal relationshipth woither forces acting above him and below himh ien t hierarchy of forces … The Bantu never appears a isn daenpendent entity. Every man, every individual forms a link in the chain of vital forces, a livi nlgink, active and passive, joined from above to the descending line of his ancestry and sustainingw b ehliom the line of his descendants”. 607 Mutwa (1998: 568; 570) describes tehnea as that which fools regard as a “ghost of a dedp apreterson, you do not see the soul, but that persoen’as . The ena is not immortal; it lives on for some time afteera dth of the body, and can often be seen. It is thisH tihgeh Witchdoctor summons up from the lands of tphieri ts, and this is why we honour and consult in timesr ouf bt le to pray to the gods for us … It is theinsa that is known by the ignorant common people as the ‘Spoifr ita dead person’, and which the strangers from beyond the sea falsely believe we worship”. 337 confirm the notion that strong communitarian societies gradually shape African individuals into personhood or full humanity. In Western reality babies are regarded as persons from birth (sometimes even before) and therefore bearers of rights. Personhood in ubuntu reality is acquired over time. Without the prescribed incorporation of an individual into the African community, “individuals are considered to be mere danglers to whom the description ‘person’ does not apply” (Ramose, 2002{b}; 66). Any individual who shows traits of cruelty, wickedness, selfishness, ingratitude or criminality is said to be without ubuntu. Such a person can be declared izilwane or an animal. Any anti-social behaviour which jeopardises the community, works against the spirit of ubuntu.608 Different rites609 throughout the individual’s life progressively incorporate him or her into personhood610, into becoming fully human. Personhood and identity are gained step by step through various rites. “Rites are religious ways of implementing values and beliefs of society” (Mbiti, 1991: 141). Initiation, the climax of puberty rites, is one such rite in a wider process of rites which progress the individual from childhood to adulthood and incorporates the individual into personhood611 in the extended family. Any individual who is not initiated, will 608 Myandu (1998:73) says the greatest compliment rsao pne or the society can pay to an individual is to call him or her “good O( muntu Murungi.) This is the kind of person usually thought to speosss a greater degree of the actualizeodb unto in one’s life and actions, particularly the captya ctoi love and share goods with the concrete neighbour and relati.v eCsonsequently human wickedness and moral evil arien lym a attributed to failure in unconditional lov(eR okundu)f or the relatives, neighbours and other membertsh eo f community and the consequent deficiency oobfu ntoor humanity. For instance, most of those people accused of witchcraft are usually those people warheo anti-social or those expressing hatred forr thei neighbours and relatives. Conversely, its absenecaed sl to tension, conflicts, frustration and the disintegration of these human relationships and c othmemunity”. 609 These rites include rites of birth, initiation, rmriage and death. 610 Personhood can only be achieved after all ritese hbaeven fulfilled. It is, according to Menkiti, something each individual has to acquire. Befhoere a tchievement of ‘personhood’, individuals are yneot t recognised as ‘persons.’ These rituals includee rdeifnft individual rituals, different family ritualasn d community rituals. Every time a spirit is summonteod i ntervene in human affairs a ritual also hasb eto performed. Menkiti (1979: 176) describes persondh oaos “something that has to be attained in direct proportion as one participates in communal lifeo uthgrh the discharge of the various obligations deedf ibny one’s stations. It is the carrying out of thesei goabtilons that transform one from the it-status aorf lye childhood … into the person-status of later yeamrsa,r ked by a widened maturity of ethical sense.” In contrast with Western society, African communityfi ndes the person as a person, “not some isolaatetidc st quality of rationality, wills or memory” (Menkiti1, 979: 171). 611 Parenthood and ‘babyhood’ in traditional Africa niost established by the birth of a baby, but a t the imbelekos acrifice to the ancestors (Ramose, 2002{b}: 66h)e. Tnewborn baby has to be integrated into the 338 remain an “it” (Ramose, 2002{b}:65), an outsider, a “half person, a nobody … or outcast” (Nyirongo, 1997: 72; 101) for the rest of his or her life, because the “gate” for marriage and family life has not been opened. An “it” cannot fully enjoy the privileges of ubuntu. In ubuntu reality, individuals fit into a social hierarchy. The individual can only progress from one social category to the next provided the community qualifies him or her for the next category. Initiation therefore represents far more than just physical circumcision. During the initiation period initiates are taught tribal laws, customs, values, crafts etc. “Throughout the training the members [male initiates] are forbidden to see women and to stray out of the camp. Anyone who disobeys the rule is instantly killed within the camp” (Nyirongo, 1997: 132). Myandu (1998: 75) relates how “during initiation, individuals are stripped naked before the community to impress on them that they were born naked and open to the community, and therefore, the need for them to remain humble, open and receptive to the guidance and customs of the community that seeks to clothe, nurture, nourish and enlighten them as members into the hidden mysteries (of God) and the community that are required for authentic existence and happiness”.612 In contrast with African law, Western jurisprudence views such public parades as a violation of human dignity; a violation of a person’s human rights. From an African point of view, human dignity is described as follows by Ramose (2002{b}: 127): [T]he dignity and importance of the individual human being can best be understood in terms of relations with other human beings as well as relations with physical nature. In this sense human dignity is crucial and decisive but not absolute. Human dignity and its decisive importance in African philosophy are at best expressed by the saying, feta kgomo otsware motho. This means that if and family and community through specified rites in eorr dto be acknowledged as a member of a specifitch y ou group (Ramose, 2002{b}: 77). 612 This ceremony demonstrates the difference betwinedeivni dual and group rights. In Western societys thi ceremony infringes upon the human rights of theiv inddual, but in communitarian societies where gr oup rights are paramount, the individual has no receo utor sthe rights to privacy and dignity. 339 when one is faced with a decisive choice between wealth and the preservation of life of another human being then one should choose to preserve the life of another human being. Mutual care for one another as human beings precedes concern for the accumulation and safeguarding of wealth as though such a concern were an end in itself. There is a link between the above insight and the correlative, namely, that no single human being nor any other entity is the centre of the universe. Initiation is a prerequisite for marriage. Ramose (2002{b}: 72) describes the importance of initiation613 as follows: During circumcision and clitoridectomy, blood is spilled on the African soil, which in African tradition symbolises a sacrifice. “By spilling the blood of females onto the soil, a sacrifice is made and the meaning of the sacrifice is that the initiated person is thenceforward bound to the land and consequently to the departed members in society”. Initiation therefore is part of the process of incorporating the individual into personhood with the living and the living dead. According to Ramose, the rite of initiation fulfils a threefold function, viz. the incorporation of personhood in the community of the living; establishing a link between the initiated and the living dead; and obtaining the qualification to get married “which is seen as the basis of the future community of the living and the community of the living dead to the community of those to be born”. Ramose (2002{b}: 72) states that, according to African Religion, an African marriage614 is seen as the meeting point of three layers of the extended African family. 613 The shedding of blood into the ground during aintiotin “binds the initiate with the ancestral spsi rit living in the ground” (Khapoya: 1994: 48). Durinhge t initiation period the customs and values oft rtihbee are taught to the initiated individuals. Each aintietid person gets a new name because he/she is dd eae me new person (Mbiti, 1991: 96-103). Khapoya narrahteosw , in the case of the Vusugu, “at the precise moment of the circumcision, the father of the aintieti stands on top of the hut to invite the paratitcioipn of the ancestral spirits and to ask for their helpt.e nO ftemporary shrines are erected to honour thed dea grandparents of the initiate. The rejoicing andw sehroing of the initiate with presents of money andim aals demonstrates this sense of community and the weinlcgo imnto it of the young person as a new adult”. 614 It is very important to procreate in marriage at sf aicilitates the African “flow of life” through reincarnation. Mutwa (1998: 626) narrates the cmus atomongst the ‘Bantu’ “where a man leaves his b ride in the ‘spirit hut’ for thee naso f his ancestors to first kiss and mate with h er”. 340 Initiation ensures the individual of a link with the ancestors: evolving from an “it” to becoming more of a person. The living community, living dead and the ones still to come give the individual its identity or personhood. Everything in traditional African reality has to be conducted according to relevant rites and taboos prescribed by the ancestors: adhering to the ancestors guarantees one’s well- being. “Where ritual is absent, the young ones are restless or violent, there are no real elders, and the grown-ups are bewildered. The future is dim” (Somé: 1997: 105). What matters in the individual’s life, is that his or her life must be lived in anticipation of the end. To obtain personhood615 means one attains immortality and ancestorhood. According to Ephirim-Donkor (1998: 130), the end is what is really important, because the individual will be held accountable and judged by the ancestors. Because the most pervasive and fundamental collective experience of the African people is their religious experience (Mbigi & Maree, 2005: vi), ubuntu can be described as indigenous Africa’s moral616 philosophy (Mbigi & Maree, 2005: vi), (Bhengu, 2006: 42), (Broodryk, 2007: 3) or religious philosophy (Ramose, 2002{b}: 97), (Mbiti, 1991). South African courts depict ubuntu as traditional Africa’s “moral philosophy”, a philosophy synonymous with “humanness” and the Xhosa proverb umuntu, ngumuntu ngabantu. Sub-Sahara Africa’s philosophy of life, however, encapsulates more than just a moral philosophy regulating interaction between human beings. Ubuntu represents the holistic worldview of sub-Sahara Africa; a religious philosophy which regulates interaction between human beings and the African spiritual universe in traditional African reality. Ubuntu’s is inextricably connected to African Religion. 615 See 4.10.2 describes the importance of obtaineinrsgo pnhood. 616 In S v Makwanyane M, okgoro J emphasised thuabt untup ersonifies personhood and morality. 341 4.8 UBUNTU AS AFRICAN RELIGION “Ask any of these wise ones from abroad what the Bantu people believe in, and they will say the Bantu worship the spirits of their dead ancestors; they will tell you the Bantu are a fetish-ridden, superstitious race sunk in the lowest levels of heathenism” (Mutwa, 1998: 552) … “There is no aspect of African culture that has been more misunderstood and misrepresented than African Religion. Almost every word in the English language that is commonly used to describe African Religion is a term of abuse: paganism, fetishism, idol worship”617 (cited in Theroux, 2004: 335). In an attempt to deconstruct the indestructible link between ubuntu and African Religion the following important aspects of African Religion will be discussed: • African Religion. • God, and • The African spirit world. As a result of the immense difference between African and Western worldviews, African Religion and, therefore, every aspect of traditional African life have been equated to ancestor worship, paganism, witchcraft and sorcery. Even today, very few people know how intertwined African Religion and Africa’s philosophy of life are. In Mbiti’s (1992: 4) words: “religion is in our whole system of being618… our entire lives as blacks are based and influenced by our religious beliefs” (Mbigi, 617 Nyirongo (1997: 46-48) gives the following examsp loef idols used in African worship: “Worship of carved images representing non-human gods (naptuirrites )s and ancestral spirits; worship of livingi ntghs, persons, spirits and lifeless natural phenomena w aonrsdhip connected to charms.” 618 According to Mbiti (1992: 2), African Religion inso t for the individual, but for the community of iwch the individual is part. African Religion encompass stehe life of the community and involves beliefs, ceremonies, rituals and festivals of the commu n“iAty .person cannot detach himself from the religi ous beliefs of the group. For to do so is to be sev efrroemd his roots, his foundation, his context of usreitcy, his kinship and the entire group of those who make ahwima re of his own existence. Therefore, to be witt hou religion amounts to self-excommunication from thneti re life of society, and African peoples do nonto kw how to exist without religion”. 342 1997: 33). African Religion is central to traditional African life and determines the traditional African worldview.619 Although South African courts view ubuntu values as values representing a universal philosophy, Oruka (2002{b}: 59) contends that the values of African culture “ceremoniously bind the [African] people together through the institutionalised moral form of life” which he describes as “a form of religion (1990{a}: 43). Oruka maintains that whilst Western culture has Christianity and parliamentary political democracy as its greatest moral achievements and colonialism and the global suppression of Others as its immoral monuments, Africa’s greatest moral achievement lies in its reverence for and communication with the dead. Oruka posits that “[i]n this sphere, morality is not just a set of rules for the living. It is a set of rules for both the living and the dead”. For “the voice of the ancestor is said to hold the key to personal and community well being” (Oduyoye (2001: 25). Oduyoye maintains that ubuntu is a “religious based culture”;620 a holistic view of life which enables persons to firstly, understand and accept their status and identity, and secondly, to pass on beliefs which explain prevailing conditions. According to Oduyoye, the traditional way of life is so closely bound up with African Religion that religion and culture are mutually interdependent. In indigenous Arica the wishes and expectations of the dead are to be advanced by the living. Through rituals, a dialogue between the two groups periodically takes place. This sort of ‘morality’, binding both the dead and living, is a multi-world morality. Wherever the African is, there is his religion; religion is the basis of everything (Mokiti, 1988: 68; Mbiti, 1991: 2; Wiredu, 2002: 20; Biko, 2007: 128).621 The philosophy of ubuntu is dependent on African Religion because “umuntu cannot contain ubuntu without the intervention of the living dead” (Ramose, 2002{b}: 51). Like Ramose, Mbiti (1992) and Mazrui (2002: 14) 619 Mbiti sees African philosophy as subordinate tori cAafn Religion. According to Mbiti, it is difficu lto separate African Religion from philosophy in ther iAcafn context. 620 Oduyoye (2001: 66) viewusb untua s religious anthropology. 621 This notion is confirmed by sources of ethnophoilpohsy. 343 acknowledge the inextricable connection between African Religion and ubuntu reality. African Religion is ubuntu. African Religion is not only the essence of ubuntu reality, but the foundation of community, tradition, values, morals, justice and law in traditional African communities. Because African Religion represents the communal beliefs and not individual beliefs of the community, “it does not matter much whether or not the individual accepts all these beliefs” (Mbiti, 1991: 15). According to Mbiti, African Religion belongs to the people, therefore, no individual of the community can reject the whole of the people’s religion. The notion of ubuntu jurisprudence as rules derived from African Religion is confirmed by Mbiti (1991), M’Baye (1974), Somé (1997), Mutwa (1998), Ramose (2002{b}: 97; 2002{c}: 643), Oruka (2002{b}: 59), Bhengu (1996; 2006) and many others.622 It is therefore impossible to deconstruct ubuntu philosophy without deconstructing the all-embracing reality of African Religion. In contrast with Christianity and Islam, which derive their scriptures from respectively the Bible and the Quran, African Religion is not derived from any holy books or sacred writings623, therefore, it is not a theology.624 It is an oral religion meticulously transferred by word of mouth from generation to generation. Africans following African Religion are “deeply religious people” and it is wrong to call them superstitious, pagans, or believers of magic625 (Mbiti, 191: 19). Mutwa 622 Seeu buntua s Law in 4.11. 623 Mbiti (1991: 16) posits that because African Rieolnig has no founders, “there have been no reform ers, preachers or missionaries to change it, improv oer ita, ke it overseas to other continents”. 624 “According to ubuntu understanding of be-ing, wthoer ld of metaphysics is the world uof- nkulu-nkulu : the greatest of the great; the ineffable. The ainbeleff is neither male nor female. But if it mustg been derised at all it is female-male … The main point thoug hth iast u-nkulu-nkulu is neither definable nor describable. This preserves the essenceu o-nf kulu-nkulu as unknowable. Therefore it is best to remain tq aubieout the unknowable … This, it is submitted, is a basic tsintagr point to explain why ubuntu philosophy andi grieoln have got no theology” ( Ramose 2002: 53). 625 Mbiti (1991: 18-19) defines superstition as “a drienaess to believe and fear something without pr oper grounds” and argues that African Religion is nostu ap erstition. According to Mbiti, African Religioins also not animism or paganism. “Animism means thsete smy of belief and practices based on the idea that objects and natural phenomena are inhabited byit ss painr d souls.” Mbiti posits that although African people “acknowledge the existence of spirits, aonmd es of the spirits are thought to inhabit objeciktse l trees, ponds, [animals] and rocks, it makes ouyt oan sl mall portion of the total beliefs held in Acfarin 344 (1998: 560) and Mbiti (1991: 29-30) reveal that African Religion dictates “all aspects of African life626 … it is written everywhere in the life of the people”.627 Senghor (1964), Mbiti (1991), Mbigi (1997), Mutwa (1998) and others agree African people are intensely religious; that indigenous societies all subscribe to African Religion and that they share the same value system (Mbiti, 1991: 12; Gyekye, 1996: 55). According to Mbiti (1991: 30-33), African Religion is found throughout Africa, except for the Northern third of Africa, which is Islam, and Ethiopia “where [ancient] Christianity has been a powerful religion since about the fourth century” (1991: 30). Mbiti (1991: 32) observes that millions of Africans have accepted the Christian faith in Africa and that Christianity and African Religion are “side by side”.628 African Religion is said to differ from all other religions. The difference lies in the fact that other religions “are supposed to be something apart from all earthly or materialistic matters … but with the Black man everything he does, thinks, says, dreams of, hopes for, is moulded into one structure – his Great Belief.629 Things like doubt, agnosticism, atheism and disbelief are entirely unknown, unfathomable, senseless, within the framework of the great Belief” (Mutwa, 1998: 555). Mutwa (1998: 554) states that African Religion is inflexible and declares anything new as an insult to the Gods. According to him, any man or woman who religion”. The belief in animism gives man the aitby ilto use and control the objects the spirits binith. a “Paganism or pagan are sometimes used as dero gwaotordrys to describe Africans who are not followefr s o either Christianity or Islam … Africans who folloAwf rican Religion are deeply religious people an dis it wrong and foolish, therefore, to speak of them agsa pns, or to regard their religion as paganism”.it iM b argues that it is wrong to equate African religwiointh witchcraft, although “magic, witchcraft and rsceory feature much in the traditional life of African ppeleos.” Mutwa (1998: 582) states the African peoopfl e Africa have endured sacrileges against their roenli gaind that much of the bloodshed and trouble hthaas t ripped Africa apart has been caused by gross ignncoer oaf African Religion. 626 Mbiti (1991: 20-30) describes how African Relig ioenmbodies rituals, ceremonies, festivals, shrines, sacred places, religious objects, art, symbols,i cm, udsance, proverbs, riddles, wise sayings, namneds a places of people, myths, legends, beliefs and mcuss.t o 627 Mutwa (1998: 560) maintains all ceremonies of cAafrni Religion, viz. ‘prayers, chants, sacrifices, summoning spirits from the Upper or Lower Worlde, actring zombies, ‘deep talk’, hypnotism and mind power - are exactly the same from the TranskeMi atoli, Dahomey and Ghana. 628 Christianty is translated in terms of Western opshoilphy as “individual salvation, but it did not cnhgae social and cultural obligations which are commuina nl ature. Certainly not for women” (Oduyoye, 20 01: 27). 629 See Idowu, (1973), Setloane (1986), Mbigi (199N7y)i,r ongo (1997), Mutwa (1998: 555-560) and Mbiti (1991; 1992). See also Parinder’s pioneer wAofrkic an Traditional Religion( 1954). 345 tries to invent something new in African Religion is assuming powers only Gods possess.630 “This kind of religion was developed with the specific purpose of resisting or discouraging change of any description, because such changes breed impiety and irreverence for things once declared holy”. African Religion is not only inflexible, but also inaccessible to other people who would like to become converts or join the religion. This inaccessibility of African Religion to others is confirmed by Mbiti (1967: 5), Turaki (1997: 63) and Mbigi, (1997: 56). The fact that outsiders or strangers cannot join African Religion confirms that these are closed societies. “You have to be born into the religion as it is immoral to allow other races to adopt African Religion. African Religion can also not be practised on an individual basis; it functions only on a communal basis through ceremonies, festivals, rites etc. which involve the community. Because African Religion belongs to the people, no individual member has the right to reject the whole of his people’s religion. To do so would mean to cut oneself off from the total life of the people” (Mbiti, 1991: 15). 4.8.1 African Religion All Africans are said to be deeply religious people. The African spirit world defines the African worldview or reality from birth to death (Turaki, 1997: 54). African Religion is the belief of life after death631 and embodies the belief that man is not the master of the universe, “only the centre, the friend, the beneficiary, the user” (Mbiti, 191: 44). Therefore, according to Mbiti, Africans have to live in harmony with the universe and obey the laws of the natural and religious order. Bhengu (2006: 139) confirms this notion that African humanity is at the centre of the universe, interacting with God, spirits632 and nature. African humanity is at 630 “African Religion’s religious demands persist haas tt to which our forebears adhered in order to ivseu rv and prosper, and as that which they expect usi dtoe abby” (Oduyoye, 2002:26). 631 African Religion believes in reincarnation andf edrisf from Christianity in the sense that it doest no entertain Christian beliefs of afterlife as lifete arf death in heaven or hell. 632 Spirits are nonhuman entities and interpret twheisirh es to the community. The spirits demand harm ony in the community and are feared because of thepiar cciaty to protect and inflict harm. It is essen tihaal t 346 one with ancestors, witches, sorcerers and everything around it. “When put into order, there is firstly God, the ancestors633, and the spirits. Secondly, there is witchcraft, sorcerers and evil and then, daily practical and social issues of man”. Parrinder (1969: 27) describes the African spirit word as one with the Supreme Being at the top; below him are the “chief divinities” as non-human spirits; then the ancestors; and at the bottom, “spiritual forces” which embody charms and amulets. Every aspect of ubuntu reality is regulated by the interplay of spiritual forces of the African spiritual universe. The uniqueness of African culture634, philosophy, values, religion, law and justice is rooted in ubuntu, the root of African philosophy. Mbiti (1991: 10) states African Religion has shaped African cultures, African social life, African political organisations and economic activities. According to Mbiti, African Religion is “closely bound up with the traditional way of life”. The African worldview, or ubuntu, is expressed in the constant interaction of humanity with ancestral spirits, nature spirits and evil spirits. This notion of ubuntu as traditional Africa’s religious or “moral philosophy”, is illustrated schematically by Mbigi635 (1997: 54) as follows: community members know the rituals and sacrificheast twill gain the support of the spirits (Imbo, 20: 0 144). 633 Mbigi (1997; 530 admits that “[a]ncestor worshsip cientral to our lives. We have communion with ancestors on all aspects of our lives, such as iamgaer,r birth, career advancement, job hunting, d, eath business travel and any crisis”. According to M,b itghie “cult of the ancestors” continues to be at rcael n influence in the African’s life. Mutwa (1998: 57s2t)a tes that man lives solely to serve his ance;s etovresry tribe in Africa believes that they keep the sp iorift sthe ancestors alive. 634 “Religion and culture are inextricably intertwin. eMdost of the religious rituals are appropriatetdo itnhe cultural scheme of things and the cultural domahina pses and influences the religious philosophy and practices. It is in this context and against thact kbground that any attempt to dichotomise African spirituality into the sacred and the secular; theys pical and the spiritual; the individual and thoer pcorate, results in gross distortion and misconstrual o tfh itesology and its praxis” (Bhengu, 2006: 16). 635 Mbigi is a rainmaker. According to him (1997: 5 2ra),inmakers are “spiritual divine kings” concern ing themselves with morality, ecological balance, t,r uctohnservation, justice and fairness. “Just likesu Jse, these are God’s representatives on earth”. Rainrms apkoessess powers to make or stop rain. 347 According to Mbigi (1997: 53), the African spiritual universe in which ubuntu manifests itself, consists of God and generic spirits. On top of the triangle is God, the head of the spirit world. On the sides of the triangle are the nature spirits and the ancestors. The lower, evil forces are at the base of the triangle. Community is placed in the centre, interacting with these spiritual forces. This all encompassing religious philosophy of life is called ubuntu. Mbigi’s triangle resembles that of Parrinder (1967: 15) who places God at the top of the triangle, gods and ancestors on the sides and witchcraft and African medicine at the base. Whilst Parrinder places man in the middle of the triangle, Mbigi places community in the middle to illustrate the continuous interaction between community and its spiritual forces. As African Religion functions only on a communal basis (Mbiti, 1991:15), Mbigi’s illustration seems to be more accurate in representing African reality. Mbigi places ubuntu with the community, representing a collective worldview which reflects the interaction between God, man, ancestors and other spirits. Mbigi, the rainmaker, depicts ubuntu as Africa’s religious reality of life. Mbigi illustrates the interplay of forces between community, God and three types of generic spirits, namely: 348 • Positive ancestral spirits, • Positive oracular nature spirits found in oracular animals and places (e.g. pools, mountains and trees), and • Evil spirits. 4.8.1.1 God The majority of Africans traditionally believe in God or the Supreme Being, as the creator of the universe.636 It is widely believed that God is powerful, all-knowing, good, merciful, omni-present, holy and pure.637 The Supreme Being can only be approached by intermediaries. Individuals can neither approach the Supreme Being, nor maintain an individual relationship with him. In contrast with Christianity, the Supreme Being did not provide Africans with spiritual laws by which to abide.638 Mbiti (1991: 60-68) describes how the Supreme Being’s attention can be drawn: the Supreme Being can be approached through prayers639, intermediaries, sacrifice, rituals and offerings.640 Prayers, singing and dancing always accompany offerings and sacrifices. Sacrifices641 are made to the Supreme Being to draw His attention and involve the shedding of blood of human beings, animals or birds; offerings do not involve blood, but concern the giving of things such as foodstuffs, water, milk or money. As sacrifices are not 636 There are a few variations in how God is perce.i vSeodme tribes perceive God as male, others female and yet others have no specific image at all. Aultghho most tribes believe in one God, the Ibo andu Ybao r for example, believe in the Supreme Being, ass ibstye deities. Africans have different creation my othf s how God created the world. 637 Animals which are to be sacrificed to God haveb eto of one colour only. It is a symbolic way of indicating His pureness (Mbiti, 1991: 56). 638 In Christianity it is perceived that God laid do wthne law, that the individual has a personal roenlasthi ip with God and is able to petition Him in prayer. 639 According to Mbiti (1991: 61), priests (men and mweon), rainmakers, chiefs, kings, and sometimes medicine men, may pray for the general public oivr apter individuals. Within the family praying can be done by the head of the family, the eldest membf ethre o family, a ritual elder or local priest. 640 Mbiti (1992) distinguishes between sacrifices aonffde rings as follows: “sacrifices refer to casese wreh animal life is destroyed in order to present theim anl, in part or in whole, to god, supernatural nbgesi, spirits and the living dead. Offerings refer to trheemaining cases which do not involve the killinfg a on animal, being chiefly the presentation of foodsst uafnf d other items”. 641 Communal sacrifices are made at shrines, sacroevde sg ror holy places such as hills, lakes and waterfalls. Personal sacrifices are made at homubel,i cp places, or where ritual elders or divinerrse cdti (Mbiti, 1991: 65). 349 always given to Him directly, sacrifices and offerings are made to lesser spiritual beings, viz. divinities, spirits and ancestors who act as intermediaries642 between God and the community. The living dead or ancestors are also links between the Supreme Being and the living family members. Although the Supreme Being is recognised as the creator, “the ancestors are of far greater importance [in the community], being the deceased elders of the group” (Broodryk, 2007: 121). As illustrated below (Mbigi, 1997: 54), God is the head of the African spiritual universe with humanity at the centre of the spiritual realm. Sin can never be committed against God. According to Nyirongo (1997: 61), sin can only be committed “against the community – one’s family or tribe (which includes the ancestral spirits)”. It is the responsibility of the community and ancestors, not God, to punish the wrongdoer. EVIL SPIRITS NATURE (ORACULAR) SPIRITS ANCESTRAL SPIRITS HUMANITY GOD UBUNTU 642 Intermediaries can be either human or spirituainl gbse. Human intermediaries include priests, kings, medicine men, seers, oracles, diviners, rainmaaknedrs r itual elders. The intermediaries are a lintkw been God and humans. Intermediaries are used by Afrpiceaonp le to perform worship, they do not worship intermediaries. 350 According to the African worldview, the universe is divided into the visible and the invisible. Spirits are part of the invisible universe and have a status between God and the community. Spirits are divided in spiritual beings, nature spirits, ancestral spirits, diviners or medicine men. 4.8.1.2 The Spirit World There is widespread belief amongst Africans that man cannot approach God alone or directly, therefore, he needs intermediation of spiritual persons or spiritual beings to approach Gods. Spiritual beings can be visible or invisible and act as intermediaries between the Supreme Being and the community. The visible intermediaries include the kings, rainmakers, chiefs, prophets, priests, medicine men, diviners, mediums and seers. Invisible spirits include semi-deities, spirits and ancestral spirits. Mbiti (1992: 68-70) describes the following as visible intermediaries: kings, chiefs, priests, seers, prophets, oracles, rainmakers and elders. • Kings and chiefs: Not all African peoples have traditional rulers but where they exist they are looked upon as political heads, intermediaries and sacred persons who symbolise the prosperity and welfare of their nations. • Priests: They are formally trained males or females, hereditary or otherwise whose duties include making sacrifices, offerings, prayers, public and private rights and ceremonies, giving advice, performing judicial and political functions, caring for temples and shrines and above all acting as religious intermediaries between men and God. • Seers, prophets and oracles: Their main duties are to act as ritual elders, to give advice on religious matters, to receive messages from divinities and spirits through possession and dreams and to pass on the information to the community. 351 • Diviners or medicine men: Some tribes believe medicine men643 are God’s chief representatives who receive messages from God. They function as doctors, “purifiers of age sets”, predict raids and solicit rain. • Rainmakers: It is generally held that rainmakers receive their knowledge and power from God and that God appears to them in dreams. According to Mbigi (1997: 25-26), rainmakers644 are the “most important indigenous political institution of divine kings”, the representatives of God in earth, just like Jesus Christ. They are the kings of thunder, rain, wind and the skies and are interested in the maintenance of nature preservation and ecological balance. Their concern is “for the very things that today’s Greenpeace movement is concerned with, viz. preserving the environment.” Rainmakers are assisted in this task by nature spirits: animal and place spirits.645 • Elders: Elders have intermediary functions in traditional societies. They perform religious rituals for their homesteads, take part in regional ceremonies and assist priests with sacrifices, offerings and prayers. Elders automatically become ancestors when they die. 643 Mutwa (2003: xxii) distinguishes betweeinny angasa nd sangomas I.nyangas, or herbalists, inherit their profession from their relatives, busta ngoma sreceive their professions from spirits. Thsea ngoma understands and controls the same occult forcethse a so rcerer, because he has to cure personse adf fbeyc t the magic spells of the sorcerer. Tshaen goma’s power transcends that of the sorceSrearn. goma sor so- called witchdoctors, are scientists, psycholog isptasr,apsychologists, clairvoyants, artists, divin earnsd diagnosers of illness. According to Mutwsaa, ngoma sfulfil the same role as priests and psychiatrins ts Western societies. Broodryk (2005: 123) mentionast wthitchdoctors are regarded as bad and evil bec aus they use parts of humans for medicine. “They arere m ooften than not the murderers of people and y oung children, or the instigators of such murders, idne or rto obtain human parts fmoru ti (medicine)”. 644 “The concept of spiritual divine kings in the fo romf the rainmakers … is very prominent. Just like Jesus, these are God’s representatives on earethy. wTehre not involved in the daily routine strugg olef s secular existence. They were concerned with unaivl etrhsemes of morality, ecological balance, truth, conservation, justice and fairness. The collecttriivbee had to provide for their secular needs. Twheyre the spiritual saviours of their tribe. If there was oar rcupt king or chief, they would sacrifice and revme ohim. They were the checks and balances of the Africalinti cpaol system. They wer ethe moral conscience of the tribe. These divine kings or beings also had thtiem ualte responsibility for developing and preserv tihneg spiritual and cultural heritage of the tribe. Thledy the seasonal fertility and rainmaking ceremso nained would be sacrificed in times of national disastseursc h as a plague, war and drought, to atone fo r the collective sins of the tribe” (Mbigi: 1997: 52-5 3). 645 According to Mbigi, the most popular animal spsi riwt ere the baboon, eland and lion spirits, while oracular spirits normally resided at specific plsa sceuch as mountain caves and trees. 352 • Nature spirits: Nature spirits are believed either to have been created by the Supreme Being or are viewed as human beings of the distant past646 who have no kinship with humans. These spirits are more powerful than men, but live in the same realm as men.647 According to Mbiti (1991: 71- 74), they propagate among themselves and are the major spirits in charge of the forces in the sky648 and earth. People who believe in nature spirits in the sky believe they control the forces of nature connected to the sky. Many cultures believe lightning and thunder are caused by spiritual intervention. Nature spirits of the earth include spirits of the sea, lakes, forests, death649 and disease.650 As nature spirits are perceived to be spirits of people who have long died and are forgotten, they are generally feared. • Ancestral spirits: The living dead or ancestors occupy the position between ordinary spirits and men and between God651 and men. They constitute the largest group of intermediaries in African societies. Not everyone can become an ancestor but as a rule all elders become ancestors652 upon death.653 As everyone eventually achieves the status of 646 After about five generations ancestors are foergno btty humans, become unknown and move on to the universe as ordinary spirits. 647 Mbiti (1992: 80) posits that spirits dwell in thweo ods, bush, forest, rivers, and mountains or adr oun villages. This is partly the result of human serlof tpection and partly because man may not want taog inme himself in an entirely strange environment whenb ehceo mes a spirit. 648 Mbiti (1991: 71) states that not all African peeo pblelieve in nature spirits in the sky. They arnee graelly looked on as subjects for stories, myths and lesg.e nd 649 Nyirongo (1997:171-172) and Mbiti (1991; 117-12s4ta) te that death is always associated with evil caused by a person, witchdoctor or evil spirit. oArcdcing to Mbiti, “[s]omeone is often blamed for Ait.nd in some cases the suspect may be beaten to dienaetdh , ofr thrown out of the district. Relatives ofe th deceased may also take other types of revenge wahreic lhess open.” A spirit who had a grudge agathines t person or whose body has not been properly buraiend a clso cause death. Curses, broken taboos anedn b rok oaths also result in the death of the guilty pe.r s on 650 Smallpox, meningitis, lunacy, deaf and dumbnecs.s a erte perceived to be associated with naturet s.p i ri 651 Mbiti (1992: 80-81) relates how, when someone agm tohne Basuto wants to approach God, he asks his brother first. The brother, whether dead or alirveela, ys the request to his father, who approachse sfa hthier and so on. The message gets passed on until so mise roenaeched who is worthy of approaching God. Stsp iri do not appear to human beings as often as anc edsot,o brsut they do possess humans and can cause smsa dne and epilepsy. 652 Other people move on to the spirit world aftert hd eaand become spirits. 653 Death is a joyful celebration, because the decde aesldeer gains more vital force as an ancestor. hD eat affects the entire community, because the depabretelodn g to the community. Everyone has to attend the funeral; to keep away might invoke suspicion ofc whcitraft. 353 the living dead, they will function as intermediary sooner or later.654 The belief in ancestral spirits, also called shades, ancestors or the living dead, is widespread in Africa. Because they are not yet ordinary spirits, ancestors are regarded as people. According to Mutwa (1998: 572), one of the most deeply-rooted beliefs in the whole of Africa is the belief that a man lives solely to serve his ancestors and that tribal unity is based on this belief.655 “The tribe as a whole must keep the spirits of its founders alive – every tribe in Africa believes this.” Ancestors only remain ancestors as long as they are remembered by their people. According to Broodryk (2002: 127), Ramose (2002{b}) and Mbiti (1991: 77), ancestors are generally remembered by their families, friends and relatives for four to five generations.656 Once they are forgotten they become spirits. The ancestors are the most important spirits in the family and are concerned with family affairs. Mbiti (1991: 77-81) maintains ancestors live close to the homes where they used to live as humans657 and visit their relatives in dreams, visions or openly. Ancestors control the supernatural and social relationships and hold the social fabric of the community together. They preserve traditions; are a source of spiritual wisdom for the family; and seek collective interdependence in all spheres of communal life (Mbigi, 1997; 137). Bhengu (2006: 41) narrates that although ancestors have a 654 Once the ancestor is forgotten, he becomes an aorryd si pirit and ceases to function as an intermrye.d ia 655 “The ordinary Bantu, no matter how educated ovri l‘icsied’, are still firmly rooted to the beliefs othfeir forefathers. No matter how they have been subje tcote dChristian influences, they still havger eater confidence in their locanl ganga( or witchdoctor) than in the local mission prieTsht.e ordinary Bantu could not care less who rules them. They do not care wlahwast are laid down in the land of their birth,l oansg as those laws do not offend the sacred ancestral fbse!”li(eMutwa, 1998: 579). 656 “Even the thoughts of the living, we believe, csauns tain thee nas of our ancestors; that is why people who do what is called ‘ancestor worship’ are veerryi osus about remembering and propitia ttinhge enas of their ancestors; they also believe that ethnea can be consulted in times of trouble or can searsv ea n intermediary who communicates with the gods on lbf eohf athe people. If we forget about our ancest ors, their enas pass into non-existence, and a valuable commuionnic awtith the gods is also lost. A sacrificed animal’s ena goes to feed then a of the ancestor in whose honour the sacrificeb heaesn conducted. At the average person’s death, theen a wanders the earth for a while, but eventually dpiastseis. Them oya, however, goes on into other incarnati,o ontsher forms. It can be reborn in the form of a haunm or animal when it takes this new form, it makes a nenwa , and thee na is in human form if it is a human incarnation or animal form if it is an animal incarnation” (Mwuat , 2003: 19-20). According to Mutwa, every pershoans an ena and moya. 657 Most ancestors are said to live in the cattle lk. raa 354 heightened existence, they are still the same people they were on earth. Bhengu finds paradise for Africans, not somewhere in the sky, but in the underworld658 of the ancestors. According to Bhengu, the only hope man has to be reunited with his ancestors, is to “embrace and practise Ubuntu”. Ancestors have the power to bless and punish relatives as well as to reincarnate659 into the family they have left behind. Mbiti (1991: 79) states that the spirits of recently deceased family members are benevolent towards their families as long as they are remembered and properly treated. As long as an ancestor is remembered660 he is immortal; has a name and identity; and is able to reincarnate into the family as a newborn. According to Mbiti (1991: 126), the ancestor will be noticed in the features of the newborn. Whilst not all ancestors reincarnate, others “can be reproduced simultaneously in several children within the family”. Sickness661 and misfortune in the family can be caused by magic, sorcery, witchcraft or the ancestors.662 Misfortunes in the family which are not caused by witchcraft and magic are deemed to be punishment sent by the ancestors. Once an ancestor is forgotten or lost to human memory he becomes an ordinary spirit in the spirit world663 who can no more demand offerings and sacrifices from family members. There exists a unique 658 Because of the relationship between real estadte aanncestors, land has a “very deep religious significance. Land is perceived as an organism s tuhsattains the bond between the unborn, the livnindg t hae dead” (Bhengu, 2006: 41). 659 “The same ancestor can be ‘reborn’ or can ‘ret uinr ns’everal living members of the same clan. Pe ople will say to the newly delivered mother: You haver nbeo our grandfather, our aunt, our uncle, etc.’y T wheill say, such a spirit or such a one who has passer dh aosv ebeen born to us” (Tempels, 1969: 108). 660 Mbiti (1991; 129) maintains that the deceased sh eoafd families, adults and married people are remembered much longer than babies, children amnda rurnied people. 661 Nyirongo (1997: 170) posits that disease can bfleic tiend by live malevolent relatives, offended ancestors, disobedience to customs and taboose otrfi bthe, possession by spirits and misfortune cda ubsye a guardian spirit. 662 Ancestor spirits can be satisfied by the perforcmea nof rituals. Diviners or medicine men can be consulted to find out exactly what it is the spsi rwitish (Mbiti, 1991: 79). 663 According to Mbiti (1991: 127), many forgotten aensctors do not return to the spirit world and stna y i trees, lakes, rivers, rocks and animals. “Someh eosf et unknown spirits may be used by witches anedr oth individuals who wish to do harm to their neighbo. uOrsthers are used in divination and medical praecst itco help in the diagnosis of diseases and problems.e S momediums and diviners call back the spirits of the dead”. 355 relationship between ancestors and sangomas. People can make use of sangomas to contact and interact with the ancestors. Broodryk (2007: 127-128) states that sangomas have the ability to communicate with ancestors that possess people and can, therefore, cure spirit-possessed persons. “Sangomas664 regard themselves as engaged in a war of good against evil forces in nature”. Nkabinde (2006: 11) confirms that every sangoma has many dominant male ancestors who have different roles in his or her healing work. • Evil spirits: Evil spirits can only do harm or evil. Malevolent spirits665 are thought to be the spirits of bad people who have died. The fear of witchcraft, sorcery and black magic is deeply rooted in African life.666 According to Mutwa (1998), Holland (2001) and Mbiti (1991), witches and sorcerers are a reality and among the most hated people in traditional African societies. Witches are usually women and are frequently killed by the community. Whilst witchcraft667 is regarded as mystical forces inborn in a person, sorcery is performed with spells, poisoning and injuries done secretly by the sorcerer to a person, animal or thing. The Provincial Commission of Inquiry of the Limpopo Province and a research team appointed by the Human Sciences Research Council found that “executions of witches without formal trials by members of the community increased dramatically over the past ten years” (Teffo et al., 2002: 169). 664 There is a training school fosra ngoma sin Mandela Village outside Tswane (Broodryk, 20 10277: ). 665 Mbigi (1997: 60-61) narrates how evil in a deceda bsaed person’s life prevents him from becoming an ancestor. Such a bad spirit gets stuck in his tsupailr ijourney and troubles the living as an evilr ist.p Wi hen elderly people notice anything strange during tuhreia bl of such a person they will stop the buria la tcocess what went wrong in the person’s life. Once theyd fiwnhat went wrong in the person’s life, they prodc ee with a cleansing spirit by projecting the negatsivpeir it onto a goat or chicken. The cleansing ha sb et o performed by as angoma .Thereafter the dead person can embark on thee joy uorfn spiritual transformation. 666 See Holland (2001). 667 Mbiti (199: 167) describes witchcraft as “incaniotants, words, rituals, and objects that inflict ha ornm the victim. To do this she may use nails, hair, clo,t hoers other possessions of the victim which she sb,u rn pricks or wishes evil to. The belief is that byl iicntfing harm on what once belonged to a persont, ptherason is automatically harmed. Another method is to diagg mic objects into the ground across the path wthheer e intended victim is likely to pass, or at his gaotre ,i n his fields. It is also believed the witch m saeynd flies, bees, other insects and certain birds or animoa ltsa,k te harm to the victim so that when they touicmh ohr he sees them, he will fall sick or meet the intedn mdeisfortune”. Magic can also turn humans in ansim oarl birds. 356 The research team concluded that witchcraft is still a factor that has to be reckoned with in all regions of South Africa. Anyone is capable of committing witchcraft668 and “if identified as a witch, is under intense pressure to accept responsibility. This is why ordinary people with no supernatural history and no guilt beyond ill-temper sometimes concede guilt when accused of witchcraft” (Holland, 2001: 9). Bewitching is reported mostly between relatives and neighbours and “occurs almost always in an existing state of tension between the accused669 and the complainant” (Holland, 2002: 16). “As an ongoing theory of causation and a system of moral philosophy, witchcraft will continue to exert its influence on Africa’s development for many years to come because of the view that the more you have the more likely you are to attract a witch’s envy. This is in antithesis of the Western parental gospel: achieve scholastically, compete relentlessly and shine individually”. According to Holland, (2002: 21-22)It is true that belief in witchcraft670 has promoted mediocrity by dampening the individual’s desire for material gain. “[A]lmost everyone in the community can be suspected of possessing some kind of witchcraft or charm. Both blessings and 668 Where witchcraft is suspected, strict proceduorer sa cf cusation are to be adhered to. The familyt hfiars to consult a traditional healer who has to confiar mw itch’s involvement. “But once the healer nam es a witch, invariably someone living in the same vilela ags the victim, the family declares its accusa btioy n leaving a small heap of ash or some other toketnh ein d oorway of the accused’s house during the .n ight When the suspect awakes and acknowledges the aticocnu, soaften amid strenuous protests, he or she goes to see the headman who arranges a trial by orIdf etrh”e. accused is found guilty after various te shtse, can either confess and be spared or protest and beed kinill a ceremony at sunrise, or be beaten andn d ariwveay like a wild animal (Holland, 2001: 18-20). Oduyo(y2e0 01: 26) maintains exile is deemed worse than judicial execution. 669 The accused is said to be the person who hase adr othues jealousy of the complainant. 670 Hallen and Sodipo (1997: 88) see witchcraft ase xapnla nation to be used when no other explanatiroen s a forthcoming. Witchcraft provide the type of explatinona “that provides for the victims doing someth ing concrete about their misfortunes”. According tom th, ewitches are female. Males are seldom accused of witchcraft and are best regarded as wizards, maangsic ai nd sorcerers. Holland (2001: 17-18) descrtihbee s typical personality characteristics of witches,d inff erent parts of Africa, as follows: Among the gLbuara a witch is stereotyped as a person whose face is agnrde ydrawn; someone who tends to sit alone or eisr- ov friendly. In western Sudan witches are seen asa nshdy f urtive people. The Dinka of southern Sudanie bve l witchcraft can be avoided if a person is plump, ghoaosd hair, good movement, chivalry and genero sity. Witches are generally perceived to be unhappy pee owpitlh sullen expressions, and who rarely laugh. “There is widespread anxiety about eccentric anyds ipchally handicapped Africans, as well as those who live alone or are childless”. 357 misfortunes come from the same sources!” (Nyirongo, 1997: 188). According to Holland (2002: 11), African magic is powerless in an alien environment. Mbigi (1997: 56-59) categorises eight African spirits from most powerful to least powerful as follows: • The rainmaker spirit (Gombwa): This spirit is concerned with truth, morality and ecological balance. Rainmakers are the representatives of God on earth. • The hunter spirit (Shavi Reudzimba): This is a spirit of entrepreneurship and creativity. • Family or clan spirit (Mudzimu): This spirit has a parochial self-interest in the survival of his family group. • Spirit of divination (Sangoma): This spirit knows the truth. • War spirit (Majukwa): This spirit is interested in personal power and conflict. • Wandering spirit (Shave): This is the spirit of a person who is not part of the family and is usually present in individuals who have a particular obsession and unique creative ability. • Avenging spirit (Ngozi): This spirit is normally good, but has been wronged and as a result, harbours anger, bitterness and revenge. • Witch spirit (Umtakati): This spirit is lowest in the hierarchy of African spirits. It is evil and means harm.671 It is clear that a spiritual hierarchy exists within the African spiritual universe. Mbigi’s suggested spiritual hierarchy is confirmed by Turaki (1997: 57). According to Turaki (1997: 57), the hierarchy of beings consists of “higher and 671 A survey conducted in July 1999 by Population Coumnimcation Africa among Kenyan adolescent Aids orphans revealed that nearly forty percent beli etvhedir parents had died of witchcraft” (Holland,0 20: 99). 358 lesser beings, superior and inferior beings and powerful and weaker beings”. Turaki adds that this hierarchy also exists between spiritual and human beings. Turaki (1997: 57) maintains that spiritual beings are higher than human beings, but humans can obtain such status “at death with a ripe age”. African Religion is not about life after death but about the relationship between the living and the dead. No aspect of ubuntu existence is compartmentalised; every facet of ubuntu reality is inextricably linked to African Religion. Ubuntu’s holistic worldview “manifests in their beliefs, values, response to the physical and spiritual realms” (Turaki, 1997: 40). Ubuntu reality is deeply rooted in the spirit world and dictates the values of ubuntu which will be discussed next. 4.9 UBUNTU VALUES Justice always strives to attain fairness by doing what is right and moral. As morality is defined by the values of a community, justice can be done by using values as a moral guide (Boon, 1996: 67). Wiredu (2002: 287) argues that morality is universal to human culture: but can one argue that values are universal too?672 Kluckhohn (cited in Turaki, 1991{b}: 168) defines values as “a conception explicit or implicit, distinctive of an individual or characteristic of a group, of a desirable, which influences the selection from available modes, means and ends of action”. According to Turaki (1991{b}: 173), traditional African values are derived purely from African culture. Turaki views value judgments as appraisals of moral values. This explains why what is morally good or bad for one group, is not necessarily good or bad for another. Values and morals are however, inextricably connected to one another. Are values then universal, or as Turaki suggests, unique and characteristic of a group? Van Blerk (2004: 195) 672 Mbiti (1991: 41) argues that “[e]ach society isle a tbo formulate its own values because there isa ml or order in the universe. These values deal with iroenlasht ips among people, and between people and nGdo d a other spiritual beings; and man’s relationship w thiteh world of nature”. 359 views African values as unique and maintains that African community is the source of African values. The existence of traditional African societies is dependent upon the shared value system of the brotherhood: the values of ubuntu’s ancient philosophy of life. Ngubane (1979), Kamalu (1998), Koka (2002), Broodryk (2006; 2007) and Bhengu (2007) maintain that ubuntu673 originated from ancient Egypt’s holy belief of Netchar Maat. According to Broodryk (2007: 41), “Netchar Maat was associated with the seven cardinal virtues”, viz. truth, justice, propriety, harmony, balance, reciprocity and order. These seven virtues plus the forty-two prescriptions or Admonitions of Maat674 were the Egyptian principles for moral behaviour and “form the basis of the sacred values of ubuntu” (Broodryk, 2007: 42; Koka, 2002: 10). According to Broodryk, the Admonitions of Maat were written 1500 years before the Bible’s Ten Commandments. Oruka675 (1990: 88), Gyekye (1996), Broodryk (1997{a}: 5), Deacon (2002:111) and others concur that ubuntu represents Africa’s culture or “moral philosophy” and maintain “the moral values of various African societies are the same across the board; that most values can be said to be shared in their essentials by all 673 In Chapter 2 (2.3.)1 it was established that African philosophy origteinsa from ancient Egypt and that ancient Egyptian civilisations were in fact Negrofr-iAcan achievements. If African philosophy origiensa t from Egypt, soip si facto does the root of African philosophuyb: untu. 674 The forty-two admonitions of Maat, are: “I havet ndo ne iniquity; I have not robbed with violence ; I have not stolen; I have done no murder, I have dnoon eharm; I have not defrauded offerings; I havet no diminished obligations; I have not plundered thetc Nhaer; I have not spoken lies; I have not snatcahweady food; I have not caused pain; I have not commiftoternd ication; I have not caused the shedding ofs t;e Ia r have not dealt deceitfully; I have not acted guillleyf; I have not laid waste to the ploughed lan dh;a Ive not set my lips in motion (against any man); I have bneoetn angry and wrathful except for a just cau shea;v Ie not defiled the wife of any man; I have not poldlu temyself; I have not caused terror; I have not transgressed; I have not burned with rage; I haovt es tnopped my ears against the words of Right arnudth T; I have not worked grief; I have not acted with ilnesnoce; I have not stirred up strife; I have not gjeud hastily; I have not been an eavesdropper; I havt em nuoltiplied words exceedingly; I have not donet hneri harm nor ill; I have never cursed the king; I hanveev er fouled the water; I have not spoken scoryn;f uI ll have never cursed the Netchar; I have not sto lehna;v eI not defrauded the offerings of the Netch ahra; vIe not plundered the offerings to the blessed deahda;v Ie not filched the food of the infant, neitherv eh aI sinned against the Netchar of my native town, a nhda vIe not slaughtered with evil intent the cattfl eth oe Netchar” (Broodryk, 2007: 41-42). 675 Oruka (2002: 69) maintains that the values of latu creu bind the people together through its morarml f o of life. 360 African societies” (Gyekye,1996: 55-56). Whilst Oruka (2002{b}: 59) and Mbiti (1991) argue that all African morality and values are inextricably bound up with African Religion, Gyekye (1996: 132) states that most but not all Akan values are derived from African Religion. Mbiti (1991: 179) maintains all African morals and values derive from African Religion; even though Africans may convert to Islam or Christianity they retain their ubuntu values. Oruka, Mbiti and Gyekye agree that ubuntu values are inextricably bound up in African Religion. Gyekye (2002: 301) argues that because the African community constitutes the social and cultural context in which the group operates, the values of the community will reflect that of a closed community. In these closed communities traditional African values firstly, “enhance ethnic or group harmony” but secondly, “promote ethnic or group superiority over others, parochialism, dominance, subordination, prejudice and discrimination” (Turaki, 1991{b}: 173). According to Gyekye (2002: 301), the values of Akan culture are kindness (generosity), faithfulness (honesty and truthfulness), peace,676 happiness, dignity and respect. Mbigi and Maree (2005: vi) identify the key values of ubuntu as group solidarity, conformity, compassion, respect, human dignity, hospitality (Mbigi, 1997: 11) and collective unity. The Gauteng Department of Education (cited in Broodryk, 2002: 33) identifies values of sharing, caring677, kindness, forgiveness, sympathy, tolerance, respect, love, appreciation and consideration as ubuntu’s key values. Broodryk (2002: 23; 2006: 28) distinguishes between core and associated values678 of ubuntu:679 676 When Africans meet they greet one another by ags wkihnether they have peace. When they part they wish one another peace. According to M’baye (1917441:) , it is imperative for a society to maintaina pce and avoid offending the supernatural forces watgc hoivner the group and protecting them. 677 Ramose (2002{b): 121; 122) state that “the moyr aolfit caring and sharing is present in African rieolnig … as African religion rests upon selfless sharindg caaring”. 678 Broodryk (2002: 31) describes values as “the aasis e(gweapons, spears) you use to defend, manag e and construct your own personal life and influence tohfa tthe brotherhood”. 679 Sisulu (cited by Broodryk, 2002: 13) explains cthoen cept ofu buntu as follows: “if you have two cows, and the milk of the first cow is enough for yourn csoumption, Ubuntu expects you to donate the mi ltkh eo f second cow to your underprivileged brother ande rs”i.s tAccording to Broodryk,u buntu entails that assets are shared; that fruits (like the milk of the coawre) not sold, but are donated to the underprivdile. g e 361 Core values Associated values Humanness Warmth, tolerance, understanding, peace, humanity Caring Empathy, sympathy, helpfulness, charitableness, friendliness Sharing Giving (unconditionally), redistribution, open- handedness Respect Commitment, dignity, obedience, forgiving, spontaneity Compassion Love, cohesion, informality, forgiving, spontaneity At face value, ubuntu values of humanness, caring, sharing, respect and compassion seem the same for all humanity. Although ubuntu values are perceived to reflect universal values, the researcher posits that in reality ubuntu values encompass far more than Western values do. The values of caring, sharing, respect and compassion will briefly be discussed to illustrate the difference in content between Western and ubuntu values. • Caring: Collins (2004: 245) describes caring as providing for physical needs, help or comfort; being troubled or concerned about something or someone. The ubuntu value of care transcends the meaning of care in Western societies as follows: Caring is a vital and fundamental value in African society; it places an obligation of care on the chief, elders, family head and the community. In Western societies children are taken care of by their parents, but in traditional Africa children are, as a rule, taken care of by their extended family and other community members. Ubuntu philosophy dictates that the family head has a responsibility to take care of his extended family680 by provide food, shelter, clothing and basic 680 In Western societies both parents have a dutya roef tcowards the nucleur family. 362 healthcare for his dependants.681 According to the BHE case, caring as a value is entrenched in the African (Banjul) Charter on Human and Peoples’ Rights. The Preamble to the African Charter urges member states to take “into consideration the virtues of their historical traditions and values of African civilisation which should inspire and characterise their reflection on the concept of human and peoples’ rights”. Article 27(1) provides that “every individual shall have duties towards his family and society”. Article 29(1) provides that an individual shall have the duty “to preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need”.682 Not only does the individual have a duty of care towards the needs of family and society683, but also a duty of care towards the property of the family. The family head in particular has a duty of care “in the sense that he assumes control and administration of the property subject to his rights and obligations as head of the family unit”. The concept of imbeleko again, implies that village members have to assist families for free with building houses, ploughing and harvesting, as a sign of ubuntu. Elders also have a duty of care. Elders, as heads over respectively their families and the community, have authority not only over their own children, but over all children of the community. As figures of authority, they have the duty to discipline the community’s children. The chief has many duties of care towards his community. One in particular, however, is very significant: chiefs play an important role in the application of discipline: if youths get out of hand, the chief organises impis to discipline them (Broodryk 1997{a}: 76). The duty of care, of especially the elders and the chief towards the youth, would not be tolerated in Western society where human rights are paramount. The ubuntu value of care is also illustrated 681 SeeB HE-case 4.4.1.6 (Par. 165). 682 Ibid par. 166. 683 The concept ouf kusisai mplies that cows are lent to newcomers in the cAafnri village to welcome them. 363 by the custom where the wife of a deceased brother or the husband of a deceased sister is inherited for purposes of producing children for the family. These examples do not prove ubuntu values unique, as other communitarian societies, viz. Australasian indigenous people and the ‘American Indians’ or First Nations, might share the same values as ubuntu. In ubuntu reality caring684 transcends Western notions of care. • Respect: According to Collins (2004: 1381), respect means to exhibit an attitude of esteem towards something. At face value, respect seems to be a truly universal value; however in ubuntu reality, ‘respect’ also transcends the Western understanding of the word. In Western culture, children are taught to respect every human older than themselves. As in Western culture, African children are taught the value of respect. Goba (1998: 88) posits that the value of respect is central to African ethics, but it goes beyond respect for elders to include also respect for ancestors. As the ubuntu community includes both the living and the dead, respect in African communities includes also respect for the living dead, or the ancestors. Respect for the living dead is emphasised because ancestors continue to exert moral influence over the living in the community. Goba emphasises that disrespect for ancestors will have serious consequences for the individual and his family. According to Mduli (cited in Broodryk, 1997{a}: 57), customary rules which govern ubuntu relationships in traditional societies stipulate the authority of elders over younger people; parents over children; leaders over followers and men over women. Mduli emphasises the importance of showing respect not only for people one knows but even for those not known in the spirit world. It is a closed form of respect in the sense that strict adherence to these rules is demanded. Bhengu (2006: 75) states that respect for others indicates spiritual awareness. He illustrates the value of respect with the following example: 684 Mbiti (1991: 96) mentions the custom amongst btr-efeaesding mothers in African societies to breasdt fee each other’s babies, should the need arise. Alth otuhge concept of a wet nurse is known in Western societies, it is not common practice for a Westmeornth er to feed another’s baby. 364 When Africans greet one another they do so in the plural because it is believed that the person you are greeting is not alone, but accompanied by his ancestors. Another difference concerning the value of respect lies in the fact that Western ethics of gender equality do not differentiate between males and females with regard to being shown respect. Goba (1998: 88) however maintains that in traditional Africa, respect is firstly determined by age, and secondly by gender. Showing respect to male elders is of cardinal importance, but “[r]espect for women who are elders is not of relevance”. The Western value of respect does not include respect towards ancestors because this is a concept foreign to Christianity. As Westerners are very conscious of discrimination, disrespect towards women violates their right to equality. • Sharing: Collins (2003: 1495) describes sharing as dividing or apportioning equally; to receive or contribute a portion of; and to join with another or others in the use of something. The ubuntu value of sharing exceeds the meaning of ‘sharing’ in Western society. The concept of ukusisa or sharing implies that members of the African community lend their cattle to needy newcomers in the village to welcome them. The newcomer becomes the owner of all the calves to be born and eventually returns the original cattle to their owner after a few years. No paying of interest is involved. The African concept of sharing685 implies that one can borrow anything from village members without having to return it. In Western reality whatever has been borrowed must be returned. Another example of ubuntu sharing involves the custom where a man shares his 685 “The most common expression of Ubuntu in colleec twivork was the practice onfh imbe. A family would invite other villagers to help with the accpolmishment of a particular selected task such alsd fie weeding, building and harvesting. The host familoyu wld provide free beer and food. Every family was expected to show solidarity by sending a familyr erespentative to help on that day. Inability to shuopw w as not easily forgiven and was strongly noted. Normy tahlle response of the family that had been let d wowasn to retaliate in a similar manner to the absent lfya mwhi en they had their ownh imbe” (Mbigi: 1997: 110- 111). 365 bride686 with his ancestors687 in the “bride hut”.688 In most traditional African societies, virginity689 is still held in high esteem. If the husband finds his newly-wed wife to be a virgin, the joy is shared with the relatives and neighbours. “She and her family are praised and respected by everybody, and often they are given presents” (Mbiti, 1991: 110). The unique value of sharing is evident also where a “dead son is to be married in [his] absence; arranging for the wives of impotent or long absent husbands to have children by close relatives or friends, etc.” (Mbiti, 1991: 112). • Compassion: Collins (2004: 327) describes compassion as a feeling of distress and pity for the suffering and misfortune of another. A classic example of compassion was demonstrated throughout Western society when Amina Lawal was to be stoned in accordance with Sharia Law. Thanks to Western intervention, based on the value of compassion, her life was spared. Even though compassion seems to be a universal value, there is a difference between compassion as a value in African and Western societies. Because of compassion, a Westerner could neither justify killing twins690, triplets or their mother nor allow the suffering experienced by animals in the name of sacrifices. It is because of the Western value of compassion that the bellowing of the sacrificial bull to 686 According to African Religion, marriage is the mtinege point “for three layers of human life. Therre a the departed, the living and those to be born. lTivhineg are the link between death and life … Theore f marriage and childbearing are the medicines ag daienastth” (Mbiti, 1991: 104-105). 687 Through marriage the ancestors can be reincar noar teredborn into the family, “not in their total bnegi, but by having some of their physical features ahnadr accteristics or personality traits” in the cheilnd.r If marriage is childless the ancestors cannot reinactea rtno their family. 688 “The Bantu say that a woman, be she one’s wifoen oer’ s mother, exists in the past, present, andr ef utu at the same time, and she does not belong to ofanteh’esr or oneself, but to those as yet unborn,t oa nodn e’s ancestors. They say the girl one marries is nost ecnh oby oneself, but by one’s ancestors and tha bt esghets children, using the man only as a medium. For rtehaiss on it is a custom amongst the Bantu for a mo an t leave his bride for three days in the ‘spirit hau ts’ pecial shrine where thEen as of his ancestors may first kiss and mate with her” (Mutwa 2003: 166). 689 Mbiti (1991: 109) states that virginity is takeon seriously in certain communities that if the gisir l found not to be a virgin, the marriage would bes odlivsed. Such girl would bring disgrace and shamoen u p her relatives. According to Mbiti, girls were evkeinlle d in the past for losing their virginity. 690 In certain traditional African cultures the birothf twins is viewed with dismay. It is presumed atc wh i must have cursed the mother. 366 invoke the ancestors, creates conflict between animal rights groups and leaders of traditional African communities. Gyekye (2002: 301) mentions truth as a value. However, not even the value of truth seems to be universal. According to Ephirim-Donkor (1998: 127), truth is indivisible and “perceived as a collective truth comprised of a body of infallible individuals”. According to Mutwa (1998: 627), an African will lie with great ease to a magistrate or judge but never to a witchdoctor in the village. Whereas truth for the Westerner applies universally, ubuntu truth is paramount in the closed community. Truth, as value opposes the African and Western philosophies of life with each other. Although it is generally perceived that Western reality is the only truth and therefore universal, postmodernity has dealt with this lie. There are more truths than one. Whilst the values caring, sharing, respect and compassion seem to reflect the universal meaning of the words, it is evident that the value content of the words differs. Broodryk (2007: 40) contends that ubuntu values exhibit a unique character. According to Broodryk, the difference between Western and ubuntu values “lies in the intensity and level of living these values; in Africa these values are practised on a much deeper level. It is about an intense living of humanity”. If the intensity of ubuntu values is not shared by Westerners, can we then still call values universal? 4.9.1 Ubuntu Values: Universal or Unique? In S v Makwanyane the South African Constitutional Court equated ubuntu values to Western values. As a result of the Makwanyane argument, it can now be deduced that values of African communalism are similar to the universal values of Western liberalism.691 The Western worldview, based on Greek 691 According toT he Living Values: A Guide Boo1k9, 95 (cited in Bhengu, 2006: 199), the followinglu veas are regarded as universal values: cooperationd, ofrmee, happiness, honesty, humility, love, peacep, ercets, responsibility, simplicity, tolerance and unity. cAocrding to Covey these would be called principles. 367 philosophy and Christian religious beliefs, is grounded in science, Western humanism and the premise of man as a rational being. How equitable are Western values to values of a “mythological Bantu philosophy, namely the wisdom of the Bantu based on the philosophy of vital force”692 (Tempels, 1959: 75), lobola693, sangomas, initiation, ancestors and African brotherhood? Mbigi (2005: v; 1997: 2) argues that although ubuntu is both a uniquely African694 and a universal (Mbigi & Maree 2005: v) concept applicable to all poor communities worldwide, the assimilation of Western culture [and therefore Western values] in Africa has not been very successful (2005: ix). Mbigi argues that for Africa to reconstruct itself, the starting point should be “our own roots”, and quotes Cabral to emphasise his point: “A people who free themselves from foreign domination will not be culturally free unless, without underestimating the importance of positive contributions from the oppressor’s culture and other cultures, they return to the upward paths of their own culture … if Africans are going to undertake the challenge of development, they need to discover their own collective self-identity. This has to be an inward journey, which should lead to a celebration of collective ‘personhood’, which we have called Ubuntu”. Is ubuntu a universal concept which embraces universal Western values, when Africans cry for deconstruction, reconstruction, collective botherhood, group rights and ubuntu? 692 Vital force or seriti has often been translated as dignity or person, abluityt this only describes the end result of the phenomenon. It actually means shaodro wsh ade.S eriti is an aura around a person which is both inside the person and outside of the physbiocdayl . Seriti connects with animals, humans, animates and inanimates and can be best understood as an ianyte trhpalt takes place between people when they cnotmo e i contact or live with one another. “The human beisn gn ot only vital force, but more: vital force in participation. Participation is made possibles beyri ti which is ever engaged in interplay with othesre’sr iti whenever they come into contact” (Setiloane, 201030-1: 4). 693 Lobola or marriage gifts are seen as the legatrlu imnsents which authorise the husband and wifev teo li together and to bear children. Lobola constantmly inreds the partners of their obligation to stay tohgeer (Mbiti, 1991: 108). 694 Mbigi (1997: 2) relates howu buntu permeates every aspect of African life. “It is eexspsred in our collective: singing, dancing, effort in work, sto treylling, funerals, expression of grief and wail,i nregspect and acceptance, sharing and compassion, huntintiga,t ioinn and war rites, celebration, rituals, woiprs”h. 368 Does the answer to ubuntu’s universal values lie with Mazrui (cited by Mbigi, 2005: ix), when he says: “But in the final analysis the shallowness of the imported institutions is due to that culture gap between the new structures and ancient values, between alien institutions and ancestral traditions. Africa can never go back completely to its pre-colonial starting point but there may be a case for at least a partial retreat, a case for re-establishing contacts with familiar landmarks of yesteryear and restarting the journey of modernization under indigenous impetus”. Mazrui laments the shallowness of imported institutions, but by implication he laments the shallowness of Western culture and its accompanying values; a shallowness not comparable with the richness of ancient ubuntu values. The mere fact that the “shallowness” of universal values such as brotherhood, sharing and respect is not comparable with the ancient ubuntu values of brotherhood, sharing and respect is indicative of a hermeneutical problem. Can “shallow” English vocabulary describe what the richer ubuntu values encompass? According to legal hermeneutics, understanding of a word or text cannot be detached from its cultural context. Therefore, understanding of the African concept of ubuntu cannot be detached from its cultural context, as understanding of ubuntu is determined by the cultural context of traditional African societies. According to Van Blerk (2004: 219) a specific cultural context influences the perceptions and meanings of words as “[t]he languages unique to the societies which use them constitute unique worlds for those societies and should not be seen as interchangeable words with different names for the same things. Thus, all meaning is rendered uncertain and true and universal meanings cannot exist”. If universal meanings do not exist, how can universal values exist?695 There are limits to Western rationality. Western philosophy’s rational approach and dominant beliefs of Christianity cannot rationalise ubuntu’s mystic or 695 See 4.13 for the difference between the univemrseaaln ing of hospitality and thueb untum eaning of hospitality. 369 religious philosophy of life for “ubuntu resists the dictate of Western logic and Western rites of argumentation” (Koka et al. cited in Bhengu, 2006: 46). In fact, as Tutu (2006: 346) remarked, “the English word [humanness] fails to convey the African wordview”. Western rationality cannot rationalise that which it cannot conceptualise. According to Wittgenstein’s Tractatus (Soloman et al., 1996: 258), one cannot say the “unsayable. Whereof one cannot speak, one must be silent”. African mysticism and its value system lie beyond the reach of comprehension of Western philosophy and its logic. “Outside the limits of scientific rationality lie all the problems of value, the pressing question of ethics, the very nature of God and religion” (Soloman et al., 1996: 258). For Wittgenstein, “ethics, aesthetics, religion” and their accompanying values are “too important to be captured by the logical language of science” (Soloman et al., 1996: 258). The logical atomism of Western language can therefore not capture what ubuntu embodies. In Wittgenstein’s Investigations he finds that “[p]hilosophical confusion arises when we are seduced by superficial similarities between expressions into overlooking differences in use” (Law, 2007: 327). Broodryk (2007), Koka et al. (cited in Bhengu, 2006) and Ngubane (2006) confirm the dilemma ubuntu experiences with hermeneutics. Broodryk describes ubuntu values as both unique and universal. Broodryk’s (2007: 39) problem with categorising ubuntu values as unique however, lies in the fact that all cultures are supposed to ascribe to universal values. As the first person to have obtained a doctoral degree on ubuntu, Broodryk indicates that there is a marked difference between Western and ubuntu values concerning “the intensity and level of living these values”. Broodryk observes that “in Africa these values are practised on a much deeper level”. Because of the inherent difference in the content of ‘universal’ values, Broodryk defines ubuntu696 as “a comprehensive ancient 696 “[ Ubuntu] referred to what ultimately distinguished us fr othme animals – the quality of being human and also humane. The definition is almost a taugtyo.l oThe person who had ubuntu was known to be compassionate and gentle, who used his strengtbhe honal f of the weak, who did not take advantage of others – in short he cared, treating others as wthheayt were, human beings … Without this quality a prosperous man, even though he might be a chiesf, rweagarded as someone deserving of pity and sometimes even contempt … If you lacked ubuntu …u Ylaocked an indispensable ingredient to being 370 African worldview based on the values of intense697 humanness, caring, sharing, respect, compassion, and associated values, ensuring a happy and qualitative community life in the spirit family”. As we know, umuntu, ngumuntu ngabantu, or ubuntu is usually translated as “humanness”. Koka et al. (cited in Bhengu, 2006: 46) argue as follows on the use of “humanness” as translation for ubuntu: “Asking an African philosopher for the meaning of ubuntu, a European will hear that ubuntu means ‘humanness’. However, ubuntu has more to it than this polite and forbearing answer, an explanation of ubuntu needs all kinds of associations, images and experiences; ubuntu resists the dictate of Western logic and Western rites of argumentation with their demands for distinctive definitions”. Does the same reasoning apply for the “shallow” English words describing ancient ubuntu values? Does one, in order to comprehend “intense” ubuntu values, also need all kinds of associations, images and experiences? If Western logic is too “shallow” to depict the true essence of “intense” ubuntu values, Western and African values are not intrinsically the same. Ngubane (cited in Bhengu, 2006: 42) laments the superficial translation of ubuntu as “humanity”, saying: “This is too simple an understanding, touching only the visible aspects of ubuntu in operation. More completely understood, the word refers to a moral philosophy deriving from the dictum that umuntu ngumuntu ngabantu – a person is a person through other people”. Bhengu (1996: 4) mentions that Africanists have done an in-depth study to find a suitable English synonym for ubuntu, but could find none: “there is no equivalent English word for Ubuntu”. As Collins (2004: 767) describes “humanness” as a noun characterised by kindness, sympathy, etc., the reader human. You might have much of the world’s goodsd, yaonu might have position and authority, but if you did not have ubuntu, you did not amount to muche. nE tvoday, ubuntu is greatly admired and to be sto ugh after or cultivated. Only someone to whom somet hdirnagstic has happened could ever say that the doef ath a fellow human being left him cold. Blacks wouldc oreil from anyone in their community who ever displayed such callousness. He had lost his humy; aonri twas well on the way to doing so” (Tutu, 20 06: 347). 697 The author’s emphasis. 371 will agree that the English word “humanness” fails dismally at describing the Xhosa proverb, umuntu, ngumuntu ngabantu.698 In fact, for a Westerner entrenched in the individualism of a Western worldview, it is impossible to imagine what ‘I am because we are, or I am a person through other persons’, means. To equate values of a scientific worldview with values of a ‘mystic’ worldview is to create philosophical confusion. Abraham, Wiredu and Gyekye agree that traditional African philosophy and Western philosophy differ from each other like day from night (Hallen, 2002: 32).699This philosophical confusion, created as a result of suggestions of a universal value system, is evident in the way African philosophers describe ubuntu as “both unique and universal”. As “[v]alues are closely linked with a person’s worldview and underlie the way a person approaches life” (Broodryk 2007: 48), universal values are a myth.700 If values in both Western and ubuntu philosophy were indeed universal, the different worldviews and therefore philosophies would reflect similarities too. In reality, however, Western philosophy has always denied and scorned ubuntu’s philosophy of life because in Western reality philosophy and its ‘universal’ value system dictate the standard. African philosophers, like Sogolo, maintain that philosophy is culturally relative. Sogolo (cited in Hallen, 2002: 40) is convinced that “African forms of life are unique and cannot be adequately or fairly treated or understood using the techniques [or words] of Western philosophy, that has originated from Western forms of life”.701 Mokgoro (1998) too, concludes that although dignity, humanness, conformity, respect, etc. are not foreign to South 698 In Southern Sudan the Dinka call “this unifyingi lopshophy [ubuntu], reflected in cultures all over Africa, chieng, meaning ‘morality’ or ‘living together’” (Holland,2 001: 179). The words ‘morality’ or ‘living together’are more accurate desriptions ufobru ntu than the translation of ‘humanness’. 699 Wiredu, (cited in Hallen, 2002: 32) states aso fwolsl: “It comes out clearly, for example, in Profoers s Abraham’sM ind of Africa that in theoretical sweep and practical bearinagd, itironal African philosophies concede nothing to the world views of European opshoipl hy. Why, then, should the African philosophy student not be steeped in his own heritage of spohpilohy before looking elsewhere?” 700 Law should reflect the shared values of the mtayj orfi a society to avert a legitimacy crisis. 701 Gyekye (2002: 55-56) maintains philosophy anda citcso mpanying values form part of culture, and are therefore unique. 372 African cultural systems, ubuntu values are unique702 with regard to their methods, approaches, emphasis and attitude. According to Imbo (2002: 144), African values are unique because they represent “not only the consensus of the people, but also a wider equilibrium of the society between the earth, the ancestors and spirits, and the living”. Western values pertain only to the living. Contrary to Western values, ubuntu “values and norms are handed down by the ancestors” (Khapoya, 1994: 49) and pertain to the living and the dead. Although S v Makwanyane found ubuntu values to be universal, it is contended that ubuntu values are unique, not universal. According to Boon (1996: 84), all values are always part of individual belief systems and therefore unique. One should however distinguish clearly between values and principles, because values are not principles. Whilst values form part of individual belief systems, principles are never unique. Principles are universal and part of every religion, philosophy and ethical system (Covey, 1994: 34). Covey suggests that, for example, fairness and human dignity703 represent universal principles and not values. Despite Western debates over science and myth, Africa continues to celebrate its ubuntu Otherness. In spite of claims of the universality of values, Africans accuse the Western value system of eroding its own unique indigenous values.704 Mutwa (1998: 691) warns that Western values ultimately brought about the destruction of indigenous African values: Oh! My indolent and gullible Africa The superior aliens glibly talk of bringing the ‘light of civilisation’ to your shores. And yet the only civilization they can bring 702 The unique character oufb untu is lamented by Wiredu (1980: 33), a universalwisht,o calls ubuntu values ‘outdated’. 703 In S v Makwanyanteh e right to human dignity was transformed to thaelu ev of human dignity. 704 Biko (2007: 17; 23) rejects the myth of univervsallu es as follows: “Our adherence to values tha st ewt e for ourselves can also not be reversed becausiell iat lways be a lie to accept white values as nseacreilsy the best … ‘Black Consciousness’ seeks to showk bplaecople the value of their own standards and ouk tlo … In rejecting Western values, therefore, we arjec rtieng those things that are not only foreign sto b u t that seek to destroy the most cherished of ouer fbse tlhi at the corner-stone of society is man him nsoetl fjust his welfare, not his material wellbeing but man sheimlf with all his ramifications”. 373 is one infected with physical, moral and spiritual decay. The ‘light’ they hold forth is the violent flare of the hydrogen bomb. To add fuel to the fire, Oduyoye (2001: 97; 99) argues that in modern Africa the extended family “is gradually being replaced by the nuclear family and the social phenomenon of individualism … fundamental African values are becoming visible with their absence”. Ubuntu does not only represent “African morality”, but also embodies justice. Ubuntu as justice will be discussed next. 4.10 UBUNTU AS JUSTICE Ubuntu embodies not only values and morals, but also justice. Justice is perceived as ubuntu fairness; doing what is right and moral in the indigenous African society. The essence of ubuntu lies in its ability to constitute order and restore balance and peace within the African cosmology; to maintain the balance between conflict and harmony within traditional African communities. The following will be discussed in this section: • Ubuntu justice and Maat. • Justice and the Elders, and • Ubuntu Justice versus Western justice. Peace through justice is the “fundamental law” of ubuntu philosophy (Ramose, 2002{b}: 52). According to Ramose, justice without peace “is the negation of the strife towards cosmic harmony. But peace without justice is the dislocation of umuntu from the cosmic order”. Justice in traditional Africa is achieved in accordance with “the will of the Gods and the wishes of the ancestors” (M’Baye, 1974: 148). This notion of ubuntu as justice is confirmed and explained by Ramose (2002{b}: 93) when he says: “Justice as equilibrium in ubuntu legal 374 philosophy means the perpetual exchange and sharing of the forces of life”.705 A community without ubuntu justice has no peace, harmony or balance and is destined for chaos. “The harmony and stability of the African’s mode of life in political, social, religious, and economic organisations, was based on the land706 which was, and still is, the soul of the people” (Bhengu, 2006: 34). The concept of ubuntu as justice does not equate the concept of justice in Western legal terms, “but [justice] in terms of the proper relationship between a human person and the universe, between the person and nature, between the person and another person … it regulates the relationship of the universe” (Bhengu, 2006: 30). Bhengu relates that just as Maat707, the Egyptian goddess of ancient Africa, personified truth, justice and righteousness in ancient Egypt, so ubuntu personifies truth, justice and righteousness in indigenous Africa. Ngubane (1979), Kamalu (1998), Koka (2002), Broodryk (2006; 2007) and Bhengu (2007) maintain that ubuntu708 originated from ancient Egypt’s holy belief of Netchar Maat. 4.10.1 Ubuntu Justice and Maat Anthologies of Egyptian and African literature frequently refer to “The Moral Teachings of Ptah-hotep”. Ptah-hotep was an official in the Fifth Dynasy, 2400 B.C. Ptah-Hotep’s manuscript justifies certain kinds of behaviour as moral or 705Ramose (2002{b}: 94) confirms that the African wdovrilew is holistic and critical of Western fragmentive thinking. 706 In ubuntu reality land belongs to the ancestors. 707 According to Kamula (1998: 89), truth, justice a rnigdhteousness in ancient Africa are personifie dth bey ancient Egyptian goddess Maat. “She is the embondti mofe natural law and represents the principle on which the society and cosmos are founded. To li vveir tauous life, to cling to the truth and to condt uc harmonious relationships with oneself, one’s fam ainlyd one’s neighbours, is to live in accordanceh wit Ma’at. Ma’at therefore represents a principle oirl opshophy rather than a static conception of minda.a Mt is the same principle of reciprocation that we find t rianditional Africa. It ensures that cosmic and haunm justice is always done. The person who mistreast sf ehlliow man/woman will experience his own action coming back to him in some form or other … The onno toi f Ma’at as truth, justice and righteousness aasn d expounded by Khun Anup is akin to notions of traunthd justice in traditional Africau (buntu)”. 708 In Chapter 2 (2.3.)1 it was established that African philosophy origteinsa from ancient Egypt and that ancient Egyptian civilisations were in fact Negrofr-iAcan achievements. If African philosophy origiensa t from Egypt, soip si facto does the root of African philosophuyb: untu. 375 Maat.709 The goddess Ma’at or Maat personified harmony in the universe. Maat represented order, truthfulness and justice, and all human beings sought to live by her ethical rule. As an approach to life, Maat’s perscriptions of truth, justice and righteousness is said to form the basis not only of ubuntu truth, justice and righteousness, but also of “the sacred values of ubuntu” (Broodryk, 2007: 41). It is believed that the values of ubuntu originated in ancient Egypt and that the Maat beliefs were transferred by word of mouth throughout Africa during the migration periods. Ubuntu philosophy was consequently transplanted to West Africa, Central Africa, East Africa and the Sub-Saharan region. Bauval (1999: 94- 96) describes Netchar Maat as follows: During the golden age of the gods, Osiris established a cosmic law, called Maat. Maat was personified by a winged goddess on whose head was affixed a large plume or Maat feather which symbolised ‘Truth’ or a truthful and righteous heart, representing justice and discipline. The goddess Maat is described as “the personification of law, order, rule, truth, right, righteousness, canon, justice, straightness, integrity, uprightness and the highest conception of physical and moral law known to Egyptians” Bhengu (2006: 19). All these ethics are encapsulated in the principle of ‘Truth’. According to Bhengu, Maat is a “code of practice of the gods to which a person must adhere in his earthly existence in order to progress towards a godlike state”. Maat guides a person through life in accordance with the Divine Will. Maat was an essential prerequisite to gain the right of entry into the heavenly kingdom of Osiris710, but was in itself not sufficient to achieve immortality of the soul. Bauval (1999: 94-96) narrates that apart from Maat, a person also needed 709 T’Shaka (cited in Reed, 2001: 173) describes Maasa “tt he cosmic, earthly and social law that invlyis ib guides the heavens and the earth. The ancientse mofe Kt (Egypt) who conceived the law of Maat, def init ed as ‘the rudder of heaven and the beam of earthn.c’ eS ithe rudder provides direction to the ship, M aat provides invisible direction to the universe. Si nthce beam is the central foundation of a house,t Misa tahe foundation of the earth. Maat is the way of harm, otnruyth, justice, balance and right order. Humain gbse were expected to think Maat, speak Maat and livea tM”. a 710 Osiris was the Egyptian god of the underworld,s epnreted as a man wearing the Atef crown and holding the symbols of governing in his hands. It was thhot utghat all who was virtuous in life would be greadn t entry by him to the afterlife. 376 Heka, a system of magical knowledge of Thoth711, to ensure entrance into the heavenly kingdom of Osiris. To achieve immortality, Maat and Heka provided respectively “quality of character and knowledge”. “The apotheosis of the soul’s journey through life and death is reached in the so-called Hall of Judgment of Osiris” (Bauval, 1999: 96) where the deceased heart had to be judged. The judgment comprised of the weighing of the deceased person’s heart on the large set of scales712 of Osiris. Whilst Osiris sat on his throne in the Hall of Judgment, flanked by the goddesses Isis and Nephthys, the heart of the deceased was weighted on the scales against the feather of Maat. The scales were checked by Anubis and the result recorded by Toth. Whilst weighing the deceased’s heart the deceased had to make a “Negative Confession” which declared that he was innocent of specific crimes. If the balance of Osiris’s scales tipped towards the heart, the soul was perceived heavy with sin and redemption was lost713; if it should tip the other way, the soul was saved. Forty-two assessor gods or judges assisted Osiris in his final verdict of who was and who was not worthy of entering the underworld or heavenly realm. If a deceased person was not worthy of immortality, he had to be reincarnated or reborn. To live according to Maat, means to cling to truth and justice and to live in cosmic harmony with friends, family, relatives and the spirit world. Ubuntu, like Maat, represents cosmic justice. As in the case of the Egyptian assessor gods or judges, the living dead or ancestors in ubuntu reality play a central role in administering justice during life and death of the African person. Ubuntu reality seems to have similarities with the principles of Maat. When death in Africa occurs, the corpse is ritually prepared and buried. Ephirim-Donkor (1998: 9) explains how, forty days after burial in the Akan tradition, the spirit of 711 According to Bauval (1999: 95), “the goddess Miasa st aid to be the companion or wife of Thoth”. Thoth was the Egyptian god of Knowledge, and wis door mintelligence. 712 “The scales symbolise Maat … In one tray lies ftehaet her of ‘Truth’ and in the other tray the heoafr t the deceased … The god Thoth records the readi nthge o lnarge set of scales (Bauval, 1999: 96). 713 Ammut, the monster which had the head of a dogc rorc odile, the forelegs of a lion and the hindquarters of a hippopotamus devoured the hef athrte o deceased filled with wrongdoing. 377 the deceased person departs to the world of the ancestors.714 In the world of the ancestors the deceased person is put to trial and if found worthy, admitted into the company of the ancestors. If the deceased person is found to have led an unworthy life, he is pronounced guilty and excluded from ancestorhood.715 In order to undo his evils the deceased person is reincarnated. The African belief in reincarnation716 is confirmed by Mbigi (1997) Ephirim-Donkor (1998), (Ramose 2002{b}) and Mutwa717 (1998; 2003). Ephirim-Donkor (1998: 4) explains that if an African individual dies718 without fulfilling his or her purpose of being, the deceased is reincarnated as many times as necessary in order to fulfil the God- given purpose of being. The belief in reincarnation is central to the African way of life, as reincarnation creates an opportunity for the spirit to return to its people, clan or tribe. It is believed that the African soul goes through many incarnations in its quest to reach spiritual maturity (Mbigi, 1997: 33; 52). Traditional African reality has no hell, no heaven and no resurrection because they believe in immortality. Immortality can be obtained by living a good life or acquiring as much life force as possible. “Children and women are generally considered to have less life force 714 Ephirim-Donkor (1998: 61) reveals that some ssp idriot not go on to the ancestors immediately. This happens in the case where the deceased persoltn t ois hfeave died prematurely without his completihnisg mission in life. 715 “It is not everyone who qualifies to become idalno zi [ancestor]. If I was a very bad person and I s tole goats and was cruel to my wife or if I was ill-ttrienag the cattle and the children, then I would qnuoat lify to be idlozi. That spirit will not be honoured. Rather, I will bcaelled isamfumfu – a lost, evil spirit. That spirit will not be honoured. Although thisa mfumfu is evil, we must never allow it to fade away froums because then it may curse us. So we must do ceremonietsh efo isr amfumfu.B ut we must not say why we are killing the goat or for whom we are making the beer. Ande nw whe place the beer for thisea mfumfu, we must back out backwards” (Mutwa, cited in Boon, 1996: 20). 716 See Mutwa’sI ndaba my Children(1 998) and Zulu Shaman(2 003). 717 Mutwa (2003: 201; 207) explains reincarnation apsro acess where people “die and are born againr eithe as animals or as trees, even bushes, or even otyf pinesse cts and some one can be lucky enough toe bboer nr as a human being once again”. According to Mutw9a9 8(1: 590), the baobab is the most sacred tree sbe cau it is associated with the souls of future witchdoorsc,t wise women, midwives and those who will caorre f and control the lives of others. The Shonas araer dreegd as a good tribe because the baobabs occutlry mos in their land. The baobab is according to Mutwag,a reded as a direct descendant of the Tree of Life. Ephirim-Donkor (1998: 36) mentions that althoughc easntors can reincarnate anywhere in the world yin an race, they mostly reincarnate into their own faemsi.l iWhilst in some cultures people reincarnate lienstoser creatures, other cultures people are always reninacteadr as human beings. See Mutwa (1998: 590-610). 718 Mutwa (2003:20) describes how, at a person’s d, etahteh ena wanders the earth for a while and eventually dissipates. The deceasemdo’sy a goes on to reincarnate in other forms. Whenm thoey a takes a new form, be it human or animal, it makes a neenwa . 378 than men” (Nyirongo, 1997: 80). According to Nyirongo (1997: 104), the souls of women and daughters do not qualify as ancestors, except in a few matrilineal tribes where inheritance falls in female lines. Depending on a deceased person’s life, he can obtain immortality by becoming an ancestral spirit. The ancestral spirit experiences immortality for as long as he is remembered by his people. The ancestor spirit loses immortality and becomes an ordinary malevolent spirit as soon as future generations forget his name. 4.10.2 Justice and the Elders Elders are individuals who have achieved ‘personhood’.719 An elder is a person who has achieved full immortality; he has acquired as much life force as he can. A male elder, as head of the family, has the power to bless or withhold blessings. According to Somé (1994: 23), “this ability comes from the ancestors, to whom he is very close, and he follows their wisdom and counselling for his large family”. Certain elders are elected by older members of the tribe or community to sit on the village or tribal council where they take part in decision making concerning the community. Elders are perceived as having lived an “altruistic ethical life and having achieved a name worthy of remembrance and evocation” (Ephirim- Donkor, 1998: 121). They are regarded as sages and consulted for their unprejudiced advice and counsel. According to Ephirim-Donkor, the elders, lineage heads and sub-kings of the village constitute the king’s720 council. Because the king represents tribal unity and personifies the law, the decisions of the collective body of elders are regarded as legal and binding. Mangena (1996: 59) maintains that the ultimate authority remains with the elders. According to her, the “elders have reached the stage in life which accord them the position of 719 The concept of ‘personhood’ indicates that theiv iinddual is whole. Personhood is a state which cnalny o be achieved after having gone throughu ablul ntur ites and living an ‘ultruistic and ethical life“’W. holeness is the starting point of the African concept of ear spon. Consequently the human person in Africanu gthto is not definable in terms of a single physical soyr cphological characteristic to the exclusion of reytvheing else” (Ramose, 2002{b}: 64). To become an ance sthtoer ,deceased had to be an elder. “Ancestors are therefore a distinct group of eternal saints, a pfraormt other spiritual personalities who are alsod oewned with immortality, but are not ancestors” (Ephirimo-nDkor, 1996: 129). 720 The king is perceived as a divine being, worth yp roafise, worship and sacrifice (Ephirim-Donkor, 61:9 9 119). 379 and role of running the juridical system in the lineage and beyond to the last communal level of a particular territory”. The position of elder is the highest existential office; therefore, elders fulfil the tasks of intercessors, mediators, councillors, judges and preservers of tradition in the community. Elders represent truth in the community. According to Ephirim-Donkor (1998: 127), truth is indivisible and “perceived as a collective truth comprised of a body of infallible individuals”.721 In case of a dispute or other important issue, the community turns to the elders for unprejudiced advice and counsel. In order to settle the dispute or find a solution, a meeting or tribal court is called.722 All adult males have a right to participate in legal proceedings of the tribal court. According to Ephirim-Donkor, (1998: 124), ancestors have to be invoked prior to the meeting or court, as they affirm the infallibility of the elders and serve as witnesses. During the deliberations everyone present is given a chance to speak, as everyone present has a right to express themselves within the group. Court cases and meetings often drag on for a lengthy period of time as all sides of the case have to be heard as freedom of expression is paramount. The goal of lengthy deliberations is for the elders to achieve consensus. The elders must reach consensus on the judgment or solution before the final judgment is given. The elders’ judgment is legal and binding on the community. Ephirim-Donkor (1998: 124-25) emphasises the importance of not dismissing the ancestors before the end of the meeting. On their departure “the ancestors take with them the verdicts of their earthly counterparts. This ensures that what is legal on earth is also binding in the ancestral world. When finally the deceased appear before the ancestors for 721 According to Ephirim-Donkor (1996: 126), eldersv eh aalready attained immortality and ancesterhoo d in the flesh and are awaiting the final transforma titohnrough death. “Elders take their responsibil ities seriously, for they are being watched by the omiennistc ancestors before whom they must appear and be judges upon their deaths”. Should elders fail t hdeuitries, they are removed from their duties, fyir sfotlr having been rejected by the ancestors and seco fnodr lfya,iling the community. 722 Ephirim Donkor (1998: 121) states that the kinugb, -skings, linguists, orators, militia leaders, ahneda ds of lineages may attend such meetings. “These p emoapyle form the privy council of the king and therref o constitute a government”. Deliberations in couret ainrdicative to the king of where public opiniony la among those who attended the trial. The king uys uaacltls as judge. He ensures order in the courdt obeust not take part in court discussions. The king’s vicet rids given in accordance with the consensus eo fc tohurt. 380 accountability and judgment, there would be no room for error”. Traditional African justice does not exist in isolation, but stands in relation to the community,723 the ancestors and God. The goal of justice in ubuntu legal philosophy is to maintain equilibrium in the African flow of life. In the case of minor offences which are “not considered aggravation of the ancestral spirits of the family” (Mutwa, 1998: 632), the chief will pass judgment on behalf of the complainant and restore peace within the community. All mediation in traditional African societies is conducted by the elders. If mediation with ancestors is required, the community or person has to consult with elders. According to Ephirim-Donkor (1998: 127), elders are archetypes of mediation and stand between the ancestors and humanity. “No one goes or speaks to the ancestors or God without first going through the elders. The elders intercede [or mediate] on behalf of communities in order to ensure the continued blessings of the ancestors and of God”. If a man has to be removed or transferred from a kraal by the chief, the chief calls a gathering of elders to consult with the man’s ancestors.724 Mutwa (1998: 571) describes the process whereby the leader of the elders has to stand over the “Sacred Burial Ground” of the man to acquire permission from the man’s ancestors for his removal or transfer from the kraal. If an entire community has to be moved the move has to be mediated with the ancestors beforehand, as the ancestors have to grant permission for the move. Any person’s will is subjected to that of the living dead. Normally the ancestors will move with the community725 if they have to be relocated. 723 According to Mangena (1996: 59), the community wksn othe various forms of punishment for different forms of misbehaviour. “This in itself shows thhaet rte is no separation between the theory and cpera icnt i these systems. Sex groups consulted with each wothenr one of their lot had to be judged and pundi she for misconduct. For instance, a young man couldp ubnei shed by being ostracised by his group for a defined period. The young women of that particualgaer group would be consulted in the judgment o f the case and they would participate in carrying out pthuneishment against the culprit. The young man wd oul therefore be ostracised also by the women of heis g arogup”. 724 “A tribe that does not uphold this tradition iso dmoed in the same way as the individual who turnss hi back on thee nas of his ancestors” (Mutwa, 1998: 571-572). 725 The trauma related to forced removals of Africaeno pple during the apartheid era in South Africa, has eroded African culture and dislocated many commieusn.i t 381 The authority of the living dead or ancestors over the living is evident in all walks of life in indigenous Africa. If for example, two tribes fight to a draw, the elders of both tribes have to mediate justice by means of a “Peace Ceremony” before the feud is considered closed (Mutwa, 1998: 629). Ubuntu justice prescribes that equilibrium must be restored, even if it takes generations. “A debt or a feud is never extinguished till the equilibrium has been restored, even if several generations elapse … to the African there is nothing so unjust in our system of law as the Statute of Limitations, and they always resent a refusal on our part to arbitrate in a suit on the grounds that it is too old” (Driberg, cited in Ramose, 2002{b}: 95-96). 4.10.3 Ubuntu Justice versus Western Justice Ubuntu justice strives towards perpetuating balance, peace and harmony within its cosmic universe. “The golden rule is the golden mean; to live in moderation, harmony and balance. The world of nature, spirit and human beings are to live in interdependence; each fulfilling its complementary role in helping to maintain the balance and the golden mean” (Turaki, 1997: 59). Whilst justice in ubuntu reality is regulated by the African cosmic universe, Western justice is regulated by humans only. In contrast with the Western concept of retributive justice, the African concept of restorative justice726 and compensation is paramount in African law. Tutu describes restorative justice as a strongpoint of traditional African culture. According to Tutu (1999: 51-52), Retributive justice, in which an impersonal state hands down punishment with little consideration for victims and hardly any for the perpetrator, is not the only form of justice. I contend that there is another kind of justice, restorative justice, which was characteristic of traditional African jurisprudence. Here the central 726 See 4.4.1.5 the Court contends that restoratisvteic eju is a value ouf buntu. 382 concern is not retribution or punishment, but in the spirit of ubuntu, the healing of breaches, the redressing of imbalances, the restoration of broken relationships. This kind of justice seeks to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community he or she has injured by his or her offence. This is a far more personal approach, which sees the offence as something that has happened to people and whose consequence is a rupture in relationships. Thus we would claim that justice or restorative justice is being served when efforts are being made to work for healing, for forgiveness and for reconciliation. Because traditional African societies are based upon consensus and not democracy, reconciliation plays an important role. Group solidarity requires the restoration of peace and a win-win situation between parties. It is a “fundamental law of ubuntu” that peace must be attained by justice (Ramose, 2002{b}: 52). Ubuntu justice does, however, not always apply to outsiders. Naude (2006: 102) points out that reconciliation is not always sought in cases where disputes involved strangers or outsiders.727 Compensation plays an important role in obtaining justice. According to M’Baye (1974: 144), “[t]here must be compensation for every advantage … The sacrifice of a chattel, an animal or even a human being, so often practised in traditional Africa, is nothing but a manifestation of the necessity for compensation” (M’Baye, 1974: 147). But compensation alone is not sufficient. M’baye posits that over and above compensation, a sacrifice must also be made to ward off divine anger aroused by a crime. Whether damages will be compensated to an afflicted party depends largely upon the legal status of the person.728 The more influencial the person offended, the greater the injustice. According to Mbiti (1992: 208), the more influential the person is against whom the sin is committed, the more serious the injustice. This notion of ubuntu justice is confirmed by Nyirongo 727 African law did not apply to outsiders. See 4.1. 1.4 728 Among certain tribes adultery is only considere cdr ima e when committed with a chief’s wife (M’Baye, 1974: 144). In 1878 the sons of chief Sihayo kaXoo ncgaptured two of their father’s wives accused of adultery. The wives were clubbed to death in acacnocrde with Zulu tradition (Greaves, 2005: 76-77). 383 (1997: 63) who posits that a wrong against a chief is a more serious offence than the same sin committed against a man of lesser status. “This is so because the greater the person, the closer he is to the ancestors”. According to Nyirongo, to offend an elder is more severe than to offend a child with less vital force, and “if a person of influence and status commits an offence against a poor man, it is not as serious as when the poor man commits the same sin against him. Similarly, a teenager is expected to feel less concerned if he is antagonised by a fellow teenager than by an elder. This is because the older you get the more potent your words or dispositions are”. In Western civilisation these examples would constitute discrimination against the individual, but in traditional Africa, rights and justice are awarded in correlation with status and hierarchy. Bhengu (2006: 129) summarises the essence of ubuntu justice as justice assigned on the basis of communal membership, family, status or achievement. Ubuntu justice is incomprehendable in Western jurisprudence with its notions of human rights and equality. Ubuntu justice is awarded according to its yardstick of equality, based on status. Although Africans profess that ubuntu honours the value of equality and human dignity, equality in a communal sense cannot be equated to the value of equality in a Western sense. Any form of justice meted out in accordance with a person’s status, hierarchical position or achievement will constitute unfair discrimination in Western jurisprudence. Equality in Western jurisprudence guarantees equal rights irrespective of status or gender. Revenge is also looked upon as part of ubuntu justice. Mutwa (1998: 630) maintains that “the Black man is the most ardent of grudge bearers and revenge- lovers … the black man of Africa has not learnt the meaning of the word forgiveness. His mind cannot fathom that there are other races that can fight today and be friends tomorrow”. The reality of retribution is viewed as the collective responsibility and right of the community, as the community reserves 384 itself a right to avenge offences against any member of the clan729 (M’Baye, 1974: 146). Truth is a cherished value in ubuntu justice. Mutwa (1998: 627) narrates how Africans “can lie with the greatest ease to any missionary, chief, magistrate or judge” without blinking an eye, but never to a ‘witchdoctor’. “The witchdoctor will merely ask the man to say: Angikwenzanga loku, ngingalala noma which means: ‘I have not done it and I am prepared to sleep with my mother to prove it”. According to Mutwa, a person who has the courage to say this to a “witchdoctor” is immediately found not guilty. If he lies, “the enas of his ancestors will descend upon, not only his person, but also his ena, and destroy both”. In ubuntu reality justice must be done, not only when laws are breached but also when taboos are broken. Taboos “strengthen the keeping of religious order” and cover aspects of African life, viz. words, foods, dress, relations among people, marriage, burial, work etc. (Mbiti, 1991: 41). Mbiti emphasises that the breaking of a taboo entails punishment in the form of social ostracism, misfortune or death. Justice and punishment is left to the community and the “invisible world” or ancestors. Nyirongo (1997: 71) maintains that the violation of morals and the taboos730 of the tribe will be punished by sickness, death, poor harvest or poverty. Breaking taboos disturbs the cosmic harmony of the community and the peace of the spirits. Tribes can have several such taboos. Nyirongo (1997: 62; 29) cites the following examples of taboos: • It is taboo for a woman to climb upon the roof of a hut as this would be interpretated as an expression of her desire to kill her husband. • It is a taboo for a person to ride on the back of an ox or cow after he has been circumcised. 729 According to Mutwa (1998: 632), “Bantu executiosn n iot merely punishment; it is a sacrifice to apspee a the ancestral spirits of the family, who cry ourt rfeovenge”. 730 According to Nyirongo (1997: 62), the following toaobs make a person ritually anclean: “it is taboro fo an infant to cut its upper teeth first; it is tab iof oa beard grows on a woman’s chin; it is tabo ao ibfull-calf jumps on the back of a person; and it is taboo mifa an grows breasts. Such events make a personlly r itua unclean and a ceremony must be performed to pr ecveertnatin disasters to befall him and the family ”. 385 • It is taboo to touch a widow’s objects (e.g. utensils) unless she is cleansed; should you touch them before she is cleansed, you will become pale. • It is taboo for a man to sleep on or step over the bedspread of his child; it is feared that he will beget no other children or his daughter or son will die. • It is taboo for a man to kill a python – even in self defence; if he did so, he will suffer from impotence. • It is taboo for an unmarried woman to drink milk; if she did so, her father would not be able to marry her off, but she will elope with a boy; • A pregnant or menstruating woman may not cross fire or put salt in the relish to avoid bringing a misfortune to the family. • One may not point a finger at the graveyard or one of your relatives will die or fall sick. The offender’s punishment or calamities will perpetuate until he appeases the community and ancestors by either making a sacrifice or an offering. “Depending on the offence, proof of acceptance [of the sacrifice or offering] may include recovery from sickness, a message in a dream or a diviner’s reassurance” (Nyirongo, 1997: 64). An interesting characteristic of ubuntu justice is the fact that traditional African communities have no need for a police force. As these communities operate on the principle of consensus “there is no crooked-looking onlooker with a gun, creating an atmosphere of unrest” (Somé, 1997: 50). Somé describes how village houses have no doors that can be locked, because the open door symbolises the open mind and heart of the community. He sees “the presence of a law enforcement system as an indication of something not working”. The police force in the traditional African community is the spirits who oversee everybody and everything. “To do wrong is to insult the spirit realm. Whoever does this is punished by the spirits”. Somé (1997: 53) accentuates the dire need for the 386 community to invoke spirits, as spirit intervention creates safety for the community. Somé (1997: 10) posits that all homes in the village are protected by spiritual ancestors. It is easy to comprehend what Somé (1997: 14) means when he says that “[f]or an African who comes to America, there are no words to describe the shock he encounters”. Western reality has become synonymous with burglar bars, electric fences, police, retributive justice and imprisonment in its effort to combat criminals. In ubuntu reality ancestors protect it indigenous communities. It is evident that Western justice juxtaposes ubuntu justice. Justice in Western jurisprudence is equated with rationality, the doctrine of precedent, fundamental human rights, retribution and punishment. Western justice is an alien concept to indigenous African people who mete out restorative justice in accordance with African spirituality and strive towards cosmic peace with the ancestors and spirits. As Mutwa (1996: 632) says: “The Bantu consider it utterly ridiculous for a judge to punish a person who had done them no wrong”. Ubuntu is not only the basis of traditional African justice, but also the basis of African law (Ramose, 2002{b}: 81). Ubuntu as law will be discussed next. 4.11 UBUNTU AS LAW Ubuntu is a holistic worldview which does not compartmentalise concepts. Like African justice, African law is inseparable from the African spiritual universe. As “this worldview is essentially spiritual” (Turaki, 1997: 45) it formulates “concepts of good and evil, morality, ethics, and justice. Its moral duties, customs, superstitions, social laws, regulations and taboos define the general order of existence” in traditional African societies. As ubuntu justice is inextricably intertwined with African Religion, so too is African law. The following will be discussed in this section: 387 • Ubuntu as Africa’s Constitution. • Ubuntu, status and hierarchy. • Ubuntu and the Other. • Law and community. • Ubuntu and the Constitution, and • Moral values and the Constitution. Mutwa (1998: 625) maintains that although all races are supposed to be equal, their laws differ fundamentally from each other. He states: “All races may be equal in ‘race, colour and creed’ But they differ fundamentally in the law that governs their lives. The white man’s creed is based on his ‘Ten Commandments’ The Black man has more than a hundred such commandments Called the High Laws of the Bantu”.731 4.11.1 Ubuntu as Africa’s Constitution As Law, ubuntu regulates traditional African societies by way of customs, laws732 taboos and traditions that must be observed. Justice can only be done if ubuntu 731 Mutwa (1998: 621-635) shares the following “lawf st hoe Bantu”: “The killing of one woman is so gr eat a crime that it needs a thousand men to die inle b oaft tvengeance … The separation of a man fromw hifeis by an external influence is listed as one of there Te hHigh Crimes and calls for a war of vengeancde an punishment … if you touch a man’s wife, mother,t esri,s or daughter, call them names, or refer innsgullyti to their womanhood, he is bound by law to kill y oIfu h. e fails he will make his children’s childreank te oaths to kill your children’s children … There aornel y three grounds for divorce: frigidity (a reful stoa carry on the ancestral name); adultery (excretnin tgh ei spirit hut); and sexual perversity (the masdsn teo let outsider bulls graze in the green pastures of nocuer sators) … if one man of another race killed a mb erm of your race, tribe or family, do not rest until yoour, a descendant of yours, have killed a memberis o rfa hce, tribe or family … The African motto is ‘an eye faonr eye’ and the Zulus have a saying; ‘once you pmoek e in the eye, I must not rest until I have gouged oonuet of yours’ … a wizard shall die that particu klainrd of death set aside for wizards … adulterers, pervaenrdts r apists were given the ant death … In the olaf ntdh e Xhosa all witches were thrown from a high cliff a nind Central Africa all adulteresses were fed to the crocodiles. Adulterers were castrated. In Lesotnhdo also in Zululand, witches were imprisoned ini rt he own huts and burnt to death. Witchdoctors who b rtohkee law were killed … A thief caught stealing o xen was given an appropriate death [killed] … when an mcoammits rape he is arrested and executed; a man must keep away [sexually] from his wife for at lte a syear whilst she is breast-feeding” etc. Theaswes lare according to Mutwa, currently not “in full forcen” iSouth Africa. 732 According to Ngubane (cited in Bhengu, 2006: 2“t4h)e, person was created according to the Law; he was conceived according to the Law; he was bordn ,a fned clothed according to the Law; all he did ;h aisll 388 laws are based upon ubuntu values. African law follows the oral tradition, but the lack of writing does not imply that Africans lack logic. Both Western and African law are commands, but whereas Western law gives negative commands to its subordinates by commanding: ‘thou shalt not’, African law gives positive commands: ‘thou shalt’ (Ramose, 2002{b}: 93). In contrast with the Western concept of law which protects rights and liberties of the individual, African law protects rights of the group, not the individual. Ubuntu law differs from Western law as ubuntu philosophy of law, in contrast with Western jurisprudence, consists of a body of rules which regulate Africa’s holistic flow of life. De Tejada, (1979), M’Baye (1974: 139) and Ramose (2002{b}: 81) emphasise that traditional African systems of law are “unquestionably similar to one another”. Ngubane (1979), Ramose (2002{b}) and Bhengu (2006) confirm that ubuntu regulates traditional African societies. According to them, ubuntu is not only perceived as the Constitution of indigenous African communities but also functions as such. According to Ngubane (1979: 78), the function of ubuntu, as Africa’s Constitution, is to “create and regulate the social order in which a person can realise the promise of becoming human”. This Constitution structures society by means of customs, laws and traditions (Bhengu, 2006: 33). Ramose (2002{b}: 97) maintains ubuntu law is well-known in Africa and functions as constitutional law to African societies; it commands obedience and protects the community. Mutwa (1994: 625-635) cites some of the African Constitution’s “High Laws of the Bantu, common among all Bantu races in Southern, Central and East Africa”. The “High Law of Life” (Mutwa, 1994: 625) states: Man, know your life is not your own. You live merely to link your ancestors with your descendants. Your duty is to beget children even while you keep the Spirits of thinking and behaviour; all his hopes, victorieesa, rfs and defeats translated the Law into action c. oHueld not violate the Law because he incarnated it. Nnogt hciould oppose the Law because everything in the cosmic order conformed to the Law. Conflict itswelaf s a translation into action of the Law. The pne rso grew up and thrived in terms of the Law; he mat,u raegded and died according to it; he evolved peraplleyt u into eternity according to Law”. 389 your Ancestors alive through regular sacrifices. When your ancestors command you to die, do so with no regrets. As the oral tradition of law is common to indigenous Africans, ubuntu law is unwritten, flexible and passed on by word of mouth from generation to generation. According to Tempels (1959: 123), Kamala (1998: 89), Bhengu (2006: 13) and others, ancient African justice was founded on natural law733 principles. “These laws of nature are regarded as being controlled by God directly, or through his servants” (Mbiti, 1991: 41). Contrary to Western law, African law is not merely legal rules enforced by the state. African law is, according to Koyana (1980), in the first place concerned about “the philosophical atmosphere prevailing among the indigenous people of Africa”734 and only secondly, concerned about legal rules applicable to a particular African group in a specific time. M’Baye (1974: 141) posits ubuntu or African law is a “combination of rules of behaviour which are contained in the flow of life” which aims at “construction of communal life and resort to protection by supernatural forces as the basis of African law … equilibrium, justice, harmony and peace are the implicit aims of African law”. These moral rules are handed down from generation to generation “under the supervision of the initiated” (M’Baye, 1974; 149) or elders. African law is, therefore, anchored in African religion. The foundation and authority of traditional African law is based upon the fact that “ubuntu philosophy of law735 is the continuation of religion – but not theology – by political means … another way of saying that the political is always the arena of ongoing dialogue with the metaphysical” (Ramose, 2002{b}: 97; 2002{c}: 643). Because ubuntu metaphysics underlies the philosophy of law, African law is 733 Natural law implies law has a moral dimension. Tchearacteristic feature of natural law is that ar aml o code exists irrespective of human interaction osr itpivoe law. Natural law contrasts positive law, law separated from morality and laid down in staturtuelse,s and court decisions. 734 Law in Africa is aimed at the preservation of tghreo up and maintaining peace in the group (M’Baye, 1974: 141). 735 Rhoederer et al. (2004: 442) argues that attemtop itnsc orporateu buntu into formal jurisprudence have been relatively unsuccessful and met with relasticvep ticism from courts and commentators who ten d to ignore ubuntu as a philosophical doctrine. They argubeu ntu’s greatest contribution towards South African jurisprudence lies in the theoretical vasl uite embraces. 390 inextricably linked to African Religion (Ramose (2002{b}: 92). This notion of ubuntu law as Africa’s religious law, is confirmed by Oruka (2002{b}: 59), ethnophilosophers and M’Baye (1974: 141; 149).736 Whether or not, according to Ramose, the law will be able to facilitate harmony or peace between individuals or the group depends on whether the living dead give their approval of the law in question. The elders and the living dead, abaphansi or ancestors737 of the tribe are respectively the creators and custodians of African laws and customs.738 According to M’Baye (1974: 141), Khapoya (1994: 49), Turaki (1997: 66) and Mutwa739 (1998: 78) the living dead or ancestors are the legislators who lay down the laws of the community. Khapoya (1994: 49) confirms that norms and values are handed down by the ancestors. Ramose (2002{b}: 96-97), however, are of the opinion that the living are the legislators who lay down norms and rules. According to him, all norms and rules have to be authorised by the ancestors. As all laws have to be communicated to the ancestors for their approval, the ancestors are perceived as “the basis for the authority of law in ubuntu philosophy” (Ramose, 2002{b}: 97). Rules can therefore only come into force once the living dead have authorised it. “Because the living dead must always be honoured and obeyed, law justified in their name also deserves respect and obedience” (Ramose, 2002{b}: 97). Although an African king has the power to make rules with the consent of his tribal council, such rules have to be communicated and authorised by the living dead before they can come into force as law. Breaking ubuntu laws “is an offence against the departed members of the family and against god and the spirits, even if it is the people themselves who 736 See 4.11.6. 737 M’Baye (1974) describes ancestors as those “coarllpyo dread but still living” to keep watch and keep things the way they are. 738 According to M’Baye (1974: 141-142), African “Go, dGsenii [spirits] and Ancestors’ act as African legislatures; they lay down the laws and guide mtoa nsu rvival. He describes genii as spirits supe troio r men. “They have rights which must be scrupuloueslsyp rected … Genii intervene continually in dailye ,l if and wisdom dictates a sacrifice to them either rbee for after every event in life of however little importance”. 739 Mutwa maintains the law comes from the forefat hoerr asncestors. 391 may suffer from such a breach and who may take action to punish the offender” (Mbiti, 1991: 41). Apart from laws, there are also many taboos which serve the purpose of keeping moral and religious order. 4.11.2 Ubuntu, Status and Hierarcy African law is applicable to the traditional community and not the individual as the individual plays a subordinate role in community. According to M’baye (1974: 141), “everyone in the community has an assigned place and must do what he must do without any demands; everyone must obey the elders according to strict rules”. Despite claims of equality or egalitarianism, traditional Africa is undoubtedly hierarchical. Any challenge to this hierarchy disturbs the balance and peace in the community. Anyone moving out of this hierarchy is in severe danger. The concept of uMona is used to control individuals in the hierarchy (Boon, 1996: 107-108). Boon states that if an individual suddenly acquires material wealth, it is deemed to be a result of magic and dealt with accordingly. The concept of egalitarianism, or equality in communitarian societies in Africa, differs profoundly from Western notions of equality.740 Whereas Western humanism guarantees the individual the right to equality, communitarianism and group rights entrench hierarchy and status. Notwithstanding ubuntu’s preoccupation with hierarchy and status, Africans constantly emphasise the importance of equality and human dignity in the community. The words equality and human dignity in African reality do not equate to the Western meaning of 740 Muendane (2006: 91) describuebsu ntu equality as follows: “[E]veryone in the group comiepsl with the dictates and standards set by the particular g roeuvepr;yone in the group is simply expected to dot. tha When an individual belonging to the group deviaftreosm the cultural standard or norm, everyone else becomes disturbed and that can result in isola toiosntr,acism, condemnation, criticism or censureh oef t deviating individual. At any rate, that individuwalil l forfeit something of benefit, as members oef tghroup with whom the particular cultural behaviour is acsiasoted, withdraw different forms of cooperation and other benefits from him or her. This response teo dtheviating person by the group is normal withiln al groups as it is intended to protect group cohe sGiorno.up cultural practices have the function of hineglp members of the group to easily identify one ano btheecrause individuals in any group use the propse ortfi e the custom or culture arse ferencef or action within the group to ensure cooperationnd aharmony. Without the cooperation of others, one can never accom apnlisyhthing in life. The groups we belong to are ftihrset port of call in our endeavour to seek cooperatioo na cthieve our goals. This is as things should nbde , isa applicable universally” throughout Africa. 392 these words.741 Broodryk (1997{a}: 61) posits that where ubuntu is, there is brotherhood and caring and all people are treated as equals. This notion of equality is propounded also in the spirit world, where the spirits of animals are equated to those of people.742 The importance of authority and seniority in traditional African societies become evident when one studies traditional African hierarchies. The hierarchies of African societies, from top to bottom, are as follows: ancestors, the chief, elders, father, elder brother, younger brother … women, children, slaves and the mentally ill. The legal status of the person depends upon the person’s hierarchical position within the community.743 M’Baye (1974: 143-145), Turaki (1997: 57), Broodryk (1997{a}: 97) and Bhengu (2006: 129) affirm that rights are assigned on the basis of communal membership, family and status or achievement. The following example of ubuntu equality is given by Broodryk: “A witchdoctor, sangoma, chief and elderly people are treated on different levels of status and in some cases it appears as if the families of these figures are also respected and treated differently. The formation of classes therefore, is a known phenomenon in Africa and African societies”. Holland (2001: 195) maintains that in traditional Africa “no individual or group [is] permitted to acquire undue control over the lives of others”.744 741 See 4.13. 742 According to Mutwa (1998: 565), man does not psos sae special soul, exclusive to himself. “All so uls are the same, and Man is but one of the many fo ormr rse,-incarnations that a soul must pass throTughhe. soul of the impala that you have seen disappeainritnog a thick bush while walking in the forest maayv he been a tenant in the body of someone you knew.c Trohceo dile that nearly ate you while you were crnogs si the river may have been carrying the soul of on yeo oufr ancestors, or one of the enemies of your lfya”.m i 743 M’Baye (1974: 144) states that women, strangehrisld, rcen, sick men and slaves have very low legal status, if any, in traditional African societies. 744 Holland (2001: 195) cites the following Igbo prorbv eto demonstrate the communitarian concept of equality: ‘a leader only wins support for as lonsg h ae does not govern too much.’ The Igbo granta dae lre minimal power which can be rescinded, and judge ohnim his egalitarian ability. “As leadership conisnttrsa, these community ideals form an ideological bartroie sr trong central authority”. 393 African societies do not consist only of the material or visible world, therefore, the hierarchies in these societies include the spiritual dimension, animals745, plants and material things. According to M’Baye (1974: 143-145), the hierarchy and status746 within African communities are categorized as follows: • At the top of the societal hierarchy is the spirit world. The community is represented and guided by gods, spirits and ancestors. • The king or chief holds all religious, political, judicial and military powers in the community. • Elders act as sages and judges of the community. • As traditional African societies are patriarchal, adult males are held in high esteem. As they are of much higher status than women, gender equality in these societies is a myth. • The position of women is considered inferior to men.747 As consent is usually not necessary for the validity of her marriage, and as polygamy is “the rule in Africa”, the wife has no say. 745 Mutwa (2003: 15) describes how he and his granhdefra ctame to a fig tree, planted by his grandfa ther, which was bearing plenty of fruit. “In old Africain, the land of the ancient Zulus, in the time whI ewna s young, we never called trees ‘trees’ but rathero w‘ginr g people’. This is a person. Mutwa saw his grandfather touching the trunk of the tree, taksingu ff out of his snuff horn and pouring it at thoeo tf of the tree. Grandfather: “wI as worshipping the tree, wI as talking to the tree. I was sharing my snuff wihthe t tree, and I often share any good news that I ha ptop ehnave with the tree”. 746 What Western culture explains as a lack of iniviteia tby Africans is in fact a result of the latte rv’isew that a person should not aspire to more statuso wore rp than that accorded to him by the specific tpioons iof seniority he occupies, and accordingly ambitiotnr aisd itionally not viewed as a virtue (Broodryk, 179{a9}: 42). 747 “Traditionally, the husband is the head of the sheohuold and the wife realises that she is not etqou tahle husband. She addresses the husband as ‘fathebr’y a dnodi ng this the children are given an exampleh oowf to behave. A woman does not cross words with a amnadn s hould she do this it reflects a bad imagee or f– h a poor development sense of Ubuntu” (Broodryk, 1{a9}9: 724). Idowu (1975: 77) says the following: “Where she behaves herself according to prescnri patniod accepts an inferior position, benevolenceic, hw h becomes her ‘poverty’, is assured, and for this sshhoews herself deeply and humbly grateful. If fonry a reason she takes it into her head to be self-aivses earnt d claims footing of equality, then she bri nugpson herself a frown; she is called names; she is puetresde copenly or by indirect means; she is helpedb et o divided against herself … a victim who somehow eisv edloping unexpected power and resilience which might be a threat to the erstwhile strong”. Womne nA firica are perceived inferior to men. African fienmist, El Sawaadi (cited in Syewart, 2005: 205), writeWs:o “men are the rock bottom of society, of the fam ily unit, of the home, the connective tissue of soc, iethtye mainstay of economic life, the producers and reproducers. They shoulder 90% of all work but oownnly 10% of what is owned”. 394 • Strangers are rarely assimilated in the group and are therefore situated at the outer edge of the village. • Children748 under age are completely dependent on the chief of the group as he holds every right over them. The age of majority is not fixed. Should a girl marry, she finds herself under the authority of a new patriarch, the head of the husband’s family. Notwithstanding a man’s circumcision and initiation he only reaches true majority once he either becomes the head of a family by succession, or sets up his own “family house”. • Slaves and their descendents are not subjects of law. • Mentally ill persons have no legal status. Human beings are not created equal in traditional African reality. Turaki (1997: 57) confirms the existence of the following “typical hierarchy of human beings” as “at the top, the ancestors, the aged, heads and leaders, adults, men, women, children and the unborn”. Turaki adds that “[w]e do not only have a hierarchy of human beings but also that of people groups. Human beings at times assume themselves or their ethnic or racial or tribal group to be higher or superior to others”. According to Turaki (1997: 45), ethnicity, racism and tribalism are deeply rooted in the community’s values, morality and ethics. Traditional African communities are hierarchical societies; therefore status and hierarchy are justifiable under African law. The legal status of each person depends upon his position within the hierarchy. According to Turaki (1997: 55), “[e]very individual or group have their own destiny decreed for them by the Creator … Destiny is meant to be in gratitude. It is one’s lot. Thus one’s place in human society has been determined and fixed”. As all individuals are subordinate to the group or community, the law of kinship defines that “[t]he individual self does not exist in itself and has no social life of itself nor determines its course of life on its own. The individual takes his/her life and entire existence from the 748 Menkiti (cited in Gyekye, 2002: 302) argues thtahte “ absence of ritualised grief over the death of a child in African societies contrasts with the elraabtoe burial ceremony and ritualised grief of deceeda oslder persons”. This also illustrates the importancec tohme munity attaches to personhood and status. 395 kinship foundations he/she belongs to in the community of kinships and of common ancestry. He/she is owned by his/her bloodgroup” (Turaki, 1997: 61). In contrast to Western reality, African children are perceived as “its” without souls. Because children have little or no life force they become nothing when they die (Nyirongo, 1997: 103). According to Nyirongo, “[a] child’s worth is judged by his potential to live an adult life rather than by the mere fact that he too is a full person. In other words, because a man’s soul is worth much more when he qualifies as an ancestor, it follows that unless he grows up he is worth less than an adult”. Nyirongo states that a person’s worth depends on where he fits in the hierarchy. According to him, respect for adults is very important because seniority determines a person’s worth and authority. Apart from age, seniority in birth also determines the African’s place in the hierarchy. It is a fact that circumcised males and females are more senior and privileged than their uninitiated peers. Therefore, the younger brother, for example, has to carry the weapons of an elder brother and cannot marry before his older brother does. Nyirongo (1997: 104) explains that “to do so is not only a sign of disrespect, but a sin against the community and ancestors and I may require to offer a sacrifice to appease him”. According to Nyirongo, children of the most senior wife of a polygamous marriage are regarded as more senior than those of junior wives. Not only are husbands superior to their wives, but “daughters are worth less than sons”. African men who belong to secret societies are perceived to be closest to the ancestors and can therefore punish or reward ordinary community members (Nyirongo, 1997: 105). Nyirongo’s (1997: 151) conclusion on the hierarchical nature of ubuntu is that it signifies oppression. Nyirongo posits that “[o]pression is not always overt, physical violence749 … 749 According to Liking (cited in Stewart, 2005: 196“A),f rica has a repressed memory. Why is there so much silence in Africa? If African women startedm reembering all of the violence that they experien, ced well, it would be an explosion. Is this really ao gdo thing? I believe that they succeed in killinge tehvent by silence, and perhaps in our case it is for thee br”e. tt 396 oppression is anything that limits the freedom or development of the individual or community”. 4.11.3 Ubuntu and the Other Although African systems of law are “unquestionably similar”, African law does not guarantee equality, nor does it imply tolerance towards strangers, because African law, like African Religion, does not apply to strangers or outsiders. Ubuntu’s laws pertain only to the community or group. M’Baye (1974: 142) assures us that African law applies only in micro-societies, viz. families, lineages, clans, tribes and ethnic groups. According to M’Baye, African law functions “in a ‘closed circuit’ [closed society], often with hardly any contact with other groups. It is also a group system because it is essentially applicable to the group”. Turaki (1997: 61) maintains that of all ubuntu’s laws, the law of kinship is the most powerful and pervasive. According to Turaki, the law of kinship creates two types of morality and ethics: firstly, morality and ethics for the community, and secondly, morality and ethics for strangers. Turaki (1997: 61) describes the “law of kinship” ‘which regulates these closed societies as follows: The law of kinship defines in unequivocal terms those who are ‘insiders’ and ‘outsiders’. Outsiders and strangers do not belong, for this reason they are not entitled to (1) equal treatment; (2) ownership; (3) affinity, loyalty and obligation; (4) community rights and protection and (5) they are not people, they are outside of the commonwealth, they are strangers. Turaki (1997: 61) states that “[t]hose who belong are to be treated equally and preferentially as against outsiders and strangers”. It must be noted that in ubuntu reality all people are not equal before the law. Regarding the outside world, “[a]nything outside the kinship system is labelled ‘outside world’ … In this sort of place, kinship or tribal rules do not apply. In fact there is no set of rules to govern 397 its operation or control”. In such a place ‘might is right’; ‘the end justifies the means’; ‘it is a war zone’” (Turaki, 1997: 63). Ubuntu’s attitude towards outsiders or strangers is confirmed by Nyirongo (1997: 139) who posits that outsiders are not looked upon as equals or brothers. According to Nyirongo, African law permits discrimination and oppression of strangers or outsiders. Ubuntu, therefore, manifests as a creator of Otherness in the following ways: firstly, African Religion is inaccessible to outsiders as confirmed by Mbiti (1967: 5), Turaki (1997: 63) and Mbigi, (1997: 56); secondly, ubuntu’s laws do not apply to outsiders (M’Baye, 1974: 142; Turaki, 1997: 61; 139); thirdly, ubuntu justice does not apply to outsiders (Naude, 2006: 102); and fourthly, sacred knowledge is never revealed to outsiders (Mutwa, 1998: 555- 556). Current debates on who is and who isn’t an African, African feminist750 or African philosopher confirm that ubuntu creates an Otherness. The attitudes of traditional African societies towards one another in the group and towards outsiders are closely related to value systems of closed societies751. Not only do traditional African values “enhance ethnic or group harmony” but “traditional African values [also] promote ethnic or group superiority over others, parochialism, dominance, subordination, prejudice and discrimination” (Turaki, 1991{b}: 173). M’Baye (1974), Mutwa (1998), Turaki (1997), Nyirongo (1997), Teffo and Abraham (2002: 138-139) and others confirm that ubuntu does not comply with characteristics of a universal philosophy. Ubuntu is characteristic of a closed society. In closed societies all people who are not community members are perceived as outsiders or strangers. Oduyoye (2001: 95) defines the stranger or Other, in ubuntu reality, as follows: “A stranger is the one who comes in from outside; another continent, another race, another civilisation, another worldview. 750 See 4.12. 751 Biakolo (2002: 17) states that the model of triaodniat l African thought “is a closed system because unlike the open scientific culture neither undenrdstsa nor tolerates alternative thought … In the et,v en traditional African thought turns out to be lack iinng logic”. Biakolo maintains that all traditionaAlf rican thought [is] religious. 398 Strangers are people with other values, other perspectives, other objectives, other principles of life. Openness vis-à-vis ‘the other’, however you define the other, is offering of hospitality”. Whilst ubuntu reality perceives itself as an Other in Western reality, ubuntu is also a creator of Otherness. There is a stark contrast between how Western and African law perceive outsiders. Whereas outsiders are not protected under African law, Western law (ideally) protects the fundamental human rights of all individuals. In Western law human rights apply also to aliens. A similarity between Western and ubuntu philosophy seems to be its paranoia with the Other. Like Western philosophy, ubuntu philosophy declares its hospitality and friendliness, but when it comes to the core or essence of this philosophy, the Other have no right of way. 4.11.4 Law and Community The community has the responsibility to see that tribal laws, taboos, values and customs are adhered to. M’Baye (1974: 141) confirms that if a member of the community disobeys the law and commits a serious crime such a member can be punished or even expelled from the community. “If it happens that the man inhabited by a [incarnated] soul becomes evil – he becomes a thief, a murderer, and even worse, the laws of our fathers say we must kill such a man, kill him so that the soul also may be destroyed”752 (Mutwa, 1998: 567). Any community members who “observe non-compliance with the law” must either stop the crime, or report it to the community. This collective responsibility to abide by the law implies that anyone who does not prevent or report a crime incurs responsibility for another who breaks the law. The most common offences in the tribe are the breaking of taboos and ritual impurities (Nyirongo, 1997: 61). Ritual impurities or taboos include, for example, a case where a baby cuts his front teeth first, a 752 Fire and murder destroy t heena. Mutwa (1998: 629; 632) discloses that “the soual omf urdered man does not re-incarnate and proceed with followinagg esst of development, but roams the land of Forever- Night, weeping for revenge. It is believed tehnea of a murdered man dies, and this is really fatasl .t hAe strength of a tribe lies in the strength ofe itnsa s … But destroying even criminals by fire is grea ftrloywned upon by most tribes, because it is believed tharnt ibnug a person to death not only destroys the b obduty , also thee na and the soul – fire itself being a ‘spirit’ and caabple of dissolving other kinds of spirits”. 399 women grows a beard, etc. According to Nyirongo, the breaking of taboos disturbs the peace between the community and ancestors. The punishment for either breaking laws or ritual impurities includes growing thin, sickness, childlessness, an accident, sudden death or other misfortunes (Nyirongo, 1997: 61). Unless the guilty person makes an offering or sacrifice to the ancestors the misfortunes will continue. Because philosophy of law and therefore law itself is part of philosophy, the concept of law in traditional African societies differs from the concept of law in Western societies. Whereas Western legal systems recognise and protect the rights and liberties of individuals, African law recognises neither individual rights nor liberties. African law recognises primarily group rights of the community. The idea of individual rights is foreign to ubuntu.753 In M’baye’s (1974: 138) words: “the individual plays a relatively subordinate role. Very often the members of the groups, as individuals, are only users of collective rights belonging to the family, lineage, clan, tribe or ethnic group as a whole”. Whether African law would only consider a person’s rights is solely dependent upon his position within the group (M”Baye, 1974: 143). Individual rights in the African community can only be justified in terms of the rights of the community. The idea of “law as rights and liberties of each individual, as opposed to the group, and insofar as in Africa the individual, absorbed by the archetype of the totem, the common ancestor or the protecting genie, is indistinguishable from the group, the natural conclusion is that the rules governing social behaviour in traditional African societies are the very negation of law” (M’Baye, 1974: 138). Contrary to Western rights and liberties, African law gives priority to duties. “In the African understanding priority is given to duties which individuals owe to collectivity, and their rights, whatever these may be, are seen as secondary to the exercise of their duties. In the West on the other hand, we find a construal of things in which certain specific rights of individuals are seen as antecedent to the organisation of society, with the 753 M’Baye (1974: 138-139) states that Africans ind titriaonal societies are not aware of their indivild ua rights. “[T]hey are unaware of law as a weapon epdla cin the individual’s hand to defend himself”. According to M’Baye, traditional people fail to uenrdstand European justice. 400 function of government viewed, consequently, as being the protection and defence of these individual rights” (Menkiti, 1979: 167). In contrast with South Africa’s Western legal system, ubuntu law is community- oriented, based on traditions and customs, and resolves disputes through mediation. The ultimate goal of ubuntu justice is to restore win-win situations of peace between individuals in the community. According to Ramose (2002{b}: 95), a debt or feud in the African community is never extinguished until the equilibrium has been restored, even if several generations elapse. “Molato ga o bole is, therefore, an ubuntu legal philosophical principle seeking the restoration of disturbed equilibrium regardless of the time when the disturbamce occurred” (Ramose, 2002{b}: 95). Our Western legal system754 is individualistically oriented and settles disputes with litigation. Western justice results in win-lose situations for litigants and may even result in imprisonment.755 Because rights in Africa belong to the group and not the individual, duties are devolved to the individual to uphold the interests of the community. Chapter Two of the African (Banjul) Charter on Human and People’s Rights, 1986, specifies the African individual’s duties to the family, society and African international community in art 27(1). Articles 28-29 spell out and emphasise the individual’s duty: to respect his fellow beings; to work for the cohesion of the family; to respect parents at all times and maintain them in case of need; to place their physical and intellectual abilities at the service of the community; to preserve social and national solidarity; to pay taxes and to preserve and strengthen positive African cultural values. Because 754 The Western rule ‘ignorance of the law is no exec’ udsoes not find application in African law (M’Ba,y e 1974: 148). According to Ramose (2002{b}: 95), Acafrni s do not view judicial decisions as authoritea.t iv “They must always be able to be called into quens”.t io 755 According to Bhengu (2006: 133), prison is not oao dg place for Africans for “when you have been imprisoned, you are seen as taboo and you neeed ctole abnsed. To us Africans, a prison … is rega radse ad taboo, and once you go there, you are regardedo maes osne without Ubuntu, and that is why if someone comes out of prison, we saZyi:g eze ukuze ukhiphe ubumnyam(atr a ditionally cleanse yourself of the dark seriti (shadow). When this has happened, the comitym wunould then re-accept you as one of them, other than that, the community would discard you as atnca osut”. 401 African law mainly regulates relationships between individuals and not between individuals and the state, it functions as family law and law of succession.756 As seen in Chapters Two and Three, traditional African philosophy, or ubuntu, is internationally regarded as a pre-scientific, mystic philosophy. Ubuntu law is summed up by M’Baye (1974: 138) as follows: “the natural conclusion is that the rules governing social behaviour in traditional African societies are the very negation of [Western] law”. For example, whilst virginity testing757 of young girls (and boys) is viewed as essential in traditional African reality, it is viewed as a violation of the individual’s human rights to privacy and dignity in Western jurisprudence. Western law, based on fundamental human rights, equality and human dignity seems to clash with traditional Africa’s philosophy of ubuntu. 4.11.5 Ubuntu and the Constitution South Africa’s post-apartheid Constitution obtained international political legitimacy because it is founded on Western jurisprudence and its accompanying value system and because the Bill of Rights underpins its democracy. The 1996 Constitution functions as South Africa’s supreme law. Because the Constitution includes the Bill of Rights it provides a general norm which influences all sources of South African law. As a source of law, African customary law or indigenous law has to be in line with the South African Constitution. Furthermore, section 39(2) of the Constitution stipulates that, in the interpretation of any legislation and the development of the common law and customary law, the court must promote the spirit, purport and objectives of the Bill of Rights. 756 Land can never be inherited in traditional Afri ccaonmmunities as it is seen as the abode of the ancestors. “The most important agricultural ritcueale bration of all is the marking of the first ftrsu iof the harvest and the New Year. The festival celebratthineg f irst fruits lasts from one to two weeks anfde roinf gs of yams, poultry, meat and drink are made to thcee satnors and divinities. This is a time of ritual, purification from any defilement of the land andm cmounity by evil spirits” (Bhengu, 2006: 12). 757 Virginity testing is widespread in Africa. Mutwa1 9(98: 634) emphasises the importance of virginity testing in Zulu culture. “It was the custom thaet reyv year, in every district, all the girls not yaellto wed to marry and who belong to the ‘Virgin regiment’, w etareken to a panel of the eldest women of the t roibr eto, the wives of the chief, to have their virginity cfiormn ed”. 402 But how does one get ubuntu law in line with the Constitution?758 How flexible are ubuntu’s “immemorial rules born of an uninterruptedly followed practice … if its African legislature is invisible?” (M’Baye, 1974: 140-141). How does one align norms and values derived from the ancestors (Khapoya, 1994: 49) with Western legal norms and universal values derived from international Human Rights mechanisms? More perplexing is the fact that both M’Baye (1974: 139) and Bhengu (2006: 129) maintain that ubuntu law accords no importance to individual rights759, as the concept of human rights is foreign to Africa and its indigenous cultures. Bhengu (2006: 129) posits that “[t]he concept of human rights760 as natural, inherent, inalienable rights held by virtue of the fact that one is born a human being, remains a creation of Western civilisation and is foreign to indigenous law. In indigenous society rights are assigned on the basis of communal membership, family, status or achievement. Ubuntu philosophy comes in here”. Bhengu argues that the Bill of Rights was framed from a distinct Western perspective and that this foreign culture has now been thrust upon indigenous African cultures through the process of colonisation. According to Bhengu, the Bill of Rights has given new impetus to the debate surrounding the compatibility of indigenous law with Western perceptions of human rights. In his argument, 758 According to Bhengu (2006: 138u)b, untu ethics prohibit abortion and passive euthanasi aC. laInrke v Hurst 1992 (4) SA 630 (D), Judge Thirion created a pdrecnet by allowing passive euthanasia. In 1997 the Law Commission recommended that this position sdh obuel confirmed in legislation. Ramose (2002{b}: 80) argues that the right to life is paramount toot hb the traditional African doctor and his patie nt. According to Ramose, in African law, neither thec tdoor nor the relatives have the right to give pesrsmioin to end the patient’s life. Twins and witches howre dvoe not seem to have a right to life. In certaifnri cAan cultures one or both twins will be killed, whilsnt oi ther cultures both the mother and twins willk bilele d because witchcraft is suspected (Mbiti, 1991: 9In5 )c. ultures such as that of Benin, twins are coenrseid sacred. Witches, generally women, are hunted allnedd kbiy the community (Holland, 2001). 759 Bhengu (2006: 130) posits that “if the indigenosupsir it of Ubuntu was to temper the Western concoef pt absolute individual freedom, protection of humagnh trsi in Western society might move away from the formal technical weighing of individual claims anthde objectification of human beings; and Western individuals might no longer experience the radiicsaoll ation they often do, despite the conscientious protection of human rights in their society”. 760 African human rights “do not exist as an integpralr t of human nature. They arise from a person’s destiny of living in a relationship with family, iefrnds, ethno-linguistic groups, and nation. Theey ar incidental, unavoidable, and necessary, but noat tatrnib ute of human being. No rights can be exedrc ise apart from one’s relationship with another” (Zvob cgitoed in Ramose, 2002{b}: 112). 403 Bhengu (2006: 131) draws a clear distinction between “indigenous law for indigenous people and indigenous law of indigenous people.761 Indigenous law as incorporated in legislation and applied by the state courts is valid, irrespective of the support of the indigenous people from whom it supposedly originated”. In spite of the fact that the Constitution is supposed to bring justice to traditional African people in South Africa, neither the Constitution nor “indigenous law for the people” necessarily reflects African jurisprudence. The unpopular questions then are: Does South Africa’s Western Constitution embody law and justice for the majority of South Africans living according to ubuntu principles, and how does one fuse human rights with group rights? In an effort to balance Western and African jurisprudence, Judges Hlope and Mokgoro are looking for a new approach to South African jurisprudence. Hlope (cited in Bhengu, 2006: 129-130) is currently working on a project to Africanise South African law762, and states his approach to law as follows: Everyone has the right to use the language and participate in the cultural life of their choice … In section 38 the Constitution provides that anyone can approach the court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant relief, including a declaration of rights … despite this Constitutional provision, however, very little has been done by the courts in this country to develop African law in line with the Constitutional imperative. Section 39(2) of the Constitution also provides that “[w]hen interpreting any legislation, and when developing the common or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. It became evident in Chapter Two that Western philosophy discriminates against African values in conflict with its own. “The colonisers persecuted indigenous 761 Indigenous law for the people signifies the coeddif iversion of indigenous law as documented by Europeans, whilst indigenous law of the people erseepnrts the oral and true version of the law of the indigenous people of Africa. 762 According to Hlope (cited in Bhengu, 2006: 124-)1, 3t0he judiciary system in South Africa has to be reformed to achieve the objectives and aspiratoiof nthse African renaissance. Currently 90% of pe owphleo appear in the lower courts are black, yet the jiuadryic is 66% white and 34% black. 404 African people for practising their own culture, for instance, they advocated that the African custom of ilibola763 and the practice of polygamy, which had been practised for centuries, should be abolished” (Hlope, cited in Bhengu, 2006: 128). According to Hlope (cited in Bhengu, 2006: 128), “Africans had no choice but to obey the White man, because Europeans did not tolerate any values in conflict with their own. Ubuntu laws and values were and are regarded as backward and “irreconcilable with civilisation”. This superior-inferior relationship is not just based on racial prejudice, as suggested, but on two diverging worldviews. Western and African notions of values, law and justice juxtapose each other. Ramose (2002{b}: 81) argues that the contrasting views of Western and African law originated because the “legal subject is ineliminable from the vocabulary of law”. Ramose maintains that, whilst the legal subject in Western jurisprudence represents an abstract concept, African jurisprudence comprehends the legal subject as a concrete living and lived experience. As in the case of values, “language in law is indispensable to the indelible inscription of the legal subject into the vocabulary of law” (Ramose, 2002{b): 81). Ramose compares the opposing meanings of the term “legal subject” to both Western and African jurisprudence and concludes that “whereas the Western legal subject is obliged to live in or within the law, the African legal subject by contrast, submits to the imperative to live the law” (Ramose, 2002{b}; 93). Western legal subjects living within Western law are guaranteed fundamental human rights. In contrast, African legal subjects living under ubuntu law are not guaranteed fundamental human rights, but group rights. Whilst Western jurisprudence guarantees all individual rights and liberties, Turaki (1997: 68) posits that ubuntu group rights pertain to the group only and that ubuntu jurisprudence does not protect individual rights outside of the group. Because human rights are not paramount in African reality the community tolerates 763 Lobola is the African custom whereby the bridegmro aond his family give a bridesgift to the bride’s family. Traditionally the bridesgift was paid in ttclea, but nowadays money is permitted. The sizeth oef bridesgift is influenced by many factors, suchh aes sttatus of the bride as well as her level of aetdiounc. 405 violation of human rights (Mqeke, 1996: 365), for example the killing of witches, twins, strangers or outsiders. According to Turaki (1997: 68), What is right and wrong can only be committed against a member of the own ethnic group, race or tribe, but not against a stranger or an outsider. An outsider has no rights or protection and anything done to him has no moral or ethical value. It is an insider who has rights, privileges and protection under racial and tribal laws. Thus killing or discriminating against an outsider is not a crime. Bhengu, Hlope, Mokgoro and others lobby for the protection, preservation and nurturing of indigenous or ubuntu law so as to preserve the sacred African heritage, beliefs and values. Whilst the Constitution dictates that indigenous law must be in line with the Constitution, Bhengu (2006: 131) maintains that the time has come for our legal system [Constitution] to be in line with indigenous values: to “embrace Ubuntu values”. “If the humanity, if the quality of life, is to advance further, the natural law basis for human society must change once again – to a social order where instead of proceeding from the presupposition of the sovereignty of the individual, we proceed from one concerning the value of social solidarity” (Bhengu, 2006: 132). 4.11.6 Religious Philosophies and the Constitution The South African Constitution guarantees freedom of religion, belief and opinion. Whilst section 15(1) of the Constitution guarantees everyone the right to freedom of conscience, religion, thought, belief and opinion, section 15(3)(b) states that recognition in terms of paragraph 15(3)(a) must be consistent with this section and the other provisions of the Constitution. African sources confirm that it is impossible to separate ubuntu from African Religion. “[U]muntu cannot attain ubuntu without the intervention of the living dead” (Ramose, 2002{b}: 51). There is no ubuntu without the intervention of the African spirit world, as illustrated by Mbigi in 4.8.1. Without the “three interrelated 406 dimensions” (Ramose, 2002{b}: 50-51) or “inseparable trinity” (Ramose, 2002{b}: 122) Ubuntu’s ancient philosophy of life cannot be sustained. Ubuntu is the common spiritual ideal by which all sub-Sahara Africans live in indigenous societies (Khanyile cited in Broodryk, 2005: 14). Khapoya (1994: 49) and Mbiti (1991: 179) maintain ubuntu’s values and norms are derived from African Religion and handed down by the ancestors. According to M’Baye (1974: 141), Khapoya (1994: 49), Turaki (1997: 66) and Mutwa (1998: 78) the living dead or ancestors are the legislators who lay down the laws in ubuntu reality. The living dead are also closely involved with the administration of ubuntu justice. Ramose (2002{b}: 93) argues that “[j]ustice as equilibrium in ubuntu legal philosophy means the perpetual exchange and sharing of the forces of life”. The ancestors play an essential role in tribal courts, dispute resolution, divorces, mediation and the punishment of offenders.764 Whilst Mbiti (1991), M’baye (1974), Somé (1997), Mutwa (1998), Ramose (2002{b}: 97; 2002{c}: 643) and Mazrui (2002: 14) maintain that African Religion defines the collective African worldview, Mbiti (1991: 29-30) and Mutwa (1998: 560) confirm that African Religion dictates all aspects of traditional African life. Mbiti (1991: 2-3; 5), Wiredu (2002: 20) and Mokiti (1998: 68) maintain ubuntu and African Religion are inseparable. Is ubuntu a moral or religious philosophy? Oruka (2002{b}: 59) defines African morality as “a set of rules for the living and the dead” and Oduyoye (2002: 25) states that “morality binds the living and the dead”. Odoyuye (2001: 250 maintains: “We are dealing with a religious based culture … The traditional way of life is closely bound up with religion and religious beliefs … African Religion provides a holistic view on life”. These sources confirm the words of Kenyatta (1968: 316) when he states that African Religion integrates every aspect of African life in indigenous societies. Ethophilosophers765 too maintain that ubuntu 764 See 4.10. 765 See 3.3.1. 407 represents a religious philosophy. It is evident that “the distinction between the natural and supernatural does not exist … the distinction between the material and the spiritual has no place in African thinking” (Teffo et al., 2002: 167-168). Ubuntu is not a “moral philosophy” as suggested by South African courts but a religious philosophy (M’Baye, 1974: 141; 149). Whilst a moral philosophy regulates the horizontal relationships between “being and being” or human beings only, a religious philosophy regulates the vertical relationship between “beings and Being” or human beings and spiritual Beings. Teffo et al. (2002: 168) states: [T]he deceased [ancestors] assist the living sections of their families, and provide and exercise moral leadership among them. The ancestors thus have to do with group solidarity and tradition and in this way help to guarantee moral consistency. As ubuntu philosophy serves as a blueprint to the extended family or “inseparable trinity”, it regulates the relationships between the living, the living dead and the yet to come in indigenous African societies. Every facet of African reality is regulated by ubuntu’s religious philosophy of life of which “ancestors form the core” (Ramose, 2002{b}: 122). There is no ubuntu without the intervention of the living dead (Ramose, 2002{b}: 51). The fact that ubuntu is not a moral philosophy but a religious philosophy, poses a dilemma to South African courts. In Christian Education South Africa v Minister of Education an appeal was lodged from a Local Division of the High Court. The court had to answer the question whether the South African Schools Act 84 of 1996, wherein corporal punishment in schools was prohibited, violated the rights of parents of children at independent Christian schools. The appellant contended that corporal correction was an integral part of the Christian ethos and that the blanket prohibition of corporal punishment invaded individual, parental and 408 community rights to practise religion freely. 766 The Constitutional Court held that inasmuch as the outlawing of corporal punishment limited the Christian right to religious freedom, the limitation was reasonable and justifiable in an open and democratic society. In Prince v President of the Law Society, Cape of Good Hope and Others767 the Law Society refused to admit Prince, a Rastafarian, as an attorney, because Prince had twice been found guilty of using dagga. The Law Society refused Prince’s application because they did not regard him as a fit and proper person in terms of the Attorney’s Act 53 of 1979. Although the use and possession of dagga is a criminal offence in terms of sec. 4(b) of the Drugs and Trafficking Act 140 of 1992, the use of dagga is central to the Rastafarian religion. The Court’s judgment emphasised that although Prince’s constitutional right to freedom of religion was infringed, the infringement was reasonable and justifiable in terms of sec. 36 of the Constitution. Like ubuntu, Christianity, Rastafarianism, Islam and other religions represent religious philosophies, each characterised by its unique value system. In both these judgments, as in numerous others, the courts contended that although the Constitution guarantees the right to religious freedom, these rights may be limited in terms of sec. 36 of the Constitution, provided the limitation is reasonable and justifiable. Whilst the Bill of Rights limits Christian, Rastafarian and other religions and their accompanying value systems ubuntu gets the right of way whilst being disguised by the “heavy kaross of mystery” (Mutwa, 1998) as a “moral philosophy”. What is, however, evident from under the kaross is that ubuntu is inseparable from African Religion. Whilst the Constitution proclaims all religions equal, it must be noted that ubuntu’s religious philosophy is treated more equal than others. 766 2000 (4) SA 757 (CC). 767 1998 (8) BCLR 976 (C). 409 Before we end up like the old symbol of time and life, depicted in Africa as a mamba or python biting its tail, let’s leave the male voices of Africa, as represented in Chapters Two, Three and Four. There have been many allegations that ubuntu oppresses and marginalises African women. Imbo (1998: 68), to name but one, alleges that African women suffer from ubuntu’s patriarchal and male dominated society.768 It is postmodernity: it is time to hear the voices of the female Other. African feminists are in revolt: there is a rebellion stirring under the kaross. 4.12 THE VOICES OF THE FEMALE OTHER769 Bhengu (2006: 38) stresses that if a nation lives by the principles of ubuntu, there is no discrimination. African feminists, however, oppose this male view of ubuntu and reveal that ubuntu represents an oppressive reality: a philosophy entrenched in inequality and disregard for the dignity of African women. Ubuntu has two sides to its reality: a male view that endeavours to perpetuate ubuntu’s ancient hierarchical, patriarchal values at all costs, and a female truth that aspires to bring ubuntu’s patriarchal values in line with international notions of equality and human dignity. African feminism, like Western feminism, is wrongly stereotyped as a philosophy propounding “the hatred of men, penis envy, the non-acceptance of African traditions, the fundamental rejection of marriage and motherhood, the favouring of lesbian love and the endeavour to invert the relationship of the genders”770 768Feminists generally critique ethnophilosophy ansd aitccompanying traditional belief system of oppressing and marginalising women. 769 This synopsis of African feminism does not do ijcues tto the volumes of texts by African women who cry out against the violation of African women’sm haun rights under the oppressive philosophyu bouf ntu . The purpose of 4.1 i2s merely to sensitise the reader to the truth. 770 Chinweizu (cited in Arndt, 2002: 28), a well kno wmnale African scholar and theorist of decolonisna tio says the following about African feminism: “Femimni sis a movement of bored matriarchs, frustrated tomboys and natural termagants; each of these tyhpaess its reason for being discontented in the matriarchist paradise that is women’s traditionaolr lwd … feminism is a revolt in paradise; and thme ifneist rebels jeopardize the ancient matriarchist priveilse gof women”. 410 (Arndt, 2002 : 27). African feminists are criticised for enhancing Western values, equality and human rights.771 They are perceived as Westernised African women, cultural traitors corrupted by Western values who work against African culture and traditions. In African reality, African feminism is a “postive, movement-based term, with which I am happy to be identified”, says Mama (2001: 59). “It signals refusal of oppression, and a commitment to struggling for women’s liberation from all forms of oppression – internal, external, psychological and emotional, socio-economic, political and philosophical”. African feminism is also known as Womanism (Walker), Africana Womanism (Hudson-Weems), Motherism (Acholonu), Stiwanism (Ogundipe-Leslie) and Negofeminism (Nnaemake).772 Ogunyemi (Arndt, 2002: 39) describes African womanism as “a belief in the freedom and independence of women like [Western] feminism”. Ogunyemi (Arndt, 2002: 39) posits that whilst Western feminism and African womanism share common goals of eradicating patriarchy, womanism “recognize[s] that, along with their consciousness of sexual issues, she must incorporate racial, cultural, national, economic and political considerations into her philosophy”.773 Unlike Western feminism, African feminists774 do not regard African men as the enemy. African feminists 771 In African societies women have many duties buwt rfeights. Whilst African feminists are concerned about women’s rights to equality and self-determtioinna, the administration of justice, discriminat ioand oppression of women in FGM, marriage of girls ayto au ng age, polygyny, lobola, or the bride price and inheritance laws, they distance themselves frombi alensism. In contrast to Western feminism, Kolawole (cited in Arndt, 2002: 52) says: “African lesbiamni sis a non-existent issue because it is a modee lof f s expression that is completely strange to our woierlwdv”. 772 Womanism, see Walker A. 1983I.n Search of Our Mothers’ Gardens: Womanist PrNoseew. York: Harcourt Brace Jovanovich; Kolawale, M.M. 199W7o. manism and African ConsciousneTsrse. nton, NJ: African World Press; Ogunyemi, C’O. 1985/198W6.o manism: The Dymanis of the Contemporary Black Female Novel in EnglishS. igns: (11): 63-80 ; Africana Womanism see Hudsoene-Wms, C. 1993A. fricana Womanism .MI: Bedford Publishers; Motherism see Acholonu,O C. 1995. Motherism: the Afrocentric Alternative to Feminism N. igeria:Afa Publications; Stiwanism see Ogundipees-lLie, M. 1994.R e-Creating Ourselves. African Women and Critical Transformnasti. oNJ: African World Press; Negofeminism see Nnaemeka, O. 1995. Feminism, Rebellious Women aunltdu rCal Boundaries; Rereading Flora Nwapa and Her Compatriots. In Research in African Literature2s6 (2) 80-113 (Arndt 2002: 14-15). See also Reed (2001). 773 See Wilkinson (2002: 343-360) who claims feminsiisstt erhood is a myth. Wilkinson highlights the difference and conflicts between Western feminisnmd aAfrican feminism. See also OyewumiA’sfr ican Women & Feminism: Reflecting on the Politics oft eSrhisood. 774 Radical African feminists single African men oust tahe prime oppressors of women. 411 experience traditional Africa’s entrenched patriarchal philosophy as the oppressor. African women are not only victims of gender inequality and gender based violence against women775 in patriarchal social structures but also of colonialism, neo-colonialism, apartheid and religious fundamentalism. African feminism incorporates all of the above factors in its feminist philosophy. African feminism is “the proclamation that women’s experiences should become an integral part of what goes into the definition of ‘being human’ ” (Oduyoye, 1982: 193). African feminists distinguish themselves from Western feminists776 and African American feminists. With regard to Africa, “feminist scholarship in the main has not provided any serious departures from the ‘Othering’ of Africa which has characterised writings on Africa” (Oyewumi, 2003: 26). Like African philosophers, African feminists exclude all women, except African women, from African feminism. Universal feminism, or sisterhood, is a myth. African feminists are adamant that they are not powerless; they can articulate their needs; they are able to determine the changes needed in their societies and they possess the means to construct these changes (Okome, 2003: 67). Okome states that African feminists do not need Western feminism to “replicate the missionary evangelism exhibited by the seventeenth-, eighteenth-and nineteenth-century colonialists, missionaries, anthropologists, and sundry adventurers when they explored, brutally pacified, Christianised, and colonised Africa”. According to Okome, “it 775 The UN defines violence against women broadlya ansy “act of gender based-violence that resultsr in, o is likely to result in, physical, sexual or psycohgoilcal harm or suffering to women, including thrse aotf such acts, coercion or arbitrary deprivation ofe rltiby, whether occurring in public or private lif eI”t. includes FMG and rape. See www.un.org/womenwatcwh//bdeaijing/platform/violence.htm. UNICEF describes violence against women as “one of thet mpeorsvasive of human rights violations, denying women and girls equality, security, dignity, selof-rwth and their right to enjoy fundamental freedo.m Sse”e Domestic violence against Women and GiIrnlsn.o centi DigestU. NICEF. 2000, 6: 2. 776 Taiwo (2003: 53 )argues: “Western feminists stand in a relation otom wen and men of Africa in exactly the same manner as their male counterparts do.e Tish enro doubt that at the worst of times, feminis man aspect of the imperialism of culture. In exactlye tshame way as Christian missionaries defined our foreparents as pagans before forcing them to be ccohmilderen of God, feminists demonise African me n in the name of saving African women”. 412 was the Westerner who portrayed Africa as a dark continent and Africans as the exotic antithesis of the enlightened Westerner, which remains pervasive in contemporary Western thought”. She posits (2003: 72) it is not the duty of the enlightened European to help these poor Africans to help themselves. African feminism is not only defined in terms of gender, but predominatly in terms of African women’s struggle against cultural inequality and oppression. Kolawole (cited in Arndt, 2002: 51-52) defines African feminism as follows: “Any African woman who has the consciousness to situate the struggle within African cultural realities by working for a total and robust self-retrieval of the African woman is an African feminist777 or Africana womanist”. Steady (cited in Reed, 2001: 170) defines African feminism as follows: “African feminism combines racial, sexual, class and cultural dimensions of oppression to produce a more inclusive brand of feminism through which women are viewed first and foremost as human, rather than sexual beings. It can be defined as that ideology which encompasses freedom from oppression based on the political, economic, social and cultural manifestations of racial, cultural, sexual and class biases”. Steady perceives African feminism as a humanistic feminism which can be perceived as a moral and political statement for human survival and well-being. Steady distinguishes between mainstream feminism and African feminism and asserts that “any woman who rejects the label ‘feminist’ is weak, mindless and attempting to curry favour with men”. African feminism, in contrast with Western feminism, is not reactive and based on sexual identity, but proactive and based on a lived experience of the African worldview. In contrast with Western feminism, African feminism firstly does not emphasise individual female autonomy, but strives for public participation and 777 The womanist, Emecheta (cited in Arndt, 2002: 6s6a)y,s: “I will not be called a feminishte re, because it is European. It is as simple as that, I juste nret sthat. Otherwise, if you look at everything I, dito is what feminists do, too: but it is just that it comes mfr oEurope, or European women and I don’t like being defined by them. But in almost everything, exceeprth paps the question of family, my books have thmee s a ideas as they do. It is just that it comes froms ioduet, and I don’t like people dictating to me”. Womicb, El Saadawi, Adimora-Ezeigbo, Busia, Aidoo, Mutoni, Hd eaand others do not mind being labelled feminists. 413 joint decision-making by women. Secondly, African women do not view the African male as the Other, but as part of the African whole. African feminism is categorised as either reformist, transformative or radical African feminism.778 African feminists from all over Africa speak out against ubuntu’s oppressive779 patriarchal780 tradition. So deep-seated is patriarchy in African societies that women, according to Imbo (1999: 138), are not even allowed to be considered philosophical. African feminists attest to women’s experience of oppression by men in their societies. Women play a central but inferior role in these societies.781 Dolphyne (cited in Oduyoye, 2001: 14) explains that African women in Dakar have had enough of the discriminating practices of this ancient religious philosophy. They initiated the Dakar Declaration which states the following: “[A]spects of our culture which discriminate, restrict and devaluate women’s physical, psychological and political development must be eliminated”.782 The Circle of Concerned African Women Theologians was inaugurated in 1989 to facilitate research and publications by the pan-African network of women who are concerned about the impact of African Religion and culture on African women (Oduyoye, 2001: 10). Patriarchy is the institutionalised social hierarchy in traditional African societies whereby the extended family grants males authority and power over women. Akatsa-Bukati (2005: 6) defines patriarchy as “the organisation of social life and institutional structures in which men have ultimate control over most aspects of 778 Reformatist feminism negotiates with patriarchoacl iesties to eradicate discrimination against women and suggest alternatives to bring about changen. sTforramative feminism puts forward a fundamental critique of patriarchal social structures and slhya rcpriticises discriminatory behaviour by men. Rcaadl i African feminism argues that men discriminate, oepspsr and mistreat women on principle (Arndt, 20032-: 8 85). 779 Dangarembga (cited in Stewart, 2005: 173) “Theti mviicsation, I saw, was universal. It didn’t depeonnd poverty, on lack of education or on tradition. Iitd nd’t depend on any of the things I had thought it depended on. Men took it everywhere with them … aFlemness as opposed and inferior to maleness”. 780 According to Ramodibe (1990: 44), these patrialr cshyastems “existed even before whites came with their Western capitalistic culture”. 781 Okome (2003: 85 p)osits that the codification of native law and coums talso privileged male over female sources of knowledge. 782 The following African feminist writers depict thtey pical lives of African women: Ama Ata Aidoo; Mariama Ba; Awa Thiam; Flora Nwapa; Buchi Emech eNtaw; al El Saadawi and Felicia Eke Juiba. 414 women’s lives and actions”. Ogundipe-leslie (1994: 125-129) posits that it is through marriage that African women become the property of the man’s lineage and loses all rights and human dignity. For married women, gender-based violence such as marital rape783, wife beating784 (also called “correction”), and polygamy or polygyny, is the order of the day (Aidoo, 1991). Hegemonic masculinity utilises violence to control female behaviour to ensure chastity, abstinence or copulation (Makinwa-Adebusoye & Tiemoko, 2007: 13). Makinwa-Adebusoye & Tiemoko (2007: 7) maintain the denial of sexual violence in Africa “is part of patriarchal power and socio-cultural norms reinforced by religious beliefs and injunctions to suppress, in particular, girls and women from the free expression of their sexuality. This is why we still see forms of their repression in such practices as virginity testing for girls, female genital mutilation, widowhood rites and wife inheritance, still practiced in African communities”. Women’s safety from violence is, however, not a privilege, it is a human right. Head (cited in Arndt, 2002: 138) criticises Africa’s social structures sharply and laments that African women have to comply with and obey rules, without thought. She criticises the laws of the ancestors as follows: [W]hen the laws of the ancestors are examined, they appear on the whole to be vast, external disciplines for the good of the society as a whole, with little attention given to individual preferences and needs. The ancestors made so many errors and one of the most bitter-makings was that they relegated to men a superior position in the tribe, while women were regarded, in a congenital sense, as being an inferior form of human life. To this day, women still suffer from all the calamities that befall an inferior form of human life”. 783 Section 5 of the Prevention of Family Violence A1c1t3 of 1993, South Africa, provides that a man can be found guilty of raping his spouse. 784 Chigudu (cited in Stewart, 2005: 197) says aso wfosll: “Wife battering and circumcision are violatsio n of human rights but very few people want to dec tlahreem violations of human rights; if you are bea yteonu are both physically and psychologically abused , ity eist not considered an abuse of human rights!s Te he issues should be looked at as political issuesc unlotut ral issues. If we continue viewing them ast ucruall issues people will say they cannot intervene in c ouultrure and we will continue being oppressed”. 415 The social status of women, as well as their culturally prescribed roles, affects their economic participation. Oduyoye (1989: 443) states that all socio-political and economic participation are governed by religious beliefs embedded in Africa Religion and that the way society structures women’s sexuality has a direct impact on economic injustice785 against women. Odyuyoye advocates for rights to inheritance786 and social power to enable women to enter into economic activities rather than making pots, weaving and producing food for the family. Terry (2007: 116) finds traditional African women in sub-Sahara Africa “amongs the most disadvantaged social groups on earth”. African feminists in general lament the focus of Western feminists on only the religious oppression of African women, polygamy and FGM787 without paying equal attention to their immense suffering under ubuntu’s economic injustices. In the name of ubuntu, young girls are regularly married off to older men. According to Malera (2007: 134), polygamy encourages and reinforces early marriage of girls to older men.788 Akatsa-Bukachi (2005: 11) relates it to the fact that these girls lack formal education and fall into a category whose sexuality is used as a tool of oppression. According to Akatsa-Bukachi, these girls dutifully 785 Whilst the African Charter on Human and People’isg hRts protects civil and political, and socio- economic rights, there is a low rate of ratificant iboy African states of the Covenant of Economic iaSlo c and Cultural Rights. The Charter unfortunately ahlasos weak enforcement mechanisms. 786 The BHE case set a precedent which allows traditional Aafnr icwomen in South Africa to inherit. 787 Oduyoye (2002: 14) refers to the “sensitive isosfu fee male genital mutilation. Vibila Vuadi (Democtirca Republic of the Congo) and Nyambura Njoroge (Ke nhyav)e attested to the practice of female genital operations, or surgery, which by their stance sdh obuel called ‘female genital mutilation’. This lart,t e abbreviated as FGM, would be the general stancthee o wf omen of The Circle, as they include the pcraec ti in their lists of “Violence against Women”. Afric afneminists viz. Okome (2003: 68) object to the n ame FGM because of “its overt assumption that Africaonc iesties which practise these procedures delibleyr ate set out to disfigure their women”. Okome arguest itfh tahe intent of African feminists is to eliminea these practices, they must move away from sensationa lFisemm.ale genital mutilation is a deep-rooted cul tura tradition which currently occurs in 25 African cotruiens. It is practised as a coming-of-age ritualr kminag a girl’s transition to womanhood. “Uncircumcised wonm aere seen as undesirable and a threat to thel socia order. There is social pressure on girls’ mothenrds oather female relatives to get girls circumci sTehde. practice violates women’s sexual rights and cans ec asuerious health complications, threatening trhigehirt to life”. Despite the women’s rights supplementParyo tocol to the African Charter on Human and Pe’so ple Rights which requires signatory governments to ipbriot hFGM, it is widespread. FGM is widely practis ed in Kenya despite Kenya’s Children’s Act of 2001 cwhh iprohibits FGM and the fact that Kenya signed the women’s protocol to the African Charter (Terry, 270: 048-50). 788 Packer (cited in Malera, 2007: 134) states thoart “yfoung girls the physiological risk of contracgt in HIV/AIDS is compounded by the fact that their unddeevreloped bodies are easily damaged by sex ow ing to an immature cervix and low mucus production”. 416 submit to fulfilling their traditional duties of sex, giving birth, washing, cleaning, cooking and obeying their husbands. The girls experience gender-based violence and are regularly “disciplined to get them in line for the submissive role carved out for traditional African women”. Akatsa-Bukachi emphasises that speaking out against these practices789 is perceived as “interference with age-old African practices”. Women who dare speak out against oppressive practices are labelled as radical feminists. The goal of marriage in traditional Africa is to produce children. Children are essential to keep the “three interrelated dimensions” (Ramose, 2002{b}: 50-51) or African cycle of life unbroken. Reed (2002: 172-173) maintains that polygamy790 in Africa is grounded in ubuntu, which is derived from the ancient timeless, divine principle of Maat. The marriage system in traditional Africa assured that its people would live by the principle of Maat. “I am of the mindset that there must be some reasoning behind the practice of this form of marriage by our ancestors”. Sofala (cited in Reed, 2001: 173) believes that in the case of polygamy “the more man becomes an openly shared commodity, the less central he becomes in the woman’s life and the mother/child dynamic becomes the primary one”. African feminists who oppose polygamy include Muthone, Ogunyemi, Tiam, Ransome, Kuti and many, many others. African feminists such as Sofala, Chukukere, Wa Karanja and others view polygamy as a “concept of shared resources”. According to Malera (2007: 134), polygamy threatens women’s reproductive rights because it fuels the spread of STIs, including HIV/AIDS. “For women in these concurrent sexual networks, their vulnerability is further exacerbated due to their inability to negotiate and engage in safer sexual practices”. 789 Boof (cited in Stewart, 2005: 170) posits: “I connutei to find black men, in general, to be hostilde an non-supporting of any black woman who deems to ds tuapn for herself and for other women and to be public with her politics and her life. Of courseh,e yt support these qualities in the white man’s mero, tahnd will stand beside her and support her in everyt hsihneg does … but not me, an African woman”. 790 The word polygamy is generally substituted for twhoerd polygyny in African feminist texts. Reed (2002: 172-173) argues that because polygamy renptrse sa Greek word which has been imposed on African culture without African imput, it should breplaced with the word “composite conjugality”. 417 Most values in traditional Africa are taught by means of narratives. In 3.3.1.4 Unigwe791 argues that a different set of rules applies to women than to men. It seems, however, that a dual system of values also applies to the sexes regarding fidelity. In oral traditions values are taught by storytelling. According to Savory (cited by Broodryk, 2005: 17), the Matabele narrate the following story of the male trumpeter hornbill to teach the value of fidelity to girls. After the hornbill hen has laid her eggs the cock seals the entrance of the nest. “The male hornbill leaves only a small slit open through which he can pass food. The hen is imprisoned inside until the young birds are old enough to be fed from outside by both parents. The reason for the imprisonment of the hen is her previous unfaithfulness to her husband when she flirted with a young, handsome male, leaving the eggs all on their own. The objective of the story is to teach faithfulness to the woman”. Whilst women are taught the value of fidelity, an African expression (BBC: 2002) says: “African males are allowed to graze away from home”. In the 2002 BBC documentary, The Dying Game, Aids activist Lucky Mazibuko states that young African males are encouraged to “sow their royal oats as far as they can”. Whilst faithfulness is regarded as a prerequisite for a good woman792, the same value seems not to apply to the African male793. Odoyuye (2001: 93) maintains Africans are unanimous that hospitality794 is a “fundamental African value”. Hospitality is generally associated with reciprocity, openness and acceptance of others, but hospitality as a “fundamental African value” embodies far more than the Western value of hospitality. According to Oduyoye (2001: 101), ubuntu hospitality regulates female-male relationships, 791 See footnote 306. 792 See footnote 444 for an account of the killing sZ uolfu wives guilty of adultery. 793 Terry (2007: 137; 149) maintains there is a st rcoonngnection between women’s rights abuses and the HIV virus’s rapid spread in the sub-Sahara regiohne rwe young women are the the worst-affected gr o up. “[O]lder men believe they are entitled to have wseitxh dependent girls, with or without their cons,e in tthe same way that they might ‘eat a groundnut fromr thfaerim’. Husbands also believe they are entitle dse txo with their wives at any time, and to have sex oduet smi arriage. For their part, girls are taught abte prtuy to acquiesce to men’s sexual demands.” Terry arguaet st hthis male viewpoint “runs counter to Zambiand [ an South African] legislation and government policoiems women’s rights”. 794 Mbiti (1991: 176) states that there are morals cceor ned with hospitality to relatives, friends and strangers. According to him, it is a moral evi ld teony these categories hospitality. 418 ignores the welfare of women and exploits their sexuality. The fundamental value of hospitality encompasses the following in ubuntu reality (Lala cited in Oduyoye, 2001: 101-102): • Men who went to the same school of initiation can exchange wives.795 • Absent husbands may be replaced by friends appointed by them. • Brothers, especially twins, can share the duties of being husband and wife. • Sterile husbands may appoint surrogates to have children, and • A healer may have sexual relations with his patient. Moyo (cited in Oduyoye, 2001: 202) maintains that African chiefs offer male visitors women of honour to keep them company for the duration of their visit796, or to be taken away as wives. Odyoye (2001: 103) argues that ubuntu hospitality is “incompatable with the dignity of women”. Oduyoye (2001: 104) maintains that African males “highly educated in the Western tradition, revert to African traditional norms when dealing with women”. She accuses “African male models of manhood” and “leaders of public opinion in African societies” of being the guilty ones who erode the human dignity of women. The ubuntu value of hospitality is unique and embodies much more than the universal Western value of ubuntu. As human dignity and equality are the basis of human rights, fundamental human rights in traditional Africa societies will not be respected whilst ubuntu’s philosophy of life permits the violations of women’s human dignity and rights to equality. 795 Lala (cited in Oduyoye, 2001: 103) states thamt iann y villages there is fae mme du villag,e a collective wife of a known group of men. This practice is ecda llpolyandry and not prostitution. “The men are not clients and do not remain anonymous. They are kn aonwdn the relationship is approved. She [Lala] redms in us that both prostitution and celibacy as modeesx opfr essing sexuality were unknown in Africa”. 796 Wamue (cited in Oduyoye, 2001: 102) reports thaamt o“ng the Agikuyu this practice is euphemistically associated with making a bed for a guest … the wno, mweife or daughter can refuse to make the bed and the guest can also decline the honour”. 419 African feminists criticise FGM and virginity testing as outdated and representative of traditional Africa’s patriarchal religious nature. FMG is the partial or total removal of girls’ external genitalia of which some forms of FMG are more severe than others. It is a widespread practice in Africa, of which the most radical form of FGM is called infibulation or pharaonic circumcision. Infibulation was practiced in ancient Egypt and was used to prevent women from having extramarital sex (Shell-Duncan and Hernlund, 2001: 4).797 This procedure leaves only a minimal opening for the passage of urine and menstrual blood. As indicated in 2.5.4.6.2, FMG is stil a prerequisite for the transfer of bridewealth or lobola in certain traditional African societies. The supplementary protocol to the African Charter on Human and people’s Rights prohibit this practice. Signatory governments to this protocol, viz. Kenya, have reverted to alternative rites of passage to combat FGM. Feminists lay the blame on African traditionalists who want to retain patriarchal privileges by controlling women. Leclerc-Madlala (2000) and Rankhotha (2004: 87) outlaw virginity testing as weapons men use to enforce patriarchal masculinity over women.798 In the City Press (September, 2000: 2) Leclerc- Madlala found virginity testing consistent with patriarchal cultures’ way of dealing with problems in South Africa: blaming the victim. Rankhotha (2004: 84) describes the importance of virginity testing in Zululand as follows: “Virginity until marriage was highly regarded in Zulu tradition. Virginity testing not only ensured that the groom and his family were satisfied with the bride but also that the girl’s parents received the required head of cattle as lobola”. A girl’s genitals were according to Rankhota, referred to as inkomo kamama ingquthu or umqholiso; the eleventh cow. If the girl was “deflowered” or not a virgin, she brought shame on her family name and her parents would not receive the eleventh cow. “The revival of long-dormant rituals and virginity testing associated with them is seen, 797 See Shell-Duncan et al.F’se male Circumcision in Afric(a2 001). 798 Patriarchal masculinity is forced on women thro upghhysical violence and rape (Rankhotha, 2004: 87). 420 especially by African intellectuals799, as a feature of the African Renaissance, which broadly refers to the philosophy of reawakening and developing all that is essentially African”800 (Rankhotha, 2004: 85). Rankhotha views virginity testing as the object of patriarchal irresponsibility and views it as a form of mental rape of African women. Virginity testing has been fiercely contested in South African public discourse. Virginity testing is said to curb teenage pregnancies, stem the rising tide of female HIV infections, and encourage pride in African heritage and indigenous cultural knowledge. African feminists are adamant that virginity testing801 violates women’s rights to privacy and bodily integrity. The struggles of African feminists to reclaim the bodies of women “from virginity-testers, rapists and abusers indicate that cracks in the structures of patriarchal femininity have begun to appear” (Rankhota, 2004: 85). Whilst African feminists all over the continent criticise ubuntu’s ancient philosophy of life for its oppression of women, its entrenched inequality, and violation of women’s rights, Madala802 and Mokgoro (1998{a}: 22) maintains: “These African values which manifest themselves in ubuntu are in consonance with the values of the Constitution generally and those of the Bill of Rights803 in particular”. Madala, Mokgoro, Bhengu, Broodryk and Mbigi, propound ubuntu as 799Although Africa has a long and unique traditionf eomf ale leaders as queens, chiefs and religiouse rlse,a d female leaders did not bring about an egalitarira fne mo inist society. Maerten (2004: 4) states tfheamt ale African leaders gained their position because eoifr tshtatus as a member of a dynasty or clan antd t hthea existence of female leaders did not imply equahl trsi gfor ordinary women. Ordinary women could only obtain equal rights and power once their produc ytievaers were over, or by obtaining leadership poonssit i within their family units. According to Maerten, mnya female leaders guided African states, but onhceey t bore children their husbands and sons overshadothweemd. 800In 1997 Andile Gumede revived the Zulu custom ofb lpicu virginity testing as a practical way of reclaiming Africa’s cultural practices. 801 Although virginity testing was prohibited in Claeu s12 of the Children’s Bill of 2005, Chapter 12 (Social, cultural and religious practices) whicha ldse with virginity testing is outstanding in the iCldhren’s Act of 38 of 2005. 802 SeeS v Makwanyane. 803 See Muholi (2004: 116-124) for an account of hcartime es against African lesbians by African males. “Rape of black lesbians is a weapon used to disncei pol ur erotic and sexual autonomy”. Lesbians are mudered and gang raped to punish undisciplinedi alne sbehaviour and to reinforce male control over women. The Mail & Guardian (2008, May16-22: 32) orretsp that “the International Lesbian and Gay Association (ILGA) reports that 38 African counstr isetill criminalise consensual same-sex activittyw been adults”. The presidents of Zambia, Namibia, Zimbea,b wUganda, Swaziland and Kenya has publicly discriminated against homosexuals and lesbiansd (yR, e2d001: 83-87). 421 “Africa’s key to freedom and equality for all” … universal values embodying “the spirit of human dignity, justice and equality. This is Ubuntu” (Bhengu, 2006: 8; 206).804 The Constitutional Court admits that the concept of ubuntu is deliberated in court without having research available at their disposal. It is imperative for the Court not only to research traditional African jurisprudence, but also to research ubuntu from a female point of view. 4.12.1 African Women call for Human Rights Since 1948, The Universal Declaration of Human Rights affirms that every human being is entitled to fundamental human rights. Article 1 of the United Nations Charter states its purpose as the promotion and encouragement of human rights.805 The UN Charter has however, no enforcement machinery against the violation of female human rights unless human rights violations constitute a threat to international peace under Chapter VII. Whilst the Universal Declaration of Human Rights defines human rights as indivisible and inalienable, the oppression and expoitation of African women’s sexuality continues under the banner of ubuntu. It seems as if gender equality in Africa is nothing more than lip service on the part of policy makers. In 1979 the United Nations adopted the Convention for the Elimination of Discrimnation Against Women to eradicate discrimination against women. CEDAW came in force in 1981 and since then more than 170 countries have ratified it.806 States that ratified CEDAW committed themselves to the ending of discrimination against women. African countries ratified CEDAW, but made reservations with regard to the rights of women in marriage and the family. Article 16 of CEDAW addresses the private sphere and insists on equality within families; it also contains a provision against the private oppression of women. 804 Bhengu (1996{a}: 18) proclaims that “personal ditiyg nis the most important principle oufb untu”. 805 Human rights are underpinned by a framework oef rinnattional treaties. Human rights are “part of a tradition that is often said to have its roots hine tEnlightenment of eighteenth century Europe” r(yT,e r 2007: 26). 806 South Africa ratified CEDAW in 1995. 422 Because CEDAW allows for reservations, Art. 16 is heavily reserved. Reservations by African states uphold its entrenched patriarchy in African states and render CEDAW ineffective. Article 18 makes provision for CEDAW’s monitoring Committee. State Parties can report human rights violations to CEDAW, but recommendations are unenforceable. In 1999 the General Assembly adopted the Optional Protocol to CEDAW which allows groups, NGOs or individual victims to challenge discriminatory state practices. Although the Optional Protocol allows no reservations, complainants must exhaust domestic remedies before the Committee will consider complaints. Whilst the African Charter on Human and People’s Rights protects civil and political and socio-economic rights, very few African states have ratified the Covenant on Economic and Cultural Rights.807 African women are primarily disadvantaged by social, cultural and religious rules which limit their access to economic resources and account for women’s lack of human rights. “Gender inequality is one of the most pressing problems in contemporary Africa, because it is one of the major causes of the low status of women808 and the poverty characteristic of the majority of women” (Osei-Hwedie cited in Jacques & Lesetedi 2005: 154). The African Charter enshrines the principle of non- discrimination in art. 2 and calls on State Parties in art. 18 to eliminate all discrimination against women and to ensure the protection of the rights of women as stipulated in international declarations and conventions. The African Charter does not only enforce certain duties towards family, parents, the state and the community but also infringes certain individual rights. The enforcement mechanisms of the African Charter are weak. Although the African Commission 807 Africa has the lowest adult female literacy rant eth ie world with 65% of the women over the age 5o f 1 being illiterate compared to 40% of males (Osei-Hdiwe ecited in Jacques et al., 2005: 155). 808 “The low status of women is due to unequal acctoe spso wer in the political, economic and legal resa,l m which is explained by a combination of factors uindcinl g patriarchy, lack of economic resources, low political participation and lack of education. Ohfe st e, patriarchy remains the overarching obstaoc le t women’s advancement and equality with males” (OHsweei-die cited in Jacques et al., 2005: 155). 423 on Human and People’s Rights considers state reports and individual or NGO complaints, the African Court on Human and People’s Rights809 is not yet sitting. In 2005 the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa came into force. It is a concern of the Protocol that despite international mechanisms to eradicate discrimination against women, “women in Africa still continue to be victims of discrimination and harmful practices”. Article 1(f) of the Protocol distinguishes between direct and indirect discrimination. Art. 1(j) defines violence against women as all acts which cause physical, sexual, psychological and economic harm. Art. 2 obliges State Parties810 to include gender equality in their constitutions and other legislative instruments and to adopt gender mainstreaming approaches to address gender inequality. Whilst art. 3 protects women’s right to human dignity, art. 4 protects women’s rights to life, integrity and security of the person. Arts. 1(g) and 5(b) define and call for the elimination of harmful practices against women which affect their fundamental human rights and prohibits FGM. Art. 6(b) stipulates the minimum age of marriage for women as 18 years and encourages monogamy as the preferred form of marriage in 6(c). Although polygamy was outlawed in the draft protocol, Art. 6 (c) of the Protocol has not done so. Art. 12 places the obligation on State Parties to provide women with the right to education and training whilst art. 14 obliges State Parties to ensure that the right to health and reproductive rights of women be promoted. Art. 21 states that women have a right to an equitable share in the inheritance of the property of her husband. The Protocol pays particular attention to the rights of women in terms of gender inequality, gender based violence, FMG, abortion, land and environmental resources. In Art. 15, women’s right to land is linked to food security. Article 19 exhorts State Parties to promote women’s access to and control over productive 809 In 2005 the assembly of Heads of State and Govenrnt mof the African Union decided to merge the African Court on Human and People’s Justice witeh Athfrican Court of Justice of the African Union. 810 South Africa and fifty- two other state partiesv eh asigned The Protocol to the African Charter on Human and People’s Rights on Human and People’hst sR oign the Rights of Women in Africa. 424 resources, such as land, and guarantees the right to property. This legal mechanism enshrines the rights of African women and deals with issues such as inheritance laws and FGM. Unlike CEDAW’s Optional protocol this protocol does not provide individual complainants direct access to the African Court. In short, legal instruments are available to eradicate the violation of African womens’ human rights but no effective enforcement machinery is in place. Many African countries were also signatories to the Millennium Declaration in 2000811 which targeted eight Millennium Development Goals, of which three of the eight goals deal with women and girls. Art. 17 of the Protocol assures women of their right to live in a positive cultural content and to participate at all levels in the determination of cultural policies. The protocol views women as equal partners at all levels of development and implementation of state policies and development programmes and outlaws ubuntu’s patriarchal philosophy, as legalised by the ancestors. This study highlights not only the injustices against the African Other, but also the injustices and oppressive practices African women in general suffer in patriarchal societies under the ancient philosophy of ubuntu. As the South African Constitution protects human rights and perceives sexism to be on a par with racism, the unconstitutional and dehumanising evils of South Africa’s existing patriarchies must be exposed and eradicated. Government’s commitment to gender rights is evident as South Africa has ratified CEDAW, the Protocol to the African Charter, appointed a Commission for Gender Equality and coordinates South Africa’s national gender programme in the Deputy President’s Office on the Status of Women. As judges have the additional role of social engineers and social and legal philosophers to promote values referred to in sec. 39 of the Constitution, they have to exhibit the moral courage to expose the imbalances of 811 The eight UN Millenium Development Goals aspire e troadicate extreme poverty and hunger; achieve universal primary education; promote gender eqyu aalint d empower women; reduce child mortality; improve maternal health; combat HIV/AIDS, malarinad aother diseases; ensure environmental stability; and develop a global partnership for developmesnete. (http://www. un.org/millleniumgoals/). 425 power, injustices, oppression and the marginalisation of women which are perpetuated in patriarchal societies. As early as 1990, Winnie Mandela (cited in Malherbe et al., 2000: 2) awakened South Africans to the much-needed change of attitude of every member of society when she said: “While the ANC accords women equal status, it is highly improbable that under an ANC government, women will, in fact, enjoy equality of status with men, for equal relations emanate from a state of mind and not from laws … Presently, neither sex sees the other as equal … both men and women in our society see women as subordinate to men. Until these status differences are redefined, and the redefinition becomes a reality in the hearts and minds of our two genders, women will continue to be subordinated”. 4.13 WHERE IS UBUNTU? Ubuntu is part of South Africa’s jurisprudence. Ubuntu has been described as “Africa’s greatest gift to the global world of thought … a new concern for the human person” (Bhengu: 101-102). But does ubuntu still exist? Ubuntu’s “concern for the human person” is nowhere to be seen in South Africa, Uganda, Zambia, Zimbabwe, Democratic Republic of the Congo, Kenya, Darfur, Rwanda812, Algeria, Liberia and Sierra Leone. Could it have survived the onslaught on African values portrayed in Chapter Two? In the BHE case813 the court emphasised the following: 812 Khan (2001: 2) states that the Hutu and Tutsi es hthaer same religion, language, customs, food, ,d ress culture and names and that there has been a faoiru natm of intermarriage. Their only difference is of physical appearance or ethnicity. “There is no raonptohlogical proof that Tutsis are outsiders, butt uH u extremists have propagated the line that Tutsise wfoerreign invaders”. Because of intermarriage othnelyi r identity cards (introduced by the Belgians befonred eipendence) provided proof of their ethnicity; thousands of Tutsis were consequently murderedu bsec oaf their identity cards that proved their ecthitny i when fleeing the country. 813 2005 (1) BCLR 1 (CC) 426 In the modern economy women fend for themselves and help their husbands accumulate property during the course of their marriage. In essence, they have outgrown the status assigned to them in traditional society. Tribal law has lagged behind these economic and social changes. As more and more women begin working outside the home, earning money and acquiring property, the gap between their legal status under customary law and their economic status in society widens … But as we have seen, the joint family is in a state of decline and Africans are now enmeshed in an exchange economy. Development and industrialisation have caused an irreversible breakdown in the traditional African social order. The society is now highly individualistic, competitive and acquisitive.814 The court found that the role modern day women play in urban communities has transformed to such an extent that the African law or ubuntu jurisprudence of male primogeniture can no longer be justified in the present day and age. So, whereas S v Makwanyane injected ubuntu into the main artery of South African jurisprudence, the BHE case declared an important aspect of ubuntu, a dying dinosaur. Marital rape has also been outlawed by the Court. In S v Ncanywa815, Heath J found Ncanywa guilty of raping his spouse. Although the Ciskei Appeal Court816 overturned Heath J’s judgment on marital rape, the Prevention of Family Violence Act 113 of 1993 declare marital rape a crime. Biko (2007), Turaki (1991), Mutwa (1998), Tutu (1999), Mandela (1994), Mazrui (1997), Bhengu (2006) and others agree that ubuntu has been shattered817 by a 814 Par. 189. 815 1992 91) SACR 209 Ck. 816 1993 (1) SACR 297 (CkA). 817 Irele (cited in Oyewumi, 2002: 403) argues thaet gthoal of African philosophy “in modern African thought has been to define the identity (Africa,n l oidcated in traditional culture). The intellect uraelaction to our humiliation under the colonial system and otuor devaluation has consisted in affirming our difference from the white man, the European. Thnes cioous effort of differentiation has produced wtheell - known ideologies of African personality and negdrietu. In Senghor’s formulation of the latter, thea i doef African identity takes the form of an irreducibless ence of the race whose objective correlativeh eis t traditional culture. This essence is held to co nafne restimable value upon our past and to justifry c olauim to a separate existence. The whole movement of mini nBdlack cultural nationalism, from Blyden to Senghor, leads to a mystique of traditional formf sl ifoe”. Irele suggests that African intellectuaalsr e 427 myriad of factors. Ubuntu has been eroded but is not extinct. The reality of ubuntu as sub-Sahara Africa’s ancient collective worldview, or root of African philosophy can no longer be disputed. It’s entrenched patriarchy, however, discredits this ancient religious philosophy as a relevant global philosophy for the twenty-first century. Tutu (1999: 36) questions the moral decay of Africa and asks: Where was ubuntu in the Belgian Congo in the early 1960s? Why did the Rwandans forget ubuntu in 1994 and instead destroy one another in the most awful genocide? I don’t really know except to say that honouring ubuntu is clearly not a mechanical, automatic and inevitable process and that we in South Africa have been blessed. In South Africa, slavery, colonialism, Christianity, apartheid and many other factors contributed to the erosion of indigenous African values. In his autobiography Mandela (1994: 22) discusses how, when the abelungu (white people) arrived from across the sea with fire-breathing weapons, they “shattered the abantu, the fellowship of the various tribes. The white man was hungry and greedy for land, and the black man shared the land with him as they shared the air and water; land was not for one man to possess. But the white man took the land as you might seize another man’s horse”. It did however not stop there. Slavery, colonisation, Christianity, apartheid818 and neo-colonisation disturbed the peace of Africa, contributed to the erosion of the extended family, undermined ubuntu and resulted in the moral vacuum we find ourselves in. Mutwa (2003: 166; 1998: 164) laments the fact that the extended family has been destroyed and infers that “because of the destruction of the extended family, all hell has broken loose”. The destruction of the extended family resulted in the mutation of unknown horrors described by Mutwa. Mutwa (1998: 164) says as unduly holding on to their culture and that times hcaome for them to accept Africa’s defeat and altiieon and embrace Europe in all its grandeur and scice nctaifpacity”. 818 “During this period, materialism and self enrichnmt eat the expense of the majority prevailed. Unthde r apartheid system our society became morally bant k…ru pUbuntu can be used as a starting point to rlde bui our society” (Bhengu, 2006: 214). 428 follows: “Today throughout Southern Africa, we see the rising of young men and women who think nothing of burning human beings alive – a thing that was unknown in old Africa, even in the most barbaric eras of my country … they all come from weakened or completely broken families”. Necklacing is, according to Mutwa, a sign of the collapse of traditional African values. The collapse of traditional African values or ubuntu seems to be confirmed by Mbiti (1992: 224) when he posits that the African individual has increasingly ceased to be a communal member and that modernity has spawned individualism inconceivable in indigenous African societies. Mazrui confirms Mutwa’s notion that the demise of the extended family resulted in the demise of Africa. Mazrui (cited in Somé, 1997: 17) points out that “the ills suffered by the continent of Africa nowadays are the result of the anger of the ancestors in the face of the general desecration brought about by modernism”. Mazrui indicates that to throw away one’s culture for another is an insult to the ancestors and resulted in Africa’s demise. He laments the fact that the worship of ancestors has been replaced by modernity. Oduyoye (cited in Mudimbe 1988: 59) posits that “[t]he identity crisis in Africa, especially among the urbanised, the Western educated and the Christians, maybe attributed to the loss of a dynamic perspective on life, which comes from knowing and living one’s religio-cultural history. We cannot expect those who cannot tell their story, who do not know where they come from, to hear God’s call to his future”. As possible remedy Mudimbe (1988: 59) suggests the reconstruction of an African theology of incarnation … “the Africanization of Christianity insofar as it would permit a divorce between Christianity and Western history and culture and would introduce African features into the Church”. With the collapse of traditional African values, problems with social justice and the crisis of social life in Africa started to increase. Turaki (1991{b}: 179) maintains that Africa inherited unjust social structures and Western values during the colonial era which resulted in the modification of tribal myths or legends in 429 modern Africa. According to Turaki, these “modifications” have been left uncorrected by postcolonial programmes of nation building in Africa. Turaki(1991{b}: 179) states that “the presence of the structures of inequality, incompatibility, insecurity and a variety of conflicting values, make it even more difficult for the development of a national consensus on the norms and values of national politics and ethics”. One of the many challenges we need to address concerns values. According to Goba (1998: 81), There is a current perception that South Africans on the whole are extremely Western, and therefore tend to denigrate anything that relates to African traditional way of thinking. There is an element of truth in this, because African cultural values have been eroded with the despised system of Bantustan. Apart from that there is a tendency amongst those who come from urban areas to regard or associate African values with backwardness. In contrast to Goba, Mokgoro (1998{a}: 17) argues that although the cohesion in traditional African societies has been largely eroded, and “the social field for an ubuntu legal system is not particularly fertile”, the values of ubuntu can be harnessed and enhanced to create the envisaged value system of the “new and contemporary South African jurisprudence”. In an effort to instil ubuntu values and the ubuntu worldview in South Africa’s moral vacuum819, South Africa’s Moral Regeneration Movement was established in 2002 by representatives of the private sector and religious institutions. Besides the Moral Regeneration Movement, an Ubuntu Pledge was compiled by the National Religious Forum to instil ubuntu values. According to Broodryk (2007: 48), all the main societal role players and political parties in parliament subscribed to the contents of the Pledge. The Heartlines Project, initiated by the Nelson Mandela Foundation and other role players, highlight the consequences 819 Bhengu (2006: 101-102) maintains “ubuntu advocat eresn ewed concern for the human person … A new and profound meaning to the debate on humahnts r i…g recommends the same spiritual resources as remedy for the ills of the wider world …the majoyr oitf the population of Southern Africa today can bneo t properly said to know and live Ubuntu by virtuea onfy continuity with village life”. 430 when people do not practise ubuntu values they profess to live by. Eroded cultural practices such as public virginity testing, the Festival of the First Fruits and others have been revived in accordance with the goals of the African Renaissance. In S v Makwanyane: Langa J stated: “It was against a background of the loss of respect for human life and the inherent dignity which attaches to every person that a spontaneous call has arisen among sections of the community for a return to ubuntu”.820 Whilst ubuntu is generally presented as a “humanistic experience of treating all people with respect, granting them human dignity, encompassing values like universal brotherhood, sharing and respecting other people as human beings” (Bhengu, 2006: 42), it is also known to be a closed system which discriminates against the individual, especially females.821 Another fact to consider, according to Imbo (1999: 71), is that ubuntu no longer exists, because “[c]ontemporary Africa is not the Africa of our ancestors”. But despite all of the above, African feminists take a firm stance against ubuntu and its accompanying value system. They perceive ubuntu as the root of female oppression, the creator of gender inequality and violator of female dignity. African feminists bring testimony that ubuntu is not something of the distant past. Oduyoye, Broodryk, Bhengu, Mbiti, Ramose and others confirm ubuntu exists in indigenous African societies and that “[t]he being of an African in the universe is inseparably anchored upon ubuntu” (Ramose, (2002{b}:40). The Protocol to the African Charter prohibits all discriminating aspects associated with the philosophy of ubuntu. Rankhotha (2004: 80) argues that the reintroduction of “outdated cultural practices is not only unfounded, but that traditionalists want to cling to patriarchal privileges in the context of the new 820 Ibid par. 227. 821 In Bhengu’s words: “Here is the limit of individluisam. Not the community forces itself on an unyielding individual, rather the individual, thrgohu socialization and the love and concern which the household and the community have extended to hirm, c/haennot now see himself or herself as anything apart from his/her community. Interest in his/huecr csess is shown by members of the extended famhioly w regard him/her as their ‘blood’, and the communairtey also able to trace their origin to a commone,n e v mythical ancestor”. 431 culture of human rights and gender equality seems tilted against them and self interest”. Rankhotha maintains that if the Moral Regeneration Programme is genuine, all South Africans should espouse the culture of human rights and gender equality.822 According to Bhengu (2006: 102), Africans “have to be educated to pursue (under the name of Ubuntu) a global and urban reformation of village values … ignoring the ubiquitous conflicts and contradictions, the oppressive immanence of the [ubuntu] worldview, the witchcraft beliefs and accusations, the constraint oscillation between trust and distrust, and merely appropriating and presenting the bright side”. Whilst Rousseau romanticised the original, innocent state of nature of the noble savage, modern Africans and African feminists bring evidence that Africa’s unique philosophy of ubuntu, represents oppression and inequality. Ubuntu might be somewhat eroded but the African Renaissance, the Moral Regeneration Programme and other government programmes is adamant to breathe life into Africa’s ancient patriarchial value system. The judiciary of South African Courts though, have a social obligation as philosophers and change agents to bring ubuntu into line with international and regional human rights mechanisms. South Africa has created a new order, a constitutional state. The 1996 Constitution imposed a duty on courts to promote values that underlie an open and democratic society based on freedom, equality and human dignity.823 It is time for the courts to deliberate this philosophy under the “heavy kaross of mystery”, because it does not underlie either equality or human dignity. 4.14 CONCLUSION 822 Rankhotha (2004: 84) argues that if South Afrisc a“ sierious about instilling values of kindness and respect for others, especially women and girlsw, ealsl as eradicating violence among men and boys and against women and girls, it is illogical that vinotl emethods that show little appreciation for thveasleu es are used in initiation schools. It is argued that ttriaodnial values be revisited to address the contef xtht eo 21st century”. 823 See section 39 of the Constitution of South Af,r i1c9a96. 432 In an attempt to understand what the concept of ubuntu entails, traditional Africa’s communal philosophy had to be deconstructed. The 1993 Interim Constitution mentioned “the need for ubuntu” in its Postamble, but did not define the concept. Although the 1996 Constitution does not make reference to ubuntu, sec. 39 of the Constitution urges courts to promote values underlying our open and democratic society, based on freedom, equality and human dignity. In S v Makwanyane the Constitutional Court argued that sec. 39 of the Constitution does not only include Western values, but also traditional African law and legal thinking as part of South Africa’s source of values. Despite the fact that few law books and law reports contain references to African sources as part of the general law of the country, the court concluded without rigorous jurisprudential deliberation that because ubuntu values life and human dignity, capital punishment opposes the spirit of ubuntu. Apart from the general translation of ubuntu as “humanness” and “a moral philosophy”, the court stated that ubuntu calls for the balancing of the interest of society against that of the individual; balancing Western liberalism with African communitarianism. The court stated that “ubuntu is not unrelated” to the goal of a society based on freedom and equality and that the spirit of ubuntu embraces human rights. In the Port Elizabeth Municipality case the court states that ubuntu suffuses the whole constitutional order and that ubuntu, as communitarian philosophy, is a unifying motif of the Bill of Rights. In Dikoko v Mokhatla, ubuntu was successfuly linked to the constitutional values of reconciliation and restoration. In the BHE case the court argued that the rule of male primogeniture in patriarchal African societies unfairly discriminates against women and that the law of succesion was not in line with the Constitutional right to equality. In the court’s deliberations it was mentioned that women in communitarian African societies are regarded as subservient subordinates who are seen as perpetual minors. Neither the Supreme Court of Appeal, nor the High Courts added to the Constitutional Court’s understanding of ubuntu. The Constitutional Court has been unable to 433 illuminate ordinary courts on either the concept of ubuntu or the constitutional values ubuntu represents. Apart from the fact that Tutu, Mokgoro and Bhengu claim that ubuntu is difficult to describe in a European language and that a definition is difficult to render because ubuntu resists Western logic and argumentation, definitions seem to indicate that ubuntu represents the traditional African worldview, collective spirituality and collective personhood of traditional African societies. Ngubane and Bhengu confirm that the word “humanness” does not describe ubuntu because in reality, every facet of traditional African life embraces ubuntu, Africa’s philosophy of life. Turaki, Ramose, Mbiti and others argue that ubuntu is defined by and rooted in African Religion. According to Ramose, Cabral and Phahafala, the ubuntu worldview and its accompanying religion, values and laws are shared by all African peoples in sub-Sahara Africa. Traditional African societies consist of extended families which represent collective solidarity and consensus. Ubuntu communitarianism opposes Western liberalism and individualism. In traditional Africa the individual is perceived as “it” unless various community-prescribed stages, ceremonies and rituals have been completed to obtain personhood. Popper, Turaki, Nyirongo and Teffo et al. describe traditional African societies as closed societies because ubuntu reality exists only within the community, tribe or clan. Boon maintains all values derived from belief systems in closed societies are unique. African Religion provides African communitarian societies with a holistic view of life or ubuntu reality. Not only is African Religion a set of rules for the living and the dead, but ubuntu jurisprudence, laws, values and beliefs are derived from it. No stranger can convert to African Religion and no individual of the community can reject the religion, because by doing so, the individual will be cut off from his people. Whilst the Constitutional Court suggested that ubuntu values are universal, it is argued that values derived from closed communitarian societies are unique. Van 434 Blerk, Mokgoro, Broodryk, and others suggest that ubuntu values are unique because they are practiced on a much deeper level than Western values. Abraham Wiredu and Gyekye agree that Western philosophy and African philosophy oppose one another and that because values are closely linked to worldviews, universal values are a myth. Justice in ubuntu legal philosophy involves the perpetual exchange and sharing of the forces of life to restore peace, harmony and balance within the community. Ngubane, Kamalu, Koka, Broodryk and Bhengu maintain that the ubuntu concept of justice is derived from the ancient holy belief of Netchar Maat. Justice according to Maat, is based on the ancient Egyptian code of the gods to which all living had to adhere in order to progress towards a godlike state. Ancestors and elders play a key role in achieving cosmic justice. Elders fulfil their roles as sages, advisors, judges and mediators between the living, and the living and the dead. Justice is meted out in accordance with a person’s status or place in the hierarchy within these patriarchal societies. Justice in ubuntu legal philosophy differs from the notion of justice in Western jurisprudence. Not only ubuntu justice but also ubuntu’s philosophy of law contrasts the concept of law in Western legal systems. Ngubane, Ramose and Bhengu, maintains ubuntu is the Constitution of traditional African communities. Whilst the aim of law in ubuntu reality is the regulation of community to secure protection by supernatural forces, the aims of law are equilibrium, justice, peace and harmony. M’Baye, Turaki and Mutwa posit that ancestors are the legislatures in ubuntu reality, however, Ramose maintains that the living lay down the norms which have to be authorised by the ancestors. Rules and norms become law once ancestors approve of it. Whoever breaks the law incurs the wrath of the ancestors. Although Africans constantly equate ubuntu with equality and human dignity, status and hierarchy within traditional African societies determine how the law will be applied. Nyirongo, Broodryk and Bhengu affirm that rights are assigned according to a person’s communal membership, family 435 and status. The laws of ubuntu legal philosophy do not apply to strangers: for the stranger the end justifies the means. M’Baye, posits that ubuntu legal philosophy negates Western law. African feminists discredit ubuntu legal philosophy as a philosophy which violates human rights, equality and human dignity of females in indigenous African societies. African feminists perceive ubuntu as a patriarchal social structure which serves as a tool of female oppression. In these societies married women experience gender based violence, marital rape, domestic violence and polygamy. In ubuntu reality, its male-dominated societies suppress women’s participation in socio-political and economic participation. Whilst young girls are married off to older males, women in general are exploited sexually through the “fundamental African value of hospitality”. This degradation of female humanity in the name of hospitality negates all notions of human rights, gender equality and human dignity. FMG and virginity testing is also not in line with either international or regional human rights mechanisms. African feminists perceive ubuntu as an oppressive philosophy which violates the human rights of African females. Whilst many African males ponder whether ubuntu is alive and well, African feminists assure the world that their fate has not changed under ubuntu’s ancient philosophy of life. The African Renaissance, the Moral Regeneration Programme and other government programmes aspire to revive age-old African traditions such as the Festival of the First Fruits, public virginity testing and others. Only rigorous deliberation in the Constitutional Court will expose ubuntu as a patriarchal philosophy which assents to human rights violations. The values of ubuntu do not comply with sec. 39(1) of the Constitution as ubuntu values do not guarantee equality and human dignity to traditional African women in South Africa’s new democratic society. Ubuntu is ancient Africa’s collective philosophy. Though its values are unique the Constitution requires it to comply with universal values. Ubuntu’s patriarchal 436 philosophy, gender inequality, “fundamental African value” of hospitality and other factors contrast statements that ubuntu is “in consonance with the values of the Constitution generally, and those of the Bill of Rights in particular”. 437 CHAPTER FIVE CONCLUSION In S v Makwanyane, the Constitutional Court made a paradigm shift.824 The Court contended in 1995 that it would no longer entertain only Western thought and legal thinking but also African law and legal thinking as the values of all sections of society must be taken into account in South Africa’s open and democratic society. By acknowledging ubuntu as part of South Africa’s jurisprudence, the Court fused African philosophy and jurisprudence with Western philosophy and jurisprudence into and created a new South African rainbow jurisprudence. But beneath this fusion lies a history of two opposing realities in both thought and legal thinking. Although the struggle against apartheid might be something of the past, the struggle of African communitarianism versus the dominant philosophy of the West continues. Two ancient patriarchal philosophies oppose one another within the “seamless text” of constitutional theory. The one philosophy, a known villain, has ravished the Other. The Other, ancient ubuntu philosophy, is relatively unknown among Europeans because it is apparently too difficult to define in any European language.825 What we do know is that these two philosophies have been intertwined with one another for centuries. The complexity of this fusion, however, only surfaces once history itself is deconstructed. African scholars bring evidence that pre-colonial Africa was far from being the Lost Dark Continent portrayed by Westerners.826 Ancient Egypt was in fact a colony of Ethiopia, which according to Homer’s Iliad, hosted an annual banquet with Zeus and other Greek gods as guests. Herodotus, Diodorus of Sicily and Greek historians affirm the fact that Pharaonic cultures were derived from inner Africa. Classical Greek philosophers acknowledged the cultural primacy of Egypt 824 See 4.4.1.1. 825 See 4.1. 826 See 3.2.1.3. 438 and sent inter alia Thales and Pythagoras to receive Egyptian wisdom, guidance and inspiration. Not only was Egypt a Negro-African achievement, but also the cradle of mathematics, science, cosmology and medical knowledge. Ancient Africa was the seat of philosophical rationality. Egyptian texts confirm that the ancient Egyptian moral teachings of Ptah-hotep, in 2400 B.C., contain the moral principles for moral behaviour called Maat. The admonitions of Maat were written 1500 years before the Bible’s Ten Commandments. These Egyptian moral principles were dispersed throughout Africa and form the basis of traditional African values. Maat’s prescriptions of truth, justice and righteousness are contained in Africa’s sacred values of ubuntu. Ubuntu represents the African subcontinent’s shared value and belief system which, like Maat, advocates cosmic justice and the belief in reincarnation.827 Like its classical Greek ancestor, the Western philosophical tradition has always been plagued by philosophical prejudice.828 In classical Greek style, Western philosophy branded categories of humanity as deficient in rational thought and automatically disqualified them from Western philosophy. All European women, Africans, American Indian, Aborigines and Maoris of Australasia in the Western theory of ideas, were historically branded as illogical and deemed unfit for philosophy.829 All Other were and still are being regulated in “pass law categories” which sustain “philosophical apartheid” In the West. The Other are regarded as inferior categories of humanity. Since the establishment of Plato’s Academy in 387 B.C., Western males have been schooled in critical thinking skills. Philosophy was transformed into an academic discipline characterised by rational epistemology; a methodology which advocates individual, critical, reflective and logical enquiry. Plato stated clearly that only individuals can philosophise; the multitudes cannot philosophise. Despite the fact that Aristotle declared all men rational animals capable of philosophy, Western philosophy’s right of way belongs to the epitome of full humanity: the privileged European 827 See 4.10.1. 828 See 2.3. 829 See 2.4. 439 male. The paradox, however, lies in the fact that Western philosophy boasts about its universality. Racial prejudice only entered the equation of Western philosophy when the West had to justify the droves of African chattel slaves which arrived in Europe and America from Africa in the seventeenth century. 830 Not only Europeans but also Arabs and African rulers enriched themselves at the expense of these West African slaves.831 Slavery was nothing new to Europeans as they had always been trading in East European, Mediterranean and Muslim slaves from North Africa, but racial prejudice towards these slaves was unknown. To justify the abhorrent slave trade in twenty million African men, women and children, however, their mass enslavement had to be justified and legitimised. Westerners deployed their master plan against Africans: the justification of anything in the name of Christianity. During a time when the enslavement of Europeans was deplored as an act of barbarism, European philosophers, viz. Hegel and Montesquieu, politicians and clergy succeeded in justifying African slavery as “a phase of education”. Christianity was portrayed as the only means of salvation available to these pagan African slaves. African slaves were depicted as pagan people of an inferior humanity; “sinful, bestial savages destined for hell”. Slavery was justified as the African’s only hope of being saved from the eternal fires of hell. As a result of Western philosophy’s successful brainwashing of European and American societies, chattel slavery was legalised. Henceforth African humanity was held in contempt. The European justification of African chattel slavery birthed the “older racism” which was conveniently utilised to reduce Africans to a mere tradable commodity to be sold off at a profit to the New World. In an act of mercy African culture, religion, tradition and values were forcefully substituted with Christianity, Western culture, and Western values. Although European countries abolished slavery since 1807, it must be noted that 830 See 2.5.1 and 2.5.2. 831 See 2.5.2.2. 440 Article 7(1) (c) of the Rome Statute of 1998 declared slavery a crime against humanity.832 In the eighteenth century, Western philosophy entered the age of Enlightenment.833 In this Age of Reason, Enlightenment philosophers challenged religious superstition, the tyranny of feudal societies, and proclaimed rationality, human equality and individual liberties. Although the Enlightenment aspired to eradicate all forms of misery and injustice,834 it was clearly not meant to bring freedom or justice to the African Other. The ethnocentric philosophies of Hume, Kant, Hegel, Voltaire, Montesquieu and many others835 fuelled a “new racism” against Africans. This “new racism” stereotyped Africans as inferior beings without history or philosophy and effected the cultural and intellectual ascendancy of Europeans over Africans. Whilst the Enlightenment proclaimed human equality and individual liberties, Sarah Baartman, South Africa’s female African icon, was exploited, paraded and degraded in Europe as an example of African Otherness, savagery and barbarism.836 The Age of Reason resulted in Western scientific racism, which assigned Hottentots, like Sarah Baartman, the lowest rank in the human hierarchy. Throughout the Enlightenment and thereafter, Western liberalism rationalised Western racial superiority and racial domination over the African Other; to such an extent that it became institutionalised thinking throughout the West. The Enlightenment’s commitment to equality signalled the reality of racial prejudice, class, gender and racial restrictions for the African Other. Not only did the United States Supreme Court rule in favour of racial segregation in the United States in 1883 but philosophical rprejudice became instrumental in justifying the colonisation of the “Dark Continent”. 832 See 2.5.2.4. 833 See 2.5.3. 834 See 2.5.3.1. 835 See 2.5.3.2. 836 See 2.5.3.3. 441 The Berlin Act of 1885 regulated the division of Africa amongst the European signatories who undertook not only to colonise Africa but also to improve the moral and material well-being of Africa’s native tribal systems.837 Without any input from Africans, the Dark Continent was divided between the European signatories; with a stroke of the pen the scramble for Africa commenced. Before Europe’s artificial geographical division of Africa, indigenous people of the African continent knew no borders, European traditions, values, languages, colonial laws or customary law.838 The Berlin Act did not only destroy African tribal systems but also African trade patterns, ancestral lands, self government, belief systems, values and African law. Christian missionaries839 were to fulfil an indispensable role in civilising and evangelising Africans. Missionaries were to lift Africans out of their pagan beliefs and primitive savagery. They established churches, schools and medical clinics throughout Africa and replaced African Religion and African values with Christianity and Western values. Not only did local African languages have to make place for European languages, but African traditions viz. circumcision, polygamy, rituals and values were eroded in favour of civilised Western values. African sources confirm that African thought, culture and values were substituted during colonisation with Western thought, culture and values. African social structures were replaced with the European nation state and Africans found themselves being regulated by European laws. Colonialism dislocated the traditional African way of life and destroyed every value dear to the African. Direct and indirect colonial rule resulted in the “European cannibalization of Africa”. British indirect colonial rule840 resulted in ethnic tension among the Africans, undermined indigenous social structures and manipulated socio- economic differentiation in traditional African societies. In colonial Kenya the 837 See 2.5.4. 838 See 2.5.4.1. 839 See 2.5.4.6. 840 See 2.5.4.2. 442 Kikuyu led the Mau Mau mass rebellion against the British colonial government between 1952-1956 for the return of their land; to put a stop to the erosion of their values and to demand freedom from colonial oppression. The British colonial government responded by detaining one and a half million Kikuyu men, women and children in concentration camps in the Kikuyu districts of Kenya. More than a hundred thousand Kikuyu died of exhaustion, disease, starvation and physical abuse in these concentration camps. Belgian colonial rule841 was as paternalistic as the British and eroded African culture and values in the Congo. Between 1888 and 1908 the Belgian king, King Leopold II, exploited and killed millions of Africans in the Free State Congo in his twenty-year reign of terror. After World War 1, Rwanda was transferred from Germany to Belgium. Like the Germans, the Belgians favoured the Tutsis in Rwanda. When the Hutu peasants rose against the Tutsis and murdered 50 000 of them in 1959, the Belgian colonial government merely looked on. This uprising was a contributing factor which sparked the Hutu-Tutsi genocide or ethnic cleansing in Rwanda in 1994. In 2006, British Parliament recognised the mass killings of Africans in the Congo Free State by Leopold II, King of Belgium, as genocide. The British Parliament called upon the Belgian government to apologise to the Congolese people for this genocide. French colonial rule842, or assimilation, resulted in a three-stage process whereby firstly, Africans had to denounce their culture and values; secondly, they had to convert to French culture and values; and thirdly, Africans would be rewarded with French citizenship. The French created an African elite and destroyed African culture and values wherever they went. The French exploited not only African culture and values but also African life. Between 1921 and 1932, 14 000 African men died whilst working on the French colonial Congo-Océan railway. 841 See 2.5.4.3. 842 See 2.5.4.4. 443 During German colonial rule843 in German South-West Africa, German settlers confiscated Herero cattle and land. The Herero responded with an uprising against German colonial rule in their land. This uprising resulted in the Colonial War of 1904 -1908. General Von Trotha and his schutztruppe sought to eradicate these rebellious tribes and relentlessly drove 80 000 Herero and 20 000 Nama into the Omaheke desert where they were left to die. Half the population of Herero and Nama men, women and children perished. The other half surrendered and were sent to concentration camps where another 15 000 died. It is estimated that General Von Trotha killed 75 000 Herero and Nama between 1904 and 1911. After this genocide the colonial government transferred the Herero’s land to German settlers. In 2001 the Herero of Namibia instituted a claim for reparation against Germany for the genocide of 65 000 of their people during the colonial war of 1904 -1908. European colonial rule established a dual system of law844 throughout Africa. African law845 was replaced with European law in the urban areas, and customary law in the rural areas. In contrast with the oral pre-colonial “High Laws of the Bantu” customary law846 was a European-made law, documented by Western anthropologists and academics. Customary law set Africans and their customary practices apart from the colonial laws of civilised society and played an inferior role to it. Traditional African modes of dispute resolution, consultation with the extended African family as part of law, and restorative justice were replaced with Western jurisprudence's punitive justice system and imprisonment.847 In law, Western philosophy and jurisprudence highlighted the contrast between itself and African philosophy and jurisprudence. Western individualism opposed African communitarianism; civil society opposed the indigenous African society and Western rights and liberties opposed group rights and duties in African jurisprudence. In “native courts” the judges knew very little 843 See 2.5.4.5. 844 See 2.6. 845 See 2.6.1. 846 See 2.6.2 847 See 2.6.3. 444 about African law and the assessor would not disclose, even though he knew perfectly well, how African law should be applied in court. As African law holds the seeds of African values and community morality, the erosion of African law, therefore, resulted in the erosion of African values and community morality. After centuries of oppression and injustices suffered as a direct result of the ideology of Western philosophy, the Africans in South Africa had to endure more prejudice under the ideology of apartheid848 from 1948-1994. Not only did apartheid resemble “full-fledged indirect rule”849 but it repressed Africans by means of restrictive, oppressive legislation. As in the colonial heyday, politicians and the clergy who supported apartheid utilised Christianity to justify South Africa’s crime against humanity. As judges proved not to be politically neutral, the Courts of the apartheid regime justified South Africa’s unjust laws.850 Apartheid separated African families and communities and further eroded what was left of African values. In 1974 apartheid was declared a crime against humanity in Art. 1 of the International Convention on the Suppression and Punishment of the Crime of Apartheid.851 Neither money nor words can undo the innumerable injustices Africans have suffered at the hands of their European masters. It was however not the injustices against Africans that left them with a scarred collective consciousness, but the biggest weapon the West wielded, viz. the cultural bomb.852 Western civilisation’s cultual bomb eroded African culture and values to such an extent that it is said Africans live in a state of despair and despondency. The cultural bomb’s erosion of African beliefs, values, law and culture culminated in a collective death wish of the continent’s people. Western philosophy’s unaccommodating worldview resulted in unspeakable injustices, suffering, humiliation, degradation and denial of African humanity. Five hundred years of 848 See 2.7. 849 See 2.7.1. 850 See 2.7.2. 851 See footnote 198. 852 See 2.8. 445 slavery, colonisation, Christianity, customary law, apartheid and neo-colonialism, however, gave rise to African solidarity and Afrocentrism which sparked the reconstruction of African reality. In both philosophy and jurisprudence the difference between Western and African reality is stark.853 Notwithstanding the volatile philosophical relationship between Europe and the African Other the Constitutional Court fused Western thought and legal thinking with African thought and jurisprudence into a new South African rainbow jurisprudence. Despite the historically unbridged divide between Western liberalism and African communitarianism; between the Western and African worldview; between Western and African jurisprudence and between Christianity and African Religion, Art. 1 of the Universal Declaration of Human Rights, 1948, declares that all human beings are born free and equal in dignity and rights – despite opposing worldviews. Deconstruction of the volatile relationship between Western philosophy and jurisprudence and traditional African thought and jurisprudence reveals slavery, prejudice of Western philosophers, colonialism, Christianity, Western law and customary law, apartheid and neo-colonialism resulted in the erosion of African values, African law, and African humanity. Western philosophy and Christianity were primarily responsible for the “cultural bomb” which resulted in the erosion of traditional African values and left the African people with a scarred collective consciousness. In spite of the fact that Western philosophy and history proclaimed African humanity as inferior and incapable of philosophical thought, Father Tempels turned the tables when he published his Bantu Philosophy in 1945.854 In Bantu Philosophy, Tempels revealed that the Baluba of the lower Congo shared a collective oral philosophy, based on reason. The aim of Tempel’s book was to 853 See 2.9. 854 See 3.1 and 3.3.1.1. 446 assist Christian European missionaries with insight into traditional African thought: a necessary tool which aided Europeans in converting Africans to Christianity. Tempels, the Belgian priest, heeded that the superficial Europeanisation of the African masses would erode African culture and values. Tempels confirmed what Senghor maintained in his Negritude: Africans are human and capable of reason. Bantu Philosophy sparked a heated philosophical debate855 firstly amongst Westerners and secondly between Westerners and African philosophers. The debate centred on the question whether Africa had a tradition of philosophy; whether Africans have the capability to philosophise and if so, what is African philosophy? Despite the outright rejection of the ancient history of African philosophy by the Western philosophical tradition, evidence confirms that African philosophy had its origins in ancient Egypt.856 Philosophy north of the Sahara857 is characterised by a long tradition of written philosophy which predates the modern era. As a Negro- African civilisation, ancient Egypt brought enlightenment to the Greeks. It is suggested that the ancient Egyptian moral principles of Maat, evident also in Yoruba moral epistemology, form the basis of the moral values of ubuntu. Philosophy in Africa south of the Sahara858 is based on a meticulously preserved oral tradition of philosophy. African sources confirm the existence of a unique collective African philosophy which is firmly embedded in traditional African societies. Whilst Westerners and question the ability of Africans to philosophise, it becomes evident that reality on the African continent is comprehended in different ways.859 Professional African philosophers claim that despite the fact that Africans have been labelled as emotive, mythical and illogical beings, it is wrong to assume that certain races are superior to others. They concur that rational thinking is present 855 See 3.2. 856 See 3.2.1. 857 See 3.2.1.3 and 3.2.1.4. 858 See 3.2.1.2. 859 See 3.2.2. 447 in all humans and that rational and critical thought prevail in Africa.860 African professional philosophers maintain that the African’s struggle for reason is based in the inherent bias of Westerners against Africans. In contrast to professional African philosophers, African traditionalists maintain traditional Africans possess a distinct method of comprehending reality which does not involve analytical, critical and reflective methodology.861 They argue Africans comprehend reality through their senses and not their intellect and that Africans utilise emotion, intuition and the wisdom of the ancestors in their reasoning. African traditionalists attest that they utilise a different methodology to reason than the Westerners’ rational epistemology.862 Professional African philosophers and African traditionalists do not only differ in the methodology they employ to reason but also in their view on philosophy. Whilst professional African philosophers863 define864 African philosophy as a universal enterprise which should comply with Western criteria for philosophy in the strict sense, African traditionalists865 view philosophy from a culture-specific view and maintain that its oral tradition of philosophy is embedded in the tradition, customs, religion, rituals, myths, songs, dances, proverbs, stories and art of traditional African communities. Professional African philosophers define866 African philosophy as written texts which employ the methodology of Western philosophy. They define the African philosopher as an African individual of geographically African origin who has a lived experience of African culture and customs. African feminists maintain women are not deemed philosophical in African reality. The narrow and bias definition867 of the person of an African philosopher is characteristic of closed communities and excludes Europeans on the African continent and African-Americans from African philosophy. This view 860 See 3.2.2.1. 861 See 3.2.2.2. 862 See 3.2.2.4. 863 See 3.2.3.1. 864 See 3.2.3.4. 865 See 3.2.3.2. 866 See 3.2.3.3. 867 See 3.2.3.3.1. 448 has forced American academics of philosophy to produce Africana Philosophy which allows others to philosophise on Africa. Deconstruction of the debate on African philosophy reveals traditional African thought (or ubuntu philosophy) are not deemed philosophical by either Western philosophers or professional African philosophers. The Kenyan philosopher, Oruka, structured the discourse on African philosophy with his template Four Trends in Current African Philosophy and later added two more trends to his initial four trends in African philosophy.868 These trends consist of ethnophilosophy, philosophical sagacity (sage philosophy), nationalist- ideological philosophy (political philosophy), professional philosophy, the hermeneutical and the literary trend. The trend ethnophilosophy869 represents the communal philosophy of traditional African societies. Ethnophilosophy is a synonym for the collective philosophy or ubuntu of either a particular African community or philosophy of indigenous Africa as a whole.The sources of ethnophilosophy are traditions, customs, religion, law rituals, myth, proverbs, songs, dances and stories of traditional African people. The works of Tempels, Kagame, Senghor, Mbiti, Horton, Ruch, Onyewuenyi Gyekye, Mutwa, Somé and Anyanwu870 are perceived as examples of ethnophilosophy and clearly illustrate the intertwined relationship of this trend with African Religion. Whilst Western and professional African philosophers deny ethnophilosophy the status of philosophy871, African traditionalists are convinced of the existence of their unique colective oral philsophy. African feminists872 object to the patriarchal nature of ethnophilosophy which not only submits women to gender inequality but also to oppressive African customs, 868 See 3.3. 869 See 3.3.1. 870 See 3.3.1.2. 871 See 3.3.1.3. 872 See 3.3.1.4. 449 rituals, taboos and traditions. Despite fierce criticism, ethnophilosophy confirms the existence of a single unique collective philosophy known as ubuntu.873 Oruka defines sage philosophy874 as the expressed thoughts of wise persons in traditional African societies.875 Whilst a sage is generally regarded as a person revered for his wisdom, counselling and guidance, one has to make a distinction between folk and philosophical sages.876 Whilst a folk sage is perceived as a master of didactic wisdom, a philosophical sage is known to be an expert in didactic wisdom. In contrast with philosophical sages who apply rational thinking, folk sages do not reflect critically on their traditional culture and worldview. Although professional African philosophers deny oral philosophy the status of philosophy877, Oruka recognises the oral contributions of philosophical sages as philosophy. Sage philosophy brings proof that rational thought prevails even in traditional African societies.878 Political philosophy879 represents the liberation philosophies of Africa’s philosopher kings, viz. Nkrumah, Toure, Nyerere, Senghor and Kaunda.880 The philosophies of these philosopher kings affirm the systematic erosion of traditional African values due to colonialism, the importance of African values to sustain existence in indigenous societies, and inspired the African people towards the struggle against colonialism. Nkrumah’s Consciencism and Nyerere’s Ujamaa were based on African communitarianism and confirm the existence of a coherent collective philosophy in traditional Africa. Both of these African leaders rekindled ubuntu and its accompanying values. Wheras Nyerere’s Ujamaa was rooted in the restoration of the African collective consciousness and communal values of his people, Nkrumah’s Consciencism 873 See 3.3.1.5. 874 See 3.3.2. 875 See 3.3.2.2. 876 See 3.3.2.3. 877 See 3.3.2.4. 878 See 3.3.2.5. 879 See 3.2.3. 880 See 3.3.3.1. and 3.3.3.2. 450 had a vision for the renewal of Africa, based on the collective philosophy of traditional African societies. Like ethnophilosphy, political philosophy affirms the existence of a collective African philosophy. The Negritude movement881 was spearheaded by Senghor as a reactionary philosophy against Eurocentrism in France in the 1930s. Senghor’s Negritude represents “the sum total of African cultural values”. The constant European denial of African humanity resulted in Senghor’s revolt against slavery and colonial rule. Senghor aspired to demonstrate to Europeans that African philosophy, culture, tradition and values existed.882 In his Negritude, Senghor portrayed the existence of traditional African values which underlie communitarian African existence. Senghor portrays Negritude philosophy as an intuitive, emotional philosophy which is grounded in the “mystical conceptions of Africa”. He links traditional African philsophy, traditional African values and African Religion with one another. Senghor’s Negritude is proof of the inextricable link between traditional Africa’s communal philosophy, African Religion and African values. Professional African philosophers criticise this trend for suggesting that all Africans perceive reality in a pre-scientific way. Despite criticism,883 Negritude, like ethnophilosophy, confirms the existence of a collective African philosophy based on the collective value and beliefs of traditional African societies. Oruka views professional African philosophy884 as written philosophy produced in the strict sense by African philsophers. Because professional African philosophers employ a critical methodology they deny the existence of a unique collective philosophy in traditional Africa. Professional African philosophers are hostile to the idea that African philosophy could be based upon the values and 881 See 3.3.4. and 3.3.4.1. 882 See 3.3.4.2. 883 See 3.3.4.3. 884 See 3.3.5. and 3.3.5.1. 451 beliefs of traditional African people.885 In contrast with ethnophilosophy, which perceives philosophy as culture-specific, professional African philosophers view philosophy as a universal enterprise. Professional African philosophers are generally perceived as African academics schooled in the Western tradition of philosophy. As this trend mostly critiques and opposes the collective though of ethnophilosophy as pre-scientific myth, professional African philosophy is criticised886 for lacking subject matter of its own. Houtondji, Wiredu, Towa and others represent African philosophers in this trend. The hermeneutical trend887 affirms that the African philosopher and his text cannot be detached from its cultural content. Hermeneutical African philosophers attempt to come to terms with the total damage suffered by Africans as a result of the hegemony of Western liberalism. As part of postmodernity this trend deconstructs and reconstructs African reality. Hermeneutics affirms African humanity, communal values, morality, culture and traditions. Fanon, Serequeberhan, Outlaw, Towa, Okere, Okolo, Gordon and Bernasconi are perceived as hermeneutic philosophers of the African tradition. The literary trend888 refers to the narrative element in African philsophy. The narrative reflects Africa’s struggle to rid itself of Western domination. This trend emphasises the devastating effect of Western subjugation of the African Other which resulted in the erosion of African values, culture, customs, law and traditions. This trend confirms the existence of a collective African philosophy. Oruka cites Achebe, Soyinka, Wa thiongo, p’Bitek and Lo Lo Liyong as examples of philosophers of the literary trend. Like Western philosophy, African philosophy represents the voices of African males. African feminists perceive the existence of an inherent bias in the 885 See 3.3.5.2. 886 See 3.3.5.3. 887 See 3.3.6, 888 See 3.3.7. 452 definition of African philosophy.889 According to African feminists, the patriarchal reality of traditional Africa places many restrictions on women. They demand the examination of the African philosophical tradition stretching from Tempels to modern professional African philosophers. Professional African philosophers promote a universal philosophy890 and therefore deny the existence of a unique collective philosophy in traditional African societies. It is, however, impossible for the unique collective philosophy of traditional Africa to dissolve into the universal individualistic philosophy of the Western tradition. Postmodernist philosophy maintains that there is no universal philosophy or single truth, just philosophies. Despite the fact that these realities exist within African philosophy, current African students of philosophy are still taught a decontextualised Western philosophy. Oruka’s trends illustrate clearly that there is no homogenous African way of thinking. African thinking consists not only of traditional African thinking, which affirms traditional African values, culture and African Religion, but also of thoughts of modern Africans who disassociate themselves passionately from the pre-scientific, mystic perceptions of ubuntu reality. Professional African philosophers juxtapose the pre-scientific modes of thought of traditional Africans with their Western modes of thought. Like professional African philosophers, African feminists and African theologians reject traditional African modes of thought personified in ubuntu philosophy. Whilst the Constitutional Court notes the importance of entertaining African thought and legal thinking it must be noted that African thought and legal thinking represent diverging modes of thought. Professional African philosophers, African feminists, African theologians and African modernists oppose traditional African modes of thought. There exists no homogenous “African thought and legal thinking”. 889 See 3.3.9. 890 See 3.4. 453 Deconstruction of African philosophical values in terms of Oruka’s six trends in African philosophy reveals that ethnophilosophy, political philosophy, Negritude and the narrative trend confirm the existence of a collective African philosophy, its communal values and communal belief system in traditional African societies. As only ethnophilosophy represents collective African though in Oruka’s trends, ethnophilosophy represents ubuntu’s collective philosophy. Deconstruction of African values in terms of African philosophy reveals that professional African philosophers and African feminists oppose ethnophilosophy (or ubuntu). African feminists maintain ethnophilosophy or ubuntu subjugate and oppress African women. Prominent African leaders, viz. Biko, Mandela, Tutu and others decry the loss of ubuntu in African societies.891 Despite the fact that the word ubuntu is commonly used, its humanness, brotherhood and ethic of care seems to be absent in South Africa, Zimbabwe, Uganda, Zambia, Democratic Republic of Congo, Kenya, Darfur, Algeria, Liberia and Sierra Leone. It is, however, posited that the loss of ubuntu can be attributed to centuries of slavery, colonialism, apartheid, neo colonialism, modernity and a myriad other factors which contributed to the erosion of traditional African values and ubuntu. Throughout SADC, and especially South Africa, effort is made to revive traditional African values in an effort to fill South Africa’s moral vacuum. The African Renaissance, Moral Regeneration Programme, Ubuntu Pedge, Heartlines Project and other programmes aspire to revive ancient ubuntu values. As the revival of traditional African values is high on South Africa’s political agenda, the Constitutional Court followed suit to avert a ligitimacy crisis. In 1995 the Constitutional Court892 introduced the concept of ubuntu in S v Makwanyane and embarked on entertaining not only Western thought and legal thinking but 891 See 4.13. 892 See 4.4.1. 454 also African thought and legal thinking as part of the source of values represented by South Africa’s rainbow nation. In spite of a lack of research on African jurisprudence, the Constitutional Court found in S v Makwanyane893 that ubuntu embodies the shared value system of traditional African societies and represents humanness, personhood, social justice, fairness, collectivity, morality and the richness of emotions in these societies. In contrast with Western jurisprudence, members of traditional African societies in ubuntu reality do not only enjoy group rights but also corresponding duties towards members of their community. Justice in these communitarian African societies is maintained by balancing the interest of society against that of the individual. The Court contended that ubuntu recognises a person’s status as human being and demands unconditional respect, value, dignity and acceptance of the person towards other members of the community. Whilst umuntu, ngumuntu ngabantu is said to describe the importance of group solidarity for the survival of these communities, the Court maintained that the spirit of ubuntu embraces human rights. Despite the fact that traditional African jurisprudence had not been researched for purposes of determining the issue of capital punishment the Court contended that capital punishment is foreign to ubuntu and that the death penalty was confined to cases of witchcraft. Although the court indicated that ubuntu represents the African value system, the Court failed to indicate how this value system differs from the Western one. In the AZAPO case894 the Constitutional Court found that the enactment of amnesty legislation was inspired by the philosophy of ubuntu which favours reconciliation over victimisation. In the Hoffman case895 the Constitutional Court made a passing remark that ubuntu had to be shown to PLWAs. The Court refrained from explaining what was meant by the statement. In the Port Elizabeth 893 See 4.4.1.1. 894 See 4.4.1.2. 895 See 4.4.1.3. 455 Municipality case896 the Constitutional Court stated that the spirit of ubuntu is part of the cultural heritage of the majority of South African people and that it suffuses the entire constitutional order. The Court conceded that ubuntu does not only combine individual rights with communitarian philosophy, but it is also a unifying motif of the Bill of Rights. The judge, however, refrained from indicating how the Constitution combines individual rights and communitarian rights in a constitution clearly premised on Western liberal values. In the Dikoko case897 the Constitutional Court conceded that the constitutional value of human dignity relates closely to ubuntu. The Court linked ubuntu to the constitutional values of reconciliation and restorative justice and urged that courts should be encouraged to make a paradigm shift from quantum to reparatory remedies. According to the Court, the concept of ubuntu enriches the fundamental rights of the Constitution. Restorative justice is however not unique to African jurisprudence as it was the dominant criminal justice system in ancient Greek, Roman and Arab civilisations as well as indigenous cultures of Australasia and Canada. Restorative justice can play an important role as constitutional value as it is linked to values of both African and Western jurisprudence. In the BHE case898 the Constitutional Court contended that the rule of male primogeniture, of customary law of succession, discriminates unfairly against women and children born out of wedlock. The Court argued that this rule is embedded in a patriarchal system which views women as subordinate subservients and perpetual minors. According to the Court, this rule violates the rights of children as well as women’s rights to equality and human dignity. The Court held that the rule of male primogeniture is unconstitutional and incompatible with the Bill of Rights. The BHE case has been the only case to date where the Court has linked a rule in African jurisprudence to patriarchy and 896 See 4.4.1.4. 897 See 1.4.1.5. 898 See 1.4.1.6. 456 the suppression of African females. The Court found that ubuntu emphasises sharing, co-responsibility and the mutual enjoyment of rights. Judgments of the Supreme Court of Appeal did not contribute substantially to broadening the understanding of the concept of ubuntu.899The High Courts too were unable to apply ubuntu as a constitutional value.900 In the City of Johannesburg case901 the High Court described the concept of ubuntu as the capacity to express compassion, justice, reciprocity, dignity, harmony, and humanity. The court maintained that ubuntu is a universalistic ethos which should promote ubuntu equality. In the absence of rigorous jurisprudential deliberation concerning the constitutional value of ubuntu, South African courts assume that ubuntu subscribes to the democratic values, freedom, human dignity and equality. Ubuntu is not, however, just a moral philosophy which propounds humanness, loving, caring and respect. It is Africa’s philosophy of life902; a shared value and belief system of African people in sub-Sahara Africa. This holistic philosophy includes the collective African worldview on culture, community, religion, values, justice and the law. African sources confirm that ubuntu is not a moral philosophy, but a holistic religious philosophy. Whereas a moral philosophy regulates the relationship between beings on a horizontal level, a religious philosophy regulates the relationship between “being and (spiritual) Being” on a vertical level.903 Extra-legal sources define ubuntu904 as an ancient African worldview based on “morality” and values found in traditional African societies south of the Sahara. Ubuntu philosophy originated from the ancient Egyptian gods and was dispersed 899 See 4.4.2. 900 See 4.4.3. 901 See 4.4.3.3. 902 See 4.6. 903 See 4.11.16. 904 See 4.5. 457 throughout Africa when African people migrated to sub-Saharan Africa, West Africa, East Africa and South Africa. African sources agree that the word humanness does not convey the meaning of ubuntu, as ubuntu resists the dictatics of Western logic. Oruka’s Four Trends typify ubuntu as ethnophilosophy. Ubuntu represents the collective philosophy of traditional African people best described as umuntu, ngumuntu ngabantu: “I am a person through other persons”. As ethnophilosophy, or ubuntu, it is impossible to discern between ubuntu philosophy and African Religion. Oruka defines this indigenous collective philosophy as a form of religion. Ubuntu is described as the essence, crux or root of African philosophy and is reflected in African traditions, culture, customs, beliefs, values, justice and laws. It is generally perceived as the shared value and belief system of traditional African societies. Ubuntu is rooted in traditional African values, African Religion and community as suggested by Senghor, Kenyatta, Nkrumah and Nyerere. As a closed society the defining characteristic of ubuntu is strong communiatarianism.905 Strong communitarianism views the African community as the source of its unique values. Ubuntu’s unique community906 is based upon unity of spirit, trust, openness, caring, sharing, respect and the “cult of the ancestors”. The concept of extended family907 plays a crucial role in ubuntu reality. Unlike Western nuclear families, the African extended family includes the living dead (ancestors), the living and the yet to be born. Ubuntu reality is dependent upon solidarity908 and consensus in the community. Freedom of expression is paramount at meetings as those attending all have the opportunity to say their say. Ubuntu relies on consensus democracy and 905 See 4.7. 906 See 4.7.1. 907 See 4.7.2. 908 See 4.7.3. 458 contrasts with Western democracy and majority rule. In contrast with Western liberalism, the welfare of the group in ubuntu reality is paramount over that of the individual; human rights are therefore secondary to group rights. African individuals are free to make ethical choices, but their choices are subordinate to the judgment of the ancestors. In contrast to Western liberalism which perceives even a baby as a person with rights, personhood is not attained at birth in ubuntu reality. Individuals909 in ubuntu reality are gradually shaped into human beings or personhood by participating in various prescribed rites throughout their lives. Everything in ubuntu reality has to be conducted according to rules, rites and taboos prescribed by ancestors. African Religion910 is central to traditional African life and underlies the ubuntu worldview. As a religiously-based philosophy, ubuntu is a set of rules for the living and the dead. The centrality of African Religion in this philosophy dictates all aspects of ubuntu reality. Ubuntu is regulated by the interplay of spiritual forces of the African spiritual universe.911 Strangers cannot join African Religion and no individual member has the right to reject African Religion; to do so would cut the individual off from traditional African society. The African spiritual universe consists of God, positive ancestral spirits, positive oracular nature spirits and evil spirits. It is believed that the values912 of ubuntu originated in Ancient Egypt and that the Maat beliefs and values were transferred by word of mouth throughout Africa. Sources confirm that the values of African societies are the same across the board and that these values are based upon African Religion. Although it is generally perceived that values are universal913, ubuntu’s core values, viz. caring, sharing, respect and compassion, have a different value content from universal values. African intellectuals confirm the hermeneutical dilemma they experience 909 See 4.7.4. 910 See 4.8. 911 See 4.8.1. 912 See 4.9. 913 See 4.9.1. 459 when having to describe ubuntu values as both universal and unique. According to them, all values are supposed to be universal, but they perceive a marked difference between Western and ubuntu values. Ubuntu values are practised on a much deeper level than universal Western values. In contrast also with Western values which pertain only to the living, ubuntu values are handed down by the living dead, or ancestors. The concept of ubuntu as justice914 contrasts with the Western concept of justice. In contrast with Western justice, ubuntu justice is meted out by humans and ancestral spirits. Ubuntu justice is derived from ancient Egypt’s Maat prescriptions of truth, justice and righteousness. Maat is a code of practice of the ancient Egyptian gods to which a person must adhere. Maat,915 like ubuntu, represents cosmic justice and upholds the belief in reincarnation. It is believed that a person who lives according to Maat’s prescribed moral laws will receive justice by becoming an ancestor and receiving the opportunity to reincarnate into the tribe, community and family. Justice in ubuntu reality is meted out by the tribal court, ancestors and elders. Elders916 represent truth in the family and live in close proximity with the ancestors. Elders are responsible for giving advice and counsel, for conducting mediations and handling disputes in tribal courts. The central concern of ubuntu justice is to restore equilibrium, peace and harmony within the extended family of the community as soon as possible, to appease the ancestors. In contrast with Western justice917, ubuntu justice is not concerned with retribution or imprisonment, but seeks reconciliation and restoration between parties. Reconciliation is not always sought where disputes involve strangers as ubuntu justice does not apply to strangers. Compensation for damages is paramount; 914 See 4.10. 915 See 4.10.1. 916 See 4.10.2. 917 See 4.10.3. 460 however, it is dependent upon the legal status of the person affected. Ubuntu justice does not rely on a police force and accommodates revenge and killing. Ubuntu regulates traditional African societies by means of customs, laws, taboos and traditions which community members have to observe.918 In contrast with Western law, ubuntu protects the rights of the group and not the individual. Sources confirm that ubuntu is so central to life in traditional African societies that it functions as the Constitution919 of traditional societies throughout Africa. African law consists of religious rules handed down from generation to generation under supervision of the ancestors. African sources perceive ubuntu philosophy of law as the continuation of religion as African law is inextricably bound to African Religion. Although the living can lay down laws, ancestors have to authorise these laws. It is an offence against God and the spirits to break African laws and taboos. As the individual plays a subordinate role to community, African law applies firstly to the community, and secondly to the individual. Numerous African sources confirm it is impossible to separate ubuntu from African Religion. The fact that ubuntu represents a religious philosophy and not a moral philosophy poses a dilemma to South African Courts. As section 15(1) of the South African Constitution guarantees freedom of religion, belief and opinion Courts should take care not to favour a particular religious philosophy over others. The concept of equality in ubuntu reality differs profoundly from the Western notion of equality. In contrast with fundamental human rights which award each individual equal rights, ubuntu equality is meted out in accordance with the person’s status and hierarchy920 within the African community. Whilst ancestors, elders and males are at the top of ubuntu hierarchy, females, children and slaves feature at the bottom of this hierarchy. Mentally ill persons have no legal status. African law, like African Religion and African justice, does not apply to strangers. 918 See 4.11. 919 See 4.11.1. 920 See 4.11.2. 461 Strangers921 are not looked upon as equals or brothers in strong communitarian societies but will be shown hospitality as hospitality is a “fundamental African value” of ubuntu. Because African law primarily recognises group rights of the community922, individual rights can only be justified in terms of the rights of the community. As African law gives priority to duties and not rights, African law is said to be “the negation of Western law”. Whereas the Bill of Rights guarantees fundamental human rights to all individuals, African law provides group rights and perceives fundamental human rights as secondary to group rights. It must be noted that African intellectuals and current judges lobby for the protection of African law in order to preserve African beliefs and values.923 Whilst the Constitution dictates that indigenous law must be in line with Constitution, sources maintain that the Constitution must be in line with African law. African feminists924 speak out against ubuntu’s oppressive patriarchal worldview. The social hierarchy permitted in ubuntu reality grants males power over females. African feminists allege that through marriage African women become the property of African males and consequently suffer gender based violence, viz. marital rape and domestic violence. African feminists posit that women suffer opression because the ancestors placed men in a superior position over women. They posit the social status of African women and their culturally prescribed roles affect their economic participation. African feminists maintain that, notwithstanding the fact that polygamy is derived from the ancient Egyptian principles of Maat, it threatens the reproductive rights of African women and contributes to the rampant spread of STIs and HIV/AIDS. African feminists contend that hospitality, a “fundamental African value” exploits female sexuality and violates women’s rights to human dignity and that virginity testing violates women’s rights to privacy and bodily integrity. As ubuntu does not advocate gender equality, it is clear that ubuntu does not subscribe to either regional or 921 See 4.11.3. 922 See 4.11.4. 923 See 4.11.5. 924 See 4.12. 462 international human rights mechanisms. With the support of South African Courts, the Protocol to the African Charter on Human and People’s Rights of Women in Africa925 will hopefully aid African women in their struggle against ubuntu’s patriarchal oppression of African women. The voices of the African Other stand testimony to the fact that ubuntu does not represent all modes of African thought and legal thinking. Ubuntu represents traditional African thought, African law and African legal thinking. The thoughts of modern Africans, African feminists and African theologians do also not ipso facto represent Western thought and legal thinking. As universal Western philosophy is currently still being regulated in “pass law categories” it is comprehendable why professional African philosophers and African feminists maintain their “philosophical apartheid”. African feminism confirms that ubuntu’s unique collective philosophy has prevailed in traditional African societies. The philosophies of the marginalised Other, viz. ubuntu and African feminism, bring testimony of the existence of indigenous Africa’s ancient unique collective philosophy. Although ubuntu has been eroded by a myriad of factors it is not extinct. As a marginalised philosophy ubuntu stands testimony to the fact that philosophy is not a universal enterprise. The Constitutional Court set a precedent by fusing Western law and legal thinking with African thought and legal thinking. However, by including the concept of ubuntu in South Africa’s jurisprudence the Court has opposed South Africa’s Western Constitution with its universal values and fundamental human rights with Africa’s Constitution. Africa’s Constitution represents a patriarchy, unique values and is embedded in African Religion. Whereas the South African Constitution originates from human legislatures, the African Constitution originates from spiritual legislatures. Whilst South Africa’s 1996 Constitution, Act 108 of 1996, complies with all international and regional human rights mechanisms, the same cannot be said of Africa’s Constitution. South Africa’s Bill 925 See 4.12.1. 463 of Rights enshrines the rights of all people in South Africa and affirms their democratic rights (and values) of human dignity, equality and freedom. African sources confirm that South Africa’s democratic values of equality and human dignity are not paramount in ubuntu reality where patriarchy, hierarchy and status prevail. According to these sources the African Constitution erodes inter alia sections 9 and 10, the equality and human dignity clauses of South Africa’s Constitution as no females, homosexuals, lesbians, children or slaves are viewed as equals in ubuntu reality. Sources confirm Africa’s Constitution does not comply with International human rights mechanisms or the regional gender mechanism viz. the Protocol to the African Charter on Human and People’s Rights of Women in Africa. Despite the fact that it has been suggested that the South African Constitution must come in line with African values926, such a suggestion is not practical. Ubuntu, Africa’s ancient philosophy of life, is forced to come in line with the Protocol to the African Charter on Human and People’s Rights of Women in Africa as well as international human rights mechanisms. The Constitutional Court has to be lauded for its judgment in the BHE case.927 In its judgment the Court contended that the rule of male primogeniture is unconstitutional and incompatible with the Bill of Rights. This case, however, depicts only the tip of the iceberg. There is not only one rule in African jurisprudence which can be linked to patriarchy and the suppression of African females, but an entire philosophy. It is very sad but true: ubuntu is unconstitutional and incompatible with the Bill of Rights. As in the case of other patriarchal religious philosophies, ubuntu values do not necessarily comply with the Constitution in general and certainly not the Bill of Rights in particular. Ubuntu does not comply with the values prescribed for a democratic society in sec. 39(1) (a) of the Constitution. It is important to note that whilst sec. 15(1) of the Constitution guarantees freedom of religion and perceives all religions equal, this 926 See 4.11.5. 927 See 4.4.1.6. 464 study stands testimony to the fact that the Court priviledges values of ubuntu’s religious philosophy of life above values of other religious philosophies. If the Court considers values of ubuntu, why not also consider religious values of Christianity, Rastafarianism, Islam and other religions? In the Baloro case928 the Court maintained that judges have the additional role of social engineers and social and legal philosophers to promote values referred to in sec. 39 of the Constitution. As the history of jurisprudence is proof of the fact that judges are not politically neutral, judges have to weigh their allegiance to either fundamental human rights or patriarchy. To those who aspire to uphold fundamental human rights, as required by the South African Constitution, the following quote is addressed to you as the social engineers of our time: “It seems to me there is always the silencing of the African women’s voice. And as I get older, I am very sad to see that there is no one to protect us or fight for us. We are very alone” (The activist Boof cited in Stewart, 2005: ix). Postmodernism advocates every philosophical view is equally significant. Ubuntu’s ancient philosophy of life is, therefore, as significant as the philosophy of the West. In line with this postmodernist notion, the Constitutional Court, African Renaissance, the Moral Regeneration Movement, the Ubuntu Pledge, the Heartlines Project and other programmes throughout South Africa are currently aspiring to revive ubuntu’s ancient philosophy of life and accompanying values. Whilst national and regional efforts are made to revive ubuntu, African feminists, African theologians and modern Africans heed that ubuntu does not guarantee fundamental human rights. African sources maintain ubuntu creates hierarchies, inequalities, an Other and its values fuel inter alia ethno chauvinism929: inequality930, sexism931 and xenophobia.932 928 See 4.4.2.1. 929 See 4.5. 930 See 4.11.2. 931 See 4.12. 932 See 4.11.3. 465 International and regional human rights and gender mechanisms, viz. the Protocol to the African Charter on Human and People’s Rights of Women in Africa, and South Africa’s Western Constitution require compliance with universal values. As in the case of other patriarchal religious philosophies in South Africa, viz. Christianity, Islam and Judaism, ubuntu and its unique religious values has to come in line with the South African Constitution. Deconstruction of African philosophical values in terms of ubuntu confirms that ubuntu represents the ancient collective philosophy of traditional African societies in sub-Sahara Africa. It has been established that ubuntu values have been eroded but are not extinct and that ubuntu represents a religious and not a moral philosophy of life. This aspect poses a dilemma to South African courts as sec. 15(1) of the Constitution guarantees freedom of religion; therefore, South African courts should not give preference to certain religious values in its deliberations. Ubuntu is perceived as traditional Africa’s Constitution and is inseparable from the “inseparable trinity” and African Religion. It has to be noted that African feminists, professional African philosophers, African theologians and modern Africans oppose the ancient patriarchal worldview of ubuntu. They perceive ubuntu as “outmoded and irrelevant in modern day Africa”. African Philosophical Values and Constitutionalism: A Feminist Perspective on Ubuntu as a Constitutional Value achieved the following main goals: firstly, it demonstrated that ubuntu exists as the collective religious philosophy in indigenous African societies; secondly, ubuntu’s unique values do not promote universal Western values that underlie South Africa’s open and democratic society based on human dignity, equality and freedom as referred to in sec. 39(1) of South Africa’s Constitution. Ubuntu is not in line with international or regional human rights or gender mechanisms, viz the Protocol to the African Charter on Human and People’s Rights. Ubuntu botho’s unique “fundamental African value” 466 of hospitality, its entrenched gender inequality and patriarchal hierarchy are not “in consonance with the values of the Constitution generally, and those of the Bill of Rights in particular”. South Africa’s “seamless text” of constitutional theory is a myth. 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Group Areas Act 36 of 1966 Intestate Succession Act 81 of 1987 Medicines and Related Substances Act 101 of 1965 National Building Regulations and Building Standards act 103 of 1977 Prevention of Family Violence Act 113 of 1993 Prevention of Illegal Eviction from an Unlawful Occupation of Land Act 19 of 1998 499 Promotion of National Unity and Reconciliation Act 34 of 1995 The Probation Services Amendment Act 35 of 2002 Transkei Marriage Act of 1978 INTERNATIONAL AND REGIONAL LEGAL MECHANISMS African Charter on Human and People’s Rights of 1986 Convention for the Elimination of Discrimination Against Women of 1981 International Convention on the Elimination of all Forms of Racial Discrimination of 1969 International Convention on the Suppression and Punishment of the Crime of Apartheid of 1974 International Covenant on Civil and Political Rights of 1976 Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa of 2005 Rome Statute 1998. United Nation’s Charter of 1948 Universal Declaration of Human Rights of 1948 Vienna Declaration on Crime and Justice of 2001 500 INTERNET http://www.uk.encarta.msn.com/encyclopedia_761574677_77_Western.htmi{a}. Retrieved 15 March 2007. http://www.en.wikepedia.org/wiki/Congo_Free_State{b}. Retrieved 12 September 2007. http://www.en.wikepedia.org/wiki/Belgian_Congo{c}. Retrieved 12 September 2007. http://www.sahistory.org.za/pages/africa/20thcentury-africa/congo/intro.htm{d}. Retrieved 12 September 2007. http://www.quodlibet.net/foutz-racism.shtml. Retrieved 18 October 2007. VIDEO BBC. 2002. AIDS the Dying Game. Distributed by UNAIDS. 501 ABSTRACT Since 1995 the South African Constitutional Court has contended that it would no longer entertain only Western thought and legal thinking but also African law and legal thinking as the values of all sections of society must be taken into account in South Africa’s open and democratic society. The Court acknowledged ubuntu as part of South Africa’s jurisprudence and fused Western and African jurisprudence into a new South African “rainbow” jurisprudence. But beneath this miraculous fusion lies a volatile philosophical relationship of two ancient patriarchal philosophies which resulted in the erosion of African values and innumerable injustices against the African Other. Like Greek philosophy, Western philosophy has always been plagued by philosophical prejudice towards women, slaves and barbarians. Racism, however, only entered the equation of Western philosophy when the West had to justify their trade in twenty million African men, women and children as African chattel slaves in the seventeenth century. This crime against humanity was justified in the name of Christianity by philosophers and clergy alike. Whilst the Enlightenment philosophers proclaimed human equality and individual liberties in the eighteenth century they also fuelled a “new racism” which stereotyped Africans as inferior and subhuman. Not only did the Otherness of Africans result in racial segregation in the United States of America in 1883, it also legitimised Western colonisation of the “Dark Continent”. Under the banner of the cross, Western colonial powers embarked on their Christian civilising mission of the African continent: destroying African trade patterns, ancestral lands, self government, tribal systems, African law, cultures, belief systems and values. It was, however, not these factors, the colonial genocides in Congo Free State and German South-West Africa or Apartheid South Africa’s crime against humanity which resulted in the lingering inferiority complex Africans experience on the African continent, but the most destructive weapon wielded by the West: the “cultural bomb”, which eroded African values. 502 The publication of Temple’s Bantu Philosophy in 1945 did not only bring proof that traditional Africans have a collective philosophy but also sparked a heated international and national philosophical debate. In an attempt to structure the discourse on African philosophy Oruka introduced his six trends in African philosophy. According to Oruka, ethnophilosophy (or ubuntu) represents the collective philosophy, or ubuntu, of either an African community or Africa as a whole; sage philosophy illustrates that rational thought prevails in philosophical sages; political philosophy contains the liberation philosophies of African leaders who envisaged the rekindling of eroded traditional African values; Negritude is described as the “sum total of African values”; professional African philosophy is African philosophy in the strict sense produced by African philosophers; the hermeneutical approach attempts to reconstruct African reality in post-colonial Africa; and the literary trend illustrates the devastating effect of Western subjugation of the African Other. The debate on African philosophy illustrates that there is no homogenous way of African thinking and that professional African philosophers, modern Africans, African theologians and African feminists reject traditional African modes of thought. The Constitutional Court claims ubuntu values are in line with the Constitution in general and the Bill of Rights in particular but this study brings evidence to the contrary. Not only are ubuntu values represented in traditional Africa’s closed, strong communitarian societies unique and not universal, but ubuntu “moral philosophy” proves to be a religious philosophy. Whilst sec. 15(1) of the Constitution guarantees freedom of religion one has to question why the Court entertains a religious philosophy such as ubuntu in its deliberations and not other religious philosophies. The Constitutional Court, African Renaissance, the Moral Regeneration Movement, the Ubuntu Pledge, the Heartlines Project and other programmes throughout South Africa aspire to revive ubuntu’s eroded traditional African values. African feminists, African theologians and modern Africans reveal that 503 ubuntu fuels inequalities, sexism and xenophobia and that ubuntu does not comply with sec. 39(1) of the Constitution. Ubuntu is neither in line with international or regional human rights and gender mechanisms nor “the Constitution in general and the Bill of Rights in particular”. 504 OPSOMMING Die Konstitutionele Hof het in 1995 besluit om die waardes van alle sektore van Suid-Afrika se oop en demokratiese samelewing in ag te neem; nie slegs Westerse denke en regsfilosofie nie maar ook Afrika reg en regsfilosofie. Met die erkenning van ubuntu as deel van Suid-Afrika se regsfilisofie, het die Hof Westerse en ubuntu versmelt in ‘n nuwe Suid-Afrikaanse “reënboog” regsfilosofie. Maar onder hierdie oënskynlike samesmelting word ‘n plofbare filosofiese verhouding tussen twee oeroue patriargale filosofieë verskans wat die erodering van Afrika waardes en ontelbare ongeregtighede teenoor die Afrika Ander tot gevolg gehad het. Soos Griekse filosofie, het Westerse filosofie vooroordele teenoor vroue, slawe en barbare gehandhaaf. Rassisme het egter eers in die sewentiende eeu deel van Westerse filosofie geword toe dit die handel in twintig miljoen Afrika slawe moes wettig. Hierdie misdaad teen die mensdom was gewettig in die naam van Christus deur filosowe en die Christen kerk. Terwyl die filosowe van die Verligting gelykheid en vryheid verkondig het in die agtiende eeu, het hulle ‘n “nuwe rassisme” aangevuur wat Afrikane as minderwaardig voorgestel het. Nie alleen het hul andersheid aanleiding gegee tot ‘n beleid van rasse segregasie in die Verenigde State van Amerika in 1883 nie, maar dit het ook gelei tot die wettiging van kolonialisasie van die Afrika vasteland. Onder die vaandel van die kruis het Westerlinge hul kerstening en beskawing van die Afrika vasteland onderneem en gevestigde Afrika handelsnetwerke, die gronde van die voorvaders, selfregering, stamstelsels, Afrika reg, kulture, geloofstelstels en tradisionele waardes erodeer. Dit was egter nie bogenoemde faktore, die volksmoorde in die Kongo Vrystaat en Duits Suidwes-Afrika, of apartheid Suid-Afrika se misdaad teen die mensdom wat Afrikane se voortslepende minderwaardigheidgevoel tot gevolg gehad het nie, maar die mees verwoestende wapen wat die Weste op Afrika gewerp het: die “kultuur bom”, wat Afrika waardes erodeer het. 505 Met die publikasie van sy Bantu Philosophy het Tempels nie alleen bewys dat Afrika oor ’n kollektiewe filosofie beskik nie, maar ook ‘n hewige filosofiese debat internasionaal en nasionaal ontketen. In ‘n poging om die debat oor Afrika filosofie te struktureer het Oruka sy ses indelings van Afrika filosofie bekendgestel. Sy indeling is as volg: etnofilosofie stel die kollektiewe filosofie, of ubuntu, van die hele Afrika of ’n tradisionele Afrika gemeenskap voor; “sage philosophy”, of die filosofie van tradisionele wyses, bewys dat rasionele denke tog in Afrika bestaan; politieke filosofie verkondig die bevrydingsfilosofieë van Afrika leiers wat Afrika sosialisme, -humanisme en -waardes bevorder; Negritude beskryf die totaal van Afrika waardes en verdedig die feit dat Afrika wel n geskiedenis en unieke filosofie beskik; die hermeunitiese benadering rekonstrueer Afrika realiteit na die koloniale era; en letterkundige filosofie illustreer die verwoestende effek wat Westerse liberalisme op Afrika en sy wardes gehad het. Die debat oor Afrika filosofie bewys dat Afrikane nie eensgesind is in hul denkwyse nie. Professionele Afrika filosowe, Afrika teoloë, moderne Afrikane en Afrika feministe verwerp die tradisionele denkwyse wat kenmerkend is van tradisionele gemeenskappe in Afrika. Die Konstitusionele Hof beweer dat ubuntu waardes die Grondwet in die algemeen en die Handves van Menseregte in die besonder onderskryf. Hierdie studie bring egter bewyse tot die teendeel. Nie alleen is ubuntu waardes in sterk kommunitariese gemeenskappe uniek en nie universeel nie, maar ubuntu “morele” filosofie blyk in werklikheid n godsdienstige filosofie te wees. Die vraag word gereg gevra waarom die Grondwet slegs godsdienstige waardes van ubuntu in ag neem tydens beredenerings maar nie ander godsdienstige waardes nie. Dit is in stryd met art 15(1) van die Handves van Menseregte. Terwyl die Afrika Rennaissance, die Morele Heropbou Beweging, Ubuntu Belofte, die Heartlines Projek en talle programme oor Suid-Afrika heen poog om ubuntu waardes te laat herleef, beweer Afrika feministe, Afrika teoloeë en moderne Afrikane dat ubuntu ongelykheid, seksisme en vreemdelingehaat 506 aanvuur en nie voldoen aan art. 39(1) van die Grondwet nie. Ubuntu is nie alleen nie in lyn met internasionale en regionale menseregte instrumente nie maar ook nie met “die grondwet in die algemeen en die handves van menseregte in die besonder” nie. 507 KEY WORDS • African Feminism • African Jurisprudence • African Philosophy • Deconstruction • Postmodernism • S v Makwanyane • Ubuntu • Values • Western Feminism • Western Philosophy 508