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Who is best suited to Africanise our judicial system, (Moseneke or Hlophe)?
Amongst many who have lobbied for the honorable Judge Hlophe to ascend to the highest office of being chief in our judicial system, some have argued amid other things that he is the best candidate to Africanise our legal system. I guess this solicitation is to a larger extent informed by his outspokenness and well publicized stance on "inter alia" the de-latinazation of South African law in order to simplify it, make it relevant and accessible to the majority of the country so as to illustrate consideration and sensitivity to their culture.
This endeavour indeed seems noble regardless of the reproachability of who proposes it and what are our reservations about the character at hand. Thus in the advent of the legitimate contentious debate about the dissipation of foreign languages in the South African law instigated by honorable Judge, it is fitting that his advocacy be tackled with fair critique which engages the argument on its own credentials without gratuitously being fallacious.
Nevertheless to thwart the risk of such a noteworthy discourse being overlooked, thus escaping us, due to an unbearable character of the individual which might be based on logical grounds, such as, not committing the "fallacy of ad hominem"; introducing an untarnished character might be advisable if not necessary.
The learning of a foreign language unfortunately does not restrict itself in the learning of the language per se, once wrote Es'kia Mphahlele.
It is indubitable that when Ezekiel Mphahlela wrote this anecdote which has become one of his most celebrated famous quotations had the culture of foreigners as the extramural in mind. For the sake of this article let us restrict the very broad definition of culture with its various often conflicting notorious notions to a few focal phenomena, namely, philosophies, the manner of thought systems, structures, sciences and praxes.
Assuming the same point of departure with Es'kia Mphahlala yet narrowing it down to the legal prognosis, the South African law is overwhelmingly burdened by Dutch, British and Latin language and terminology. Again keeping Mphahlela abreast, it therefore logically follows that those who are not of these descendents like the majority of South Africans are not just subject to the Dutch, British, and Latin languages, but also to the respective cultures, i.e. philosophies, manner of thought systems, sciences, praxes of these particular groups of people.
This is very much true if we consider how much language is laden with culture, but further, how much in turn language creates culture. If this reciprocity verily is the case, that language is not only an aspect and consequent of culture but also creates culture, it has serious bearing on the majority of South Africans.
Especially if we consider that in our South African state the law is fundamental and should thus determine how we conduct ourselves as citizens. The law in a form of the constitution is the pillow of our democracy. Meaning the ultimate governing power that we all South Africans should submit to is tainted by not just the languages of colonial masters but also by their cultures.
To appreciate better the irony of our constitutional democratic freedom let us tease out some implications and ramifications by explicitly considering distinctive patterns which western and African law tend to assume. Let us employ as apparatus the philosophy of law, the structures of the legal systems and its practical utility in human society.
What is striking in this project are the many observable contradistinctions between the west and Africa. Consider simple philosophical views of law in each culture. The west fundamental seeks to punish with the most appropriate measures possible, such as retribution and ostracizing. What is central to Africa on the other hand is to remedy with possible restorational measures such as reconciliation and reparation. Of course recently there has been complex interaction between these two schools of thoughts, however the fundamentals remain unaltered.
This is informed by philosophies both the Westerners and Africans adhere to, which in turn influences their belief systems. But the source of differences delves deeply rooted in the fundamental assumptions both parties make about nature. Take for instance the understanding on human nature: for the west human nature is born sinful thus evil, corrupt, weak, dirty, etc. therefore it needs to be cleansed, tamed, civilized, guard, controlled, basically subjected to discipline.
Africans on the other hand do not understand human nature as fundamentally contaminated, though capable of evil, its propensity is good, thus it does not need to be tamed but nurtured to realize its predisposition. This is evidenced by Africans reaction when one has deviated, it is not outright punishment but to mend, since it is believed that the one that has erred fundamental has the capability of doing good which needs to be nourished through remedial measures, not punitive measures.
This contradistinctive comprehension of the nature of human nature influences the legal systems both counterparts form. For the west law is thus meant to be an abstract regulatory system, divorced to the community it is meant to serve. The reason being this community is evil and for the law to duly fulfill its purpose of salvaging evil human nature from itself, it cannot reside in the same evil community, since doing so would be clearly self defeating. Due to human nature being sinful the west deem it fit to have absolute control over it through abstract regulatory law.
They go about doing that through strict regulatory laws. Thus regulation is a pillow of the western system. Regulatory approach in order to subdue and attain absolute control over human nature and behaviour tend to make law static. This for Africans does not apply in fact it would be imprisonment in the African setting, since law for Africans is meant to facilitate human lives and relations to flourish, not regulate to maintain discipline.
In fact for Africans law is subject to them and is meant to facilitate their lives, not have an abstract life of its own to which they should abide by. But for the westerner's project this is essential, law is their only saviour to salvage human nature from its sinfulness. Thus it is holy on its own, since it is through law that man can be saved. So to stop in front of a red robot while there is no oncoming car is the right thing to do according to the west.
Now this should not be misunderstood as a cry for flexibility in western law, no, it is a point intended to demonstrate fundamentals which underlay the western law. The west can have flexibility in their static law, but static-ism is fundamental for them to achieve stability since human nature needs to be tamed. Thus they need straight precise laws with no ambiguity and variability. Yes they might now and then if it does not cause instability allow flexibility, but it's subject to stable static-ism. While for Africans the dynamism is fundamental and the static-ism is a rare exception.
This then brings us to another distinction of the two, the issue of establishing stability in the society through law. Africans seeks to achieve stability by being in harmony with their dynamic nature and that of human society. For instance, it is not necessary for Africans to abide by the red robot sign if there is no oncoming car, since for Africans the law is not just abstract regulation which is a holy end in itself, but it is meant to serve the African not the other way round. Human nature does not need to be guard and regulated by law, but to be facilitated to flourish and explore the aspect of its infinite good nature.
But for the west the opposite is true, to achieve stability you must tame human nature. How do you go about doing that? You regulate it by law. What is the nature of regulatory law? At best you fix human behaviour to the static point, at least you render it predictable. How do you achieve this? You write unequivocal explicit precise rules, which should be binding at every time not sometimes. Now and then of course you allow some flexibility, but this is clearly an exception, thus it proves the rule rather than negate it.
Again unlike the west whose law is produced in some detached houses such as parliament, court, etc. and it is a product of a few elite specialists who decides for the entire society. For Africans the converse is true in its totality. Law is produced within and by the community it serves, within the community itself not in some remote areas by the elite. Note the categorization of the world by the west, one thing is separate and isolated from the other. This further influences their sciences and philosophies, such as classic logic and analytic philosophy to name but a few.
This would bring us to another contradistinction which lays in their manner of thought systems. For instance, for communal Africans the law was not fixed, static, and remote to the community it was meant to serve. Thus the current problem of inaccessibility of law is not only insensible in African culture, it simply does not exist period. Since the kraal just outside your house fulfilled the duties now assumed by the court. So the concern of some community members not being able to access the law thus justice, is foreign to African thought.
But in the western setting, this has virtually become quite natural. Can you imagine the absurdity of in-access to justice because you can't afford the process of litigation in courts, how incredulous is this. Even in the case of the state free prosecutor or defendant, the matter is not resolved, since the problem is intrinsically embedded in the structure of the system itself not the processes.
The last consideration elaborates on the static-ism and dynamism between the two counterparts. For the west the law is written in stones, proverbial and practically. While for Africans the exact opposite holds. In an African setting councilors and tribunals represent dynamic law, whereby they find a unique solution to every situation according to its sensitive demands. Sometimes even finding varying outcomes to similar cases in a form of a verdict. Not as to be inconsistent but as to take all considerations and demonstrate sensitivity to the subject presenting the case, the peculiar individuality of the subject, the particular context and change in nature itself.
In the midst of the debate therefore of who is better suited to africanise the South African system. Primarily it goes without saying that transformation needs to go beyond race such as having blacks in the legal system. Furthermore sincere meaningful transformation needs to go beyond the languages used in the legal system, it needs to engage the cultures, i.e. philosophies, manner of thought systems, sciences, praxes etc. What I am insinuating is that the honorable Judge Hlophe JP was in actual fact partial touching the tip of the iceberg in calling for the languages to change. What is paramount is the complete overhaul of foreign justice cultural system in Africa, not just one aspect (e.g. language) which is interlinked with other factors as illustrated above; So doing in fact runs the risk masquerading and legitimizing the legal system as transformed while the fundamentals remain unaltered.
Therefore, the kind of a Chief judge we need is definitely not a blatantly blunt one with shallow and myopic diagnostic insight. But someone whose alertness and sensibility suffice to unearth latent subtly intrigues, thus would refrain from unwise and imprudent judgments. Someone who is equally to the task of beginning the process of transforming the judicial service system with finesse to the point of reflecting our population composite philosophies, manner of thought systems, structures, sciences, praxes, etc. To take us through this type of transformation, we need an irreprehensible Chief Judge of Justice with a strong reputable Africanist stance.