To be or not to be Roman Dutch in Southern Africa! Part One

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ON March 9 2014 The Sunday Mail published a report in which the Vice-Chancellor of the Great Zimbabwe University (GZU), Professor Rungano Zvobgo, indicated that the construction of the Herbert Chitepo Law School was nearing completion as part of fulfilling President Mugabe’s directive.
He went on to say: “We want to establish a law school with a difference.
“We want a law school which will appreciate that we are teaching law in the context of African culture.”
As far as one can tell this announcement has been received with a deafening silence by the public, more so by the learned law fraternity much to the surprise of the general public keen to grasp the significance of this latest development from Masvingo.
Those of us not lawyers are still wondering whether this announcement by Zvobgo is no big deal worthy commenting about.
Or is it that our learned friends are still waiting for more details in regard to the approach and direction which the Hebert Chitepo Law School is likely to take vis-a-vis the Roman Dutch law which has greatly influenced the study of law not only in South Africa and Zimbabwe, but also in Namibia, Lesotho, Swaziland and Botswana.
In the spirit that law, like economics, is too important to be left in the hands and at the mercy of the so-called experts, the following observations are deliberately meant to generate debate about the significance of what is about to happen at GZU.
First: It is important to state categorically that the establishment of a law school in honour of Herbert Chitepo who played a key role in rescuing those African nationalists arrested and persecuted by the colonial regimes in the then Rhodesia is long overdue!
At least the GZU has done something concrete to acknowledge this giant revolutionary who, upon realising that courtroom challenges to the colonial status quo would not succeed in liberating Zimbabwe, worked hard and long to set up a revolutionary military machine which, together with ZIPRA, ultimately defeated the oppressors’ hands down!
Second: It is also important to applaud the GZU for recognising the necessity to study law in the context of African culture.
Being a university deliberately designed with a bias towards matters cultural and heritage- oriented, it would have been surprising for it to approach the study of law as the University of Zimbabwe has been doing –that is, studying law from a Roman Dutch point of view with hardly any serious scholarly attention paid to the living law which largely influences the attitudes, outlook and end values of the majority of Africans in Southern Africa.
To most Africans, matters to do with what is right and wrong, just and unjust, good and bad, moral and immoral, ethical and unethical etc are not, in the strict philosophical sense, automatically influenced by the Roman Dutch law which rules the roost in their official judiciaries, but by the living law of Southern Africa which the colonialists labelled as ‘customary law’.
Third: The major reason why Roman Dutch law has remained incongruous, though central in influencing official judiciary systems is that it was introduced into Cape Colony in 1652 as the white man’s law which together with some hefty chunks of English common law became the chief tool with which white settlers in Southern Africa consolidated their world view at the expense of and almost to the exclusion of African norms and values!
Put differently, Roman Dutch law and some aspects of English law played a key role in the erosion and subsequent distortion of an African world view!
Fourth: In light of the above, the dominance of Roman Dutch law long after the demise of settler regimes in Southern Africa has perpetuated a sense of alienation between the African majority and the inherited official judiciaries, that is, notwithstanding legal changes brought about by post-colonial statutes and court decisions.
Fifth: A few examples to illustrate the incongruities cited above are in order here!
Debating the merits and or otherwise of the Legal Age of Majority Act on September 12 1984, the then Prime Minister-now President of Zimbabwe said that if his sister were to get married, he would demand lobola and if the intended husband pointed to the Katekwe vs Muchabaiwa judgment which implied there was no need to pay lobola he would say, “OK that is the judgment.
“Do you want to marry my sister or not?”
Evident in this instance is the incongruous relationship between the Roman Dutch law now masquerading as the general law and the living law, now called customary law!
Another example concerns murder cases in an African context!
Many stories are narrated in Zimbabwe of murderers whose families proceed to compensate close relatives of the deceased by paying them many herd of cattle, notwithstanding the fact that the murderer would have been tried and sentenced either to life imprisonment or death under Roman Dutch law!
Why, one may ask?
Well, to avoid Ngozi which is believed capable of wiping off a whole clan or lineage belonging to the murderer!
In this instance, the living African law is more concerned with compensation and or restorative justice which ensures the continuity of the lineage of the deceased as compared to Roman Dutch law which is preoccupied with retributive justice not even on behalf of those who have lost a loved one, but on behalf of the state!
One can argue that the belief in Ngozi has done far more to humanise African society in a way which policemen and judicial courts meant to underpin Roman Dutch law will never match for a long time to come!
Apart from murder and marriage cases one can go on to cite fundamental anomalies which continue to haunt Southern Africa and its judiciary systems in many areas involving succession and inheritance issues, etc!
Sixth: What emerges here is that Southern Africa continues to host two un-reconciled judiciary systems, one, a wholesale imposition from outside and regarded as such by the majority, the other a living law which is still to be recognised as the possible heart and soul of African sense of justice!
So far the post-colonial state has adopted and half- developed a choice of law doctrine that allows people in some instances to choose which law applies to them, in the process acknowledging the importance of customary law in a token manner!
What is missing so far is a scholarly codification of law which needs to be done in a manner which reconciles these two bodies of law.
But before this codification can be done serious scholarly questions about the strengths and weaknesses of African living law and its principles have to be identified and understood and this is where the suggested approach to the study of law by GZU becomes interesting!

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