TRADITIONAL DISPUTES SETTLEMENT SYSTEM

MTAKI FRANCIS BENARD

BACHELOR OF LAWS (LL.B)

ABSTRACT

To begin with this Article intends to address various methods of Dispute settlement which were
employed by the traditional African societies in settling disputes arising among the individual
members of the respective society by then. Again the role played by various leaders of kin
groups, and other social groups in enhancing peace and harmonious society where people can co-
exist mutually without the pace of the increasing disputes, in essence some cultures and norms
have attributed positive impact to assist in studying the root of disputes among the traditional
African society. In this Article some citation from various traditional societies in Africa are
included to enhance better understanding of the customary dispute resolution existed by then and
the judicial consideration in traditional disputes resolutions.

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 TRADITIONAL DISPUTES SETTLEMENT SYSTEM
MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

Table of Contents
1.0 TRADITIONAL DISPUTE RESOLUTION .......................................................................................... 3
1.1 THE FEATURES OF AFRICAN DISPUTES RESOLUTION ......................................................... 3
1.2 DISPUTE AND CULTURE ........................................................................................................... 4
1.2.1 UBUNTU ROLE IN AFRICAN ADR ............................................................................................ 4
1.2.3 KING SOLOMONS APHORISM AND DISPUTE SETTLEMENT ............................................. 5
2.0 CUSTOMARY OR TRADITIONAL WAYS OF DISPUTES SETTLEMENT .................................... 6
2.1 THE COMPARISON BETWEEN FORMAL ADR AND TRADITIONAL JUSTICE SYSTEM .. 10
3.0 CONCLUSION ..................................................................................................................................... 11

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 TRADITIONAL DISPUTES SETTLEMENT SYSTEM
MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

ALTERNATIVE DISPUTE RESOLUTION (ADR) IN THE AFRICAN

CULTURAL CONTEXT

1.0 TRADITIONAL DISPUTE RESOLUTION

During the pre-colonial period most of the African societies practiced various methods of
resolving the disputes which occurred among the local members within the societies. By then
people they lived communally in a sense that peace and harmony was considered to be vital
among the societal member in this regard whenever disputes occurs the society as a whole
intervenes to resolve the same. Traditional dispute resolution this is an informal process that
aims to reconcile the relationship between individuals and communities. As intimated earlier it
often involves the entire community in the dispute resolution. The notion of involving the entire
community was ingrained on idea that the can affect the whole society, this was mostly
associated by the cultural norms and beliefs of the societies by then.

1.1 THE FEATURES OF AFRICAN DISPUTES RESOLUTION

The mode of resolving disputes under African justice system was largely based on restorative
justice in a way that seeks to bring parties on a mutual agreement rather that enhancing
punishment. This was mostly attributed by the idea of repairing of the harm caused by the crime
with no any comprise by the disputing parties. Thus several salient feature can be elucidated to
encompass the followings;-

 The dispute by parties is viewed as society dispute

 Focus on reconciliation and restoration of social harmony
 Arbitrators are chosen among the society members
 The rules of evidence and procedure are flexible
 No professional legal representation
 The enforcement of decision is secured through society pressure
 Decision made based on agreements
 Cases need not to be decided alike i.e African traditional justice system are not bound by
the doctrine of stare decisis

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 TRADITIONAL DISPUTES SETTLEMENT SYSTEM
MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

1.2 DISPUTE AND CULTURE

 It should be understood at the outset that the Modern dispute resolution mechanisms
which are applicable as of now are the copy and paste from the African traditional justice
system which are more focused on restorative justice1 with the fewer modifications.

 There is a close relationship between dispute resolution and cultural practices. Culture
has an important role in shaping dispute resolution processes, practices and outcomes.

 Disputing is a cultural behavior and normative approach. To handle these disputes is what
is needed to reduce the pace of increasing disputes. The societal cultures are what mostly
affect the occurrence of disputes in both ways. The Notable legal scholar Merry Sally
Engle contends that "Culture can affect when and how parties enter into conflict, what
conflict means for the individual and the community, the perception of when a conflict
requires intervention of another person, and the expectations placed on the parties to
work things out by themselves."

 It should be acknowledged that Culture is an essential part of conflict and conflict

resolution. Culture communicates various messages and affects relationships, perception
and judgment

1.2.1 UBUNTU ROLE IN AFRICAN ADR

Ubuntu is an ancient African word meaning 'humanity to others'. It is often described as
reminding us that 'I am what I am because of who we all are'. the concept is largely focused on
the communal mode of life in which the indigenous has to participate wholly through sharing,
helping others, un-selfishness and others.

The late Nelson Mandela was regarded as a personification of ubuntu and was remarked
addressing on the concept of Ubuntu in the following statements "in the old days when we were
young, a traveler through our country, would stop at our village and he didn't have to ask for
food or for water. Once he stops the villagers gives him food, entertain him that is one aspect of
ubuntu. But it will have various aspects".

1
Restorative justice is a justice approach that aims to repair the harm caused by a crime by providing a safe space for victims,
offenders, and communities to communicate and address their needs focuses on healing rather than punishment, and
encourages offenders to take responsibility for their action

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 TRADITIONAL DISPUTES SETTLEMENT SYSTEM
MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

However, to better understand the recognition of the term the court in S. V. Makwanyane2
defined it as the "Culture which places some emphasis on communality and on the
interdependence of the members of a community. It recognizes a person’s status as a human
being, entitled to unconditional respect, dignity, value and acceptance from the members of the
community such person happens to be part of...”

The term ubuntu was also extended in the court of Appeal of Tanzania in DPP v.Daudi Pete.3 In
this case, the Court considered the African communal ethic to be"… the coexistence of the
individual and society, and also the reality of coexistence of rights and duties of the individual
on the one hand, and the collective of communitarian rights and duties of society on the [which
in effect] means that the rights and duties of the individual are limited by the rights and duties of
society, and vice versa.

The African communal values (ubuntu) are at best inclined to enhance the solidarity, conformity,
sharing and respect of human dignity which are essential when it comes to African justice system
based on win-win situations.

1.2.3 KING SOLOMONS APHORISM AND DISPUTE SETTLEMENT

History of Alternative Disputes Resolution It is contended that, ADR has been existed long time
ago even before the birth of Jesus Christ. ADR has been in used since King Solomon, as to
biblical theory 990 B.C.4

King Solomon is regarded as one of the most famous practitioner of dispute resolution. He was
born in 990 B.C, as successor to his Farther David. Was the King of Israel from 970- 93 B.C. He
was attributes as the author of the books of Proverbs and Ecclesiastes. When God asked him if he
wished to be given wisdom, wealth or longevity, he chose wisdom. King Solomon was given
many opportunities to utilize his wisdom.

The story is recounted in 1 Kings 3:16-28. Where two young women who lived in the same
house and who both had an infant son came to Solomon for a judgment. One of the women
claimed that the other, after accidentally smothering her own son while sleeping, had exchanged
the two children to make it appear that the living child was hers. The other woman denied this
2
(CCT3/94) [1995] ZACC 3

3
[1993] TLR 22

4
Ventola, S (2018) Profiles in Dispute Resolution-King Solomon retrieved from www.https://ventolamediation.com on 10th
August 2021.

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 TRADITIONAL DISPUTES SETTLEMENT SYSTEM
MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

and so both women claimed to be the mother of the living son and said that the dead boy
belonged to the other.

After some deliberation, King Solomon called for a sword to be brought before him. He declared
that there was only one fair solution: the live son must be split in two, each woman receiving half
of the child. Upon hearing this terrible verdict, the boy's true mother cried out, “Oh Lord, give
the baby to her, just don't kill him!” The liar, in her bitter jealousy, exclaimed, “It shall be
neither mine nor yours—divide it!” Due to that, King Solomon declared the first mother as the
true mother, as a true, loving mother would rather surrender her baby to another than hurt him,
and gave her the baby. King Solomon’s judgment become known throughout all Israel and was
consider an example of the profound wisdom.5

Apart from that, ADR has a long tradition in many of the world societies dating back to 12th
Century in China, England and America.19The Ancient traditional societies around the world
used ADR as a means of solving disputes, and for Africa it was done before the invasion of
colonialists. In such regards evidence and practice shows that, ADR was common among the
societies.

2.0 CUSTOMARY OR TRADITIONAL WAYS OF DISPUTES SETTLEMENT

There are various methods of settling of disputes under customary laws which are still applicable
to date. Most of them are based on the norms and traditions of some societies practicing such
methods attributed by some belief of occurrence of certain things which implies the truthfulness
of the subject matter of dispute. These methods include trial by ordeal, drumming the scandal,
trial by moot, trial by battle, negotiation, mediation and reconciliation.

 Trial by ordeal

This was a judicial practice in which an accused person's guilt or innocence was determined by
subjecting them to a painful or dangerous experience. The goal was to determine the truth with
the help of God.

5
The expressions "splitting the baby" or "cutting the baby in half" are sometimes used in the legal profession for a form of
simple compromise: solutions which "split the difference" in terms of damage awards or other remedies (e.g. a judge dividing
fault between the two parties in a comparative negligence case).

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 TRADITIONAL DISPUTES SETTLEMENT SYSTEM
MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

Examples:

Trial by water: The accused was tied to a rope and plunged into a pool of cold water. If they
sank to the level of the knot, they were considered innocent. If they floated, they were considered
guilty.

Figure A: A woman plunged into water to observe whether she sank or floats.

Trial by hot iron: The accused's wound was examined to see how it healed. If the wound
festered, the accused was considered guilty.

Figure B: An accused before a village court holding a hot iron.

Trial by combat: The victim has to go up against a nobleman toe the death, whoever wins the
battle is considered to be in the right.

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MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

Figure C: The winner is considered not guilty of an alleged offence.

In the case of R v Palamamba Fundikira 6 In this case a trial by ordeal was conducted to
discover who has by whitch craft caused the death of 11 childrens of the first appellant. Four
womens were accused as causatives of the death of the children and to prove their innocence
they were subjected to a traditional test of drinking a traditional medicine called MWAVI. By
itself mwavi is not a poison but when taken with evil mind it turns to poison. Upon taking two
women died and other two vomited. Wamulanda to whom the murder charges relates was
apparently after taking the medicine he was burnt so no any post mortem examination was
achieved to know the cause of death. The appellant ex-hypothesis suggests that if a person was
not a wrong doer after taking the medicine could not die and in absence of any proof this
assertion has negativated the malice afore thought and the conviction and sentence was quashed
and appeal allowed.

The interpretation of the results was key to the trial by ordeal. The community would often have
a good idea of whether someone had committed the crime and would interpret the results
accordingly.

 Drumming the scandal

Under this kind of settlement the disputing parties would contest in a form of songs or dances,
while trying to express their feelings or grievances. At the end the leader of a village or that
group of society would make a decision, based on who sang or danced better than the other, but
also taking into consideration the grievance expressed;

In the case of Torgindi v Mutsweni7 In this case Torgindi accuse Mutseni as a causative of his
marriage breakdown and as a result a dispute arose and the drumming arose. Each part was
ordered to compose and sang a song as loud as he could so that the whole village could hear.
Mutsweni was not a good song composer but he hired a person to compose for him. The
drumming started and went on for more than 3 weeks every day. The village elders then opine
that if the drumming continues it would end up in fighting so the parties were called to prepare
and sing their songs before the elders. The elders after hearing both parties made a decision that
Torgindi won the case but Mutsweni had better songs.

6
[1947] 4 EACA 9
7
5 (1947) 4 EACA 96

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 TRADITIONAL DISPUTES SETTLEMENT SYSTEM
MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

 Trial by moot

Unlike any other moot trials conducted to enhance the law student with court environment
provided with a fictitious case litigating before panel of individual acting as Judges, trial by moot
in the context of customary disputes settlement is simulation of Proceedings before the Village
elders who acted as judges, in which parties to dispute expressed their grievances in adversarial
way.

The Notable case which can shape understanding on this method is the case of Kadume v. Soine
it was a land conflict between Kadume, the son of Makara, and Soine, Makara's half-brother.
Both Kadume and Soine sought to restore the agnatic cooperation established by Mesuji within
their lineage. Kadume's mother had left Makara and went to live with Kadume's uncle, while
Soine took care of Makara. After Makara's death, Soine claimed his land, but Kadume was given
some animals from the estate. A grazing agreement was made between Kadume and Soine, but a
year later, Kadume claimed full possession of his father's land, leading to a quarrel. The lineage
counselor ruled in favor of Soine, prompting Kadume to request an internal moot.

At the internal moot, Kadume argued that as Makara's only son and inheritor of his animals, he
should also inherit the land. Soine claimed a shortage of land and his right to the disputed land.
After considering the arguments, the internal moot divided the land between Kadume and Soine,
reaching a peaceful settlement. Members emphasized the importance of honoring customs and
responsibilities within the family.

 Negotiation

Traditional negotiation involved the parties with conflicting interest to sit down in a conference
and study the areas of misunderstanding seeks to settle the matter without the assistant hand from
a third party. It involves a dialogue between two or more parties to resolve points of difference,
gain an advantage for an individual or collective, or craft outcomes to satisfy various interests.
The parties aspire to agree on matters of mutual interest. The agreement can be beneficial for all
or some of the parties involved.

 Mediation and conciliation

This was only invoked in case where negotiation between the parties failed and still they think
resolving the dispute through other methods is worthwhile. They invite a third-party voluntary to

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MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

come and assist them in the negotiations process, this appointed mediator attempts to facilitate
negotiation between the parties in conflict. Rather than making recommendations or imposing a
decision, the mediator encourages disputants to reach their own voluntary solution by exploring
each other's deeper interests. The mediator role is only confined to assist parties and not to
influence the decisions by having his own personal interests toward the subject matter of dispute.

In most cases mediators are appointed among the local person residing in the area where the
dispute arose or place of residence of disputants. The pertinent case which illustrate this useful
method is the Kadume's case (supra)

2.1 THE COMPARISON BETWEEN FORMAL ADR AND TRADITIONAL JUSTICE SYSTEM
Informality of procedure

They are intertwined in as sense that the mordern ADR is a result of African traditional system,
which have borrowed most of the features that are ingrained in latter. Through this it is equally to
say they are not separable. Simply, most of it are pursued outside the precinct of court and
emphasis on “win-lose” situations and prefer Flexible mechanisms of obtaining fair results
rather than following strict rules of law.

The role of the Mediator

The formal ADR requires that mediator should be a neutral party who should assist in reaching
amicable settlement, and to achieve that they should have undergone special training and
sometimes approved by courts of law. 8 To the contrary the mediator in traditional dispute
settlement are appointed among the person with experience and acknowledged expertise in
resolving disputes, they are not from outside authorities but the leaders of kin groups, age grades
and other social groupings.

Privacy and Confidentiality

The Modern ADR mechanisms requires that whatever which is disclosed in mediation session
should not in any how be exuded outside without the consent of the parties and disputing parties
are only supposed to appear before the mediator. To the contrary the traditional dispute
settlement only requires those who are related to the disputant to appear with no restrictions, thus
making it not much restricted.

8
Mashamba, C. (2012). Alternative Dispute Resolution in Tanzania: Law and Practice. Mkuki na Nyota Publisher Ltd. Dar es
salaam-Tanzania at pg 34.

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 TRADITIONAL DISPUTES SETTLEMENT SYSTEM
MTAKI FRANCIS BENARD
BACHELOR OF LAWS (LL.B)

Methods of Dispute settlement

Most of the formal ADR methods are attributed by the western countries but the traditional
dispute settlement in Africa are developed locally; this also draws a distinction between these
two methods.

3.0 CONCLUSION
The modern disputes settlement mechanism is the results of the traditional practices which have shaped
much the formal disputes resolution mechanism. And , It has been proved that most these traditional
practices such as ordeal, drumming the scandal, trial by moot and many more are still applied by some
African tribes up to the moment though each tribes has the unique style but still hold the same roots from
the traditional justice system.

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