A Philosophical Defence of Punishment in Traditional African Legal Culture: The Yoruba Example

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Introduction

The Yoruba constitute one of the major ethnic groups of modern Nigeria. They effectively occupy the whole of Ogun, Ondo, Oyo, Ekiti, Lagos, and a substantial part of Kwara State (Atanda 1980,1). Aside from Nigeria, the Yoruba are also found in sizeable numbers in the south eastern part of the republic of Benin, Togo, and Dahomey in West Africa, in West India and in South Africa. There is also a thriving Yoruba culture in South America and the Caribbean, especially Brazil and Cuba, where the descendants of the unwilling immigrants to the new world have been able to maintain their identity and preserve their cultural heritage (Gbadegesin 1991,174).While the Yoruba are dispersed throughout the world, this paper focuses on the Nigerian Yoruba. The reason for this choice is that the ancestral home of the Yoruba is in Nigeria and each of the Yoruba in the Diaspora still traces its origin to this home where the culture thrives best.

Yoruba culture is an amalgam of reality permeating all aspects of life, that is, pattern of living and habit of thought of the Yoruba. As a complex whole, Yoruba culture is a composition of knowledge, beliefs, art, moral, religion, customs, politics, technology, law and other living capabilities acquired by the individual as an indigenous member of the Yoruba race. As with other aspects of the culture, the legal arm is undoubtedly important to the dynamism and vitality of the Yoruba culture as a whole. This legal aspect of the culture propels the drive of social engineering, peace and harmony. While its origin cannot be easily discovered, the fact remains that the Yoruba legal culture can be adequately situated within the realm of political governance. Hence, the Yoruba legal culture performs the dual function of peace-making and peace-keeping.

While the peace-making aspect of the legal culture centres on the legislation of indigenous laws towards the regulation of societal conduct that will engender a dynamic, peaceful and progressive political society, the peace-keeping is basically concerned with ensuring considerable conformity to the regulated rules through a cross examination of cases of defaulters of laws and disputes in order to sustain equitable justice and fair play. These two functional processes of the Yoruba legal culture are operational in Yoruba courts by the legal officials and the politically constituted authority. Peace-making is correspondingly identical to legislation, while peace-keeping is situated within the framework of arbitration and adjudication. Significantly, both are instrumental to the maintenance of es-spirit de corps among the Yoruba. (Olaoba, 2002:5)

Given the above background to the nature of Yoruba legal culture, our concern in this paper is neither to provide a historical detail of the development and origin of Yoruba legal Culture, nor to undertake a descriptive discussion of the modus operandi of administration of justice by the Yoruba legal officials as it is anchored on legal culture. The focus of this paper is not even to examine the processes, conditions and contents of the indigenous laws, which are by-products of peace making.

Rather, it bothers on the philosophical justification of machinery of peace-keeping. The Yoruba like any other cultural group of the world, have the institution of punishment, which involves the imposition of pain on a supposed offender for a supposed crime. Such an institution of punishment according to the Yoruba, is premised on the saying that "Ilu ti o si ofin, ese o si nibe"--meaning "any society without laws, ceases to have the notion of sin," a sine-qua non to punishment. In other words, to every human violation of the societal laid down rules and regulations, is legal penalty in the form of punishment.

Punishment is an important aspect of the Yoruba legal culture. However, the subject of punishment, in the sense of attaching legal penalties to the violation of legal rules has always been a controversial moral issue of philosophical importance. …