Indigenisation and Africanisation

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Indigenisation and Africanisation
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Prof D Taylor

The contribution by South Africa and Africa to the global table of knowledge is inhibited by our inability to speak with our own voice from our own knowledge base. I make this statement knowing that I am not saying anything new. Government and political parties are acutely aware of the impact colonialism has had in closing off the indigenous knowledge systems. There has been an effort to address the problem; calls have been made to get Higher Education Institutions to begin to find ways to open up the previously marginalised knowledge systems.

It seems to me to be a situation frequently encountered in Higher education – we know something should be done but no one knows how to implement it exactly. Also no one wants to take the risk of trying to implement it. Finally, there are insufficient resources allocated to address the problem adequately.

In the School of Law at UNISA there are a group of academics who have grumbled for years about the inability of the law curriculum to deal with issues relevant to Africa. Modern legal issues relevant to Africa and the SADC region regularly take a back seat while investigations into what is happening in the E.U. and the U.S.A. drive the bus.

Closer to home, indigenous African law (also known as African customary law) has since the beginnings of law curriculums in South Africa, suffered from ‘separate but equal’ treatment. Indigenous law has been taught as a separate subject in the law curriculum. As we all know too well, separate is inherently unequal. There are 40 modules in the UNISA LLB, 33 are compulsory, 7 are elective. 1 compulsory course is indigenous African law. Out of the 36 subjects offered for electives only 1 is Indigenous African law. That means that most students will have 1 module of indigenous law, and some will have 2 modules. None will have more than 2. So at best 0.8% of the total education of our law graduates is dedicated to indigenous law. In most cases the figure will be 0.4%. Does that equip our lawyers to provide good service to the majority of our population? I am not just talking of the people living in isolated rural areas, one need only read the Sunday Papers to see how relevant indigenous family law is to many urban South Africans.

By marginalising indigenous law, we send a message that it is irrelevant and not worth focusing on. More importantly though we send a message that indigenous law has little to contribute. Making it a separate subject implies that indigenous law can contribute only to itself, to its own jurisprudence. The possibility of indigenous law contributing to other parts of the hybrid South African legal system is foreclosed. If indigenous law is not given the space to contribute to our own legal system, how will it ever reach the global stage?

What about the students? They too are foreclosed from bringing their own reference points to the study of law. Surely this must affect the ability of students to perform at their best? A whole module on family law is about western legal conceptions; learning and debate take place in that context. Interrogation of indigenous family law is left to a small part of one module on indigenous law. How will the indigenous knowledge about indigenous family law, and the thinking behind it be recognised in the students’ performance? How will it be allowed to develop and adapt to modern cultural changes? How will it contribute to the advancement of our western based legal concepts?

One need only think of Ubuntu - Botho - Vhuthu to realise that indigenous legal notions can add real value to global knowledge. Where does this contribution come from? How can we ensure other such concepts make a similar contribution? It is certainly not from ghettoising indigenous law in our curriculum.

I would not blame you if all of this sounds like pointless grumbling, but it is not. There is good news that comes out of the difficulties faced in the law curriculum. Let us look at the issues I outlined at the beginning: First, we are acutely aware of the impact colonialism has had in closing off the indigenous knowledge systems. Second, we also know it should be addressed, at least some of us do. Third, we know something should be done but we do not know how to implement it exactly. Fourth, no one wants to take the risk of trying to implement it. Fifth, insufficient resources allocated to address the problem adequately. Of these five issues the first two already have positive outcomes. There was a time when past governments were not aware of or interested in the impact colonialism has had in closing off the indigenous knowledge systems. Nor did they acknowledge it needed addressing. It seems are biggest stumbling blocks are on the last three issues. Let’s look at these issues in the context of the UNISA Law School.

The third issue – we know something should be done but we do not know how to implement it exactly. Just through a cursory look at the law curriculum and focussing on one isolated aspect, that is indigenous law, we already have an idea of how to begin addressing the problem from a practical point of view. Certainly the curriculum needs to be looked at and changed. That is a practical step that can be taken.

The fourth issue - no one wants to take the risk of trying to implement the necessary steps. There are many reasons why this has been the case, they range from personal to political. The School of Law at UNISA has overcome this issue. Steps have been taken to establish the Institute for Africanisation and African Law (IAAL), staff have taken the plunge and committed themselves to concertedly, systematically and scientifically take the steps needed to place the legal issues that are relevant to Africa in the forefront. Having gained approval from the School of law, IAAL is in the process of seeking approval of the University. If and when it is established it will be an institutional structure dedicated to driving the process.

This brings me to the fifth issue of insufficient resources being allocated to address the problem adequately. Throughout South African history an indeterminably large amount of money was put into marginalising indigenous knowledge and promoting western knowledge. Yet somehow we think the situation can be readdressed through without committing substantial resources. There is a perception that academics who take personal and professional risks working in this field will somehow triumph. This is unlikely; a well funded, systematic and institutionalised historical problem requires well funded systematic and institutionalised solution. So far all indications are that the UNISA School of Law is willing to commit itself fully to deal with the issue. Establishing an institutional structure in the form of IAAL and committing resources both financially and in intellectual capital is a bold move. But it needs support.

If and when IAAL obtains final approval will at best be supported financially and otherwise by UNISA and the School of Law. But there are many other schools at UNISA, and there are many other Universities. Those of us who have waited for someone at the coalface of teaching to take the lead on the issue in this way must show our support. Other academics, law schools and universities will only take the cause of IAAL seriously if IAAL has the support, financial and otherwise of government.
There are few grassroots initiatives such as IAAL that government can put its weight behind, it should not lose out on this opportunity.

How can government do this? There are plenty ideas. That is best left to another discussion. But let the fish bite first. After all, if there is no head, the tail will not follow.