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© 1974-1977-2002 Wim M.J. van Binsbergen
Much successful
research into African law appears to have been guided by the
following two premises: that law as a social process primarily
takes shape within the highly formalized setting of the court of
law; and that is process focuses on the examination of such
conflicts as are of prime importance to the members of the
society concerned. These certainly are the assumptions underlying
most of the contributions to the 1974 Leiden seminar, out of
which the present volume has emerged. Likewise, these assumptions
underlie the Central African legal-anthropological studies
initiated by the late Professor Max Gluckman’s Barotse research
(Gluckman 1943, 1967a, 1972) and carried on elsewhere by
Gluckman’s one-time associates (e.g. Epstein 1951, 1953, 1954a,
1954b; Werbner 1969; Gluckman 1969).
Indeed, Gluckman’s Barotse studies rank among the few classics
of legal anthropology, and form the indispensable starting point
for anyone who, as I did, engages in a study of social control
among a so-called Barotse subject tribe, the Nkoya, some three
decades after Gluckman’s first Barotse fieldwork. With a wealth
of descriptive detail, great insight into the wider social
background, and inspiring theoretical and methodological
sophistication, Gluckman traced the Barotse judicial process as
manifested in the proceedings of the formal courts of law that
were defined within the relatively autonomous Barotse
administration of the 1940’s. He laid bare the notions
underlying Barotse law, the principles of their functioning
(whose built-in contradictions he revcealed and explained) and
their connections with the general Barotse ideological and
political system focussing on kinship and the land. Having
emphasized the plural nature of Barotse society (Gluckman 1941)
he paid considerable attention to the local incorporation of the
non-Barotse tribes’ custom within the Barotse state and legal
system (Gluckman 1967; 204, 234, 244f).
Yet, my own research findings among the rural Nkoya, in the first
analysis, seem to run counter to whatever could be anticipated on
the basis of Gluckman’s approach. In the society I studied
formal Local Courts (the immediate heirs to the chief’s courts
Gluckman described) did exist all right, but they were peripheral
rather than central to the judicial process, and to the
conflict-regularoty process in general, and such conflicts as
most deeply concerned and aroused local communities, were hardly
subject to formal litigation in these courts.
In this chapter I shall first argue rather sweeping statements
concerning the Nkoya legal system. I shall qualify them in the
light of the actual, if limited, occurrence of Local Court cases
under specific conditions. After an attempt to interpret the
Nkoya legal situation against the dynamics of their village
society, I shall conclude by briefly comparing the Nkoya to the
Central Lozi and other Central African groups, and by pointing
out the methodological implications of the present approach.[1]
Nkoya (Brelsford
n.d.: 15f; Clay 1945; McCulloch 1951; Van Binsbergen 1975, 1976a,
b) is today the name of various groups of people who inhabit the
light forests of the plateau of Central Western Zambia. They
speak, with dialectical variations, a common Central-Bantu
language known as Nkoya and largely share a common culture, in
which hunting, chieftainship, bilateral kinship, sorcery, and the
village dead are some of the major themes.
With the general expansion of long-distance trade and slavery in
the area during the last few centuries, immigrants of Northern
origin brought about a sharp increase of political scale,
superimposing a new and more elaborate chief-centred political
system upon the older pattern of minor hunting chiefs presiding
over local elders. Among the neighbouring Luyi (later called
Lozi) (Mainga 1973) a similar process, but stimulated by the
eminently favourable ecology of the Zambezi flood plain, and
intensified by the Kololo invasion from South Africa, led to a
political expansion which in the second half of the nineteenth
century brought most of the Nkoya under Lozi political influence.
Although Lozi political control over the Nkoya was in many parts
limited, the Nkoya came to be considered one of the Lozi subject
tribes, and it is as such that they entered colonial rule at the
turn of the century. Since colonial rule based its legitimacy on
a treaty with the Lozi king, the white administration boosted the
Lozi political claims and favoured the development of a system
where Lozi representatives (indunas) would take up
residence with the major Nkoya chiefs and share in their
political and judicial functions (Stokes 1966). Until then the
inchoate, shifting political structure of the Nkoya had centred
on the open competition for major and minor chiefly titles, most
of which would exist for only a few generations between their
emergence (as the proper name of a ‘big man’, leader of a
powerful following), and their sinking into disuse. Lozi and
colonial rule supplanted this system by a theoretically clear-cut
hierarchy of village headmen, minor chiefs, indunas, and
senior Nkoya chiefs, under the ultimate authority of the Lozi
‘Paramount Chief’. The senior chiefs and indunas were
entrusted with courts of law over which they exerted a strong
personal control.
When Barotseland became incorporated into the newly-independent
Republic of Zambia, most of the formal judicial and executive
functions of the chiefs were taken away from them.
Jurisdiction areas of the Local Courts continue to coincide, by
and large, with the areas of the senior chiefs and indunas,
but between the chief and the Local Court little more than this
nominal relation exists today. Thus, in Chief Kathembe’s[2]
area (on which we shall concentrate in this chapter), we find the
following situation. The court, which used to be at the palace,
is now located at a distance of 30 km, in the Kapondwe area that
has a high incidence of recent non-Nkoya immigrants, and that
only after a post-independence redefinition of chief’ areas
fell to Kathembe. The chief appoints only one member of the Local
Court, in consultation with the local minor chiefs, headmen and
elders, and subject to the approval of the Court and of Legal
Affairs. Once appointed this member is in no way answereable to
the chief, and he is paid, and trained, by Government. The Local
Court’s membership is partly Lozi, proceedings are
predominantly in Lozi,[3] and a jurisprudence is
used which consists of the Lozi legal tradition, adapted to local
and to modern conditions.
This paper explores why only a small selection of all the
conflicts and grievances occuring in Kathembe’s area finds its
way to the Local Court of Kapondwe. A few minor reasons can
already be indicated here. Geographical distance is an obvious
constraint in a rural society where motor transport is hardly
available for local traffic. Moreover, against the background of
a long history of Nkoya-Lozi antagonism (Van Binsbergen 1975)
there is some distrust of the application of the law by Lozi
Court members. But these are minor factors. Much wider
geographical distances are covered in the normal routine of
subsistence, ceremony, and recreation. And against occasional
allegations of anti-Nkoya attitudes, stand statements supporting
the Local Court in its present form. There are no allegations
that the Local Court upholds a law that is at variance with
‘Nkoya law’. For even if the population is aware of minor
discrepancies between Court and village practice (cf. note 8), a
century of increasing incorporation into the state systems of the
Lozi kingdom, Northern Rhodesia, and the Republic of Zambia (both
in the rural area and in the course of labour migration has led
the Nkoya at least to recognize, and ubscribe to, a comprehensive
legal order beyond the limits of Nkoya rural society. Nkoya
villagers consider the task of protection against open violence
and crime in the narrower sense to lie ultimately with this
comprehensive legal order; they show no reluctance to deliver
trouble-makers and criminals from their own ranks to the outside
agents of this order. However, the major problem of Nkoya village
life is not posed by the odd thug, but by the everyday struggle
to maintain a liveable social order in which multiplex,
face-to-face relationships and precarious economic conditions are
the main elements. The allocation of personnel, goods, services,
rights, and status presents a continuous, many-faceted problem
always prone to precipitate acute crisis. This may be true for
any society; it is all the more true for contemporary Nkoya rural
society, whose economy balances around the minimum subsistence
level and moreover has to accommodate claims for assistance from
(temporarily) urban members. In these fundamental social
processes one would suppose the Local Court to be very frequently
resorted to — but it is not.
It is the main point of my argument that the Local Court remains
at the fringe of Nkoya rural society, largely because it
represents a mode of conflict regulation which, given the
structure of interaction and the participants’ conceptions of
the social and moral order, has only a very limited applicability
there — whilst internal alternatives to the Local Court are
well developed and effective.
A central theme
in Nkoya social structure is the tendency for multiplex social
relations between co-residing kinsmen (members of a village) to
develop into insoluble conflict, leading, through a phase of
intense sorcery accusations, to fission, with individuals or
small factions moving to other villages or starting a new village
on their own. Fissiparous tendencies are built into the very
structure of Nkoya society. On the one hand this society fosters
the model of the happy, stable village of more or less close
kinsmen, headed by the successor to a chiefly title. On the other
hand, precisely because Nkoya society regards succession to a
chiefly title, and having a village of one’s own, as the ideal
culmination of a man’s career, every male follower is induced
to compete for leadership and to pursue the value of individual
autonomy that counteracts the values of authority and respect.
Succession among the Nkoya is largely a matter of achievement. A
new incumbent is chosen out of a large pool of people (bilateral
kinsmen of previous incumbents) who live dispersed in several
villages over a vast geographical area. In principle, therefore,
every talented man has the chance to acquire, in the end, a
senior title and his own village. But this means that men from
their late thirties on are in constant competition with their
age-mates and their seniors over succession to titles which
ordinarily can only become available upon the previous
incumbent’s death: a set-up conducive to ill-will, sorcery,
sorcery accusations, — to such an extent as to make natural
death an unlikely occurrence, in the eyes of the Nkoya villagers.
Apart from this long-term perspective there is the day-to-day
concern for health, food, respect, and security. With respect to
these fundamental concerns, anthropologists have tended to
conceive of kinship as allocating to Ego specific rights and
duties vis-a-vis his kinsmen in a specific geneological position.
Peculiar to the Nkoya bilateral system is that, as far as
everyday interaction between kinsmen is concerned, these rights
are highly unspecific; they are to some extent determined by age,
sex, co-residence, but they are hardly implied or dictated by
precise genealogical relation or by the kinship terms people use
to each other.
No single statement could better sum up the Nkoya kinship system
than ther adage:
Mwana wa hakati ka jifumo (the child is in the middle of
the womb). Here we have in a nutshell the basic principle of
bilateral descent: jufumo, womb, stands for line of
descent through either the father or mother. A person’s
patrikin and matrikin have essentially the same rights over him,
just as he has similar rights over both clusters of kinsmen. No
single individual or group has complete, exclusive rights over a
person. And, while patrikin and matrikin are free to compete over
the realization of whatever claims of domestic, economic,
political and religious support they may foster in relation to
Ego (and these claims are usually secured through co-residence),
Ego retains the right to choose between them in his own interest.
Whatever the specific content (in terms of transactions of goods
and services) a particular kinship relation between two Nkoya
will have, depends on the dynamics of the concrete situation in
which these two find themselves. A general morality (enforced to
a degree by the village dead, fear of sorcery, and by the
dynamics of status allocation) prescribes unconditional support
between kinsmen particularly if living in the same village. But
no specific and formally-sanctioned norms indicate what
constitute reasonable claims and reasonable refusals. Interaction
between kinsmen is based not so much on norms and rights, but on
general expectations, and here disappointment and resentment are
rife.
Example A illustrates the general problem with reference to
inheritance. When someone is to inherit from his deceased
kinsman, other relatives do have expectations about what portion
of the inheritance will be share out amongst them. They may even
present these expectations as based on ‘the law’ (milao).
However, these expectations are not fixed rules in the sense that
formal redressive action could be undertaken on the basis of
them. Should someone fail altogether to honour the expectations,
then there is no effective judicial or other mechanism to make
him part with the inheritance. The relatives are left with their
resentment, and are likely to turn to sorvery for revenge.
Headman Shipande
had amassed considerable wealth, including a gun, a sewing
machine, and a wireless set. When he died, his cousin Kabesha,
who for several decades had stayed at the distant court of Chief
Kathembe, managed to get himself elected successor. But instead
of taking up residence among the previous Shipande’s following
(as a headman should do), he collected the entire inheritance and
returned to his place. So, in addition to leaving the village
without a leader, he did not share out part of the inheritance
(normally he would only have retained the gun, as a central
symbol of male and chiefly identity); and by taking all this
wealth, he deprived his kinsmen even of the possibility of using
or borrowing it. The kinsmen resented this action very much. No
one wondered however, how Kabesha managed to escape their wrath;
he is regarded as a powerful sorcerer. His nephew joined him in
his distant village, and started to use the inherited goods. When
a few years later several of this nephew’s young children died
in quick succession, extensive divination pointed out that the
wronged kinsmen had, by means of sorcery, allegedly directed the
spirit of the deceased Shipande to Kabesha’s village, where,
unable to attack the old wizard himself, the aroused spirit had,
allegedly, turned against the children of the village. Public
opinion rather favoured the wronged kinsmen, and, unscandalised,
agreed that there was nothing else they could have done — least
of all take the matter to court.
If crucial interaction in Nkoya society focuses on kinship; if
kinship roles merely stipulate expectations which generally lack
effective formal sanction within and without the judicial sphere;
if resentment and sorcery are the common results of this
situation, and ultimately lead to the breaking-up of relationship
between co-residents; what conflict-regulatory processes, then
make Nkoya society possible at all?
Fission and inter-village migration constitute powerful
mechanisms to get over a crisis and make a fresh start. Most
people have moved to another village at least once in their
lifetime, many have moved much more often, and in a majority of
cases an insoluble conflict was at the bottom of the change in
village affiliation. A person staying in a village (e.g., his
father’s) and feeling that he does not get his due, will
contemplate what other possible refufes he may have: the villages
of his mother’s brothers, of his classificatory fathers, actual
and assumed grandparents, his joking partners (ba-thukulu:
putative grandchildren) failing these, his own new village, and
(as a temporary option) settlement in town. One moves away from a
disappointing relative and, if possible, towards a more promising
one. Often moves of the latter type are encouraged by senior
kinsmen who try to attract junior kinsmen (their main political
following) from elsewhere; in this process of recruitment
expectations are kindled which, after the move, are often not
met: characters may turn out to be incompatible, whilst other,
already co-residing, junior kinsmen try to prevent their common
leader from bestowing undue favours upon the newcomer. Thus, the
solution of one crisis tends to breed the next.
A second major conflict-regulatory factor may be looked for in
the religious sphere. Writing about Ndembu Lunda society, which
is both historically and structurally closely related to the
Nkoya, Turner (1957, 1961, 1962, 1968) has presented the view
that such profound conflicts as originate in the field of close
kinship and co-residence, can be effectively expressed and partly
resolved in the ritual sphere: divination, village shrine ritual,
and cults of affliction. Very similar institutions exist among
the Nkoya (Van Binsbergen 1972, 1976a, c, in press) but their
contribution to conflict management should not be overestimated.
These religious institutions may express general structural
tensions in the society, they may even reveal (cf. A) the
concrete participants and events of a specific non-religious
conflict, but they only lead to redressive action implying a
restoration of disrupted social relations if decisive conditions
deriving from the social process outside the ritual sphere
already make such a restoration desirable and feasible. An
example of this is B, which brings out some local-political
factors working rowards conflict resolution through ritual
mechanisms.
Dickson, a man
in his early twenties, was in love with a Lozi girl from the
Kapondwe area, some 20 km. away from his village. His relatives,
among whom his father Shelonga is prominent, wanted him to give
up the girl: they did not favour a marital tie with the Lozi
people, whom they alleged to ask too high bride prices and to
lack respect for Nkoya affines; moreover, Dickson’s relatives
feared the high damage that would be due in the case of elopement
or a premarital affair. They refused to assist Dickson
financially, and he had no money of his own. Tensions mounted and
the result was that Dickson ran amuck after an evening of
drinking. He set fire to his own house and threw his father’s
bicycle as well as his elder brother’s wireless set in the
flames — the inconceivable waste of long years of thriftiness.
Shelonga, also in his cups, ritually cursed his son and kicked
him out of the village. Dickson exiled himself to Lusaka, where
he was admitted to a Nkoya urban yard in Kalingalinga compound,
of which his cousin is the leader. After the better part of a
year he finally managed to secure a job. Throughout his stay in
town he kept in frequent contact with his elder brother and his
sister in Lusaka, who through letters communicate regularly with
the village home. When the elder brother visited the village
shortly after Dickson had found work, their mother dug up a few
tubers from the redflowered shrub that constitutes the village
shrine. Taken from the sacred spot that represents the village,
it unity, ancestors, and continuity, the tubers symbolize that
dickson is still considered attached to the very life of the
village, in other words that the curse (‘you are no longer my
son’) may be lifted. When Dickson receives the tubers he is
quick to take the hint. No sooner is he allowed to take a long
weekend from his job than he takes the bus home in order to
reconcile his father to him and — to elope with the Lozi girl!
In the village a small ritual is performed at the shrine: the
curse is revoked, and a prayer is said to the ancestors (‘we
were misled, we quarrelled, but now we have regained our mutual
understanding’). Still the family is not prepared to give in as
far as his Lozi love is concerned, and Dickson is again angry
about this, but this time he controls himself well.
In this intra-family conflict, resolution was possible, and even
imperative, for a complex of reasons. Shelonga is highly
respected throughout the chieftancy, because of his wisdom and
integrity. His political position however is precarious. About
twenty years ago he left his distant valley, as a result of
intra-family conflict. He took refuge in Mukuata’s village,
where his mother had come from. Since his migration, throughout a
complex, conflict-ridden local-political process, Shelonga had
always refused (partly under pressure from his sons, who feared
for their father’s life) to succeed to the several very senior
chiefly titles that circulate in his family. As a result he now
finds himself as the reluctant de facto headman of a small
village, with his only daughter and three of his four surviving
sons in town, and surrounded by villages whose headmen are
closely related to him but most of whom consider him as a major
rival in the competition for titles and honour. In the past
Dickson had already given a heavy blow to Shelonga’s presite:
at another drinking session he had become violent and insulting
and Shelonga had been reproached in the neighbourhood court for
failure to control his child. So a second time Shelonga had to
act firmly. But on the other hand he could, both as a leader and
as a politically insecure person, not afford to let the eize of
his effective following diminish. Another contributory factor in
the resolution of the conflict lies in the fact that, despite
such momentary disruptions as described in this case, the
Shelonga family in general displays exceptionally high harmony
and integration as manifested, e.g., by the lasting marriage of
Shelonga and his wife, the pride and concern that the sons take
in their father, and the firm support between the children when
in town. His siblings in town pressed for a reconciliation
between Dickson and his father, whereas on the other hand
Dickson’s relations with the cousin with whom he had put up
deteriorated to a state where Dickson was eager to restore the
good relations with his original village.
Example B shows how religious institutions focussing on the
village shrine can underpin a process of intra-familial
reconciliation and seal its ultimate completion, provided that
non-religious social conditions towards resolution are present.
More often however, among the Nkoya, if a conflict spills over
into the religious sphere, this means that the development of the
conflict is accelerated, and that whatever potential for
reconciliation may have existed, is now lost forever. The
conflict will leave the sphere of everyday inter-personal
interaction and the exchange of goods and non-religious services,
and, more or less under a symbolic disguise, will live on mainly
in the ritual sphere. The outcome of example A was a typical one:
after divination had pointed out (no doubt as a result of the
diviner’s knowledge of prevailing social relationships) the
conflict allegedly responsible for the children’s deaths, no
attempt was made to approach the wronged kinsmen and to arrive at
some settlement (e.g., sharing out the disputed inheritance);
while concerned about the well-being of those children and adults
that had survived the spirit’s attack, all attention of Kabesha
subsequently concentrated on the ritual means of allaying the
spirit. Once conflict has entered the sphere of sorcery, little
is left but ritual which amounts to accepting the rupture as
irreparable.
The third major form of conflict regulation (which, contrary to
the two discussed so far, goes on continuously in every Nkoya
village) is the informal action by which most minor clashes are
prevented from developing to an ultimate stage of fission and
sorcery. The petty frictions and irritations that spring from
living closely together and from sharing crucial economic,
political and religious tasks are the subject of constant
scrutiny and concern especially of those who are held responsible
for the integrity, general welfare, and honour of the village:
the village headman (who may leave part of his tasks to a younger
assistant), and any other elder people of either sex. Seeds of
disruption are quickly detected and brought to the fore in
informal impromptu gatherings of those involved. They concern
trivialities; children who make noise and upset the village;
young, inexperienced wives who are late in sending their prepared
meals to the men’s shelter; a mother-in-law who leaves too much
of the heavy job of pounding to her daughters-in-law; a man who
cannot hold his drink. The successful headman is the one who
manages to deal with these petty issues in such a way as to avoid
their becoming laden with such long-standing grievances as
individuals or factions associated with either party in the petty
conflict may have.
In this form of conflict settlement emphasis is not on justice
and formal rules of behaviour. It is ‘discussing’ (ku-ambola),
not a ‘court case’ (mulandu). The headman is hardly
concerned with assessing who was right or wrong and does not
press for admission of guit. Rather he applies all his
psychological skills and wisdom to appeal to the parties’
obligations vis-a-vis the integrity and solidarity of the
village. He emphasizes that village unity (ku-jiuva:
understanding) is primarily in their own and their children’s
interest. The appeal is usually strengthened by reference to the
disasters that struck members of certain villages that had not
managed to preserve their unity; and this will not be a tale of
the distant past, but the accounts of the misfortunes of
well-known close kinsmen of those present. The headman has a
practical, informal authority in these situations insofar as he
represents the unity of the village. He is the one who, on
occasion of his installation at the village shrine, has ritually
inherited the name and social person of the village founder; and
although he is not considered to have control over the actions of
the now deceased former members of the village (he cannot invoke
the dead in order to add supernatural sanctions to his
authority), people believe that the dead have power to interfere
and take revenge on those living members whose actions threaten
village unity. The headman is the main link between the living
and the dead[4] and when he has
managed to quench a more serious-looking intra-village conflict,
he informs the dead of the outcome through a short prayer and
offering of mealie-meal at the village shrine.
This standard pattern of conflict resolution, which is frquently
resorted to in the everyday life of the village, brings out
important structural characteristics of the Nkoya system of
conflict regulation, including their legal system. Conflict is
primarily regarded, not as a matter of right or wrong against
abstract, unalterable criteria of formalized rules of behaviour
— but as a direct threat to group unity. Nkoya consider such
unity essential for both collective and individual well-being.
Without unity, the village members will not be able to co-operate
in their crucial tasks; the village would be hit by shame,
ancestral revenge, sorcery, and (as the minimal subsistence
barrier is so very near) by hunger, disease, and death. It is not
the optimistic conviction of the actual existence of village
unity, but on the contrary the awareness of continually being of
the edge of disruption, that makes the village deeply afraid of
open expressions of conflict — they may well turn out to be the
straw that breaks the camel’s back. Meanwhile, no doubt, it is
in the direct, personal political interest of those in authority
(elders, the headman) to pose as the advocates of such a lifty
goal as village unity; underneath their admonitions a measure of
cynical manipulation of their fellow-villagers might be
discerned, but this does not greatly diminish the generally
integrative effect of their pleas for unity.
The principal aim of conflict resolution in an intra-familial
context is not to define and administer specific rights and
obligations as attached to particular kinship roles but to take
away the sting from whatever animosity his arisen. Such conflict
resolution cannot afford to go into the depths of latent
fissiparous tendencies, old grievances, fundamental
incompatibility of characters, as will usually exist within the
family group. On the contrary, for as long as possible, in the
face of mounting tensions, those responsible for conflict
management have to present, artificially, each incident of
observable conflict as a small matter, ephemeral and without
consequence. The standard approach is to hush up matters, to
empohasize that a full discussion would be a waste of time; no
formal setting is given to the discussion, the reconstruction of
the events leading to a petty conflict is intentionally kept
scanty and the analysis superficial, and often the matter is
abandoned in the most inconclusive manner. The parties may not be
entirely satisfied, but the general appeal to their
responsibilities towards group unity keeps them from saying so
openly. Each has a strong personal interest in keeping peace
within the family group: both for reasons of future assistance
and for the avoidance of sorcery.
But this central concern of avoiding open conflict is often
overrun by the equally important values of individual autonomy
and honour; and then expressions of animosity, sometimes
violence, do occur. Against the plea for unity and understanding
stands the management of self-respect and honour, expressed by
the aggressive assertion:
Ami mulume!,
‘I am a man!’.
Usually, one has
sufficient opportunity to assert one’s honour in the course of
the public, if informal, attention given to an incident. If one
drops the matter publicly this can easily be presented not as an
admission of weakness and guilt, but as a magnanimous yielding to
group interests. But as soon as either party stubbornly refuses
to drop the issue for unity’s sake, the headman and village
elders are virtually at a loss. Not only do they openly fail as
leaders but, more important, there will be no way out except
through sorcery and fission.
Informal settlement of intra-familial conflict is not only a
contribution to village unity, but also a test of it. Under
certain conditions a member of the village may cause a small
matter to escalate often beyond repair, ignoring the values that
suppress conflict. These crises often take place in a context of
drinking, or immediately after the death of a member of the
village. In the latter case many people will be frantic with fear
of sorcery, and the authority of the headman is at its lowest,
for he has obviously failed to protect his followers, and at the
same time (in view of the connections between power, age and
sorcery in Central-African societies: (Van Binsbergen 1976b, c;
Parkin 1969), he himself is tacitly suspected of having caused
the death. Example C illustrates however, how in such a crisis ku-ambola
can produce positive results.
A few years
previously Yona, now in his early thirties, had left his village
in the valley of Kashanda. Returning from work in town he found
his father’s village considerably dwindled, his wife and
children neglected, and his baby son very ill. So he left after a
row and settled in Malasha village among his distant uterine kin.
The child recovered there, but never became very healthy. Shortly
after two adult members of Malasha village had died in quick
succession, Yona’s children fell ill, formost the problem child
of old. In a ku-ambola session with the headman and other
adult male residents. Yona complains that this village, too, has
become a bad place (the implication is: full of unidentified
sorcerers). He points out that if the health of the children does
not improve soon, he will move again to another village. He
knows, as admitted on a different occasion, that he would have no
other place to go but back to his agnatic kin, where he would
hardly be welcome. The elders of Malasha village appreciate his
fears: they too are in a state of frenzy over the recent deaths.
On the other hand, Yona’s remonstration implies that he takes
them to task for failure to protect the village; moreover Nkoya
believe that those occupying, or aspiring to, high status may
turn to sorcery to enhance their powers. In the situation, Yona
needs scarcely say explicitly that he suspects his elder fellow
villagers of being responsible for the evil influences themselves
— the hint is clear, and covertly arouses, and distresses, the
village elders. Yet, with the recent losses and the general
despair in the village, they are very keen on retaining Yona’s
support. Therefore, the situation is not allowed to escalate, no
offence is taken publicly, and Yona is not offered an easy exit
out of the village. Quietly he is reminded: ‘You came here
while your son was ill, now that he is ill again you may go and
take him elsewhere if you wish, but do realize that it is just
your child being of a sickly constitution, and don’t come to us
accusing us of committing sorcery against him’. This skillfully
neutralizes Yona’s argument. That the village is severely tried
during these weeks, nobody denies; it is in fact an issue debated
night and day. However, the ku-ambola has now manipulated Yona
into a situation where he can no longer with justification set
himself off against the rest of the village; he would himself
become liable to accusations if he did. He stayed on.
The values of village unity mean that one cannot simply move from
one place and settle in another without good reasons. One cannot
overtly refer to one’s desire to become autonomous; and (in
view of the lack of specificity in the stipulation of kinship
role behaviour) one’s objection to the treatment in the present
village of residence is often too vague and too general to
convince widely. Thus, to force the issue, petty occasions have
to be blown up into a socially-acceptable pretext for leaving.
The success or failure of informal intra-familial conflict
resolution reveals the degrees of structural stability of the
village at that moment. If a party is intent on leaving, has an
alternative place to go to, and/or is already considered
expendable in his present village, then conflict settlement is
likely to be unsuccessful, and the conflict will be allowed to
escalate. In the opposite case, settlement will be accepted. On
this basis a complex model of village stability could be
constructed, taking into account such parameters as: age and sex
of the village members, kinship relation to the headman,
availability of residential alternatives, ecological pressure
within the village, etc. This, however, falls beyond the scope of
the present paper.
Against this
background of the suppression of expressions of antagonism, a few
social situations have to be isolated where the rights and
obligations attached to certain roles are sufficiently
well-defined to be susceptible to formal litigation — which may
then reinforce, instead of threaten, group unity.
One class of such situations revolves around the management of
honour and respect (shishemo) in the interaction between
individuals and between groups. Consanguineal and affinal kinsmen
of various categories, members of different generations, of
either sex, of different local groups, common village members
vis-a-vis headmen and chiefs, a chief vis-a-vis his headmen and
his people — they are all subject to complex and well-defined
rules of etiquette involving manner of address, of greeting,
bodily postures and spatial arrangements, taboos on names and
subjects (e.g., sexual matters), the proper way to voice a
difference of opinion in front of members of that category, etc.
Violation of these rules is taken very seriously not only by the
direct victims of the insult, but also by close relatives of the
offender and by outsiders. Unless the culprit can be pardoned for
lack of age and experience (a child, a newly-married woman), he
is sure to have a case (mulandu) on his hands. His close
kinsmen, though highly embarrassed will not be eager to let the
matter drop. For here is, at last, a situation in which evident
conflict can be resolved along clear institutional lines; instead
of the ambiguities of personal friction in the intra-familial
context, here is a touchstone of behaviour provided by fixed,
impersonal, explicit rules. The respect case will lead to a clear
verdict which will definitely end the matter. Once the case is
publicly dealt with, those wronged are rehabilitated and
reinforced in the respect to which they are due in the light of
unchallenged principles; and the culprits are isolated and
exposed as erring individuals. Once they have acknowledged their
mistake, there is little fear left that the wronged party will
pursue the matter by means of sorcery.
The close kinsmen of the offender therefore participate in, and
may even push, the case for a number of reasons. They want to
dissociate themselves, as a group, from the insult — thus
publicly advertising (no matter what they feel privately) that no
smouldering inter-group conflict lay at the bottom of the
incident. They also want to protect their offending kinsmen, as
well as themselves, from the sorcery the injured are sure to
direct against them if the latter should not be placated. And
finally, the kinsmen are in favour of their straying relative
being taught a lesson since they themselves will benefit from an
improvement of his social behaviour.
The main difference between such respect cases and the type of
intra-family conflict discussed above (where formal legal action
is impossible seems to be this. In the respect cases both parties
act not so much as individuals on the basis of their personal
concerns and inclinations, but primarily as representatives of
abstract, broad, general categories of society — young versus
old, male versys female, parent-in-law versus child-in-law of the
opposite sex, chief versys subjects, etc. The public interaction
between these societal categories is subject to unchallenged
explicit rules irrespective of the quality of the personal
relationships that may exist between particular individual
members belonging to these categories. An offence against these
rules is not just an individual concern of the individual member
in whose person the category is offended — it is an assault on
the total societal and moral order, and therefore of importance
to allmembers of society. By contrast, in the case of
intra-familial conflict we have to do with relationships whose
form, contents, gratifications, and disappointments are almost
entirely determined not by norms and rights but by such chance
factors as the compatibility of character, the possibility of
benefiting from each other in the pursuit of individual goals,
etc. A closely related, and equally important, difference is that
in respect cases the conflict revolved primarily around the
management of such invisible, abstract, highly symbolic values as
honour and respect, whereas the transactions between kinsmen in
the village, such as tend to lead to crisis and intra-familial
conflict regularion, primarily revolve around indispensible,
down-to-earth, material items: money, food, assistance in
concrete tasks, property. This suggests the possibility of a
fascinating semantic analysis — but, again, nog within the
present paper.
In theory close kinsmen can litigate against each other in the
idiom of respect cases, provided each represents a distinct
general societal category. But, whereas this possibility is
sometimes hinted at in the course of a quarrel, it is seldom put
into effect. And even if a formal procedure is started, the case
is usually hushed up much in the way of other intra-family
conflict.
Example D
illustrates the main aspect of respect cases.
Chief Mukuata,
the most senior of the ‘original owners of the land’ and
therefore second only to Chief Kathembe, died suddenly at the end
of a week in which a plot to oust him from his title had been
exposed and had been generally discussed. The situation was
likely to precipitate into violence, and so Mukuata was quickly
buried next morning near the village in which he died: Malasha
village, where his son lived and where Mukuata had happened to be
mourning his recently deceased daughter-in-law. A chief should,
however, be buried inside his own house, in the village that
bears his name. After the burial some twenty closely related and
senior mourners remained in Malasha village, including several
chief and senior headmen from distant places. In the afternoon
Shaimon, a classificatory sister’s son of Mukuata from Mukuata
village, and Kalembwe, a joking partner of the deceased chief
from an adjoining valley arrived at Malusha village. They rode
their bicycles to the middle of the village (very rude behaviour
among the Nkoya), upset vessels with water and beer, threw around
heavy logs of fire-wood and shook the roof the mens’ shelder
under which the male mourners were assembled, all the time
shouting insults: ‘You old men, all of you, killed Mukuata, you
are sorcerers, and you even admitted to the fact by burying him
not in his own house but in the bush. Is Mukuata not a great
chief? You are sorcerers intent on killing his name’, etc. Part
of this behaviour was acceptable as expression of extreme grief,
but to call a person a sorcerer publicly is a very great insult
and especially to include all the great men from distant parts in
this insult was inconceivable. Only with great difficulty did the
local elders who had organised the burial manage to refrain from
answring back. One who started to reply was quickly called away
by an old woman. Bloodshed was in the air. However, those present
lived up to their role of wise, senior men and ostansibly
ignoring the provocations they began to discuss the necessity of
building a respect case against Shaimon and Kalembwe. The case
was heard next morning. Kalembwe, himself in his fifties and a
headman, and more politically-minded than his companion, had
retired from the scene at an early stage. He absented himself
from the proceedings next morning, but sent a messenger offering
his apologies for his behaviour of the previous day. These were
accepted. The case against Shaimon however was heard, in Malasha
village, with the offended high-ranking mourners constituting
part of the neighbourhood court. The defendant showed not the
least repentance, repeated his accusations and challenged his
close kinsmen to refute them. Discussions the previous day had
already indicated that public opinion, while disapproving of
Shaimon’s unskillful presentation strongly agreed with his
protests against the improper burial. The court was greatly
embarrassed: as hosts to the mourning chiefs from elsewhere they
could not allow their guests to be insulted; but on the other
hand, Shaimon was their close kinsman, and although he should not
accuse them and their guests of sorcery, he was right in taking
them to task for the improper burial of Mukuata. After extensive
deliberations, when the boy adopted a more reconciliatory
attitude, the most senior guest, Chief Shindovu (classificatory
father to the deceased chief, and occupying in the distant valley
of Kalombe a position similar to Mukuata’s) saved the situation
by the weak pretext that the youth had been intoxicated by drink
and could not be held responsible for his statements. This
suggestion was eagerly adopted by the local elders, and the case
was dismissed without further steps being taken against Shaimon.
Litigation before the neighbourhood court can indeed be termed
‘formal’ by comparison with the utterly informal procedures
of ku-ambola. A neighbourhood court case (milandu)
has a fixed procedure which can be summarized as follows.
When there is public breach of respect rules, the more senior
amongst those present raise the question of whether the incident
could make an admissible case. This preliminary discussion will
include close kinsmen of the injured party, of the offensive
party, and outsiders. If they agree that the matter should be
pursued further, they usually give it into the hands of one of
the most senior headmen in the cluster of villages (a valley)
where the incident took place. The proper person to be entrusted
with the case is the ‘subchief’ (mutwe ya ba mwene,
‘the chief’s head’) one of the senior local headmen whom
the chief, in consultation with local headmen and elders, has
appointed to represent him in each of the several valleys that
make up a chief’s area. The subchief’s prerogatives are
confined to the judicial field and (in contrast to the chief)
neither government recognition nor payment are attached to his
office. The sub-chief has by no means the monopoly over formal
conflict regulation in his valley: any widely respected headman
can organize and preside over cases in his neighbourhood. But a
subchief is prone to claim a monopoly over the referral of cases
to the official Local Court in Kapondwe, whenever such is deemed
necessary (see below). When a case is entrusted to a senior
person, he quickly informs other headmen and elders in the same,
and occasionally adjoining valley, and a meeting is scheduled for
the next day or so. Not infrequent such meetings are abortive,
because either plaintiff or defendant or important witnesses or a
sufficient number of headmen and elders, fail to turn up. If all
necessary people are present, the case is heard. There is no
fixed chairmanship: everybody in turn contributes questions and
points of view, interrogates the parties and their witnesses, and
helps to arrive at a consensual agreement. there is no entourage
of ritual, and no oaths are taken. The verdict at which the
neigbourhood court arrives can be acquittal, apology, or the
payment of a fine to the wronged party. No payment goes to the
court, the chief or the community in general.
By virtue of its own powers the neighbourhood court has no proper
sanctions to enforce a verdict — it has, in particular, no
power to use physical coercion. There are, however, many reasons
why people accept the verdict, even if this involves payment of a
considerable sum of money. People are very keen to quench the
conflict and thus to avoid sorcery. In addition, in those cases
that could also be heard in the official Local Court (see below),
the fines imposed by the neighbourhood court are considerably
lower than those to be expected in the Local Court. So for
defendants likely to be found guilty, it is advantageous to
settle ‘out of court’, i.e., before the neighbourhood court.
Moreover, ignoring the neighbourhood court’s verdict carries
unmistakable sanctions in terms of social credit as well as
alleged susceptibility to sorcery and to ancestral revenge. More
important than all these rather pragmatic calculations however is
the fact that for the Nkoya villagers the headmen and elders in
the neighbourhood court are not make-shift judges without proper
authority (as they might appear from the point of view of a
bureaucratic, centralized national legal system), but the very
embodiment of moral judgement and authority. They are the heirs
to great chiefly titles established in previous generations.
Acceptance of their rulings is reinforced by deeply internalized
values. This is not to say that these values are not increasingly
challenged by the penetration, into the rural area, of modern
organisational forms greatly at variance with the Nkoya
gerontocratic model, and by the concomittant intensification of
the rural inter-generation conflict. I have dealt with this
complex problem, however, elsewhere (Van Binsbergen 1976b).
Finally, of course, the most comprehensive factor making for the
effective functioning of the neighbourhood court is the fact that
its structure is embedded in the total extra-judicial social
process of Nkoya rural society. Patterns of authority, power,
status, resources, which determine the social process in the
neighbourhood, also determine the personnel and, to a large
extent, the outcome, in the neighbourhood court. This does not
exactly amount to a model situation of judicial independence —
such as would be desirable, and possible, in a highly diversified
industrial society. The Nkoya neighbourhood court displays
far-reaching manipulation of the judicial process for the sake of
extra-judicial processes, but this is precisely what endows this
judicial institution with great relevance and efficiency in
keeping Nkoya rural society more or less together.
Given the structure of Nkoya society, personal relationships and
transactions between its members can become the object of formal
litigation if between those involved rights and obligations have
been stipulated to a sufficient degree of specificity and
definition. Common, everyday transactions between kinsmen do not
satisfy this condition and therefore are not subject to
litigation. Etiquette however, provides one class of situations
where this condition is met. The major other class of such
situation concerns sex and marriage.
I will not try to give a full picture of Nkoya marriage law as it
exists today, nor sketch the very considerable changes this
institution turned out to have undergone over the past hundred
years: the increase of geographical distance over which marriages
are contracted; the decrease of kin-endogamy and village-edogamy;
the increasing juxtaposition between bridegivers and bride-takers
(complementary roles which tend to merge in the case of
endogamy); and the introduction of bridewealth. A full discussion
will involve a rather technical kinship-theoretical and
quantitative analysis (Van Binsbergen 1974, forthcoming). For the
purposes of the present paper, let it suffice to say that, while
common everyday interaction and such conflicts as spring from it,
are still mainly interpreted by contemporary rural Nkoya by
reference to the fundamental bilateral orientation (‘the child
is in the middle’) — the same people tend to adopt a rather
different perspective when they discuss the legal position of
adult women, and of minors in the context of sex and marriage. In
the latter case, emphasis is increasingly put on the question of
custody, with all the close-to-exclusive rights implied in this
term. In fact, the allocation of custody of women and children
among their male consanguineal and affinal kinsmen, and the
custodians’ claims to marital payments and fines in relation,
respectively, to transfer of and infringement upon their custody,
have become the central issues in Nkoya family law today.
Nkoya now consider a child to be, primarily, in custody of his
father’s family if the father has paid bridewealth for the
child’s mother. If so, then the father is free to take the
child wherever he wants, irrespective of dissolution of his
marriage with the child’s mother, through death or divorce. At
the same time, the father is considered responsible for the care
of the child, and he must compensate any other persons (e.g., the
child’s maternal relatives, or a subsequent husband of the
child’s mother[5] who have temporarily
acted for him. As long as no bride-price has been paid for a
woman, her services as a woman and her powers of procreation are
considered to be in the full control of her consanguineal
relatives. Theoretically a distinction should be made here
between her agnates (who control her if in the past they paid
bridewealth for her mother) and her uterine kin, who control her
in the alternative case; but in practice control over an
unmarried woman is exercised by the senior kinsmen (agnatic
uterine, or both in case of overlap) in whose village she happens
to dwell at that moment. In other words, the exercise of custody
rights over an unmarried woman reflects not so much fixed rules
but, pragmatically, her actual network involvement at a
particular moment.
Custody is not unrelated to a notion of ownership. One is
‘owner of a woman’ (mwine ya mbeleki) much in the same
way as one is ‘owner’ of a village, a title, a patch of
cleared land, a gun. To any student of Central African ideas
about property, and such connected themes as honour masculinity,
autonomy, and respect, it will be clear however that such an
assertion hardly does justice to the complex underlying
conceptual reality (cf. Gluckman 1972: 141f; Van Velsen 1964:
140f, 185f). Particularly, village, title, land, woman, and (to a
certain extent) gun have the following connotations in common,
which help to amend an all too naive conception of
‘ownership’. They represent central attributes of
accomplished masculinity and as such have very strong symbolic
implications. They impose upon the ‘owner’ (mwine)
heavy moral obligations which are subject to constant scrutiny
(occasionally leading to effective formal sanctioning by means of
respect cases) from the total surrounding community: it is trust,
in the legal sense, much more than ownership. And finally, the
actual transfer of the implied rights from one individual to the
next involves distinct procedural and ritual conditions, and
particularly, rules out purchase as a means of access.
All the same, usurping a custodian’s control over a woman is
considered ‘stealing’ and answerable under that heading.
Thus, there is a fundamental identity between adultery (i.e.,
infringing upon a husband’s rights) and premarital or
extra-marital affairs with an unmarried woman (i.e., infringing
upon the rights of the consanguineal kinsmen acting as
custodians). There is the difference, though, that the latter is
not supposed to enter into sexual relations with the woman
concerned, whereas the husband is. While there is a great deal of
extra-marital sex going on in the village (mainly in exchange for
cash), sexual offence, if publicly known, is never considered
lightly: it affects a woman’s good name; large sums of money
can be gained in litigation over such cases; even more important,
public failure to control that of which one has the custody
causes a fall in prestige, which can only be restored by
successfully suing the offender.
The very high fines usually imposed for sexual offences have
nothing to do with a transfer of custody over a woman. Therefore,
a man who is known to have entered into an extra-marital relation
with a woman, and who subsequently wishes to obtain paternal
rights over the children that were born out of this union,
normally faces the payment of both a fine and a regular
bride-[rice. As long as a man is legally married to a woman
(i.e., he has paid, or started to pay, the bride-price and has
not yet gone through the legal procedure of formally divorcing
her), he can sue any other man who usups his rights. Emphasis
here is upon sexual rights, but essentually the same applies to
other domestic tasks such as cooking food, washing clothes,
helping out at a funerary party, etc. Hence the necessity of
formal divorce: without divorce any husband, even after a de
facto breakdown of his marriage, could successfully sue any other
man who tries to take his place.
Because of the recent development of a considerable body of
well-defined rules and obligations, conflict in the sphere of sex
and marriage need not be suppressed and hushed up, but can be
publicly dealt with in the formal setting of litigation. This
leads to either reconciliation or divorce. The case will
initially be heard before the neighbourhood court. The
proceedings are the same as described for respect cases.
Theoretically, divorce[6] involves return of the
bridewealth. In practice however, no such restitution occurs in
many, perhaps the majority of divorce cases. In some cases the
bride-givers will themselves offer to return the bridewealth and
to dissolve the marriage: if they feel that the woman and her
children are suffering under the neglect and the bad ways of her
husband (drinking, violence, leaving the family without adequate
housing, food and clothing, spreading venereal disease, and
endangering her and her unborn children by breaking taboos on
illicit sex). The same applies to marital conflicts arising out
of wrong behaviour of the woman (adultery, inadequate
housekeeping, failure to show sufficient respect vis-a-vis her
senior-in-laws) in which case it will be the bride-takers asking
their money back.
The outcome of such cases depends largely on the inter-group
relations between bride-givers and bride-takers. If the senior
representatives of both groups have good mutual relations, and in
general a high prestige, which they cannot allow to be threatened
by the bad marital behaviour of a member of their group, an
effort will be made to make him better his ways. The case usually
ends in reconciliation and apology; a typical example is the
following case. The proceedings are presented in some detail, as
they nicely render the general flavour of Nkoya conflict
resolution, and show the typical strategies employed.
Kabambi, a
middle-aged man from Mukowe’s village, has two wives. The
senior one, Ennesi, he has had for many years; the other is
Loshia, a young girl he married only recently. Shortly after his
marriage Kabambi was asked by his new brother-in-law to lend him
K4.[7] Kabambi refused and the brother-in-law offered to
sell him an iron bed-frame for K6, which Kabambi agreed to. The
bed had belonged to Loshia’s deceased elder brother, who had
left it to her when he died. Kabambi was keen to acquire
ownership over this bed that his new wife was using; he feared
she would remind him ‘This is not your bed’. (The conjugal
bed plays an important part in Nkoya sexual symbolism.) Ever
since this time Ennesi had retired to her consanguineal
kinsmen’s village, only to come to Mukowe’r for a few days of
gardening. She refused to stay: but she did not refuse sexual
intercourse — provided that Kabambi would come and sleep at her
own village, which he refused. Obviously the senior wife feels
threatened in her position by the younger co-wife, but for fear
of being accused of sorcery (a standard allegation in the case of
polygyny among the Nkoya) she cannot afford to express animosity
with regard to this rival. However, no one would deny that she
has a right to fair treatment from their mutual husband, and she
often scolds him when she feels she is getting the worse share of
the game and fish he brings home. This, however, is not
sufficient reason to explain her absenteeism. Puzzled by
Ennesi’s behaviour, and annoyed, finally, by her refusal to
return home, Kabambi decided to put the case before the
neighbourhood court. The court is held away from the village, at
an open space where Mukowe made chairs. Most headmen of the
neighbourhood attend, as well as many elders and lesser men. The
gist of the proceedings follows here (apart from the spouses, all
taking part in the discussion are village headmen).
Shelonga:
Look, Kabambi, you called us here, what is the matter?
Kabambi: My
wife stays away and refuses to do anything
Shelonga:
(turning to the woman): Well what is the matter?
Ennesi: I
haven’t got a good home, no clothes, no pot, no mosquito-net. I
am eaten alive by the mosquitos. I don’t have any good things
in the house. My little sister (=co-wife) has got an iron
bedframe but I am the senior wife and I don’t have one.
Kapashi: Is
this true?
Kabambi: No,
if you think it necessary I can call children to bring and show
what she has got inside her house.
(Children are sent
on the errand and the result is truly impressive; Ennesi’s
possessions include two big iron pots on legs, three small pots,
six plates, eight spoons. The only obviously missing items are
blankets; but these she is likely to have taken away when she
left Mukowe’s).
Kanjilo:
Look, this house is full of possessions. Many people have only
got one pot, and then not a pretty one like these. So what do you
really want?
Ennesi: This
is not what I mean. But I have no proper clothes.
Kanjilo: So
what do you wear right now?
Ennesi: These
are the clothes I bought myself, with my own money that I got
from the sale of my maize.
(The exchange
continues in the same vein. It finally becomes explicit that
Ennesi wants a divorce, and that the only concrete thing she can
mention as a ground is her co-wife’s iron bedframe.)
Kanjilo: In
the past, before the Whites came, did we have an iron bedframe to
sleep upon? No. Did we have a mosquito-net? No. In that time, was
there divorce just like that, for nothing? No. So why do you
behave like a little girl now, why do you want to divorce over
such a small matter?
Wankie: Look,
all of you, I find this a very difficult case myself. The easiest
solution would be just to divorce today.
(Nobody agrees with
this solution).
Kapuka: Look,
this is my sister. You cannot tell her to divorce, just like
that. You are a big man, you are supposed to know how things are
done in Court. This is no reason for divorce, at most we can
caution. The only problem is really the bed. We don’t know
about her clothes or her blankets, but we see all the things that
she has got in her house, so we don’t believe her complaints
about blanketss and clothes either. The only problem is the
bedframe. When this man bought it for his junior wife, he should
also have given his senior wife a bedframe or K6. That is the
only problem. Thos woman is my sister, I do not want her to
divorce just like that.
Mukowe: I
have no proper power over these people. Originally Kabambi lived
far away from me, he only came to settle with me when we
ourselves moved to this place. He never reported his troubles to
me. Today is the first time that I hear all these things. Only
Kabambi’s wife came to tell me that she was leaving, never to
return. ‘Just ask your little brother (Cousin Kabambi) if you
want to know why’, she said. But when I asked him, Kabambi did
not seem to know the reason. The best solution is really just to
buy another bedframe.
Kapuka: We do
have faith in Kabambi. For whenever somebody would fall ill,
Kabambi would tie his blankets and bring them to sleep in that
place until everything would be all right again. And when someone
would die, it was the same. But since this woman started to vex
him he has changed. He stopped doing all these things because of
you, Ennesi.
Mukowe: Look,
out of my own experience I can answer you back. I can reply to
what you just said. When Kabambi’s mother died, your sister
slept there for only two days, no matter how many mourners came
and how much work there was to do. On occasion of another
funeral, she only came for one day. On yet another occasion, she
did not even turn up at all. That is why this man is annoyed now!
(The court discussed
the various aspects of the case, but found it hard to arrive at a
verdict.)
Shakupota:
The only problem is the bedframe, really. Kabambi should buy
another bedframe as soon as possible. Then if in future a new
problem arises, we can see whether someone really made a mistake,
or whether it is all just a matter of jealousy (=the state of
mind in which one resorts to sorcery).
Kapuka: My
sister, now you should take away all your possessions from our
village and go back to live with Kabambi again. He will buy a
bedframe for you or give you K6. This is the end.
(Ennesi is obviously
not entirely satisfied with this verdict; but since even her
close relatives helped to arrive at the verdict, and agree with
it, she has no choice.)
In this case we see how, for the sake of mutual interests of male
consanguineal and affinal kinsmen, obvious indications of deeper
personal and group conflicts are ignored and Ennesi is forced to
yield to these interests. It would be interesting to assess, in a
follow-up, whether the senior wife’s dissatisfaction with the
verdict has in fact precipitated a continuation of the conflict
in the sphere of sorcery, divination and ritual.
Divorce is not infrequently the result of a mutual agreement
between the spouses, feeling that they should separate on the
basis of incompatibility of habits and of character. Such divorce
with mutual consent need not lead to a disruption of inter-group
relations between bride-givers and bride-takers. In the public
discussion of the case in the village court emphasis will be put
on the personal conditions that worked against marital success
— any more collective, structural conditions involving
inter-group relations are purposely ignored. If the spouses are
found to be irreconciliable, no pressures will be applied to let
the marriage continue: the senior kinsmen fear to be blamed if in
future the marital conflict might lead to disaster (violence,
sorcery, death). An acceptable arrangement for the financial
aspects of the marriage will be found, and whatever tension
remains is expressed not through escalation and sorcery, but
through mild joking between the former spouses and between the
former husband and his successor. That inter-group relations have
not suffered is ostentatiously brought out by the fact that the
former in-laws continue to address each other by affinal kinship
terms. The good ‘post-marital’ inter-group relations
guarantee that the former husband will not try to make money out
of a subsequent attachment of the woman, so no official divorce
at the Local Court is necessary. Such divorce arrangements are
considered most honourable for all parties involved.
Relatively frictionless dissolution of marriage is, however,
impossible if the marriage has been contracted over a wide
geographical distance (which makes close day-to-day interaction
between the affines unlikely); if the marriage has already
survived for a long time; if the previous reconicliation has not
succeeded in improving the marriage; or if serious shortcomings,
and escalated intra-family tension (e.g., recent deaths),
conflict, and the associated sorcery, have reduced marital
conflict to a grim battle for survival. Under such conditions
various factors combine to take the formal dissolution out of the
hands of the neighbourhood court and to entrust it to the Local
Court.
The main factors working towards a considerable proportion of the marriage cases being tried before the Local Court are the following. The great majority of marriages is contracted in the village without any official registration; such marriages do constitute valid customary marriages before the Local Court. However, this Court does not acknowledge the validity of a divorce that is pronounced by a neighbourhood court. Therefore, it will admit the case of a former husband who, while divorced in the neighbourhood court, sees fit to sue a man who has taken his place. By consequence, divorced women are much more attractive partners for future marriages if they are in possession of a divorce certificate issued by the Local Court. Fears of a former husband involving the Local Court are all the more realistic, since in sharp contrast with the neighbourhood court, this Court can impose fines as high as K200 (maximum) and can reinforce its rulings by appeal to the district police. Sometimes it is the subchiefs themselves who press for referral to the Local Court: they are aware that it would endanger their brittle informal position of authority if, contrary to the Local Court’s explicit wish, they attempted to handle cases that are not mitigated by the desire for good post-affinal relations among the parties, and that therefore could lead to major conflicts, with affines (knowing what they could get at the Local Court) demanding sums of money far bigger than the neighbourhood court is supposed to handle. Moreover, there are certain cases which would furnish admissible grounds for divorce before the Local Court, but not before the neighbourhood court. E.g., according to the Local Court a wife is entitled to divorce and to considerable compensation if a man has left her (particularly to go and work in town) and has not contributed towards her expenses for at least one year. In the neighbourhood the absent husband’s relatives would normally tryu to play down the wife’s allegations of neglect, and the elders would sendom risk a personal conflict with the former. In such a situation a wife may consider it to her advantage to apply to the Local Court.[8]
With respect to sexual offences a pattern is followed similar to that of divorce cases. If good relations and a considerable overlap exist between the immediate kingroups of plaintiff and defendant, settlement will be in the neighbourhood court, and while a relatively small fine may be imposed, emphasis will be on redress of the offender and on the manipulation of honour: the group whose honour has suffered damage because they publicly failed to control a woman entrusted to their custody attempts to restore its dignity and to manoeuvre the defendant’s group into a situation where they lose honour by having to admit that they failed to control one of their male members. If the structural requirements for internal settlement are absent the case is usually taken to the Local Court. such a situation occured in example F.
Alisi is a young, widowed daughter of headman Kabeshas’ sister. When her husband’s death put an end to Alisi’s residence at the district centre (where she had joined Zambia’s one party), she joined Kabesha’s distant village. In this area the party had so far found very few sympathisers and Alisi proceeded to found a Women’s branch of the party. Her work brought her in contact with Peter, chairman of the likewise budding local youth branch of the party. Peter lives in Mulempwe village at the other side of the valley; here he had only remote kinsmen and is rather isolated, as regards his kinship-political position. The acquaintance developed to a stage where an enraged Kabesha has to chase Peter out of Alisi’s hut in the middle of the night. The sexual offence, in conjunction with Peter’s insults of Kabesha when caught flagrante delicto, constituted an obvious case. The relative social isolation and low popularity of both the plaintiff (cf. A) and the defendant, the absence of valued relationships between their respective villages, and the knowledge that the offences constitute an admissible case before the Local Court where they would fetch higher damages than before the neighbourhood court, led to the decision to have the case tried at Kapondwe. Here Peter was found guilty and payment of damages was imposed on him.
In contemporary Nkoya rural society the Local Court is, as to its geographical location, its personnel, and its functioning, peripheral to the mainstream of the social process. As compared to other institutions of conflict regulation (intra-village ku-ambola, the ad-hoc neighbourhood court), the Local Court is infrequently used for very specific types of cases and under specific conditions, such as were outlined in the perceding pages. The Local Court, although the only formal judicial institution stipulated within the modern administration of the area, is not in the focus of the judicial process; and such conflicts as it deals with are hardly of decisive importance to the individuals and groups involved — as compared to those conflicts which are resolved without reference to the Local Court.[9]
The Local Court, since it is there and since it commands powerful sanctions (ultimately upheld by the nation-state), superimposes upon the internal Nkoya institutions an additional judicial framework. It endeavours to define and to promote such rights and obligations as it presumes to exist between individuals. Neither the definition of its legal premises, nor its authority, nor indeed its personnel, are to any significant degree determined by the social processes within Nkoya rural society. Precisely because the Local Court is external to these processes, it can efficiently deal with conflicts between parties who are not tied to each other by multiplex roles in everyday village situations (and whose conflict therefore would directly affect a host of other people in their environment) but who on the contrary have a specific, one-stranded relationship involving fairly specific rights, obligations, and grievances.
While present-day sexual and marital relationships frequently approach this ideal-type, the bulk of social relationships in Nkoya society is still of the inclusive, multiplex nature: they involve people who are tied by, at the same time, kinship; economic, political, and ritual interests; common residence within the same village or neighbourhood. In these latter situations, involving such a peripheral agency as the Local Court may mean a temporary advantage (in terms of financial gain and revenge) to one or two individuals involved. But it will also inevitably disrupt the existing pattern of relationships to such an extent as to threaten seriously individual security, perhaps even survival; and this also applies to those few who superficially appear to benefit from the Local Court’s ruling. The latter’s turning to the Local Court is generally resented by the other party (and often by public opinion as well); even if the Local Court manages to sort out the concrete issues of the case, new ill-will is bred, the underlying conflicts over authority, status, and autonomy tend to linger on, and the risk of crisis (sorcery, fission) often remains unabated. Therefore, given well-developed internal alternatives to the Local Court, which are still endowed with sufficient authority in the eyes of the participants as well as tolerated by the Local Court and higher-level authorities, there is little wonder that most conflicts seek their solution outside the Local Court. This is particularly so since, closely related to their immediate conflict-regulatory function, ku-ambola and the neighbourhood court provide an arena where, as a direct reflection and continuation of the extra-judicial social process, basic ideals of Nkoya society are expressed, and where the status, authority and power of significant social groups, social categories, and their senior representatives are continually examined, competed for, and redistributed.
What are the implications of my argument?
Not, I should emphasize, a posthumous attack on Gluckman’s extremely valuable and seminal work. There is not the slightest suggestion that this masterly description and analysis of the judicial system of the Lozi proper should contain any major distortions, even if there is a marked difference with the judicial situation in a Lozi subject tribe, thirty years later. On the other hand, inadequacies of my own research (Van Binsbergen, forthcoming) may explain part of the discrepancy.
In addition, there are several systematic explanations of the discrepancy: the specific historical differences between the central Lozi and the Nkoya variant, within the former Barotse state; and, beyond this, a different research approach.
Comprehensive social change over several decades, including the attainment of national independence and the incorporation of the Barotse administration into the national administration of Zambia, may appear a ready explanation (Caplan 1970; Gluckman 1967a: 368f; Van Binsbergen 1975, 1976a, b. c). Yet what data I have on the Nkoya judicial situation in the 1930’s-1950’s suggests that also in the time of Gluckman’s fieldwork a similar discrepancy existed.
There are two crucial points which, although never denied by Gluckman, have so far failed to attract sufficient attention among his commentators. First, Gluckman’s research was confined to the Mongu-Lealui area: the small core of the Barotse state, where Lozi speakers then outnumbered any other groups and where the Lozi king’s power and authority were most effective. Secondly, the Barotse state as described by Gluckman was only of recent origin and in full expansion — and expansion of the Lozi legal system, also during the colonial period, was an aspect of this. As late as 1937 the colonial administration helped to establish a Lozi appeal court (Naliele kuta) headed by the son of a Lozi Paramount Chief, in the centre of Nkoya country. A major reason for the colonial adminstration supporting this move was that the imperfect incorporation of the area into the Barotse indigenous organisation made it until then impossible for disputes to go beyond the highly competing local chiefs and indunas and to use such appeal opportunities as the central Barotse judicial system provided (G.C.R. Clay, personal communication).
On one level of analysis the Nkoya (and perhaps other subject tribes on the woodland plateau of the former Barotseland, now Zambia’s Western Province) occupy, as far as their legal system is concerned, quite a different position from the central Lozi, whose institutions used to fosuc on the kingship and the land, against the background of the unique Zambezi flood plain-ecology. The difference in effective incorporation into a larger state system does explain in part the discrepancy between the judicial situation among the central Lozi and the Nkoya. On top of this came then, after independence, the general dismantling of the Lozi legal administration and of the judicial role of the Nkoya chiefs (section 2); these recent changes further added to the periopheral nature of the Local Court among the Nkoya.
However, these structural differences between the Central Lozi in Gluckman’s time, and the contemporary Nkoya, mainly concern what one might call the intermediate social-structural level: the supra-local organisation which is superimposed on the lowest, village level — but which is in itself determined, to a high degree, by national and international conditions: the governmental and industrial power distribution, world markets of labour and goods, urbanization, etc. However large the historical differences on the intermediate level, on the grass-root level of the village there exists a striking similarity between present-day Nkoya and the Lozi village society of the 1940’s, and indeed between these two, and a great many other village societies throughout Central Africa. The small villages, the high geographical mobility, the competition for political and residential following along kinship lines, the competition for titles carrying high prestige, the continuous re-alignment, and fission reflecting the conflicts engendered in this way, the part played by sorcery and sorcery accusations in these processes, the shifting agriculture with a fringe of animal husbandry as providing an additional, ecological basis for village dynamics — these are all recurrent themes in the anthropology of Central African villages (Barnes 1954; Colson 1958, 1962; Cunnison 1959; Marwick 1965; Mitchell 1956; Richards 1939; Turner 1957; Van Velsen 1964; Watson 1958).
Alternatively, on the highest level of national and international politics and political economy, most members of contemporary Nkoya society along with the overwhelming majority of rural Central Africans since the early decades of colonial rule (including most of Gluckman’s Lozi), fall within the class of peripheral peasantry. In this respect their situation is also far from unique. Determined by central conditions way beyond the control of the villagers, this situation is characterized by a paucity of local cash opportunities, dependence on urban-rural relations, and an increasingly direct influence of central agencies in the rural areas. The impact of this macro set-up upon the contemporary rural social and judicial processes can hardly be overestimated.
If both on the lowest and on the highest structural level the Nkoya and the Central Lozi are not too exceptional among Central African rural societies of the twentieth century, then the salient points brought out in my analysis can certainly not be explained exhaustively by mere reference to intermediate-level differences between Nkoya and Lozi. I would moreover, suggest that some of the Nkoya patterns outlined in the present paper may also be found to exist in modified form in other Central African societies today.
This finally brings us to an important methodological point. Whatever the historical and ethnographic peculiarities of the Nkoya, I suspect that my findings also, ald to a considerable extent, depend on a difference of perspective adopted in my research, as compared with that of other legal-anthropological studies made in Central Africa. If one concentrates on formal court cases as the unit of study, then the numerous instances of conflict and conflict regulation which occur on the village scene but which never enter this formal setting simply fall outside the scope of the research. If, as I have tried to do, one concentrates on the ongoing social process in the village, taking as one’s unit of study such social conflicts as arise, and tracing the social processes through which these conflicts are brought to an end, then litigation before a formal Local Court necessarily appears as only one op the options open to the participants; and it may well turn out that they pursue this option rarely, due to structural conditions which one may then set out to identify. Strictly speaking, the two approaches, while both legitimate and complementary to each other, yield incomparable results.
While one may wonder how limited an insight into a formal judicial system can be gained if the latter is studied as just one of many options within the overall system of conflict regulation (my weakness), one may as well ask if a judicial system can be properly understood if we continue to study it on the exclusive basis of one pre-conceived model, the formal court situation.[10]
Barnes, J. Politics in a changing society, Manchester, 1954.
—— ‘Measures of divorce frequency in simple societies’, Journal of the Royal African Institute , 79, 1949, pp. 37-62.
Brelsford, V.W. The Tribes of Zambia, Lusaka, n.d. (1965).
Caplan, G.L. The Elites of Barotseland, 1878-1969, London, 1970.
Clay, G.C.R. History of Mankoya District, Lusaka, 1945.
Colson, E. Marriage and the Family among the Plateau Tonga of Northern Rhodesia, Manchester, 1958.
—— The Plateau Tonga, Manchester, 1962.
Cunnison, I.G. The Luapula Peoples of Northern Rhodesia, Manchester, 1959.
Epstein, A.L. ‘Some aspects of the conflict of law and urban courts in Northern Rhodesia’, Rhodes-Livingstone Journal, 1951.
—— The Administration of Justice and the Urban African, London, 1953.
—— ‘Divorce law and the stability of marriage among the Lunda of Kazembe’, Rhodes-Livingstone Journal, 1954a.
—— Juridical Techniques and Judicial Process, Manchester, 1954b.
Gluckman, M. Economy of the Central Barotse Plain, Manchester, 1941.
—— Essays on Lozi Land and Royal Property, Livingstone, 1943.
—— The Judicial Process among the Barotse of Northern Rhodesia, 2nd. ed., Manchester, 1967a.
—— Introduction, in: Epstein, A.L., ed. The Craft of Social Anthropology, London, 1976b.
—— ed. Ideas and Procedures in African Customary Law, London, 1969.
—— The Ideas in Barotse Jurisprudence, 2nd ed., Manchester, 1972.
—— ‘Limitation of the case method in the study of tribal law’, Law and Society Review 1973(7), p. 611.
Mainga, M. Bulozi under the Luyana Kings, London, 1973.
Marwick, M. Sorcery in its Social Setting, Manchester, 1965.
McCulloch, M. ‘The Nkoya-Mwela peoples’, in: McCulloch, M. The Southern Lunda and Related Peoples, London, 1951.
Mitchell, J.C. The Yao Village, Manchester, 1956.
Parkin, D.J. ‘Medicines and men of influence’, Man, 1969.
Richards, A.I. Land, Labour and Diet in Northern Rhodesia, London, 1939.
Stokes, E. ‘Barotseland: the survival of an African state’, in: The Zambesian Past, ed. by I.N. Kimambo and A.J. Temu, Dar es Salaam, 1969.
Turner, V.W. Schism and Continuity in an African Society, Manchester, 1957.
—— Ndembu Divination: Its Symbols and Techniques, Manchester, 1961.
—— Chihamba: The White Spirit, Manchester, 1962.
—— The Drums of Affliction, London, 1968.
Van Binsbergen, W.M.J. ‘Bituma: Preliminary notes on a healing cult among the Nkoya’, paper read at the Conference on the History of Central-African Religious Systems, Lusaka, 1972; subsequently published in: van Binsbergen, W.M.J., 1981, Religious Change in Zambia: Exploratory studies, London/Boston: Kegan Paul International, ch. 5.
—— ‘Kinship, marriage and urban-rural relations’, paper read at the Seminar on New Directions in African Family Law, Leiden, 1974, partly incorporated in the present argument..
—— ‘Ethnicity as a dependent variable: The ‘Nkoya’ ethnic identity and inter-ethnic relations in Zambia’, paper read at the 34th Annual Meeting, Society for Applied Anthropology, Amsterdam, 1975; revised version subsequently puboished as: van Binsbergen, W.M.J., 1981, ‘The unit of study and the interpretation of ethnicity: Studying the Nkoya of Western Zambia’, in: Journal of Southern African Studies, 8, 1: 51-81; and as: van Binsbergen, W.M.J., 1985, ‘From tribe to ethnicity in western Zambia: The unit of study as an ideological problem’, in: W.M.J. van Binsbergen & P. Geschiere, eds., Old modes of production and capitalist encroachment: Anthropological explorations in Africa, London: Kegan Paul International, pp. 181-234.
—— ‘Ritual, class and urban-rural relations: elements for a Zambian case study’, Cultures et Developpement , 8, 1976a, 2; subsequently reprinted in: van Binsbergen, W.M.J., 1981, Religious Change in Zambia: Exploratory studies, London/Boston: Kegan Paul International, ch. 6.
—— 1975, ‘Labour migration and the generation conflict: An essay on social change in Central Western Zambia’, paper presented at the 34th Annual Meeting, Society for Applied Anthropology, section on the anthropology of migration, Amsterdam, March.
—— ‘The dynamics of religious change in Western Zambia’, Ufahamu 7, 1976c.
—— 1979, ‘Explorations in the sociology and history of territorial cults in Zambia’, in: Schoffeleers, J.M., eds, 1979, Guardians of the Land, Gwelo: Mambo Press, pp. 47-88; revised edition in: W.M.J. van Binsbergen, Religious change in Zambia: Exploratory studies, , chapter 3, pp. 100-134
Van Velsen, J. The Politics of Kinship, Manchester, 1964.
Watson, W. Tribal Cohesian in a Money Economy, Manchester, 1958.
Werbner, R. ‘Constitutional ambiguities and the British administration of royal careers among the Bemba of Zambia’, in: Law in Culture and Society, ed. by Nader, Chicago, 1969.
[1] Fieldwork was carried out in the period February 1972-April 1974. I am indebted to the following persons and institutions: my informants and the Zambian authorities for their warm co-operation; the University of Zambia for allowing me to devote ample time to research while I was a lecturer in the Department of Sociology, and later for research facilities provided by the Institute for African Studies; to my wife, Henny E. van Rijn; to D.K. Shiyowe for excellent research assistance; to M. Gluckman, A.J.F. Kobben, H.J. Simons, and especially J. van Velsen for encouragement and advice; to the Netherlands Foundation for the Advancement of Tropical Research (WOTRO) for supporting the writing-up of the field-data; and finally to R.L. Abel, W. Bleek, R. Canter, G. Clay, A.J.F. Kobben, H. Mwene, S.A. Roberts, H.J. Simons, and J. van Velsen for valuable criticism of earlier drafts.
[2] All names of people have been altered, as have the names of Nkoya localities.
[3] I.e., Kololo, which (contrary to the original Lozi, or Luyana, still the official Lozi court language) is not intelligibe to Nkoya speakers, unless they yave expressly learned this language.
[4] At least, as long as the relation with the dead has not yet developed to a crisis: supernatural illness, possession, post-mortem sorcery; in the latter cases, religious specialists are resorted to as the main link between the living and the dead: Van Binsbergen 1972, in 1976c, and forthcoming.
[5] It is common that a divorced woman brings her infant children into the household of a later husband; problems will begin to arise by the time these children have reached school-going age, involving expenses for school uniform, etc.
[6] Divorce is relatively frequent in Nkoya rural society. A preliminary estimate indicates that over 60% of all marriages end in divorce (instead of death). For detailed quantitative analysis, see Van Binsbergen, forthcoming.
[7] K (Kwacha), the Zambian currency. At the time of research Kl was about Hfl. 4,-.
[8] This is one of the rare instances of recognized discrepancy between the jurisprudence of the Local Court and the neighbourhood court. Disputes over land (particularly over highly-valued riverside gardens, pressure on which is beginning to build up now) provide another example: while land disputes are hardly admissible before the neighbourhood courts (due to Nkoya ideal conceptions of land-holdings), they are occasionally tried before the Local Court.
[9] I am aware that my rather intuitive assessment of relative importance of conflicts should be refined by explicit operationalization and measurement.
[10] In later reassessments of his Barotse legal research, Gluckman did admit to having studied the Barotse court cases too much in isolation, and to have ignored their relation with the ongoing social process in general (1967a: 371f; 1976b: XVI).
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