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- Africa’s international legal history is emerging from the margins of scholarly interest.
- Precolonial African diplomacy was guided by recognisable legal and normative frameworks.
- Bringing African objects, stories and customary law into teaching can broaden legal thinking.
While the new Africa-centred history curriculum in South African schools has stimulated much debate and some controversy, Africa’s international legal history is likewise emerging from the peripheries of scholarly interest.
This was evident during the inaugural lecture by the University of Pretoria’s Professor Babátúndé Fágbàyíbọ́ of the Department of Public Law in the Faculty of Law.
Fágbàyíbọ́ emphasised that his lecture was not an attempt to “romanticise Africa’s past as a perfect, unblemished space”. He said, “The aim was rather to expand the epistemic range of international law by studying the objects of internationality in precolonial Africa”.
These included carved objects, artworks, letters between African chiefs and kings and their external counterparts, written observations on African society by European and Arab actors, proverbs and anecdotes, and even the clothing and regalia, the “sartorial expressions”, of those who exercised diplomatic power.
Ultimately, Fágbàyíbọ́ said, “Such inclusion can help to broaden the ideation range of students in challenging and proposing solutions to the problems of the discipline.”
He added, “This lecture aligns with Aspiration 5 of the African Union Agenda 2063, which envisages that by the year 2063, pan-African heritage and ideals will be fully embedded in all school curricula.”
Challenging misconceptions about African law
Fágbàyíbọ́ dealt with the limitations of the traditional European-centred view of international legal history and challenged misconceptions about the supposed lack of scientific and systematic approaches in African societies.
One reason why scholarship has tended to be dismissive of precolonial African internationality is the disparaging view of the role of African indigenous or customary laws in regulating African diplomacy and dispute resolution.
African customary law had been mischaracterised as “fetish, irrational, inflexible and lacking precision”, Fágbàyíbọ́ noted, while European civil law had been designated as a mark of civilisation.
Citing eminent African jurist Taslim Olawale Elias, he noted that what such perspectives failed to consider was that African customary law complies with the three principles that define law, order, regularity and social obligation, and that African customary law is similar to European customary law and international customary law.
Significantly, there are recorded instances of precolonial African actors “exercising their agency by stressing customary laws in situations where European actors sought to impose theirs”.
He gave a powerful example; “For example, in a letter to the Secretary of the Cape Colony in 1845, King Moshoeshoe stressed that it was contrary to Basotho customary norms for him to alienate portions of the territory without the consent of his people and, as such, the Boers within his territory could not lay permanent claim to properties that did not belong to them.”
Objects, symbols and meaning in diplomacy
Fágbàyíbọ́ turned his attention to the study of objects of internationality in precolonial Africa, highlighting the significance of objects in meaning-making in diplomatic settings.
Gold-plated swords, distinctive insignia, canes, magnificent garments, caps, and masks worn by diplomats were not merely “props” but served as official diplomatic credentials.
Diplomats from Asante in Ghana would sometimes hold eggs to emphasise the sensitive nature of an issue, while the Egba Kingdom in Nigeria sent horsetails to French emissaries in the 1800s as a sign of alliance.
He also highlighted the legal and diplomatic value of African proverbs, stating, “Proverbs were also employed as useful communication and jurisprudential tools.”
Citing Basotho sayings such as “The king’s envoy is not to blame, only the sender is responsible” and “An ambassador is the eyes, ears and mouth of the king”, he illustrated enduring principles resembling diplomatic immunity.
Bringing African internationality into the classroom
Outlining his framework for incorporating objects of African internationality into international law classrooms, Fágbàyíbọ́ proposed storytelling, cross-disciplinary dialogue, community engagement, archival and curatorial practices, and investing in initiatives that link research and teaching.
Storytelling can enhance relatability and comprehension of legal principles and case law, while serving as a vehicle for simulated exercises including mock trials, plays and debates on various aspects of precolonial internationality.
Interdisciplinary dialogue could introduce students to relevant materials from anthropology, archaeology, history, philosophy, religion and sociology, while community engagement initiatives could draw on the knowledge of indigenous and cultural actors and recognise their agency as knowledge creators.
According to Fágbàyíbọ́, these and other activities could help lecturers and students gain a more multidimensional view of African international legal history.
He concluded, “The various diplomatic practices in precolonial Africa demonstrated the existence of a systematic pattern of engagements that were underpinned by a recognisable normative framework.
“The practice of internationality in Africa requires us to broaden our minds beyond the narrowly constructed colonial historiography to a more nuanced attention to marginalised epistemics.”
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