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Citation: 16 Afr. L. Stud.

80 1978
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"We think so then and we thought so still."
(Edward Lear)
Malawi is used here as an example to illustrate an
argument which I think has more general application. Put brief-
ly, the argument is that the failure to study historically the
changes in African law in the colonial period has led to a con-
fusion of tenses which affects our understanding of African law.
As a legacy of the colonial period those states which had been
under British rule had a so-called dual legal system: part
British, part African. Africanist lawyers have since, quite
properly, been building upon, "restating," and re-asserting this
African element. Yet they know very little about how it came
to be what it is; and there is a tendency to treat it as a kind
of timelessly valid African "survival." But the African law of
modern Africa was born in and shaped by the colonial period. I
think it can be shown that in the areas of criminal law and
family law, African law represents the reaction of older men to
a loss of control over wrongdoing generally and, more acutely
felt, to a loosening of control over women. This reaction grew
in strength during the first thirty or forty years of the colo-
nial period. Then, in accordance with the policy of indirect
rule, a large portion of the administration of justice was
turned over to precisely those people who had reason to define
and, more importantly, to administer the law in a restrictive
and authoritarian way. These definitions form the basis of cur-
rent African law. Historical research into the "legal environ-
ment" in which pre-colonial law turned into the "customary law"
of the colonial period could help to correct the process by
which Africa is being given an authoritarian law invalidly
claiming to embody its indigenous legal genius.
One of the most obvious gaps in our knowledge of the
colonial period in Africa is in the field of law. The study of
law has been left largely to lawyers and anthropologists, and
has been bypassed by historians who have, more often than not,
been content to remark upon the "repugnancy clause" and perhaps
This paper was initially presented at the annual meeting of
the African Studies Association in Boston in November, 1976,
and arises from studies supported by the University of Malawi,
which I would like to thank. It is hoped that its claims will
be found to be substantiated in a forthcoming larger work on
the origins of the customary law in Central Africa.
to describe the structure of indirect rule in British Africa in
the context of their account of political change. (It is strik-
ing, for example, that Chapter 1 of Lucy Mair's text Primitive
Government (1962) is on "Redress of Wrongs," a subject in which
historians, for all their attention to subjects like state for-
mation, have been little interested.) Until recently neither
lawyers nor anthropologists have focussed upon legal change
except in the broadest evolutionary terms. Lawyers, when they
are interested in legal history, are usually interested in the
practical questions of what is the pedigree and authority of a
particular rule or rules, when they came to be applicable in
the courts, and whether they are applicable now. Lawyers writ-
ing history are rarely interested in the general legal "cul-
ture," which includes not only the formal workings of the legal
system but also the ways in which people have perceived it,
their ideas about what the law should be. Law was the cutting
edge of colonialism. Law in the colonial situation was the
instrument of the power of an alien state and an intimate part
of the process of coercion. Rulers and ruled met face to face
in the colonial courts in the early years of colonial rule.
Not only were the innumerable new restrictions enforced there,
but ancient wrongs were punished in new ways and fundamental
social ideas about rights and duties, especially those pertain-
ing to the family, were subjected to new interpretations. A
variety of myths has arisen from this confrontation. There is
the myth of the colonizers (perhapy their oldest surviving
myth) that the legacy of legality, the rule of law and equal
and uncorruptible justice, was an important benefit conferred
upon Africa by colonialism. And there is the African response:
the myth that portrays a viable indigenous law pre-dating colo-
nial rule and surviving in essence throughout the colonial
period as an identifiable body of traditional African law that
can still be used today. In the case of modern Malawi myth and
counter myth have become an important part of politics and have
been crucial to the definition of cultural nationalism. The
assertion of Malawian law and legal ideas in opposition to
their foreign counterparts has been explicit and frequent, and
has been the rationale for the purported rejection of the colo-
nial legal structure.
Recent statements by Malawian leaders about their
dissatisfaction with the state of the law are not hard to find.
In the year before independence the then Minister of Justice,
Orton Chirwa, introduced the first of many legal reforms with
an attack upon the administration of justice during the colo-
nial period. In the same debate the Prime Minister, H.K.
Banda, registered the complaint that "the laws under which we
have been governed are not the laws of this country" (Nyasa-
land Legislative Council Debates, March 1963). After inde-
pendence the critique of colonial law esclated a little. In
1967 Dr. Banda expressed his explicit disapproval of such
foreign importations as the principle that a man was innocent
until proven guilty, the need for corroborative evidence, and
the notion that intention was important in cases of legal
killing. Technicalities had to be done away with; treatment in
prison was too lenient. There was much passion in his exposi-
tion and he was supported by other leaders (Malawi Parliamentary
Debates, April 1967). The scene was repeated in 1969 when the
Malawian Government proposed its most far-reaching reform of the
legal system, creating "traditional courts" outside the ambit of
the ordinary court system. It has been suggested that this move
was the result of the Government's difficulties in getting the
Supreme Court to convict in a series of politically motivated
axe murders that had swept the largest town, Blantyre (Brietzke,
1972; Hooker). But while this was a crucial factor in the tim-
ing of the measure, its introduction was already forshadowed.
Aleke Banda, (no relation to the President) who was in charge
of the measure, told the Malawian Parliament that the courts
had been "very much governed by the practice in Britain" and
now that independence had come they could no longer "slavishly
copy" the British example (Malawi Parliamentary Debates, Novem-
ber 1969). Taking part in the debate, other members of Parlia-
ment objected to the "English tradition" of paying for the de-
fence of "the very same person who committed the offence," the
presence of lawyers, and the constraints of the British rules
of evidence. The current of feeling, in both 1967 and 1969,
and the gist of the reforms was hostility to technicalities in
criminal justice and nostalgia for a traditional justice that
was supposedly free of these.
By itself, the rejection of foreign influence is not
remarkable. Of greater interest are the statements of social
ideology and the images of the past that were produced by the
debates. Dr. Banda's own hostility to his version of the "per-
missive society" is a subject on which he expresses himself
frequently and legal reform, to him, was a means of securing
surer and harsher punishments. "There is a tendency now in
Britain," he said in the debate of 1967, "not to punish any-
one...we cannot afford it here." The other members of Parlia-
ment also saw matters this way in the 1969 debate. And along
with Dr. Banda they linked the demand for a more punitive jus-
tice to their picture of traditional justice before the coming
of the white man. To give some representative examples:
traditionally, before 1891... we had our
traditional passion.... For example if
one killed a person and he was found...
he was tied up, his arms, his legs, a
lot of firewood gathered together and
made into a fire; that man thrown on
the fire to burn and pay back what he
did. That's what we used to do....
Our tradition was that if a person was
found pickpocketing...that hand must
be cut (Interjection) "Yes" (Interjec-
tion) "Or eyes plucked out." (Malawi
Parliamentary Debates, November 1969).
Lest it be thought that this kind of rhetoric is
just one of the quirks of the current leadership it should be
pointed out that this image of traditional justice at work has
been shared by Malawian lawyers and other members of the Mala-
wian elite for the last fifty years. Emily Maliwa has written
that punishment for theft in pre-colonial times was "excrucia-
ting" because there was "no justifiable excuse for stealing,"
and she quotes the former Resident in Zomba, Sir Hector Duff,
to the effect that "among primitive people where the moral
sense in essentially feeble, legislative retribution is of ne-
cessity exceptionally severe" (1967: 48-49). Likewise L. Chi-
mango-Lefani (1971) writes :
Customary law was notorious for strin-
gent penalities. Even for petty thefts
the death penalty was possible. Homicide
and adultery invited death. The culprits
might be consumed by fire.
His authority is not a white observer but G.S. Mwase who was
an outstanding and vocal member of the Malawian elite from the
1920s onwards and who wrote at length about the law (Rotberg,
1967). It is not particularly surprising that the colonial
rulers all over Africa depicted pre-colonial law in terms of
savage punishments but it appeared to me to be odd, on the face
of it, that this view should be so widely, and enthusiastically,
accepted by Malawians. There are many accounts of pre-colonial
law written by Malawians over the years since the 1920s and all
are agreed that mutilations, death by burnings, enslavement of
offenders, revenge killings, and the like, were features of
criminal justice in the pre-colonial past.
Academic Africanists will know that this picture
could not be further from current anthropological orthodoxies
about the pre-colonial law (or even current Africanist legal
orthodoxies). I cannot here attempt to sum up the changing
fashions in the writing about "primitive law" that have taken
place during the colonial period except to say that under the
influence of anthropology there has been a steady move away
from an Austinian analysis of law as a series of commands backed
by state power and courts as instruments for enforcing these
rules. Early legal analysts looking at Africa often found no
such rules, power, or courts, and emphasized the differences
between "primitive" and western law (e.g., Hartland, 1924;
Rattray, 1929). But gradually the view took hold that all
societies had laws and means of settling disputes, though these
might not necessarily be the same. While some, for example
Gluckman (1955, 1972), argued that African legal ideas and
methods were essentially similar to those found elsewhere, the
prevailing fashion has been to look for and try to define a
distinctive African legal genius. The picture of African dis-
pute settlement that has gradually emerged from this is typi-
fied by Maquet's statement:
Compromise is a key word in Africanity.
It is a way of settling personal dis-
putes and conflicts of interest by try-
ing to find a solution acceptable to both
parties... the antithesis of settlement
by compromise is settlement by reference
to abstract principles. The application
of such principles often results in an
extreme solution: one of the parties has
to be right and the other has nothing.
This was "distasteful" to Africans who knew that "reconcilia-
tion" was better. Basil Davidson in the significantly little
he has to say on the subject of law in his "entry into African
cultural history" has written to the same effect. The govern-
ing principle of African law lay in the duty to conserve the
"ideal equilibrium." The emphasis was on compensation (1973:
206-07). Legal writers have also contributed to the Garden of
Eden view of African law. Nekam, for example, tells us that
African law was "a system of keeping the balance.. .geared... not
to decisions imposed but to acceptable solutions...." In the
"traditional African community" there was "no polarization of
needs, of taste, or of values," and once the facts were estab-
lished "the same solutions will appeal to all and ways to
achieve them will seem obvious...the feeling of balance will
be something spontaneous and self evident" (1966).
Whatever these statements may be they are clearly
not descriptive. Disputes in pre-colonial Africa, like those
elsewhere, were unpleasant and often violent. Persons were
harmed and felt serious infringements upon their sense of what
was right and wrong, and often wanted revenge as well as com-
pensation. Conciliation was not always possible and solutions
could be imposed by stronger upon weaker. The conciliatory
discussion, the award based upon a mutual perception of equity,
can never have been more than a partial aspect. Even where
moral positions are agreed upon the cry for a lex talionis is
a common one. Where morals and rights are in dispute between
groups, between generations, and between sexes, the positions
assumed in anger, or in anxiety, or from power, will also de-
fine the law and the kind of settlement. The idealist view is
clearly of no use to an historian as a description of what hap-
pened, any more than the nineteenth century English legal sys-
tem can be described in terms of its self image of incorruptible
judges administering the law without "fear, favor or prejudice"
to free men equal before the law and the judgement of their
peers. But if we reject the idealist view, must we fall back
on the Malawian one, with its deaths, burnings and mutilations?
(Lest it be thought, as it sometimes is, that there is something
particularly wicked about Malawians, the view of customary law
enunciated by their vocal elite does not differ essentially from
that given in other countries in East and Central Africa) (see,
e.g., H.H. Daudi Chwa in Low, 1971: 105-06). The gap between
anthropology and the African evidence is as wide, if not wider,
in the field of family law. Why is there so wide a gap be-
tween academic knowledge and conceptualizing and the popular
view, and how do we go about acquiring a truer picture?
It was with these kinds of questions in mind that
I began the study of Central African legal history. My inten-
tions were not only to use the written records of the colonial
government and missions but to gather oral evidence as well.
Modern Africanists, particularly historians, have a great deal
invested in the value of oral evidence and strongly resist sug-
gestions that seem to detract from its use as a research tool.
In particular it might seem to have special validity as a means
of gathering materials from essentially African sources on pre-
cisely the kind of African cultural history that was both deni-
grated and distorted by outside observers. But there are spe-
cial problems that arise when considering how to use oral evi-
dence in the legal field. For in an unwritten law the very
claim that a rule is or was the law rests upon the assumption
that it was changeless, that it was the way things were always
done. The fact of its changeless regularity is what gives it
authority as a rule. Furthermore the claim of regularity and
immutability is fortified by the consideration that when people
make statements about the law they are often making statements
about deeply held moral positions. The rules about how a hus-
band and wife should behave towards each other, or what should
happen after a killing, to give two examples, involve funda-
mental positions. People making statements about them find it
very difficult to separate "is" from "ought," or in this case,
"was" from "ought to have been." Marc Bloch in Feudal Society
(1965:1/113-14) presents a sensitive account of the historicity
of the customary law and the changes it undergoes behind a
facade of changelessness. The law of feudal Europe, Bloch
wrote, was based upon the idea that "what has been has ipso
facto the right to be." In a law case "the prestige of the
past could scarcely be contested save by setting it against a
past more venerable still. The strange thing is that this law,
in whose eyes any change seemed an evil, far from being un-
changeable was in fact one of the most flexible ever known."
Law was not fixed in writing and memory was the only guardian
of tradition: "human memory, the fluid memory... is a marvel-
lous instrument of elimination and transformation." The past
was continually being remade: "Jurisprudence was the expres-
sion of needs rather than knowledge."
It is in the "needs rather than knowledge" that the
essential clue is to be found to the nature of the Malawian
evidence about what the customary law was. For the statements
which were (and are still) made about it are not so much
statements about what the law was in the past as claims about
what it ought to have been in the past and should be in the
present. The question which faces us, then, is not "Are these
statements true about the period of which they are being made?"
but "Why is there the need to present the past in this parti-
cular way?" This question can only be answered by considering
the whole legal environment of the colonial period, especially
the upheavals of its earlier part. An oral statement about
the law, then, both is and is not a statement about the past
but a claim about the present. This claim must be rigidly pre-
sented since customary law, especially when in a state of flux,
cannot afford to appear flexible because its source of legiti-
macy is tradition.
The first thing to strike an historian faced with
the problem of writing about African law is the question "when
was the African law?" In the case of Malawi this cannot be
answered just by assuming that a customary legal system func-
tioned during the pre-colonial years of the nineteenth century,
elements of which now form the African part of the Malawian
legal system. It hardly needs pointing out that the British
conquest of Malawi in the 1890s was but the last of a series
experienced by the indigenous matrilineal peoples. The Ngoni
conquests, imposing very different concepts of marriage, and
laws and power to go with them, effected an upheaval in the
sphere of family law. As the slave trade grew during the nine-
teenth century it also transformed the institutions of personal
and family law and imposed on many some kind of servile status.
The general decline in effectiveness of local political insti-
tutions under the impact of the series of nineteenth century
crises affected the instruments, machinery, and methods of dis-
pute settlement generally. The "when" in the minds of the neo-
traditionalists is the immediate pre-colonial period, but it
was hardly a time of functioning normality. The next question
is "whose was the African law?" It is clear that prior to the
colonial conquest there were several systems, some of which co-
existed in varying relations of dominance and others of which
were in fierce conflict.
It was into this situation that the British admin-
istrators came, with exaggerated notions of legal messianism
in the early years. They did not think much of the African law,
or of anything else African, and were determined to bring law
and order, and above all what they saw as equitable justice, to
the savages they had just rescued from chaos. One example will
suffice. Duff, who was a Magistrate in Zomba. the capital,
wrote that before the British had come virtually all offences
were punishable by death preceded by torture because "savage
governments can only be upheld by a policy of terror," and
that the British were trying to apply their "humane ideas" to
those who had lived by "international rapine." Justice was
meted out in a "decidedly patriarchal fashion" by the Residents.
No special training was needed to "distinguish meum from tuum,
plain right from plain wrong" (Duff, 1903 :238,326,330). In
this atmosphere, in the early years, the administration gathered
court work unto itself in the belief that its beneficent justice
would not only establish its authority but make that authority
more acceptable. These expectations were not to be fulfilled.
The young residents were ignorant of the language of
their new subjects, and at the mercy of interpreters, Boma mes-
sengers, and police, many of whom saw the opportunities to do
well for themselves out of the new dispensation. Even without
these handicaps the court books testify to the fact that jus-
tice was often administered in an atmosphere of scorn, impa-
tience, and cruel schoolboy humor. The role of the new courts
made it inevitable that they would become unpopular. For far
from bringing a new justice, they settled down to a daily rou-
tine of punishing tax offenders and offenders against the em-
ployment laws and the host of other new ordinances. They were,
and they came to be seen as, the arms of colonial social dis-
cipline, and they would often go beyond the law to punish be-
havior. And, yet, in the early years, the new courts filled
with civil litigants who preferred to seek justice in them in
spite of the risks. Who were these people and what brought
them to the courts? To answer this question I must turn from
the criminal law to the law of the family.
In much of the writing about the colonial era African
marriage is seen as crumbling under the impact of outside forces.
In the case of Central Africa labor migration and the influence
of the missions are said to have been the vital factors for
change. What has been obscured is the acute conflict between
different types of African marriage, which carried over into the
colonial system. The new courts found themselves flooded with
women seeking divorce or, as they often put it, release from
slavery. In a large proportion of cases in the early years
these were Chewa or Tumbuka "captive wives" seeking release and
an opportunity to return home. The new white magistrates were
at first eager to help. After all, part of the legal mission
was to provide succour and uplift to African women, who were
regarded as being in a degraded position. The competence newly
granted to women to initiate cases, and the ease with which they
obtained dissolution of their marriages, produced an intensely
angry reaction from the male population. Gradually there emer-
ged a picture of a golden age in which women had been submis-
sive, divorce rare, and adultery heavily punished. It was the
counterpart to the picture of pre-colonial criminal law--virtue
maintained by strictness--which the colonial generation was
also manufacturing. In former days, as the Reverend Ysaye Mwase
put it, women had occupied themselves with "cooking and pound-
ing...helping their husbands and fathers... [they] were loving
and amiable in their homes...divorce was very rare.... Where
the authority of parents or chiefs is obeyed implicitly... there
could be no common divorces" (Malawi National Archives, Native
Customs General, NSl /3/26) "Strict and terrible" punishments
had been inflicted for adultery and fornication. If the offence
was repeated a man's relatives "would be disposed to give him
over to be burnt up alive in an open field, without mercy, in
the presence of a great crowd of people." Similar accounts of
the pre-colonial laws regulating sexual behavior were offered
for all parts of the country during the 1920s. G.S. Mwase was
clearly unhappy about the way in which the new laws not only
required that a woman consent to her marriage but also treated
women as if they had the right to arrange their own marriages.
While the parents of a young woman were looking for an appro-
priate husband, he wrote, "Another whimsilcal fool wheedles her
and falls into adultery with her without the permission of her
parents. This is...a case which the whiteman's laws say abso-
lutely nothing against it. It is said that both are free agents
and can arrange and agree whatsoever is between them." He felt
that the man in such cases should be treated as an adulterer and
punished very severely, although there were now
a lot of doubts in the way the whiteman
decides it. [Formerly] this is one of
the capital charge...followed with death
sentence by consuming both the culprits
by fire... even a spear would play his
flesh or her flesh until they were both
perished... And sometimes both culprits
were to be given away by cutting of
parts of their bodies such as ear, arms,
nose or something else in the way of
emasculation.... But the whiteman's law
is very much relaxed in dealing with this
case. I am afraid such slackness in this
respect encourages the crime to be done
publicly or without shame. (Rotberg,
1967: 115-17).
This reaction among Malawian men was shared by the
colonial courts. District Officers soon grew impatient with
the number of marriage cases and came to believe that the men
were right, that women were getting out of control, that the
authority of parents and husbands was being dangerously under-
mined, and that this threatened the moral standards and well
being of the community as a whole. There was nothing essen-
tially incompatible between the British conception of the male
dominated monogamous family and the kind of morality African
men were demanding. A great deal has been written about the
clash between Christian monogamy and African polygamy and the
fascinating problems of law which arise. Yet I would stress
that this is really a fringe issue. Few people were directly
affected by Christian marriage, and Christian marriage was not
essentially subversive of male or parental authority. Many of
the complaints about social dislocation, about weakness in
authority leading to immorality among women, came from the new
Christians, but their main concern was not the polygamy which
bothered the missionaries, but adultery by women and divorce.
In so far as the Christian concept of marriage did influence the
bulk of the population it served to provide an extra weapon,
the divine sanction of indissoluble marriage, in the struggle
to keep women disciplined. An idealized concept of the old
morality could make common cause with the new mission morality.
The coming of the missions and their obsession with
sin was an added ingredient in the making of a punitive and
authoritarian customary law. One observer describes the Living-
stonia Presbytery meeting in 1914 and its discussion of marriage
and divorce at which "the sympathy of the native elders seemed
to go out chiefly to the husbands."
A more highly instructed member rose to
a point of order. The Presbytery, he
said, had already settled the law of
marriage. Upon this Dr. Elmslie started
to his feet. "It is not the Presbytery
that has made the law. It is the law
of Christ." ...he repeated [this] in
the native speech with a passionate
vehemence (Morrison, 1969: 47-48).
The law was no longer man's but God's; its transgression was
not a social wrong but a sin. Consequently notions of punish-
ment also escalated. The neo-traditionalists, animated by a
fiery version of the Christian conscience and under the perva-
sive influence of the Old Testament, represented the former
mutilation of thieves or the killing of sorcerers as having
been a punishment for moral infraction rather than a means of
deterrence and prevention. The escalation of the consequences
of crime, and the tendency to equate crime with sin and to
demand an appropriately apocalyptic punishment, can convenient-
ly be illustrated again from G.S. Mwase. He concludes his
comments on the kindness of his treatment in prison with the
following remarks:
I wonder if divine treatment towards
sinners is like this one which our
local government is doing to its sin-
ners. I think the divine punishment
is more better than the Government can
do. Picking out from what I am taught
the divine punishment is very cruel.
There is no mercy or grace towards a
convict.... Out of what I am taught
is clearly that once you are convicted
by the divine court and sentenced to
everlasting punishment [you have] no
food, cloth, water... (Rotberg, 1967:
In Mwase's view, not the Zomba prison but the missionaries'
hell was the just desert for the criminal.
To this must be added the problems caused by the
administration's outlawry of the ritual trial to detect witch-
craft. A good deal has been written about anti-sorcery move-
ments in Central Africa but nowadays the problem is rarely put
in the context of a discussion of the law. Yet Malawians in
the colonial period often identified the problem of witchcraft
detection with law and still do. All I wish to say in this
context is that when the muavi ordeal trial was outlawed the
effect was to take control of a major area of malfeasance away
from the community. The abolition of former sanctions against
the "criminal" sorcerer led to the demand for new sanctions.
Death by ordeal was a necessary part of some muavi trials since
it proved the suspect's guilt. I would suggest that it was
death in this context that was the basis for the assertion that
homicide of any kind in pre-colonial Malawi was punished by
death, a claim often advanced in support of demands for the
extension of the death penalty. The abolition of muavi had
also an effect on the atmosphere surrounding family law, for it
had commonly been used to test allegations of adultery by women.
Its abolition was another reason for the male community to feel
that women could misbehave with impunity.
Finally, the briefest mention of slavery, which was
widespread by the late nineteenth century, especially in the
new conquest societies of Central Africa: Slaves, or their
matrikin, soon found that the new courts did not recognize ser-
vile status, and could be used to obtain release (even though
Livingstone's heirs were rather less anxious to effect a social
revolution than he had been). For the former rulers of African
society this was another blow to status and authority generally.
It also outlawed the main means of paying compensation in order
to restore the equilibrium of which the idealists write. And
it destroyed many of the "marriages" that formed the structural
basis of Ngoni and Yao conquest states. It is thus part of the
context in which the leaders of Malawian society developed
feelings of anger and anxiety about social breakdown.
It is not particularly remarkable to point out that
the former rulers in Malawi and elsewhere suffered a loss of
authority. But for the legal historian it becomes crucial
because this loss was felt in "legal" fields over which these
men were again given power in the early 1930s. The temporal
conjunction of a social reaction and the creation of the Native
Authority Courts was to leave a distinctive legacy not only in
Malawi but widely in East and Central Africa. The establish-
ment of the Native Authority Courts led to the creation an Afri-
can customary law in a particular historical context by men
whose outlook had been formed by the particular processes of
the social history of the early colonial period. This was a
time not only of disintegrative impact and structural change
but also one of attempted restoration and rebuilding, both
contributing to the growth of a neo-traditional ideology. It
was a time, too, not of the reception of the English common law
but of the imposition of institutions which shaped the new legal
environment in which the African legal response was formed.
This new environment structured the conflict not only between
African and English legal ideas but between sometimes conflic-
ting African legal systems. Focussing upon these processes,
rather than upon theories about dispute settlement in small
societies or idealization of the pre-colonial past and its pur-
ported survival, may be the most useful way to understand
the growth of the customary law, for it brings to the fore-
front the circumstances in which emphasis was placed on cer-
tain kinds of values, and the ways in which these were turned
into law.
Bloch, Marc (1965) Feudal Society. London.
Brietzke, P. (1972) "Witchcraft and Law in Malawi," East Afri-
can Law Journal, 8.
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Marguerite Johnston
I. Introduction
Reconciliation is the express purpose of elders'
councils and oracles, two traditional dispute institutuions
of the Giriama of Kenya
. Before decisions are rendered by
the elders at the elders' councils (kambi, pl. kambi) or by
oracles (kiraho, pl. viraho) during trials by ordeal, those
in attendance-rituallFchant, "Let good things come, let bad
things go away/Let all bad things end here... "
These concil-
iatory goals, however, sometimes are not realized or even
attempted. The case studies below will show that the tech-
niques used to reconcile disputants are highly variable and
reflect such factors as the gravity of the accusation, the
social relationship between disputants, and their explicit
purposes in litigating. This paper will try to convey how
these factors can influence dispute settlement procedures and
how, to a lesser degree, these procedures can affect social
relations. Although the cases demonstrate the dynamism of
Giriama dispute settlement procedures, it will also be ap-
parent that the outcomes of disputes are largely predeter-
mined by the attitudes and motivations that disputants bring
to the forum: "Dispute processes are but part of a larger
continuum" (Gulliver, 1969:60). This paper will emphasize,
however, the intricacies of the dispute settlement procedures
themselves and the dyadic relationship between disputants.
Ethnographic data extrinsic to the disputes will be presented
to suggest the possible sources of conflict inherent in these
relationships and how the breaking of certain culturally ap-
proved norms will affect the future of the relationships.
The discussion will thus attempt to avoid the ap-
parent contradiction that arises when descriptions of dis-
pute settlement procedures are confused with the ideal aims
of dispute institutions, such as promoting compromise and
reconciling parties in multiplex relations
(e.g., Gluckman,
1955; Gulliver, 1963; Bohannan, 1957). Finally, I hope to
clarify the inadequate concept of "African arbitration" which,
surprisingly, appears to co-exist with rigid systems of com-
pensation (Coons, 1964:780).
II. The relevance of the Compromise Model for Giriama Disputes
To some extent, my discussion follows suggestions
made by critics of the analytic models that have commonly been
used in the study of dispute settlement procedures, either
The germ of this paper is my dissertation Dispute Settlement
among the Giriama of Kenya (Department of Anthropology, Univer-
sity of Pennsylvania, 1976). For his thoughts and criticisms,
also reflected here, I express my appreciation to Professor
Igor Kopytoff. I am also grateful to the Russell Sage Founda-
tion for awarding me a Law and Social Science Residency (1974-
75) at the University of Pennsylvania Law School.
explicitly or implicitly
. The compromise model of dispute
settlement has been favored by analysts of multiplex, face-
to-face communities in which the values of disputants have
been assumed to be reconciliation and social harmony (Gluckman,
1955; Gulliver, 1963; Bohannan, 1957; Nader, 1969). This
model includes compromise decisions, agreements, prospective
reasoning, and a de-emphasis of guilt or innocence.
Critics of t]Ze compromise model reject the under-
lying assumption that reconciliation and social harmony are
dominant values shared by individuals in multiplex relation-
ships. There is also dissatisfaction with the quality and
analysis of the case material that has formed the basis for
the compromise model. Abel (1973:241) says that we still
know too little about the qualities of disputes to begin
grouping them into typologies, and questions whether the
elements of the compromise model form a fundamental style of
dispute settlement. Van Velsen (1969:148) and Starr and
Yngvesson (1975:562) emphasize that analyses of the presence
or absence of reconciliation or compromise should take into
account the purposes of the litigation and how each party to
the dispute defines his goals. Van Velsen (1969:144) points
out the failure of the literature to note the stage in the
judicial process at which it is possible to effect reconcilia-
tion; from this has followed the invalid assumption that pre-
cise interpretations of rules preclude reconciliation. Thus
the case material in the literature that tends to over-empha-
size reconciliation (e.g. Holleman, 1950; Bohannan, 1957) con-
tains clear evidence that conciliatory efforts, and decisions
that unequivocally ascribe wrongdoing, are not mutually exclu-
sive, but may be appropriate under different circumstances and
at different stages in the judicial process (Van Velsen, 1969:
44-45). An intensive reanalysis by Starr and Yngvesson (1975)
of case materials contained in Gluckman (1955), Gulliver (1963),
and Nader (1969), finds that compromise decisions and recon-
ciliation are not inevitable outcomes of disputes in these
multiplex communities, notwithstanding the assertions of those
writers. Thus, it is clear that the prevalence of multiplex
relationships is not the only significant factor influencing
dispute outcomes; disputes must be analyzed within a broader
context of litigants' ongoing social relationships so that we
can perceive variation in the procedures for handling disputes.
The discussion that follows attempts to take these
criticisms and suggestions into account to the extent that the
data allow. I have also tried to be responsive to the comment
by Gluckman (1968:291) that
for tribal courts we lack detailed records
of cases, including the examination of
evidence and judicial decisions. No one
has published sufficiently detailed records
of processes of argumentation towards de-
Many Giriama disputes, although they typically involve
disputants in multiplex relationships, may not allow compromise
of the validity or amount of the claim because of the nature
of the claim or its remedy. Public allegations of sorcery,
theft, adultery and incest--frequent sources of Giriama dis-
putes--are inflammatory and require a decision announcing
whether a wrong has been done and ascribing blame. Such a
decision is also necessary for the victim to claim compen-
satory damages. Thus someone who has been wrongly accused is
entitled to damages for "spoiling the name." If a proven wrong
has resulted in death (often believed to be the consequence of
sorcery or incest), the relatives of the deceased have the
right to death compensation (kore); a cuckholded husband or the
father of an unmarried girl who is abducted has the right to
receive compensation (malu) for the wrongful taking of the
female's sexual services. Allegations that seek to ascribe
blame and present difficult problems of proof are often taken
to oracles: fact-finding institutions that decide only guilt
or innocence. We shall see, however, that none of these fac-
tors--even the procedural framework of a trial by ordeal, with
its inevitable "either/or" outcome--preclude eventual recon-
ciliation. Rather, the possibility of reconciliation depends
on the disputants' broader social relationship, of which the
immediate dispute is but a partial reflection.
The case studies below of the three disputes (sor-
cery, adultery, and brideprice debt) were deliberately chosen
because neither the validity nor the amount of the claims
could have been compromised by the dispute institutions (except
indirectly, by avoiding some of the issues). The analysis is
thus diverted at once from the assumption that reconciliation
is inevitable, or inextricably linked to compromise decisions,
to a closer consideration of the aualities of each case that
encourage or preclude reconciliation. The cases will show
that disputants' predispositions to become reconciled differ,
depending on their purposes in litigating; that reconciliation
must be evaluated according to the modal conduct appropriate
to the parties in a non-dispute situation. Thus attempts to
reconcile disputants vary in form and vigor and reflect factors
that are extrinsic to the instant dispute- The elders who are
present at both the councils of elders and trials by ordeal may
make conciliatory efforts, before the decision is rendered,
that may be influenced by such factors as: the gravity of the
accusation and its implications for the disputants' relation-
ship, the sources of conflict known to inhere in such rela-
tionships, the history of this relationship, including prior
conflict and disputing, the motives for making the claim.
These factors, which may be personally known to the elders,
readily surmised, or revealed in the course of giving testimony,
appear to be weighed and combined differently for each dispute
and account for the variation in conciliatory efforts. Those
efforts can be lively and ascribe degrees of wrongdoing to
both parties, praise the ultimate loser, and chasten the ulti-
mate wifiner. By comparison, the actual decision that often
favors one party is brief and dispassionate and, in the case
of the oracles, may be only symbolic. Thus the individual-
ized conciliatory techniques lay the foundation for possible
reconciliation by considering the unique aspects of each case
and providing a measure of individual justice. But these pro-
ceedings are quite separate from the decision. In this manner
dispute settlement can be encouraged when it is feasible and
yet the norms that order conduct remain uncompromised.
III. The Giriama and Their Dispute Institutions
According to legend, Giriama society as it is known
today began at Kaya Fungo, a fortified village in the Kilifi
District of Kenya, of which vestiges still remain. There the
founding ancestors of the six orginal, exogamous patrilineal
clans, and their descendants, corporately owned land on which
they cultivated maize. New clans were created when sibling
rivalry--often between sons of co-wives in polygynous house-
holds--could no longer be contained within the existing struc-
The Giriama were governed by the Vaya, the most pres-
tigious of the secret societies. Composed of duly initiated
elderly men, the Vaya are reputed to have been the guardians
of the Giriama: they regulated seasonal activities such as
planting and harvest, prayed for rain in times of drought, con--
sulted diviners for the cause oF pestilence, and initiated
youths into their age-grades. The Vaya presided over trials
by ordeal and listened to disputes that could affect the wel-
fare of the society. The Vaya were greatly feared and respec-
ted because they possessed powerful coercive equipment: the
right to execute persistent offenders by strangulation, and
the administration of the dreaded Kiraho cha Fisi, the Oracle
of the Hyena, an ordeal by poison that killed offenders in-
stantly. Members of the senior age-grade, the kambi elders,
gathered daily to listen to the petty quarrels of everyday
The supernatural played an important role in dis-
covering and dealing with wrongdoing. Mulungu, the Sky-God,
through his spirit-messengers, the pepo, relayed supernatural
information about wrongdoing to diviners who were often con-
sulted during the fact-finding stage of disputes. A higher-
ranking diviner, an mgonga wa mwingo , accused individuals
(most often of sorcery- i.n publicceremonies during which he
sang frequent prayers to God and the ancestors asking for
guidance. God and the ancestors were believed to decide the
outcomes of many disputes. These omniscient beings decided
who was guiltv at trials by ordeal. As a last resort, dis-
putants could petition God through his spirit-messengers at
their sacred dwelling places called mizimu, to request the
death of a false accuser or a recalc-trant transgressor.
Many generations ago the clans left the confines of
Kaya Fungo. Today the Giriama live in widely scattered ham-
lets often composed of a man and two generations of his patri-
lineal descendants. Although the dispersal of the population
and the passage of time have eroded the corporate structure of
the clans and the power of the Vaya, the institutions for
handling disputes have largely endured.
A. The Jurisdictions of Elders' Councils and Oracles
Psychological rather than physical power is the
basis of the jurisdiction of the councils of elders and the
oracles. Although a party may use social or physical pressure
to persuade an adversary to submit to adjudication, the dis-
pute institutions themselves do not force litigants to be pre-
sent. Councils of elders will not give a default judgment if
the defendant fails to appear or walks out. At the oracles,
litigants participate in trials by ordeal only after they have
testified to their willingness to do so.
Councils of elders evaluate conduct on the basis of
testimony and allocate rights and duties. The oracles ascribe
blame by revealing hidden facts through trials by ordeal.
When a dispute requires both an ascription of blamne and an
allocation of rights and duties, the council of elders and the
oracle may become different stages of a single process.
Through the oracles, God and ths ancestors act as
supernaucal judges who reveal the guilt or innocence of liti-
gants by the physical reactions of the latter to ordeals by
poison or fire. In the poison ordeals of the Kiraho cha Papayu
and the Kiraho cha Mwalola, a secret medicine is ingested and
the guilty party becomes ill. In the ordeal by fire, the
Kiraho cha Tsoka, the litigants' hands are smeared with medi-
cine over which a red-hot wedge of iron is passed; blistering
indicates guilt.
Most often, accused and accuser go to an oracle to-
gether. If the accused suffers adverse effects from the or-
deal he is guilty; a similarly affected accuser is adjudged to
have made a false accusation, a wrong in itself. Sometimes
the accused alone submits to a trial by ordeal simply to prove
his innocence, an act known as kudzagesa ("to wash oneself").
The iuardians of the oracles are called wagonga
(sing. mgonga)
because they alone own the secret formulae of
the medicines used in the ordeals. These guardians say that
the oracles reveal what is unknown to men, that is, the invis-
ible truth of the matter. In the course of lengthy proceed-
ings before an ordeal is administered, this "truth" however,
is narrowed down to the question of whose version of events is
correct. When presented with a simple "either/or" version of
truth, the oracle resolves the question by making a selection.
The authority of the oracles was omnipotent in for-
mer times, but today it does not go completely unchallenged.
It is significant, however, that litigants do not challenge
the veracity of an oracle within a traditional context. Liti-
gants who question the outcome of an ordeal take their cases to
a government Magistrate's Court and usually allege that they
took the ordeal unwillingly or that the outcome was "fixed."
Nevertheless, even government magistrates appear to uphold the
of oracles.
Oracles remain peculiarly suited to ascribing blame
by determining difficult factual issues. Their authority de-
rives from omniscient supernatural beings who need not reason
and weigh conflicting, sparse testimony to determine what hap-
pened. The oracles simply reveal the truth by inflicting sym-
toms of guilt in response to the assertions of the litigants.
In former times, all members of the councils of el-
ders were chosen from the most senior age-grade, the kambi.
Today those councils (which are called kambi because of their
constituent membership) still appear to be composed of older
men widely respected for their knowledge of the customs.
Someti.mes, however, their authority is openly challenged, and
there are rumors of corruption.
in 1914 Authur Champion, a colonial District Officer,
reported that disputants often took their cases to several
councils of elders in different areas until a favorable deci-
sion was obtained by bribery (Champion, 1967:18). Although
today this opportunism has been curtailed by requiring the
plaintiff seeking a hearing before the elders to obtain written
permission from the Location Chief,
there are other signs that
the judicial authority of the elders remains weak. If a liti-
gant senses an unfavorable judgment, he may simply leave before
the decision is announced. Upon hearing an unfavorable judg-
ment, some litigants stalk out in an attitude of defiance. For
their part, the elders may "announce" potentially controversial
opinions in sarcastic, informal asides that are quite separate
from their formal judgment; they may also recommend that a dis-
putant, faced with an obdurate opponent, resort to self-help.
History indicates that the elders' weakness is not
entirely a result of the passage of time. As we already noted,
in earlier times the members of the secret society of the Vaya
were the most powerful and effective of the secular adjudica-
tors; the kambi decided less important matters. As an institu-
tion, however, the kambi has survived better than the Vaya, pos-
sibly because requirements for membership are less onerous and
it needs less of an administrative center. Even more important
was the willingness of the British administration to recognize
the kambi as an indigenous agency for dispute settlement (see
Native Courts Regulation, No.52 of 1897, 2 (b)). Today, with
some reservations, the kambi are still considered to be aides
in local administration. By constrast, the administration
succeeded in eliminating the more powerful of the ordeals con-
trolled by the Vaya. A few Vaya still live at Kaya Fungo where
they administer the respected but non-lethal Oracle of the
Pa pau, but their real power has been dissipated.
The history of the kambi, and their present quasi-
administrative role, have com ned to preserve a judicial weak-
ness that has, ironically, reinforced the traditional division
between secular and supernatural juridictions.
B. Procedure at Councils of Elders and Oracles
Councils of elders vary little in their basic struc-
ture and procedure. The five councils which I visited regular-
ly were composed of from four to six elders. Apart from an
occasional fortuitous kinship relationship between an elder
and a disputant, elders have no personal interest or stake in
the outcomes of disputes before them. They have a conserva-
tive outlook that often has a discernible effect on their deci-
sion-making: they often cite the importance of custom and tra-
dition and steadfastly defy requests by local government admin-
istrators that they not hear sorcery disputes. The elders pre-
sent a united front by not disagreeing publicly among them-
selves and by chanting in unison after a decision has been
announced: "That is indeed what we have decided."
Councils meet at least twice a week, but can be con-
vened at any time if a dispute arises suddenly. When a coun-
cil is in session, the elders sit in a line on a log or on in-
dividual stools; the disputants sit on a rock before the elders,
in the center of a circle created by spectators. Plaintiff and
defendant are separated from each other by having only one dis-
putant occupy a seat in the center of the circle or, alterna-
tively, by having the disputants seated side by side.
Basic procedure does not vary from one council to
another. Disputants are allowed to tell their story with few
restrictions. The plaintiff presents his case first, immedi-
ately followed by a reply from the defendant. Plaintiff and
defendant make lengthy opening speeches, are given complete
freedom to express themselves, and attempt to reply or counter
what the other has said. Each disputant has the opportunity
to answer the other at least twice before the elders intervene
and begin to play an active role. There are thus at least two
speeches given by each disputant without interference by the
listening elders. During these speeches, the disputants are
forbidden to interrupt each other; if either attempts to do so
he is silenced immediately by the elders. The speaker singles
out one elder to address, and this provides a focus for his
speech. The elder addressed responds in the customary manner
of attentiveness by sharply and audibly sucking in his breath
at appropriate pauses in the speaker's narrative. At the end
of the initial submissions there may be a brief question from
any of the elders to clarify a factual point, but at this time
the questions are not combative or argumentative, which they
may be in later phases of the hearing.
When the opening speeches by the disputants have been
completed the elders may question each disputant at length on
any point that was raised during the initial speech. If it is
practicable, the elders may encourage the disputants to nego-
tiate a resolution (perhaps only an interim one) that will be
affirmed in the formal decision. To this end, the disputants
may go a short distance away to confer briefly and return to
announce their agreement. Failing this, the elders begin to
prepare the disputants to accept a unilateral decision by the
elders, using a combination of threats, flattery, and common
sense. Here lies the heart of Giriama reconciliation: it does
not necessarily compromise claims or create lasting good feel-
ing, but it does lead to the acceptance of a reasonable dispo-
sition of the case that is in the disputants' best interests
for the time being.
Finally, the disputants are told to go far away from
the elders, who now hold their private conference (njama).
During this conference, some of the male auditors who have been
seated among the spectators are free to venture an opinion, but
the elders dominate. When this discussion is finished and a
decision is reached, the disputants are called back and the
themo--the fee to the elders for listening to the case--must
be paid by each disputant before the elders will announce their
decision. Then an elder, usually one who is unusually fluent,
delivers the decision. Though individual styles of delivery
may vary considerably, the facts of the case--cleverly arranged
and interpreted--are commonly reviewed to cajole the disputants
into accepting the actual decision, given at the end of the
At the oracles the wagonga who administer ordeals,
and the other elders who are invariahly present, insure that
the circumstances of the dispute are fully related before a
trial by ordeal is given. The pre-ordeal precedure for giving
and receiving testimony is renarkably similar to the procedure
at the elders' councils. The terseness of pre-ordeal testi-
mony compared with that at the elders' councils can be ex-
plained by fear of the ordeal and the bitterness and determi-
nation that often accompany the quest to ascribe blame. In
addition, the administrators of the ordeal may be less familiar
with the case than the council, for disputants are free to
range widely in selecting ordeals. This is almost always the
case, for example, with the prestigious poison ordeal Kiraho
cha Papayu, located at the isolated village of Kaya Fungo.
Neither relative unfamiliarity with the case, nor an
oracular decision that harshly ascribes guilt or innocence,
deters the administrators of ordeals from making conciliatory
gestures appropriate to the circumstances of the case. In
?roceedings before ordeals, disputants may be cajoled or
coerced into accepting the outcome in much the same way as
kambi elders prepare disputants for their decisions.
IV. Case Analyses and Ethnographic Materials
A. The Case
of Sidi
l 0
Giriama sorcerers (mutsai, pl. atsai) use medicines
which they instruct to have some ill-effect on human beings,
crops, or livestock. Sorcerers work at night to secrete the
medicine in places frequented by the intended victim: paths,
gardern, waterholes. While concealing the medicine, the sor-
cerer murmurs the victim's identity and the medicine's intend-
ed effect.
There is often an aura of sorcery surrounding those
who distinguish themselves, whether by success or eccentri-
city. People who behave oddly may be called sorcerers in a
jocose manner, but the laughter is uncomfortable. There are
whispers of sorcery about rich, powerful men or favored wives
in polygynous households. The motives for sorcery most fre-
quently mentioned by diviners are economic competition and
sexual jealousy.
Individuals or groups who suspect sorcery must follow
a strict, expensive investigative and accusatory procedure.
Before a public accusation can be made, at least three diviners
(wagonga wa mburuga) must declare in private sessions that sor-
cery is the cause of the misfortune and must provide a descrip-
tion of the sorcerer. Only then can a diviner of a higher
grade, an ngonga wa kuvoyera, accuse the suspect in a public
ceremony (ngoma).
Sorcery is a grave offense. After being publicly
accused, alleged sorcerers are sometimes stoned or beaten and
their houses burned; they are always shunned. Setting in mo-
tion the procedures culninating in a sorcery accusation is
tantamount to ending a relationship--often one that has been
marred by bitter conflict over-the years. It is difficult to
reconcile parties to a sorcery dispute; such disputes tend to
fulminate and often end'with death or exile.
At the time she was accused, Sidi Simba was living
with her husband in the hamlet of her three brothers. One of
her brothers, Ngoa wa Simba, had been sick for a long time and
eventually a diviner (an mgonga wa kuvoyera) came to the ham-
let and publicly accused Si--if sorcery.
Sidi Simba is a half-sibling to her three brothers:
her father had two wives. Disputes between children of the same
father but different mothers are common in Giriama society,
possibly because of the stresses inherent in the relationship.
A mother and her children are regarded as a semi-autonomous
group that historically provided the structure of the lineage
system and today is the unit for the allocation of domestic re-
sources and inheritable property. Legends say that the number
of major lineages (mryaigo) within the six original clans
(mbari) was determined according to the number of wives each
fo oing ancestor had, although each lineage took the name of
that wife's eldest son; further fission occurred after epic
disputes between sons of the same father but different mothers
within the lineage. Today, a mother and her children often
form independent agricultural units; each wife has her own gar-
den and a maize granary that is filled by her and her children's
efforts. Grain from the granary common to all of a man's wives
and children is divided equally among wives regardless of the
number of children each may have. Inheritance of land is per
stirpes patrilineally, that is, divided according to the number
of wives and then sub-divided among the sons of each wife.
These practices tend to pit groups of half-siblings against
each other, and individual acts may aggravate tendencies toward
conflict. For example, a husband may reward a favorite wife
by distributing a disproportionate amount of food and clothing
to her children and providing her sons with brideprice before
it is paid for other, equally eligible sons. Ill-feeling may
arise when the brideprice received for the marriage of the
daughter of one wife is used to provide brideprice for the son
of another. An apocryphal case history dramatizes the situa-
tion by recounting a neglected wife's triumph when she forced
her six married daughters to leave their husbands and return
home, necessitating the return of their brideprice and wreak-
ing economic havoc in the village.
Sidi Simba and her ailing half-brother Ngoa are com-
petitors even in adulthood. Both are diviners, but Sidi's
reputation and clientele are more widespread; she herself cites
jealousy as the real reason for her accusation. Her personali-
ty makes her conspicuous in the village and elsewhere: she is
forceful and her spirited words and laughter dominate everyone.
By having Sidi accused of sorcery, her four brothers obtain a
ready explanation for Ngoa's illness and rid the village of a
bothersome competitor. These motives underlying the sorcery
accusation (although admittedly speculative), together with
the grave implications of the accusation itself, make recon-
ciliation unlikely. The circumstances of the dispute fore-
cast increasing acrimony and the relentless pursuit of an all
or nothing decision.
After the accusation, Sidi brought her brother Nyanje
Simba to an elders' council near their home. As the transcript
will show, the general issue that Sidi raises is procedural:
did her brothers take the proper steps relating to her accusa-
tion? Sidi makes two separate claims. First, Nyanje went to
bring the accusing mgonga himself; as an interested party he
should not have don-eEs. Since personal contact with the
mgonga smacks of collusion and casts doubt on the supernatural
source of the accusation, Sidi accuses Nyanje outright of hav-
ing told the mgonga whom to accuse. Secondly, and less impor-
tant, Sidi complains that Nyanje did not consult enough divi-
ners in the preliminary stages of gathering evidence before
taking the irrevocable step of having her accused in public.
One cannot discount the possibility that Sidi's ap-
pearance before the elders was merely a delaying tactic or a
deliberate annoyance; or she may have truly believed that she
could nullify her accusation. Whatever her real reasons,
Sidi's options as an accused sorcerer were limited. She did
not choose to go to an oracle at this point because an oracle
could have determined only her guilt or innocence; at present
she wanted to challenge the validity of her accusation on pro-
cedural grounds, a claim that only the elders could decide.
Sidi: It was the day before yesterday,
in our village; my brothers sat together
and talked about me. I was not told about
the meeting, but I found out about it
later... Two days later, an mgonga wa
kuvoyera came to the village. He came
and played his ngoma and found that I was
the sorcerer.
After the mgonga had gone away, my
brothers discussed whc:t they should do.
They called me and sacd: "Now that you
have been found a sorcerer, we would
like to solve the matter as brothers.
After all, you are one of us. We want
you to pay us the money that it cost to
bring the mgonga."
They said that they did not want to
bring the matter to the elders, they
just wanted me to pay the money and
that would be the end of the matter.
All they wanted to know was who was the
sorcerer, and now they knew.
I did not admit it. I have never been a
sorcerer in my life. But I knew that
this would happen. I knew that my bro-
thers would get an mgonga wa kuvoyera
and that the mgonga would come and accuse
me as a sorcerer. And if that mgonga
had come and had found someone else,
my brothers would refuse to pay him his
fee. So, knowing that the m onga was
meant to catch me, I knew that it was a
trick, that there was no truth in it.
Elder: Whom are you accusing? Of all
of your brothers, with whom are you ready
to speak?
Sidi: I will speak with Nyanje, he is
the leader, he is the one who came and
told me that I would pay the cost of
the mgonga.
Nyanje, seeking to quell suspicion, emphasizes that Sidi
Simba's mother was consulted before and during the accusation.
He defends the validity of the accusation and protests that
Sidi is making the case more serious by bringing it to the
Nyanje: I wauld like all of you to know
that Sidi Simba is my own, young sister,
though we have different mothers. My
mother was the elder. But now my mother
is dead, and her mother is left. Our
mothers had only one husband and that
was our father. All this was brought
about by my young brother Ngoa wa Simba.
He has been sick for many days, and I
have tried in all ways to make him well.
Now when Ngoa had been sick for a long
time, I called the mother of Sidi Simba
and asked her what we should do. We
asked her about bringing an mgonga wa
kuvoyera. To that our mother consented.
It took me a long time to get the mgonga
to come; almost a month I spent search-
ing for him, but at last he came.
The crowd was so large! The people were
singing and shouting, they all wanted to
know who the sorcerer was! The mgonga
took all the Mwaziro (the clan name), all
of us, and put us on one side. And then
the mgonga began asking my mother, "Where
are the daughters here? Are they working
with the sons of the village?" That was
the beginning of all suspicion. It went
on like that, then all at once the m o
said that the sorcerer was Sidi Simba'
I do not know why Sidi Simba is making
this such a big thing. How would the
mgonga know that Sidi is the sorcerer;
he lives very far from here. He never
met Sidi Simba before. He did not know
that I have a sister named Sidi Simba.
Nor was the ngoma played in darkness, or
in a house. It was played in daylignt,
in front of many people.
After I found out that Sidi Simba was
the cause of Ngoats sickness, I told
her that it was very bad, but that I
would forgive her if she paid the ex-
pense of bringing the mgona. Then
she and I would get other wagonga to
come and use all their skill to cure
Ngoa. That is all that I asked. I
did not want this case brought to the
elders here, because it would make
the matter more difficult. Everyone
would be fighting over the bad name
of Sidi Simba. But she forced me to
come here, and here I am.
Sidi repeats her complaints of Nyanje's chicanery and sarcas-
tically dismisses his righteous protest that he wanted to set-
tle the matter peaceably at home.
Sidi: I think that all the elders here
know the customs to be followed when one
wants to bring an mgonga. The person with
the sick person in his house does not go.
The person who goes to get the mgonga is
one who does not live in the house, is
unconcerned with the matter... I was sur-
prised to find out that it was my brother
himself here who went to get the mgonga.
Another thing, he (Nyanje) said here
that he gave money to the elders who con-
sulted diviners (wagonga wa mburuga).
But why did Nyanje consult only one di-
viner? It should have been two or three
or four.
You (Nyanje) went and consulted a divi-
ner and kept his information secret; and
then you went and got an mgonga wa kuvo-
yera and I saw you pointing to me, tell-
ing the mgonga that I was the one who was
the sorcerer. How do you expect me to
agree with what you have said?
Do not try to be kind and settle this
thing at our home because I am your sis-
ter. I do not think it is right to have
kindness for a sorcerer. If I really am
a sorcerer, and I give you all the money
that you ask for, I shall be very angry
and kill you, because I am a sorcerer
You did not treat me as a person you
really liked. If you knew that I was
doing a bad thing, you could have told
me so. Did you do that? Instead, you
went and got an mgonga to come, and I saw
you pointing to me, telling the mgonga
that I was the sorcerer. How do you ex-
pect me to agree with what you have asked?
What I want is for you to do all that is
possible to prove that I am a sorcerer.
To bolster her allegations that the procedure Nyanje followed
was devious and that therefore the accusation could have no
foundation, Sidi gives some practical reasons why she has uo
motive for causing Ngoa's sickness:
Sidi: * * * Ngoa has nothing, he is not
working, he is not married, he is the poor-
est of all the people in the village. You
(Nyanje)are in a better position, you are
working, you have a wife... if I were really
a sorcerer, I would have used my medicines
on you because then you would die and may-
be your wife would go home and I would get
a part of the brideprice...
Nyanje retorts to Sidi that it was not so unreasonable to
think of her as a sorcerer because she had been accused once
before of sorcery; that was why her first husband divorced her.
Nyanje also asserts that he actually consulted two diviners
and asked some elders on the council to consult two more before
he took the step of seeking an accusation. These elders affirm
this before the rest of the council. Apparently satisfied with
this testimony, the elders then vigorously pursue the question
of collusion in the accusation and a lively interrogation
Elder: Is it true that you yourself went
to search for the m oria wa kuvoyera?
Nyanje: Yes, I did it.
Elder: Why did you go yourself? Because
i - spossible that when you went you
could have told the mgonga that Sidi was
a sorcerer. At that time you were strongly
convinced of that. Is that not so?
Nyanje: Yes.
Elder: Now who can be sure, who can trust
you that when you went and stayed there for
one month that you did not tell him (the
mgonqa) that Sidi was a sorcerer? Then all
he (the mgonga) had to do was dance and then
catch your sister! And you would agree...
If the mgonga had come and caught another
person, would you have agreed?
Nyanje: I think that I would have
agreed because I did not tell the
mgonga anything. (Elders all laugh
Elders: You are deceiving us; only a
short time ago you told us that you
were sure that Sidi was a sorcerer
and that when her husband.divorced
her there was a big case about sor-
cery, and now that your brother is
sick you are sure that Sidi is the
sorcerer. So be honest, if the
m had caught someone else,
would you have agreed? Wouldn't
you have refused to pay him his
Nyanje: How can you elders know?
Can you prove that I told the mgonga
what you think I did? Were you there?
Elder: We can tell you if it is proper,
if it is you who has suspicions, to go
to the mgonga yourself. We have all
kinds of suspicions ourselves because
you did not follow the correct pro-
cedure. You should have sent some-
one else.
Nyanje: I did send several people,
but none succeeded in bringing the
Elder: Then what trick did you use
to get the mgon'a to come? When you
mentioned money, did you mention a
N&aje: What are you saying! How
has the question of a bribe come in?
Having demolished Nyanje, the elders turn to Sidi with a ques-
tion: What does she want the elders to do? Her response sets
the tone for the elders' ultimate judgment:
Sidi: What I want is for Nyanje to
go to the oracle with me. The Kiraho
cha Papayu. That will prove if I am
a sorcerer or not. I am not sure that
I am; I have told you all of the reasons
why I doubt the work of the mgonga wa
kuvoyera. I have never been a sorcerer
in my life.
7: X am ready to go (to the
Then the elders send Sidi and Nyanje away and deliberate in
private. They debate how to handle Nyanje's misconduct:
Elder: Nyanje did a very wrong thing...
he should have sent someone else to get
the mgonga.
Elder: You, elder, are just making this
problem more difficult. Sidi herself
has said that she wants to go to the
oracle and she is right. If a person
feels that the mgonga is wrong, the only
thing to do is to go to the oracle. Let
us decide the same. To ask Nyanje to
bring another mgonga would just bring
Nyanje and Sidi are called back and an elder delivers the judg-
ment, preceded by the ritual chanting of reconciliation:
Elder: Sumilani kambi.
(Attention kambi)
Elders: Hae.
Elder: Kambi mukisumila, kumala vidzo
na vidze...
(kambi when you are attentive,
let good things come...)
Elders: Na vidze...
(Let them come)
Elder: He vii na vishuke'
(About bad things, let them
pass away)
The elder reviews the facts of the case in a manner most effec-
tive to channel the disputants to the oracle, for the elders
cannot resolve the occult question of whether or not sorcery
has been committed. Thus the elder emphasizes the public
course the dispute has taken, the hostility between brother
and sister, and Nyanje's collusion with the mgonga, but con-
cludes with the need to determine the truth:
Elder: ***And the mgonga found that it
was Sidi Simba who was the sorcerer.
Now even though Sidi had been caught,
well, Nyanje's father is Simba. Sidi's
father is Simba. When Nyanje found
out that the sorcerer was of his own
blood, he thought that the matter
should be discussed in their own
***Sidi said, "If you did not want
me to be ashamed, why did you bring
an mgonga wa kuvoyera from very far?
Many people came here, everyone knew
that I was a sorcerer."
***In fact, Sidi started asking Nyan-Je
what kind of tree he had used to make
the medicine to cast spells on Ngoa.
She refused to pay anything. What she
wanted was a kiraho, to prove whether
she was a sorcerer or not. She said,
"When the mgonga came, I saw the m
and you pointing at me, so you told the
mgonga to catch me."
Another Elder says spiritedly: and it
looks like what you say is true!
Elder continues: But now Sidi wants to
go to the oracle, and Nyanje also wants
to go. We elders believe in the mgonga
wa mburuga. in the mgonga wa kuvoyera,
and in the kiraho. You are mgonga wa
mburuga yourself, Sidi Simba; you would
have been wrong to refuse to go to the
oracle. Now that you want to go, we
cannot refuse you.
We also think that you should go to the
oracle because Nyanje went to get the
, himself; this was wrong, he
shu have sent someone else.
Now we have come to a decision. The
elders have thought that we cannot re-
fuse you what each of you wants to do.
Sidi wants to go to the oracle. Nyanje
has also agreed. You may go either to
the Kiraho cha Papayu which will cost
each of you 200 shillings, or a local
kiraho which will cost 100 shillings...
***Is this not what we have decided,
It is apparent that the elders ascertained, during
the giving of testimony, what solution would be immediately
acceptable to both parties. Their decision to send Sidi and
Nyanje to an oracle, however, was not a compromise of conflict-
ing claims but a mutually acceptable course of conduct that
would lead to a determination of guilt or innocence. The
elders had been called upon to resolve a procedural matter,
and this they pursued vigorously. They cast aspersion on
Nyanje's honesty and announced that he was wrong to bring the
mgonga himself; his protestations of innocence could not dis-
spell the presumption of wrongdoing. But the elders declined
to nullify the improper accusation. Perhaps they decided that
the stigma of a sorcery accusation, no matter how improperly
it was made, would be too strong to be dismissed on procedural
grounds. As one elder said privately, requiring another accu-
sation was pointless because the case had already gone too far.
The elders made no attempt to reconcile Sidi and
Nyanje. There was palpable hostility between them; Sidi com-
plained bitterly of her expulsion from the confidence of her
kin group and of the public manner in which their dispute was
aired. The course that the dispute would take had been chosen
by her brothers, and she would pursue this course until she
was condemned or cleared by the oracle.
Two weeks after this meeting, Sidi and Nyanje
journey to the Oracle of the Papay at Kaya Fungo. They
present themselves to the Vaya living there and to the
mgonga who owns the oracle. The head of the secret society of
the Vaya, whom I will call "Elder Pembe," questions Sidi
and Nyanje about their willingness to take the ordeal. Then
he begins the ceremony that summons the ancestors to the ordeal
and calls for the reconciliation of the disputing parties:
Elder Pembe: Kambi mukisumila kumala
vidzo na vidze
(Kambi, when you are
attentive/let good things come)
Elders: Na vidze
(let them come)
Elder Pembe: Vii vidze na vishuke
(bad things/let them
come/ and let them pass away)
Elders: Na vishuke
(let them pass away)
Elder Pembe: These people have come
because of sorcery between someone and
his sister. It is said that this woman
sitting in front of me here is a great
sorcerer. It is not people who say this;
it is the diviners (mburuga). This man
says that this woman is casting spells
over his brother. Now as they have come
here, let it be the end of their mis-
Elders: Let their misunderstanding come
to an end.
Elder Pembe: Madziziho kudza haha kanani
na zigome.
(as they have come here/
arguments/let them end)
Elders: Kanani na zigome.
(arguments/let them end)
Elder Pembe: Koma (spirit) of Bimbo
wa Fungo (the founder of Kaya Fungo),
spirit of Kaidza, spirit of Mwambogo...
let all of the spirits that I have men-
tioned come near and see the ordeal
Elders: Let them give the kiraho power!
Elder Pembe: Now as they give the kiraho,
let the person who is wrong shine like
the moon!
Elders: Let him shine like the moon!
Elder Pembe: Let the person who is wrong
be burnt by the sun.
Elders: Let him be burnt by the sun!
Elder Pembe: You people have come here
because of arguments; let them come to
an end.
Elders: Let them end! * *
It is evident that exposing wrongdoing and decid-
ing guilt are not considered to be incompatible with dispute
settlement. Although the words of the ritual cannot be taken
too literally, they seem to say that deciding guilt or inno-
cence is a necessary step in the process of ending the quar-
rel for then, at least, suspicions will be laid to rest. The
seemingly contradictory juxtaposition of harsh guilt-finding
and reconciliation indicates that the ordeal itself is but one
event in a dispute that can ultimately be settled. In this
case, however, no conciliatory steps other than the ritual
words of reconciliation are taken, even when Sidi and Nyanje
present their cases in detail to the mgonga who will adminis-
ter the ordeal..
When Nyanje speaks to the mgonga, he reviews the
circumstances of his brother's illness and the steps that he
took in having Sidi accused. He presents these steps in
their correct form, and does not allude to the complaints
made by Sidi at the elders' council. He realizes that a
valid, fact-finding course of divination presents the prima
facie case required before the question can be put to the
oracle. He says that he has brought Sidi to the oracle not
to prove to himself that she is a sorcerer (he himself is sure
that she is), but to put the question to an unimpeachable
authority so that he will have the right to claim damages:
Nyanje: ***... she refused to pay the
money because she claims that she is not
a sorcerer. So I thought that the best
thing to do was to bring her to the oracle,
so that she is proved guilty and I will
be able to claim the money that I spent
in treating the sick person, in consulting
with diviners, and in bringing the mgonga
wa kuvoyera.
Sidi emphasizes that it was her idea to come to
the oracle and simply denies her guilt. The mgonga says that
he knows nothing, but that the oracle will show everyone who
the sorcerer is.
After eleborate cleansing ceremonies to insure that
neither Sidi nor Nyanje has taken antidotes to the poison of
the ordeal, Sidi and Nyanje seat themselves before a bowl of
medicine-soaked papaya. Each presents his own narrowly de-
fined version of the truth before he eats:
Nyanje: * * *... the diviners told me that
Sidi-was a sorcerer. If they told me the
truth, then Oracle! Go to the garden!
But if the diviners did not tell me the
truth, then Oracle! Catch me!
Sidi: ...if this hand with which I have
picked the papaya is the one that got the
medicine to use against my brother, please,
Oracle, catch me! But if these people are
speaking only because they hate me, if there
is no truth in what they say, Oracle! Go
to the garden
Even at the ordeal, Sidi insists that the accusa-
tion is founded only on hatred. But, as it turned out,
neither Sidi nor Nyanje was caught. This apparent anomaly,
although rationalized by the mgonga, was explained by others
as a consequence of the mgonga's increasing ill-health and
incompetence. The failure of the oracle to reveal the truth
in this instance actually emphasized the oracle's importance
in resolving important factual questions so that disputants
can know their obligations. Here, Sidi and Nyanje each inter-
preted the ambiguous results to his own advantage and the dis-
pute reached an impasse. When they appeared before the elders
again, each demanded the rights of an innocent party: Nyanje
claimed damages for the expenses he incurred in paying for the
mgonga and in taking the ordeal; Sidi claimed damages for
Tspoiling the name" and the expenses of the ordeal. The
elders were unable to resolve this dilemma because they had
no factual basis from which to proceed.
Then Sidi went to mizimu, the sacred place where
God's spirits dwell, to pray for the death of Nyanje if she
was innocent and Nyanje had spoiled her name. Nyanje had
been in ill-health for some time, and when he died a few weeks
later the local interpretation of events was as ambiguous as
that of the oracle: either Sidi Simba was a very great sor-
cerer or Nyanje had been killed justly for his false accusa-
B. The Jealous Husband
It is difficult to generalize about the sources of
conflict in Giriama marriages. Polygyny and patrilocal resi-
dence can promote conflict between husband and wife--conflict
that often arises not so much within the marital relationship
itself as from the tensions in other relationships, such as
those of a wife with her co-wives or with her husband's mother.
The length of the marriage, the number of wives, relationships
among the co-wives, and the individual dispositions of husband
and wife all affect the quality of the marriage.
There is often considerable disparity in age be-
tween the senior wife (mke muzhere) and subsequent wives
(ache ahoho, sing. muche muhoho) in a polygynous household
because a man often acquires additional wives with the bride-
price he collects from the marriage of daughters of his first
wife. Dissension among co-wives of these later, secondary
marriages is often minimized because the senior wife needs
domestic help; she may herself choose the other wives and
bring them to the village after the brideprice has been paid.
The most brittle Giriama marriages are leviratic.
Relations between a levir and the residents of the deceased's
hamlet are frequently poor. The levir usually does not reside
there and is often an infrequent visitor. He may be aged and
already have several wives; there is no pretense that the
widows are faithful to him, although they must at least be
discreet in their adultery. Many widows elect to return to
their kinsmen and perhaps re-marry rather than being inheri-
ted, even though their brideprice must then be refunded to
the surviving agnates of their deceased husband.
One night, a husband brought his wife into the
hamlet of thec mgonga who administers the ordeal of the
Kiraho cha Mw'alOla. The husband suspected that his wife had
been coi-fting adultery, and he had taken several steps be-
fore going to the oracle. He had beaten his wife several
times and she, in turn, had left him to seek asylum in the
hamlet of her older brother. As custom dictates, the husband
followed his wife to her brother's hamlet and presented the
details of the dispute to him. The husband told him that he
wanted his wife to admit her guilt so that he could collect
adultery compensation (malu), but the wife continued in her
This dispute could have ended--as many disputes of
this type frequently do--if the wife had admitted her guilt
or if her brother had been able to mollify her husband. The
husband, however, intended to demand adultery compensation
from the suspected lover; to do this, he had to have proof.
His wife readily agreed to take an ordeal, for she denied her
guilt, and an oracle appeared to be the only recourse in the
absence of strong evidence.
In this marital dispute, the prognosis for recon-
ciliation between husband and wife is good. The couple are
young and the marriage is presently monogamous. Furthermore,
in Giriama culture an adultery accusation does not necessarily
have serious implications for the marital relationship. An
admitted adulteress receives a perfunctory slap from her hus-
band who then collects adultery compensation from her lover.
Only flagrant, repeated adultery leads to divorce.
The husband in the instant dispute pressed for an
ordeal out of suspicion and jealousy and, of course, an aware-
ness that he must prove adultery before having the right to
compensation. The alleged lover, and important party to the
dispute and a majbr object of hostility, is absent, although
the outcome of the ordeal will affect his rights and obliga-
tions more than those of anyone else.
At six o'clock in the morning, the husband and wife
appear before the mgonga of the Kiraho cha Mwalola. The
mgonga is accompanie'dby two other elders-who also know the
secret of this oracle. Together, the mEongqa and the two
elders will hear the facts of the dispute, mix the medicine in
the seclusion of the bush, administer the ordeal, and share the
the fee paid by the disputants.
The hearing before the ordeal reveals several
things. Despite the adultery accusation, both husband and
wife speak highly of their relationship; they have been mar-
ried for some years and profess to love each other very much.
Mgoga: Tell us what your problem is.
Why do you need an ordeal?
Husband: This is my wife. We have been
married for a number of years. We have
been living nicely, but about two months
ago, I saw that my wife was misbehaving.
As you know, you can sometimes give your
wife permission to visit a place outside
the village. She may go to her home.
I gave my wife permission to visit a
place outside, to go on a journey, and
then I began to suspect something. I
asked my wife if she was having a secret
affair; was that why she wanted to go
away? When I asked her this, she denied
it, and then I asked her whether or not
I should bring an ordeal. She said that
she would not mind. That is why we have
come here.
Mgonga: Can you tell us why you suspected
your wife? If you suspected something,
you should have called your wife and
asked her, "Did you do such a thing?"
Husband: I called her and told her
that I suspected that she had an affair
with someone, but she denied it.
Mgonga: Are you sure of what you are saying,
or are you speaking from what others have
told you? Can you tell us details? Did
you catch her? Did someone tell you ex-
actly what your wife had been doing?
Husband: I did not catch her, and no one
came and told me anything. I just have my
Mgonga: It seems to us that you are not
sure. You may Pe making a false accusa-
tion. Telt us why you are so sure of your
wife's guilt.
Husband: I started to suspect something
because all of a sudden my wife and I were
not getting along. Whatever I asked her
to do, she didn't want to do it. So I
began thinking that she would rather obey
someone other than me. I had an idea who
that someone else ,,as, so I told my wife
to be honest and tell me. But she denied
it, and that is why I decided to come here
to the oracle.
Mgonga.(to the wife): Do you have any-
thingto say?
Wife: What my husband has said is com-
p-etely wrong. I know that my husband
loves me very much, and I also love him.
But I do not know what he is thinking at
this time. He says that I have been
having an affair with someone, but that
is not true.
Once I ran home to the hamlet of my brother
Kingoa wa Mitsanzi...when my husband came
there the next morning, he asked my brother
if I had revealed the name of the person
who was my lover. But I admitted nothing.
When my husband was told this, he collected
me, and we returned to our village. I
thought everything had ended that day.
Then the next week, my husband started
beating me and saying again that I was
having an affair. I went back to Kingoa,
my brother.
The next day a man came, whose name was
Kitsao. I said, "Kitsao, can you tell us
the name of the boy you are always walking
around with in our village?" When Kitsao
answered, he asked me if I was being beaten
because of this boy; he said that he thought
that this boy had done nothing. "Your
husband is being unfair," Kitsao said. But
he told me that the name of the boy was
Solubu. When I knew that, I went and told
my husband his name and also told him that
the boy Solubu and I had nothing to do with
each other. My husband did not believe me,
and started beating me up again.
I then told my husband that I was ready
for an oracle. If the oracle confirmed
what he said, then I was ready to be di-
vorced. He could divorce me to my father.
Then I would be happy, for I would be
punished for something that I had done.
But if I found that I was not wrong, then
I would have something to say...
Husband: As for me, there is nothing that
I will do if the oracle catches me or not.
I just want to know if my suspicions
are correct. If the oracle proves that
my wife has done wrong, then she will
still be my wife. If the oracle proves
that I am the one who is wrong, then
she will still be my wife. I do not
intend to use this oracle as an excuse
to divorce my wife. If it is proved
that my wife is having an affair with
this person, then I will just collect
malu and forgive my wife.
The combination of a strong marital relationship,
the absence of any evidence, and the wife's insistence that she
be given an ordeal--these are not lost on the elders listening
to the pre-ordeal testimony. They praise the husband for say-
ing that he does not want a divorce but only the truth and the
clearing away of any suspicion. The elders persistently press
the wife to make the same declaration, which she eventually
does, and further emphasize that it is their wish and purpose
to reconcile the couple.
Mgonga: This man has spoken well. He
just wants to clear away suspicions he
has of his wife. We should make sure
that the wife has the same attitude as
her husband. For this oracle is only
something that confirms the truth. We
can, of course, try to see what should
be done to the person who is wrong, but
the question of divorce should not enter
into the discussion.
We should look into this matter to make
sure that these people solve their problem
in a friendly way. This care should end
when all suspicions are cleared away; it
should go no further. We want to see these
people united rather than each going his
separate way.
An Elder Speaks to the Wife: Now, woman,
your husband's statement was very good.
But you have gone too far in saying that
if you were caught by the oracle you were
ready to be sent to your parents. If you
were not caught by the oracle, you also
said that you would do something--that
sounded like a threat to us. It worries
us. We hoped that you had come here to
finish your quarrel. When the suspicions
are settled, that should be the end of it.
Our aim is to ensure that everything is
finished here.
Wife: Thank you, m tumia Celder) for your
fatherly advice. I said at the beginning
that I loved my husband very much. And I
know that he loves me. But I think that
he has a lot of jealousy in him. He knows
that I have not been well for a long time.
I have a disease. He knows that--it is a
private matter between me and my husband.
And my sickness has prevented me from hav-
ing sex with my husband for almost two
months now. That is why he is suspicious.
But if I were unable to have sex with him,
how could I go and have it with someone
else? That is why I am surprised to hear
him say these things.
Elder: What you have said is very good.
But you know that we men are a suspicious
lot. When someone sees his wife being
greeted by someone nicely, he begins to
have all kinds of suspicions.
The other day we had a case similar to
yours here. The woman spoke so nicely,
just as you are doing. And we thought
that she was right, and we told her hus-
band that he should stop the whole matterS
we asked him why he was continuing to
insist on an ordeal. And do you know
what happened? After three minutes, the
oracle caught the woman who had been speak-
ing so well That is why we do not go by
the good speeches that are made here.
After the hearing, the mgonga of the oracle and
the elders leave the village and go in-to the bush where they
will make the medicine for the ordeal; two hours later they
return and administer the ordeal. The procedure for taking
this ordeal is the same as the Kiraho cha Papayu. Both dis-
putants address the oracle (kukotera), here by grasping the
calabash containing coconut liquor and the crushed leaves that
are the medicine. Each exhorts the oracle to catch him if
he is wrong; if he is right, to "go to the garden."
After the husband and wife drink, the observation
period begins: then the mgonga and the elders calmly gossip,
weave baskets, and watch for the signs of intoxication that
indicate a person has been caught. After almost three hours,
during which the husband and wife periodically walk to the
elders to demonstrate the steadiness of their gait, the hus-
band leans over and vomits. His eyes are bloodshot. He says:
"I have been caught by the oracle."
In several ways, the task of the wagonga is ambig-
uous: they must hear all of the evidence of the case, and yet
ultimately reduce the testimony to a single issue that can be
decided by the oracle. Here, the history of the disputants'
marital relationship is examined, but the question for the
oracle is whether or nor adultery has been committed. The
wagonga give opinions on the strength of the evidence, and
yet emphasize that the final judge is the oracle. Thus, the
wagonga speak disparagingly of the husband's flimsy evidence,
and yet caution the wife that although she has spoken well
the oracle will discern any subterfuge. Finally, the wagonga
must mentally prepare the disputants for the decision. The
wagonga's task in this regard is two-fold: they must prepare
the disputants both to accept the decision and to forego any
ill-feeling that an "either/or" judgment can generate.
In the case of "The Jealous Husband," the mgonga
addressed himself to the particular controversy, but in so
doing declared that the ideal role of the oracle in the judi-
cial process should be dispute settlement: "Our aim is to en-
sure that everything is finished here." The oracle's decision
could have "settled" this case either by reconciliation or by
divorce, depending on the disputants' aims in coming to the
oracle and how the outcome of the oracle related to those
goals. Here, the husband was suspicious of the reasons for his
wife's refusal to have sexual relations and he had become jeal-
ous; he needed reassurance or, failing that, the right to
collect adultery compensation. He clearly stated that he did
not want to divorce his wife even if she had been unfaithful.
The wife was convincingly indignant but the elders exposed her
threats to leave her husband regardless of the ordeal's out-
come as expressions of the depth of her hurt. She, too,
wanted to clear away suspicion and to be reconciled with her
husband. Reconciliation was possible here because the dispu-
tants were predisposed to it; the mgonga and the elders were,
accordingly, persuasive in their conciliatory efforts. These
efforts were successful: months later the couple appeared to
be living happily together.
The disputants in the cases of Sidi Simba and The
Jealous Husband both participated in a trial by ordeal; but
the inevitable "either/or," guilt-or-innocence outcome of the
ordeal did not impose uniformity on the two disputes. In The
Jealous Husband, the mgonga and the elders vigorously plumbed
the depths of the disputants' marital relationship, exposed
stubbornness and misunderstandings on both sides, and exhorted
the couple to reunite regardless of the oracle's decision.
Although they narrowed the wide-ranging testimony to a single
issue that could be decided by the oracle, this was almost im-
perceptible and did not disturb the participants' broader view
of the dispute. In Sidi Simba, by contrast, the testimony at
both the elders' council and the oracle quickly revealed the
bitterness between brother and sister; the ultimate aim of the
disputants seemed to be a vengeance that could only partially
be fulfilled by the payment of damages. Consequently, the
narrow issue of guilt remained the focus of all the investiga-
tions and discussions.
1 1
C. In-Laws before the Elders: A BrideYrice Dispute
Giriama brideprice (mali) is divided into two parts:
the hunda, payable in money or aials, secures conjugal rights
in the woman; and the uchi Wa magomani, the "liquor of a mature,
fertile woman," paid in coconut liquor, filiates the children
to the husband's clan. If the hunda is not paid in full after
a reasonable time the bride's father or brothers may retrieve
her; they may also claim her children if the uchi was not paid,
even after many years.
The arrangements and the payments of brideprice are
handled by the father and mother of the prospective bride and
groom. These are formal transactions requiring witnesses from
both sides who count the calabashes of uchi Wa magomani and
the shillings and calculate the value of the animals offered
for the hunda. If the bride's parents reject any animal as
too small -or sickly, the replacement or promise of replacement
is carefully noted. If the groom's parents cannot pay the
entire amount of hunda at once they must offer a substantial
down-payment that may be rejected. If it is accepted, the
down-payment is counted by the witnesses and the parties agree
on a schedule for paying the balance (kisalire).
The Giriama are strict about the type of witnesses
for brideprice transactions. Witnesses must not be relatives
of any kind, even strangers from the same clan, for kinsmen
will not be credible in case of a dispute. A father said that
should he die and his daughter-in-law later divorce his son,
the witnesses who were present at the original payment would
ensure the proper refund of brideprice.
Disputes about the brideprice debt, the kisalire,
are frequent and are often extensions of the haggling that ac-
companies the initial brideprice negotiations. For although
the hunda is fairly standard (3,000 shillings or the equivalent
in animals), the amount of the initial payment is very flexible.
The more acrimonious brideprice disputes (such as that in the
case study below) are usually a consequence of personal dislike
between the husband and his in-laws (atsedza, sing. mutsedza),
or of more serious disputes among other members of the opposing
exogamous clans. Conflict about the brideprice debt can be in
deadly earnest, sometimes culminating in a visit to the spirits
of the sacred tree (mizimu), to pray for the death of a credi-
tor. Alternatively, disputants may seek non-traditional reme-
dies by taking the case to a Magistrate's Court where a govern-
ment magistrate hears the intricate testimony on the value of
various animals and disputed presentations of livestock over
the years, sometimes even over generations.
Relations between a husband and his wife's male
relatives--her father's father, 'father, and father's sons--
are restrained. Ritual speeches at weddings illuminate the
nature of the in-law relationship (utsedza). A father's speech
to the bride often admonishes her not to return home for fri-
volous reasons, but sternly warns the son-in-law that his
daughter can be withdrawn and her brideprice returned if she is
not treated properly. It is not uncommon, in fact, for a
woman's brothers to beat her husband severely if she complains
of ill-treatment. During brideprice negotiations after the
seduction of an unmarried woman, the prospective groom's offer
of an amount for the initial payment is usually greeted with
derision. On one such occasion, the girl's brother sneered,
"Why did you not come armed like a man?" Even in the most
harmonious in-law relationships, the son-in-law must show re-
spect to his father-in-law to the point of subservience. At
regular intervals, he is expected to bring several calabashes
of coconut liquor to his atsedza's village; upon meeting his
father-in-law on the path, he must stand aside deferentially.
At an elders' council, Chang'aa accused Jivu of
breaking an agreement: when Jivu married Chang'aa's daughter
three years earlier he agreed to pay 3,000 shillings brideprice.
At that time, Jivu paid 2,000 shillings and agreed to pay the
remainder, kisalire, at a rate of 50 shillings per month. Jivu
gradually paid 600 shillings, but had made no payments for the
last eight months. Exasperated when his demands for payment
fell on deaf ears, Chang'aa went to Jivu's hamlet, beat him,
and took his daughter back to her village.
When this case appeared before the elders' council
the kinship and personal relationship between the disputants
permitted only an interim settlement. Chang'aa intensely dis-
liked his son-in-law; this was the fifth time that he and Jivu
had brought their case to the elders. Chang'aa now had resorted
to self-help, but it was clear that this action was futile, for
Jivu simply did not have the money. (Jivu had been quarrelling
with his deceased father' brother who had made the initial and
subsequent payments of brideprice for Jivu.) A new agreement
was needed that took into account both Jivu's present financial
situation and his father-in-law's disposition. The elders'
council, as the only neutral dispute institution recognized by
both parties, was in a good position to negotiate a new agree-
In the interests of brevity, only the first speeches
of Chang'aa and Jivu are given here:
Chang'aa: Elders, I went to the village of
my mutsedza to get my daughter back, because
there was no hope of getting my kisalire.
When I went to my mutsedza's house, he be-
haved badly, he insulted me, called me names,
told me to get out. I told him that I would
not leave his house without my daughter.
Now mutse-dza, you say that you are
annoyed because I beat you. I could
not do anything else; I tell you,
elders, that even where my mutse'dza
is seated now, he knows that I am
strong! He tested my strength and
he felt it very much.
Jivu: Elder Kafuu!
Elder Kafuu: Eh?
Jivu addressing Elder Kafuu: The man
who just spoke is my mutsedza. And the
person who came with him is his father.
If you hear that I have been killed, have
no doubt 'as to who did it. These are the
ones who hate me more than any other in
the world. This man has not just beaten
me once; I remember that once I went to
his village with a small problem and he
told his sons to beat me up. Now I ask
you: If he always beats me because he
says that I am not paying him, what is
done when someone owes you money?
Elder Kafuu: That person is accused.
Jivu: Then why did not Chang'aa wa
Ngonyo accuse me? Instead he beat me.
Chang'aa wa Ngonyo, I do not understand
why you beat me so early in the morning.
If it was because of the brideprice, we
had made arrangements about that, so I
ask, what had I done? It had nothing
to do with mali.
After an interminable discussion that reveals the
initial brideprice agreement, disagreements about prior pay-
ments, previous conflict between Jivu and his father-in-law
over the debt, and the dispute between Jivu and his father's
brother, who has ceased helping Jivu pay the debt, the elders
return to the immediate dispute. They want to hear more de-
tails of the assault on Jivu in his village and sound out the
disputants on what kind of solution would be agreeable. The
elders explore that possibility of ending the in-law relation-
ship--the source of the continuing conflict--by an agreement
that Jivu and his wife would divorce. Chang'aa rejects the
idea of divorce and says that he has already spent the portion
of the brideprice that he received and it would be difficult
to provide a refund. Jivu testifies that he does not want to
divorce his wife. Jivu's wife is summoned from a nearby mea-
dow where she and Jivu's mother have been waiting. After the
wife refuses to speak, her mother-in-law supplies details of
the assault. Finally the girl tells the elders that she loves
her husband and if she stays with her father, she will never
marry again. Since the parties agree that they do not want to
end their relationship, the only solution appears to be a new
agreement between Chang'aa and Jivu for the payment of the debt.
Elder to Jivu: Would you rather have your
mali back, or would you rather have your
Jivu: I would rather have my wife. I
have not seen any other girl whom I love
better. But because of the trouble that
my mutsedza is giving me, I am wondering
what to do.
Chang'aa interjects: Did you give me all
of the mali and then I came to remove my
daughter, or am I removing my daughter
because I have not been paid my mali?
Elder: I am surprised at Chang'aa's atti-
tude. He seems to think that we do not want
to help him get his mali from this boy. That
is why he refuses to listen to us. But we
are on his side; if he is the father of the
girl, he should get mali.
Elder to Jivu's wife: Will you tell us how
your father behaved when he came to take you
from your husband? Can you give us a true
picture of what happened that day?
Jivu's wife refuses to speak, but Jivu's
mother speaks: I saw this man coming to our
village. I went to help him with whatever
he carried, but he waved me away. He went
to the house of his mutsedza, and then I
heard the wife of my son saying "My husband
is being killed!" I made a lot of noise so
other people would come. When I got there,
I saw this man gripping the neck of my son,
and this other person was gripping his legs.
They wanted to kill him. They were strangling
Elder to Jivu's wife: I would like you to
say something. Can you tell me in front of
your father, was there a disagreement between
you and your father when you wanted to marry
this man? Was the person you wanted to marry
not the choice of your father? Now it is up
to you. Either you defy your father and stay
with this man, or follow the advice of your
father and leave him.
Jivu's wife: Even i-f I stay with this man,
my father will never come to my home, he
will never greet me, none of my relatives
will greet me. For this reason, I cannot
go back to my husband. I will go with my
father, but I will stay without a husband.
Elder: Your father has said that he only
wants his kisalire. If you can give the
rest of the brideprice, everything will be
all right.
Jivu's wife: My father does not like my
husband. He does not want a mutsedza like
Elder: Do you really love your husband?
Jivu's wife: I do. If my husband pays all
of the mali, I will follow him, and then there
will be no reason for my father coming to the
home of my husband and fighting him. Perhaps
what you have said is true.
Elder to Chang'aa: You have come here to
collect your daughter; is that really the
reason for coming here?
Chang'aa: It is true that I took my daughter
from this person so that the husband would
miss his wife and I would get my kisalire.
But I want my daughte only because the mali
has not been completed.
When the disputants and their kinsmen have been sent
away, the elders confer and add their personal knowledge of the
case to the deliberations. The elders use this supplemental
knowledge in deciding what their decision will be and, most
important, in plotting the strategy of their presentation so
that their decision will have maximum psychological impact.
One elder affirms that Chang'aa simply does not like his son-
in-law and this dislike prompted his aggressive behavior.
Chang'aa, in fact, had forced his daughter to marry someone
else before Jivu, but she abandoned this husband and ran away
with Jivu. The elders agree that Chang'aa is being unduly
harsh in demanding the payment of the debt at this time of year,
at the end of the dry season, when stores of food are almost
exhausted, livestock emaciated, and the planting not yet begun.
Wien the judgment is delivered, the elder emphasizes
that Chang'aa, to whom an obligation is admittedly owed, has
nonetheless behaved badly. The purpose of this sarcastic ha-
rangue is to reduce Chang'aa's arrogance and by so doing to
convince him to accept the resolution tentatively agreed upon
by the parties themselves. The elder upbraids Chang'aa for
beating Jivu and for his selfish and greedy motives in breaking
up his daughter's marriage. In openly discussing how much
Chang'aa despises Jivu, the elder hints that Chang'aa welcomes
the chance to beat and harass him over the brideprice debt. To
emphasize the unfairness of Chang'aa
s demands, the elder slyly
suggests a difficult alternative: finding a new son-in-law to
pay the brideprice in full. Chang'aa's motives for having ac-
cepted Jivu as his son-in-law are impugned, if this is how he
treats Jivu now.
Excerpts from the judgment:
Elder: Attention elders; let all good things
This is a case between Jivu and his mutsedza
Chang'aa wa Ngonyo. These people started
utsedza (the state of being in-laws) in the
most respectful manner. We know that in the
customs, a mutsedza is respected very much;
he is someone who has honored you by giving
you his daughter. For that reason, you are
not allowed even to call your mutsedza by
his own name; but here, it has come. The
relationship between Jivu and Chang'aa is
so bad that Jivu has the arrogance to address
his mutsedza as "Chang'aa wa Ngonyo." Their
poor relations are further shown by the fact
that although they are supposed to hold each
other in the greatest respect, they have
come to the elders five times.
Chang'aa wa Ngonyo, I know well that you
do not love Jivu. You think that his is
not the kind of mutsedza that you should
have. May I give you some advice? Get
a mutsedza whom you do like and ask him
to get you mali, in full. Then you go to
the mutsedza whom you do not like and say,
"You took my daughter. And because I do not
like you, here is the money that you gave me,
and I am taking my daughter." If you do
that, everyone will support you because you
will not have any debt.
For Chang'aa to say that his mutsedza is
ill-mannered, I do not think that he is
wrong. He is very right--we know that.
But Changaa wa Ngonyo knew that epen
before he went to collect his mali; and
that is why .Changaa wa Ngonyo, you did
not want your daughter to marry Jivu,
because you knew his manners. Even though
Chang'aa knew that Jivu was marrying his
daughter against his-will, and that Jivu
would be his mutsedza, and. that his daugh-
ter would suffer, we elders find it strange
that you. Changraa, agreed to enter into this
marriage agreement. You gave your consent
as a father. If you did not want your
daughter to marry Jivu, you should not have
collected any money at all. You should
have told your daughter, "If that is the
man you want to marry, I will not give you
anything; I do not give my consent."
But did you do that, Chang'aa? You con-
sented to Jivu because you were lured by
the money. Are there no other young men
from whom you could have collected mali?
You could have forced your daughter to
marry one of them! But no! Your interest
is with money only. And we would like to
warn you, Chang'aa, that the action you
took the other *ay of beating your mutsedza
was terrible. Be careful, I am warning
you. Do not fight anyone. If you have
trouble, bring the matter to the elders.
The idea of thinking of your daughter as
a property is getting you into trouble.
Your daughter is not like an animal. She
is human. There are some things that you
as a father should not interfere with.
Instead of doing things properly, you
acted as if your hen or sheep had been
stolen. You think of your mutsedza as a
thief, just because he has not finished
paying the mali.***
When you came here before, after Jivu had
come to your home and you beat him, we
fined you thirty shillings. Today we will
not fine you anything. But know that you
were wrong to beat him.
You have heard what your daughter has said:
she loves her husband. You have a wife;
in fact, you have four wives. You are
happy. Your daughter is trying to get the
same happiness. What a selfish man you are!
The elders know that we cannot stop you
from beating your mutaedza. Beat him
anytime that you want. Xou who are so
strong and wise. But our decision is
that this girl is not to go with you
And now we discuss your mutsedza. You
are always being beaten by your mutsedza
because you refuse to pay mali. Why don't
you pay it? Pay the mali so that all of
these problems will end. We have decided
that you will begin paying the mali again
after the next harvest. You and Chang'aa
will agree to that now. We do not think
that Jivu will deceive us now.
Have we decided this, elders?
(Hedu mudzambadze atumia?)
Elders: That is indeed what we have
3edJ (Hudzamba vizho.1)
The disputants appear to agree readily with this
decision, and Chang'aa returns his daughter to Jivu in the
presence of the elders by taking her hand and placing it in
Although the elders tried to reach a decision that
appeared to be acceptable to all of the parties, their aim was
not to negotiate a compromise by reducing or forgiving the
amount of the debt, but to end open hostilities. Thus the
elders tried to bring Chang'aa and Jivu to the realization that
ending their relationship was not in their best interests.
Personal dislike had to be subordinated to Jivu's interest in
staying married to his present wife, and to Chang'aa's econo-
mic interest in being paid and his probable inability to obtain
a better arrangement elsewhere. Jivu's wife's attitude, that
she loved Jivu and would remain unmarried if she returned to
her father (thus depriving him of any chance to receive bride-
price again), made Chang'aa's position untenable. The elders'
judgment also painfully recalled Chang'aa's failure in forcing
his daughter to marry someone against her will.
The conciliatory efforts that were made here were
consistent with the relationship between the disputants and
these attitudes and interests: the elders persuasively focused
not on peace and harmony but on expediency and money. An inte-
rim cessation of conflict and a postponement of the obligation
were all that the elders expected to achieve, and for this the
proceedings were well suited.
V. Summaxy and Conclusions
Some success in reconciliation following disputes
is essential; unabated dissension would indeed destroy the
"permanent" relationships
on which, Gluckman writes (1955),
societies such as the Giriama are built. It has been shown
that Giriama judicial institutions have the ideology of settling
disputes amicably; nevertheless this is often combined with
an unambiguous ascription of wrongdoing. Any attempt to recon-
cile the parties must deal with this fact. The Giriama deal
with it, first, by drastically narrowing the question to be
answered by the oracles and elders, thus reducing the dispute
to a single simple issue that can be appropriately dealt with
in the decision but represents only part of the total problem.
This leaves the nuances of the case out of the decision that
ascribes wrongdoing and allocates rights and duties. But the
nuances are dealt with before the decision is made. It is dur-
ing the preliminary testimony and questioning that the sting is
taken out of the eventual ascription of obligation or blame.
At this time, each side is blamed for its respective failings
and for not seeing the other party's point of view and legiti-
mate grievances. Both sides are exhorted to become reconciled,
whatevever the decision. Thus, when the decision is announced,
it is clear that the loser is wrong but on a rather narrow
question, while the winner is also not blameless in many mat-
ters that are germane to the whole issue.
I have described Giriama elders' councils and ora-
cles in terms of their respective jurisdictions, styles of pro-
cedure and, within this framework, the highly variable quali-
ties of particular disputes. If the analysis adhered to a
rigid model of dispute settlement procedure, reconciliation
would appear to be precluded by the harsh, "either/or" out-
comes of the oracles and their emphasis on guilt-finding.
Elders' councils, on the other hand, with their greater famili-
arity with local disputes and verbal decisions based on argu-
mentation and negotiation, would appear to be particularly
suited to rendering compromise decisions and mollifying dispu-
tants. The case studies have shown, however, that the ways
disputes are handled are not necessarily "consistent" with the
form of the decision; nor does a particular type of outcome in
itself necessarily presage the possibility of reconciliation.
Decisions rendered at elders' councils are variable and may be,
for example, an agreement to pursue a winner-take-all decision
at another institution (as in Sidi Simba) or a confirmation of
an indivisible obligation owed to one party (as in A Brideprice
Dispute). Moreover, the significance of these decisions for
future social relacions cannot be assessed without considering
the disputants' .nterests and purposes in coming to the forum:
dilatory strategy, vociferous airing of an injustice (Sidi
Simba); harassment, the need to parley after fruitless violence
(A Brideprice Dispute). Oracles ascribe guilt or innocence
when such a determination of blame is a prerequisite for reme-
dies such as compensatory damages; but the cases suggest that
oracles, too, can serve many disparate purposes depending on
the predispositions and the interests of the disputants: venge-
ance and the desire to expel a kinsman from the village (Sidi
Simba); reassurance and the quieting of suspicion and anger
(The Jealous Husband). At both elders' councils and oracles
we have seen that the individualized conciliatory efforts (or
the lack of them) and the tone of the proceedings before the
decisions are rendered reflect these unique qualities of each
dispute and forecast and even manipulate the course of the con-
flict. Viewed from this perspective, the actual outcomes of
the disputes become predictable: the shattering of agnatic
relations in Sidi Simba; barely controlled simmering of in-law
hostility in A Brideprice Dispute; reconciliation in A Jealous
It has not been my primary objective to demonstrate
the futility of using models to analyze dispute settlement pro-
cedures; that has been done elsewhere. In concentrating on the
individual qualities of disputes and the dynamic procedures for
handling them I have tried to show how disputes can vividly
express human conduct that is a significant aspect of a wider
framework of social relationships.
Les institutions juridiques des Giriama du Kenya promeuvent le raglement
des conflits sans recours aux decisions qui compromettent soit le bien-
fond6, soit le montant des revendications. Dans beaucoup de conflits chez
les Giriama une decision par compromis est exclue par la nature de la reven-
dication (par es., la sorcellerie, l'adult~re), par un syst~me de compen-
sations non-nggotiables, ou par le caractare de linstitution juridique
elle-m~me (par ex., l'ordalie). L'analyse d'un centain nombre de conflits
examine les circonstances extrins~ques influant sur la mesure et l'effica-
cit6 des tentatives de conciliation qui souvent prdcedent la d~cision. La
tentative de conciliation propre A chaque cas et la ddcision sans compromis
sont toutes deux n~cessaires pour r~gler les conflits et pour assurer la
certitude du syst~me juridique.
1. My use of the term "dispute institution" follows Abel
(1973). Elders' councils (kambi, pl. kambi) and oracles
(kiraho, pl. viraho) are the two Giriama dispute institu-
tions that are in the public domain and whose personnel
have no kinship relationship (except a fortuitous one)
with disputants.
2. Field research among the Giriama during 1972-73 was made
possible by a Predoctoral Anthropology Field Training
Fellowship (1 FOI MH 54507-01) from the National Insti-
tute of Mental Health.
3. These conciliatory chants vary and may become quite ela-
borate, but the following is representative:
Kumala vidzo na vidze... Response: Na vidze
Good things/l t them come Let them come
He vii na vishuke Response: Na vishuke
Bad things/lZet them pass away Let them pass away
4. Multiplex relations are defined as permanent relations
serving a variety of purposes (Van Velsen, 1969:138).
5. The compromise and zero-sum models of dispute settlement
are discussed and criticised at length in Abel (1973),
Starr and Yngvesson (1975), and Van Velsen (1969).
6. Today the mgonga wa mwingo's accusatory tasks are performed
largely by three wagonga wa kuvoyera (wangonga who pray)
who range widely throughout the Giriama area and hold public
accusatory ceremonies called ngoma.
7. The term mgonga (pl. wagonga) is used for anyone who uses
medicines (muhaso, pl. mihaso) in a socially approved way.
8. E.g., Kahindi Karisa v. Baya Masha, Civil Case 327 of 1972
(Malindi District Magistrate's Court); Bendera Wanje v.
Karisa Ngala, Civil Case 338 of 1972 (Malindi District
Magistrate's Court).
9. Location Chiefs are elected by the indigenous population
to administer the smallest official administrative units.
10. The three cases used here were selected because they are
intrinsically interesting, relevant to the points being
made, represent different types of claim, and representa-
tive. The last quality I judged on the basis of the case
materials that I collected which vary in completeness:
sixty-six complete transcripts and numerous other case his-
tories varying frott complete narratives to fragmentary anec-
dotes. The transcripts are English translations of tape-
recordings in the Giriama language (Kigiriama) made during
the observation of disputes. My proficiency in Kigiriama
was never great enough to achieve this level of detail.
For their quality I must thank Erastus Charo Tsuma, for-
merly Chief of the Malindi and Ganda Locations, Republic
of Kenya. Some of the case transcripts are quite long: S
Sidi Simba, for instance, is almost 100 pages. Of necessity,
the transcripts have been heavily edited; three asterisks
mark large deletions. Needless to say I have taken great
care, in editing, to ensure that the unfolding of the cases--
particularly the order and selection of testimony which per-
tains to disputant strategy--has been preserved as much as
11. It may have occured to the reader that the terseness of the
proceedings at Kaya Fungo compared with those at the local
Kiraho cha Mwalola (where the proceedings seem less ritual-
ized and more personal) may be attributed to the isolation
of Kaya Fungo from the mainstream of Giriama social life
rather than to the social factors emphasized here. This
does not appear to be the case. Transcripts of other cases
show that the proceedings at Kaya Fungo can be highly indi-
vidualized and conciliatory. One dispute, the case of Mae
and his sister Nyevu, was similar to the case of Sidi Simba
in most respects, except that Maw and Nyevu had made serious
conciliatory moves towards each other before coming to the
oracle. Maw had paid Nyevu a fee of 140 shillings for "tak-
ing away the bad smell, "that is, removing the injury to
reputation that the accusation of sorcery had caused; Nyevu,
in turn, had blessed (kuhasa) the sick son of Mae, believed
to be a victim of her sorcery. The Vaya of Kaya Fungo were
conciliatory, emphasizing the good points of the relation-
ship, and were reluctant to administer an ordeal. There
was happiness when Nyevu was not caught, and two months
after the ordeal the two appeared to have reconciled. Ap-
parently Mae wanted to teach Nyevu a lesson: she married
and divorced repeatedly, and he had the responsibility of
refunding her brideprice (Mae and his father were once even
stabbed in their village by one of Nyevu's ex-husbands).
ABEL, Richard L. 1973 "A Comparative Theory of Dispute Institu-
tions in Society," 8 Law & Society Review 217-347.
BOHANNAN, Paul 1957 Justice & Judgment among the Tiv. London:
CHAMPION, Arthur M. 1967 The Agiriama of Kenya (John Middleton,
ed.). London: Royal Anthropological Institute of Great
Britain and Ireland.
COONS, John E. 1964 "Approaches to Court Imposed Compromise--
The uses of Doubt and Reason," 58 Northwestern University
Law Review 750-805.
GLUCKMAN, Max 1955 The Judicial Process among the Barotse of
Northern Rhodesia. Manchester: Manchester University Press.
1968 "Judicial Process: Comparative Aspects," 8
International Encyclopedia of the Social Sciences 291-97.
GULLIVER, P.H. 1963 Social Control in an African Society.
Boston: Boston University Press.
1969 "Dispute Settlement Without Courts: The
Ndendeuli of Southern Tanzania," in Laura Nader (ed.) Law
in Culture and Society. Chicago: Aldine.
HOLLEMAN, J.F. 1950 "An Anthropological Approach to Bantu Law
(with special reference to Shona Law)," 10 Rhodes-Living-
stone Journal 51-64.
NADER, Laura 1969 "Styles of Court Procedure: To Make the
Balance," in Laura Nader (ed.) Law in Culture and Society.
Chicago: Aldine.
STARR, June and YNGVESSON, Barbara 1975 "Scarcity and Disput-
ing: Zeroing-in on Compromise Decisions," 2 American
Ethnologist 553-66.
VAN VELSEN, J. 1969 "Procedural Informality, Reconciliation and
False Comparisons," in Max Gluckman (ed.) Ideas and Proce-
dures in African Customary Law. London: Oxford Univ. Press.
Cet article emploie l'exemple du Malawi pour illustrer
un argument d'une application plus g~ndrale qui peut 9tre r~sum6
bri~vement comme suit: L'absence d'Gtudes historiques des change-
ments du droit africain au cours de la p6riode coloniale a eu
pour r~sultat une confusion de temps nuisible a notre compr~hen-
sion du droit africain. En consequence du colonialisme les 6tats
pr~c~demment colonisgs par la Grande-Bretagne avalent un systame
juridique dit dualiste: en partie britannique, en partie africain.
Les juristes africanistes se sont pr6occup~s depuis par le re-
nouvellement, la r~formulation et la reaffirmation de cet 6lment
africain. Tras peux conscients de l'6volution historique de cet
aspect du droit, ils ont souvent tendance A le consid~rer comme
une sorte de 'survivance' africaine, hors des changements histo-
riques. Cependant le droit africain de l'Afrique contemporaine
est n6 et form6 pendant la p~riode coloniale. Il peut 9tre d6-
montr6 qu'en mati~re du droit p~nal et du droit de la famille
Le droit atricain repr6sente la r~action des a~n~s A une perte
d'authoritg sur les offenses en g~n~ral et, d'une faqon plus
accrue, d'un relachement de leur authorit6 sur les femmes. Cette
r~action s'est d~velopp~e pendant les premieres trente ou quarante
ans de la p~riode coloniale. Ensuite, sulvant la politique de
1' "indirect rule", une large part de l'administration de la
jastique a 6t& confige pr~cisdment aux gens motivds A d~finir
et, plus important, d'appliquer la lot dans une mani~re restric-
tive et autoritaire. Ces d6finitions constituent la base du
droit africain d'aujourd'hui. La recherche historique sur
"l'environnement juridique' auquel le droit prg-colonial est
devenu le "droit coutumier" de la pGriode coloniale pourrait
nous aider a modifier le processus par lequel l'Afrique se
voit donner un droit autorltaire qui sans bien-fond6 prE-
tendent incarner son genie juridique authentique.