« The role and scope of mediation in African societies and their adaptation to the current context » Cheikh Hamidou Kane (Speech)

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Dear Presidents of Economic and Social Councils and Similar Institutions
My dear brother and friend, Mr President of the Council of the Republic of Senegal,
Ladies and Gentlemen Councillors of the Republic,
Ladies and Gentlemen,
Dear guests,
In the explanatory memorandum of the law of 11 June 2003 on the revision of the Constitution, it is stated that « the Council of the Republic for Economic and Social Affairs will be an institution responsible for promoting social dialogue. It will enable harmonious collaboration between the Communities and the various social and professional categories ». The texts also specify that the Council is, « by the age and quality of its members, a crucible of wisdom and experience useful for strengthening social unity and cohesion ».


           It was in reading these lines that I understood at least one of the reasons why President Mbaye Jacques DIOP invited me here: I am his senior. I belong to the class of elders and we share a common attachment to certain values of the African tradition: the respect given to age, as long as the elder has not demerited; the credit given to the wisdom of the elders, until proven otherwise; the belief in the curative virtues of dialogue, in the cathartic efficiency of the palaver, in the soft medicine of mediation, which is more in line with this "African conception of justice (... ) which, according to our eminent compatriot Judge Kéba MBAYE, prefers to an aggressive judicial power a set of rules protecting the isolated person, and made of attentive benevolence on the part of the Community".

           President Mbaye Jacques DIOP has therefore asked me to share with you a reflection on "the role and scope of mediation in African societies and their adaptation to the current context". This approach, which consists in supporting a prospective by a retrospective, seems to me to be relevant from a heuristic point of view, and necessary when dealing with a subject that touches on the relationship between Black Africa, with its oral culture, and the modern world, in which "what is not written is not". I will try to direct our questioning more towards the 'why' than the 'how'. Why should the ruling elites of modern Africa, in their work of edification and modernisation, concern themselves with the 'role and scope of mediation in African societies'? The "how" will be and should be a matter for experts, as positive law is developed.

           Mr President DIOP, and all of you, Ladies and Gentlemen of Senegal and Africa, we must be aware of a reality that is as obvious as the nose in the middle of the face but which, however, very often goes unnoticed. We in Black Africa, who know how to read and write in French, English, Portuguese, Spanish, Afrikaans, in the languages of the former colonisers, we who have sufficient mastery of these languages to have a working knowledge of the values they convey in relation to the notions of human rights, war and peace, democracy, we are a minority in comparison with the great majority of our compatriots who have not been to school, and who are largely of oral culture. The version of these concepts that people know and practice is expressed through their oral cultures and the languages that express them by means of proverbs, precepts, conventions, maxims and sentences. Allow me, as an aperitif, to give you a taste of some of these. Africans believe that 'the old man is worth more than his price'; or that 'you don't wash blood with blood, but with water'; that, 'if there was anything good about war, aggressiveness, the dogs would have found it'; they say that 'power is like an egg: if you squeeze it too hard, it breaks, if you don't hold it tightly enough, it can slip out of your hand and break"; they also say: "It is not the king who has the kingship, it is the kingship who has the king".
 This is true. But the problem is, as Professor Joseph KI-ZERBO says, "that many African executives have turned their backs on this heritage". They are, he says, "more focused on what they have learned and badly retained from their initiation to modern sciences". Revisiting the history of our continent, especially its sub-Saharan part since the 15th century, the Burkinabe Africanist says that it can be analysed as a triple dispossession: that of our space, that of our political initiative and that of our endogenous identity. This last dispossession concerns languages, social, legal and cultural traditions'. For example, he recalls, the ancient Empire of Mali had, as we shall see later, codified a coherent corpus of rules inspired by traditional values. Post-colonial Africans had to forget this corpus so that, despite the rules governing the movement of goods and people that we have imitated from the legal corpus of the Western school, our contemporary society, in Central Africa, in Rwanda, in West Africa, particularly in the ten or so modern states on whose territory the former Mali Empire extended, is gangrened by these atrocious ethnic, tribal and civil wars. Here again, judging by the misfortunes that beset us, what we have learned is not worth what we have forgotten.

               Two questions may come to mind at this stage of our reflection. Does an endogenous African culture, on which all inhabitants south of the Sahara would depend, really exist? Even if it did exist, is it not a legacy that we must above all hasten to forget, at the risk of being the prisoners of a barbaric and definitively bygone past?

               This negationist view is still present not only in the many Western cenacles of Afro-pessimists, but, alas, and more seriously, in the minds of those 'decerebrate elites' of which Aimé Césaire speaks in 'Discours sur le colonialisme', the very ones who hold Africa hostage. If there have been modern Western thinkers, such as Leo FROBENIUS or G. BALANDIER, who have beaten the drum of Africa. BALANDIER, to defeat this denial of the existence of an endogenous African civilisation and culture, it was a great African, our compatriot Cheikh Anta DIOP, and then researchers such as Théophile OBENGA, who pursued his line of research, who established, in an irrefutable way, the existence, the eminent fertility and the extension to the whole continent, of an African culture sui generis. One only has to quote the titles of this monumental work to realise the seriousness and rigour of the work accomplished in the service of Africa. Cheikh Anta Diop produced and published, with Présence africaine or IFAN

in 1954: "Nations nègres et culture" ;
in 1960: "The Cultural Unity of Black Africa";
in 1960: "Les fondements économiques et culturels d'un Etat fédéral of Black Africa;

in 1967: "Anteriority of Negro civilisations: myth or historical truth";
in 1977: "Genetic kinship between Pharaonic Egyptian and
negro-African languages ;

in 1981: "Civilisation ou barbarie? - Anthropology without complacency".
               Of the first work, "Nations nègres et culture", Aimé Césaire said that it was "the most audacious work that a Negro has written so far and which will undoubtedly count in the awakening of Africa". What appreciation do the new African generations have of this body of work? Has Cheikh Anta preached in the desert? Let us note the testimony of Boubacar Boris DIOP, one of the best African writers of the present time. Here is what he writes about Cheikh Anta: "The Senegalese scholar is not content to make the observation, like so many others, that Africa has never been a tabula rasa. The so-called enlightened Western intelligentsia was undoubtedly willing to make such a concession. DIOP did not want to be satisfied with that, he did not hesitate to go further and to beat up the most deeply rooted ideas of the time. With hindsight, one is struck by such temerity. But this is neither a solitary delirium, nor abstract assertions: Cheikh Anta Diop provides arguments of great scientific value to what, at best, had been put forward until then by African intellectuals in a purely emotional mode.

               For a definitive edification of minds of good faith as to the existence and significance of a cultural unity of Black Africa, as to its anteriority, as to whether we should speak of civilisation or barbarism, I refer to the reading of Cheikh Anta Diop.

               However, even if we accept the evidence of his demonstrations, what argument can we use against those who fear that this return to the ways of the past will condemn Africa to regression, to a conservatism that would be fatal at a time when there is more talk of an African renaissance, of taking flight towards the future?

               As early as 1948, Cheikh Anta Diop, again, in an article in the magazine "Le Musée vivant", entitled "When can we speak of an African renaissance", prophesied its advent and indicated what the sine qua non conditions would be. We will come back to this.

               For the moment, and with regard to the past, conservative and retrograde meaning, or the progressive and forward-looking meaning that should be given to this reference to the values and norms of African culture, I would like to offer you an enlightening distinction formulated by Georges ANGLADE, a Canadian of African origin, during a meeting in Dakar of black intellectuals from Africa and the Diaspora, in preparation for the 3rd World Festival of Negro Arts that the President of Senegal proposes to host in June 2008. He indicates that the sole purpose of the convocation of history is not to return to the sources, but also, and above all, to "resort to the sources", in order to ensure our presence in a world of cultural diversity and resolutely forward-looking. This formulation clearly indicates what is at stake. It is by no means an absurd, and in any case impossible, return to a bygone past, but, using it as a springboard, to launch ourselves into the future. "Whoever no longer knows where he is going must know where he came from," says the African proverb.

We know what tragedies and dramas contemporary post-colonial Africa has suffered because the elites who lead it have forgotten the lessons, precepts and ways of the past. The pacifying, conciliatory and curative effects on these situations have not been sufficiently noted each time the old methods of regulation have been used and adapted.
 When I mentioned an appetiser and quoted a few proverbs and precepts from African culture, I was implicitly promising you a main course. This is the dish for which I shall now try to describe some essential recipes, namely

                    - the word, its weight, the ways in which it is shared, its officials, its guarantors ;

                    - a coherent regulation of social mediation between the individual, the gender, the generations, the clans, the ethnic groups, the provinces and the homeland;

                    In evoking this corpus, I will give some illustrative cases of its relevance and effectiveness whenever it has inspired contemporary leaders.

                    So, first of all, the word, and its weight. The word occupies the central place in the legal corpus of the tradition. "In oral civilisations, says Amadou Hampaté BÂ, the word commits man, the word is man. It is trustworthy, because it is under the constant control of the traditional environment'. Article 19 of one of the reconstructed versions of the Fundamental Charter of the Mali Empire, dating from 1236, states: 'Every man has two in-laws: his wife's parents and the word he has spoken without any constraint. He owes them respect and consideration.

                    Listen to what Diali Mamadou KOUYATÉ, one of the Mandingo 'Masters of the Word', said: 'My word is pure and devoid of all lies; it is the word of my father; it is the word of my father's father. I will tell you my father's word as I received it; the griots of kings ignore lies. When a quarrel breaks out between tribes, we are the ones who settle the dispute because we are the custodians of the oaths that the ancestors have sworn.

                    Dialogue and palaver are two ways of sharing the word, each with its own rules of operation. By way of illustration, I would like to give some contemporary examples of the effectiveness of these ancient ways of resolving conflicts.

                    The first case was reported to me by one of its protagonists, the African magistrate Siriman KOUYATÉ. In his capacity as a magistrate of the modern courts and tribunals of Guinea, he had had to deal with a delicate case. The trial had dragged on and he had to postpone it several times, with the parties sticking to their positions and the conflict even becoming more heated. It was then that Mr KOUYATÉ, a griot by birth and very attached to the dignity conferred on this status by his traditional Mandingo society, realised that the litigants were from the same group, and changed his strategy. He left the courtroom, went to his office, stripped off his judicial robes, summoned the litigants and held a palaver with them, reminding them of the traditional rules governing coexistence between the categories to which they respectively belonged. The conflict was settled in the second half of the afternoon of the same day.
I have the second example of Nelson MANDELA. Yes, you heard me right, Nelson MANDELA, an eminent contemporary African, a member of the Xhosa ethnic group, located thousands of kilometres away as the crow flies, from Siriman KOUYATE's Guinea, across the Sahara, the Kalahari and the tropical forests. The identity of the Xhosa and Mandingo referential codes revealed by these two examples is well illustrative of the thesis of the cultural unity of Black Africa. My quotation from MANDELA can be found in his biography: 'A Long Way to Freedom'. What he says is an experience from his childhood. "I observed the tribal meetings that were held at the Great House and I learned a lot from them. They were not scheduled on a regular basis, they were called as needed (...).

                    On these occasions, the regent was surrounded (...) by a group of high-ranking advisors who acted as the regent's parliament and high court of justice. These were wise men who retained in their heads the knowledge of tribal history and custom, and whose opinions carried great weight... The guests would gather in the courtyard in front of the regent's house, and it was he who opened the meeting by thanking everyone for coming and explaining why he had summoned them. From that moment on, he said nothing more until the end. Everyone who wanted to speak did so. This was democracy in its purest form. There might be hierarchical differences between those who spoke, but everyone was listened to, chief and subject, warrior and sorcerer, shopkeeper and farmer, landlord and worker. People spoke without interruption and meetings lasted for hours. The government was based on the freedom of expression of all men as equal citizens (...).

                    (...) I noticed that some people went round in circles and never seemed to get their point across. In contrast, others addressed the subject directly and presented their arguments succinctly and powerfully. I observed that some speakers played on feelings and used dramatic language to move their audience, while others kept it simple and sober and avoided emotion.

                    At first I was amazed at the vehemence - and candour - with which people reproached the regent. He was not above criticism - in fact, he was often the main target. But no matter how serious the accusation, the regent simply listened, without trying to defend himself and without showing any emotion.

                    The meetings lasted until some sort of consensus was reached. They could only end with unanimity or not at all. However, unanimity could mean disagreeing and waiting for a better moment to propose a solution. Democracy meant listening to all men, and making a decision together as a people. Majority rule was a foreign concept. A minority should not be crushed by a majority.
 Only at the end of the meeting, when the sun was setting, did the regent speak. His aim was to summarise what had been said and to find a consensus between the various opinions. But no conclusions were to be imposed on those who disagreed. If no agreement could be reached, another meeting had to be held. At the end of the council, a singer or poet would make a panegyric of the former kings, and a mixture of compliments and satire of the chiefs present, and the audience, led by the regent, would burst into laughter.

                    As a leader, I have always followed the principles that I have seen implemented by the Regent at the Great Abode. I always tried to listen to what everyone had to say in a discussion before I gave my own opinion. Very often my own opinion was a consensus of what I had heard in the discussion. I never forgot the Regent's axiom: a leader, he said, is like a shepherd. He stays behind the flock, he lets the most alert one go ahead, and the others follow without realising that they have been led from behind all the time. End of quote.

                    If I have quoted Nelson MANDELA at length, it is because he is a valuable example for the leaders of the new Africa to follow. His recourse to the sources of African culture is a model that has proven its effectiveness.

                    It was the influx of the traditional Negro model of governance into South African governance that enabled the Rainbow Nation to substitute an African culture of consensus, palaver and conviviality for the culture of conflict, violence and segregation that sustained the apartheid regime. As soon as the black people were able to assert, in a sufficiently significant way, their way of seeing things, they offered the modern world the first significant example of peaceful conflict resolution.

                    I also believe that it was this recourse to the sources of African culture that gave meaning and effectiveness to South Africa's Truth, Justice and Reconciliation Commission, Benin's National Conference and all those that followed, gatherings in which the new African leaders reconnected with the inspiration, procedures and practices of their traditional world. The same process of reappropriating the heritage of the past was carried out in Rwanda, when the 'Gaccacca' were resurrected to 'make sense', if possible, of the major earthquake of the genocide to the majority of the population, less than a century after German, Belgian and post-colonial Rwandan 'governments' replaced the infinitely more convivial and consensual mode of government that had brought together the Tutsis, Hutus and Twas for many generations.

                    In describing, through the examples cited, the way in which the word has been the main tool for the restoration of peace, justice, social harmony and good governance in the traditional oral culture, we have seen, in the fulfilment of their role as mediators, three categories of officiators and guarantors, whose status we shall briefly consider. We are referring to the 'Masters of the Word' (including griots), the elders and the Overseers (chiefs, kings).

The Masters of the Word hold their role and prerogatives by delegation from the community. They are the mediators empowered to restore cohesion, harmony and peace within the community. They enjoy immunity in the proper exercise of their mission. "The plenipotentiary is not struck by lightning', as the Mandingo say of him. He is an expert in the use of words, through which he praises or chastises, exalts or disgraces. He is the memory of the group and uses it to remind everyone of their duties (remember the panegyrist mentioned by MANDELA).
We have spoken about the elders: they are a level, an unavoidable instance of the community. Let us remember the sentence "the old man is worth more than his price" (than, for example, the market value - which is diminishing - of his labour power; he is worth more than the price that would have to be paid to preserve and care for him, etc.). Let us also remember Amadou Hampaté BÂ: 'Every time an old man dies, a library burns'. The elders are the closest substitutes for the deceased ancestors. In return for this privileged status, they are expected to behave in a meritorious and irreproachable manner, with unfailing wisdom. My fellow members of the Council of the Republic of Senegal, and all of you elders, in the places where power is exercised...
As for the Chiefs, Kings, Regents, etc., remember the Mandingo precept: "It is not the king who has the royalty, it is the royalty who has the king". This precept of good governance is central to traditional African society. It is the power that is 'the master', 'the owner' of the person to whom it is entrusted; it is not the person, the holder of the power, who is the owner. This reversal of perspective in the relationship between the sovereign and power is essential in the philosophy of traditional African law. Observance of this rule would have preserved us from this privative, patrimonial, clan, ethnic, regionalist appropriation of sovereign power by its holders of the day. If, in the half-century since African countries gained their independence, modern leaders had been inspired by this lesson, it is likely that history would not have been so grotesque, tragic and bloody.
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                    In my capacity as a national of the area of the former West African empire of Mali - which is the case, totally or partially, of the Senegalese, the Malians, the Gambians, the Bissau-Guineans, the Guineans of Conakry, the Sierra Leoneans, Liberians, Ivorians, Burkinabe and Mauritanians - I can only deplore and mourn the obscene violence, intolerance and conflicts that have shaken and continue to ravage all the modern states that have come into being. However, it was in this area that a succession of civilisational and geopolitical constructions developed between the 7th and 15th centuries, from the Empire of Ghana to that of Songhai, to which Soundjata KEÏTA gave force of law in 1236. Born handicapped, second son of one of the twelve small kings of the Mande who had been so divided and exhausted in vain quarrels that they had been conquered and subjected to the dictatorship of iron and fire of the King of Sosso, Soumangourou KANTÉ, Soundjata, who was driven by an unshakeable and prophetic faith in the virtues of unity, sounded the charge, mobilised the rival princes, fought Soumangourou and regained freedom and sovereignty for them. It was then that he took actions that made him, this 13th century man, a precursor and a model from which we would like the current leaders of Africa to draw inspiration. He substituted unity for division, he codified and promulgated in the law of the empire the precepts, principles and rules that had been developed over the centuries for Mandingo society: this was the 'Kurukan Fugan Charter' or Charter of the Mande, the memory of which has been preserved by the griot chroniclers.

                    As soon as Soumangourou was defeated and independence was achieved, the peoples and princes of the 'Clear Country' of the Savannah gathered in the clearing of Kurukan Fugan to consolidate this independence, proclaimed their desire to replace the divisions that had weakened them with unity, founded the Empire of Mali and entrusted the crown to Soundjata. Let us listen to the chronicler griot's account of this event:

                    "(...) One by one, the twelve kings of the Clear Country of the Savannah rose and proclaimed Soundjata, Mansa, in turn; twelve royal lances were planted in front of the platform. Soundjata had become emperor; the old Tabala of Niani announced to the world that the countries of the savannah had given themselves a single king... From the Wagadou in the north to the Mandingo in the south, from Nema in the east to Fouta in the west, the whole country had recognised the authority of Soundjata" (in "Soundjata", Djibril Tamsir NIANE, Présence Africaine).
 As soon as he was crowned, the Emperor proclaimed the fundamental law. Reviewing the precepts, principles and rules in use in Mande culture, he established a legal corpus which was henceforth to be imposed on all and which dealt with personal status, relations between age groups, between clans, ethnic groups and provinces, and which established, by means of patronymic equivalence and joking kinship, a citizenship of the empire guaranteeing the free movement of goods and persons. The law guarantees the safeguarding of the life, integrity, honour and property of each citizen. Article 5 of the reconstituted charter states: "Every life is a life, everyone has the right to life and to the preservation of his physical integrity. Consequently, any attempt to take the life of another shall be punishable by death.

The law identifies, recognises and enumerates the constituent elements of the mandated society (Articles 1 and 4).
It promulgates and establishes as the law of the empire, institutions dating back to the dawn of time, such as those governing relations between grandparents and grandchildren, men and women who are brothers-in-law and sisters-in-law; such as the practice of patronymic equivalence, which allows each national of the empire, by crossing it from one side to the other, to change his patronymic and thus acquire the same rights as the natives of the regions crossed. This is how a Diarra, who came from the Niger valley, became Ndiaye when he went to Wolof or Serer country, and Diatta when he visited Diola country. Thus, in the whole area from Cape Verde in the west to Chad in the east, from Nema, Timbuktu and Gao in the north to Kong, Kankan, Kouroussa and the Cola countries in the south, there was a continuous network of patronymic equivalences which delimited a space of Malian citizenship whose nationals had the same rights.
                    In this space, the relationships of individuals were governed by the rule of 'sanankuya', i.e. 'kinship in jest', which is still translated as 'joking kinship'. Article 7 reconstructed: 'Sanankuya' and 'tanamanyoya' (a form of totemism) are instituted between the Mandinka. Consequently, no dispute arising between these groups should degenerate, respect for the other being the rule. Between brothers-in-law and sisters-in-law, between grandparents and grandchildren, tolerance and heckling must prevail.

                    In this reconstituted fundamental law of the Mande, there are provisions relating to property and the lawful manner of acquiring it, to the preservation of nature, and to other rules of coexistence and governance.

                    I would like to point out to those who would like to have the reconstructed text of this charter that it was published in a book published in 2003 by Albin Michel, in the collection "Les carnets du calligraphe", translated by Youssouf Tata CISSÉ and illustrated by Aboubakar FOFANA.

                    Such is the Charter enacted in 1236 by the legislator Soundjata KEÏTA. One cannot fail to be struck by the contemporaneity and similarities between this Kurukan Fugan charter and the Magna Charta. These two legal monuments deal with the same subjects: the proclamation and safeguarding of the individual's areas of freedom in relation to society, in relation to the sovereign; his place and that of the constituent categories of society, their respective shares in the city; in relation to the power of the sovereign, the respective shares they have in the management of common goods and of nature.

                    I cannot fail to point out a fundamental difference in the way these two monuments were produced. This difference is undoubtedly due to the difference between what Joseph KI-ZERBO has called 'the basic metabolism of peoples', African and Anglo-Saxon. Whereas the Magna Charta was the outcome of a conflict and struggle that, for half a century, pitted the emerging categories of English civil society against the absolute and divine right monarchy, the Kurukan Fugan Charter, on the contrary, is a consensual recognition and promulgation, by the new power, of the rules, precepts and values elaborated by successive generations of West African peoples.
 According to Joseph KI-ZERBO, 'the Malian model' is what Africa has done best in terms of territorial, legal, political and cultural structuring, in order to marry central power with federal requirements and the autonomy of the bases and margins'.

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Dear Presidents of Economic and Social Councils or similar institutions
My dear brother and friend, Mr. President of the Council of the Republic of Senegal,
Ladies and Gentlemen,
Dear guests,
What I have described to you, perhaps at some length, about the "role and scope of mediation in African societies and their adaptation to the current context" is not just a rehash of the eternal quarrel between the Ancients and the Moderns. My intention is above all to urge us moderns, when dealing with Black Africa, which is mainly an oral culture, to abandon the arrogance of mandarins who consider that 'what is not written is not'. Up to now, at the beginning of the third millennium, if I, who am Peulh, had a quarrel in the street with any individual, taxi driver or street vendor, as soon as in the heat of the confrontation my adversary and I realised that my name was Kane Diallo, therefore Toucouleur-Peulh, and his name was Diouf Niokhobaye, therefore Sérère, I can assure you that hostilities would cease immediately and that we would duly compensate each other.

                    If this is still the case today, how is it that we are witnessing these conflicts in Côte d'Ivoire, Sierra Leone, Liberia, Mauritania, and here in Casamance?

                    "There are no favourable winds for those who do not know where they are going', said Seneca. My conclusion will be a question for the guidance of modern African executives: Can there be favourable winds for those who no longer know where they come from?

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