What follows purports to give the opinions of three judges of the highest court of appeal in Newstate, Africa. The title is taken from a pregnant phrase of O. W. Holmes, an American writer on jurisprudence. He held that the result of a case depended upon ‘the inarticulate major premiss’ of the judge (or the unstated assumption which most influenced his judgement), at least in matters of first impression—i.e. cases in which the judges must determine for the first time what is the operative rule (‘norm’) of law. He urged this proposition in sharp opposition to the popular notion that a judge merely applied to the ascertained facts clear rules of law, which he found in earlier cases or in statutes.
Page 567 note 1 The facts of this case are invented; but there are many similar cases which have arisen in the courts of anglophonic Africa. See, e.g. Konamba, 14 E.A.C.A. 175 (Uganda, 1951); 38Kasale, [1944–1961] R.L.R. 110; Kajuna s/o Mbake, 12 E.A.C.A. 104 (Tanganyika, 1945); Gadam, 14 W.A.C.A. 442 (Nigeria, 1954); Philip Muswi s/o Musele, 23 E.A.C.A. 622 (Kenya, 1956); Magata s/o Kachenhakana,  E.A.C.A, 330 (High Court, Uganda); Fabiano, 8 E.A.C.A.96 (Uganda, 1941); Akebe s/o Karuen, 54 E. A.C.A. 105 (Kenya, 1947); and Kekementi Maganga s/o Ochieng, Io E.A.C.A. 49 (Uganda, 1942). Citations to cases in this article are given in the customary form used by lawyers. The underlined name, if alone, is the name of the accused; if the prosecutor is not the Government, the names of both parties are given. The first figure in the citation is the volume; next come the initials of the series of law reports, followed by the page reference. In East African cases, the letters ‘s/o’ and ‘d/o’ mean ‘son of’ and ‘daughter of’ respectively.
Page 568 note 1 All the anglophonic African states look to English law as the basic law. Several Nigerian statutes, for example, enjoin the courts to apply ‘the common law of England’. See, e.g. Law of England (Application) Law, W.R. No. 9 of 1958, sec. 3; and Interpretation Ordinance, Law of the Federation of Nigeria and Lagos, 1958, cap. 89, sec. 45(I). The Ghanaian Courts Act of 1960 is somewhat broader. It declares that the basic law is the common law, but states explicitly that the courts may look for precedent in any common law jurisdiction: Constitution (1960), sec. 40(e); Interpretation Act, 1960, sec. 19(I); Court Act, 1960, C.A. 9, sec. 154(4). A member of the Supreme Court of Ghana has, however, stated that the relevant clause requires the Court to treat as binding precedent every decision of the Privy Council and the West African Court of Appeals prior to independence; Mr Justice Ollenu, quoted by Asante, S. K., ‘Stare Decisis in the Supreme Court of Ghana,’ in University of Ghana Law Journal (Accra), 1964, p. 52.
Page 569 note 1 See Kasalo, [1944–1946] R.L.R. 110; and Kajuna s/o Mbake, 12 E.A.C.A. 104 (Tanganyika, 1945). In Alice Eriyamremu,  W.N.L.R. 270 (High Court, Western Nigeria), the accused claimed that she met with other witches in a coven, and participated in ghastly cannibalistic feasts. She was found to be legally sane.
Page 570 note 1 See Winter, E., ‘The Enemy Within: Amba witchcraft,’ in Middleton, J. and Winter, E. (eds.), Witchcraft and Sorcery in East Africa (London, 1963), p. 289: ‘Witchcraft beliefs offer an explanation for the misfortunes which afflict people…particularly…illness and death… The explanatory significance of witchcraft goes even deeper… Witchcraft offers one type of answer to the ultimate question of why. Everywhere and at all times, men have sought to penetrate behind the façade of the observable world and to grasp the meaning of human misfortune. Witchcraft, viewed as a system of thought, offers one solution for this problem and is equivalent to ideas which have been formulated in other societies such as Fate or the will of God.' Judges in witchcraft cases have frequently affirmed the reality of the defendant's fear of destruction by the witch. See, e.g. Kanwaka Wa Malumbi 69 Others, 14 K.L.R. 137 (1932); Galikuwa, 18 E.A.C.A. 175 (Uganda, 1951); and Konomba, 14 W.A.C.A. 236 (Gold Coast, 1952).
Page 570 note 2 See, e.g. Haydon, E. S., Law and Justice in Buganda (London, 1960), p. 283; and Middleton and Winter, op. cit. passim.
Page 570 note 3 The increased insecurities arising from the rapid change through which Africa has been passing in the past half-century have apparently increased, rather than decreased, the incidence of witchcraft belief. See, e.g. Parrinder, E. G., Witchcraft: European and African (London, 1958), p. 205; Debrunner, H., Witchcraft in Ghana (Basel, 1959), p. 71; and Middleton and Winter, op. cit. passim. A similar increase took place in Europe during the Renaissance. Cf. White, E., ‘The Spared Wolves,’ in The Saturday Review (New York), 13 11 1954. At the same time, the colonial overlords removed from the people the institutionalised defences which they had developed. See, e.g. Kingsley, M., Travels in West Africa (London, 1897), p. 489. The result is insecurity compounded.
Page 571 note 1 Read, J., ‘Criminal Law in the Africa of Today and Tomorrow,’ in Journal of African Law (London), Spring 1963, p. 5.
Page 571 note 2 The Penal Code of Ghana was introduced in 1893 and has remained virtually unchanged to the present day. It is modelled upon the St. Lucia Code, which in turn is modelled upon the Jamaica Draft Code. The Northern Nigerian Penal Code and the Sudanese Penal Code are almost identical. They are both modelled upon Macaulay's Indian Penal Code of 1839. All (including the Queensland Code), except the Northern Nigerian and Sudanese Codes, are ultimately derived from Sir James Stephen's Draft Code of 1878, which was an attempt to codify the existing common law. It was never introduced in England.
Page 571 note 3 All the Orders in Council which served as the constitutional basis for the several British Colonies and Protectorates, and successor legislation to this day, preserve native law and custom so far as it does not violate ‘natural justice, equity, and good conscience’ (or some similar phrase). See, e.g. Law of England (Application) Ordinance (The Gambia), cap. 3; Court Ordinance (Sierra Leone), sec. 38; and High Court Ordinance (Northern Rhodesia), sec. 17.
Page 572 note 1 See, e.g. Balogun v. Amodu Balogun, 2 W.A.C.A. 290, 306 (Nigeria, 1935); Cole v. Cole, I N.L.R. 15, 21 (1898); and Lukwago v. Bawa Singh, ‘1959’ E.A.C.A. 282.
Page 572 note 2 See, e.g. Luka Matengula,5 L.R.N.R. 148 (1952). Accused were carrying a coffin through the village that it might ‘point out’ the witch who caused the death. While opposite the deceased, an old lady, the coffin ‘jumped forward’ and struck her so hard in the chest that she died. The accused sought refuge in native custom. The Court denied the claim, finding all guilty of manslaughter. The applicable repugnancy clause allowed native custom ‘not being repugnant to justice’. The Court added, ‘not being against justice as we people in England see it’. See Abrahams, ‘The Colonial Legal Service and the Administration ofJustice in the Colonial Dependencies’, in 30 J. Comp. Leg. I.L. (3rd Series, 1948, parts 3 and 4), I, 8. Accord: Gimo Bin Lilime v. Kusunda bin Futi, I T.L.R. 403 (1938).
Page 571 note 3 The typical constitution of an independent African state includes a proviso that all the laws in force immediately before the adoption of the constitution remain in force thereafter. See, e.g. Constitution, Ghana (1957), art. 40; and Constitution, Nigeria (1960), art. 154(4)— maintaining in force the Interpretation Act of 1889 (which made English law the rule in the Colony and Protectorates), as in force on October 1960.
Page 572 note 1 See, e.g. Penal Code. Tanganyika, sec. 4. This clause appears in all the Codes following the 1930 Colonial Office model.
Page 572 note 2 In Wallace-Johnson, W.A.C.A. 56 (Gold Coast, 1941), the Privy Council said, in an oft-quoted dictum, that where a Colonial Code is ‘exhaustive’, it must be read without glosses derived from English or Scots Law. However, African courts almost invariably cite English precedents as authoritative in interpreting the Codes, not infrequently even when the Codes are in terms to the contrary. In Tene Dagarli  January-June Judgements (mimeographed) 48, for example, the Supreme Court of Ghana followed D.P.P. v. Smith,  All E.R. 161 (House of Lords), in refusing to permit a defendant to advance a claim that although death was the reasonable and probable consequence of his act, he subjectively did not intend death and hence was guilty only of manslaughter. Cf. Criminal Code, 1960 (Ghana), sec. 11(3): defendant presumed to intend reasonable and probable consequences of his acts unless he proves to the contrary.
Page 572 note 3 Esop, 7 C. & P. 456 (Central Criminal Court, England, 1836); Bailey, R. & R. I (Court for Crown Cases Reserved, England, 1800). See Williams, G., Criminal Law: The General Part (London, 1961 edn.), p. 289.
Page 572 note 4 See, e.g. Criminal Code, Nigeria, sec. 22; and Criminal Code, 1960 (Ghana), SeC. 29(2).
Page 572 note 5 See, e.g. Rose, 15 Cox 540 (Court of Crown Cases Reserved, England, 1884). Defendant came downstairs to see his father, who was seemingly threatening his mother with a gun; he shot and killed his father; held, a reasonable mistake and hence not guilty of criminal homicide.
Page 572 note 6 See, e.g. Criminal Code, Nigeria, sec. 25; Penal Code, Tanganyika, sec. II; and Criminal Code, 1960 (Ghana), sec. 29(1). For the Common Law, see Levett, Crown Cases 538 (England, 1638). Cf. Hall, J., General Principles of Criminal Law (Indianapolis, 1960 edn.), p. 363: ‘To understand the rationale of ignoranhia facti excusat, it is necessary to recognise and take into account the relevant ethical principle, namely, moral obligation is determined not by the actual facts but by the actor's opinion concerning them.’
Page 574 note 1 See, e.g. Wilson v. Inyang,  2 All E.R. 237 (King's Bench Division, England); Penal Code, Tanganyika, sec. 11; and Criminal Code, Nigeria, sec.24 Also Kenny, J. C. S., Outlines of Criminal Law (Cambridge, 1962, 18th ed.), p. 54.
Page 575 note 1 Attorney-General of Nyasaland v. Frank,  R. & N.L.R. 443.
Page 575 note 2 Lord Hale is reported to have once charged a jury: ‘That there were such creatures as witches he has no doubt at all; for first, the Scriptures affirmed as much; secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime. And such hath been the confidence of this Kingdom, as appears by the Act of Parliament which hath provided punishments proportionable to the guilty of the offence’; A Trial of the Suffolk Witches (1695), 6 St. Tr. 687, 700–1. See also Blackstone, W., Commentaries (London, 1781), vol. iv, pp. 60–1.
Page 575 note 3 See, e.g. Eric Galikuwa, 18 E.A.C.A. 175 (Uganda, 1955); and Kajuna s/o Mbake, 52 E.A.C.A. 104 (Tanganyika, 1945).
Page 576 note 1 Kenny, op. cit. p. 54.
Page 576 note 2 Hale, J., Pleas of the Crown (1736), vol. I, pp. 14–15: ‘Man is naturally endowed with these two great faculties, understanding and liberty of will … The liberty or choice of will presupposeth an act of the understanding to know the thing or action chosen by the will’. See also Brett, P., An Inquiry into Criminal Guilt (London, 1963), pp. 57–8.
Page 576 note 3 Holloway v. United States, 148 F. 2nd 665, 667 (App. D.C. [U.S.], 1945).
Page 576 note 4 In the M'Naughten Rules, the defect had to be caused by mental disease. Kemp,  I Q.B. 399 (Queen's Bench, England). Compare Tadee Oyee s/O Duru,  E.A.C.A. 407 (Uganda): a high-grade mental defective not suffering from any specific disease of the mind permitted to plead insanity. In Hotema v. United States, 186 U.S. 413, 22 S. Ct. 895, 46 L.ed. 1225 (Supreme Court, U.S., 1901), the defendant killed a person he thought to be a witch, believing he was thereby obeying the Biblical injunction. Held, that if the defendant had formed an erroneous opinion regarding witches, although sane, he was liable; but otherwise, if suffering from mental disease. Accord: Alice Erfyamremu,  W.N.L.R. 270.
Page 576 note 5 Musmi s/o Muselo, 23 E.A.C.A. 622 (Kenya, 1955).
Page 576 note 6 Cf. Reverend Sydney Smith, editor of the Edinburgh Review in the 1830's; quoted by Radzinewicz, L. and Turner, J. W. C., ‘A Study of Punishment: introductory essay’, in Canadian Bar Review (Ottawa), 21, p. 91: ‘When a man has been proved to have committed a crime, it is expedient that society should make use of that man for the diminution of crime; he belongs to them for that purpose. Our primary duty, in such a case, is so to treat the culprit that many other persons may be rendered better, or prevented from being worse, by dread of the same treatment.’
Page 576 note 7 See Akope s/o Karven, 14 E.A.C.A. 105 (Kenya, 1947); Gadam, 14 W.A.C.A. 442 (Nigeria, 1954).
Page 577 note 1 Holmes, O. W., Holmes-Laski Letters (Cambridge, Mass., 1953), p. 806.
Page 577 note 2 See, e.g. Criminal Code, 1960 (Ghana), sees. 52–4; Criminal Code, Nigeria, secs. 283,284; and Penal Code, Tanganyika, sees. 201–2.
Page 577 note 3 For the common law, see Welsh, II Cox. C.C. 336 (Central Criminal Court, England, 1869).
Page 577 note 4 Mensah,  A.C. 83 (Privy Council, England); Bedder v. D.P.P.,  2 All E.R. 801, (House of Lords, England); and El Baleila Balla Baleila,  S.L.J. & R. 12.
Page 577 note 5 Tembe, [1944–1946] R.L.R. 123; Holmes v. D.P.P.,  2 All E.R. 124 (House of Lords, England).
Page 577 note 6 Green, 15 W.A.C.A. 73 (Nigeria, 1955).
Page 577 note 7 Mulenga Musesa Rieha, 5 L.R.N.R. 718 (1954).
Page 577 note 8 Fabiana, 8 E.A.C.A. 96 (Uganda, 1941); and Akope s/o Karuen, 14 E.A.C.A. 105 (Kenya 1947).
Page 578 note 1 The doctrine of stare decisis requires a judge, save in exceptional circumstances, to follow a rule of law established in a precedent case.
Page 578 note 2 A decision given per incuriam is a decision which inadvertently overlooks controlling case or statutory authority. If the earlier precedent decision was given per incuriam, the doctrine of stare decisis does not require the judge in the later case to follow it.
Page 578 note 3 Daniels, E., The Common Law in West Africa (London, 1964), p. 169.
Page 578 note 4 In Edgal 4 W.A.C.A. 133 (Nigeria, 1948), the defendant was convicted of obtaining a substance intended to be used to procure an unlawful abortion. The relevant Nigerian statute had been drafted in 1916, but the first English case declaring certain abortions unlawful had been Bourne,  1.K.B.687 (King's Bench, England). The Court held that the draftsmen of the Nigerian statute meant by ‘an unlawful abortion’ what the common law held to be an unlawful abortion—and then relied upon Bourne to define the common law. Presumably the draftsman in 1916 knew what the Court in 1939 would announce was the common law!
Page 579 note 1 Daniels, op. cit. p. 396.
Page 579 note 2 Allott, A. N., ‘The Study of African Law’, in S.J.L.R., 1958, p. 257.
Page 581 note 1 Cf. Nwabueze, B., The Machinery of Justice in Nigeria (London, 1963), p. 126.
Page 581 note 2 The details of witchcraft belief vary, of course, throughout Africa. This description is basically that of the Akan of Ghana. See Field, M., Search for Security: an ethno-Psychiatric study of rural Ghana (London, 1960), pp. 35 ff.
Page 581 note 3 Cf. Nwabueze, op. cit. p. 21.
Page 581 note 4 Brend v. Wood,  62 L.T.R. 462, 463 (King's Bench Division, England); Harding v. Price  I K.B. 695, 700 (King's Bench); but query the effect of provisions such as Penal Code, Tanganyika, sec. 10, and Criminal Code, Nigeria, sec. 24—no criminal responsibility ‘for an act or omission which occurs independently of the exercise of his will’.
Page 583 note 1 Cf. Blackstone, op. cit. passim.
Page 584 note 2 See, e.g. Cardozo, B., The Nature of the Judicial Process (New York, 1921), passim. 39
Page 584 note 1 Holmes, O. W., The Common Law (Boston, 1881), p. I.
Page 584 note 2 For a detailed exposition of this view with respect to the law of theft, see Hall, J., Law, Theft and Society (Indianapolis, 1952).
Page 584 note 3 See, e.g. Criminal Code, Nigeria s. 417(e), making it a crime for a person to be found at night ‘having his face… blackened… with intent to commit felony’. Identical clauses appear in all the East African Codes.
Page 584 note 4 Cf. Park, A., The Sources of Nigerian Law (London, 1964), p. 139: ‘It can… be predicted that this process [of unification of English and customary law] will be at the expense of customary rather than of English law. For it should be recognised that customary law, despite its remarkable adaptability, is basically not suited to the type of developed and industrialised society which it is the earnest desire of Nigeria to become. It will of course be a pity for the indigenous institution, which has its roots firmly fixed in Nigerian soil, to disappear, but any attempt to preserve customary law merely for its own sake and after it has ceased to perform the valuable function it still performs at present would be useless and potentially harmful antiquarianism.’
Page 585 note 1 See Wilson v. Inyang, ‘1951’All E.R. 237 (King's Bench).
Page 586 note 1 Williams, G., ‘Provocation and the Reasonable Man’, in  Criminal Law Review, pp. 740, 742; ‘In the law of contract and tort, and elsewhere in the criminal law, the test of the reasonable man indicates an ethical standard.’
Page 587 note 1 Nkrumah, Kwame, Consciencism (London, 1964), p. 95.
* Presidential Professor of Law, University of Ghana, Legon.
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