One of the things that I have found really useful as a scholar AND as a teacher is the power of story and narrative. For my current project, I wrote a world-building/scenario that raises the issues of insiders taking Traditional Knowledge and Traditional Cultural Expressions from their community and engaging with the outside world. It is a mashup of different African cultural tropes and cultural touchstones without picking a specific one. All offense caused is purely my own but I hope it is read in the spirit in which it is written.
You hear this about law professors that we are frustrated creative writing majors :). This is my contribution to that stereotype but also a really important part of the analytical approach I am taking to test my proposal for HOW recognition of customary law would work in an African legal pluralist environment.
The Story
Oko Mmapule Tadesse is a musician in the country of Azania in Eastern Africa, a former British colony. She lives in the capital city of Sofala where she moved to go to University from her home town in the western part of Azania. Her home town of Kitwe is in a region called the Sahrawi Basin and is the shared capital of what were once three pre-colonial nations called Ganvie, Kulb, and Tsandi.
Within Azania, these nations continue to form relatively cohesive ethnic groups, but are sometimes also collectively referred to at the national level as the Sahrawi peoples. Ganvie has a traditional hereditary chieftainship system with an advisory council of elders. Judicial authority is held by a subset of the Council of elders appointed by the Chief with appeals from their decisions to be made to the Chief in consultation with the whole Council. Tsandi was once a direct chieftainship but during colonialism, the chieftainship was abolished. Colonial authorities sought to punish the nation for the chief’s participation in anti-colonial resistance by killing any claimants to leadership. The chieftainship was never restored and Tsandi has no political head or remaining customary governance structure of any kind. Since independence matters have largely been handled by ad hoc gatherings of household heads but otherwise while the Tsandi peoples are seen as a distinct ethnic group, they are governed almost entirely by the municipal statutes and Constitution of Azania.
Kulb has a King, whose role is primarily ceremonial and judicial and is primarily governed by a council of lineage leaders (sometime referred to as clans)[1] who are traditionally elected by a vote of the heads of households[2] at annual grand festival gatherings. Lineage leadership is not hereditary but once elected it is for life or until the leader gives up the task due to old age. In Kulb, lineal descent is matrilineal, although lineage leaders can only be male and are usually one of the elder men in the lineage. The Lineage Council promulgates rules and norms as needed to govern family matters, land and other issues.
Most disputes within a household are managed by custom by the head of household. Household heads apply the law rules and norms from custom and practice in order to ensure family stability, and are empowered to make any ruling that serves that as long as it does not violate any rule or law made by the Council of lineage leaders. The remedies they provide are limited to injunctive relief, restoration, reparation and compensation, as well as expulsion of individuals from the household. Decisions can be appealed to the lineage leaders, who can review the law and facts, affirm or reverse decisions, and can also order expulsion from the lineage for an individual. They can refuse to consider any dispute if they do not wish to. Disputes between households (or between a household member and a head of household) are also managed and address by lineage leaders. Lineage leaders are tasked with maintaining peace between households and families and can require injunctive relief, restoration, reparation and compensation and can make any decision that achieves that, including by establishing new rules and laws. The decisions of the lineage Council are appealable to the King who has the power to either simply affirm the decision of the council or to reverse the decision and send it back for consideration to the Lineage Council.
Azania became independent from Britain in 1967. As with a similar group of British colonies that received their independence in the mid 1960’s, Azania was largely governed indirectly through recognized traditional rulers but reorganized according to British colonial priorities. It was during this time that Kitwe was made the administrative capital for all three pre-colonial nations and one British District Commissioner had authority over the Sahrawi basin. The Sahrawi basin peoples took a significant part in the struggle for independence and are well represented in the national parliament by the Sahrawi People’s Party, a member of the ruling coalition.
Azania inherited a set of British colonial laws, including on intellectual property and membership in the Berne Convention, as well as a history of British common law in its new judiciary which carried over many colonial judges and judgments, as well as statutes. In its initial Constitution, Azania declared itself a parliamentary democracy and recognized the existence of ethnic groups in the following way:
“The people of Azania are one, a single nation, undivided. We recognize the existence of traditional chieftaincies and respect their right to exist and to manage their affairs but these shall not conflict with the rights of the people and the state as provided by this Constitution.”[3]
While there have been several shifts in governance, including some coups and a period of military dictatorship, Azania is now a multiparty democracy, albeit with a ruling coalition that has been in power in some form or another for the past 30 years. Azania is a WTO member, party to the Agreement on Trade-related Aspects of Intellectual Property[4], a member of the World Intellectual Property Organisation (WIPO), and a party to all the major WIPO Treaties.
Oko is a member of the Kulb nation and ethnic group, in which her parents and grandparents can trace their Dinke lineage to the founding of Kulb. Each lineage in Kulb in responsible for a specific set of instruments to be played at the grand festival during the dances celebrating the elections of new lineage leaders, and where necessary, the coronation of a new King or Queen. Oko’s lineage is responsible for making and playing the special drums that are used in the festival ceremonies, as well as lesser drums used in wedding and funeral ceremonies. Under Dinke tradition, men in the Dinke lineage are responsible for making the drums, and women play the drums in the festivals and ceremonies. Drums used in the ceremonies are made sacred or blessed in a secret ceremony by the eldest women in the lineage, who also ensure that the drums are of proper materials and quality. Only drums with drumskins made from cowhide from cows bred in Kulb, wood cut from the Chwaka forest in Kulb, and water from the Karisimbi river in Kulb are blessed and then used in ceremonies. Drum-making has become a major economic activity for craftspeople in the Sahrawi basin. Authentic (same materials) but unblessed Dinke drums are highly sought after and the techniques for making similarly styled drums (with different source materials) are widely spread, with many drums made in the style. Drumming has become part of the popular culture and many people in the Sahrawi basin, and in the town of Kitwe, play drums as part of parties and celebrations, and they are part of the political culture at political rallies.
There is only one set of drums that are built and constructed for the Annual Grand Festival and only one member of the Dinke clan is their custodian. Under Kulb customary law, the drums are considered to have personality and personhood and the custodian is their guardian and must always live with them in her home. This is a position the person has for their lifetime and is reached by apprenticing to the prior custodian. The drums (called The Dube) may be not be played for any other ceremony and the specific songs (called Waking Songs) that are played by the drums may not be played on the drums for any other purpose, except as preparation for the festival.
Oko grew up in Kitwe and is the current Custodian. The Dube travel with her wherever she goes, and when she traveled to go to University in Sofala, they traveled with her. She also owns a set of unblessed but authentic Dinke drums made by her twin brother, Okoye. She plays those drums in her musical group that she leads called Fields of Copper. They play all over Sofala and have amassed quite a reputation and following. She plays her own compositions in the group as well as some traditional songs.
Scenario 1 – The singer Beyoncé is on tour in the region and has a stop in Sofala. As part of the tour, Beyonce tries to promote local artists, and asks them to perform both one of their own songs and to participate in one of her own songs. Visiting Oko in her apartment, she is struck by the Dube drums of which Oko is custodian. She says “You should play those in my concert.” Feeling unable to refuse, Oko plays the drums in the concert. During her own set, Oko uses the Dube to play a Waking Song. Every Kulb in the crowd is shocked but also jubilant at hearing their music on this large international stage. The concert was recorded for a Concert Movie to be distributed by AMC Theatres in the US, under the performing contract that Oko signed. The news of the performance reaches her lineage leader, her uncle Wafula, who is not pleased. He wishes to take action against her and prevent the inclusion of the songs in the Concert tour movie.
Scenario 2 – One of Oko’s most popular compositions is called “Away Home” which she has based on one of the Waking Songs. She has only performed it but has never recorded it. However, a record producer approached her to make a record and she agreed but first talked to a lawyer friend to make sure that she retained copyright to the composition while the recorded song was assigned to the record producer. Her contract stated that she would receive one upfront payment and royalties from any distribution or public performances of the sound recording by the record producer. In partnership with a record label in South Africa (Mzansi records), the song went viral on YouTube and became a hit in the rest of Africa and in Europe. Her lineage leader finds out about the song and realizes its similarity to one of the Waking Songs and confronts her. When confronted Oko admits that she based the song on the Waking Song but argues that she made an original song and that she was entitled to copyright it, and that she did not violate her duties or obligations and she did not use the Dube on any of it. Her Uncle wishes to take action against her and Mzansi records.
Scenario 3 – One of Oko’s university professors is an anthropologist from Germany who is fascinated with Dinke music and the drums in particular. She begs Oko for a chance to watch and listen to her practice the Waking Song. Oko even agrees to let her professor record her practicing, although they agree that she can only use this for her research purposes and may not share or distribute it to anyone else. The agreement stands, but her professor publishes a paper in a Journal and then in a popular music magazine, Rolling Stone, in which she acknowledges and thanks Oko for letting her listen to her practice. It turns out that she has also shared the recordings with some fellow scholars in Germany and used it as part of her application for promotion to Full Professor at the University. The article is read by one of her cousins who notifies her uncle, the lineage leader. He wishes to bring action against Okoye and the anthropologist.
Scenario 4 – In secret, Oko has been teaching her twin brother, Okoye, to play the Dube and the Waking Songs. Under customary law and tradition, The Dube can only be played by the Custodian, who can only be a woman. Realizing that he will never be allowed to perform on the Dube or perform the Waking Songs at home, Okoye leaves Azania to go to university at Vassar College in Poughkeepsie New York. He brings a set of unblessed but authentic Dinke drums. While there he starts a drumming circle in which he plays the Waking Songs. He eventually moves to Brooklyn, New York when he graduates, starts a musical group called, True Soil, performing the Waking Songs in clubs, until he gets a record deal from Arista records. The first album that he makes consists entirely of Waking Songs. He brings copies of the album home when he visits home and gives it to friends in Sofala and in Kitwe. His uncle, the Lineage leader finds out and is unhappy with this and seeks to take action against him and the record company.
[1] A lineage is usually defined as a group of families that share a common founding ancestor
[2] A household is any family unit with a recognized head, usually the oldest married man in many traditional patriarchal cultures in Africa. Such a unit usually includes three generations, sometimes with several siblings and cousins, including unmarried or widowed siblings and elder children. There is significant variety, but this usually defined uncontroversially as a matter of custom in most traditional communities
[3] Section IV, Article 5, Azanian Constitution (1967)
[4] Agreement on Trade-Related Aspects of Intellectual Property Rights, 33 I.L.M 1197 (1994).
Technology, Sustainability & Human Rights 