of Philosophy, Science & Law
July 11, 2007
An Indigenous Yoruba - African
Against Capital Punishment
Dr. Moses Òkè*
Lecturer, Department of Philosophy,
, E-Mail: email@example.com
The paper notes that whereas
the issue of capital punishment is very old and not alien to any human society,
and whereas there is an abundance of literature on Western philosophy of
punishment, very little philosophical work on punishment from the African
perspective can be cited. By way of
filling a part of the lacuna in the literature, the paper examines the Yorùbá
culture for its perspectives on the death penalty.
The paper finds in the Ifá
Literary Corpus, though implicit, a strong philosophical argument against
capital punishment. The argument, explicated and analyzed, turns out to be an
introduction of a skeptical epistemological consideration into the debate over
capital punishment in a unique way that raises some other jurisprudential
issues relating to judicial administration.
The paper concludes that
although there may, as would be expected, be other positions on the issue of
death penalty in Yorùbá culture, the particular argument examined validly makes
its point for the abolition of capital punishment, especially when situated in
the context of Yorùbá social ethic, which is essentially communal and
humanistic. The enabling cultural context of the Ifá argument against capital
punishment was extended beyond its immediate Yorùbá socio-cultural context to
the pan-African humanistic social ethic conceptualized in Bantu languages of
as ‘Ubuntu’, thereby giving the argument
a contemporary universal relevance and applicability.
philosophical, political and judicial circles, the debate continues to be
lively between those who support and those who oppose the use of capital
punishment. In some places, the death penalty has been abolished in deference
to the pressure and force of the abolitionists’ arguments.
As has been very well put by Owoade
(1988:42), the debate over capital punishment, from the perspective of Western
jurisprudence, moves in three directions. There are: (i) the
“moral-humanitarian-religious” directions; (ii) “the popular direction i.e. the
views, prejudices and superstitions of the man in the street’’, and (iii) “the scientific”
direction, “i.e. the penological, psychiatric, and sociological views on the
While there is an abundance
of literature on Western philosophy of punishment,
very little philosophical work on punishment from the African perspective can be
cited. This is not unconnected with the relative nascency of African philosophy
as an academic discipline.
This late development of philosophy as a distinct discipline that underlies the
canonical near-absence of African views in moral philosophy and philosophy of
law extends to the view that Africans have little or no reflective ideas of
law, except the despotic will of tribal chiefs.
Although the Yoruba in
pre-colonial times believed in the sovereignty of their traditional rulers in
their respective domains, they also believed that each ‘oba’ (traditional
ruler) would ensure that the incidence of any punishment was directly on the
offender (that is, as a Yoruba proverb puts it, “ìka tí ó sè ni oba n gé”,
meaning “The finger that offends is that which the king cuts” (Adewoye
1987:77)). In the present era, the government (‘ìjoba’, i.e. assembly of
chiefs/rulers) can be said to have replaced the solo ’oba’ in the
administration of justice in Yorùbá land, as in other places.
The widespread acceptance of
capital punishment for such offences as theft, murder, treachery, and rebellion
is very well reported in Yorùbá folklore, particularly ‘Àló’ (Yorùbá folk
tales). Many of the Yorùbá folk tales (i.e.Àló) are meant to convey moral
precepts, to teach societal norms and etiquettes, to comment on life and
living, and to portray the structure of society. Of particular relevance for
the present discussion are the ‘Àló Ìjàpá’. These are animal stories, in which
‘ìjàpá’ (the tortoise, believed in folklore to be the most cunning of all
animals) is always the focal, often tragic, character. Most of the stories
depict possible and actual situations that mirror the society’s experiences of
reality and offer occasions for critical reflection on such experiences.
Babalola (1973) and Lawuyi (1988) report many of these folktales, which are
usually orally given among the Yorùbá. In most of these tales, the ending is
the execution, or other severe punishment, of the convicted tragic character,
as ordered by the ‘oba’ (i.e. the traditional ruler or king). In the folktales,
death by beheading is the usual form of capital punishment.
However, the Yorùbá believe
and say further that the execution of convicts was neither for fun nor to
provide the king with blood to drink; rather, it was to mark the king’s dignity
(that is, as they say, “Iyì ni Oba n fi orí bíbé se, oba kò ní mu èjè’.). In
other words, it was traditionally believed to be a part of the king’s greatness
and absolute authority that he should be able to exercise the power of life and
death over his subjects, albeit, on the assumption that the king was
infallible. The impression that one might get from this is that the Yorùbá
people indigenously did not have any objections whatsoever to capital
punishment. It might thus be supposed that indigenous Yorùbá culture
unreservedly or uncritically approved of capital punishment.
The objective of this paper,
therefore, is to call attention to a strong philosophical argument against
capital punishment in indigenous Yorùbá culture that is still very much
relevant in contemporary contexts. In
, for instance, the debate
over the death penalty, especially with the introduction of the Sharia legal
system in some parts of the country vis-à-vis the 1999 Constitution of the
Federal Republic of Nigeria, led to the establishment of a Presidential
Committee to deliberate over it and advise government accordingly.
The present argument, when carefully articulated and studied, will be found to
be both logically rigorous and philosophically sophisticated, especially when
compared with the other arguments in the philosophy of punishment 7. As is to
be expected, however, there could be other arguments for and against capital
punishment to be found in indigenous Yorùbá culture that could contribute
significantly to the philosophy of punishment.
2. OUTLINE OF THE
The indigenous Yorùbá
argument that is to be articulated herein is to be found in Ifá,
the compendium of Yorùbá ancient wisdom and primary culture. It is to be found
in that part of Ifá titled Odù Ògúndá –Ìròsùn.
The relevant thematic passage in the Odù, with philosophical import for the
present purpose is:
“Orí yéye ní Mòguń,
Kò şè ò rò ló pò níbè.
Dá fuń Ògúndá, tí yí ó peran,
Tí yó fèjè yí Ìròsùn lénu’.
Ifá wí pé “Ire àìkú”.
Ifá wí pé “Kéléni ó rúbọ,
Kí wọn ó má ti òràn mo láìsè o”.
(I.e. “There are too many heads
at Ògún’s shrine [or, in the
town called Mogun.]
Many of the heads are of
Cast for Ògúndá,
Who would kill an animal,
And smear Ìròsùn’s mouth
with its blood.
Ifá Oracle prescribes a
someone is falsely accused
That is to say that most of
those who had been given capital punishment in the community did not deserve to
have been executed. This claim is elaborated in the Odù with the following
In a certain mythical town
there lived two brothers, Ògúndá and Ìròsùn. There were also the king and other
townspeople. On the way to their farm each day, the two brothers passed by the
shrine of Ògún, which served as the public execution ground, and which was
therefore always littered with many human heads. One day as they passed by the
shrine, Ògúndá remarked that most of the heads at the shrine were those of
persons who were not guilty of any capitally punishable offence. His brother
objected, arguing that everyone who was beheaded at the shrine must have
deserved the capital punishment. The debate between the two brothers continued
for a long while, with Ìròsùn always maintaining that ‘to be punished is to be
guilty’, while Ògúndá maintained that ‘punishment does not imply, confirm or
establish guilt’. To drive his point home, Ògúndá mentally constructed a
possible situation in which an innocent person was convicted of a capital
offence, as in a set-up, miscarriage of justice, or flawed judicial procedure.
In the story, the king had a
favorite pet goat that was treated like a human member of the royal household.
It was well fed and given royal respect by everyone in the town. One day,
Ògúndá trapped the goat. He waited until night fell and his brother had gone to
sleep after getting very drunk. He then slaughtered the goat, letting its blood
make a trail to the entrance of his brother’s bedroom where he deposited the
dead goat after smearing the sleeping man’s mouth with its blood. He went
further to stick the head of the goat in Ìròsùn’s mouth.
When the goat was declared
missing the following morning, the king sent his servants out to search for it,
vowing that whoever had kept the goat in his or her custody, not to talk of
having injured or killed it, would suffer the death penalty. Following a tip-off
from Ògúndá, the king’s servants found the dead goat at the entrance of
Ìròsùn’s bedroom. They also noticed the bloodstains on Ìròsùn’s clothes and
lips. He was woken up and made to carry the dead goat on his head to the king’s
palace where the townspeople and a jury were already waiting for the trial of
the alleged killer of the king’s favorite goat. The case was speedily disposed
of, as there was an overwhelming preponderance of evidence against the accused,
with perhaps none in his support. As already decreed by the king, the penalty
was death by beheading at the shrine of Ògún.
As Ìròsùn was being led to
the shrine, Ògúndá emerged and sought the permission of the king to say
something. He declared to the consternation of the people that it was he, and
not Ìròsùn, who killed the king’s goat. He further informed the audience that
he had set his brother up in order to prove the point that very many of those
previously executed at the shrine of Ògún were possibly innocent of the charges
levied against them and for which they were convicted and condemned. By extension, he wanted to show why capital
punishment was bad and so should be discontinued in the town.
Ogunda’s submission was well
taken by the king and the townspeople, especially because he was a respected
and reputedly wise person in the community. The submission also seemed to have
agreed with the unarticulated or unexpressed thinking of the reflective members
of the community that innocent persons were sometimes judicially executed.
The king, on reflection, was
also convinced of Ogunda’s point and he was remorseful for all the death
sentences that he had passed and enforced in the past. He realized that another
innocent person would have been mistakenly killed if the truth had not been
volunteered after his judgment. That is,
assuming that the enforcement of the judgment on the convict was to be
immediate and irreversible, an innocent person would have been executed while
the guilty one went away unknown and undetected. Thus, upon realizing that for
a variety of reasons, any case could be proved against anyone, even when the
person was innocent of any offence, the king ruled that Ìròsùn, the convict,
should be set free. End of story.
explanatory story, as it has been used in this paper, comes from the published
text of Odù Ògúndá in the compressed 16-book format of Ifá Literary Corpus,
known as Sixteen Cowries/Ẹérìndínlógún (Bascom 1980). There is, however,
no significant difference between this documented text and the verbal recitals
of the Odù, as given by practicing Ifá Priests
using the enlarged 256-book format of Ifá Literary Corpus (comprising the 16
major Odù, known as Ojú Odù, and the 240 derived or mixed Odù, known as Ọmọ/Àmúlùmálà
Odù, wherein the story occurs in Odù Ògúndá-Ìròsùn. However, owing to the
multi-dialectical nature of Yoruba language, there may be different lyrical and
stylistic renditions of an Ifá text, but the essential content of any Odù Ifá
verse is constant among trained priests and priestesses, although the
priests/priestesses do not all know the same number of verses of any or all of
the Odù Ifá. The portion of the Ifá verse used in this paper (‘Orí yéye ní
Mògún; tàìsè ló jù’) is popular and has in fact become a proverbial saying
among the Yorùbá, although it cannot be shown or said that many of those who
use the passage proverbially fully comprehend the background story and/or its
legal/jurisprudential/philosophical import, because most Ifá priests and
priestesses, and others too, do not engage in the philosophical kind of
critical reflection on the cultural document that Ifá is (Abímbólá 2006:
Some questions might arise
at this point, although they are not the immediate concern of the present discussion.
Two of such questions are; what happened to Ògúndá after his confession? What
would the king have done if it had been his child or wife or another person
that was killed instead of a favorite goat?
Moreover, it needs be emphasized
that the philosophical point of Odù Ògúndá - Ìròsùn is not a rejection of
punishment for wrongdoing, but a rejection of a particular type of punishment,
to wit, capital punishment. Therefore, it is reasonable to say that on
abolishing capital punishment, a society will still have recourse to other
non-capital types of punishment that will reasonably allow for future reversal
of judgment in the event of credible mitigating evidence. This will be an
acknowledgement of the fact that an innocent person who could not prove his or
her innocence now, for one reason or the other, might yet be able to prove it
or have it proved in the future. In such cases, the innocent recipient of
punishment would have suffered only for his or her inability to establish his or
her innocence, which is a duty to one’s self.
Although the appellate
judicial system offers some hope, there is no guarantee that every innocent
convict will be able to prove his or her innocence at the appellate levels of
any judicial system, especially in the case of especially vulnerable convicts
such as the drunken Ìròsùn.
3. PHILOSOPHICAL ANALYSIS
OF THE ARGUMENT
Ògúndá - Ìròsùn emphasizes
the ever-present possibility of error in the judicial process. It demonstrates
the theoretical possibility of justice being miscarried on every occasion. The
Odù introduces an aspect of epistemological skepticism into jurisprudence. It
is based on the thesis that we cannot be absolutely certain (in the sense of
having had all the relevant evidence, such that all reasonable doubts have been
eliminated) of any claim or truth that concerns matters of fact and existence.
In addition, it shows that with respect to the facts of a case, there is no
theoretical limit to relevant evidence in law (Òkè &Amodu, 2006: 160).
Hence, every judgment must leave room for possible reversal without extra loss
to the convict in the event of possible future exonerating evidence. Such a
reversal will not be possible where the convict had already been put to death.
Therefore, in the indigenous reflective thought of the Yorùbá, as presented in
the Odù Ifá called Ògúndá - Ìròsùn, capital punishment is not the best option
and should be abolished, no matter how grievous the alleged offense.
the argument against death penalty in this paper is based on a passage from the
sacred text of Yoruba culture, the argument, in order for it to be plausible,
neither requires nor includes reference to the will or command of a deity, or
some other religious doctrine or injunction, such as that the death penalty
should be abolished because God or some other tenet of religion forbids it, or
that divine wrath would befall whoever applied the death penalty. Rather, by
employing “the method of deductive ratiocination of African philosophy” (Okafor
2006:42), it has been possible to articulate a non-theological and a
non-religious version of an argument against capital punishment from Odù
Ifá. In particular, subscription to
Yorùbá worldview or religion is not a condition precedent to the appraisal of
Ògúndá’s epistemological argument. In other words, Ògúndá’s argument against
the death sentence can subsist without loss of plausibility outside any
particular religious or metaphysical context. The argument articulated from the
story rests entirely on human reason and empirical observations by persons
(here represented by Ògúndá and his brother, Ìròsùn - both of who were
described as princes - in a specified ancient human community called
Mòguń). In this regard, it is to be noted that Ifá is not exclusively a
religious text. As remarked by Maulana Karenga (1999: iii):
Odù Ifá is a corpus of sacred texts designed essentially to answer questions of
human life through the process of divination. But as Awise Wande Abimbola has
pointed out in his seminal works on the Odù, they contain a wealth of knowledge
and teachings in the realm of various fields including art, literature,
medicine, history, religion and ethics.
Ifá has also been described as a repository of knowledge and an encyclopedia of
Yorùbá culture (Makinde,.1983), and as
“the ancient wisdom’ of the Yorùbá people (Makinde, 1985: 58). In the
view of Kola Abímbólá (Abímbólá 2006: xviii), Ifá is the “main indigenous
sacred Text” of the Yorùbá, which “many specialists within traditional (and
contemporary) Yorùbá societies” use in “a hermeneutical manner” to produce
“cultural philosophy” when “they interpret, analyse, evaluate, and comment on
the poems contained in the Odù Ifá in a critical and reflective manner”. The
perspective of each specialist will therefore determine his/her focus of
engagement with the “cultural ‘document’”. Kola Abímbólá’s focus on Ifá as “the
sacred Text of Yorùbá Religion” (ibid; 28), for instance, was influenced by his
viewpoint “that we can only truly understand the Yorùbá if we understand the
roles of the religious and the spiritual in their culture”. Hence his
engagement with Ifá was to “identify the religio-philosophical properties that
unify the different manifestations of this culture…the philosophical ideas that
form the basis of the practices of Yorùbá Religion in contemporary societies”
(ibid: 33). Thus, just as the Ifá Literary Corpus contains philosophical ideas
that underlie the practices of Yoruba Religion, so does it also contain
philosophical ideas, which could be articulated from it, that underlie other
aspects of life, including law, in traditional and contemporary societies.
Gbadegesin (1991: 76) is very explicit on this point. He says: “it is true that
the most important religious and moral ideas of the Yorùbá are contained in the
Ifá corpus. But, as is clear to even the traditionalists, Ifá is not only a
religion. It is, as Abimbola puts it, also ‘a literary and philosophical
system’”. Abimbola (1971: 73-89) goes further to describe Ifá as “the store-house
of Yorùbá culture inside which the Yorùbá comprehension of their own historical
experiences and understanding of their environment can always be found”.
cannot sustain, therefore, with respect to Ifá, the supposition of a necessary
connection between every African ethics-related discourse and religion as had
been maintained by some notable African scholars.
Arguments against the supposition of a necessary connection between religion
and ethics in African cultures, and for a humanistic thesis of social ethics in
African cultures, had been persuasively advanced by many eminent African
Ògúndá’s argument could thus be regarded as a non-religious rational discourse
that happens to occur within a particular Yorùbá tradition-protected (sacred)
cultural text. As such, the argument from Ifá could readily find contemporary
relevance and applicability in any other cultural context.
order fully to appreciate the universal relevance and applicability of the
Yorùbá indigenous argument against capital punishment discussed above, all that
is required is a critical consideration of its empirical basis and logic.
Empirically, it is true that miscarriage of justice does occur in all
jurisdictions even after all due care had been taken and all appellate avenues
exhausted. Logically, since no one knows which case would involve or would not
involve a miscarriage of justice, such as a wrongful conviction, all judicial
verdicts are inherently fallible.
epistemological argument against death sentence has been re-constructively
articulated from the Yorùbá (African) cultural context, it could acquire a
universal relevance. The possibility of error in human judgment of matters of
fact and existence is universally acknowledged as an inherent part of our human
nature (Ayer 1956: 39-40; Ayer 1981: 63; & Popkin 1967: 449 - 460). This
universal human fallibility, particularly in judicial matters, is what Ògúndá’s
heroic effort in the story from Ifá Literary Corpus above sought to demonstrate
in a dramatic way in Odù Ògúndá-Ìròsùn. Epistemologically, wherever and
whenever the possibility of error cannot be completely eliminated, thereof
human beings ought to be cautious, if they cannot be silent, by way of being
circumspect in every judgment on the ground that evidence is yet inconclusive
either for or against the case at hand. In law, this leads to the view that for
judicial proof, there is no theoretical limit to evidence (Òkè & Amodu,
2006:160). Hence, it is a sound argument that every society should abolish any
form of punishment that tends to suggest that all possible evidence relevant to
a case had been obtained, presented, and considered such that any future
revision or reversal of the consequent verdict in the case is ruled out, as in the
case of death sentences.
Although Ògúndá-Ìròsùn does
not overtly allude to it, its abolitionist argument on death sentence is better
appreciated in the context of its cultural social ethic. So situated, as would
be done below, the thrust of Ògúndá’s epistemological argument for the
abolition of death penalty is a call on the community to live up to its
responsibility to its members in conformity with its avowed view of humanity as
contained in Yorùbá social ethic.
Yorùbá social ethic is
characterized by a communal humanism that emphasizes the interdependence of the
individual and the community. In Gbadegesin’s expression, “The purpose of
individual existence is intricately linked with the purpose of social
existence, and cannot be adequately grasped outside it…. individuality and
community thus become intertwined” (Gbadegesin, 1991:58). The interdependence
between individuals and the community requires that the individual should be
committed to the sustenance of his or her community as much as the community
should be committed to the preservation of the life of all its members. Human
beings are thus conceived in indigenous Yorùbá culture as the ultimate agents
for the “continued existence of the community” (Gbadegesin, ibid.), in virtue
of which they are endowed with an inherent individual worth, such as is not
accorded to other beings in nature. It is on the basis of their unique
conception of the human being that the Yorùbá within their traditional and
indigenous culture “understood the universality of human rights…. recognized
and defended human rights”, and had institutional “measures to ensure that
these rights are enforced, protected and proclaimed in culture, custom and
tradition” (Bewaji, 2006: 51). In Yorùbá indigenous culture, therefore, the community
has a duty to protect the humanity of all persons, irrespective of the
circumstances of their lives or their social pedigrees. Thus, even when certain
inadequacies or deficiencies are noted or alleged in particular individuals,
the principle of universal humanity still requires that the essential dignity,
the inherent worth of such persons be acknowledged, protected and respected in
meting out any social sanction on them.
The existence of social
arrangements to assess and deal with those who fall short or are alleged to
fall short of social expectations or who violate social rules in Yorùbá culture
“does not mean that their humanity is in any way compromised” (Bewaji, ibid.).
As such, when humanity is being considered, Yorùbá indigenous culture does not
discriminate between the accused, the convict, and the righteous. In its
conception of humanity, Yorùbá indigenous culture shares an essential
similarity with the views of other human cultures, notably those of cultures of
modern societies, which have culminated in the 1948 United Nations Charter of
Universal Declaration of Human Rights, which in contemporary cultures
highlights “the need to have equality of respect and treatment for the humanity
of all humans” (Bewaji, ibid. 51; 64), irrespective of the diversities of their
existential circumstances, perfections, and shortcomings.
For the Yorùbá, in their
indigenous culture, of all the rights that humans have “by virtue of their
being humans and for no other reason except this” (Bewaji, ibid. 51), the most
fundamental, in terms of making the other rights not only possible but also
meaningful, is the right to life. The ultimacy of the right to life is
expressed in the following Yorùbá sayings: “Èmí lójù” (‘Life is the most
important’); “Bá ò kû, ìse kò tán” (‘If we are not dead, we still have roles to
play’; “Èmí gígùn ló ń sànyà” (‘It is a long life that compensates for
suffering’); and “Ẹni tó kú ni tirẹ tań” (‘Only the dead has
forfeited all that he or she has, including rights, humanity and essential worth).
Thus, as rightly noted by Bewaji (ibid. 62), “for the Yorùbá, life is valuable
in itself”. For the Yorùbá, therefore, human life ought not to be deliberately
taken, as is done in death penalty, for any reason whatsoever. It is for this
reason that the community ought not to follow the way of the murderer through
the use of the punishment of death on its members for offences against the
When the foregoing
discussion is linked to the Yorùbá indigenous argument against death penalty,
Ògúndá appears to have reasoned that the existence or retention of death
sentence in Yorùbá society was at variance with the foundational humanist
principles of Yorùbá culture (Gbadegesin, 1991: 61 – 82). More specifically,
Ògúndá’s reasoning appears to be that the primacy of human life, in the context
of an avowal of a communal duty of unconditional protection of every person’s
right to life in Yorùbá culture, is intolerably compromised by a judicial
system that allows the society to kill people for offenses committed or
allegedly committed against the society. Ògúndá’s intolerance for the
compromise is exacerbated by the demonstrated constant possibility – logical
and empirical – of wrongful innocent conviction of an accused person at any
level of the judiciary. On the 14th of May 2007, for instance, a Nigerian daily
newspaper, (The Nation), reported the pathetic story of two policemen, Simon
Edibo and Sunday Ndidi, who spent 17 years on death row before they were freed
of the charge of armed robbery and murder for which they were condemned to
death by the High Court of Delta State, which verdict was confirmed by the
Appeal Court. Unfortunately, before The Supreme Court could set aside the
judgments of the lower courts, one of the convicts, Sunday Ndidi, had died on
the death row.
The injustice always
occasioned by the occurrence of a miscarriage of justice, such as in a wrongful
conviction, is what Ògúndá in his argument in Ògúndá-Ìròsùn wanted to see
abolished in his society. In this regard, it is to be noted that in Yorùbá
indigenous culture, “injustice to one is injustice to all members of the
society” (Bewaji, op.cit: 64), as is aptly expressed in the following Yorùbá
proverbial sayings. “Àrùn tó ń se Abóyadé, gbogbo ọlọya ló
ń se” (‘whatever is plaguing a member of the community of Oya’s devotees,
(i.e. devotees of the Yorùbá River Deity) is plaguing every member of that
community of devotees’); “Ikú tó ń pa ojúgbà ẹni, òwe ló ń pa
fún ni” (‘the death that is consuming one’s peers is proverbially warning of one’s
own impending similar death’); “Ohun tó bójú, ló bámú” (‘whatever affects the
eyes affects the nose’); and “Ẹni tí kò ì kú, kò mọ ikú tú má a
pòun” (‘the living are ignorant of the manner of their death’). It is in the
interest of everyone, therefore, and the duty of everyone as well, to see to
the abolition of any form of punishment, such as death sentence, that violates
the essential dignity of any human being, no matter how grievous the alleged
offence or how obvious the guilt of the accused might seem. Otherwise, such
punishment is awaiting everyone else in the society where it was not abolished.
As the Yorùbá say “pàsán tí a fi nàyáálé ń bẹ lájà fún ìyàwó” (‘the
cane that was used to beat the senior wife is waiting in the ceiling for the
The above outlined cultural
context, housing Ògúndá’s argument for the abolition of death sentence, finds a
broader expression in an indigenous African social ethic that is discernible
among the Akans of Western Africa (Busia, 1962: 33; Gyekye, 1987: 155), and
many Bantu societies of Southern Africa The pan-African social ethic under
reference is conceptualized as ‘Ubuntu’ in the Bantu languages of Southern
Africa (Panse), and has been described as “a traditional African philosophy
that offers us an understanding of ourselves in relation with the world” and
“defines what it means to be truly human” (ibid). It is regarded as a
“traditional African concept”, “a sub-Saharan ethos or humanist ideology
focusing on peoples’ allegiances and relations with each other” (Wikipedia). As
advanced by Tutu (Wikipedia), and discussed by Teffo (1998: 240 – 241), the
central point of Ubuntu is that human beings are inextricably connected to one
another in concrete, rather than abstract, ways, such that the humanity of one
is defined by the humanity of the other person and by membership of a
community. Ubuntu, as Teffo describes it, “is a social ethic, a unifying vision
enshrined in the Zulu maxim: umuntu ngumuntu ngabanye (one is a person through
others). According to Bishop Tutu, Ubuntu is the “essence of being human” that
makes or perhaps should make people “open and available to others, willing to
be vulnerable…know that they are diminished when others are humiliated,
diminished when others are oppressed, diminished when others are treated as if
they were less than who they are” (Tutu, Wikipedia) In his further
characterization of Ubuntu, Teffo (ibid.) presents it as an indigenous African
humanist ideology. He observes that from the Ubuntu perspective, “African
societies placed a high value on human worth, but it was a humanism that found
expression in a communal context rather than in the individualism of the West“.
Explaining further, Teffo says, “Ubuntu or humanness implies a basic respect
for human nature.” This Ubuntu humanness is seen in a person’s relationship
with other members of his/her family or community. In such relationship, for a
person with Ubuntu, “The dignity, safety, prosperity, health and development of
all people is the most important priority”. Moral judgment is thus based on how
humane a person’s behavior is towards other human beings. As succinctly put by
Ahianzu (2006: 33), “Ubuntu is about people and more importantly about
relationships between people”. Thus, “an UBUNTU view of life is synonymous with
concepts such as cooperation, mutual respect and support as well as unity
within the community” (Teffo, ibid, 240). Hence, if as Tutu says of Ubuntu, “We
belong in a bundle of life” (Tutu, ibid; also Thabo Mbeki, 2001: 9; Louw,
2001:15; and Nussbaum, 2001: 4.), then we need, as a community, and as
individuals, to be considerately and consistently open, rather than finalistic,
in our opinions and judgments of ourselves and other fellow human beings.
Placed in the wider context
of Ubuntu, Ògúndá’s argument for the abolition of death penalty in traditional
Yorùbá society was based on the view that human society’s judicial and penal
systems ought to be humane in conformity with a due recognition of an
ever-fallible humanity. Ògúndá’s argument was that the African cultural avowal
of communal protection of everyone’s human rights and respect for the human
dignity of all, was patently not in sync with either the policy or the practice
of judicially killing offenders or alleged offenders in the community, especially
when it was granted that the judicial system was always vulnerable to
The above jurisprudential
conclusion does not preclude the divinatory signification of Odù Ògúndá-
Ìròsùn; rather it complements it. Divinatorily, the Odù, in the portion of it
used in this paper, signifies the imminence of an injustice or a miscarriage of
justice, or that such injustice or miscarriage of justice had actually taken
place. Whichever is the case, the Odù goes further to prescribe how to prevent
or redress the injustice or miscarriage of justice. The details of this aspect
are parts of the Ifá practitioners’ professional trade secrets.
It is to be noted that this
indigenous argument is not based strictly on moral grounds. This is because its
conclusion does not arise solely from a moral evaluation of capital punishment.
The rejection of capital punishment is also not just from a practical or
pragmatic or teleological or some other consequentialist consideration. This is
because the argument does not claim that capital punishment is bad,
unjustifiable or undesirable because of the practical or utilitarian reason
that it never achieves its intended purpose or purposes such as deterrence and
psychosocial balance. Similarly, the rejection is not based on metaphysical
considerations such as that human nature forbids the killing of persons, or
that human life, simpliciter, is sacred and so should never be taken by anyone
for any reasons whatsoever, etc. It is also noteworthy that the Ifá argument,
although extracted from a sacred text, is not a religious or a theological one.
It is a secular argument based entirely on empirical human observation and
logical reasoning within a humanist social ethic. Its premises make no
reference to God, the will of God, the judgment of God, or post-life existence
in support of the conclusion that capital punishment is inherently
objectionable. Finally, it is to be noted that unlike the classical
humanitarian argument against the death penalty, the point of Ògúndá - Ìròsùn
is not just that capital punishment is cruel, wicked and inhuman.
Yet, in spite of the above,
this objection to capital punishment in Ifá is neither a casual nor a flimsy
pedestrian expression of a wish, ideal or opinion. Rather, it is a strong
argument arising from a skeptical epistemological standpoint with sharp ethical
and legal implications, and demonstrated in a logical and scientific way. The
argument has also extensionally involved the Yorùbá social ethical context
within which it arose and which made its jurisprudential thrust better
Beyond its immediate Yorùbá
context, the discussion has been extended to the larger pan-African indigenous
socio-ethical perspective known as ‘Ubuntu’, a communal humanist ethical
standpoint that is dominant in many traditional African societies and is
considered relevant in the contemporary world. As put by Ahiauzu (op. cit: 36),
Ubuntu “embodies a fundamental aspect of the way Africans see themselves and
their relationships with others”, the ethos of which, in the opinion of Teffo
(op. cit: 241), “ is one single gift that African philosophy can bequeath to
other philosophies of the world, in particular Western philosophy”.
On a meta-discourse level,
the discussion in this paper complements the point that many have sought to
make against the tendency to deny the existence and possibility of African
jurisprudence and thus to exclude African texts from the body of classical
texts in law and philosophy of law. In particular, it substantiates, in a
factual way, and gives empirical fiber to Idowu’s (2001, 2004, 2006) recent
theoretical challenges of the exclusion of indigenous African thought from the
cannons of jurisprudential literature.
assistance of Dr. Abiodun Agboola, PhD, an internationally renowned Ifá High
Priest, who is also a Lecturer in Rural Sociology at
, is hereby acknowledged.
His personal recitation of the verse of Odù Ògúndá-Ìròsùn for me, as well as
his inviting me to other group recitations at Ifá Festivals in various places
in Nigeria, has helped to corroborate Bascom’s documented story (in W. Bascom,
1980: 482 - 489) used in this paper and to establish that it is reliable,
constant and standard among the community of Ifá priests/priestesses.
Abímbólá, W. (1968), Ijinle
Ohun Enu Ifá, 1,
: Aim Press.
--------- (1971), “The
Yoruba Concept of Human Personality”, La Notion de Personne en Afrique Noire”,
Paris; Centre National de la Rescherche Scintifique, (73-89).
--------- (1976), Ifá: An
Exposition of Ifá Literary Corpus,
--------- (1977), Ifá
NOK Publishers Ltd.
--------- (1978), Awon Oju
--------- (1983), “Ifa as a
Body of Knowledge and as an Academic Discipline”, Journal of Cultures and
Ideas, Vol. 1, No. 1:1-11.
--------- (1987), Ijinle
Ohun Enu Ifá, 2,
--------- (1997), Ifá Will
Mend Our Broken World, Roxbury: Aim Books.
Abímbólá, Kólá. (2006),
Yorùbá Culture: A Philosophical Approach,
Ìrókò Academic Publishers.
, H.B. (Ed), (1969), The Philosophy of Punishment,
Adewoye, O. (1987),
“Proverbs as a Vehicle of Juristic Thought Among The Yorùbá” in
Law Journal, 3 and 4: 1-17.
Ahianzu, Nkiruka (2006),
“Ubuntu and the Obligation to Obey the Law”, The Cambrian Law Review, volume 37
Apega, Rev D.O. (1924), Ifa:
, Ode- Remo: Imole Oluwa Institute for the
Ancient Wisdom of the Yorùbá.
Ayer, A. J. (1956), The Problem of Knowledge,
: Macmillan &
Co. Ltd: 39-40.
--------- (1981), The
Central Questions of
Penguin Books Ltd: 63.
Babalola, A. (1973), Akojopo
University Press Ltd.
Bascom, W. (1969), Ifa
Divination: Communication Between Gods and Men in West Africa,
--------- (1980), Sixteen
Cowries: Yorùbá Divination from Africa to the New World,
Baier, K. (1969), “The
Concepts of Punishment and Responsibility”, in The Philosophic Exchange: 38-42.
Bewaji, J. A. I., (1992), “A
Critical Analysis of the Philosophical Status of Yoruba Ifá Literary Corpus”,
in Wiener Reihe, Vol. VI: 142 – 155.
--------- (2003), Beauty and
Culture: Perspectives in Black Aesthetics,
Spectrum Books Ltd;
--------- (2004), “Ethics
and Morality in Yoruba Culture”, K. Wiredu (ed), A Companion to African
: Blackwell Publishing Ltd; 396 –
Brandt, R. B. (1959),
Ethical Theory of Punishment, Englewood-Cliffs,
: Prentice-Hall Inc.
Busia, K. A. (1962), The
Challenge of Africa,
Davidson, Basil (1978),
Africa in Modern History: The Search for a New
Penguin Books Ltd.
Driberg, J. G. (1934). “The
African Conception of Law”, in Journal of Comparative Legislation and
International Law, 230, 1934: 237-8; and Journal of African Society, 34,
Duff, A (1985), Trials and
Essien, Christine (2004),
“Overview of Perspectives of Death Penalty as Regards Vulnerable Groups
(Children, Women and the Poor)”, Paper presented at the Public Consultation on
Crime, Punishment and the Death Penalty, Hamdala Hotel, Kaduna, Nigeria, (18
Gardiner, G.A. (1956),
Capital Punishment as a Deterrent and the Alternative (
Goldberg, S. (1974), “Does
Capital Punishment Deter?” in ETHICS Vol. 85 No. 1.
Gbadegesin, S. (1985), ”Can
there be an Adequate Justification for Capital Punishment?” in Social Justice
and Individual Responsibility in the Welfare State,
: Fran 3 Sterner Velag, 227-233,
(Proceedings of the 11th World Congress of Philosophy).
“Individuality, Community and the Moral Order”, Chapter 3 in his African
Philosophy: Traditional Yoruba Philosophy and Contemporary African Realities,
: Peter Lang.
Gyekye, Kwame (1987), An
Essay on African Philosophical Thought: The Akan Conceptual Scheme,
Haag, V. D. E. (1968),
Deterrence and the Death Penalty,
Humanities Press Inc.
Hart, H. L. A. (1968),
Punishment and Responsibility,
Holleman, J. F. (1974),
Issues in African Law,
Moulton and Co: 13.
Honderich, T. (1984),
Punishment: The Supposed Justification, Harmmondsworth: Penguin Books.
Horton. R. (1967), ”African
Traditional Thought and Western Science”,
”Traditional Thought and the Emerging African Philosophy Department: A Comment
on the Current Debate” in Second Order, An African Journal of Philosophy, VI/1.
(1982), “Tradition and Modernity Revisited”, in Hollis, M. and Lukes, S.
(eds.), Rationality and Relativism,
Idowu, E. Bolaji (1962),
Olodumare: God in Yoruba Belief,
Longman Group Ltd.
Idowu, W. (2001), “African
Jurisprudence and the Politics of Social History: An Inquiry into the Dilemma of Cannonisation”, Lesotho
Law Review, Vol.14, no.1:1– 27.
--------- (2004), “African
Philosophy of Law: Transcending the Boundaries between Myth and Reality”,
: Myth and Realities, Enter Text On-Line Journal,
an Interactive Interdisciplinary e-Journal for Cultural and Historical Studies
and Creative Work. http://www.brunel.ac.uk/faculty/arts/EnterText,
vol.4, no.2, Winter: 52 – 93.
--------- (2006), “Against
the Skeptical Argument and the Absence Thesis: African Jurisprudence and the Challenge of
Positivist Historiography”, The Journal of Philosophy, Science & Law,
Volume 6, July 1: 34 – 49.
Karenga, Maulana (1999), Odù
Ifá: The Ethical Teachings,
: University of Sankore Press.
Lawuyi, O. B. (1988), “The
Tortoise and the Snail: Animal Identities and Ethical Issues Concerning
Political Behaviour among the Yoruba of Nigeria”, Second Order, An African
Journal of Philosophy, (new
series). Vol. 1, No: 2: 29-40.
Lewis, C. S. (1963), ”A
Critique of the Humanitarian Theory of Punishment” in
Lijadu, E. A. (c.1997), Ifa
Mimo Alabalase, Ado-Ekiti: United Star Printers Ltd.
Lijadu, E. M. (1908),
Orunmila, Ado-Ekiti: Omolayo Standard Press of Nigeria (2nd reprint, 1972).
Liyong, Taban Lo (1997),
Homage to Onyame,
Malthouse Press Ltd.
Louw, J. D. (2001), “Ubuntu
and the Challengers of Multiculturalism in
Quest: An African Journal of Philosophy, vol. Xv, no. 1 – 2, 15.
Makinde, M. Akin.
(1983),”Ifa as a Repository of Knowledge”, in Odu: (A Journal of West African
Studies), No.23; also Presented at the XVIIth World Congress of Philosophy,
, August 21-27,
--------- (1985), “A
Philosophical Analysis of the Yoruba Concepts of Ori and Human Destiny”,
International Studies in Philosophy, XVII/1: 53-69.
--------- (1988), “African
Cultures and Moral Systems: A Philosophical Study”, Second Order (New Series):
An African Journal of Philosophy, vol.1, no.2: 1- 27.
Mbeki, Thabo, (2001), “I Am
African”, Quest: An African Journal of Philosophy, vol.xv, no. 1- 2: 9.
Murungi, John (2004), “The
Question of an African Jurisprudence: Some Hermeneutic Reflections”, in Wiredu,
Kwasi (ed.) (2004), op. cit; 519 – 526.
Nussbaum, B. (2001),
“African Culture and Ubuntu”, Perspectives, vol. 17, Issue 1, 4.
Fidelis (2006), “From Praxis to Theory: a Discourse on the Philosophy of
African Law”, in The Cambrian Law Review, (special issue on ‘The Possibility of
African Legal Theory’), Volune 37: 37
Oladipo, Olusegun (1988),
“Metaphysics, Religion and Yoruba Traditional Thought: An Essay on the Status
of the Belief in Non-Human Agencies and Powers in an African Belief System”,
Journal of the Indian Council of Philosophical Research, 7(2): 72 – 83.
Oluwole, Sophie B., (1984),
“The Rational Basis of Yoruba Ethical Thinking”, The Nigerian Journal of
Philosophy, 4(1 & 2): 14 – 25.
Opoku, Kofi A. (1974),
“Aspects of Akan Worship”, C. Eric Lincoln (ed.), The Black Experience in
--------- (1978), West
FEP International Private Ltd.
Owoade, M.A. (1988),
“Capital Punishment: Philosophical Issues and Contemporary Problems in
Second Order (New Series): An African Journal of Philosophy, Vol. No. 1:41-61.
Owomoyela, Oyekan (1981),
“The Pragmatic Humanism of Yoruba Culture”, Journal of African Studies, 8(3):
26 – 32.
Panse, Sonal, “Ubuntu –
African Philosophy”, http:/www. Buzzle.com/authors.asp//authors762
Pinconffs, E. L. (1966),
Classical Retributivism: The Rationale of Legal Punishment, Atlantic Highland:
Schedler, G. (1976),
“Capital Punishment and Its Deterrent Effect”, in Social Theory and Practice,
Vol. No.1: 47-66.
Taiwo, O. (2003), “Ifá: An
Account of a Divination System and Some Concluding Epistemological Questions”,
in K. Wiredu, (ed.), A Companion to African Philosophy,
Teffo, L. J. (1988),
“Ubuntu: A Challenge to the Corporate World in
”, in Oladipo Olusegun (ed.), Remaking Africa:
Challenges of the Twenty-First Century,
Hope Publications :239-251.
Ten, C. L. (1987), Crime,
Guilt and Punishment,
The Nation, 14 May 2007,
Vol. 1, No. 0286: 1 & 5, http://www.thenationonlineng.com
Walker, N. (1980),
Punishment, Danger and Stigma: The Morality of Criminal Justice,
: Basil Blackwell.
--------- (1991), Why
Punish? Theories of Punishment Reassessed,
Wiredu, Kwasi (1982),
“Morality and Religion in Akan Thought”, in H. Odera Oruka and D. A. Masolo
(eds.), Philosophy and Cultures,
--------- (1992), “Moral
Foundations of an African Culture”, in Kwasi Wiredu and Kwame Gyekye (eds.),
Person and Community: Ghanaian Philosophical Studies, 1,
The Council for Research in Values and Philosophy.
--------- (1996a), Cultural
Universals and Particulars: An African Perspective,
--------- (1996b), “On
Decolonizing African Religions”, in J. G. Malherbe (ed.), Decolonizing the
(2003), “Comments on the debate on the death penalty”, in The Guardian, Sunday,