This is a story about the nature of law, what is like to feel like an outsider in court. It is about laws of liability which are rational, reasonable, and legtimate by local standards. However, as I think that the following example shows, such assumptions about liability and law are always embedded in the unspoken culture that is the epistemology which gives cultural life meaning.
The encounter discussed below took place in Tanzania in 1986 when I was working for the Lutheran World Federation’s refugee development programs. As part of the program, I was sent to buy oxen for an ox training program we had started in Kigoma Region. On this particular trip, I went with a large covered truck, and was accompanied by three Tanzanians, including an ox trainer truck driver, and an assistant driver. Three of us (myself, the truck driver, and the assistant driver), were outsiders, and did not speak the local Kisukuma language, only the national language of Tanzania, Kiswahili. But our ox trainer was a “local” from the region where the oxen were to be purchased, and spoke Kisukuma. The market was in the town of Sengerema where the monthly cattle market was held in an empty field by the Sukuma people of the region who were well-known for having high quality oxen. At this cattle market, anyone who had legal title to a cow could bring the cow with its papers, and negotiate to sell it to any buyer. You would examine the cattle you wanted, and then haggle with the owner over the price. It was capitalism at its best!
But this article is not about open air markets, capitalism, or even about how to distinguish between an ox and a bull, although I learned about each.. Rather it is about legal epistemology, or more specifically the traditional laws about rights, responsibility, liability, and responsibility found in an open field in Tanzania. This encounter created confusion within me vis a vis the moral obligations I had to another man. Indeed, I still have doubts about whether I ever fulfilled the moral rights I had under Sukuman traditional law. More importantly though, this story illustrates how people who are in unfamiliar legal situations shrink from confrontation. I know I did.
On the particular trip during which my legal dispute arose, I purchased 12 oxen. By the second day of the trip, we had purchased enough oxen that we needed to rent a tree under which we could graze them while completing our purchases. After paying a nominal sum to the owner of the tree to do this, we returned to purchase the rest of the oxen. At midmorning, however, I was approached by the truck driver, and told that there was something of a crisis back at the tree. Our oxen had excited a beehive in the tree above them, and the bees had in turn created some havoc among the tree owner’s flock of ducks. The driver agreed with my initial assessment that the claim itself was probably based on the farmer’s interest in squeezing money out of a rich foreigner. The driver also agreed that the bees probably had swarmed spontaneously, without reference to our oxen, and that the victimization of the ducks was not really our fault. Nevertheless, he also pointed out that if it was in fact our oxen that had excited be bees, we would in fact be liable for any damage incurred by the owner of the ducks. On a more practical level, the driver pointed out that under Sukuma traditional law, we would not be able to reclaim our oxen from underneath the tree until the claim was settled: It was not something that could be simply walked away from This led to an immediate parley near the tree, because all present agreed that I was potentially liable for the ducks.
The parley quickly turned into a paralegal affair conducted near our still-content oxen (they hadn’t been stung!). The “trial” was conducted in the Kisukuma language by a judge who I was told was a local elder of some authority. We were represented, I was told by an advocate who immediately turned to the ox trainer in our group, as he was thoe only one who spoke Kisukuma. It was his responsibility to translate the proceedings into Kiswahilii, the national language of Tanzania, for the benefit of the truck driver and myself.
The first order of business went surprisingly quickly, and the elder determined that yes, I was liable for any damages that my oxen might have casued by exciting the bees, who in turn stung the ducks. In effect, my oxen were guilty, and therefore as their owner, I was liable. I don’t know what legal doctrine this involves, but it was apparent to everyone else present that this conclusion was indeed reasonable. I am not sure how the “guilt” of my oxen were determined, but it was impressed on me that I had lost the case in very quick order. All that remained was to assess the amount of damages, which it was agreed should follow the local market’s price. I offered to pay the market price for a dead duck. And indeed this would have been easy if one of the ducks had died, and the (damaged) meat sold in the market, but this turned out to be problematic, given that all of the ducks had survived. But, it was pointed out that the duck meat may well have been damaged by the bee stings; so a value needed to be set on the ducks’ pain and suffering. This led to further discussions, and an impasse. How to value the pain and suffering of ducks?
An impasse reached, our Kisukuma-speaking defender decided to try another legal tactic. He pointed out that the farmer had failed to obtain a government permit for a beehive in the first place. There is a formal requirement for a license for many things in Tanzania, but in fact such laws are rarely enforced. But all agreed that this fact was irrelevant, since indeed, there was such a law, and therefore the bees were in fact illegal under traditional and national law. Therefore our cattle were not liable for exciting what were in fact illegal bees. Even though this technicality was going to get me off, I pointed out that the law was generally unenforced. But then, I was the only one present who had never heard of this licensing requirements, and because it helped my case, I agreed to take the licensing requirement very seriously.
Anyway, this whole process took place over a aperiod of about 6 hours, and at the end it was finally concluded that I was not responsible for the ducks’ pain and suffering. I was permitted to load my oxen on the truck, and we drove back to Kigoma without paying.
Moral of the story: Avoid courts, any courts at all costs. And if you can’t avoid court, be sure to have a clever lawyer, well-versed in the language, laws, and nuance of the local place, and listen very carefully. And finally, be very very patient.
Adapted from Tony Waters (1999), Crime and Immigrant Youth, pp. 209-210. Thousand Oaks: Sage Publications.