Conscious Lawyer: The Emergence of Earth Jurisprudence in Africa
In this new article published by The Conscious Lawyer Magazine, Gaia’s Carlotta Byrne explores the emergence of Earth Jurisprudence in Africa, Gaia’s role in it, and the deep connections between Indigenous governance systems, Sacred Natural Sites and traditional seeds.
Originally published in Issue 5 of the Conscious Lawyer. September 2020.
Across Africa, a network of Earth Jurisprudence Practitioners is accompanying traditional and indigenous communities in the revival and enhancement of their Earth-centred customary governance systems. In Kenya, Uganda, Benin, South Africa, Zimbabwe, Ethiopia and Cameroon, communities are reviving traditional knowledge and practices, restoring sacred natural sites and associated rituals, re-establishing indigenous seed diversity and food sovereignty, and strengthening ecological governance systems derived from the laws of the Earth. These civil-society-led initiatives to re-establish Earth-centred governance on the continent are founded on Africa’s rich indigenous legal traditions and cultural heritage and inspired by Earth Jurisprudence – a legal philosophy and ethical framework conceived of by eco-theologian Thomas Berry in the late twentieth century.
Thomas Berry understood that as humans of the twenty-first century, our task – the Great Work – is to transition from human-centred to Earth-centred consciousness and to enliven our senses once more to the numinous dimensions of the Universe, our ultimate context. Inspired by Nature, Thomas Berry recognised the Earth as the “primary text” from which the laws and customs of indigenous peoples are derived. This recognition is the foundation of his conception of Earth Jurisprudence. Embedded in traditional governance systems, still alive today in communities in Africa and across the globe, is a deep understanding of the ecosystems which nurture human and more-than-human communities – sophisticated knowledge that has maintained the resilience of the land and its peoples over generations.
Indigenous traditions actively align human laws with the laws of Nature. Contrast this with our dominant state legal systems which are decoupled from ecological realities, facilitating the systemic violation of the Earth’s capacity to self-regulate and to sustain biodiverse life. Customary governance systems seek to uphold rather than undermine the principles that underpin the dynamic equilibrium of the Earth, including interdependence and reciprocity, self-regulation and regeneration, complexity and diversity, emergence and evolution. By aligning with these life-sustaining principles, indigenous laws safeguard the integrity of Mother Earth as a whole for the benefit of the present and future generations of all species. The understanding is that if we disturb the Earth’s complex living systems, we will inevitably suffer consequences, as we are witnessing today across our planet.
This recognition that the Earth system is lawful and ordered remains an integral part of indigenous understanding and governance in Africa. Moreover, whereas the dominant, human-centred legal paradigm objectifies the natural world as “property”, “resource” or “commodity”, identifying humans as sole subjects of law, the cosmologies of traditional peoples de-centre and re-situate the human as part of a “communion of subjects” within Nature. Humans are understood to be one constituent member among many others in a vibrant web of interdependent relationships that collectively compose Gaia, our living Earth.
Over the past two decades, an Earth Jurisprudence network has been growing in Africa, dedicated to seeking strategies for reclaiming indigenous ways of being in partnership with, rather than in dominion over, Mother Earth. Customary governance systems were severely undermined during the colonial era in Africa. And yet these traditions – passed down orally from generation to generation over millennia, in the form of myth and lore and song – have been safeguarded to this day by the elders within a diversity of land-based communities on the continent. Reverence for and intimacy with the natural world is embedded in these cultures as a living reality, alive in rituals, knowledge, practices, stories, traditions and laws. These marginalised communities hold the seeds of a future in which we re-learn how to live in harmonious co-existence with Mother Earth, as indigenous peoples have done for millennia.
Although domestic laws in each African state are generally in the thrall of the modern industrial growth and development paradigm, Africa’s law is multi-layered and far more diverse than state law alone; its origins go far deeper than the birth of the modern, industrial nation state and are rooted in the customary governance systems of its indigenous and traditional communities. Sacred natural sites and territories (“SNST”), and their custodian communities, are the legacy of Africa’s pre-colonial heritage. They include diverse natural features, places where spirits and ancestors are present – focal points of the community’s connection with the spiritual world, where rituals are practised to express respect and gratitude. Custodian communities read the law in the land and carry out rituals in SNST when justice or balance needs to be restored. The recognition of the inherent rights of SNST not to be degraded or “developed” has profound significance for the health of the local ecosystems, peoples and cultures that depend upon them.
The emergence of the Earth Jurisprudence network in Africa was catalysed when a number of civil society leaders from the continent visited the Colombian Amazon to learn about the community-led processes to revitalise indigenous culture taking place in the region. These exchanges, facilitated by The Gaia Foundation, galvanised these African community leaders to apply what they had learnt in a series of initiatives in Africa to inspire and accompany communities in reviving their indigenous knowledge and practices to reconnect humans and Nature and restore their ancestral roots.
The Gaia Foundation later developed a three-year course to enable African civil society leaders to explore Earth Jurisprudence in more depth. Blending wilderness experience and practices to learn the laws of the Earth, the course delves into African and western philosophical and legal traditions, analysis of the impacts of the industrial growth economy, and practices for reviving indigenous knowledge systems. The graduates, Earth Jurisprudence Practitioners, are now collaborating with traditional communities to play a pivotal role in practice-based advocacy for the recognition of customary, Earth-centred laws and governance from local to pan-African levels.
The growing body of Earth Jurisprudence in Africa includes the resolution of the African Commission on Human and Peoples’ Rights on the recognition and protection of SNST and the rights of custodian communities (ACHPR/Res. 372 (LX) 2017). Building on a series of policy resolutions and recommendations achieved at IUCN World Conservation Congresses and other international fora, ACHPR/Res.372 heralds a new chapter in Africa’s acknowledgement of the critical role that SNST and their associated governance systems play in the protection of African ecosystems and in the realisation of human, peoples’ and Nature’s rights. Earth-centred law is also finding expression within national legislation in Africa. In 2012, civil society and communities successfully advocated for the enactment of a national law in Benin recognising sacred forests as protected areas. In 2019, Uganda became the first African country to recognise the rights of Nature within national legislation; a paradigm-shifting precedent that was the result of three years sustained advocacy by Advocates for Natural Resources and Development (ANARDE), supported by The Gaia Foundation, NAPE, AFRICE and the Open Society Initiative for East Africa.
These regional and national developments find resonance at local level. For instance, in western Uganda, Buliisa District Council has passed a resolution recognising the customary laws of the Bagungu People. Among other aspects of community life, these customary laws pertain to sacred natural sites and the role of their Bagungu custodians and expressly recognise the rights of Nature and of future generations. The District Council and the Bagungu Custodian Clans are now developing an ordinance which will demonstrate how pluri-legal systems comprising state and customary law can be implemented at district level.
“The Ugandan authorities are recognising the Bagungu’s work and opening the door to a different kind of future for our country – by decolonising our minds and drawing on our rich ancestry to remember that development and well-being can and must be attained in harmony with Nature. Uganda is now poised to become a leader in Africa and globally as it takes this opportunity” comments Dennis Tabaro, an Earth Jurisprudence Practitioner who has been accompanying the Bagungu on their journey of cultural revival since 2013. “These communities are showing the way for many others in our nation who have suffered colonialism and now find themselves facing the realities of climate change and destructive projects. They have revived their ecological knowledge together and are healing their ecosystems for present and future generations.”
In 2015, a historic gathering of custodians of sacred natural sites from across Africa took place in Ethiopia’s Rift Valley. Bagungu custodian Kagole Margaret was one of the participants and upon her return, galvanised by the gathering, she worked with Dennis, among others, to initiate intergenerational community dialogues among the Bagungu around indigenous and sacred seed, sacred natural sites, customary laws and the revival of traditional culture within her community.
In November 2018, Bagungu Clans came together to develop eco-cultural maps and calendars and to document their customary laws and clan constitutions, inspired by the indigenous peoples of the Colombian Amazon. Cultural pride and community self-governance are re-emerging amongst the Bagungu as a result of these efforts. Food sovereignty and nutrition have been boosted by the revival of the rich diversity of traditional, locally-adapted, climate-resilient seed varieties. Sacred natural sites, which are critical havens for biodiversity and traditional spiritual practices, are being restored, revitalised and protected. Custodians of Life – Reviving Culture and Nature in Uganda’s Great Lakes is a new 15-minute film from The Gaia Foundation, ANARDE, NAPE and AFRICE. The film explores further how the Bagungu Indigenous People are restoring the diversity and health of their traditional culture and climate-critical ecosystems in their sacred homeland. Other examples of community revival stories can be found on The Gaia Foundation’s website.
The emergence of Earth Jurisprudence in Africa is at once innovative and ancient, radical and rooted: a revival and enhancement of time-honoured, Earth-centred human traditions offering a fresh orientation with which the continent might navigate its way into a flourishing, life-sustaining future. The legal developments cited above and others are further detailed in a chapter on Earth Law in Africa co-written by Roger Chennells, a South African lawyer and facilitator of the three-year Earth Jurisprudence Trainings referenced above, and The Gaia Foundation. The chapter is published this month in Earth Law: Emerging Ecocentric Law – A Guide for Practitioners – the first legal coursebook comprehensively addressing ecocentric law and jurisprudence, forming part of the Aspen Coursebook Series.
To further explore the cultural and ecological revival catalysed by the African Earth Jurisprudence network, read recent stories from Kenya – Tharakans Map Their Past, Present and Future – and Zimbabwe – Cyclone Idai, Climate Emergency and Earth Jurisprudence.
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