Lori Benintendi
May 2004
The Sebei of Uganda
INTRODUCTIONThe Sebei of Uganda provide insight into a
leaderless culture based on an oral tradition of customary law. Their lives are
fairly simple and are centered around cattle-keeping, simple crop growing, and
beer. In general, their simplistic modes of production have limited the need
for sophisticated legal processes, and their paranoia and fear of sorcery have
promoted an adherence to traditional customs.
This paper is a brief
review of the extensive literature of the Sebei. Specific cases have been
excluded. It starts with a review of the setting of Sebei life and some general
assumptions about Sebei culture. The Sebei law of contracts and offense are
then highlighted, with a final review of the role of
sorcery.
SETTINGDemographicsThe
Sebei are a tribal people living on the northern and north-western slopes of
Mount Elgon, and on the plains below, in eastern
Uganda
[1]. Uganda itself is
landlocked and is slightly smaller than Oregon.
[2] The Sebei are thought to have migrated
to Mount Elgon from the east and north about 250 years ago and to have occupied
the entire mountain until the late nineteenth century when the Bantu peoples
pushed them into their present
area.
[3] Also, the formation of the
Kenya-Uganda border curtailed their occupation of the eastern side of the
mountain.
[4]Population
statistics are a bit confusing. One source, from 1971 cites 35,000
Sebei
[5], but another source in 1994
cites 120,000
[6]. This latter number
is quoted to be to 0.6% of the Uganda population, which corresponds to a 2003
population quote of 25,632,794
[7].
Regardless, the Sebei are a small percentage of the Ugandan
population.
The Sebei are classified as
NiloHamitics
[8] and speak a language
of the Nandi cluster which is now generally called
Kalenjin.
[9] These classifications
are useful if exploring other tribes to which the Sebei might be closely
affiliated in culture.
The Sebei live in somewhat of a pie-slice shaped
area encompassing both mountain heights and dry plains in the present Kapchorwa
district.
[10]“Sebei
territory is readily divided into three zones:
(a) a highland area above
the forest line, extending from about the 9,000-foot contour to as far up the
summit as habitation is feasible;
(b) the escarpment, on which most of
the 35,000 Sebei dwell, which lies between the 5,000- and 7,000-foot contours;
and
(c) the strip of dry plains, lying at 4,000 feet above sea
level.”
[11]Some Sebei
communities are primarily pastoralists (cattle-keeping) and others are farmers
(hoe-farming), depending on their
location.
[12] While these two
economic pursuits have been shown to influence Sebei culture and attitudes, the
details of these differences, as well as the cultural adaptation of the Sebei
over the years, are not within the scope of this
paper.
[13] For example, the
continuous physical proximity of farmers creates a need for regular nonviolent
settlement of dispute resolution, and “the Sebei did develop a limited
form of community law with the advent of settled
agriculture.”
[14] However,
the distinction between pastoralists and framers is not so great as to warrant a
detailed analysis for this paper. This situation seems to be no different than
any culture that lives in disparate climates with corresponding economic
opportunities and modes of production.
[15]Daily
LifeThe Sebei are polygnous with women marrying soon after
initiation, in their mid-teens. Men traditionally married later, closer to
their thirties. Each wife has her own house which includes her kitchen. She
also has her own plot of land to cultivate and usually collaborates with her
co-wives. The women do most of the cultivation, cooking, beer-making, house
maintenance, and milking of cows. The men look after the cattle, sheep and
goats, clear bush, and occasionally hunt
game.
[16] Livestock are kept in
thorn kraals.
[17] Scattered
households form Sebei neighborhoods.
[18] Drinking beer made of maize,
plantains, or honey is an important, daily, activity for the
Sebei.
[19] Long tubes with filters
at the bottom are used to drink beer out of a large communal
pot.
[20] “As the thick beer
is consumed, it is replenished by the addition of warm
water.”
[21] The Sebei
accomplish their larger projects, such as cultivation and building, in work
parties in exchange for beer.
“Daily life centers upon the production
and consumption of beer, an activity only slightly less vital to the Sebei than
the care of their fields and stock-- and a good deal more enjoyable than
either.”
[22] When
asked “What makes a man a good friend?”, 83% of the Sebei men and
women responded “providing beer.” Other choices including being
generous (3%), being polite (9%), being trustworthy (2%), and didn’t know
(2%).
[23] “Enjoying beer is
the major social activity of the ordinary Sebei citizen, and older persons
regularly and younger ones usually feel that a day without beer is a wasted one.
Beer is undoubtedly also a major source of
nourishment.”
[24]Although
“none of the work is particularly onerous; certainly it is far less so for
the men than for the
women,”
[25] cattle keeping is
a hazardous activity.
[26] There is
the threat of predatory animals. More significantly, cattle is the primary
measure of wealth for the Sebei and many surrounding tribes, and the easiest way
to increase the size of a herd is to raid the neighboring tribe’s stock.
Thus, Sebei men are on the constant defensive from raiders and are sometimes
raiders
themselves.
[27]Societally,
the Sebei recognize agnatic kin units (clan or
aret) and spatial units
(tribe or
pororyet) and age-sets
(
pinta).
[28] The clan is a
patrilineal descent group which is further divided into lineages, or
korik (singular,
kota). Clans are not named and are occasionally
linked together in groups of two to four.
[29] Each clan has ancestral spirits
(
oyik) who monitor the clan’s welfare and its members’
behavior. “These spirits can harm only members of their own clan, except
that the spirits of the mother’s clan may also affect the welfare of a
person.”
[30]
There are about fifteen acephalous tribes, or
pororyets. These
tribes are not formally organized into a larger entity; however, they share a
prophet and a ceremony called
ntarastit.
[31] A tribe is divided
into smaller entities, called
songmwek (singular,
sangta), similar
to a village.
[32]Both men
and women belong to age-sets, and though it is a more formal relationship for
men, the age-sets have evolved to have little to do with Sebei
law.
[33] The original purpose of
the age-set is thought as defining the roles of the men according to age and
abilities, forming functional units such as warriors and elders; however, the
role of age-sets for the Sebei is limited to evoking “a measure of
protocol in interpersonal
relationships”
[34] between
coinitiates. An age-set is a named group that spans about
twenty-years.
[35]The age-set
is defined as those boys and girls who are initiated during a particular period
of time. Both boys and girls are indoctrinated with Sebei values and initiated
through circumcision. Although circumcision is a cultural tradition rather than
a legal institution, it is only through initiation that a child becomes an adult
in status.
[36] Male circumcision
is formally organized and conducted every two years (previously every five to
seven years)
[37] whereas the female
circumcision is performed
annually
[38] and is scheduled more
casually with the primary requirement of the enough maize to make sufficient
beer for the
occasion.
[39]Marriage
rules prohibit marriage between a man and the daughters of an age-set
mate[40] and marriage between clan
members.[41] Marriage can be by
capture, elopement, or
prearrangement.[42] Brideprice is
negotiated and paid and is discussed later as a Sebei contract. The Sebei
consider physical beauty an important criterion for
spouses.[43]Polygyny
has a primary economic advantage of ensuring a man an adequate labor pool. From
this comes personal power and prestige. The major disadvantage is difficult
relations among co-wives and their children, including jealousy and hatred.
[44]Interestingly, the
Sebei, particularly the farmers, are a hostile, mistrusting, fearful
people.
[45] Furthermore, the Sebei
are cautious and devious, believing every person, especially women, is capable
of harmful sorcery. The pastoralists are more open with their
anger
[46] and are less suspicious
than the farmers.
“Two illustrations may provide some sense of
this aspect of Sebei character. The first comes from what I saw every afternoon
as I sat, partially obscured, on a large rock that overlooked what took place on
a small plateau below me. Scarcely a day passed that I did not see a Sebei man
or woman hide behind a bush or tree to watch the activities of some other Sebei.
And, sometimes, I saw still another Sebei watching the watcher. This was very
Sebei, people furtive and alert, watching other people, and in turn being
watched by still others. This watching was not casual: it was prompted by
fear.
In characterizing the Sebei of Sasur (a farming village), I
remember a man's typical reaction to my question about whether people were ever
so worried that they did not sleep well. He said this: "Who can sleep well? Who
does not have worries? Who does not know that someone wants to kill them? No
one! Not even a
child!”
[47]Overt
hostility is evident “in the constant gossip, criticism, and corrosive
humor of both men and women” and abrasive, annoying, threats. However,
open conflict is avoided, and indirect retaliation, especially witchcraft and
arson, is
favored.
[48]Apparently even
romance is a victim of Sebei attitudes:
“Seduction was accomplished
through trickery and, if necessary, by threat. A man did not ensnare his heart's
delight through romantic niceties, nor by acts of derring-do, not even by his
family's wealth or his own physical prowess. He did it by filching the beads she
wore around her waist. Since a girl could not return home bereft of these beads
without calling her chastity into doubt, she would stay with her boyfriend and
try to recapture her beads. Yet, the man had an advantage for he would threaten
to tell everyone the worst unless she submitted to his advances. Men said that
they were proud of their ability to trick and coerce women in this way. Women
recalled such experiences with anger, speaking of men as “dogs” who
would stop at nothing where sex was concerned.”
[49]In general, the Sebei have
“(1) fear of death, (2) diffuse anxiety, (3) fear of the malignant power
of women, (4) profound jealousy and hostility, (5) desire for population
increase, and (6) respect for
seniority.”
[50] The Sebei
obsession with death is a fearful dread. They are not necessarily concerned
with the means of dying, “it is death itself that terrifies them.”
Furthermore, the Sebei are afraid of everything, even their friends and family.
Fear and jealousy hinders them to be cooperative with each other. Jealousy is
expressed in terms of stealing others’
possessions.
[51] Sebei women are to
be feared due to “their supernatural power as witches, and their secular
power as shrews.” Women encourage this
belief.
[52] “Sebei
social relations are instrumental rather than
sentimental.”
[53] These
attitudes are developed through the childrearing
practices.
[54] Sebei parents seem
to exhibit “an endemic sense of detachment, of emotional
disengagement.”
[55] The lack
of emotional ties is also evident in Sebei rituals in that they lack
glorification of being Sebei or of the clan or any other social
entity.
Respect for authority is a positive concept, as is desire for
population increase. Younger brothers will not tell an older brother that he is
wrong. Fathers and old men are accorded great respect because of their
experience and advice. Any initiated man may chastise any uncircumcised child.
The uninitiated believe that any adult whom they have angered can use magical
means to make them cry at their circumcision. Interestingly, the desire in
increasing the population is not just for more children as wealth, but to
increase the Sebei population, perhaps in response to their “history of
being outnumbered, and encroached upon, by their
enemies.”
[56]LEGAL
STRUCTUREThe Sebei have no formal legal
structure
[57], no lawyers, and no
real judges.
[58] Although they have
no special term for the law, customary law defines their contractual rights and
obligations and sanctions for offenses, distinct from morality and
etiquette.
[59] Their customary law
is unwritten yet has been documented through interviews and observations of day
to day actions
[60] by
anthropologists over the course of some 30 years, particularly by Walter
Goldschmidt. Some of the informants were alive before colonization and their
recollections, and continued daily practices, comprise a rich understanding of
Sebei law. This paper introduces an overview of aboriginal Sebei customary law
which was their only law before the colonization of Uganda in 1894. Currently,
some of the Sebei law practices are still recognized as part of Uganda’s
dual legal system.
[61] Several
assumptions are pervasive in Sebei law: the importance of the clan membership;
the property rights of individuals; the use of sorcery, the importance of
cattle, and absence of authority.
Assumption: Importance of Clan
MembershipThe individual is not motivated by sentiment to
support the clan, but by his desire to maintain his own
security.
[62] “The
prime motivation is toward maximization of the clan, which means it is desirable
to have many sons and many cattle (which through bride-price ultimately
translate into sons), for it is through the clan that an individual’s
welfare is
maximized.”
[63]The
Sebei have a strong sense of agnatic
identification
[64] and “no
individual can either join the clan of another or dissociate himself from his
clan obligations.” The lineage relationships are more intense than the
clan ties, but these obligations are complementary, not necessarily
superior.
[65] An example of
property use as a clan member, is that although cattle are privately owned, the
cattle owner has a “responsibility to use his cattle in support of his
clan.”
[66]Clans play
an important role for offenses that threaten physical safety. Most importantly,
sorcery and witchcraft, although initiated by an individual against another
individual, are acts between clans. A curse, oath, or other act of sorcery may
affect any member of the intended victim’s clan, or because it is
reflexive, against any of the initiator’s clansmen. Acts of potentially
deadly violence are similarly clan affairs. “Each clansman is thus
equally vulnerable in retaliation, and each is induced to seek revenge. The
basic concept is that of clan weakening and the evening of the score, rather
than punishment for a criminal
act.”
[67]The
consistent goal is maximizing clan strength by eliminating threats of both
physical and supernatural retaliation. Thus, a murder within the clan may go
unpunished so as to not further weaken the clan. For example, to eliminate the
threat of retaliation by another clan against a recidivist thief, and thus
against any clansman, the thief may be killed by his own clansmen. Although
this sounds odd, the Sebei recognize that retaliation against a clansman that is
not the thief would weaken the clan without removing the source of trouble, a
scenario to be
avoided.
[68]Assumption:
Individual Property RightsThe Sebei man “has an
inalienable and essentially unimpaired right to the humanized things he has
created, or which have come to him in accordance with customary procedures of
transfer”
[69] of which
domestic animals and cultivated land are the most
important.
[70] Among the Sebei, the
private rights to property include not only the right to consume or to use, but
also to sell, exchange, give away, or
destroy.
[71] The only two
limitations to the individual’s rights are first, another person, e.g., a
son or wife, may have a secondary right to livestock or land which is
inalienable, and second, any clan interests must be
maintained.
[72]Assumption:
Use of SorcerySupernatural forces do not enforce punishments, it
is the Sebei person who uses a supernatural force to seek retribution. “
... there is no judgmental God – Man remains the actor, the
initiator.”
[73]Distinctive
features of Sebei sorcery are:
- all Sebei, even children, are capable of invoking sorcery; it is not illegal
or immoral for legitimate, justified,
purposes[74]
- because all Sebei can use this resource, sorcery serves to balance power and
authority[75]
- that sorcery acts can be reflexive, especially if misused, meaning that the
power of the curse may reflect back to the initiator and/or his/her
clan [76]
- there is no statute of limitations; “a debt never rots” and it
is not uncommon for supernatural justice to be delayed for two generations or
more.[77]
There
are additional supernatural forces that affect the Sebei without any human
intent such as the
evil eye that appear to offer explanations to the
Sebei but are not used as punishment or considered an
offense.
[78]Assumption:
Importance of CattleA Sebei man has independent control of his
property and has a close psychological identification with this property, mainly
his cattle
[79] (other property
having only secondary social
value).
[80] Significant Sebei
social relationships are characterized in terms of
cattle.
[81] The relation between
husband and wife, father and son, mother and son, brothers, and half brothers,
“are all defined in terms of rights in cattle.” The
individual’s responsibility to the clan is also expressed in terms of
cattle, whether it be payment for retribution because of fellow clansman’s
guilt or for a ceremony.
[82]Conversely, most pecuniary
relationships, e.g., cattle sharing contracts, are expressed in social
terms.
[83] A contract
“becomes a tie of kinship.”
[84] These kindred ties define the
obligations as if they were between family
members.
[85]Assumption:
Absence of AuthorityThe Sebei deny all authority roles.
“No person in Sebeiland is empowered to command the action of another. No
person is a chief. no person has the established right to render a judgment
that is binding on a pair of disputants and will be
enforced.”
[86] However,
customs such as local dispute councils and the prophet may be viewed as legal
institutions.
[87] Furthermore, in
addition to the accepted codes of behavior, the Sebei recognize that there are
circumstances, although not enforceable, when “a person really ought to do
things his is not obligated to
do.”
[88] Each social
unit (clan, lineage, tribe, or village) hold informal hearings or councils,
called
kokwet in which the discussion is lead by the kirwokik or clan
head.
[89]“The
kirwokik were not empowered to render decisions and had no means of
enforcing their opinions. Instead, they were individuals who had the capacity
for articulating community sentiment and thus brining public pressure to bear
upon disputants to accept a settlement of their affairs. It is most significant
that they were individuals who emerged, that they were acclaimed for their
manifest behavior rather than appointed to a position. Military leaders,
incidentally, similar achieved their position from demonstration of their
natural endowments, and were accepted rather than empowered.
Nor is there
any evidence that clan and kota (lineage) heads had any power over individual
members; rather they were simply foci for action in matters requiring clan
unity. Their position derived from their genealogical relation to the presumed
founder, built upon considerations of relative age. They were expected to serve
an organizing and leadership function, but they could not enforce
compliance.”
[90]Even
the two exceptions of men over women and initiates over noninitiates are
diluted, rather than absolute authority. Women have their own power and rights
and sons have their own
rights.
[91]A prophet is the
only overarching role in Sebei society. This man has supernatural abilities to
foretell events, however, if the predictions are wrong, or undesirable, he is
killed. His advice is sought and usually followed, but it is not commanded.
The prophet does command when a Sebei-wide ceremony is to be performed.
Although a prophet is very influential and provides wise leadership, “they
are not men of
authority.
[92]CONTRACTSThere
are three primary contractual events for the Sebei: 1) marriage, 2) work
parties, and 3) cattle and land leases and sales. The compensation used for
these contracts were traditionally cattle and beer, although cash is now used as
well.
MarriageAlthough a Sebei man may have as many
wives as he wishes, most have only one, and very few have more than
three.
[93] Once married, a man
builds a separate house for each wife. The wife has rights to a portion of land
and livestock belonging to him and he has rights to her labor and food
production. Both have rights to access each other for sexual relations. There
are no obligations between co-wives or their children; there is a separate
marriage contract for each
wife.
[94]There are
restrictions, in addition to those mentioned earlier (marriage within a clan and
marriage to the daughter of an age-set mate), to whom a man can marry. In
essence, these restrictions prohibit a man marrying into his matrimonial lineage
or a current wife’s clan a second
time.
[95]The marriage
contract is between the bride’s father and either the groom or his father.
A ritualized bargaining session called “breaking the sticks” is used
to determine the payment amount (primarily livestock) for bride-price. Once
this payment is made, the marriage is legally
established.
[96]The
“breaking the sticks” starts with the bride’s family making a
demand by placing tally sticks on the ground. The groom’s family (the
groom is usually absent), push back the sticks with a response, and so it goes
until an agreement is reached. The negotiations are in a specific order: first
the number of cattle, then the goats and sheep, then money, and lastly personal
goods, including beer.
[97]
Interestingly, the distribution of the bride-price among the bride’s
family is customarily established. The bride’s father receives all
animals except one bull, one goat, ten percent of the money, some hens go to the
bride’s maternal uncle, and one goat goes to the bride’s mother.
The first daughter’s bride-price allocation goes to her mother’s
oldest brother, and each younger brother receives his payment as subsequent
daughters marry. The animals acquired can be used to pay the bride-price of the
bride’s brothers. Sons can legally demand their father to provide cattle
and other assets to pay his first
bride-price.
[98] During the
1960’s, Goldschmidt estimated that the average value of bride-price to be
about $200.
[99]Bride-price
is a widespread practice, especially in patrilineal societies. The groom is
paying for the woman’s labor and reproductive capacity.
[100] “In Uganda, the Sebei pay
more for young widows than for old widows, stating explicitly that an older
widow has fewer reproductive years
left.”
[101] If a wife dies
giving birth to her first child, either the bride-price is returned to the
husband or another woman is given to him. However, the wife’s father does
keep a cow and a sheep as a form of consolation and to satisfy oyik (the spirits
of the
dead).
[102]Bride-price
payments allow for a redistribution of wealth among the Sebei, essentially
switching investments between wives and cattle, and building and depleting herds
accordingly. The relative scarcity of marriageable women or cattle is included
in Sebei negotiations, evoking “a tacit law of supply and
demand.”
[103] The
bride-price negotiation session establishes social obligations and sentiment
between the two families in addition to addressing the economic considerations.
“They expect mutual entertainment; one consideration in the acceptance of
a suitor is whether he will be willing and able to provide beer.” The
bride’s parents, not the groom’s, may also assert some previous harm
done by the groom’s family and demand compensation.
[104]The marriage contract is
binding when the couple “exchange bracelets” after having lived
together for awhile. During the time between the bride-price negotiation
session and the “exchange of bracelets” ceremony, either party can
withdraw from the marriage agreement for an appropriate cause. These causes
include discovery of improper kinship or unresolved harms or quarrels between
the couples’ clans.
[105]If a couple separates
after the “exchange of bracelets” ceremony, they are regarded as
divorced. A man may divorce his wife for laziness, repeated adultery, refusal
to have intercourse, refusal to cook, engaging in witchcraft against him,
abusing or cursing him because he is annoyed, using a weapon against him, being
a murderer or thief, “if her vagina is black,” having
“children three times and each time she kills them,” if she is
unable to have intercourse, or is from an inappropriate
clan.
[106] A wife’s father
must agree if she seeks a
divorce.
[107] A woman may divorce
her husband if he “mistreats her by beating her too much when she has done
nothing wrong,” does not provide enough land, is impotent, sterile, or
refuses to have intercourse with her (sexual neglect), practices sodomy with
her, is insane, or “curses her or spreads evil rumors about
her.”
[108] “It is
only upon the repetition of complaints that a divorce is seen as the appropriate
solution.”
[109] In the
event of divorce, the children live with the father although the mother retains
her rights in her children, and her
obligations.
[110]When a
man dies, and his widow is old, she goes to live with her grown sons. If she is
still of childbearing age, she is inherited by one of her husband’s
brothers according to the following order. Although she technically has no
voice in the decision, she may be able to successfully assert her preference
through persuasion and
reason.
[111]1. next younger
full brother
2. next older full brother
3. older full brothers in
reverse order of their seniority
4. younger (adult) full brothers in order
of seniority
5. half brothers
6. kota brothers
7. clan
brothers
A funeral kokwet is held a few days after a man dies. All
family members are present as well as people from the deceased’s village
and others who wish to pay their respects to the dead man or to raise a claim
against his estate.
[112] Because
a man’s oldest son becomes the family’s figure of respect, he
inherits his fathers spear, shield, and stool as symbols of rank. Personal
possessions are “anointed ritually with beer and sheep fat to free them of
the father’s
spirit.”
[113] Per the
previous discussion of cattle and land allocations to wives and their sons,
cattle and land are actually allocated to sons during a father’s
lifetime.
Work PartiesIf a Sebei woman needs
assistance to prepare her fields, or a man needs to build a house, she or he
schedules a
moyket, or work party. “The essence of the arrangement
is an afternoon's beer drink in exchange for a morning's work.” Although
this contractual agreement is not legally enforceable, any breach is met with
recriminations and social pressure. Furthermore, “nor is the fact that
pay is in beer something to be taken
lightly.”
[114]The
beer preparation takes several days. There are no invitations or discussion of
the moyket, those wishing to participate know when to show up, understand their
“explicit obligations to perform a clearly defined task for which he gets
a more or less specific quantum of beer. ... it is a carefully planned quid pro
quo of work for satisfaction.”
[115] There is plenty of gossip about
the quality or quantity of beer provided. And no participant can afford to meet
his/her obligation knowing that he/she will be planning a future moyket and will
be treated
likewise.
[116]If a person
needs the service of a work party but cannot provide beer, he promises to
provide beer and a slaughtered sheep or goat for the workers in the future.
This is called
kwoloyit. A middleman of sorts is engaged to arrange for
the workers and to oversee the later performance of the contract by the
employer.
[117] “The
contractual work arrangement may be seen as an institutional mode of
circumventing the need for communal activity, and it fits the individuated basis
of Sebei
life.”
[118]As
evident throughout this discussion, women participate in moykets as well as men,
and the fruit of her labor, beer, is hers. Furthermore, she has the rights to
sell the food (presumably surplus) she cultivates and to sell beer she
makes.
[119]Cattle
and Land Leases and Sales“Contracts are important in Sebei
society, and have been so from time immemorial. They play an important role in
the economy of both cattle-keeping and farming, and a good deal of litigation
results from breaches in contractual
arrangements.”
[120]There
is extensive freedom of contract for property transaction, although a wife or
son may have an allocated secondary
right.
[121] General practices of
Sebei contracts
include
[122]:
- contracts are between individuals
- contracts are between adult men
- a contract does not specify performance time requirements, but failure to
perform can be heard by a kokwet
- “A debt never rots”; therefore, there is no time limit on
contractual obligations which can be inherited
- revocation is possible as long as restitution of the original
consideration
- witnesses to the contract are not required although their testimony is
helpful in case of a dispute
Contract performance is not
normally a matter of litigation, especially given the open-ended time allowance.
Performance is not an issue for the clan or the tribe, but for the
individuals.
“Sebei law is weak in techniques for forcing
performance under contract, while redress and punishment for fraudulent action
are entirely wanting. The primary court for action in modern Sebei is the
funeral hearing, where under the sanction of bereavement and before a community
of elders, the parties to a contract can reassert their demands and express
their grievances. It is my observation that this is a forceful sanction (though
one that can be long delayed) for performance under contract. It applies both to
matters involving land and those involving
cattle.”
[123]Reputational
concerns are the primary means of enforcing contracts. Contract performance is
ensured by the mutual interdependence of the parties and the operation of common
market.
[124] “It must be
remembered that normally a Sebei of substance will want continuing contractual
arrangements with many of his fellowmen over the years, and like any modern
businessman, will behave in such a way as to preserve his credit
rating.”
[125]
CattleCattle contracts are the most developed aspect of
Sebei law.
[126] Generally, a man
allocates his cattle to his wives for their sons, but keeps back some for
himself (
tokapsoy).
[127]
A man’s herd is not all kept in one kraal; nor do all of the animals in
kraal, and therefore herd, belong outright to one man. There are three
categories of livestock: 1) the cattle he owns, including tokapsoy and those
allocated to his wives; 2) cattle belonging to another man under a
namanyantet contract which is an exchange arrangement; and 3) those that
are essentially boarded or loaned to a hired
herdsman.
[128]The standard
contract for property is the
namanya exchange.
“1. a man who
wants to slaughter a bullock asks another for it, offering in exchange a heifer
(a young cow), which is to be born from one of his cows
2. the person who
furnishes the bullock takes the heifer, keeps it until she has produced a
heifer,
3. when that heifer is ready to bear young, returns the original
animal to its owner
In short, a man pays a future cow for a present
bullock.”
[129]Of
course there is no time requirement for fulfillment of the agreement. Therefore
breaches can be concealed as delays which makes enforcement
difficult.
[130] On the other
hand, delays can easily be tolerated because there is a basis for calculating
interest in the natural increase in livestock over
time.
[131]A quasi-kin
relationship is established and the men become
tilyet (plural,
tilyonutek) to one another, which is loosely “kin of the
cow.” “They are expected to be hospitable with respect to beer or
food; and they are strictly forbidden to sleep with one another's
wives.”
[132] Often these
social obligations also make it difficult for tilyet to bring action in the
event of a
dispute.
[133]Sebei cattle
owners may have many namanya exchanges in effect and there are no limitations as
to who can enter the contract. The agreement is usually for a specific bullock.
If it is allocated to a wife, she must agree to the namanya
contract.
[134]Co-ownership
of a single animal is another contractual arrangement, called
sankanet.
Two or more persons purchase or acquire the animal and share in its progeny, in
turn.
[135]A contract with
a hired herdsman is called
kamanakan. A cattle owner usually hires a
herdsman to spread his herd or because he does not have adequate pasture. The
hired herdsman is responsible for the animals’ welfare in return for the
use of their milk.
[136] Also, the
owner has a moral obligation to reward the herdsman with an animal or more if
the owner’s herd prospered under his care. However, this is a moral
obligation of the owner, not a legal right for the herdsman. The herdsman is to
treat the animal as he would his own, including making namanya contracts if the
owner
consents.
[137]Land“As
farming supplants cattle-keeping, however, and land fills up, the need to
delineate ownership (both physically on the ground and legally as a set of
rights) develops, and the provision for transfers of such rights become
requisite.”
[138]The
Sebei analogized the cattle contracts to land contracts, although land does not
enjoy the same degree of social and ceremonial importance. Only men own land
and allocate it to their wives and her sons, including keeping back some for
himself if he wishes. Allocation of land to a wife for her sons to inherit is a
recognized
obligation.
[139]Early
acquisition of land was done in one of three ways: 1) use force to push out the
current residents; 2) adoption of man into a pororyet (tribe), and 3)
negotiation with the current landowner, of which there are three methods. The
adoption process seems to require a sponsor and often involves a marriage of
either a daughter into or out of the
tribe.
[140] The tribe formally
accepts the adopted man and “there was the custom of slaughtering an
animal and giving a feast to establish membership in one’s adopted
homeland.”
[141]Acquiring
land through negotiation with the landowner could be accomplished by borrowing
the land, making a namanya-like exchange, or an outright purchase. If land is
borrowed, it is a favor given by a friend and nothing is paid. In the
namanya-like exchange, examples of the consideration given in exchange for the
land is proper maintenance of the land or beer and food during a moyet on the
land.
[142]Sebei use both
futures and option contracts as well. An example of a futures contract is an
old Sebei custom to purchase crops growing in the
field.
[143] An example of an
options contract is “an old practice in marriage arrangements; a man might
want to marry a young girl after she matured and would make a payment “to
hold her
down.”
[144]OFFENSESThere
are essentially two levels of punishable offense in Sebei society. The most
serious are murder and fatal physical injuries, either by physical force or
sorcery, which are adjudicated between clans. The second are property delicts
which are between individuals, however, the community (tribe) plays an advisory
role. The ntarastit is the one exception to the advisory role. A brief review
of slander and sexual offenses concludes this discussion of Sebei
offenses.
The primary sanctions for offenses are vengeance, both physical
and supernatural, compensation, and property destruction under ntasrast
authority.
Murder and Serious Physical
InjuryViolent crimes resulting in death are addressed
essentially by clan law.
[145] A
murder or mortal wounding invokes retaliation by the victim’s clan against
the clan of the murderer. Assault and battery is considered inconsequential
unless there is a threat of escalation into
murder.
[146] The Sebei
define murder as causing death by either sorcery or violence
and:
“1. it is a purposeful, intentional act, and not an accident;
2. it is not adequately motivated by prior actions of the murdered man or
his clan;
3. the decedent belongs to a clan other than that of the person
doing the killing; and
4. the decedent is a Sebei rather than a member of an
enemy tribe.”
[147]It
appears that the killing of a member of an ally tribe is considered
murder.
[148] Also considered
murder is a death caused by injury due to assault, no matter how much earlier
(“a debt never
rots”).
[149]
Insanity, drunkenness, or minority status are not mitigating
circumstances for applying the sanctions to the
murderer.
[150] Two men acting
together are both held as murderers and the compensation and vengeance will be
shared by their clans.
[151]
The Sebei believe that “no man would ever hide the fact that he
had killed a person.”
[152]“In Sebei legal
theory a murderer cannot hide the act, for all persons who have killed a human
being, whether friend or foe, whether in revenge or in cold blood, must undergo
an appropriate cleansing ceremony. The disease from killing without taking the
proper medicines causes a man to itch all over until he scratches himself to
death.”
[153]In the
event of a murder, the murderer’s clan will respond in an effort to limit
the resulting feud.
“There are the following procedures with
respect to a redress of wrongs in the case of murder:
(1) The clansmen of
the injured party may take immediate revenge, which should be done in hot blood.
(2) The clansmen of the murderer may seek to pay compensation for the
killing.
(3) The clansmen of the murderer may themselves kill the murderer
in order to avoid further penalty.
(4) The pororyet (tribe) may take action
to punish the clan of the murderer.
(5) In the absence of the first three of
these (and presumably irrespective of the fourth), the clansmen of the murdered
man may seek any opportunity to avenge the death by killing individuals or
taking cattle.
(6) Finally, if none of the above succeed, the family of the
murdered man may make a ceremonial curse against the clansmen of the murderer,
which continues until it is
removed.”
[154] It
is revenge that obviously escalates murder into clan law. The victim’s
clan does not necessarily seek revenge, either by physical force or
sorcery,
[155] on the murderer
himself, therefore the murderer’s clansmen are at risk.
“It
need not be the murderer who is slain in revenge; indeed, when there is a clear
difference in status, a person equivalent to the murdered man is sought. ...
There may be a long period during which a feud exists, but eventually the feud
is expected to result in a compensatory killing. ... We cannot know exactly
how long a time elapsed, but presumably at least half a dozen years and probably
much
longer.”
[156]When
revenge results in a killing of the murderer’s clansman, the avenger
shouts from a high place, “The killing is finished.” This initiates
a peace settlement between the feuding clans. A ceremony follows in which a
bullock provided by the initial murderer’s clan is killed and eaten by
both clans and, “the femur is stripped of meat, and the bone is thrown
against a stone until it is broken, or it is braced against a tree and struck
with a stick until it breaks. Also, the tail and ears of a dog are cut, and a
bowstring is severed.”
[157]
Instead of revenge, a victim’s clan may accept compensation in the
form of cattle for the
murder.
[158] The clan of the
murderer is motivated to avoid revenge and initiates the negotiations for
compensation by sending a go-between to the victim’s clan. “Because
he is at risk of being killed while approaching the victim’s clan, the
chosen go-between is related to both clans through marriage into the clan of the
victim.”
[159] A
failure to settle a dispute puts each clansman of the murderer at risk of being
killed, so each clansman contributes cattle to the
settlement.
[160] It is not known
how the victim’s clan decides to distribute the
compensation.
[161] The amount
paid varies a “good deal” in different cases.
[162] Several factors were
considered when determining the amount of compensation to be
paid
[163]:
1. sex of the
victim
2. age and likelihood of more children
3. previous faults of the
victim’s clan
4. status of the economy
Likewise, several
factors are considered in determining how much each clan member
contributes:
[164]1.
relative wealth and social standing
2. closeness of relation to the
perpetrator
3. preexisting obligations
4. performance on prior
demands
5. personality of the individual
Killing a woman does not
seem to be a very serious
matter.
[165] Her natal clan, not
her husband, receives compensation that is less than for a man and determined by
her reproductive potential.
[166]
Similarly, if a woman is the murderer, vengeance or compensation is to be paid
by her natal clan and the vengeance is taken on a person of equal stature of the
victim, not of the murdering woman. Her husband also has justification to
divorce her.
[167] Abortion is not
murder.
[168]Compensation
for a woman victim is less than for a man.
“There are three different
compensations made when a woman is killed: (1) when a woman has just married and
not yet produced children, ten cows and one sheep are paid because of her
possibility for bearing many children; (2) if a woman is of middle age and has
some children but is still able to produce more, payment of eight cows and one
sheep would be expected; (3) if she is an old woman, five cows and one sheep
would be
paid.”
[169]Furthermore,
because of the risk of physical or supernatural revenge, the clan may chose to
punish, even kill, a murderer, or other serious
troublemaker.
[170] “We
cannot lose two men from the clan. The deceased was a bad man and deserved to be
killed.”
[171]Compensation is complete
with a ceremonial payment of an additional sheep. If this ceremonial payment is
not made, relatives of the victim can take cows from the murderer’s clan.
Additionally, the victim’s clan “must offer a ram to be killed and
the meat is shared between the two clans.” The two clans then can then
“sit around the same beer pot, for the matter is
forgotten.”
[172]
[173]Unless there is a
threat of escalation into murder, injuries from fights or aggression are not
serious offenses. Minor injury (no blood or bones broken) caused by another
person (using sticks or fists) is a non-legal issue, and vengeance against the
assailant’s clansmen is inappropriate. However, if weapons were used, or
if major injuries were inflicted, and there is fear that the victim will die,
the Sebei try to abort any clan feuding if the victim does die with a
“prepayment” of a goat as an acknowledgement of
liability.
There are Sebei homicides that are not murder. “In such
instances neither vengeance nor compensation is proper, but a ceremonial payment
may be demanded and a cleansing ceremony held. These are either justified
killings (called
kachiker meaning “having been
repaid”)
[174] or essentially
non-legal issues. Examples of these are:
- member of an enemy
society[175]
- father killing son[176]
- killing a close
relative[177]
- incitement to
suicide[178]
- the Sebei are inconsistent as to whether insult qualifies as a justification
for murder[179]
- perhaps if “a person found secretly in one's cattle kraal,” and
therefore presumed to be attempting sorcery or cattle
theft[180]
- a pre-emptive killing of murderer to prevent vengeance to clan resulting in
death of another clansman
If the murder victim was determined
to have misbehaved, a ceremonial payment is made and “the matter is just
forgotten.”
[181]
“Both accidental homicide and justifiable killing require the ceremonial
payment (
chiker) of a cow, bull, and sheep. The payment is not viewed as
compensation or restitution, but as a ceremonial cleansing. ...The acceptance of
such payment is tantamount to acceptance by the clan of the nature of the death
and would prevent it from taking either direct or magical revenge; hence, it is
an important element in legal procedure. A man may kill a person of another
tribe with impunity, though it was felt that to do so when the person was on a
friendly visit would be an improper act and one that might, of course, escalate
into a large and dangerous
conflict.”
[182]
Because the clan is the legal entity responsible for suffering vengeance
or paying compensation, in the case intra-clan killing, such as between family
members, it is logical to not impose the sanctions upon
itself.
[183] There may be a
different outcome if the killing is between different lineages within the
clan.
[184]TheftUnless
a theft threatens to escalate into a feud, property delicts are normally private
matters between individuals
[185]
and punishment is against the individual, not the
clan.
[186] The community (village
or tribe) commonly advises the parties through a
kokowet, or community
meeting. However, property delicts may also result in
sorcery.
[187]Sebei
recognize several forms of
theft:
[188]1. taking of
something by stealth, usually food, personal goods, sheep or goats (but not
cattle)
2. taking by force, and may be applied to cattle-raiding internal to
the Sebei community
3. raiding of enemy kraals
Within a clan, forced
taking of land or encroachment are frequent property delicts.
[189] Intraclan matters are
essentially family matters and are decided at a local kokwet or even more
informally at a beer-drink.
[190]
A kokwet can be “family council, a clan council, or a village council; it
is used when an issue is brought for discussion and determination before a group
of men around a beer
pot.”
[191] These local
meetings determine only what is the correct ownership right and restitution;
they do not mete out any
punishment.
[192] A victim
of theft initiates a kokwet to hear the matter. He will ask the
kirwokik
(singular
kirwokintet) of different villages to meet at a certain time.
Although there is a recognized meeting place in each tribe and village, the
kokowet can be held in any suitable place. Although not forced to attend, all
interested men are expected to attend, and risk being despised if they fail to
do so. Uncircumcised boys, as part of their training, may attend though they
may not be heard. Women may attend any kokwet and are also not heard unless it
is a matter involving women.
[193]
The men of each village sit together, the kirwokintet of that
village in front of them. There should be several kirwokik present, but there is
no one who presides over the
group.
[194] A kirwokintet holds a
position of respect, not authority.
“No explicit requirement other
than personal ability was mentioned (to be a kirwokintet). Wealth may lend
weight to a man's words, but does not in itself make him kirwokintet. The Sebei
say: “One does not buy a councilorship with a cow; one buys it with the
ear.” One becomes kirwokintet by listening to the wisdom of one's elders.
A man might be poor and have but one wife and be a kirwokintet, though a
bachelor would not become one. There is no inheritance of the position, but
there is a tendency toward continuity from father to son. The kirwokik are not
members of a single age-set as they are among some of the culturally related
tribes; any person of middle years may become a kirwokintet, and he remains such
until death.
A person becomes known as a kirwokintet informally; there
are no fixed numbers of persons so recognized, and they have neither special
powers nor special insignia of office. They are merely elders who have, through
their public performance, shown themselves to be particularly astute and
perceptive, to have rendered judgments or made pleas meeting with general
approval. .... But we must not take the word "appointed" too literally; there is
nobody who has the power to appoint, and what is meant is that the kirwokik will
be recognized as such by the people. ...nevertheless there is no doubt that
certain men had a Sebei-wide reputation as important kirwokik and were often
called upon to serve whenever a difficult dispute
arose.”
[195] On a
broader scale, the one exception to the lack of authority for the Sebei is the
ntarastit which is, “in effect, an invocation of supernatural
authority for the maintenance of peace in the
community.”
[196] It is used
for interclan conflict
[197] and is
never applied to intraclan
matters.
[198] The prophet
Matui is credited with developing ntarastit, an innovative law enforcement
ritual.
[199] (He at least
reinstituted it
[200]). It is
believed that this is a relatively recent custom although it began before
European arrival.
[201] “The
last ntarastit was probably held shortly after the beginning of the twentieth
century, before the Baganda conquest of the
area.”
[202] The
purpose of this ceremony is to enable a village to “clean house” of
any delict. It is only after the ntarastit, the village, through kokwet, can
actually enforce the law.
[203]
The community usually has only powers of persuasion.
“The ritual
brings any delict into the jurisdiction of the pororyet (tribe), which can then
punish the responsible party. The punishment takes the form of destruction of
his property – killing of his livestock, slashing his plantains,
destroying his crops, seizing his stored grain, and even burning down his
house.”
[204]The
prophet initiates the ceremony, which is a public oath, which is then performed
sequentially by each tribe, starting in the east. The prophet initiates the
ceremony when he decides that the people have become fairly lawless in their
behavior, thus it was not performed at regular time
intervals.
[205] It seems to have
been performed every three to five
years.
[206]It is
significant that the ability to punish wrongdoers has a supernatural basis and
that the sanction is done by
oath.
[207] The ritual involves
all initiated men standing naked at an altar of ceremonial branches and reciting
an oath swearing an allegiance to the “law” on the pain of
supernatural death (either outright or as a curse against the clan). During the
ritual, “They thrust their spears at the altar in unison each time as they
name a different kind of
offense.”
[208]After
the ritual, and before punishment is meted out, there is an informal hearing to
decide the proper punishment. From then on, the Sebei men embark on
retaliation/punishment that “appears to have been more a wild mob
scene.” It is possible that the punished will resist the destruction and
the enforcement can turn
violent.
[209]“Ntarastit
punishment is meted out both for murder and for theft. The punishment is the
same except that retaliation against a murder involves the destruction of
property of the whole clan – or significantly that segment that resides in
the pororyet – while in cases of theft the action is directed only at the
household of the
thief.”
[210]When it
comes to enforcing laws, the Sebei are in a double bind – on one hand,
they recognize no authority and if the village, alone, were to try to impose an
authority “there will be
war,”
[211] and on the other,
increasing lawlessness has its own disadvantages. The ntarastit addresses this
conflict by allowing a periodic authority and reaffirmation to address the
delicts in the village, and thus promoting village peace. It is said that
“amity among all Sebei developed under the influence of the prophet
Matui.”
[212]“The
ntarastit, then, creates a kind of loose citizenship. This citizenship has two
levels of applicability. It is quite explicitly pororyet-oriented, which is to
say it reinforces the very social unity that is the military protective unit:
it holds together the very people who have to stay together for protection
against the constant marauding of neighbors. Secondarily, by coordination of
the several pororyet ceremonies under the guidance of a single prophet, it also
reinforces a sense of commonality and harmony among the Sebei as a
whole.”
[213]Sexual
OffensesIncest is a matter of morality rather than law. It is
fairly broadly defined to include, beyond the closer relations, paternal cousins
and several adulterous relationships such as “the wife of one's neighbor;
with the daughter of any member of one's age-set; with any other member of the
clan of one's wife or any member of the clan of one's mother; or with the wives
of one's brothers.” Both parties carry the burden of guilt, although the
burden is heavier for the man. The informal sanctions include ridicule
(“These can, of course, become severe sanctions, and such a person may
find it uncomfortable to enjoy beer in the community.”) and difficulty in
marrying. If a man rudely responds to the ridicule, he is beaten on the
head.
[214] Incest with a
sister-in-law can be construed as wishing her husband (the man’s brother)
or her sister (the man’s wife) to die because the sister-in-law would be
inherited by the man. Thus the man is suspected of engaging in sorcery which
invokes clan involvement. In one case, the man paid a sheep and beer to his
parents-in-law.
[215]“One of the
strongest tabus of Sebeiland is against intercourse with the daughter of a
member of one's age-set. The man would be beaten by his age-set mates' wives and
might be cursed so that he cannot have children. He must brew beer and slaughter
a cow for his age-set, presumably as a ceremonial
release.”
[216]Otherwise,
extramarital intercourse is not considered an
offense.
[217] Rape is an offense
although it is considered impossible for a single man to rape a woman. Also, it
is an offense to have intercourse when a woman is asleep, or to engage in
sodomy, or for a man to rape an uncircumcised
girl.
[218] “But only when
the actions threaten seriously to disrupt the community, as in the case of
habitual behavior, does the community feel compelled to
act.”
[219]Slander“The
Sebei are much given to bickering; they have a rich repertoire of curses of a
purely verbal kind, and they are gossips. Like physical assaults, however,
verbal encounters do not enter into the realm of legal action until they
threaten to arouse conflicts that might lead to murder or
witchcraft.”
[220]
Remember that the Sebei are a hostile people. Slander is usually not a
matter for legal action, although because “verbal offenses themselves
border on witchcraft in Sebei eyes,” there is constant concern that they
may escalate to more serious crimes. In particular, a slander involving
accusation of witchcraft, in at least one case, made murder
justifiable.”
[221]SORCERYThe
Sebei use sorcery both as a weapon to cause unjustified harm, to determine
guilt, and as a sanction and retaliation for both physical and supernatural
harm.
[222] They recognize the
existence of supernatural forces that work upon man, by man, that are
“neither automatic retribution of the wrongdoer nor postmortem rewards and
punishments.”
[223] Only
highlights of Sebei sorcery are presented here. Furthermore, Goldschmidt notes,
“it was exceedingly difficult to obtain data on witchcraft practices,
either past or current, and I offer these data with the recognition that they
are far from
perfect.”
[224]An
interesting feature of Sebei sorcery is its reflexive action back to the
bewitcher and/or his or her
clan.
[225] Sebei sorcery has
several other distinctive
features:
[226]
- sorcery operates against a clan (more frequently) or an individual
- it can operate against known, suspected, or unknown miscreants
- is a response to offenses ranging from murder to a minor infraction of
propriety
- it can be used against strangers or against the members of one's family
- “may be invoked over body parts in case of a murder or over a gourd of
urine in cases of false accusation”
- threat of a curse is frequently heard, as is oathing to assert innocence of
an accusation
Sorcery to Cause Unjustified
HarmIt is a legal delict, to use sorcery make a victim ill or
die, and sorcery is used to identify the bewitcher. The victim or his friends
ask a diviner to determine the cause of illness or death, and if he suggests
witchcraft, additional diviners will be asked to confirm the diagnosis. The
diviner identifies the bewitcher and the sick man’s relatives “catch
that man and punish him by bringing bowstrings and tying one finger or thumb and
sticking thorns of the tunkururwet or chuynet trees into the finger or arm and
break the thorns off, and tell him that he is known as the one who did the magic
and that he must undo the magic of the sick
man.”
[227] There
seems to be three roles in the execution of witchcraft: (1) the man who wishes
to use sorcery against another; (2) the bewitcher who sells his services or
knowledge; (3) the person who collects the necessary materials, e.g., hair,
fingernail clippings, or other body parts, and natural effluvia. One or more
persons can fulfill all three roles. Although it is not illegal to be in
possession of the witchcraft medicine and materials (and it is often hard to
prove the purpose of those materials), legal liability may only extend if the
collector knows of the victim. The other two roles are always held legally
responsible.
[228] A
countermagic against sorcery causes the bewitcher to do something he would not
ordinarily do such as “push him out of a tree or into the path of a snake
or lion, or it can induce him to have intercourse with his own sister, or, as in
one case recorded, bewitch his own
relative.”
[229]
Sorcery to Determine GuiltLegal oaths and curses
are used to confirm guilt and/or assert innocence. Sebei oaths and curses
“do not work unless the person is in fact guilty of the suspected
act.” Nevertheless, they are terrifying, because the oath or curse can
bring harm to the initiator through its reflexive feature after it has completed
its retaliatory purpose or if the accused suspect is in fact
innocent.
[230] An oath is
thought as invoking the spirits to punish the forswearer if he is
lying.
[231] An oath is powerful
as it “calls forth forces of retribution, but these forces will turn upon
the person giving false testimony or making false
accusations.”
[232]One
method for assessing guilt in cases of suspected witchcraft is the ordeal. Only
the Kapchay clan knows of how to make and administer the
medicine:
[233]1. The ordeal
takes place in an open area in the western part of Sebei territory, where the
Kapchay clan is located.
2. The accused and a representative of the
accusing (witchcraft victim’s) clan drink a concoction made of crushed
seeds while sitting in the hot sun.
3. After the medicine has taken
effect, “become like a drunkard”, the accused is asked simple
questions, such as “How many fingers am I holding up?” or
“What am I holding in my hand?”
4. If he cannot answer these
correctly, the medicine has “caught” him and he is guilty.
“The clansmen of the victim may then club him to death on the spot with
impunity.”
If he is not affected, then he is innocent and free of
punishment.
[234] He is also free
of further punishment if he survives after being beaten and thought to be
dead.
[235] If a suspect of
witchcraft escapes the ordeal many times, and the victim’s relatives are
not convinced, they may invoke the countermagic discussed above to punish him.
“Thus the ultimate sanction against magic is magic
itself.”
[236] It is not
known what happens if the accusing clanmember is “caught” by the
medicine.
[237]
Sorcery as RetaliationIf a legal matter cannot
be resolved through compensation or physical retaliation, the Sebei use sorcery
as the final resort for the imposition of sanctions and retribution, even for
failure to perform on
contract.
[238] However, using
sorcery in retaliation is dangerous because if not used appropriately, the
forces may turn upon the initiator. Also, the effect of the sorcery must be
stopped once it has achieved its purpose or the forces “ultimately have
reflexive action against the person perpetrating
it.”
[239]“The
bewitchment that was done is called sekutet; the removal of this curse is called
pitet, and the compensation is called kwayet. If a person does sekutet, it will
harm the people of the group against which it is done, but when they all die
out, then it will come back on the group that does the bewitching. Therefore it
is important to make the pitet ceremony before all persons of the cursed group
die out. [Case 84] It should be noted that the informant was a very old man
(second Maina age-set); as the murder had been committed before the clan was
driven out of the area, well before the advent of the first European, the
resolution of this conflict was delayed about fifty years. Although the
incidence of the use of these forms of sorcery and curse does not appear to be
very high, the sociological force and the psychological threat seem ... to be of
first-order
importance.”
[240]
Because murder is a clan issue, sorcerous retaliation operates against the
murderer’s clan. However, once the accused clan admits responsibility and
requests release from the sorcery, or if the sorcery has achieved its purpose,
unless removed, the sorcery will harm the clan of the
sorcerer.
[241]There is one
exception to the reflexive feature of Sebei sorcery.
Kankanet is a form
of retaliatory sorcery known only to two
clans
[242] which works only upon
those who are guilty. Because of its power and exclusiveness, kankanet
practitioners enjoy a special
status.
[243]Lesser
WitchcraftSeveral lesser forms of witchcraft are used by the
Sebei. Two examples are the sorcery that will make the initiate cry or bleed
excessively during circumcision, and sorcery used by women against men. At the
time of their own initiation, all Sebei learn how to make initiates cry or
bleed.
[244] Women learn their
secrets at that time also. The sorcery of women against men makes the man
subject to the woman’s will. “The chief purpose of such magic is
either to prevent subsequent marriages or to keep a husband from loving his
other wives.”
[245] A man
may divorce his wife for this kind of
magic.
[246] Women can also use
witchcraft against others such as to cause another woman to be
barren.
[247]SUMMARYSebei
law has developed to meet the needs of a preindustrial society:
“In
those groups where family-based production is central, where few external
sources of labor power are used (or none at all), there are egalitarian forms of
social organization and no basis for strong legal authority. There is little in
the way of differential resource access to protect or regulate. As such, legal
affairs are in the hands of elders’ councils, where the disputing process
gains authority from the consensus of a broad
body.”
[248]It is a
customary law based on Sebei traditions:
“Obedience to custom was
generally spontaneous since it was thought that one was obliged to live as
one’s ancestors had; the fear of supernatural powers and of group opinion
were most often sufficient to assure a respect for the traditional ways of
life.”
[249]And
finally, Goldschmidt effectively summarizes the reality of Sebei
law:
“The absence of authoritative roles does not mean the absence of
compliance. Pressures of the marketplace, pressure of an informal kind, social
pressures, and the recognition of mutual obligation – not to mention the
pressures of potential sorcery – all serve to make persons willing to do
what they do not want to do. Leadership exists, and leaders can and do
galvanize community or clan sentiment so as to gain compliance to an imposed
program of action. But the action is never enforced by a neutral, superior
third party to a dispute; it is not coerced.”
[250]
BIBLIOGRAPHY
Books
1. David. M. Buss, The Evolution of Desire:
Strategies of Human Mating (New York: Basic Books, 1994)
2. Florence
Butegwa, “Challenges of Promoting Legal Literacy Among Women in
Uganda”, Legal Literacy, A Tool for Women’s Empowerment,
edited by Margaret Schuler and Sakuntala Kadirgamar-Rajasingham (UNIFEM
1992)
3. René David., John E.C. Brierley, Major Legal Systems
in the World Today, An Introduction to the Comparative Study of Law, (The
Free Press, Macmillan Publishing Co, 1978)
4. Robert B. Edgerton, The
Individual in Cultural Adaptation: A Study of Four East African Peoples
(Berkeley, CA: University of California Press, 1971)
5. Robert B.
Edgerton, “10 Traditional Beliefs and Practices--Are Some Better Than
Others?,” Culture Matters: How Values Shape Human Progress, eds.
Lawrence E. Harrison and Samuel P. Huntington, 1st ed. (New York: Basic Books,
2000)
6. Walter Goldschmidt, Culture and Behavior of the Sebei,
(Berkeley, CAUniversity of California Press, 1976)
7. Walter Goldschmidt,
Sebei Law (Berkeley, CA: University of California Press,
1967)
8. Walter Goldschmidt, The Sebei, A Sudy in Adaptation,
(Holt, Rinehart and Winston, 1986)
9. Walter Goldschmidt, “12
Nonverbal Communication and Culture,” Nonverbal Communication Where
Nature Meets Culture, eds. Ullica Segerstrîle and Peter Molnár
(Book by Peter Molnár, Ullica Segerstrîle; Lawrence Erlbaum)
(Mahwah, NJ: Lawrence Erlbaum Associates, 1997)
10. Alexandre M.
Maryanski, “5 The Social and Biological Foundations of Human
Communication,” Human by Nature: Between Biology and the Social
Sciences (Mahwah, NJ: Lawrence Erlbaum Associates,
1997)
11. Katherine S. Newman, Law and Economic Organization, A
Comparative Study of Preindustrial Societies, (Cambridge University Press,
1983)
12. Paul Spencer, The Pastoral Continuum: The Marginalization of
Tradition in East Africa (Oxford: Oxford University,
1998)
Articles
1. Bert N. Adams and Edward
Mburugu, “Kikuyu Bridewealth and Polygyny Today,” Journal of
Comparative Family Studies 25.2 (1994)
2. Robert B. Edgerton,
“10 Traditional Beliefs and Practices--Are Some Better Than
Others?,” Culture Matters: How Values Shape Human Progress, eds.
Lawrence E. Harrison and Samuel P. Huntington, 1st ed. (New York: Basic Books,
2000)
Websites
1. CIA, The World Factbook
website, Uganda, December 18, 2003.
2. Government of Uganda website,
The History of Uganda, April 18, 2004
3. my Uganda website,
Highland Nilotics.
[1] Walter Goldschmidt,
Sebei
Law, (Berkeley, CA: University of California Press, 1967),
7.
[2] CIA,
The World Factbook
website, Uganda, December 18,
2003.
[3]
Robert B. Edgerton, The Individual in Cultural Adaptation: A Study of Four East African Peoples, (Berkeley, CA: University of California Press, 1971), 86.
[4] Walter Goldschmidt,
Sebei
Law, (Berkeley, CA: University of California Press, 1967),
7.
[5] Robert B. Edgerton,
The
Individual in Cultural Adaptation: A Study of Four East African Peoples,
(Berkeley, CA: University of California Press, 1971), 86.
[6] Ethnologue: Languages of
the World, 14th Edition, 2004
SIL International.
[7]
CIA,
The World Factbook website, Uganda, December 18,
2003.
[8] Government of Uganda
website,
The History of Uganda,, April 18,
2004.
[9] Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press, 1967),
7.
[10] my Uganda website,
Highland Nilotics.[11]
Walter Goldschmidt,
Sebei Law ,(Berkeley, CA: University of California
Press, 1967), 9.
[12] Id.
7.
“The legal institutions of the Sebei ... are fundamentally attuned
to the social demands of a cattle-keeping economy. But the Sebei had acquired,
in the century or so prior to European contact, an increasing dependence on
hoe-farming, and particularly the intensive use of land associated with the
cultivation of plantains.” (Id.
245.)
[13] Id.
4.
[14] Robert B. Edgerton,
The Individual in Cultural Adaptation: A Study of Four East African
Peoples ,(Berkeley, CA: University of California Press, 1971), 19.
[15] Katherine S. Newman,
Law
and Economic Organization, A Comparative Study of Preindustrial Societies,
(Cambridge University Press, 1983),
4.
[16] Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press, 1967),
10
[17] Robert B. Edgerton,
The Individual in Cultural Adaptation: A Study of Four East African
Peoples, (Berkeley, CA: University of California Press, 1971), 86.
[18]
Id. 86.
[19] Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press, 1967), 10
-11.
[20] my Uganda website,
Highland Nilotics.[21]
Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California
Press, 1967), 212.
[22] Robert B.
Edgerton,
The Individual in Cultural Adaptation: A Study of Four East African
Peoples ,(Berkeley, CA: University of California Press, 1971), 86.
[23] Id. 141.
[24] Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press, 1967),
212.
[25] Id.
51.
[26] Walter Goldschmidt,
The Sebei, A Sudy in Adaptation, (Holt, Rinehart and Winston, 1986), p.
2.
[27] Id. 15 -
16
[28] Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press, 1967), 11 -
12.
[29] Id.
11.
[30] Id.
233.
[31] Id.
11.
[32] Id.
11.
[33] Id..
8.
[34] Id.
12.
[35] Id.
11-12.
[36] Id.
8.
[37] Id.
11-12.
[38] Id.
12.
[39] my Uganda website,
Highland Nilotics.[40]
Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California
Press, 1967), 8.
[41] Id.
11.
[42] Id.
42.
[43] Robert B. Edgerton,
The Individual in Cultural Adaptation: A Study of Four East African
Peoples ,(Berkeley, CA: University of California Press, 1971) 126.
[44] Bert N. Adams and Edward
Mburugu, “Kikuyu Bridewealth and Polygyny Today,”
Journal of
Comparative Family Studies, 25.2 (1994), 15 Apr. 2004.
[45] Robert B. Edgerton,
The
Individual in Cultural Adaptation: A Study of Four East African Peoples,
(Berkeley, CA: University of California Press, 1971), 106 - 107.
[46]
Id. 106.
[47] Id. 106.
[48]
Id. 105.
[49] Id. 105.
[50] Id. 119.
[51] Id. 119.
[52] Id. 120.
[53] Walter Goldschmidt,
“12 Nonverbal Communication and Culture,”
Nonverbal Communication
Where Nature Meets Culture, eds. Ullica Segerstrîle and Peter
Molnár (Book by Peter Molnár, Ullica Segerstrîle; Lawrence
Erlbaum) (Mahwah, NJ: Lawrence Erlbaum Associates, 1997), 236 -
237.
[54] Alexandre M. Maryanski,
“5 The Social and Biological Foundations of Human Communication,”
Human by Nature: Between Biology and the Social Sciences ,(Mahwah, NJ:
Lawrence Erlbaum Associates, 1997), 191.
[55] Walter Goldschmidt,
“12 Nonverbal Communication and Culture,”
Nonverbal Communication
Where Nature Meets Culture, eds. Ullica Segerstrîle and Peter
Molnár (Book by Peter Molnár, Ullica Segerstrîle; Lawrence
Erlbaum) (Mahwah, NJ: Lawrence Erlbaum Associates, 1997), 236 - 237.
[56] Robert B. Edgerton,
The
Individual in Cultural Adaptation: A Study of Four East African Peoples
,(Berkeley, CA: University of California Press, 1971), 121.
[57] Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press, 1967),
225.
[58] Id.
5.
[59] Id.
2.
[60] Id.
225.
[61] A dual legal system now
operates in Uganda. Parliamentary laws and customary laws are recognized in
civil matters. “Customary law is subject to the limit “that it must
not be repugnant to natural justice and morality” as is interpreted by the
judge. Although, statutory law takes precedence over contradictory customary
law, matters are complicated because law enforcement officers and the other
legal authorities are steeped in custom and will favor the customary law over
the statute.”
Florence Butegwa, “Challenges of Promoting Legal
Literacy Among Women in Uganda”,
Legal Literacy, A Tool for
Women’s Empowerment, edited by Margaret Schuler and Sakuntala
Kadirgamar-Rajasingham (UNIFEM 1992), 142 -
143.
[62] Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press, 1967),
233
[63] Id. 243 -
244.
[64] Id.
232.
[65] Id.
232.
[66] Id.
235.
[67] Id.
233.
[68] Id. 233 -
234.
[69] Id.
236.
[70] Id.
234.
[71] Id.
235.
[72] Id. 233 -
234.
[73] Id.
232.
[74] Id.
231.
[75] Id.
243.
[76] Id.
230.
[77] Id.
231.
[78] Id. 231 -
232.
[79] Id. 238 -
239.
[80] Id. 236 -
237.
[81] Id.
238.
[82] Id. 240 -
241.
[83] Id. 236 -
237.
[84] Id.
241.
[85] Id.
241.
[86] Id.
241.
[87] Id.
4.
[88] Id.
6.
[89] Id.
13.
[90] Id.
242.
[91] Id. 242
-243.
[92] Id. 241
-242.
[93] Id.
41.
[94] Id. 40-
41.
[95] Id. 41 -
42.
[96] Id.
42.
[97] Id.
44.
[98] Id.
45.
[99], 15 Apr. 2004.
[100] Id.
[101] David. M. Buss,
The
Evolution of Desire: Strategies of Human Mating, (New York: Basic Books,
1994), 185.
[102] Walter
Goldschmidt,
Sebei Law (Berkeley, CA: University of California Press,
1967), 95.
[103] Paul Spencer,
The Pastoral Continuum: The Marginalization of Tradition in East Africa,
(Oxford: Oxford University, 1998), 12.
[104]Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press, 1967), 46 -
47.
[105] Id.
48.
[106] Id. 54 -
56.
[107] Id. 48 -
50.
[108] Id. 56 -
57.
[109] Id.
57.
[110] Id.
59.
[111] Id. 69 -
70.
[112] Id.
62.
[113] Id.
74.
[114] Id. 211 -
212.
[115] Id. 211 -
212.
[116] Id.
213.
[117] Id.
213.
[118] Id.
253.
[119] Id.
236.
[120] Id.
187.
[121] Id.
236.
[122] Id. 188 -
189.
[123] Id.
220.
[124] Id.
221.
[125] Id.
203.
[126] Id.
6.
[127] Id.
51.
[128] Id.
189.
[129] Id.
192.
[130] Id.
199.
[131] Id.
231.
[132] Id.
193.
[133] Id.
199.
[134] Id.
193.
[135] Id.
207.
[136] Id.
207.
[137] Id.
208.
[138] Id.
248.
[139] Id.
249.
[140] Id. 214 -
215.
[141] Id.
251.
[142] Id.
215.
[143] Id.
217.
[144] Id.
252.
[145] Id.
4.
[146] Id. 130.
[147] Id. 88.
[148] Id. 91.
[149]
Id. 88.
[150] Id. 88.
[151]
Id. 95.
[152] Id. 97.
[153] Id. 97.
[154] Id. 98.
[155] Id. 84.
[156] Id. 99.
[157] Id. 100.
[158] Id. 84.
[159] Id. 100 - 101.
[160] Id. 84.
[161] Id. 106.
[162] Id. 103.
[163] Id. 102.
[164] Id. 106.
[165] Id. 93.
[166] Id .93.
[167] Id. 93.
[168] Id. 95.
[169] Id. 102 - 103.
[170] Id. 93.
[171] Id. 91.
[172] Id. 104.
[173] Id. 129 - 131.
[174] Id. 89.
[175] Id. 91.
[176] Id. 92.
[177] Id. 90.
[178] Id. 96.
[179] Id. 97.
[180] Id. 90.
[181] Id. 89.
[182] Id. 90.
[183] Id. 90.
[184] Id. 93.
[185] Id. 235 -
236.
[186]
Id. 162.
[187] Id. 162.
[188]
Id. 162 - 263.
[189]
Id. 169.
[190]
Id. 168.
[191] Id. 163
[192]
Id. 170.
[193]
Id. 164.
[194] Id. 164.
[195] Id. 167.
[196] Id. 257.
[197] Robert B. Edgerton,
“10 Traditional Beliefs and Practices--Are Some Better Than
Others?,”
Culture Matters: How Values Shape Human Progress, eds.
Lawrence E. Harrison and Samuel P. Huntington, 1st ed. (New York: Basic Books,
2000), 136.
[198]
Walter Goldschmidt,
Sebei Law, (Berkeley, CA: University of
California Press, 1967), 170.
[199] Robert B. Edgerton,
“10 Traditional Beliefs and Practices--Are Some Better Than
Others?,”
Culture Matters: How Values Shape Human Progress, eds.
Lawrence E. Harrison and Samuel P. Huntington, 1st ed. (New York: Basic Books,
2000), 136.
[200] Walter
Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press,
1967), 258.
[201] Id. 85.
[202] Id. 85.
[203] Id. 106.
[204] Id.
257.
[205] Id.
256.
[206] Id. 85.
[207] Id. 87.
[208]
Id. 85 - 86.
[209] Id. 257 -
258.
[210] Id.
258.
[211] Id.
256.
[212] Id.
259.
[213] Id.
259.
[214] Id.
134.
[215] Id.
134.
[216] Id.
134.
[217]
Id..135.
[218]
Id..136.
[219]
Id..138.
[220]
Id. 131.
[221]
Id. 132.
[222] Id. 82.
[223] Id.
230
[224] Id. 113.
[225] Id.
230.
[226] Id. 84.
[227] Id. 117.
[228] Id. 116.
[229] Id. 114.
[230] Id. 115.
[231] Id. 115.
[232] Id.
230.
[233] Id. 119.
[234] Id. 118.
[235] Id. 119.
[236] Id. 119.
[237] Id. 116.
[238] Id.
229.
[239] Id.
230.
[240] Id. 111.
[241] Id. 109.
[242] Id.
114.
[243] Id.
231.
[244] Id. 119.
[245] Id. 114.
[246] Id. 121.
[247] Id. 121.
[248] Katherine S. Newman,
Law and Economic Organization, A Comparative Study of Preindustrial
Societies, (Cambridge University Press, 1983),
160.
[249] René David.,
John E.C. Brierley,
Major Legal Systems in the World Today, An Introduction
to the Comparative Study of Law, (The Free Press, Macmillan Publishing Co,
1978), 505.
[250] Walter
Goldschmidt,
Sebei Law, (Berkeley, CA: University of California Press,
1967), 243.