CUSTOMARY PROCEDURE OF KATANGA

Introduction

The title of my report could give the impression that the work is about any given custom from Katanga, when in fact it is regarding the Bayeke custom. Therefore, I do not think I made a mistake by entitling it as such since Msiri abolished the country’s indigenous customs after he conquered it (Msiri’s legal codes). He imposed his laws, which were learned and adhered to by all his subjects. This is how the influence of the Bayeke became so widespread in all areas, and particularly in the method.

To understand how this influence was weighty, one only has to look at how even today, more than sixty years after our empire was crushed, we hear phrases, such as: “Atwe tuli ba mulilo wa Bayeke”, which literally means “We follow the customs of the Bayeke, as a Belgian would say “I follow the French or the Flemish culture”.

It also occurs that when two chiefs have a disagreement they would say, “Kenshi undimbe yoo, I Bayeke bankomeshye, kutu yenali kulambula, poso yenka Mwenda bushye”. It means: “You can not fool me, for I was taught by the Bayeke, and there is no one, beside Mwenda, to whom I paid tribute”. And for the other to reply, “Nami pamo mwana mulume I Msiri bushye.” It means, “I also only recognize the authority of Msiri”.

We notice that the principles learned from the Bayeke serve as a basis for the tribes of Katanga, which put them into practice in their respective administrative territories.

That is why, even if today some tribes are somewhat rejecting the influence of the Bayeke, a good number of them remain grateful to the teaching they once gained.

 

GENERAL VIEW OF THE PROCEDURE

I. Preliminary notice.

II. Individuals, who by right, exercise their judiciary functions.

III. Jurisdictions corresponding to different degrees of the customary hierarchy.

IV. Composition of these diverse jurisdictions and their differences.

V. Competences of the lower jurisdiction.

VI. Incompatibilities and immunities.

VII. Village Council: Mandatory intervention and precondition.

  • Unofficial intervention of the Mutoni.
  • Introduction of the Council.
  • Unofficial intervention of the Mutoni.
  • Introduction of the Council.
  • Plea to the Council.
  • Deliberation.
  • Verdict.

VIII. Procedure at the Igunguli Tribunal.

  • Intervention of the Mwami Igunguli’s Mutoni.
  • In case of a refusal to appear.
  • Risk of going beyond the village Council’s advice.
  • Recourse to the Mwami Igunguli.
  • Preliminary explanations and Pleas.
  • Pleas.
  • Deliberation.
  • Lecture of the Verdict.
  • Competence of the Mwami Igunguli.

XI. Recourse to the Ruhinza Lukuru.

  • On the proposal of the Mwami Igunguli himself.
  • Appeal from one of the parties.
  • How Msiri enforced the authority of the chiefs.
  • In case of a factual injustice.
  • Short explanation of the issue.
  • Pleas.
  • Witnesses’ attitude.
  • The Mwami Igunguli explains himself.
  • Debate.
  • Lecture of the judgment.
  • Verdict.

-Wrong opinion with regards to payment of costs.
-When does the implementation take place?
-Payment in exchange of life by the family of the condemned.
-The initiative of the Mutoni in terms of capital punishment.
-Sentence of imprisonment.
-Corporal Punishment.
-The fugitive accused.

I.          Preliminary Notice

Let us note before the discussion on the procedure itself that there exists in our history, and maybe among other African peoples, a distinction between civil procedure and penal procedure, as it is the case for the Europeans

II.         Individuals, who by right, exercise their judiciary functions

-The Bazabula
-The Bamolega
-The Bagabe
-The Banampala
-The Batwale
-The Banangwa
-Often even the Bagoli
-The Mwami “Mtemi”

The Muzabula comes from the verb “Kuzabula”, which means to remove from. When the Mwami is enthroned, the Muzabula comes to the Palace at the first crowing of the rooster. He would then remove from the hollowness of a root called “ifumangizi” the Ndezi, which were placed there the day before, along with another secret remedy. These Ndezi, or shells are the symbols the Mwami and other dignitaries wear. The Muzabula will give them to the Mutoni, who in turn will give power to the Mwami.

When it comes to the Ndezi, which the “Bagoli”(Queens) or other dignitaries of second ranking must wear, the Muzabula will dip them into a tree bark, with a different mixture from that used for the enthronement of the Mwami.

It is because of this function that the following salutation was created to acknowledge the dignitary: “Sha Muzabula!”

The MUMOLEGA, from the verb “Kumolega”: to illuminate, to light up, illuminates the Mutoni, who will invest. For this purpose, he will tie as in a beam the twigs of a particular tree to serve as a torch. Hence the salutation, “sha Mumolega!”

The MUTONI has a dual function: one is to act as a judge and the other to carry on enthronement duties. One can become Mutoni in three ways.

One could become “Mutoni wa Kukwa”, which means: “the one for whom we pay the dowry. It was in general a foreigner, whose qualities pleased the Mwami. The Mwami gave him a dowry, as if he were marrying him.

The Munabwami or the man of the people, who wanted to become Mutoni, could do so by requesting the intercession of a popular Mutoni. The latter then talked to the Mwami. If he was selected, he stayed close to the veteran Mutoni who initiated him. When he was trained and ready, he paid his initiator.

The third way consisted of being nominated by the Mwami. One had to have what is called “buloko” and the “bugere”, which means to be eloquent and insightful. The Mwami would entrust the new Mutoni to an expert for training. When he was ready to be on his own, they said: “Oti wera ahonge”, which means, “he should be the one who trained him, since he can earn a living now”.

If it is true that the batoni have as a principal function to judge and invest the Mwami. They also have the not so attractive role of quelling their tantrums. Some even had the courage, during tragic moments; to tell him truths that no one dared express.

The Mugabe is like the mother of the Mwami. On the day of enthronement, he sits on a seat similar to the one of the Shamina (or new Mwami), but lower in size, and will sit in front of the Mwami’s legs.

The Mumolega will illuminate the Mutoni. While standing, he would remove from the hollowness of the root the Ndezi that have been there since the day before. He then would hand them to the Mutoni, who will proceed with the enthronement procedures by singing the following hymn:

“Tegu, tegu nzovu yateguli tende”
“Suba numakantu waleshile numa”

Which means:

“Advance, advance you elephant wearing the Ndezi
“Walk back to see what you left behind you”.

While the Mutoni is singing this hymn, the Mugabe and the future Mwami keep silent.

We refer to the Mugabe by saluting him as follows: “Shuhega”, from the verb meaning to carry on the back, or the one who carries the Mwami.

The Banampala, they are the heads of the neighborhoods that make Bunkeya, the capital of Msiri. They are chosen, for the most part, between the Banabami and the “children of the court”, which means among the people’s men.

The Batwale are the brothers and cousins of the Mwami.

The Banangwa are the children and nephews of the Mwami.

The Bagoli are the queens. They could, at times, be present at public pleas. Only a few queens, as Kapapa, Kamfwa and Mahanga enjoyed a great influence, and benefited of this privilege. However, they could intervene when it was a matter of parental reconciliation, where confidentiality was not respected. The ancient Bayeke believed, as a matter of fact, that women were creatures incapable of keeping a secret, and they were wary of them.

III. Jurisdictions corresponding to different degrees of the Customary Hierarchy

Before talking about the procedure per se, I have to mention that we knew of exactly three degrees of jurisdictions in Katanga.

The supreme tribunal was entrusted to the Lumarizia, which means the one who can end all things. It is the tribunal of the Suzerain King himself. In the case of the “Magunguli” or territories, there were two kinds of jurisdictions: one was the village council and the other was territorial tribunal.

Let us examine the hierarchy:

First, there was the Mwami Wihala, “The King who is above all”, who was also called Mwenda Bantu, “the conductor of masses/leader. Mwami Shamiha, signifies, “the one who has the power to invest anyone”, or Mwami Mtemi, “the Suzerain King”. Lumarizia means, “the one capable of resolving all things. Ruhinza Lukuru means “the one who is capable to forge everything”.

Another name is Mbizo Kamala Makofu. It means, “the steamroller that is capable of flattening all the bumps”. This title was given to Msiri, who was recognized in his time as the only one who, in last resort, could judge any affair. His tribunal usually sat in Bunkeya. However, it followed him in his travels throughout the Empire, and wherever it found him. He only judged when all options had been exhausted.

Under his authority are chiefs from the magunguli or territories, who hold the title of “Bami Batemiwa”, or “banamutongo”: vassal Kings. Except for a few of them, and uniquely under some conditions predetermined by the Lumarizia, the magunguli chiefs could not be the judges of last resort. The latter had under their leadership the Bami from villages, whose powers were even more limited.

IV. Composition of these diverse jurisdictions and their differences

All of the chiefs, as well as the bami batemiwa, including the bami.

Makaya (of villages) were surrounded by dignitaries matching those of the Mwami Mtemi, such as the bazabula, batoni, bagabe, and bamolega, whom they themselves designated. The Mwami w’igunguli simply had to receive the preliminary authorization from the Mwami Mtemi, whom subsequently gave this authorization to the bami ba makaya answering to him.

At the council of the village, it is the Mwami wa kaya who presides with the batoni as assessors. The bazabula, bagabe, etc. are solely required to take part in the council.

At the tribunal of the w’igunguli, events were different. The presence of all these personalities was necessary at the tribunal, even though only the batoni had the right to debate and judge.

At the supreme tribunal, the bazabula, bagabe as well as the bamolega and the batoni could participate in the debate. Only the Mutoni was entitled with the reading of a verdict.

V. Competences of the lower jurisdiction

 

The margin of maneuver of the Mwami wa Kaya is limited to his village, and to a few neighboring villages chosen by the Mwami W’igunguli. As to the issues at hand, he only judges cases that are predetermined by the Mwami Mtemiwa.

 

VI. Incompatibilities and Immunities

 

The Mwami wa Kaya can judge everyone, with the exception of his parents, the bazabula, the bagabe and other dignitaries. This inaptness does not exist in the case of the Mwami wa Kaya, even in the jurisdiction that is directly superior.

Here are some proverbs illustrating the matter:

“Kanoni kali ku buta bwako batwilashiranga lembwa bino”; which means, “One can not shoot the bird that is perched on the canon of the rifle. Leave that mission to another one”. Or “Mtema nkoko musondwe, ulemerezi musondwe”, which means: “Who can at the same time hold a chicken and cut it into pieces?” This shows how complicated it was for a chief, chair of the tribunal, to be witness to the judgment of his parents and notables.

If a similar case were brought forth to the village council, the Mwami wa Kaya would send it to the tribunal of the Igunguli. Whenever the parents of the Mwami Igunguli were involved, the supreme tribunal judged the case.

The Mwami wa Kaya could not judge any case, unless in instances that were minor, such as the reconciliation of members of the same family.

The Mwami W’igunguli had the competency in all these cases, in his territory, except in those where the Lumarizya reserved to himself, or when it was about a contest between banangwa, batoni, etc.

The Mutoni enjoyed a special privilege and was hardly punishable. In order for him to be punished, he had to have committed a very grave mistake. In no case was he ever rejected.

In fact, the quality of the Mutoni was attributed for life. It was even hereditary. When a Mutoni commits a serious blunder, the Mwami will endeavor, very discreetly, to reduce his influence. The Mwami will progressively reduce his involvement in pleas, or Batonis’ meetings. Noticing his diminished role, people will stop relying on him. However, the Mutoni will remain in his position until he passes away, and his eldest son succeeds him.

VII. Village Council: Mandatory intervention and Precondition

When a man harmed another, the first step in those days, as they would today, was to make the culprit admit of their guilt. If the latter admitted of their fault, they then reached an amicable settlement.

It appears to me that such a settlement was more common, as opposed to today, where the judicial recourse leads to fewer risks. However, such a settlement was only possible when the offense was minor, and the perpetrator confessed. Or else, the plaintiff would go and alert the authorities.

  • Unofficial intervention of the Mutoni

Even in the Kaya, the plaintiff would alert primarily the Mutoni, and preferably the first Mutoni. No one, except for the poor, could address the Mwami directly. The poor enjoyed such privilege, as illustrated in the following adage: “Balanda ni ba Mwami”, which means: “The poor are the King’s children”. The Mutoni, whom the Mwami designated, examined the case they brought to his attention.

On the other hand, when the case was introduced directly to the Mutoni, he would examine its severity.

When the case was of little importance, the Mutoni never failed to request they bring forth the two feuding parties for reconciliation. If this reconciliation showed to be a success, he always was present. He would summon the accused party, and discreetly interrogated them. Deliberately, the Mutoni would use good judgment and pronounce these Yeke words: “Mutoni ekumutola mbela”. It means: the Mutoni must handle the situation by beating around the bush, with subtlety. As a result, he must exhibit great skills. For instance, he would use a phrase such as, “I have heard from hearsay that there is a difference of opinion between you and such a person. How did that come about?” If the answer is sincere and contrite, the Mutoni will counsel the guilty party to present their apologies, in order to amend themselves.

After reuniting both parties, the Mutoni will reinstate the friendly relations between them. On the other hand, if the alleged culprit does not want to admit guilt, then the assembly will say: “Mutoni amutulila”, or “amukomolela ku mulundi”. It means: the Mutoni should speak overtly about what happened. The Mutoni will request that the plaintiff return, and will act as the expression suggests: “Mutoni nge agema kubazania”, or “Kubakondezia”, which means: “The Mutoni is suggesting they reconcile”.

  • INTRODUCTION OF THE COUNCIL

In case neither one of them wants to accept this plan, the Mutoni then says: “Kalumi mpaka, kalumwa nake ni mpaka”, which means literally: “Is it reasonable that the one who bites and the one that is bitten both complain equally?” In other words, when there is such an argument, not everyone should pretend to be right.

Failing to find a way to resolve the quarrel, the Mutoni will call on the Mwami, in these words: “Waliha aga magambo ganshind’one Mutoni, obe Mwenekili ugamalizye”. It means: “I present this quarrel, which I, the Mutoni, was unable to resolve. May you Master be the one to see it through.”

The Mutoni will add: “aga magambo gatina mutagama, katali kuulaka.” It means, what the mutagama was unable to resolve, who else but the Mwami to do it? Here, the Mutagama is the Mutoni himself. He is alluding to a group of people from the territory of Tanganyika called the “Batagama”; synonymous to those who “are opinionated”. They have this reputation because of the fact that when they have an idea, they do not easily yield to others. Hence the Mutoni will proudly borrow their name to signify his resolve not to give up.

Consequently, he will say: “where I have failed, nobody else will, except the Mwami”. And the Mwami usually responded by saying, “Obe Mutoni oti wagashindwa (magambo) one Mwami nge kwila shi?” These are polite terms aimed at showing the Mutoni that he is the only one entrusted with the duty to judge.

  • HEARINGS IN FRONT OF THE COUNCIL

The village council, with the Mwami wa Kaya as Chair and the Batoni as assessors, will convene. It is held in the presence of the Mutoni, who has already heard the case.

Each party is successively given a hearing. Afterwards, the council interrogates the “basangilwaho”, or the witnesses. When everything is done, the Chair orders the parties, as well as their witnesses, to retire by saying: “Mupuneho bamitole”. It means, “Retire, so that we can criticize you”. In other words, it suggests that the council needs to speak openly.

  • DISCUSSION

The Batoni discuss the decision by weighing the pros and cons. When they have completed their discussion, the Mwami wa Kaya, who is present and has been following close attention without intervening, concludes by complying with the general opinion of the assessors.

  • VERDICT

At this point, the council calls back both parties. The Mwami wa Kaya designates a Mutoni, who will review all elements of the case. Generally, before reading the tort, the Mutoni recalls a saying similar to the following: “Magembe gali hamo gakalekanga kwikumya.” Literally, it means: “Hoes resting side by side will bang against each other”. The exact meaning of this saying is: “In society, clashes are inevitable”.

It is after these pronouncements that the Mutoni will suggest reconciliation as a settlement to compensate the plaintiff.

In order to ensure that the verdict is followed, the council will bring the busere (traditional drink) in a container. Then, they will ask the parties to sit side by side, and will order each one to drink some of the busere, and pass it to the other to do the same. If they drink without hesitation, it means they have reconciled. If, on the other hand one of them refuses to drink the busere, it signifies that the case must be taken to the W’igunguli’s tribunal.

VIII. Procedure at the Igunguli’s tribunal

If no agreement is reached, the council of the village can take the initiative to send the case to the tribunal of the Igunguli, or else it will be one of the parties that will take it upon themselves.

  • Intervention of the Mwami Igunguli’s Mutoni

If the council submits the case to the superior tribunal, then it will delegate the Batoni of Kaya. They will directly find the Mwami W’igunguli. After they have updated him, he will entrust one of the Batoni to closely examine the case.

On the other hand, if one of the parties is not satisfied with the decision, they do not have the right to take the matter directly to the Mwami W’igunguli. This party will address one of his Batoni, and preferably the most influential.

The latter will listen to the party, dismiss them, and ask them to return later. This delay will depend on how far the parties reside. In the meantime, the Mutoni will summon the other party to interrogate them.

  • In case of a refusal to appear

This hypothesis is not appropriate. According to the information I was able to gather on the matter, the defendant always appeared to the hearings. Failure to come forward, he not only ran the risk of losing the case, but also he incurred a stiffer sentence, since it appears as an affront to the King.

  • Risk of going beyond the village Council’s advice

When the Mwami meets with the defender, he also sets another appointment for later.

In the meantime, he studies the case. He examines the validity of the accusations and analyses the decision of the village council. If the decision of the council deems to be equitable, the guilty party will be doubly condemned. It is held liable for tort, and responsible for overlooking the council’s decision.

As soon as the adversaries reconvene, on the set date, before they are jointly called before the judge, the Mutoni must reproach the plaintiff. He uses the following proverb: “Mihayo ya manya ikawanga hasi”. It means: “the words of a wise man do not fall to the ground.” Also, it means: “listen to the advice of the eldest”.

  • Recourse to the Mwami Igunguli

If he does not succeed, the Mutoni will submit the case to the Mwami W’igunguli. The W’igunguli will summon the parties to return after a number of days accompanied with their witnesses. He would then forewarn the Batoni, bazabula, Bamolega, Bagabe, and the Banampala that they should all convene on such a day for the hearing.

As soon as the moment arrives, all the dignitaries, both parties, as well as the respective witnesses, convene. The meeting is always held at the Mwami’s. Since the meeting is taking place at the residence of the Mwami, everyone has to abide to the protocol.

  • Preliminary explanations and Pleas

The participants sit in a circle. The Mwami is sitting in his chair. All around him, except behind, are the Batoni, Bazabula, Bagabe, Banampala, as well as the two parties involved. Their witnesses form a grouping, and sit in a semicircle position. According to their position, some sit on chairs, others on stools, on animal skins, or on the ground.

The Mutoni, who is in charge of the proceedings, will rise and salute the Mwami by clapping his hands and saying: “Kashinde”. It means: “You are the conqueror”.

After this gesture, he is asking permission to have the floor. He would then sit down, but never would turn his back to the Mwami, and explain in subtle and crafty words the reason the assembly was convened. By doing so, he is updating the audience. At the end of his introduction, he would rise again, and once more salute the Mwami. The Mwami, on the other hand, does not speak.

  • Pleas

Now that everybody has been updated, the same Mutoni will give the plaintiff the floor. The plaintiff would leave his/her place and position himself in the center of the circle, always turned toward the Mwami W’igunguli. According to his position, he will either sit on a chair or on an animal skin on the ground. He may salute the Mwami before speaking. At any rate, he has to salute him at the end of his presentation. T his presentation is not always precise or concise. It might go back to the deluge, before coming back to the topic of the day.

As the plaintiff is speaking, the defendant cannot interrupt him. Only the Mutoni can ask a question to clarify information that is unclear. In order to encourage him to remain accurate, the Mutoni will recite the following proverb: “Kamunuka ngobo umanie wimanile, usuhe wisuhile”. It means, we will compare both parties to tanners of hides, who when they are skilled, profit from their trade. However, when they are not skilled, they suffer the consequences. This proverb serves, as a warning to both parties, that what will determine the outcome of the case is not the antipathy or the sympathy the Batoni may have for either party. Rather, the outcome is determined by what comes out of their mouths. Consequently, they must accurately speak the truth, and say exactly what happened.

When the plaintiff is done, it is the defendant’s turn. Then, the witnesses are interrogated, taking into account the veracity of their testimony.

  • DELIBERATION

As soon as the proceedings are over, the judge dismisses both parties, as well as their witnesses to retire. At that moment, “Kubatola” can start. It means: to say mean things about someone. It also means to deliberate. The presence of the parties might hinder the free nature of the deliberations.

During the deliberations, each Mutoni provides his opinion. After the debate, the Mwami decides to speak. He corrects one error or the other, and can even, if necessary, request the deliberation be started over. In any case, he has the last word.

  • LECTURE OF THE VERDICT

After the deliberation, the Mutoni will reconvene both parties. We have reached a crucial point. Silence reigns, for no one knows which one of the Batoni will pronounce the verdict. The assembly is always inquiring to know whom the Mwami has designated to accomplish this task.

When everyone is present, the Mwami, who remained silent up to this point, decides to speak. With a solemn voice, he designates the Mutoni who will carry out this duty. He does so with the following words: “Mutoni gani wamizie magambo”. It means: “Such a Mutoni, I authorize you to read the verdict”.

The Mutoni will pause for a short moment to reflect before speaking. He then rises to his feet, and thanks the Mwami for the power he has delegated to him.

He would then salute the Mwami by saying, “Kashinde”! The Mutoni yells out, “Tugire Mwenda”! It means, “We are going to pronounce the verdict, in the name of the King Mwenda Msiri. And the audience, including the Mwami W’igunguli himself respond by saying, “hi…hi…hi…” while clapping.

The Mutoni then reviews cases that were similar to the current case, and explains the manner in which they reached the verdict, under such a Mwami. Afterwards, he recaps the entire procedure from the beginning to the end. Then, he spells out the wrongs committed by the alleged guilty party. It is only at this moment that he announces the verdict.

To conclude the proceedings, the Mutoni shouts once more: “Tugire Mwenda!” And everyone responds by saying: “hi…hi…hi, while clapping. This means: “we have judged in the name of Mwenda.”

As soon as the sentence is pronounced, no additional changes can be brought forth, at least not right away. Public opinion cannot pretend to influence the Mwami or the Batoni. In accordance with the proverb, which says: “Bugali buli mutekelwa, busele buli mutekelwa”. It means: “one cannot invite themselves to dinner, or at a party, which is serving the busele.” In other words, it means that nobody, except those who have the right, can just claim, or appear at the tribunal.

  • Influence of the Mwami W’igunguli

Even though he had territorial authority throughout the entire Igunguli,the Mwami, however, did not have jurisdiction in all areas, or on all subjects. There were crimes, which only the Lumarizia had the authority to judge. Let us look at the case of “Nzigu”, a homicide or murder. If the Lumarizia initially provided his authorization, the Mwami W’igunguli could judge, provided that the parents of the accused were compensated. But if the plaintiffs argued: “N’ifwe twagoba kwihola”, which means: “we want to avenge our relative by either killing the murderer himself, or one of his family members. The Mwami W’igunguli, at that point, did not have any power. The case had to directly be submitted to the tribunal of the Lumarizia.

Whenever it was a contest between a commoner and a member of the nobility, or if the individuals were from the high nobility, the Mwami W’igunguli could not judge them at his court.

When a case involved a commoner who had shed the blood of another commoner, the following expression was used: “oyo muntu alete shisululu Mwami ashikande.” It means: “May the murderer give the Mwami the “shisululu” to pay for his blood. And for the Mwami W’igunguli to receive the “shisululu”, the Lumarizia must grant him additional authorization. Normally, the shisululu belonging to the perpetrator of the homicide would be sent to Mwenda’s tribunal.

The sale of slaves was particularly a major crime. Only the tribunal of Bunkeya was allowed to judge such transgressions.

Before Msiri, slaves were sold and bought with total freedom. As soon as he was in power, he forbade such transactions, with risk of severe punishments. However, he allowed domestic slavery.

With the exception of a few cases, where the Lumarizia had primacy, such as murder, assassination, and rape, the Mwami W’igunguli had the final say in his territory. He even had the authority to kill witches, sorcerers, and those who used poison to kill others.

IX. RECOURSE TO THE RUHINZA LUKURU

  • On the proposal of the Mwami Igunguli himself

If he considered that the case was beyond his competency, the Mwami W’igunguli would warn the “Ruhinza Lukuru”. It means: “The forge that is capable to forge everything; in other words, Msiri. To achieve his objective, the Mwami W’igunguli would send many of his Batoni. The latter would go directly to the Mwenda. If he deemed it necessary, Msiri could send the case to the territorial tribunal. And there, he would entrust the Mwami W’igunguli with power to judge. On the other hand, if he preferred that his own tribunal judge the case, he would send the Batoni of the Mwami W’igunguli to one of his own, such as Kiseba, or Kabala. They would then inform themselves about the nature of the contest.

  • Appeal from one of the parties

When the Mwami W’igunguli’s court rendered the judgment, and one of the parties were unhappy, they could have recourse to the Ruhinza Lukuru, also called: “Mbizo kamala makofu”. It means: “The bulldozer that is capable of flattening everything in its path.”

If the defendant does not know anyone in the Capital, he will seek the hospitality of the premier Mwanangwa. The latter will have the obligation, as he still does, to welcome travelers. Through the intermediary of the Mwanangwa, this person will be able to contact the premier Mutoni in that city and explain the case.

Once informed, the Mutoni will summon, in the name of the Lumarizia, the Mwami W’igunguli’s Batoni and all those directly involved with the case. If the case is important, the Mwami W’igunguli will go to Bunkeya in person.

  • How Msiri enforced the authority of the chiefs

The Mutoni interrogates the mentioned parties by starting with the Mwami. If and when he notices that the judgment has been rendered, he will consult with the Lumarizia.

On the order, a restricted council comprised of a few Batoni and Banangwa would convene. In the presence of the Mwami W’igunguli and his own Batoni, Msiri would personally address the party, which claimed the alleged unjust condemnation by saying: “Wagarizia Mwami, ng’one wagairizia, tiani ni muzwi gwane wagairizia.” It means: “you have dismissed the decision of my chief (the proxy tribunal), which spoke in my name. Therefore, it is my word you dismissed. “Iwasumura teletele.” It means: “you have disobeyed.”

In speaking this way, Msiri reinforced the authority of his chiefs and the guilty party was doubly punished for both his fault and his insubordination.

  • In case of a factual injustice

Let us suppose that the defendant was genuinely wrongly accused. If the Case was of great magnitude; it is then a serious matter.

The Lumarizia would give the order to the premier Mutoni to forewarn all of the dignitaries living in proximity of the Capital, such as the Bazabula, Bamolega, Bagabe, Banampala, Batwale, as well as the Batoni, by saying: “Muhayo halusiku gani tukwikala ka shikome.” It means: “On a given day, there is a tribunal (judgment).

On the set date, everybody convenes at the court. As soon as everybody is seated according to their rank, the premier Mutoni will rise and salute the Mwami: “Magembe gagelanika ku bapanduzi”. It means: “the number of hoes is precisely equal to the number of cultivators”. This also means that the Batoni and the Bazabula are all present. We can then resume the pleas. To that, Msiri would respond: “Banalugo bikale bagenalizie magambo”. It means: “All citizens must be seated in order to resolve the problem”. And everyone answers by saying: “Wanyama, wanyama!”- “It is so, Sire, it is so!”

  • Brief explanation of the issue

When they have ceased to applaud, the Mutoni would recommenced the proceedings from beginning to end. He will at the same time demonstrate how the trial was handled at the W’igunguli’s tribunal.

While he is speaking, everyone listens silently. In closing, he would say why the Supreme Court deemed well to reexamine the case.

  • Pleas

It is at this moment that he would introduce the Mwami W’igunguli, his Batoni, the two parties, as well as their respective witnesses. On his order, the plaintiff would be first to speak. They would seat in the middle of the circle to tell what happened. Afterwards, the other party would do the same.

When the Mutoni thinks that one party is lying, he would attempt to derail them by asking inappropriate questions. Another Mutoni could dissuade his colleague by saying the following proverb: “Kamungoma nikamanya mubamvi”. It means, “What is within a drum, only the maker knows”. More clearly, it means that if a person had the courage to appear in front of the tribunal, it must be that they are willing to vent what is on their heart. If instead the defendant were trying to fool the tribunal, he would be the Mutoni’s role to obstruct with logical arguments.

  • Witnesses’ attitudes

When the witnesses have their turn, they often are fearful to go in front of the Batoni.

Let us note that most of the time, the parties wish to have as witnesses their close relatives, whom they believe would testify in their favor. Since some of the witnesses do not like to testify in such circumstances, they would use the following proverb to voice their displeasure: “Kabundi Kalafwila handi kize kanobogezie miso”. It means: “is it possible that the dead Kabundi (small animal) would still stare in my eyes?” Or, “this case does not concern me at all. Therefore, I should not meddle in it”.

And their relative would say: “ilimo mbeba ilimo mushila”. It means, “Where there is a mouse, there is a tail”.

He can also reply: “Itwabutwa nda mukondo, gilegamo byo.” It means: “Just as the umbilical cord is attached to the umbilical region of the child’s abdomen, similarly we are attached to each other”. It can also mean: “Since we are from the same womb, what is happening to me is also affecting you”. Thus, he wants to show that there is a strong bond, which must exist between family members.

Let us suppose that a parent is named as a false witness and they ask what is happening; the accused relative would respond by saying the following proverb: “Now that you are holding the chicken’s leg, you start asking what kind of bird species it is”. Or also, “Shie kuhya nikukulu kwako nge ubushie angu mbele eshia shie kununka mbela ni shinde?” It means, “Now that your leg is burning, you ask where the smell of burning is coming from.” It also means, “I am your relative on trial, and you should support me at all cost”.

All witnesses luckily do not have such pusillanimous attitudes. Some keep their cool and can relate all they have seen and heard.

It may happen during the depositions a Mutoni might attempt to favor one party over another, or steer the witnesses in one direction or another. In case we notice that in spite of the insidious line of questioning, the witness persists with his testimony, another Mutoni can intervene by using the following proverb: “mulalumwe ni mbuzi mulagemelayo nsabo”. It means: “As the goat is biting you, you would believe that it is a sign of wealth”. In other words, it means, “do not allow to be influenced by the presence of people whom you think are honest. If the witnesses are consistently coming back on the same issue, it is certainly because of a good reason. Or, one might say, where there is smoke, there is fire.

If another Mutoni incessantly interrupts a “musangilwaho” (witness), the latter can subtly reproach this attitude by using the following proverb: “Bwasavilwe nde: mwinu mukalomo angu utakamila mate, Mwenda mu shibuno angu shibi kutuma mno!” It means, “Have we ever heard of slavery? They put salt on my tongue and prevent me from swallowing. They dress me with a wraparound, yet forbid me to dance”. One should know that salt, by its sheer scarcity, was precious and coveted; and to put on a wraparound on someone was to express one’s desire to see him or her dance. These exclamations meant: “Since you have summoned me to testify, let me speak freely”.

In the case where the proceedings had to be postponed, one of the Batoni could interfere by saying the following proverb: “Kaneranera kakoshanga numba”. It means: “the little flame that can cause a fire; therefore it has to be extinguished in time”. In other word, it means, “by incessantly deferring the judgment, the case can degenerate”.

Is a Mutoni spitefully making fun of the defendant, taunting him to the point of ridicule asked politely one of the victims with the following saying: “Mfune yahula mwino nobe ilakakuhula”. It means: “The blow that struck your neighbor could also strike you”. In other words, it means, “do not make fun of someone’s misfortune, for you could also suffer the same fate”.

 

  • The Mwami Igunguli explains himself

When the parties and witnesses have finished testifying, the Mwami W’igunguli, assisted by his Batoni, will reach the judgment, just as he had previously had, and will provide an explanation.

  • Deliberation

Afterwards, everybody would be dismissed, including the Mwami W’Igunguli, his Batoni, both parties, as well as the witnesses, by saying: “Mupuneho bamitole”. This literally means: “Please go away, so that we can freely criticize you”. In other words, it means, “dismissed, so that we can deliberate”.

It is at this time that the deliberation takes place, as we described it above. However, all of the dignitaries that are present can speak freely and make comments. Contrarily to the previous jurisdictions, where only the Batoni, at the supreme tribunal and the Bazabula, the Bamolega, and other personalities are permitted to speak their mind. The duty to utter the judgment still solely rests on the Batoni.

At the end of the discussions, the agreement made on the most fitting decision is reached. Eventually, the Mwami approves of the agreement, or eventually makes corrections in the assembly. Then, he would summon the parties to return.

  • Lecture of the Judgment

Silence is total. Everyone dreads the pronouncement of the sentence, which perhaps will condemn the party. The Mwami W’igunguli fears that because of the poor and unjust handling of the case, he might also be punished. In short, the atmosphere is tense.

As for the Batoni, nobody knows who is going to pronounce the sentence. They are all very calm. Who is going to be chosen, they wonder quietly? Everybody would like to pronounce the sentencing, in such circumstances, to display their eloquence, in order to impress the Mwami.

Then, the Royal guards appear, as well as the executioner, who may carry out the execution of the prisoner, or take them to their place of incarceration.

While everyone is wondering what is going to happen, the Lumarizia, with a grave and solemn voice designates a Mutoni by saying: “Mutoni gani, wamizie magambo”. It means, “such a Mutoni, I entrust you with the authority to pronounce the judgment”.

The latter will rise, and salute the Master by saying “Kashinde!” It means, “You are the conqueror”. Then, he thanks the Mwami for the authority he has been delegated to him. Afterwards, he would turn to the assembly, and shout loudly: “Tugire Mwenda!” It means, “We are going to pronounce this judgment in the name of the King Mwenda”. And everybody responds by saying: “hi…hi…hi…and applauds.

When they finish to applaud, the Mutoni begins to speak loudly and solemnly: “Momvwe imwe Banangwa, n’imwe Bagabe, ni Bazabula, ni Bamolega, ni Banampala, n’imwe Batoni magambo ha rubanza lwa Bwami”. It means, “Listen all of you, Banangwa, Bagabe, Bazabula, Banampala, and the Batoni, to the judgment we are going to pronounce in the presence of his majesty.

He then reviews the entire procedure by showing the tort committed by each party.

Starting with the Mwami W’igunguli, and his Batoni, he would blame them, as well as show them their mistakes. In private, the Mwami will address the W’igunguli by saying the following proverb: “Minzi ga muluhe nu mafila mwilenga”. It means: “Water that has been poured on a platter can not be carried by a clumsy porter”. The latter message tells him that, “in order to carry out the duties the Lumarizia has given you, O Mwami W’igunguli, you should not be blinded by your own capriciousness; for if you do, you will appear undignified in your functions. However, be moderate and just.”

Later, in congratulating the winning party, the Mutoni will show the faults of the losing party. He reviews all the incriminating points that led the Batoni to a guilty verdict.

If however, during this review, one of the parties shows their impatience, the Mutoni can convey to them how much this attitude is out-of-place with the following proverb: “Kasovi kuleha mulomo nge kiyobike”. It means, “even though it has a long beak, the Kasovi (little bird) would not be able to position its suction pads”. In other words, once you have submitted the case to the elders, do not feel as though you are going to be your own judge.

At last, he pronounces the judgment. Nobody, absolutely nobody can say anything. Only the Mutoni has the right to speak.

As soon as the judgment is pronounced in the presence of the Lumarizia, it can no longer be changed.

If that were necessary, the premier Mutoni could then subsequently ask the Mwami for leniency. It all depends on how he goes about making such a demand.

If in fact the premier Mutoni notices that public opinion does not approve of the Mwami’s decision, then he can go and present such leniency. The exchange would generally be private and would take place preferably at night, when the entourage of the Mwami has retired. The Mutoni would say to the Lumarizia everything the people think and wish for. Most of the time, the Mtemi will give in and reduce the sentence.

If it is about a capital punishment case, the Mutoni could proceed differently, as we will see later.

In the case where the Lumarizia acceded to the desire of the people by reducing the sentence, the Mutoni would have never said: “The Mwami was wrong”; rather, he would say: “we made a mistake in our interpretation of what the Ruhinza Lukuru said. The sentence is therefore as follows…”

This subtlety in the language emanated from the desire to safeguard the prestige of the Mwami, whom in spite of some inevitable errors was considered the protector and father of the nation.

  • Execution

There were penal and civil sanctions that determined the cause for execution. Usually whatever weapon used to commit the crime would be confiscated. The compensation to the plaintiff or their family always was enforced. And finally, there was compensation or fine to be paid, as well as the ‘legal’ cost.

  • Erroneous opinion with respect to the payment of costs

With regards to the trial cost, let us clarify the difference between customary law and written law. Up until now, it was thought that in customary law, the costs befell the winning party. According to the information gathered in Bunkeya and elsewhere in Katanga, this difference never existed.

The individuals I interrogated, notably Mutaka Kalambala and Kube, both cousins of Msiri, Manena, first daughter of Mugembe, nicknamed “Kabinda wa Vidie” by the Baluba (Msiri’s youngest brother), “Mwene Makeka, one of Msiri’s guard, Kalasa Hubert Mpande Mlindwa, who is Msiri’s keeper of the Basanga symbols of power, Kankungwala, Msiri’s grandson, and finally the Mwami Mwenda Munongo himself, including his entourage, have unanimously affirmed that from the origin the trial cost befell the guilty party. The latter had two debts to pay up: compensation to the lender and cost.

In reality, in order to be specific, let us define that the condemnation was pronounced in a global fashion. For instance, in the case of a murder, a “domestic slave” and two elephant tusks. Everybody knew that the customary compensation for murder was in the form of payment with a slave. The two tusks were given to the Batoni, for whom this share constituted a form of remuneration. We can then confirm that the expenses were incorporated to the pronounced condemnation against the guilty party.

The confusion undoubtedly stems from a proxy practice, which was added to the Rule. The winning party, motivated by a sense of gratitude, would go to the Mwami. As a sign of appreciation, he would pour dust on his body by shouting: “Tambula Wanyama, Lubango Waliha!” It means, “you have spoken well, sire, you are our savior!” Afterwards, he would offer a present, which he deemed worthy of the Mwami.

He then went to each one of the Batoni to offer them presents. It often occurred that he gave more than he had been received during compensation.

This act was repeated through generations, and became a custom; so much so, that it was expected that the winner should give presents to the Batoni.

It is probably why, to this day, we maintain that the winning party should pay the costs. Such an opinion is false because since in the past, as today, the costs of the trial have not ceased to be the responsibility of the losing party.

  • When does the execution take place?

An execution could occur directly following a sentence. In matters of least importance,each party could, according to custom, set aside an approximate amount of what it would cost them in the likelihood they lost. In such a case, the sentence was executed right away.

Things were different whenever the condemnation consisted of a stiff compensation. Let us look at a current example. It is about a case, which in itself is of minor importance, should have normally been settled without the intervention of the authorities. The case could have however become a serious case due to an unforeseen coincidence.

Thus, following an ancient superstition, which was later combated by Msiri, if a person sought refuge in the house of another to hide from the rain, the owner of the house would say “he had brought tears to the house”. And to stay away from those tears, the refuge seeker would give something to the owner of the house. They usually found an amicable arrangement.

If by misfortune, one of the close or distant parents of the proprietor happened to die during that year, the case became more complex. Because the refuge seeker would be blamed for the deaths, the case then became that of a murder. The alleged carrier of bad luck had to pay as if he were a murderer.

In the case where he was unable to compensate the party immediately, he could receive a delay of payment. He only received the delay by providing a guarantee. When the case involved a foreigner, who could easily escape, the authorities would confiscate something precious in their eyes. The rules were different, especially with regards with cases that were considered more important, such as homicide, the kidnapping of another person’s wife, theft, boiling water test, the purchase or the sale of a slave, and so on. The risk of imprisonment and capital punishment were carried out immediately.

  • Buying back the freedom of a person sentenced to death

If capital punishment was the best punishment for this kind of crimes, there were however, some exceptions. These crimes were the result of mitigating circumstances, in which the guilty was found.

Instead of killing the criminal immediately, the authorities would say to his parents: “Look, your relative has killed a person”. If the parents said: “do not kill him, we are going to pay for compensation”. The Mwami would respond: “Let it be, it is agreed!” The close relatives then had to pay.

  • The initiative of the Mutoni in matters of capital punishment

If on the other hand the relatives responded by saying: “Kill him, it is his fault; we will not speak in his defense”. The Lumarizia often would give the instruction to the premier Mutoni to have the murderer executed by the “bikola” (executioners).

It is here that the Mutoni eventually had to play a major role. Instead of putting the accused to death, he could save him. How did he do it?

He would go away from the village, accompanied by the bikola. There, they would find a tree called “Mulombwa”; the sieve of which is as red as blood. They would then stab their spears into the cork of the tree, in order to give them the appearance of being stained with human blood. Afterwards, they would return to the village and say to the Mwami: “Waliha twali twamwita”. It means, “Sire, we have executed the criminal”.

Msiri would think that the criminal had gone through the same fate as his victim, when in reality, he was hidden and fed by the Mutoni.

Shortly thereafter, when the case had almost been forgotten, the Mutoni would go find the Mwami. He would start by being sycophantic and flattering of his magnanimity, which “was well known by all of his subjects”.

When he thought he had achieved his goal, the Mutoni would leave his place and would get on his knees, by the Mwami’s feet, and would admit of his actions. He would provide the Mwami with the reasons that lead him to spare the criminal’s life, in the following terms: “Mwene kili, oya muntu tulamushizia muhayo magambo gamwe gali gasoga nge kushila ashila”. It means, “Sire, we spared the life of this man, because he is not as guilty as we initially thought. He does not deserve capital punishment”.

If the Mwami were convinced by this plea, he would summon the man and say: “Oti washila baga muntu wane, wigalizie tuhu mutende, shina kusuviaho bukabili yoo, oye”. It means, “since your life has been spared, my subject, remain calm”. However, from now on, do not do it again, never again!”

With a little bit of luck, the man would become the Mwami’s page, which allowed the latter to keep a close eye on him.

As for the Mutoni, who had dared take such an initiative, he was overwhelmed with honors. This was generally an occasion for the Batoni to attract the favors of the Master.

For the simple fact that the criminal had not suffered his deserved sentence, if he were to become the Lumarizia’s page, it would be the Lumarizia’s responsibility to compensate the victim’s family in place of the criminal.

  • Pain of incarceration

Let us envisage a petty crime, which does not deserve capital punishment. For instance, if someone kidnaps the wife of another man, and takes her away. As soon as the Mwenda is aware, he would summon the guilty parties: the man, and the woman. If they refuse, then they would be arrested.

When they appear, the authorities ask the man: “Why did you abduct your friend’s wife?” If he answers: “I was tempted. Msiri would summon his parents, so that they could hear the declarations of their brother (relative). If the relatives say: “O waliha! (Master) we agree to pay compensation to the husband that was cheated on. The Master would say: “Pay, give, let us have a person and your crime would be absolved. Let us remember that Msiri allowed domestic slavery.

If on the other hand his parents said: “we do not want to take care of a villain, a person that acted wrongly. We will not pay for him”. He is then imprisoned for five months, approximately, since this period corresponded to the prisoner’s behavior.

During this time, the prisoner would work for the Mwami, who will give compensation to the woman’s husband.

  • Corporal punishment

When the crime does not justify prison sentence, the guilty suffered a number of whippings. “Bamuhule milanga muhayo atekomvwanga!” It means: “Only whip him, for he does not listen”.

Another corporal punishment was applied when a prisoner proved to be difficult and threatened to flee. They would say: “Bamutule mw’ikoli inkilunga!” It means, “put him in the ikoli to prevent him from fleeing”. Ikoli is a piece of wood, in which they dug a hole and put one of the prisoner’s legs, while the other was free. The ikoli is very heavy and the opening very narrow to prevent it from climbing over the ankles. It is therefore immobilized until the day he gives in.

  • Guilty and fugitive

When the criminal has escaped before he is apprehended, two cases are to be envisaged, since they are dependent on their condition.

First, let us imagine a case, where the one murdered is a slave. If the murderer remains away, in a foreign land, during a period of ten or fifteen years, and afterwards decides to return, he will not be hunted.

What I mean by foreign land is a land that is outside of the Yeke Empire. In the east, it was the regions of the Tanganyika, to the Bangwelo, at kings Citimukulu and Mwamba. In the South the lands of the Balozi towards today’s border with Mozambique, at King Liwanika’s. In the west, it was Angola. In the north, the region of the Kasai (part of the Basonge was incorporated in our Kingdom).

On the other hand, if the individual was a “Munaka”, citizen or free man, and especially if it was a Mwanangwa who committed the crime, there is basically no prescription. Often, Msiri did not wait for the murdered to return out of his own volition. He would send his messengers to the foreign king, in order to request the extradition of the culprit.

At times, it is the foreign chief himself, in order to avoid rows with the Bayeke, who would take the initiative to arrest the fugitive and send him to Mwenda.

 

Final Project, Lovanium Kisantu, 1953.

Godefroid Munongo